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https://www.courtlistener.com/api/rest/v3/opinions/2534714/	45 So.3d 347 (2010) Suzanne Glaze WILLIS v. Brandyn Lee WILLIS. 2080876. Court of Civil Appeals of Alabama. February 26, 2010. Terry L. Mock and Andrew L. McGee, Tuscumbia, for appellant. Jenna Brooks Smith, Tuscumbia, for appellee. THOMPSON, Presiding Judge. In October 2006, Suzanne Glaze Willis ("the mother") filed a complaint seeking a 348 divorce from Brandyn Lee Willis ("the father"). In her complaint, the mother sought, among other things, an award of custody of the parties' two minor children, an award of child support, and an equitable division of the marital property. The father answered and counterclaimed, seeking an award of custody of the children. On November 7, 2006, the mother, who apparently had custody of the children, filed a motion requesting that the trial court order the father to pay pendente lite child support.[1] In December 2006 and again in February 2007, the mother moved to have the father held in contempt for an alleged failure to support the children and in connection with the father's disposal of certain marital property. In March 2007, the State of Alabama ("the State") moved to intervene in the action for the purposes of seeking, on behalf of the mother, child support for the parties' children; the trial court granted the State's motion to intervene. After attempts at mediation failed, the trial court set the matter for a final hearing on May 6, 2008. Almost a year later, on April 8, 2009, the trial court entered a judgment divorcing the parties.[2] The mother filed a postjudgment motion, and the trial court denied that motion.[3] The mother timely appealed.[4] The trial court's April 8, 2009, judgment states that it incorporated "a partial agreement" of the parties. The "partial agreement" reached by the parties is not set forth in the record on appeal, and neither party has made any representation identifying the issues upon which the parties had reached an agreement. The trial court did not receive any evidence as to any of the issues that might have still been in dispute at the scheduled final hearing. However, the trial court proceeded to enter a judgment disposing of all the pending issues between the parties. The mother's challenge to that portion of the April 8, 2009, judgment purporting to incorporate the parties' partial agreement has merit. The record contains no written documentation of the parties' partial settlement agreement, and an oral settlement agreement is valid and enforceable "only if it is made in open court or during a pretrial conference." Contractor Success Group, Inc. v. Service Thrust Org., Inc., 681 So.2d 212, 215 (Ala.Civ.App. 1996). This court has explained: "All settlement agreements entered into by attorneys and occurring at the trial-court level are governed by § 34-3-21, Ala.Code 1975. Ex parte Sims, 627 So.2d 380, 382 (Ala.1993). To be effective under § 34-3-21, an agreement must be made in writing or entered in the minutes of the court. Holmes v. Sanders, 729 So.2d 314, 316 (Ala.1999); and Ex parte Kiely, 579 So.2d 1366, 1367 (Ala.Civ.App.1991)." Proffitt v. Cochran, 742 So.2d 188, 189 (Ala.Civ.App.1999). The father asserts in his brief on appeal that the parties "appeared with counsel and announced to the court that a partial settlement had been reached." However, the record contains no written documentation of that partial settlement agreement, and there is no indication that a hearing was actually conducted. Thus, in this case, 349 "[i]t is clear ... that the oral agreement at issue here was not made in open court or during a pretrial conference and was not entered into the minutes in open court." Contractor Success Group, Inc. v. Service Thrust Org., Inc., 681 So.2d at 215. Thus, this court is unable to hold that the trial court's judgment purporting to incorporate a partial agreement of the parties is valid and binding. The judgment is due to be reversed because it does not properly document and incorporate the agreement of the parties. Further, the April 8, 2009, divorce judgment cannot stand for another reason. The majority of the mother's arguments are based on her assertion that the trial court erred in failing to receive evidence on a number of issues upon which the parties apparently failed to reach an agreement. In her postjudgment motion, the mother indicated that the parties had reached no agreement with regard to a number of issues resolved in the April 8, 2009, divorce judgment, including issues of child support, child-support arrearages, and property division. The mother contends that the record contains no evidence supporting the trial court's resolution of those issues in its April 8, 2009, judgment. In response, the father concedes that the trial court "did not base the entire final [judgment] on the partial agreement of the parties," but he contends that the determination of the remaining issues was within the trial court's discretion. The determination of the issues in dispute between the parties would have been within the trial court's discretion if it had received any evidence on those issues. See Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App. 1998) (The issue of child support is within the trial court's discretion when the court bases its judgment on ore tenus evidence.); Brown v. Brown, 719 So.2d 228, 231-32 (Ala.Civ.App.1998) (An award of retroactive child support is within the trial court's discretion.); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993) (The issues of alimony and property division are within the trial court's discretion when the court receives ore tenus evidence.); Kovakas v. Kovakas, 12 So.3d 693, 700 (Ala.Civ.App. 2008) (A property division and alimony award must be equitable under the particular facts of the case.); and Mann v. Mann, 725 So.2d 989, 992 (Ala.Civ.App. 1998) (An award of visitation is within the discretion of the trial court and must be decided on the specific facts of each case.). In this case, however, the trial court received no evidence on the issues in dispute. The mother has challenged portions of the April 8, 2009, judgment pertaining to child support, property division, and alimony. With regard to child support, the record contains a letter setting forth the father's semi-monthly income; the certification of the record on appeal indicates that that letter was not submitted into evidence. The record also contains a child-support calculation apparently performed by a mediator recommending a child-support award; that recommendation was not adopted by the trial court in reaching its child-support award. The record contains none of the child-support forms required by Rule 32(E), Ala. R. Jud. Admin., and the trial court's judgment does not incorporate a child-support form setting forth the manner in which the trial court reached its child-support determination. "[T]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered...." Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App. 1999). The determination whether an award of retroactive child support is appropriate is dependent on the specific facts of the case. Brown v. Brown, 719 So.2d at *350 231-32. Similarly, the unique facts and circumstances of each action determine issues of property division, alimony, and visitation. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993). In this case, however, no evidence regarding the facts and circumstances of this action were presented to or considered by the trial court. Thus, the trial court had no evidence upon which to exercise its discretion in reaching a judgment. The trial court erred in failing to conduct an ore tenus hearing. We reverse the judgment and remand the case for the trial court to conduct an evidentiary hearing on any issues upon which the parties have failed to reach a settlement agreement and to properly incorporate any settlement into its judgment. See Contractor Success Group, Inc. v. Service Thrust Org., Inc., supra; and Proffitt v. Cochran, supra. REVERSED AND REMANDED. PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur. NOTES [1] The record on appeal contains no order pertaining to pendente lite custody of the children. [2] The record contains no explanation for the delay in entering the divorce judgment. [3] In its postjudgment order, the trial court also denied the mother's request for an award of an arrearage of pendente lite child support. [4] The State is not a party on appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2534889/	47 So.3d 925 (2010) Zachary SCHIFFMAN, and United States Medical Supply, Inc., a Florida Corporation, Appellants, v. Alan SCHIFFMAN, Appellee. No. 3D09-2326. District Court of Appeal of Florida, Third District. November 10, 2010. 926 Hyman Spector & Mars, Andrew R. Spector and Marc A. Rubin, Miami, for appellants. Alan Schiffman, in proper person. Before GERSTEN, WELLS, CORTIÑAS, JJ. WELLS, Judge. Zachary Schiffman and United States Medical Supply, Inc., the plaintiffs below, appeal from an order dismissing the instant action on the trial court's sua sponte determination that no justiciable issues existed and that the matter should be resolved in domestic violence court. Because, at a minimum, the underlying complaint alleges a cognizable claim for breach of contract, we reverse. Appellant Zachary Schiffman is the president and sole shareholder of co-appellant U.S. Medical Supply, Inc. Appellee Alan Schiffman is Zachary Schiffman's father. Prior to October 1999, Alan worked in some capacity with his son at U.S. Medical Supply. However, on October 27, 1999, after their relationship deteriorated, Zachary, U.S. Medical Supply and Alan entered into a written settlement agreement to resolve any and all claims that each might have against the other with respect to the company. In exchange for Alan's acknowledgement that he had no interest as shareholder or otherwise in U.S. Medical Supply and his release of any and all claims arising out of the parties' business relationship in U.S. Medical Supply, Zachary and U.S. Medical Supply agreed, among other things to: (1) pay Alan $250,000 within ten days of execution the general release; (2) make a 10% payment on a condominium unit and then assign all right, title and interest in that unit to Alan; (3) give Alan 20% of U.S. Medical Supply's net profits for a period of 5 years; (4) pay Alan $1500 per week as an independent contractor for a period of 5 years, with such compensation to be set off against the above referenced receipt of 20% of U.S. Medical Supply's net profits; and (5) pay Alan's automobile lease until it expired. Alan also agreed to stay off U.S. Medical Supply's premises; to refrain from threatening Zachary or U.S. Medical Supply employees; to refrain from contacting U.S. Medical Supply's employees and vendors; and to refrain from interfering with U.S. Medical Supply's operations. Pursuant to an addendum to the agreement, Alan agreed that if he violated any of these requirements: he would forfeit any remaining benefits due him under the agreement from the date of the offending conduct; he would be "responsible for all damages arising out of such conduct"; and he would pay Zachary $250,000 as liquidated damages. In the event of litigation, the parties agreed that their agreement was enforceable by injunction and that the prevailing party would be entitled to attorney's fees and costs. In May 2004, Zachary and U.S. Medical Supply brought suit against Alan, claiming that Alan had breached the parties' contract. The claims were based on allegations that, in the ninety days leading up to the filing of the complaint, Alan had made numerous telephone calls to Zachary, wherein he threatened to interfere with U.S. Medical Supply's business unless Zachary agreed to renegotiate the settlement agreement and pay Alan more money. That action ultimately was dismissed for lack of prosecution in December 2007. In February 2009, Zachary and U.S. Medical Supply filed the instant action claiming that Alan had again breached the parties' agreement. Specifically, the complaint alleged that, in the ten days leading up to the filing of the complaint, Alan had 927 made several harassing telephone calls to Zachary, accusing Zachary of "stealing `his' [Alan's] company" and threatening to interfere with the company's business unless he received additional sums. On February 24, 2009, the lower court entered an order temporarily enjoining Alan from contacting Zachary or U.S. Medical Supply. On March 17, 2009, after Alan allegedly assaulted and battered Zachary and U.S. Medical Supply's attorney, the lower court enjoined Alan from going to the attorney's offices. Two months later, during a hearing on a motion for injunctive relief filed by Alan, the court below, expressing frustration over the amount of time the court was spending dealing with the parties' conflicts, vacated the previously entered temporary injunctions and then sua sponte dismissed the entire action concluding that "this matter is an ongoing domestic violence matter that can and should be resolved in domestic violence court." In a subsequently entered order denying rehearing, the court below justified its dismissal on three grounds: first, that the underlying complaint failed to state a proper cause of action; second, that the settlement agreement at issue was never ratified nor adopted by a court; and third, that the 2004 dismissal for lack of prosecution barred consideration of the instant action under principles of res judicata. Because none of these reasons support dismissal, we reverse. First, this matter was properly before the general jurisdiction division of the circuit court because the complaint alleged all of the elements essential to a cause of action sounding in breach of contract. See Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000) ("The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages."). Second, the agreement at issue constitutes a valid, binding contract which need not be ratified nor adopted by a court to be enforced in court. Third, res judicata does not apply to the 2004 action which was dismissed for lack of prosecution. See Houswerth v. Neimiec, 603 So.2d 88, 89 (Fla. 5th DCA 1992) (finding that "a dismissal for lack of prosecution is not a ruling on the merits and therefore cannot be the basis of a subsequent res judicata argument").[1] Accordingly, we reverse the order of dismissal and remand with instructions to reinstate instant action and the preliminary injunctions against Alan Schiffman. NOTES [1] We also note that the conduct giving rise to the instant breach of contract claim is wholly separate and distinct from the conduct alleged as the basis for the 2004 action. See Inter-Active Servs., Inc. v. Heathrow Master Ass'n., 809 So.2d 900, 902 (Fla. 5th DCA 2002) (recognizing that res judicata does not apply unless the "facts and evidence necessary to maintain suit are the same in both actions").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2534875/	46 So. 3d 589 (2010) Jessie James ARMSTRONG, Appellant, v. STATE of Florida, Appellee. No. 1D08-6025. District Court of Appeal of Florida, First District. April 7, 2010. 591 Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee. HANKINSON, JAMES C., Associate Judge. This appeal concerns the denial of a motion to suppress all evidence obtained following the search and seizure of illegal drugs. Defendant argues the search and seizure was an intrusive government act which violated his Fourth Amendment rights. We disagree. Because the trial court's factual findings that the search was performed by an individual acting in a private capacity are supported by competent 592 substantial evidence, we find no Fourth Amendment violation and affirm the trial court's decision. FACTS Defendant Jessie James Armstrong was charged by information in two separate cases with possession of marijuana with intent to sell. The first case arose when the postal service mistakenly delivered a package containing marijuana to the residence of Joseph Armstrong, an agent with the F.B.I. A few days later a second, similar package was delivered to Agent Armstrong's address. He notified the sheriff's office and a search warrant was obtained for the second package. This package contained a bundle of marijuana similar to that found in the first package and resulted in the second case. Prior to the trial in either case, defendant moved to dismiss all statements and evidence stemming from Armstrong's seizure of the original package. Defendant claimed Armstrong had opened the package in his official capacity as an agent of the state, thereby violating the Fourth Amendment protection against unreasonable search and seizure. Defendant argued that all evidence flowing from the search of the original package including the discovery of marijuana in the second package was suppressible as fruit of the poisonous tree. A suppression hearing was held during which Agent Armstrong testified: He received a package addressed to "J. Armstrong." The address listed on the package was similar to his personal address; the house number differed by only three digits and the street number by only one digit. Since he was unsure if the package was intended for him, he went to the address listed on the package, but no one was there. He returned home and opened the outer package, exposing a square bundle covered in plastic wrap and newspaper. Agent Armstrong worked on the "Joint Terrorism Task Force." Due to the nature of his work, Armstrong had some concerns that the package might contain a bomb or Anthrax. Because it was the holiday season, he also thought that the package might be a gift to him. In the course of his other duties, Agent Armstrong carried the package to work the following day. On the way, he wrote down the license numbers of the vehicles at the listed address. At work, he ran the package through an x-ray machine, which detected no metal objects. Agent Armstrong mentioned the package to Sheriff's Deputy Joseph Brannaman, with whom he worked on the task force. Brannaman suggested he should "open it up and see what it is, what's the big deal[?]" Agent Armstrong decided to open the package. Since Brannaman had a pen knife, he allowed Brannaman to cut through the plastic wrap and newspaper, at which time the officers detected the smell of marijuana. Agent Armstrong then ran a check on the tag numbers and turned the marijuana over to the authorities. Given this testimony, the trial court found Agent Armstrong was acting in his capacity as a private citizen, not a government agent, when he opened the package. The trial court emphasized that at the time Armstrong opened the package, he was its actual recipient and feared he might be the victim of a crime. The trial court found any interaction between Armstrong and 593 other law enforcement officers was in his private capacity as a concerned citizen, not in his official capacity as an F.B.I. agent. Since it found there was no government action, the trial court concluded there was no Fourth Amendment violation and denied the motion to suppress, which it found dispositive as to both cases. On appeal, defendant raises two arguments. First, he claims Agent Armstrong was acting in his capacity as a government agent at the time he searched the package misdelivered to his address. Since the search was not justified under any of the exceptions to the warrant requirement, defendant concludes it violated his Fourth Amendment rights. Second, defendant claims that even if Armstrong's actions could be construed as those of a private citizen, the search became a government action due to the active participation of Deputy Brannaman. For the reasons that follow, we find neither argument persuasive. ANALYSIS Review of a motion to suppress presents a mixed question of law and fact. See State v. Leonard, 764 So. 2d 663, 664 (Fla. 1st DCA 2000). We must examine the trial court's factual findings to ensure they are supported by competent substantial evidence and examine its application of the law to the facts de novo. See Williams v. State, 721 So. 2d 1192, 1193 (Fla. 1st DCA 1998); Phuagnong v. State, 714 So. 2d 527, 529 (Fla. 1st DCA 1998). Here, since neither party disputes the facts essential to the case, we need only review the trial court's application of the law to the facts. See State v. Furr, 723 So. 2d 842, 844 (Fla. 1st DCA 1998). In particular, we must determine whether the search and seizure of the marijuana in the original package was accomplished by a government or a private actor. The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution guarantee the right to be free from "unreasonable searches and seizures." The opinions of the United States Supreme Court must be followed on all search and seizure issues, regardless of whether the claim of an illegal search is based on the Florida or United States Constitution. See Green v. State, 824 So. 2d 311, 313 (Fla. 1st DCA 2002). For evidence to be excluded pursuant to the Fourth Amendment, the moving party must demonstrate the government has infringed upon his reasonable expectation of privacy.[1]See State v. Butler, 1 So. 3d 242, 246-47 (Fla. 1st DCA 2008). Importantly, the protection against unreasonable searches and seizures applies only to cases involving governmental action; it does not apply when the search or seizure was conducted by a private individual. See Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (stating the Fourth Amendment can be invoked only when a person can claim that a "legitimate expectation of privacy [] has been invaded by government action"); Pomerantz v. State, 372 So. 2d 104, 108 (Fla. 3d DCA 1979) (stating neither the state nor federal constitution "affords any protection against purely private searches and seizures no matter how unreasonable"). The party objecting to the search or seizure has the burden to establish government 594 involvement by a preponderance of the evidence. See Treadway v. State, 534 So. 2d 825, 827 (Fla. 4th DCA 1988). Here, defendant argues Armstrong was acting in his capacity as an F.B.I. agent at the time of the search and seizure. Neither party has cited the Court to any binding precedent in the State of Florida that directly controls the issue presented. One court has used a two-pronged analysis in deciding whether an off-duty law enforcement officer is acting in his official capacity or as a private citizen. See U.S. v. Couch, 378 F. Supp. 2d 50, 55 (N.D.N.Y.2005). The court in Couch set out its analysis: First, we must examine the capacity in which the off-duty police officer was functioning when the officer initially confronted the situation and second, we must examine the manner in which he or she conducted himself or herself from that point forward. 378 F.Supp.2d at 55, quoting State v. Andrews, 33 Conn.App. 590, 637 A.2d 787, 790-91 (1994) (emphasis added).[2] We find this to be a logical method of analyzing the issue presented. The first prong of the analysis is self-explanatory. When considering the second prong of the analysis (i.e. the manner in which the off-duty officer conducted himself), a court must determine whether the off-duty officer's actions fell "outside [the] sphere of legitimate private action." Commonwealth v. Leone, 386 Mass. 329, 435 N.E.2d 1036, 1041 (1982). Crucial to this consideration is the purpose behind the off-duty officer's decision to conduct the search. If the search is motivated by a legitimate private purpose, it retains its private character; if it is motivated solely by a governmental purpose, it becomes state action. Id. (finding that when an off-duty police officer's "conduct is justified by his legitimate private duties [as a security guard], it should not be treated as lawless, or `unreasonable,' search and seizure"). For example, in State v. Walker, 236 Neb. 155, 459 N.W.2d 527, 532-33 (1990), an off-duty police officer was found to have conducted a private search when, functioning in his capacity as a landlord, he entered a tenant's house. The court stated that although the officer apparently "was aware of suspected drug activity at the house," his actions were consistent with his stated purpose of entering the house solely to discuss tenancy issues. Id. at 533. Likewise, in State v. Cole, 315 Wis. 2d 75, 762 N.W.2d 711, 716-17 (2008), a letter from a defendant instructing family members to prevent a witness from testifying at trial was misaddressed and delivered to the home of a sheriff's officer. Believing the letter was intended for her, the officer opened and read it. Id. at 716. Upon 595 realizing that the letter was not intended for her, she returned to work, entered the defendant's name into a database, and discovered he had a court date scheduled. Id. The officer then contacted the district attorney prosecuting the case and gave that attorney the letter. Id. The court found the opening of the letter and all subsequent actions to be private activity, emphasizing the purpose behind the officer's actions: [t]he activity she was engaged in when she opened [defendant's] letter opening mail that had been delivered to her home was that of a private citizen. Even given our assumption that she saw the front of the envelope before she opened it and so knew it was not intended for her, she did not know [the sender or listed recipient] or have reason to suspect that she might discover criminal activity by opening the letter. Id. at 717. From the foregoing, it may be inferred that so long as there is a reasonable private purpose for the search conducted by the off-duty officer, the search will not violate the Fourth Amendment. Consequently, to show that Armstrong was acting in his capacity as a F.B.I. agent when searching the original package, defendant had to establish by a preponderance of the evidence that either: (1) Armstrong was acting in his official capacity when he received the package; or (2) Armstrong's actions after receiving the package demonstrated a solely official purpose. Defendant has failed to show that Armstrong's search was a governmental act. Initially, it is undisputed that Armstrong was acting in his private capacity when he received the package. It was delivered by the postal service to his home. Indeed, defendant even admits that had Armstrong opened the package upon first receiving it, without taking further action, any search would have been private in character. Defendant claims Armstrong's actions in writing down tag numbers and x-raying the package are usually performed by law enforcement officers conducting an investigation. While this may be true, defendant overlooks the dual private purpose for Armstrong's actions, namely to ensure his safety in the event that the package contained a bomb or Anthrax. Agent Armstrong testified that upon opening the exterior of the package, he became concerned it might contain a dangerous substance, a concern only heightened due to the fact that, as an F.B.I. agent, he was a likely target for threats. Accordingly, he wrote down the tag numbers of the vehicles in front of the listed address and took the package to the nearest F.B.I. office, where it was scanned and opened in the presence of a law enforcement officer. Given the circumstances, and considering Armstrong's occupation, such conduct was not surprising or extraordinary. Any reasonable individual would have likely acted in the same manner if placed in the same circumstances. Because the actions taken by Agent Armstrong after receiving the package had a legitimate private purpose, we conclude Armstrong's involvement in the search was in his private capacity. Defendant also argues various actions taken by Agent Armstrong after the marijuana was discovered.[3] However, these actions are 596 irrelevant as to whether Armstrong was acting as a law enforcement officer at the time the package was opened. Consequently, Armstrong's actions did not infringe on defendant's Fourth Amendment rights. Defendant also claims the motion to suppress should have been granted because Deputy Brannaman's participation made the search governmental in nature. Defendant emphasizes that Brannaman actively participated in the search by using his knife to open the inner wrappings of the package. Initially, we find that this argument was not raised in the proceedings below, and therefore is not preserved for our review. See § 924.051(3), Fla. Stat. (2008); Morrison v. State, 818 So. 2d 432, 446 (Fla.2002) (finding that because a defendant "did not argue the point he now raises below [in support of his motion to suppress], he is foreclosed from raising that argument" on appeal). Turning to the merits, "[a] search by a private person becomes a government search if the government `coerces, dominates, or directs the actions of a private person' conducting the search." U.S. v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000), quoting Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir.1989). In other words, the private search becomes a governmental act if, due to government participation, the private actor becomes an instrumentality or agent of the state. The test for determining whether a private actor has become a state agent is two-fold: (1) whether the government was aware of and/or acquiesced in the search; and (2) whether the individual's purpose in conducting the search was solely to assist the police. See Butler, 1 So. 3d at 246; Treadway, 534 So.2d at 827. Importantly, when a dual purpose for the search exists such that the private actor is also pursuing his own ends, the search generally retains its private character. See Glasser v. State, 737 So. 2d 597, 598-99 (Fla. 4th DCA 1999). Here, as previously discussed, Agent Armstrong stated his decision to involve the authorities was to ensure it was safe to open the package. This was a legitimate private purpose separate and apart from any benefit to the government. Therefore, it cannot be said that Armstrong's interaction with Brannaman at the time the package was open meant he was operating as an agent or instrumentality of the state. Moreover, Brannaman's involvement in the search was minimal. Armstrong testified he mentioned the package to Brannaman, who stated "open it up and see what it is, what's the big deal[?]" Armstrong also testified that when he decided to open the internal contents of the package, he allowed Brannaman to cut through the plastic and newspaper simply because Brannaman was carrying a pen knife. It cannot be inferred from this testimony that Brannaman coerced Armstrong into opening the inner package; Armstrong's testimony indicates he alone made this decision. It seems Brannaman became involved simply because he was the closest individual with a pen knife. Cases involving similar circumstances clarify that such minimal involvement by a law enforcement officer does not transform a private search into a governmental action, particularly when there is a private purpose for the search. See U.S. v. Leffall, 82 F.3d 343, 349 (10th Cir.1996) (finding that having a police officer serve 597 as a witness did not affect the private nature of a search, as there was a legitimate private purpose for the search and the officer did nothing to encourage it); U.S. v. Gomez, 614 F.2d 643, 644-45 (9th Cir.1979) (finding a police officer's "slight participation" in a baggage search did not affect its private character, despite the fact that the officer "tapped or kicked" the lock of the bag to release it after an airline employee had difficulty opening it). Accordingly, we do not find that Brannaman's participation here changed the private nature of the search. CONCLUSION In conclusion, we find that there is competent substantial evidence upon which the trial court could have found that the defense failed to prove that Agent Armstrong was acting in his law enforcement capacity when he opened the original package. Therefore, the search fell outside the parameters of the Fourth Amendment and defendant's motion to suppress was properly denied. For the foregoing reasons, the trial court's order is AFFIRMED. HAWKES, C.J., concurs; BENTON, J., dissents with opinion. BENTON, J., dissenting. The only real issue at the suppression hearing was whether, as the defense contended, the initial search was state (governmental) action. The prosecution maintained that the initial search the law enforcement officers conducted should be deemed to have been "effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980) (Blackmun, J., dissenting)). The prosecution did not, however, make any argument that probable cause supported, or that exigent circumstances justified, the warrantless search of a parcel that had been placed in the mail addressed to the defendant.[4] Nor would the evidence adduced at the suppression hearing have supported a finding of probable cause for the initial search or of exigent circumstances making a warrantless search lawful. As the majority opinion acknowledges and as then Judge Pariente explained so felicitously, it is clear that the Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution recognize as reasonable the expectation of privacy in mailed packages: Florida's constitutional right to be free from unreasonable searches and seizures, article I, section 12 of the Florida Constitution, requires us to interpret this right in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. FLA. CONST. art. 598 I, § 12. The Fourth Amendment, in protecting persons from unreasonable government intrusions into their legitimate expectations of privacy, extends to the contents of personal packages. See United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 2644, 77 L. Ed. 2d 110, 120-21 (1983); Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980); United States v. Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970); Ex parte Jackson, 96 U.S. 727, 6 U.S. 727, 24 L. Ed. 877 (1877). In Ex parte Jackson, the Court established that sealed packages in the mail cannot be opened without a warrant: Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. ... 96 U.S. at 733. A law enforcement officer's authority to possess a package is distinct from his authority to examine its contents. See Place; Walter; Van Leeuwen. In Place, the Supreme Court reiterated this distinction stating: Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. 462 U.S. at 701, 103 S. Ct. at 2641. A person's Federal Express package is entitled to no less protection than letters and packages sent through the United States Postal Service. Accordingly, in each of the reported cases addressing the issue of the propriety of the search of a lawfully seized Federal Express package based on a dog's alert to the package, the law enforcement officer involved obtained a search warrant before searching the contents of the package. See, e.g., U.S. v. Smith, 34 F.3d 514 (7th Cir.1994); U.S. v. West, 25 F.3d 1052 (6th Cir.1994); U.S. v. Moore, 22 F.3d 241 (10th Cir.1994), cert. denied, [513] U.S. [891], 115 S. Ct. 238, 130 L. Ed. 2d 161 (1994); U.S. v. Hall, 20 F.3d 1084 (10th Cir.1994). Daniels v. Cochran, 654 So. 2d 609, 612 (Fla. 4th DCA 1995). We are therefore under a constitutional duty to review the trial court's conclusion that the initial search was not governmental action. See Green v. State, 824 So. 2d 311, 314 (Fla. 1st DCA 2002). "`In reviewing search and seizure decisions, Florida courts and federal courts alike must apply different standards of review, depending on the nature of the questions presented. Aspects or components of the trial court's decision resolving legal questions are subject to de novo review, while factual decisions by the trial court are entitled to deference commensurate with the trial judge's superior vantage point for resolving factual disputes.' State *599 v. Setzler, 667 So. 2d 343, 344-45 (Fla. 1st DCA 1995). See Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Connor v. State, 803 So. 2d 598, 605 (Fla.2001); State v. Eldridge, 814 So. 2d 1138, 1140 (Fla. 1st DCA 2002). ..." Id. Reviewing the findings and conclusions in the present case persuades me that the search (although not the seizure) amounted to governmental, and not merely to private, action. After all, the "plain smell" and search revealing that the first misdelivered parcel contained marijuana took place in an FBI office after the parcel had been examined with the help of an FBI x-ray machine, employed to ascertain whether law enforcement personnel could safely search the parcel.[5] Probable cause for the concededly governmental (and, indeed, warranted) search of the second parcel depended on the results of the search of the first misdelivered package and so was "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The taint of the initial illegality had not dissipated, and nobody argues that it had. On FBI premises, at the direction or at least with the cooperation of an on-duty FBI officer, an on-duty Florida deputy sheriff used a pocket knife to cut awayor throughenough packaging to reveal the first parcel's contents. In my view, this collaboration between state and federal law enforcement officers cannot fairly be described as a "purely private search[]." Pomerantz v. State, 372 So. 2d 104, 108 (Fla. 3d DCA 1979). I respectfully dissent. NOTES [1] There is no dispute that defendant had a reasonable expectation of privacy in the original package, which listed his last name and address. See Daniels v. Cochran, 654 So. 2d 609, 612 (Fla. 4th DCA 1995) (finding sealed packages in the mail cannot be opened without a warrant). The sole question on appeal is whether this privacy interest was invaded by a government actor. [2] This test is similar to, yet distinguishable from, the test used to ascertain whether private actors are conducting the search as instrumentalities or agents of the state. Such situations arise when the government participates and/or encourages a search conducted by a private actor. See Treadway, 534 So.2d at 827. To determine whether the private individual is acting as an agent of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual's purpose in conducting the search was solely to assist the police. Id.; see also State v. Moninger, 957 So. 2d 2, 4-5 (Fla. 2d DCA 2007). Here, defendant's argument is not that the state prompted or encouraged Armstrong into searching the package, but that Armstrong acting in his official capacity as an F.B.I. agent searched the package of his own accord. Consequently, the test to determine whether an off-duty law enforcement officer acted in his/her official capacity seems more applicable than the test to determine whether a private individual was conscripted into serving as an instrumentality or agent of the state. Cf. State v. Iaccarino, 767 So. 2d 470, 475 (Fla. 2d DCA 2000). [3] We need not address whether Armstrong's actions in running the tag numbers transformed the character of the search. The trial court clearly found that Armstrong did not run the tag numbers until after the package had been opened and the marijuana had been found. Even if Armstrong had investigated the tag numbers prior to discovering the marijuana, the search may have still retained its private character. See Cole, 762 N.W.2d at 716-17 (finding solely private action when a letter regarding witness tampering was misdelivered to an off-duty officer, despite the fact that she ran a background check on the sender before releasing it to the authorities). [4] It is a violation of federal law to open a package placed in the mail "before it has been delivered to the person to whom it was directed." 18 U.S.C. § 1702 (2007). The federal statute provides: Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. Id. (Emphasis supplied.) [5] According to the majority opinion, the "trial court emphasized that at the time Armstrong opened the package, he ... feared he might be the victim of a crime." Ante p. 592. An apparent purpose of x-raying the parcel was to determine whether it contained a bomb. Anthrax was also mentioned. Since sending a bomb or anthrax spores through the mail is illegal, these law enforcement officers had begun investigating possible criminal activity even before the incision and search that uncovered the evidence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2534880/	41 So.3d 290 (2010) Lorenzo B. WRIGHT, Appellant, v. Leitha C. EMORY and Larry J. Robinson, Appellees. No. 4D09-653. District Court of Appeal of Florida, Fourth District. June 23, 2010. 291 Michael D. Brown and Valencia Y. Stubbs of Brown & Associates, P.A., Riviera Beach, for appellant. Doak S. Campbell III, Delray Beach, for appellees. LEVINE, J. The issue presented is whether the trial court erred by involuntarily dismissing appellant's claims for conversion, breach of the lease, and violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), sections 501.201-.213, Florida Statutes (2008), against appellee Emory[1] with prejudice. We find the trial court erred, and we reverse. In 2007, appellant executed a residential lease for a home for a six-month (later extended to eight months) lease term. Appellant's mother approached Emory, who worked in real estate, about her son purchasing or renting a home. Appellant was to pay $1,300 a month, and he would have an option to purchase the home at a future date. The lease executed was between appellant, as lessee, and Emory and Robinson, as lessors. As part of the payment, appellant tendered $20,000. Appellant believed the $20,000 was both a security deposit for the home as well as a down payment on a possible option to buy the home at the end of the lease period. Emory believed it was a nonrefundable deposit. As proof, she pointed out the fact that the section on refundable deposits was struck through on the preprinted lease utilized. Despite the striking through of the section on refundable deposits, appellant still felt they had a "verbal agreement that the money was to be returned." The case proceeded to a non-jury trial. Appellant testified that, at some point during the lease period, he asked for the return of the $20,000. Emory and Robinson both told him he "shouldn't worry about" the money because they planned to return it to him. Subsequently, after the expiration of the lease, and after appellant sent several letters requesting return of the $20,000, Emory told him she would not return the money since "her children had to eat too." Emory testified that she worked for Robinson, and any funds she received from 292 appellant she tendered to Robinson. Robinson also testified that Emory worked for him, and any monies she received she would give to Robinson to invest in other properties. At the close of appellant's case, Emory moved for an involuntary dismissal of all claims against her pursuant to Rule 1.420(b). The trial court dismissed the claims, finding that appellant's evidence did not support a prima facie case against Emory. We review de novo the trial court's order on a motion to dismiss. Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008). In a non-jury trial, any party may move for dismissal after the plaintiff has finished presenting his evidence. Fla. R. Civ. P. 1.420(b). "An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case." Perez v. Perez, 973 So.2d 1227, 1231 (Fla. 4th DCA 2008); see also Lake Charleston Maintenance Ass'n. v. Farrell, 16 So.3d 182, 184-85 (Fla. 4th DCA 2009) ("But where the plaintiff `presented a prima facie case based on unimpeached evidence . . . the trial judge should not grant the motion even though he is the trier of the facts. . . .'") (quoting Tillman v. Baskin, 260 So.2d 509, 511 (Fla.1972)); Brundage, 996 So.2d at 881. The trial court dismissed the claim alleging the unlawful conversion of appellant's $20,000. "Conversion is defined as `an act of dominion wrongfully asserted over, and inconsistent with, another's possessory rights in personal property.'" Joseph v. Chanin, 940 So.2d 483, 486 (Fla. 4th DCA 2006) (quoting Goodwin v. Alexatos, 584 So.2d 1007, 1011 (Fla. 5th DCA 1991)). Appellant claims that Emory still exercised dominion over the $20,000 that he tendered to her because Emory refused to return it on the ground that "her children had to eat too," rather than that she did not possess the money. Emory, as an employee of Robinson, claims that the funds were retained by Robinson. Whether Emory gave all the money to Robinson or retained some of it is an issue of fact precluding involuntary dismissal of this claim. Thus, the dismissal by the trial court was in error. As to the claim of breach of lease, the trial court held that Emory was not a party to the lease, but rather "acted as agent" for Robinson. Therefore, Emory could not breach a lease to which she was not a party. The trial court's finding is not supported by the record, since the copy of the lease agreement admitted into evidence at trial listed Emory as a lessor of the property and, further, Emory stipulated to being a party to the lease. The trial court based its contrary finding on a determination that Emory was not an owner of the property. There is no evidence in the record regarding the ownership of the property; there is only the argument of Emory's counsel. Emory's attorney's unsworn, unverified statements do not establish competent evidence. Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982). Accordingly, the order dismissing the breach of contract claim against Emory must be reversed. Finally, as to the FDUTPA claim, appellant established a prima facie claim that should be allowed to proceed. A claim for damages under section 501.204(1) has three elements: "(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages." Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). Appellant argues that the "deceptive" or "unfair" act is Emory's alleged promise to refund the $20,000 at the end of the lease period if appellant did not purchase the property. At trial, appellant offered evidence of a financial loss caused by this "deceptive" statement. Whether *293 Emory's representations constitute "deceptive and unfair" conduct is an issue of fact to be resolved by the judge at the conclusion of the trial. See Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So.2d 274 (Fla. 4th DCA 2004). The trial court appears to have dismissed this claim upon the erroneous belief that Emory acted as Robinson's agent, not as a principal. Again, the evidence presented at trial does not support this conclusion, and the order dismissing the FDUTPA claim must be reversed. Based on the foregoing reasons, we reverse and remand for proceedings in accord with this opinion.[2] Reversed and remanded for further proceedings. WARNER and DAMOORGIAN, JJ., concur. NOTES [1] Robinson filed a suggestion of bankruptcy just prior to trial, and the proceedings were stayed as to Robinson. Robinson is not a party to this appeal. [2] Because this case was tried without a jury, we suggest that the trial court, in its discretion, may recommence proceedings from the point at which the motion for involuntary dismissal was granted, provided that the same trial judge is available to hear the case on remand. See Lake Charleston, 16 So.3d at 185-86.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2534884/	40 So.3d 1242 (2010) Evelyn C. JACKSON v. Florene A. BRUMFIELD and The Hartford. No. 2009 CA 2142. Court of Appeal of Louisiana, First Circuit. June 11, 2010. Anthony T. Marshall, Gonzales, Louisiana, for Plaintiff/Appellant, Evelyn C. Jackson. 1243 Michael L. Stewart, Maria B. De Gracia, Metairie, Louisiana, for Defendants/Appellees, Florene Brumfield and The Hartford. Before DOWNING, GAIDRY, and McCLENDON, JJ. GAIDRY, J. The plaintiff, Evelyn C. Jackson, sued the defendants, Florene A. Brumfield and her homeowner's liability insurer, The Hartford, claiming that she was injured at a garage sale held at Mrs. Brumfield's home when an exercise machine collapsed as she was testing it. The defendants moved for summary judgment, filing affidavits executed by Mrs. Brumfield and her daughter, Jan Johnson, attesting to the facts that the garage sale was held by Ms. Johnson at Mrs. Brumfield's home, that Ms. Johnson owned the exercise machine for sale, and that Mrs. Brumfield was not involved in and did not participate in the garage sale in any capacity. In opposition, plaintiff filed an affidavit in which she alleged that Mrs. Brumfield "was aware that a garage sale was being held at [her] home or should have been aware that a garage sale was being held at her home." The 19th Judicial District Court granted the motion and dismissed plaintiffs suit with prejudice. Plaintiff appeals. We affirm. The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). Plaintiff contends that a genuine issue of material fact exists as to Mrs. Brumfield's liability under the theory of strict liability of La. C.C. arts. 2317 and 2317.1 as the owner of property having an unreasonably dangerous condition or defect. Plaintiff is in error regarding that legal theory of recovery. The 1996 amendment enacting La. C.C. art. 2317.1, effective April 16, 1996, abolished the concept of strict liability governed by prior interpretation of La. C.C. art. 2317. A more appropriate term now for liability under La. C.C. arts. 2317 and 2317.1 might be "custodial liability," but such liability is nevertheless predicated upon a finding of negligence. Rogers v. City of Baton Rouge, 04-1001, pp. 4-5 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1102, writ denied, 05-2022 (La.2/3/06), 922 So.2d 1187. Plaintiff thus bore the burden of proof of Mrs. Brumfield's negligence. Two essential elements of such proof, under the duty-risk analysis of delictual liability, are the existence of a legal duty of the alleged tortfeasor toward the injured person and the breach of such duty by the alleged tortfeasor. There was no factual showing or suggestion that Mrs. Brumfield participated in, supervised, monitored, assisted, or benefitted from the garage sale, or that she was even present during the time plaintiff was there. There was likewise no factual basis shown for any conclusion that Mrs. Brumfield knew or should have known of any alleged defective condition of the exercise machine. Mrs. Brumfield's 1244 mere status as owner of the immovable property upon which the garage sale was conducted, without more, is insufficient to impose a duty upon her toward plaintiff regarding the exercise machine owned by her daughter. And such status, without more, is too tenuous a basis for imposition of liability relating to the condition of a movable that she did not own or otherwise exercise any control over. The trial court was correct in concluding that there was no genuine issue of material fact presented regarding Mrs. Brumfield's alleged liability, and that she could not be found liable as a matter of law under the undisputed facts presented. Accordingly, we affirm the judgment. All costs of this appeal are assessed to the plaintiff, Evelyn C. Jackson. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2535267/	49 So.3d 1190 (2010) Deborah Ann Stevens BOUDREAUX et al. v. Mendal KEMP and Thomasine Kemp Edwards. 1080309. Supreme Court of Alabama. April 16, 2010. 1191 Matthew G. Weathers and Juliet V. Crawford of Crawford & Weathers, LLC, Birmingham, for appellants. Jack Floyd, Gadsden, for appellees. SHAW, Justice. Deborah Ann Stevens Boudreaux, Shelia Joy Stevens, Janie Dena Harper Stallings, Melinda Luanne Merritt Nix, Michael John Stevens, Craig Allen Stevens, Charles Edmond Harper, James Richard Harper, Sherry Jean Harper Shows, Mariann Merritt Holder, Warren Thomas Stevens, Rachel Jonnette Stevens Thrasher, and Paula L. Tidwell, the purported heirs of Frank E. Stevens (hereinafter collectively referred to as "the appellants"), appeal from an order of the Cherokee Circuit Court denying their motion for relief from a default judgment in favor of Mendal Kemp and Thomasine Kemp Edwards, the plaintiffs below, in Kemp and Edwards's action seeking to enforce an alleged oral contract to devise. We reverse and remand. Facts and Procedural History Kemp and Edwards are the nephew and niece of Bernice Stevens and the nephew and niece by marriage of Bernice's husband, Frank E. Stevens. According to Kemp and Edwards, in or around 1995, Bernice and Frank, who were childless, orally agreed to devise their entire estate to Kemp and Edwards in exchange for the promise to care for Bernice and Frank until their respective deaths. Bernice died in June 1997. Kemp and Edwards allege that, immediately before her death, Bernice reminded them of their promise, and, following her death, Frank renewed the aforementioned oral agreement, again allegedly promising "that in consideration for [Kemp and Edwards's] looking after [Frank] during the remainder of his natural life, . . . [Frank] would transfer to [Kemp and Edwards] all the money and property he owned at the time of his death." According to Kemp and Edwards, at all times pertinent hereto, they acted in 1192 accordance with and fully performed the terms of the alleged oral agreement. Frank died in March 2007, leaving a will executed in 1973. Frank's will left nothing to Kemp and Edwards; instead, he bequeathed his entire estate to Bernice. Frank's will contained no provision for the disposal of his assets should Bernice precede him in death. In May 2007, Frank's will was submitted for probate to the Cherokee Probate Court; Tim Burgess was named personal representative of Frank's estate. A guardian ad litem for any potential heirs was appointed by the probate court. The guardian ad litem retained a genealogist to discover any potential heirs, and on July 9, 2007, the guardian ad litem filed a report in the probate court, identifying a total of 15 grandnieces and grandnephews of Frank. The report listed addresses for the 15 identified heirs, all of whom were not residents of Alabama, and specifically included the appellants. In September 2007, Kemp and Edwards filed a claim against Frank's estate in the probate court and also filed the underlying action in the Cherokee Circuit Court seeking a judgment declaring that under the alleged oral contract to devise, "the remaining money assets and property of the estate of Frank E. Stevens are the property of [Kemp and Edwards]." The complaint named as defendants Burgess, in his capacity as personal representative of Frank's estate, five alleged heirs by name,[1] and any remaining unknown heirs. It did not, however, reference or include the remaining heirs identified in the genealogy report filed in the proceeding in the probate court. Upon motion of Kemp and Edwards, filed on September 21, 2007, and accompanied by an affidavit attesting to their inability after "diligent inquiry" to determine the names and addresses of Frank's heirs, Kemp and Edwards were permitted by the trial court to serve the five named heirs and any remaining unknown heirs by publication.[2] Thereafter, beginning September 27, 2007, notice of the declaratory-judgment action was published in the Cherokee County Herald, a local newspaper, for four consecutive weeks. On October 8, 2007, Burgess filed an answer to Kemp and Edwards's complaint denying the existence of an oral contract to devise and averring that, if Kemp and Edwards's allegations were true, their claims would be barred by the Statute of Frauds.[3] Burgess's answer admitted that 1193 Frank was not survived by his parents or grandparents, by any siblings, or by any nieces and nephews; however, in that pleading, Burgess specifically stated that "affidavits of heirship of Frank E. Stevens have been filed in the Probate Court . . . which . . . set forth the names and addresses of the heirs at law of Frank E. Stevens." None of the appellants or the other heirs appeared or answered in response to Kemp and Edwards's service by publication, and, on February 5, 2008, Kemp and Edwards applied for the entry of default and a default judgment. On that same date, the circuit clerk executed an "entry of default" against the heirs of the estate both named and unnamed.[4] On February 20, 2008, the circuit court conducted a bench trial. No heirs appeared or moved to set aside the pretrial entry of default. However, as noted by Kemp and Edwards, the record does reflect that "several" of the appellants attended the trial. Except for the testimony of Melissa O'Neal Harper, the wife of James Richard Harper, Frank's grandnephew, which was presented by the personal representative, no heirs and none of the appellants actually participated or were heard by the circuit court during the bench trial. At the close of the evidence, the circuit court took the matter under submission. On July 8, 2008, the circuit court entered a judgment in favor of Kemp and Edwards, concluding that Kemp and Edwards had demonstrated by clear and convincing evidence that "the agreement alleged by [Kemp and Edwards] existed and that they [had] performed in accordance with the agreement." In its order, as requested in the trial brief filed by Kemp and Edwards, the circuit court further imposed a constructive trust in favor of Kemp and Edwards on the assets of Frank's estate, subject to payment of the debts of the estate, if any, and the expenses of administration of the estate. On August 7, 2008, Burgess filed a motion to vacate the judgment or, in the alternative, for a new trial. On that same date, the appellants also filed a postjudgment motion for a new trial and an accompanying motion seeking to stay the execution of the circuit court's judgment. In their motion, the appellants argued, among other things, that the default judgment was improper and that they were entitled to a new trial because, they said, service by publication was improper under the circumstances.[5] Kemp and Edwards moved to strike any pleadings filed by the appellants on grounds that the appellants were dispensable, unnecessary parties, that they lacked standing to pursue the requested relief because their interests were being represented by Burgess, as personal representative 1194 of Frank's estate, and that they had failed to move to intervene under Rule 24, Ala. R. Civ. P. Following a hearing, the circuit court struck the appellants' pleadings on grounds that they had failed to intervene, and because, it concluded, their interests were adequately represented by Burgess. The circuit court also denied Burgess's postjudgment motion. This appeal followed.[6] Discussion The appellants allege four separate grounds of error with regard to the circuit court's judgment in favor of Kemp and Edwards. Initially, we address their argument that service by publication was improper. Our resolution of this issue is determinative of the appeal. Although filed more than six months after the entry of default by the circuit clerk and styled as a motion for a new trial, we construe the appellants' August 7, 2008, postjudgment motion as a Rule 55(c), Ala. R. Civ. P., motion to set aside the default judgment because it was timely filed within 30 days after the default judgment became final. See Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala.1982) ("A judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants." (citation omitted)); Ford Motor Credit Co. v. Carmichael, 383 So.2d 539, 542 (Ala. 1980) ("[A] judgment by default, rendered in advance against one of several defendants, is interlocutory, until final disposition is made as to all the defendants."); McConico v. Correctional Med. Servs., Inc., 41 So.3d 8, 12 (Ala.Civ.App.2009) (" [B]ecause an entry of default is no more than an interlocutory order, it is not a final judgment, and relief from such an order is available under Rule 55(c)[, Ala. R. Civ. P.,] regardless of when the request is made."); and Lawler Mobile Homes, Inc. v. Ellison, 361 So.2d 1092, 1094 (Ala.Civ. App.1978) (noting both that "the default judgment . . . because of the operation of Rule 54(b), [Ala. R. Civ. P.,] was not a final judgment and did not become final and appealable until the entry of the judgment dismissing the remaining defendant . . . ." and that "defendant had thirty days thereafter to file a motion to set aside the default judgment"). In Cameron v. Tillis, 952 So.2d 352, 353 (Ala.2006), this Court set out the following standard of review applicable to an order refusing to set aside a default judgment: "`The standard of review in the case of an order setting aside, or refusing to set aside, a default judgment proceeds on the basis that the trial judge has great discretion, and his judgment will not be disturbed unless he has clearly [exceeded] such discretion.' Roberts v. Wettlin, 431 So.2d 524, 526 (Ala.1983). However, `[w]hen the grant or denial [of a request for relief from a judgment] turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand.' Smith v. Clark, 468 So.2d 138, 141 (Ala. 1985)." Applying the foregoing standard to the facts of the present case, we conclude that the default judgment entered against the heirs is void. "The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void. Cameron v. Tillis, 952 So.2d 352 (Ala.2006); Image Auto, Inc. v. Mike Kelley Enters., Inc., [823 So.2d 655, 657 (Ala.2001)]. In Bank of America 1195 [Corp. v. Edwards, 881 So.2d 403 (Ala.2003)], our supreme court also stated: "`"One of the requisites of personal jurisdiction over a defendant is `perfected service of process giving notice to the defendant of the suit being brought.' Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983). `When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.' Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989)."' "881 So.2d at 405, quoting Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993). See also Northbrook [Indem. Co. v. Westqate, Ltd.,] 769 So.2d [890] at 893 [(Ala.2000)]. "Rule 4.3(d), Ala. R. Civ. P., governs the procedure for service by publication and provides, in pertinent part, "`(1) Affidavit Necessary. Before service by publication can be made in an action where the identity or residence of a defendant is unknown . . . or where the defendant avoids service, an affidavit of a party or the party's counsel must be filed with the court averring that service of summons or other process cannot be made because either the residence is unknown to the affiant and cannot with reasonable diligence be ascertained, or, the identity of the defendant is unknown . . . or, the defendant avoids service, averring facts showing such avoidance. "`(2) How Published. Upon the filing of the affidavit the clerk shall direct that service of notice be made by publication in a newspaper of general circulation in the county in which the complaint is filed; and, when publication is authorized under subdivision 4.3(c), also in the county of the defendant's last known location or residence within the United States. If no newspaper of general circulation is published in the county, then publication shall be in a newspaper of general circulation published in an adjoining county.'" Nichols v. Pate, 992 So.2d 734, 736-37 (Ala.Civ.App.2008) (emphasis omitted).[7] In the present case, as noted above, Kemp and Edwards's affidavit, which was filed in support of their request to serve the heirs of Frank's estate by publication, stated that the names and addresses of Frank's heirs remained unknown "after diligent inquiry." In their brief to this Court, the appellants argue that Kemp and Edwards did not actually exercise reasonable diligence in attempting to ascertain the names and addresses of Frank's heirs. We agree. Although Kemp and Edwards's affidavit was sufficient to satisfy the technical requirements of Rule 4.3(d)(1), Ala. R. Civ. P., and the averments in that affidavit notwithstanding, we remain unpersuaded that diligent inquiry was, in fact, undertaken as required by Rule 4.3. Compare Shaddix v. Shaddix, 1196 603 So.2d 1096, 1097-98 (Ala.Civ.App. 1992) (finding that "it [did] not affirmatively appear from an examination of the record that a diligent effort to locate the [defendant] was made . . . or that such an effort would have proven futile"). Specifically, although we have previously held that "`[i]t is not reasonable or logical to require [service first by a method other than publication] where the defendant's residence is unknown,'" see Kilpatrick v. Kilpatrick, 628 So.2d 729, 731 (Ala.Civ. App.1993) (quoting Brooks v. Brooks, 494 So.2d 645, 647 (Ala.Civ.App.1986)), the record reflects that the appellants' addresses were not, in fact, unknown or, at least, would not have remained so upon the exercise of reasonable diligence by Kemp and Edwards. As set out above, the guardian ad litem's genealogy report in the proceeding in the probate court, which identified all of Frank's potential heirsincluding the appellantswas clearly filed before the plaintiffs' complaint and the accompanying motion to serve Frank's heirs by publication were filed. It is undisputed that Kemp and Edwards had appeared in that probate proceedingby filing a claim against Frank's estatebefore the declaratory-judgment action was filed in the circuit court. Further, as the appellants argued in their posttrial motion, Burgess's answer to Kemp and Edwards's complaint also pointed out that information regarding any heirs was readily available in the file in the probate court proceeding, which Kemp and Edwards's complaint indicated they had previously accessed in their search for information regarding Frank's heirs. Despite that disclosure, no actions were taken by Kemp and Edwards to provide notice to the heirs found by the guardian ad litem. In fact, Kemp and Edwards's affidavit did not identify any efforts, other than the purported review of the contents of the probate court file, that were made in an attempt to locate Frank's heirs before seeking to serve them by publication. As noted in March v. Stringer, 518 So.2d 65 (Ala.1987), with regard to the plaintiffs' failure to take even the minimal step of consulting telephone directories, "reasonable diligence would suggest that [such steps] be tried before service by publication be employed." 518 So.2d at 70. The record before us demonstrates that the names and addresses of the appellants could have been easily ascertained, enabling them to be served by a method other than publication. This Court has previously held that "`[f]ailure to exercise due diligence in perfecting personal service of process precludes notice by publication.'" Reid v. Tingle, 716 So.2d 1190, 1195 (Ala.Civ.App. 1997) (quoting Shaddix v. Shaddix, 603 So.2d at 1098, which cites in turn Sams v. Equitable Life Assurance Soc'y of the United States, 402 So.2d 999 (Ala.Civ.App. 1981)). In Sams, supra, the Court of Civil Appeals observed: "The evidence shows that appellant knew where Iris Holmes lived, knew her correct address at all times pertinent to this inquiry and, yet, made no effort to serve her with process after the initial effort failed because of an erroneous address. A plaintiff must exercise due diligence in perfecting personal service of process on a defendant and the failure to do so precludes notice by publication. Whitfield v. Sanders, Ala., 366 So.2d 258 (1979). The failure to properly notify a defendant of the action filed against him deprives the trial court of personal jurisdiction over the party and a default judgment rendered against said party would be void. Whitfield v. Sanders, supra. "The evidence shows that Tommie Sams was fully aware of Iris Holmes's address at all times in question. Under such circumstances notice by publication 1197 was insufficient to invest the trial court with jurisdiction and the default judgment rendered against her was void and properly set aside." 402 So.2d at 1001. Similarly, here, although Kemp and Edwards may not have been fully aware of the names and addresses of all Frank's heirs, including the appellants, it appears that that information was contained in the probate court proceedingsin which Kemp and Edwards were participatingbefore they filed their complaint in the circuit court. Thus, the record reflects that the names and addresses of the appellants were readily ascertainable with no additional investigative efforts required on Kemp and Edwards's part and that the appellants' names and addresses could have, with reasonable diligence, been ascertained in order that the appellants could have easily been served by certified mail. Under these circumstances, notice by publication was insufficient to obtain jurisdiction over the appellants, and the default judgment against them is void. In their brief to this Court, Kemp and Edwards argue that, even assuming that notice by publication was insufficient, the appellants waived any defects in service by attending the bench trial of this matter on February 20, 2008. As indicated above, the record does reflect that certain of, but not all, the appellants attended the trial, presumably because of the notice conveyed to them by Burgess in the case pending in the probate court. Further, it is true that this Court has previously acknowledged that a defendant may waive defects in service by voluntarily appearing in the proceedings. See, e.g., Cooper v. Watts, 280 Ala. 236, 239, 191 So.2d 519, 521 (1966) ("`It is elementary law that in order for a court to have jurisdiction of the person there must be service of process or voluntary appearance.'" (quoting Ex parte Gunter, 17 Ala.App. 313, 315, 86 So. 146, 147 (1919))). However, that principle has no application to the present casewhere the few appellants who did attend the trial did not actually "appear" as parties, were not represented by counsel, and did not participate in the proceeding in any meaningful way. See Ex parte Phillips, 900 So.2d 412, 415-16 (Ala.2004) ("`An appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court.'" (quoting Cockrell v. World's Finest Chocolate Co., 349 So.2d 1117, 1120 (Ala.1977))). Therefore, evidence of mere attendance at the trial by some of the appellants is not compelling. Moreover, despite Kemp and Edwards's arguments to the contrary, the appellants attending the trial could not have actually participated in the trial because of the previous entry of default against them by the clerk. See McGugin v. McGugin, 23 So.3d 682, 684 (Ala.Civ. App.2009) ("After an entry of default, the defaulting party `loses his standing in court, cannot appear in any way, cannot adduce any evidence and cannot be heard at the final hearing.'" (quoting Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 670 (Ala.1981)) (additional citations omitted)). Whether the heirs to Frank's estate were necessary and indispensable parties to this litigation, an issue we do not reach, we find that having named the heirs as defendants, Kemp and Edwards were required to properly serve them as provided for by Rule 4.3. Having failed to do so, the default judgment entered against the heirs was void, see Ex parte Wilson Lumber Co., 410 So.2d 407, 409 (Ala.1982) ("`To authorize a court to proceed, it must acquire jurisdiction over defendant in some mode authorized by law, by service or other means, and . . . a judgment rendered without acquiring such jurisdiction is a nullity.'"), and the circuit court erred in 1198 failing to grant the appellants relief from the judgment against them. Based on the foregoing, we reverse the circuit court's order striking the appellants' postjudgment motion, instruct the circuit court to vacate the default judgment, and remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED. COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur. NOTES [1] The complaint indicated that the named heirs had been discovered by means of an "Internet search" of possible heirs performed by the guardian ad litem appointed in the pending probate case. These five individuals were the first five heirs identified in the guardian ad litem's report and are five of the appellants. [2] As discussed in more detail below, Rule 4.3(d)(1), Ala. R. Civ. P., provides, in pertinent part, that "[b]efore service by publication can be made in an action where the identity or residence of a defendant is unknown. . . an affidavit of a party or the party's counsel must be filed with the court averring that service of summons or other process cannot be made because either the residence is unknown to the affiant and cannot with reasonable diligence be ascertained, or, the identity of the defendant is unknown. . . ." [3] On October 2, 2007, before filing his answer, Burgess had moved to dismiss Kemp and Edwards's complaint pursuant to § 43-2-131, Ala.Code 1975, on grounds that, at the time the declaratory-judgment action was initiated, the six-month claims period in the probate proceeding had not expired, nor had Burgess, as personal representative of Frank's estate, contested Kemp and Edwards's claim. Section 43-2-131 states that "[n]o civil action must be commenced against an executor or administrator, as such, until six months after the grant of letters testamentary or of administration, unless the executor or administrator has given notice of the disallowance of the claim." In his motion, Burgess further argued, among other things, that the complaint named improper party defendants. Although the circuit court denied the motion, it appears that the circuit court took no action until after January 11, 2008, when Burgess filed a notice in the circuit court indicating that Kemp and Edwards's claim against Frank's estate in the probate action had been "denied in whole." [4] The record before us does not contain a judgment by default. [5] They also argued that a new trial was necessary because, they said, the evidence presented by Kemp and Edwards was insufficient to sustain the circuit court's findings; because oral contracts to devise may not be established solely by testimonial evidence; and because of an alleged conflict of interest related to the fact that Burgess's counsel had previously represented Kemp in the proceeding in which Kemp was named conservator of Frank's estate. [6] Burgess, as personal representative of Frank's estate, does not appeal. [7] Before the most recent amendment to Rule 4.3, Ala. R. Civ. P., which was effective August 1, 2004, and which removed the word "resident" from the text of Rule 4.3(c), the courts of this state had consistently held, with a single noted exception, "that personal jurisdiction could not be obtained over a nonresident defendant through service by publication." Vogus v. Angry, 744 So.2d 934, 936 (Ala.Civ.App. 1999) (citing Shaddix v. Shaddix, 603 So.2d 1096, 1098 (Ala.Civ.App.1992)). See also Wise v. Siegel, 527 So.2d 1281, 1282 (Ala. 1988); Williams v. Williams, 910 So.2d 1284, 1287 n. 5 (Ala.Civ.App.2005).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2535517/	40 So.3d 1265 (2009) Arthur D. CARLISLE, Administrator of the Estate of Charles E. Allen, III, Deceased, Appellant, v. Janet Ellen Davis ALLEN, Appellee. No. 2007-CA-02047-COA. Court of Appeals of Mississippi. June 23, 2009. Rehearing Denied November 17, 2009. 1266 Michael J. Vallette, Ocean Springs, attorney for appellant. Joseph Edgar Fillingane, Carol Ann Estes Bustin, Hattiesburg, attorneys for appellee. Before MYERS, P.J., GRIFFIS and ISHEE, JJ. ISHEE, J., for the Court. ¶ 1. Approximately four years after divorcing, Charles E. Allen III and his ex-wife, Janet Ellen Davis Allen, filed a Joint Application to Revoke Judgment of Divorce. However, Charles died a month later, before any action could be taken on the application. The Chancery Court of Pearl River County conducted a hearing on the application and revoked the couple's divorce. Arthur D. Carlisle (Carlisle), the administrator of Charles's estate, timely appealed from that judgment, citing the following issues: I. Whether the chancellor erred in failing to dismiss the motion to reconsider as untimely. II. Whether the chancellor had jurisdiction to revoke the final judgment of divorce following Charles's death. III. Whether the joint application should have been dismissed because Janet failed to file a revivor after Charles's death. 1267 IV. Whether it was error to set aside the judgment quashing the joint application and to allow Janet to put on evidence of reconciliation. V. Whether it was error to allow Janet to put on proof of reconciliation after Charles's death. VI. Whether the evidence was sufficient to set aside the divorce of Charles and Janet. Finding that the chancery court should not have conducted a hearing on the matter of revoking the Allens' divorce following Charles's death, we reverse the judgment of the chancery court and render judgment reinstating the divorce decree. FACTS AND PROCEDURAL HISTORY ¶ 2. Charles and Janet married on November 24, 1996, in St. Tammany Parish, Louisiana. They lived together in Pearl River County, Mississippi until their divorce. They filed a joint petition for divorce, and after a trial, a final decree of divorce was entered on September 23, 2002, in the Chancery Court of Pearl River County. The couple had no children during their marriage. ¶ 3. Almost four years after their divorce, on May 17, 2006, Charles and Janet filed a Joint Application to Revoke Judgment of Divorce with the Chancery Clerk's Office of Pearl River County. The application was properly signed by both parties. However, prior to any action being taken concerning the joint application, Charles died in his home on June 16, 2006. ¶ 4. The attorneys for the parties filed their entries of appearance the following month, with Carlisle appearing as the administrator of Charles's estate. Thereafter, on June 5, 2007, the chancellor entered a judgment quashing the parties' application to set aside the divorce. The judgment allowed for reconsideration if Janet timely filed a request and showed sufficient facts of a satisfactory reconciliation. The judgment was filed on June 11, 2007, and Janet filed a motion for reconsideration eleven days later on June 22, 2007. Carlisle objected to the motion as being untimely filed. Nevertheless, the chancellor held a hearing on the matter on October 2, 2007. ¶ 5. Janet testified that Charles never wanted to get a divorce. The reason that Janet divorced Charles was that she had become sick, and her mother encouraged her to get a divorce. According to Janet, Charles did not even come into the courtroom on the day of their divorce. Following their divorce, they maintained their relationship. They continued talking and going out. Janet said that Charles had a private line put in at her house, so he could call her. They even spent weekends togetherevery weekend from the end of March 2006 until Charles's death in June 2006. ¶ 6. Janet shattered her hip and pelvis shortly after Hurricane Katrina, which required an extended stay in the hospital. She said that she did not get to see Charles during that time period because the roads were all blocked as a result of Hurricane Katrina. After she began her rehabilitation, she said that Charles would call her multiple times a day. When Janet moved back to her home, which happened to be former the marital home, her mother also came to stay with her because her mother's house had suffered damage during the storm. Janet said that it was hers and Charles's plan to sell his house and move into the former marital home together after her mother moved back into her own home. ¶ 7. Janet's momMary Davistestified that the coroner sent Charles's personal effects to her, seemingly because of 1268 her daughter's relationship with Charles. She said that Carlisle came to the house and took all of those items, including Charles's car. He told her that he was supposed to have them. ¶ 8. Beverly Slaydon cleaned Charles's house for him until he died. She said that she met Janet while she was working for Charles. Beverly saw Janet whenever Janet came to Charles's house. Beverly also talked to Janet on the phone, but Charles would not let her call Janet because he said Janet's phone number was only for him to know. Beverly said that Charles was on the phone with Janet constantly"probably the whole time [she] was there...." The only other woman she ever saw at Charles's house was Janet's personal-care provider. According to Beverly, Janet spent weekends at Charles's house on a regular basis. Beverly said that Charles and Janet would hold hands, talk, and laugh; she thought that they loved each other very much. ¶ 9. Patricia Beard was Janet's personal-care provider. She took care of Janet from November 2005 through May 2006 while Janet recovered from a shattered hip and pelvis. She saw Charles about three or four times a week when he would bring Janet lunch, flowers, or presents. Patricia thought that Charles and Janet had a very loving relationship and that they were very affectionate toward each other. She drove Charles and Janet to the courthouse in Poplarville, Mississippi so they could file the papers to revoke their divorce. Patricia said that she saw Charles sign the joint application and take it into the courthouse. She also said that she filed some papers for them. Patricia remembered the two of them spending hours on the phone with each other all the time. They would watch television together while they were on the phone. It was Patricia's understanding that Charles and Janet were going to revoke the divorce and that Charles was going to move back into the former marital home with Janet. Charles had Patricia find his wedding band, and she saw him wearing it. ¶ 10. Carlisle testified on behalf of the deceased. Carlisle said that he and Charles had known each other since 1969 and that they were close friends. Carlisle testified that he prepared the application to revoke the divorce. He said that he had previously prepared a number of them for Charles, but Charles had thrown them away. It was Carlisle's understanding that Charles never intended to actually revoke the divorce. He thought that Charles felt he had been cheated out of the marital home and that he had an ulterior motive to "recover what he thought was rightfully his." Carlisle said that he visited Charles at least once every two weeks during 2006, and he never noticed any sign of anyone staying with Charles. Upon learning about Charles's death, Carlisle visited Janet at her home, and he said that the first thing that Janet told him was that she was not paying for the funeral. As a result, he said that he took care of a number of the funeral arrangements. ¶ 11. Following the testimonies presented by both sides, the chancellor found that jurisdiction was proper and that the criteria required to revoke a divorce had been met. The chancellor found that the filing of the application by both parties initially evidenced their intent to revive their marriage. Supporting that intention, the chancellor noted that Charles and Janet often stayed with each other, went out together, talked frequently, and even opened a joint bank account in their name. The chancellor dismissed the claim that the joint application was an attempt by Charles to trick Janet into allowing him to acquire title to the former marital home. Accordingly, the chancellor entered a judgment 1269 revoking the divorce of Charles and Janet. On behalf of the deceased, Carlisle timely appealed from that judgment. STANDARD OF REVIEW ¶ 12. Generally, this Court applies an abuse of discretion standard when reviewing the findings of a chancellor. "The chancellor is granted wide discretion in deciding domestic relations matters[,] and we will reverse his decision only when his decision is shown to be manifestly wrong, clearly erroneous, or that he applied an incorrect legal standard." Smith v. Smith, 856 So.2d 717, 719(¶ 7) (Miss.Ct.App.2003) (citing Barton v. Barton, 790 So.2d 169, 175(¶ 17) (Miss.2001)). However, this Court will review questions of law under a de novo standard. Keener Props., L.L.C. v. Wilson, 912 So.2d 954, 956(¶ 3) (Miss. 2005). DISCUSSION ¶ 13. Carlisle argues that the chancellor lacked jurisdiction to revoke Charles and Janet's divorce because Charles had died. Generally, the court that granted a divorce may revoke the divorce "upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation." Miss.Code Ann. § 93-5-31 (Rev.2004). Carlisle, as administrator of Charles's estate, cites Wells v. Roberson, 209 So.2d 919, 922 (Miss.1968) in support of his argument. The supreme court in Wells stated "that on the death of the party his interest ceases, and the jurisdiction of the court ceases also." Id. (quoting Gerault v. Anderson, 1 Miss. 30, 34 (1818)). ¶ 14. Wells is distinguishable from the present case because only one ex-spouse sought to revoke the divorce. It also involved a party seeking to overturn a decree of divorce, but the former spouses in Wells did not file a joint application to revoke their divorce. Id. at 920. The couple was granted a divorce in an order filed on December 16, 1966. Id. The ex-husband then passed away less than two weeks later, on December 27. Id. Subsequently, the deceased's ex-wife filed a petition to set aside the divorce. Id. She claimed that she and the deceased had reconciled and continued to cohabit as husband and wife. Id. After hearing testimony from the ex-wife, the chancery court granted the motion to vacate the divorce. Id. at 921. On appeal, the supreme court held that it was error for the chancery court to vacate the divorce upon the request of the surviving ex-spouse, and the supreme court reinstated the final decree of divorce. Id. at 924. ¶ 15. Whereas Wells involved an application for revocation filed after the ex-spouse's death, the present case involves a situation in which both parties signed a joint application for divorce prior to the ex-spouse's death. We find no cases on point that discuss a chancellor's power to revoke a valid divorce, upon joint application by the parties, when one of the parties dies following the signing and filing of the application. The cases that are most analogous to the present situation are those cases in which a married couple files for divorce, and one of the parties dies before a valid divorce decree is entered. ¶ 16. In Mississippi, it is established that "the death of [the] complainant in the divorce action prior to the execution and entry of the final decree by the lower court ended the marriage of the parties and cancelled fully the bill of complaint for divorce and incidental property relief." Pittman v. Pittman, 375 So.2d 415, 416 (Miss. 1979). In Pittman, the supreme court quoted 104 A.L.R. 654 as follows: It is well settled by practically all of the authorities that, upon the death of one of the parties to a purely divorce action, *1270 before the entry of a final decree therein, whether before or after the entry of an interlocutory decree or a decree nisi, the action abates with the consequence that the action may not be continued and no final decree of divorce may be entered thereafter, since the object sought to be accomplished by the final decree, that is, the dissolution of the marriage relation, is already accomplished by the prior death of one of the parties, and there is then no status of marriage upon which the final decree of divorce may operate. Pittman, 375 So.2d at 416. More recently, the supreme court ruled that the law, as set out in Pittman, regarding the death of one of the parties to a divorce action remains valid. Barton, 790 So.2d at 173(¶ 13). ¶ 17. Janet admits in her appellate brief that substitution of parties is not a proper remedy because she did not seek a revocation of the divorce with the intent of being married to anyone but Charles. The problem in this case is just thatsubstitution of another party in Charles's place is not proper. The purpose of the joint application to revoke the divorce is to revoke the divorceto reunite the two formerly married parties as a married couple. When one of the parties diesas Charles did in this casethere can be no successful resolution of a petition to revoke a divorce. In Pittman, there was "no status of marriage upon which the final decree of divorce may operate." Pittman, 375 So.2d at 416. In the present case, there was no status of marriage to which a revocation of the divorce could have returned the parties. ¶ 18. Janet put on sufficient probative evidence of her reconciliation with Charles prior to his untimely death. However, because Charles died prior to any revocation decree or even a hearing, we do not find that the chancellor had the power to reinstate the marriage. As a matter of law, we find that the chancellor erred in conducting a hearing on the issue of the revocation of the divorce. Therefore, we reverse the judgment revoking Charles and Janet's divorce, and we render judgment reinstating the final judgment of the divorce. ¶ 19. Finding the present issue to be dispositive of the case on appeal, we decline to address the remaining issues. ¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS REVERSED, AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE. KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2535518/	46 So.3d 535 (2010) Randy Lamar SCHOENWETTER, Appellant, v. STATE of Florida, Appellee. Randy Schoenwetter, Petitioner, v. Walter A. McNeil, etc., Respondent. Nos. SC08-2271, SC09-955. Supreme Court of Florida. July 1, 2010. Rehearing Denied October 6, 2010. 540 Bill Jennings, Capital Collateral Regional Counsel, and James L. Driscoll, Jr., Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner. Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent. PER CURIAM. Randy Schoenwetter appeals a circuit court order denying his motion to vacate his convictions of first-degree murder and sentences of death, filed pursuant to Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Having considered the issues raised in the briefs and having heard oral argument, we now affirm the circuit court's order and deny the petition for writ of habeas corpus. I. FACTS AND PROCEDURAL HISTORY Appellant's case was previously heard by this Court on direct appeal from his 541 conviction and sentencing in the circuit court. See Schoenwetter v. State, 931 So.2d 857 (Fla.2006). In our opinion affirming appellant's conviction and death sentences, we described the facts of the underlying offenses as follows: At the time of the crimes, the Friskey family consisted of five people: the father, Ronald; the mother, Haesun; and the three children, Chad (eighteen years old), Theresa (sixteen years old) and Virginia, (ten years old). The defendant had known the Friskey family from childhood and attended the same karate school with the Friskey children. He was friends with Chad until Chad left for the Air Force a few months before the crime. Throughout his association with the family and before the crimes occurred, the defendant stayed overnight at the Friskey residence on a number of occasions. . . . . At approximately 3 a.m. on August 12, 2000, the defendant left his apartment, where he lived with his mother. He rode his bicycle to the Krystal's Restaurant, where he was employed. After staying at Krystal's for a short time, he left on his bicycle and rode to the Friskey residence. According to the defendant's letter to the court confessing guilt, he decided to go to the Friskey residence so that he could force one of the Friskey daughters, Theresa, age sixteen, or Virginia, age ten, to have sex with him. Schoenwetter arrived at the Friskey residence at approximately 5 a.m. He parked his bicycle on the back driveway of the residence and walked up to the back porch. He used a box cutter to cut open the screen and enter the porch. He then managed to push open the sliding glass door from the porch into the house just enough to slip through. There was a stick in the sliding door which only allowed the door to be opened twelve inches. After entering the house, he walked directly into the kitchen and armed himself with a large serrated kitchen knife from one of the drawers. He then walked down the hallway where the three bedrooms were located. The first door he approached was to Theresa's bedroom; it was locked. He then peeked inside the bedroom on the opposite side of the hall and saw the parents asleep in their bed. He knew, based upon his previous overnight visits to the Friskey home, that the parents were heavy sleepers. He then entered Virginia's bedroom, which was directly across the hall from the parents' bedroom and next to Theresa's bedroom. During his taped confession, Schoenwetter said he entered Virginia's room and began looking around. He said he never touched her body. While he was in her room, Virginia woke up and began to shriek. He put his hand over her mouth, threatened her with a knife, and told her to be quiet. She continued to shriek, she then recognized him, and said his name, Randy. He started to leave the room, but the mother came into the room and grabbed him. The father came into the room and tackled him. After struggling with the parents for a short time, he managed to break loose. Instead of leaving the house, he decided to go back to Virginia's bed and kill her because she had recognized him and could identify him. He stabbed her on her bed. After he stabbed her, the father tackled him. He then struggled with both parents until he managed to break loose again. The defendant then left the house the same way he came in, got on his bike, and rode home. After he arrived home, he took a shower, placed his clothes, shoes, the box cutter, and the knife inside a blue plastic bag, 542 placed the blue bag inside a trash bag containing trash from his apartment, and put the trash bag in the dumpster. Id. at 862-63. Regarding the injuries suffered by the victims, we stated: The forensic evidence revealed Ronald Friskey died as a result of multiple stab wounds, including a stab wound to the eyebrow, forehead, left upper back, left middle back, middle back close to the spine, right lower back, right side of the neck, and three wounds to the right side of the chest. Ronald Friskey also had wounds on his right hand, which were consistent with defensive wounds. The wounds to the right side of the neck and the left middle back were life-threatening wounds, because they were very deep and caused extreme blood loss. The wound to the left middle back penetrated Ronald Friskey's lung. It was determined that Virginia Friskey also died as a result of multiple stab wounds. One stab wound was inflicted to each side of her chest. The stab wound on the left was four inches deep and the one on the right was three inches deep. She also had a wound on each hand which entered the back of the hand and came out to the front of the hand. It appears that she was shielding her chest and that these wounds occurred at the same time as the chest wounds. The wounds to her chest penetrated her heart and both lungs. She also had wounds to her lip and to her lower jaw. Haesun Friskey was stabbed multiple times but survived. She was in critical condition when she arrived at the hospital and had to undergo surgery to stop the bleeding in her liver and the bleeding on two parts of her arm. She suffered from massive blood loss and received 100 units of blood during her hospital stay. Dr. Emran Imani, the trauma surgeon who treated Haesun Friskey, testified that this was the equivalent of replacing her entire blood volume more than twenty times. He described her survival as miraculous, stating that she was expected to die when she arrived at the hospital. Id. at 864. The morning after the incident, law enforcement officers encountered the appellant after following a trail of blood which led from the Friskey residence to the apartment complex where Schoenwetter lived with his mother. Schoenwetter agreed to accompany two detectives to the police station for an interview, which was videotaped. Although he initially denied any involvement, Schoenwetter subsequently confessed to the crimes and gave a detailed statement to the officers. See id. at 863-64. This statement was corroborated by blood DNA testing based on samples taken from Schoenwetter's clothes, Virginia Friskey's bedroom, and other items and locations. The blood trail leading from the Friskey residence was determined to match Schoenwetter's blood DNA, which was also found on the handle of the knife used against the victims. See id. at 864. Schoenwetter was indicted on August 29, 2000, for first-degree murder in the death of Virginia Friskey, first-degree murder in the death of Ronald Friskey, attempted first-degree murder of Haesun Friskey, and armed burglary of a dwelling. See id. at 861. On February 17, 2003, Schoenwetter wrote a letter to the trial judge confessing his guilt and indicating that he wished to change his plea from not guilty to guilty. He also stated that his reason for entering the residence was to force one or both of the Friskey daughters to have sex with him. A status hearing was held on February 26, 2003. Against the advice of counsel to remain silent, and 543 after a cautionary instruction by the trial judge, Schoenwetter admitted to the court that he had written the letter and expressed his desire to change his plea to guilty. A guilty plea to all charges was entered on March 5, 2003. Penalty phase proceedings were held from September 15 through September 25, 2003. At the end of the proceedings, the jury recommended death for the murder of Virginia Friskey by a vote of ten to two, and for the murder of Ronald Friskey by a vote of nine to three. The court held a Spencer[1] hearing on November 7, 2003, and subsequently imposed a sentence of death for each first-degree murder charge and sentences of life in prison for the attempted murder and armed burglary charges. The court found three aggravating circumstances to be applicable to both murders: (1) the defendant had been convicted of another capital offense or of a felony involving the use or threat of violence to some person; (2) the crime for which the defendant was to be sentenced was committed while he was engaged in the commission of or the attempt to commit the crime of burglary; and (3) the crime was committed for the purpose of avoiding or preventing a lawful arrest. As to the murder of Virginia Friskey, the court also found the aggravating circumstance that the victim was a person of less than twelve years of age. As to the murder of Ronald Friskey, the court found that the crime was especially heinous, atrocious or cruel (HAC). The trial court considered and assigned weight to the following statutory mitigating circumstances: (1) lack of prior criminal history (little weight); (2) extreme mental or emotional disturbance (little weight);[2] (3) lack of capacity to conform conduct to the requirements of the law (little weight);[3] and (4) the defendant's age (eighteen) at the time of the crime (little weight). The court also considered and weighed eight of the nine nonstatutory mitigators proposed by Schoenwetter: (1) defendant accepted responsibility by pleading guilty (moderate weight); (2) defendant was bullied by his peers from an early age (little weight); (3) defendant was continuously employed as a teenager and helped his mother financially (no weight); (4) defendant will not pose a danger to the prison population if given life without parole (little weight); (5) defendant's ability to interact socially is impaired due to Asperger's Syndrome and ADHD (little weight); (6) defendant had a sexual preoccupation 544 from the age of seven (little weight); (7) defendant had a developmental and emotional age of twelve to thirteen at the time of the offense (not proven by the greater weight of the evidence);[4] (8) defendant had a close loving relationship with his mother and his younger sister (no weight); (9) while in the tenth grade, defendant was physically and emotionally abused by his mother's boyfriend (little weight). Finally, the court determined that each of the aggravating factors, standing alone, was sufficient to outweigh all of the mitigating circumstances combined. On direct appeal to this Court, Schoenwetter raised nine issues. He argued that the trial court had erred in (1) denying his attorneys' pretrial motion to suppress the confession and fruits thereof; (2) admitting certain victim impact evidence and denying defense counsel's motion to withdraw; (3) allowing a medical examiner who did not perform the victims' autopsies to testify as to his opinion regarding the cause and manner of death; (4) denying his motion for mistrial based on the claim that the prosecutor deliberately misled the jury about the defendant's lack of a significant criminal history; (5) denying his motion to disqualify the trial judge; (6) admitting inflammatory photographs of the victims' wounds; and (7) finding improper aggravating circumstances, failing to consider relevant mitigating circumstances, and incorrectly finding that the aggravating factors outweighed the mitigating factors. Schoenwetter also argued (8) that the standard jury instructions unconstitutionally placed the burden of proof on the defendant, and (9) that section 921.141, Florida Statutes, was unconstitutional for allowing the trial court to impose a death sentence without a unanimous jury verdict. We rejected each claim and affirmed the judgment and sentences imposed by the trial court. See Schoenwetter, 931 So.2d at 866-77. Certiorari was denied by the United States Supreme Court on November 13, 2006. See Schoenwetter v. Florida, 549 U.S. 1035, 127 S.Ct. 587, 166 L.Ed.2d 437 (2006). Schoenwetter filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 in the circuit court on October 30, 2007, raising six general claims.[5] In its March 26, 2008, order 545 on the motion, the circuit court granted an evidentiary hearing as to Schoenwetter's claims of ineffective assistance of counsel during the penalty phase but denied a hearing on the remaining claims. More than a dozen witnesses testified at the evidentiary hearing, including Schoenwetter's trial attorneys. After the hearing, the circuit court entered an order denying relief on each claim. Schoenwetter now appeals the circuit court's denial of his motion for postconviction relief. Corresponding with the arguments raised in the motion filed below, he argues: (1) denial of the effective assistance of counsel during pretrial proceedings; (2) the trial court erred in denying an evidentiary hearing on whether Florida's lethal injection procedure is unconstitutional and in failing to grant relief on the claim; (3) denial of the effective assistance of counsel during the penalty phase; (4) his death sentence is unconstitutional in light of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); and (5) the cumulative impact of all constitutional error renders the death sentence unconstitutional. In an accompanying petition for writ of habeas corpus, Schoenwetter contends, first, that his death sentence is unconstitutional in light of the principles announced in Roper and in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and second, that he was denied the effective assistance of appellate counsel. II. RULE 3.851 CLAIMS A. Ineffective Assistance of Counsel During Pretrial Proceedings Appellant first argues that his trial counsel was ineffective during pretrial proceedings for failing to move to exclude from the penalty phase: (a) statements made at the February 26, 2003, status hearing; (b) statements made at the March 5, 2003, plea colloquy; and (c) his letter to the trial judge confessing guilt. Appellant asserts that trial counsel should have moved to have these statements excluded under section 90.410, Florida Statutes (2003), and Florida Rule of Criminal Procedure 3.172, which prohibit the use of statements made during the course of plea negotiations. He also contends that counsel should have moved to suppress the statements made at the status hearing and plea colloquy as having been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied: 546 First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Where this Court has previously rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. See Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992), receded from on other grounds by Deren v. State, 985 So.2d 1087, 1088 (Fla.2008). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004). 1. Failure to Object to Statements as Made in Connection With an Offer to Plead Guilty Appellant first asserts that counsel was deficient for failing to object to the admission of both the confession letter and his in-court admissions made during pretrial proceedings on the grounds that they were made in connection with an offer to plead guilty. Section 90.410, Florida Statutes, provides: Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837. See also Fla. R.Crim. P. 3.172(i).[6] In order to prove deficiency under Strickland, appellant must first show that trial counsel's failure to object on these grounds was outside the broad range of reasonably competent performance under prevailing professional standards. See Maxwell, 490 So.2d at 932. Clearly, "[c]ounsel cannot be deemed ineffective for failing to make a meritless objection." Hitchcock v. State, 991 So.2d 337, 361 (Fla.2008). Under section 90.803(18)(a), Florida Statutes (2002), a statement that would otherwise be excluded as hearsay is admissible where that statement is offered against a party and is "[t]he party's own statement in either an individual or a representative capacity." Thus, unless excludable under another rule, the challenged statements are admissible as party admissions. Reviewing the appellant's claim, the circuit court determined, first, that appellant's statements were admissible as party admissions under section 90.803(18), and second, that the statements were not made in connection with an offer to plead guilty. We agree. Where a party admission is not clearly part of an attempt to negotiate a 547 plea bargain, see Calabro v. State, 995 So.2d 307, 313-14 (Fla.2008), this Court has adopted a two-tier analysis for determining whether a statement falls within the exclusion under rule 3.172(i). First, a court "must determine `whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion.'" Richardson v. State, 706 So.2d 1349, 1353 (Fla.1998) (quoting United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978)). Second, the court must discern "whether the accused's expectation was reasonable given the totality of the circumstances." Id. (quoting Robertson, 582 F.2d at 1366). "In applying the first prong, the trial court must carefully distinguish between the accused's admissions and the accused's attempts to negotiate a plea bargain. In other words, the trial court `must appreciate the tenor of the conversation.'" Id. (quoting Robertson, 582 F.2d at 1367). Here, the record demonstrates that appellant was not attempting to negotiate a plea deal, but rather intended to confess his guilt to the court and enter a plea of guilty. The status hearing and plea colloquy were called only after appellant mailed a letter confessing guilt to the trial judge. In that letter, appellant began by stating that he wanted to change his plea from "not guilty" to "guilty." After discussing the events surrounding the crimes and his motivations for committing the offenses, appellant concluded: "As I said before, your Honor, I am guilty. Therefore, I would very much like my plea changed to the true plea of guilty." At the status hearing held on February 26, 2003, the day after the letter was received by the judge, the prosecutor indicated that the State was not in a position to negotiate a plea deal: I will state for the record in open court, there [have] been efforts by his counsel to resolve this case with a plea but the problem with the facts in this case are such that the state is not in a position to make a plea offer and take away the sentencing possibilities in this case. Subsequently, appellant's trial counsel moved to have the letter sealed pending an evaluation of appellant's competency to proceed. Trial counsel also stated that their advice to appellant was to maintain his silence. Appellant replied: I'm disregarding that advice. The purpose that I wrote that letter is I wish to change my plea from not guilty to guilty. Yes, I did it, indeed. Those are the facts that I wrote in that letter and it is the truth. Anything else to try to deny that would be a lie. . . . The trial judge then adjourned the hearing until appellant's competency could be determined. At the follow-up hearing held on March 5, 2003, appellant's attorneys informed the court that their client wished to enter a plea against their advice. After confirming this with appellant, the court agreed to proceed immediately into a plea colloquy. The prosecutor also agreed, stating: "I see no reason not to go forward. There is no plea agreement in this case so I would ask the court to determine whether or not he is prepared to accept a plea to the charges." (Emphasis added.) After a break to permit appellant to consult with his attorneys, the trial judge began the plea proceeding: Q: Mr. Schoenwetter, there was an indictment issued by a grand jury on the 29th of August of the year 2000 which charged you with Count I, first-degree murder from a premeditated design. That particular charge, sir, is a mandatory life in prison with a possibility of receiving the death penalty, do you understand that, sir? A: Yes, sir. 548 Q: That would be the maximum sentence as well as the minimum sentence. The minimum sentence would be life in prison without the possibility of parole. In essence, sir, the only time you would ever leave prison is if you died in prison, do you understand that sir? A: Yes, sir. The court questioned appellant regarding the remaining counts in the indictment. It then asked: Q: And do you understand, sir, that this is a plea straight up to the Court? There is no plea agreement with the state attorney. A: Yes, sir. It is clear from the record that appellant was not attempting to negotiate a plea bargain. See Richardson, 706 So.2d at 1353; cf. Calabro, 995 So.2d at 317 (finding in-court admissions of guilt inadmissible in light of defendant's statement requesting "some kind of plea agreement"). Appellant made no indication that he believed a lighter sentence would be obtained in exchange for his guilty plea. Appellant specifically stated during questioning at the plea colloquy that he understood his only sentencing options following the plea would be death or life in prison. He was asked by the trial judge whether he understood that there was no plea agreement with the State Attorney, and he answered in the affirmative. Further, any such belief would have been unreasonable in light of the fact that the prosecutor had previously stated in open court that the State would not offer a plea deal. Cf. Richardson, 706 So.2d at 1354 (finding the defendant's expectation of a plea deal to have been reasonable in light of repeated offers by the State to grant a lower sentence in exchange for a confession). Accordingly, we conclude counsel did not render ineffective assistance by failing to argue that the letter and in-court statements were inadmissible under rule 3.172(i). 2. Failure to Object Based on Miranda Violation Appellant also argues that his attorneys were deficient for failing to object to his in-court admissions on the grounds that he had not been read Miranda warnings. Under Miranda and its progeny, suspects must be told prior to any custodial interrogation "that they have a right to remain silent, that anything they say will be used against them in court, that they have a right to a lawyer's help, and that if they cannot pay for a lawyer one will be appointed to help them." Traylor v. State, 596 So.2d 957, 966 (Fla.1992) (footnote omitted).[7] Appellant asserts that because he was in custody when he made the incriminating statements at the February and March hearings, he was entitled to these warnings. He contends that trial counsel was ineffective under Strickland for failing to object on this basis during the penalty phase to the admission of these statements. When the circuit court rejected this claim in its order denying postconviction relief, it noted: "[T]he Defendant has cited no case law which states that a Defendant is entitled to be read his Miranda rights prior to making statements at a court proceeding. Nor has the Court through its own research found any case law which stands for this proposition." Similarly, appellant has cited no precedent here which would require a defendant to be read Miranda warnings prior to testifying in court. Indeed, existing case law leans strongly against this claim. In United 549 States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), a plurality of the United States Supreme Court held that Miranda warnings are not required prior to testimony before a grand jury. The Court noted that Miranda was intended to correct the lack of procedural safeguards during custodial police interrogations, when an individual might be pressured into giving up his or her privilege against self-incrimination. However, "the Miranda Court simply did not perceive judicial inquiries and custodial interrogation as equivalents." Id. at 579, 96 S.Ct. 1768 (emphasis added). The Court explained: "To extend these concepts to questioning before a grand jury inquiring into criminal activity under the guidance of a judge is an extravagant expansion never remotely contemplated by this Court in Miranda." Id. at 580, 96 S.Ct. 1768. Here, appellant made the incriminating statements in open court, before a judge, after his attorneys advised him on the record to maintain his silence. Because Miranda warnings are only necessary prior to a custodial police interrogation, the absence of such warnings could not provide defense counsel with grounds for an objection. Again, counsel cannot be deemed ineffective for failing to make a meritless objection. See Hitchcock, 991 So.2d at 361. We hold that counsel did not render ineffective assistance on the grounds asserted here. B. Constitutionality of Florida's Lethal Injection Procedures Appellant next claims that the lower court erred in denying his request for an evidentiary hearing on the issue of whether Florida's current lethal injection procedure violates the constitutional prohibition on cruel and unusual punishment. See U.S. Const. amend. VIII. In the circuit court's order denying an evidentiary hearing, the court ruled that because the constitutionality of Florida's death penalty procedure involved a pure question of law which did not require the court to make any factual determinations, no hearing was necessary. Subsequently, in its order denying the motion, the court summarily rejected the underlying claim, noting that "[t]he Supreme Court of Florida has held on numerous occasions that the Florida procedure for implementing lethal injection does not violate the constitutional protection against cruel and unusual punishment." On an initial rule 3.851 motion, an evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. See Hutchinson v. State, 17 So.3d 696, 700-01 (Fla.2009) (citing Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000)). "To uphold the trial court's summary denial of claims raised in an initial postconviction motion, the record must conclusively demonstrate that the defendant is not entitled to relief." Hutchinson, 17 So.3d at 700. When no evidentiary hearing has been held by the lower court, this Court must accept the movant's factual allegations as true to the extent that they are not refuted by the record. Id. (citing Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla.1989)). Because a court's decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on the written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See Davis v. State, 26 So.3d 519, 526 (Fla. 2009) (citing State v. Coney, 845 So.2d 120, 137 (Fla.2003)). Appellant's motion for postconviction relief was filed prior to this Court's decision in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), and prior to the decision 550 of the United States Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). In his motion, appellant argued that because Lightbourne was still pending, the constitutionality of lethal injection remained unresolved. Subsequently, in Lightbourne, this Court rejected the claim that Florida's current lethal injection procedure violates the Eighth Amendment. We explained that in order for a punishment to be "cruel and unusual," it must involve "torture or a lingering death" or the "infliction of unnecessary and wanton pain." Lightbourne, 969 So.2d at 349 (quoting Jones v. State, 701 So.2d 76, 79 (Fla.1997)). "[P]unishment is not cruel or unusual if a state's protocol does not expose the prisoner to `more than a negligible risk of being subjected to cruel and wanton infliction of pain.'" Id. (quoting Sims v. State, 754 So.2d 657, 667 (Fla.2000)). Further, "an inmate's speculative list of horribles that could happen is insufficient to demonstrate more than a negligible risk." Id. We similarly upheld this State's lethal injection protocols in Schwab v. State, 969 So.2d 318, 325 (Fla.2007). Appellant also requested in his motion that the circuit court stay proceedings until the United States Supreme Court had reached a decision in the then-pending Baze litigation. In Baze, a majority of the Supreme Court determined that Kentucky's lethal injection procedure was constitutional under the Eighth Amendment, although the Court did not reach a consensus regarding the particular standard for evaluating the constitutionality of state execution protocols in future cases. See Baze, 553 U.S. at 41, 128 S.Ct. 1520. In Henyard v. State, 992 So.2d 120, 130 (Fla. 2008), we determined that our previous holdings in Lightbourne and Schwab did not conflict with the plurality's narrow holding in Baze. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that when the Supreme Court issues a decision and no rationale receives the vote of a majority of the justices, the holding of the Court is the "position taken by those members who concurred in the judgment on the narrowest grounds"). Further, in Ventura v. State, 2 So.3d 194 (Fla.), cert. denied, ___ U.S. ___, 129 S.Ct. 2839, 174 L.Ed.2d 562 (2009), we found that "Florida's current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court (and would easily satisfy the intent-based standard advocated by justices Thomas and Scalia)." Id. at 200. Since then, this Court has repeatedly and summarily rejected constitutional challenges to Florida's lethal injection procedures. See, e.g., Davis, 26 So.3d at 526; Reese v. State, 14 So.3d 913, 919 (Fla.2009); Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008). Rule 3.851 mandates an evidentiary hearing only "on claims listed by the defendant as requiring a factual determination." Fla. R.Crim. P. 3.851(f)(5)(A)(i). Appellant's challenge was based specifically on the issues that arose out of the execution of Florida inmate Angel Diaz and on the revised lethal injection protocols subsequently implemented by the Florida Department of Corrections. To the extent appellant asserts that the failure to grant an evidentiary hearing violated his due process right to an individual analysis of the facts of his case, we note that we reviewed the facts surrounding the Diaz execution as well as the revised lethal injection protocols in extensive detail in Lightbourne. See 969 So.2d at 343-49.[8]551 Appellant therefore failed to raise any challenge to Florida's lethal injection protocols that had not previously been considered by this Court. Accordingly, nothing in his claim required a factual determination. For this reason, and in light of our consistent and summary rejection of challenges of this nature, we conclude that the circuit court did not err in denying an evidentiary hearing on this issue. C. Ineffective Assistance of Counsel During Penalty Phase Appellant next claims that, during the penalty phase proceedings, his court-appointed counsel made numerous errors that constituted deficiency under Strickland. As discussed above, to prevail on a claim of ineffective assistance of counsel a claimant must show: (1) that his counsel's performance was deficient, i.e., unreasonable under prevailing professional standards; and (2) that the claimant's case was prejudiced by the deficiency. See Gore v. State, 846 So.2d 461, 467 (Fla.2003). To meet this second prong, the claimant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Valle v. State, 778 So.2d 960, 965-66 (Fla.2001) (quoting Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009). During the penalty phase, the defense's case focused largely on proving mental health mitigation. Three experts, Dr. William Riebsame, Dr. Nona Currie Prichard, and Dr. Joseph Wu, testified extensively regarding their examinations of the defendant. Dr. Riebsame explained to the jury that Asperger's Syndrome is a neurological disorder which reflects an abnormal brain pathology. He testified that individuals diagnosed with the condition have impaired social skills and often find it difficult to get along with others. Asperger's patients also tend to develop an extreme, all-encompassing preoccupation with some area of interest. According to Dr. Riebsame, "They begin to identify with that particular topic, become very well informed about that topic, and their life centers around that particular topic." Dr. Riebsame stated that, in appellant's case, appellant had become focused on sexuality at an unusually early age, engaging in such behavior as dialing 900 phone lines at the age of ten or eleven and viewing pornographic and satanic websites, including child pornography, at an early teenage age.[9] In Dr. Riebsame's evaluation, it was appellant's obsession with witchcraft, Satanism, and sexuality which caused him to 552 enter the Friskey home on the night of the offenses. He expressed his opinion that appellant was under an extreme mental or emotional disturbance at the time of the homicides. Dr. Prichard also described the symptoms of Asperger's Syndrome. Like Dr. Riebsame, she testified that individuals with the condition have a difficult time getting along with others socially. This was due, she explained, to their inability to perceive or understand others' emotions. She testified that individuals with this condition also exhibit an uncommon lack of flexibility in making decisions. Whereas most individuals are capable of reassessing a course of conduct as it progresses, Dr. Prichard stated, Asperger's patients are impaired in their ability to recognize and act on available alternatives. In appellant's case, she testified that his Asperger's Syndrome made it difficult for him to appreciate on an emotional level how his conduct affected the Friskey family, or to abandon his plan to assault the Friskey daughters once he entered the house. This deficiency caused him to panic when he was recognized by Virginia Friskey, which resulted in appellant lashing out at the girl and her parents. In Dr. Prichard's opinion, appellant's ability to conform his conduct to the requirements of the law was substantially impaired. Dr. Wu, a medical doctor admitted as an expert in psychiatry, neuroscience and PET scan imaging, testified that appellant's PET scan indicated the presence of abnormalities within appellant's frontal lobe and temporal cortex. He explained that these results are consistent with those of individuals diagnosed with Asperger's Syndrome. Dr. Wu also testified that without therapy and medication, individuals with such conditions tend to be inflexible and rigid in their thinking and have substantial difficulty with impulse control. Some testimony was presented regarding appellant's social background. Deborah Roberts, appellant's mother, testified that appellant's biological father, Reece Ingram, was physically abusive to her while she was pregnant with appellant, that she was malnourished during much of her pregnancy, and that she received poor prenatal care. She separated from Ingram when appellant was approximately one year old and they were later divorced. Roberts testified that once appellant started school he had difficulty making friends and was picked on by other children. He also had difficulty sitting still and paying attention, and for a time was placed on Ritalin. Appellant's performance in school improved, but the Ritalin was discontinued when appellant was in the seventh grade. Roberts eventually married Thomas Schoenwetter, who adopted appellant, and with whom Roberts later had a daughter. After Roberts and Schoenwetter divorced, Roberts moved with appellant to another city to live with a boyfriend whom Roberts met on the Internet. However, the boyfriend became physically abusive toward appellant, and Roberts and appellant moved away after a year. Roberts testified that appellant began attending adult education classes after the tenth grade and that he had almost completed his coursework at the time of his arrest. At the evidentiary hearing on the appellant's rule 3.851 motion, appellant's attorneys, Assistant Public Defenders J. Randall Moore and George McCarthy, testified that their trial strategy was to use the diagnosis of Asperger's Syndrome and ADHD to their advantage during the penalty phase. Moore explained that because of appellant's confession letter, the jury was going to be aware that appellant had entered the Friskey house with the intention of sexually assaulting one or both of the minor females in the house, the younger 553 of whom was only ten years old. In their view, it was necessary to explain this conduct in a manner that could be viewed as mitigating. Moore and McCarthy hoped the jury would come to understand appellant's obsessions with Satanism and pornography as inherently linked to his previously undiagnosed Asperger's Syndrome. Their strategy was to present these obsessions as something appellant could not control, and to argue to the jury that appellant was under the influence of an irresistible compulsion on the night he committed the offenses. Appellant strongly disagreed with his attorneys' choice of trial strategy. Several witnesses testified at the postconviction hearing that appellant had developed an interest in Christianity while awaiting trial and that he had become active with the prison ministry. According to his trial attorneys, appellant wanted them to refrain from calling many of the witnesses they intended to present during the penalty phase and to rely exclusively on his religious conversion as mitigation. After deliberation, they concluded that this line of testimony would not be beneficial to appellant's case, and no such witnesses were presented to the jury on this topic. This decision, as well as appellant's desire that his attorneys not object to the admission of certain victim impact evidence, caused friction between appellant and his attorneys, which resulted in defense counsel filing a motion to withdraw. On direct appeal, we determined that the trial court's denial of this motion was proper. See Schoenwetter, 931 So.2d at 870. Appellant now challenges several aspects of his attorneys' defense. He argues that Moore and McCarthy (1) failed to object to improper remarks during the State's opening argument; (2) presented witnesses that portrayed appellant in a negative light; (3) failed to call potential witnesses who could have aided the defense; (4) presented conflicting and unprepared expert witnesses; and (5) failed to sufficiently emphasize mitigating issues during closing argument. In conducting our review, there is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action `might' be considered sound trial strategy." Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). "[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). 1. Failure to Object to State's Opening In his first claim of penalty phase deficiency, appellant argues that his attorneys should have objected to a comment made by the State during opening argument. In that statement, the Assistant State Attorney described appellant's friendship with Chad Friskey, the son of victims Ronald and Haesun Friskey. He informed the jury that appellant had stayed overnight at the Friskey residence on several occasions and was therefore familiar with the layout of the house. He then stated: "This relationship that the defendant had with Chad Friskey also 554 gave him an opportunity to become acquainted with Chad's two younger sisters, Theresa and Virginia Friskey. The defendant came to see them as targets of his sexual desires and sexual fantasies." Appellant argues that this statement improperly presented the aggravating factor of sexual battery to which his attorneys should have objected. At the postconviction evidentiary hearing, one of appellant's trial attorneys was asked why he chose not to object to this comment by the State. He explained that evidence of appellant's sexual interest in the Friskey daughters was almost certainly going to be admitted at trial through various witnesses, including the psychologists, and potentially through Chad Friskey, who was then listed as a witness. We find that counsel's decision not to object was reasonable. We explained in Jones v. State, 949 So.2d 1021, 1032 (Fla.2006), that the purpose of an opening argument is for counsel to inform the jury "what he in good faith expected to be established by the evidence presented at trial." Because the defense attorneys anticipated that evidence supporting the State's comments would be presented at trial, they reasonably concluded that they had no grounds on which to object. See Rogers v. State, 957 So.2d 538, 550 (Fla.2007) (explaining that trial counsel cannot be deemed ineffective for failing to object to comments that are proper). Accordingly, we find that their failure to object to this comment by the State was not deficient under Strickland. Further, because evidence of appellant's interest in the Friskey daughters was in fact presented to the jury, we find that Schoenwetter cannot establish prejudice sufficient to undermine our confidence in the outcome. 2. Introduction of Damaging Evidence Appellant next objects to his attorneys' decision to call as witnesses Dr. Riebsame and Commander Mutter, who, appellant asserts, brought evidence of child pornography, pedophilia and Satanism into the proceedings. Appellant argues that this testimony had a detrimental impact on the minds of the jury due to strong public feelings on these matters, prejudicing his case for life in prison. We hold that trial counsel's performance was not deficient. Reasonable decisions regarding trial strategy, made after deliberation by a claimant's trial attorneys in which available alternatives have been considered and rejected, do not constitute deficient performance under Strickland. See Occhicone, 768 So.2d at 1048. Here, the record demonstrates that appellant's attorneys made a strategic decision to call Dr. Riebsame as a witness based on their belief that his testimony would be more beneficial than harmful. After deliberation, they concluded that, while parts of Dr. Riebsame's testimony may have been unfavorable toward appellant, his testimony was needed to establish as a mitigating circumstance that appellant was under an extreme mental or emotional disturbance at the time of the offense. The attorneys were aware that a portion of this testimony would be harmful, as evidenced by their effort to mitigate any potential negative effect by calling Commander Mutter as a partial rebuttal witness. We find that these decisions were reasonable. The most negative portion of Dr. Riebsame's testimonyappellant's interest in underage femaleswas almost certainly going to be (and in fact was) admitted as evidence as a result of the letter appellant had written to the trial judge. Rather than improperly emphasizing this evidence, appellant's attorneys attempted to explain appellant's own statements in a 555 manner the jury could potentially view as mitigating. Accordingly, we reject appellant's claim that the presentation of these witnesses constituted ineffective assistance of counsel. 3. Failure to Present Mitigating Evidence Third, appellant argues that trial counsel was ineffective for failing to sufficiently investigate and present evidence of his religious faith and social background. Comparable arguments were raised in the recent case of Jones v. State, 998 So.2d 573 (Fla.2008). There, the appellant argued that trial counsel had been ineffective in failing to present mitigation evidence by "(1) failing to hire a mental health expert and failing to present mental health mitigation; and (2) failing to call witnesses who would have testified about Jones's childhood." Id. at 582. After reciting the general deficiency/prejudice Strickland standard, we explained: In these circumstances, to determine whether counsel was ineffective, a court must examine not only counsel's alleged failure to investigate and present possibly mitigating evidence, but the reasons for doing so. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.") (quoting Strickland, 466 U.S. at 690-91[, 104 S.Ct. 2052]); Rose v. State, 675 So.2d 567, 572 (Fla.1996) (stating that in evaluating the competence of counsel "the actual performance of counsel in preparation for and during the penalty phase proceedings, as well as the reasons advanced therefore," must be considered). Moreover, here, Jones must prove his counsel's performance actually "deprived [him] of a reliable penalty phase proceeding." Rutherford v. State, 727 So.2d 216, 223 (Fla.1998). Jones, 998 So.2d at 582. a. Evidence of Appellant's Religious Faith Appellant first asserts that his trial attorneys were deficient for failing to present penalty phase testimony regarding the religious conversion he underwent while awaiting trial. As discussed above, appellant was in conflict with his attorneys over whether such evidence should have been presented. He argues that his counsel should have called as a witness Chaplain Victor Dodzweit and that had counsel conducted a reasonable investigation, they could have discovered and called other witnesses who were familiar with appellant's involvement with the prison ministry. The failure to call these witnesses, he asserts, deprived the jury of significant mitigating evidence. During the evidentiary hearing on appellant's motion for postconviction relief, Moore and McCarthy each testified that after discussing the issue with appellant, they became wary as to how such testimony might be perceived by the jury. According to Moore, appellant had come to believe that "because he was saved, he had been forgiven for all of his sins, including what he did to the Friskey family and he was no longer bothered by it." They also met with Chaplain Dodzweit, who at the time of appellant's initial imprisonment was conducting Bible studies and individual counseling at the Brevard County Jail. Dodzweit told Moore and McCarthy much the same thing as appellant: that appellant had been saved and that God had forgiven him for his crimes. Moore testified 556 that he and McCarthy were both "stunned" after speaking with Dodzweit: We thought he would be Exhibit A in proving lack of remorse, because it didn't seem to have any impact at all on Mr. Schoenwetter, what he had done. We thought, not only would that come out if Mr. Schoenwetter testified, but it would also come out in spades if Reverend Dodzweit testified. We thought it would be very harmful and show a true lack of remorse. When asked whether such testimony could have been presented in a nondamaging manner, Moore replied: No, we went round and round about it. We decided that, in the end, the harm outweighed the good. The harm outweighed the benefit. My nothing personal to Mr. Schoenwetter, but my perception of him was that he would become very, well, self righteous, I guess, in his newly found religion and that would be very offensive to the jury. Accordingly, no testimony on the specific issue of appellant's religious faith was presented to the jury. However, Dodzweit was in fact called to testify before the trial judge at the Spencer hearing, where he discussed his association with appellant and expressed his belief that appellant would act as a positive influence on other inmates in a prison environment. The United States Supreme Court has explained that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. In the present case, trial counsel considered the available evidence and made a reasoned decision not to present Dodzweit as a witness or to present evidence of appellant's religious conversion to the jury. As the circuit court concluded: It was reasonable for [trial counsel] to believe that the jury might be offended if they heard testimony that the Defendant was now at peace with himself after he killed two people and seriously injured a third. Although this testimony could have presented some mitigating evidence, it was reasonable for Moore and McCarthy to believe the harm would outweigh the good. We agree and conclude that counsel's performance was not deficient. See Gore, 846 So.2d at 470 ("[W]hen an attorney has made a tactical decision not to present mitigating evidence after a full investigation, counsel is not ineffective. Moreover, an attorney's reasoned decision not to present evidence of dubious mitigating value does not constitute ineffective assistance.") (citation omitted). While the extent to which Moore and McCarthy investigated appellant's additional witnesses is unclear from the record,[10] their failure to interview these witnesses should be found "reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. "[W]hen a 557 defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Both defense attorneys discussed the issue with appellant and his chaplain and determined that it would have been impossible to present this line of testimony in a nonprejudicial manner. Therefore, we find their decision not to spend more time investigating the issue to have been a reasonable strategic choice, particularly in light of the extensive mental health mitigation that was actually developed. We conclude that they did not render ineffective assistance on these grounds. b. Evidence of Appellant's Social Background Appellant also claims that his attorneys rendered ineffective assistance by failing to present more evidence of his social background. Appellant asserts that counsel should have called as witnesses his biological father, Reece Ingram, his paternal grandmother, Nettie Connor, and Laura Blankman, an investigator hired by the defense. Each of these individuals testified at the postconviction evidentiary hearing. After reviewing their postconviction testimony, we find that counsel was not deficient in failing to present these witnesses and that appellant's case was not prejudiced by their absence during the penalty phase. Reece Ingram, appellant's biological father, testified that he was arrested and sent to prison for five and one-half years for assault and robbery when appellant was approximately eighteen months old and that he was divorced from appellant's mother while still in prison. Ingram also testified that he visited his son in jail shortly after appellant's arrest. Prior to that visit, Ingram had not seen appellant since he was seven or eight years old. Ingram stated that he would have been willing to testify at the penalty phase, but asserted that he had never been contacted by the Public Defender's office. Nettie Connor, Ingram's mother and appellant's paternal grandmother, testified that appellant's mother, Deborah Roberts, had not permitted her to have a relationship with appellant and that she had only seen him on four occasions. She stated that she spoke by telephone with someone from the Public Defender's office prior to appellant's trial, but was not asked to testify. Connor expressed the opinion that had appellant been permitted to have a relationship with her and her family, he would not have been in trouble with the law. Laura Blankman testified that she was a professional investigator specializing in death penalty mitigation. She explained that she was hired by the defense to investigate appellant's family history. At the time she began her investigation, funding had only been obtained for thirty hours of work, although she stated that a complete investigation often took 400 hours. Much of her allotted time was spent interviewing appellant and his mother. Blankman discussed in detail Roberts' familial history of abuse, particularly by Roberts' father, with whom Roberts and appellant lived until appellant was approximately four years old. She also learned about appellant's difficult childhood. Blankman testified that she felt more investigation was needed, particularly regarding appellant's paternal family, but that no additional funding could be obtained. However, Blankman continued to be involved in the case. She ultimately contributed approximately 100 hours toward the investigation, and even attended a portion of appellant's trial, where she sat at the defense table. 558 During the evidentiary hearing, appellant's attorneys testified that they were unable to locate Ingram while preparing their case for mitigation. They mailed a letter requesting Ingram's assistance to addresses previously associated with him but received no response. Moore testified that he spoke with Connor but found that she would not provide any information that could be used to contact her son. According to Moore, Connor indicated that Ingram would not cooperate with their investigation. Regarding Laura Blankman, Moore testified that she had been hired specifically to locate Ingram or any other members of appellant's paternal family. When her efforts proved unsuccessful, Moore and McCarthy determined that she could do nothing further and that there was no remaining need for her services. Ultimately, they concluded that any information pertaining to appellant's paternal family would be of limited use given that appellant had little contact with that side of his family during childhood. We conclude that appellant's attorneys were not deficient within the meaning of Strickland. The record reveals that Moore and McCarthy made strong efforts to locate appellant's paternal family, which included contacting Connor by letter and by telephone, mailing letters to Ingram, and hiring Laura Blankman. The investigation was only discontinued when they determined it would not be beneficial to appellant's defense. Based on the information gathered from Connor and Blankman, we find that this decision to limit the investigation was an entirely reasonable professional judgment. See Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. Further, we find that the failure to call these witnesses does not satisfy the Strickland requirement of prejudice. With regard to the absence of Reece Ingram and Nettie Connor, the circuit court explained: The only additional information that these witnesses would have provided was that Deborah Roberts, the Defendant's mother, prevented the Defendant from having any contact with his biological father or his paternal family members. However, it is questionable whether the Defendant would have been better off having a relationship with Ingram considering that the evidence showed that Ingram physically abused the Defendant's mother while she was pregnant with him and then went to prison for aggravated assault and burglary. Had this testimony been presented at the penalty phase, it is unlikely that the jury would have given it much weight. With regard to Laura Blankman, much of the testimony she could have presented during the penalty phase was in fact introduced into evidence through the testimony of Deborah Roberts. Specifically, Roberts testified that she was physically abused by appellant's father while pregnant and that appellant was abused by her later boyfriend. The absence of Ingram, Connor, and Blankman as witnesses does not undermine our confidence in the outcome of the proceedings. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. c. Failure to Integrate Social and Medical Evidence We next address appellant's claim that trial counsel was ineffective for failing to call an additional mental health expert who could relate evidence of appellant's religious conversion to the mental health testimony presented by other experts. Appellant relies primarily on the testimony of Dr. Henry Dee, who was admitted as an expert in the field of forensic psychology and neuropsychology at the postconviction evidentiary hearing. 559 Dr. Dee reviewed the reports and testimony of the medical experts who testified during the penalty phase, as well as other documents relating to appellant's crime and conviction. Dr. Dee testified that based on his own testing, he believed appellant suffered from frontal lobe damage. He also interviewed appellant and his relatives and learned that appellant had moved frequently as a child. Dr. Dee testified that this would have been particularly difficult for a child with Asperger's Syndrome and ADHD, and would have impaired appellant's ability to develop social skills as a child. He also testified that individuals with appellant's conditions have difficulty expressing remorse because they lack empathetic understanding of others. He noted that in letters written following appellant's religious conversion, appellant had frequently expressed remorse for his crimes. We find that the absence of this testimony did not prejudice appellant's case under Strickland. Similar testimony was presented by other expert witnesses during the penalty phase. Dr. Wu testified regarding appellant's frontal lobe damage, and Dr. Riebsame and Dr. Prichard both explained how appellant's ADHD and Asperger's Syndrome would have affected his behavior at the time of the offenses. Appellant's mother testified regarding his difficult childhood. Further, the three mitigating factors to which Dr. Dee testified extreme mental or emotional disturbance, inability to conform conduct to the requirements of the law, and the defendant's agewere all considered by the trial court in its sentencing order. Dr. Dee's testimony that appellant expressed remorse in his letters was at least partially considered when the trial court weighed the nonstatutory mitigator that "the defendant accepted responsibility by pleading guilty." Schoenwetter, 931 So.2d at 865 n. 4. In light of these considerations, we find that appellant has failed to demonstrate prejudice such that our confidence in the outcome of the proceedings is undermined. See Valle, 778 So.2d at 965-66; see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, we reject appellant's claim of ineffectiveness on this issue. 4. Deficiency in Presenting Expert Witnesses Fourth, appellant asserts that trial counsel was deficient for presenting unprepared and inconsistent expert witnesses. Appellant first argues that his attorneys rendered ineffective assistance by calling expert witnesses, Dr. Prichard and Dr. Riebsame, who testified to conflicting mitigating circumstances. Second, appellant claims his attorneys were deficient for failing to provide these experts with copies of appellant's videotaped police interview. We find both claims to be without merit. We first find that the expert testimony was complementary rather than conflicting. Dr. Riebsame testified that appellant, based on his PET scan, Asperger's Syndrome, and the circumstances of the offense, was under an extreme mental or emotional disturbance at the time of the offense. Dr. Prichard, in her testimony, explained that appellant, due to his Asperger's Syndrome, was inflexible in his ability to act on options and select available alternatives once he had begun a course of action. She expressed her opinion that appellant's capacity to conform his conduct to the requirements of law was substantially impaired. With regard to the deficient performance prong of appellant's Strickland claim, it was not unreasonable for the trial attorneys to have concluded that the testimony of two experts would be more beneficial than one. With regard to the prejudice prong, the experts did not contradict each other. Rather, they each testified 560 to a separate statutory mitigating factor based on the effects of Asperger's Syndrome and ADHD. Because the trial court in fact considered and weighed both of these factors as mitigation, see Schoenwetter, 931 So.2d at 865, the experts' testimony seems to have helped rather than harmed the defense. Second, appellant's attorneys were not deficient for failing to provide Dr. Riebsame and Dr. Prichard with copies of the videotaped police interview, nor do we find that our confidence in the outcome of the proceedings is undermined by this oversight. Both experts testified extensively regarding their professional qualifications, both had access to a wide range of personal materials relating to appellant's background, and both conducted interviews and psychological testing with appellant himself. In light of this testimony, it is unlikely that the jury would have concluded the experts were unprepared because they had not viewed a videotape of the defendant's initial confession. Further, Dr. Riebsame was recalled after being given the opportunity to view the video and testified that it had no impact on his initial testimony. Dr. Prichard admitted that she had not viewed the tape, but was then asked whether certain behaviors would indicate Asperger's Syndrome. She responded that they would. This exchange took place after the jury had already viewed the tape themselves. Later, on redirect examination, Dr. Prichard stated that she had read the interrogating officers' accounts of appellant's confession. She then testified that the substance of his confession did not change her opinion as to how appellant's mental impairments would have affected his actions at the time of the crime. 5. Deficient Closing Argument Finally, appellant argues that during closing argument, his trial counsel failed to stress the importance of appellant's lack of impulse control, instead focusing on appellant's preoccupation with Satanism and sexuality. Appellant asserts that counsel should have relied more heavily on the testimony of Dr. Wu concerning the results of appellant's PET scan. He argues that this deficiency deprived the jury of the understanding that his lack of impulse control was related to frontal lobe damage. Appellant argues that emphasizing this information in closing would have provided greater support for the two statutory mental health mitigating circumstances weighed by the jury. After reviewing the record, we find that the appellant's characterization of his counsel's closing statement is inaccurate. The closing argument for the defense was delivered by George McCarthy, who in fact argued that appellant's lack of impulse control and his inability to view options and reassess his course of conduct was what led him to commit the crime. McCarthy discussed the testimony of Dr. Wu and the results of the PET scan. He informed the jury that the PET scan provided physical evidence of appellant's neurological disorders and requested that the jury give this evidence great weight as a mitigating factor. After discussing appellant's obsessions with sex and video games, during which he described the testimony of appellant's friends and family, McCarthy again tied the evidence to appellant's diagnosis of Asperger's Syndrome and lack of impulse control. Therefore, in contradiction to appellant's argument here, it is clear that trial counsel did not fail to discuss appellant's mental health mitigation during the closing argument. Appellant's claim of deficiency on these grounds is therefore rejected. D. Roper v. Simmons Next, appellant raises several claims of error based on the decision of the 561 United States Supreme Court in Roper v. Simmons. First, he argues that in light of the evolving standards of decency relied on by the Court in Roper, his execution would violate the Eighth and Fourteenth Amendments to the United States Constitution. Second, he argues that based on Roper and this Court's decision in Urbin v. State, 714 So.2d 411, 418 (Fla.1998) (explaining that the age-related statutory mitigator becomes weightier the closer the defendant is to the age where the death penalty is constitutionally barred), the trial court erred in not affording more weight to his age-related statutory mitigating circumstance. Third, appellant argues that death would be a disproportionate punishment based on his age, immaturity, mental defects, and related mitigating circumstances. With regard to appellant's argument that his death sentence is unconstitutional under Roper, we have consistently rejected such claims in cases where the defendant was not below eighteen years of age at the time of the criminal offense. We held in Hill v. State, 921 So.2d 579, 584 (2006), that "Roper only prohibits the execution of those defendants whose chronological age is below eighteen." See also Kearse v. State, 969 So.2d 976, 992 (Fla.2007) (denying relief based on Roper where appellant was eighteen years and three months old at the time of the offense and suffered from low-level intellectual functioning and mental and emotional impairments). In this case, appellant's age was eighteen years and nine months at the time of the offense. Therefore, Roper does not render his sentence of death unconstitutional. Appellant also argues that the trial court should have assigned more than "little weight" to his age-related mitigating circumstance based on Roper. We find this claim to be procedurally barred. This Court has held that "[p]roceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue. Likewise, issues that could have been raised on direct appeal, but were not, are not cognizable through collateral attack." Torres-Arboleda v. Dugger, 636 So.2d 1321, 1323 (Fla.1994) (citation omitted). In appellant's direct appeal, we considered the weight assigned to the statutory and nonstatutory mitigating circumstances: The defendant ... takes issue with the weight that was given to the four statutory mitigating circumstances, which were given little weight, and with the weight given to two of the nonstatutory mitigating circumstances. Although Schoenwetter maintains these mitigating factors were not accorded the proper weight, he has failed to even argue, much less demonstrate, why the weight given by the trial judge was not appropriate under the facts of this case. The weight given to these mitigators lies within the discretion of the trial court, and there has been no showing that the trial court abused its discretion. Therefore, we find no error in the trial court's consideration of these mitigating factors. Schoenwetter, 931 So.2d at 875 (footnote omitted). As to appellant's specific argument that Roper dictates a different result, Roper was decided well before appellant's direct appeal was heard by this Court. Appellant had the opportunity to raise these arguments but failed to do so. Thus, the issue is not cognizable through collateral attack. See Torres-Arboleda, 636 So.2d at 1323. Third, appellant argues that this Court should reweigh the aggravating and mitigating circumstances surrounding his death sentence in light of the United States Supreme Court's decision in Roper. We addressed the proportionality of appellant's 562 sentence on direct appeal and determined that death was a proportionate punishment in light of the totality of the circumstances of the offense, and in light of the circumstances of similar cases in which death sentences have been imposed. See Schoenwetter, 931 So.2d at 875-76. Again, because this issue was raised and decided on direct appeal, appellant is procedurally barred from raising the issue here. See Torres-Arboleda, 636 So.2d at 1323. E. Cumulative Error In his last claim under Rule 3.851, appellant argues that the cumulative effect of the errors asserted above require this Court to vacate his sentence. Claims of cumulative error do not warrant relief where each individual claim of error is "either meritless, procedurally barred, or [does] not meet the Strickland standard for ineffective assistance of counsel." Israel v. State, 985 So.2d 510, 520 (Fla.2008); see Bradley v. State, 33 So.3d 664 (Fla. 2010); Reese, 14 So.3d at 920; Parker v. State, 904 So.2d 370, 380 (Fla.2005). Because we find that each individual claim of error fails on at least one of these three grounds, we reject the claim of cumulative error. III. PETITION FOR WRIT OF HABEAS CORPUS A. Roper v. Simmons and Atkins v. Virginia Finally, we review the two claims raised in appellant's petition for writ of habeas corpus. As the first of his claims, appellant argues that his sentence of death is unconstitutional due to evolving standards of decency cited by the United States Supreme Court in Roper v. Simmons and Atkins v. Virginia. This Court has held that "[h]abeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised on appeal or in other postconviction motions." Mills v. Dugger, 559 So.2d 578, 579 (Fla.1990). In Mills, we rejected the petitioner's habeas claims, noting that most had been raised either on direct appeal or in the petitioner's postconviction motion. See id. In this case, appellant has already raised Roper in his rule 3.851 motion. Because every argument raised in this portion of appellant's habeas petition either could have been or in fact was raised in his motion filed pursuant to rule 3.851, this claim is rejected as procedurally barred. Additionally, even if this claim were not barred for procedural reasons, appellant would not be entitled to relief on the merits under either Roper or Atkins. As explained above, Roper only prohibits the execution of defendants whose chronological age was below eighteen at the time of their capital offense. See Reese, 14 So.3d at 920. Because appellant was eighteen years and nine months of age at the time of his offense, Roper does not render his death sentence unconstitutional. Likewise, appellant is not entitled to relief under Atkins. In that case, the United States Supreme Court held that it is unconstitutional to execute an individual who suffers from mental retardation. See Atkins, 536 U.S. at 321, 122 S.Ct. 2242. Under Florida law, mental retardation is defined as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." Jones v. State, 966 So.2d 319, 326 (Fla. 2007) (quoting § 921.137(1), Fla. Stat. (2005)); see also Hurst v. State, 18 So.3d 975, 1008 n. 9 (Fla.2009). To assert a valid claim under Atkins, a defendant must establish that he or she has an IQ of 70 or below. Nixon v. State, 2 So.3d 137, 142 563 (Fla.2009); Jones, 966 So.2d at 329; Zack v. State, 911 So.2d 1190, 1201 (Fla.2005). We have held on several occasions that other mental defects are not entitled to the same consideration as mental retardation. See, e.g., Reese, 14 So.3d at 920 (rejecting Atkins claim where postconviction testimony indicated that the defendant was under a "severe emotional disturbance" at the time of the offense); Connor v. State, 979 So.2d 852, 867 (Fla.2007) (rejecting claim where the defendant suffered from mental and psychological disorders such as organic brain damage, frontal lobe damage, micrographia, and stuttering, on grounds that these conditions were different from mental retardation); Lawrence v. State, 969 So.2d 294, 300 n. 9 (Fla.2007) (declining to extend Atkins to the mentally ill). Here, appellant has made no assertion that he suffers from mental retardation. Instead, his claim is based on diagnoses of Asperger's Syndrome, ADHD, and frontal lobe damage. While these conditions may be considered as mitigating circumstances at sentencingand, indeed, were considered as mitigation by the trial courtmere mental illness does not serve as a bar to execution under Atkins. See Diaz v. State, 945 So.2d 1136, 1152 (Fla.2006). Further, the evidence presented during the penalty phase and postconviction proceedings indicate that appellant's IQ is significantly higher than 70. The trial court noted in its sentencing order that the experts who testified at the penalty phase had agreed that appellant's IQ was approximately 130. Dr. Dee, appellant's postconviction mental health expert, testified at the evidentiary hearing that appellant had received a score of 123 on a more recent IQ test. B. Ineffective Assistance of Appellate Counsel Pursuant to appellant's second claim, we review whether his appellate counsel was constitutionally deficient under Strickland. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with Strickland, to grant habeas relief based on ineffective assistance of appellate counsel this Court must determine, first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, "[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based." Freeman, 761 So.2d at 1069. Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). "If a legal issue `would in all probability have been found to be without merit' had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective." Id. (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). Here, it is argued that appellate counsel was deficient for failing to properly present the issue of a conflict between appellant and his trial counsel. We find *564 this claim to be without merit. Due to conflicts with their client, trial counsel filed a motion to withdraw during the penalty phase. The trial court denied the motion and the issue was raised on direct appeal. We concluded: The trial court properly denied the motion to withdraw. This record does not demonstrate that the attorney-client relationship had deteriorated to the point where counsel could no longer give effective aid in the fair representation of the defense. See Wilson v. State, 753 So.2d 683, 688 (Fla. 3d DCA 2000). General loss of confidence or trust standing alone will not support withdrawal of counsel. See Johnston v. State, 497 So.2d 863, 868 (Fla.1986). Schoenwetter, 931 So.2d at 870. We find that appellant has failed to demonstrate any "specific, serious omission" on the part of appellate counsel. Freeman, 761 So.2d at 1069. Although appellant raises testimony adduced at the postconviction evidentiary hearing demonstrating friction between himself and his trial attorneys, none differs in substance from the evidence presented on direct appeal.[11] Accordingly, we hold that appellate counsel did not render ineffective assistance. IV. CONCLUSION For the reasons discussed above, we affirm the circuit court's denial of appellant's motion for postconviction relief. We also deny appellant's petition for writ of habeas corpus. It is so ordered. CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. NOTES [1] Spencer v. State, 615 So.2d 688 (Fla.1993). [2] The "extreme mental or emotional disturbance" circumstance was based on evidence that Schoenwetter suffers from Asperger's Syndrome and Attention Deficit Hyperactivity Disorder (ADHD). Although the trial court found that this circumstance had been proven by the greater weight of the evidence, it noted that when the defendant was evaluated for competency during the penalty phase, the two court-appointed psychiatrists who conducted the evaluation each testified that symptoms of Asperger's Syndrome were not present or recognizable during the interviews they conducted with him. The trial court subsequently assigned little weight to this factor, finding that Schoenwetter's alleged impairments did not explain the series of conscious decisions he made in committing the crimes, that his actions were intentional and deliberate, and not impulsive as suggested by the defense experts, and that they did not describe an individual whose ability to see options was impaired. [3] This factor was also based on testimony regarding the diagnosis of Asperger's Syndrome and ADHD. The trial court explained its decision to assign little weight to this factor by noting that "the Defendant's course of conduct was not consistent with the symptoms of Asperger's Syndrome. Furthermore, the Defendant managed to avoid breaking the law up until this point in his life, despite the fact that Asperger's Syndrome is a lifelong condition." [4] The court explained that although one defense expert, Dr. William Riebsame, had testified to this factor, Schoenwetter appeared to be "mature beyond his years." This determination was based on the agreement of all the experts who testified that Schoenwetter was very intelligent, with an IQ of approximately 130, as well as from the court's observations of his behavior. [5] In Claim I of his motion to vacate, appellant argued that he had received ineffective assistance of counsel during the pretrial phase. This claim was based on (1) counsel's failure to object to the introduction into evidence of Schoenwetter's letter confessing his guilt to the court; (2) counsel's failure to object on Fifth Amendment grounds to the admission of statements made by Schoenwetter at the February 26 status hearing and March 5 plea proceeding; (3) counsel's failure to file a motion to suppress the letter under Florida Rule of Criminal Procedure 3.172 as statements made during an offer to plead guilty; and (4) counsel's failure to file a motion to suppress statements made in the letter and at the February 26 status hearing "on additional grounds." In Claim II, appellant argued that Florida's lethal injection procedure violates the constitutional prohibition of cruel and unusual punishment. In Claim III, appellant argued that because his plea of guilty was not knowing, intelligent, and voluntary, trial counsel was constitutionally defective for failing to move to withdraw the plea. (Claim III was voluntarily withdrawn before the circuit court ruled on the motion.) In Claim IV, appellant argued that he received ineffective assistance of counsel during the penalty phase. He claimed that his attorneys had erred by (1) introducing evidence of child pornography, pedophilia, and Satanism into the proceedings; (2) failing to object to the State's remarks in opening argument relating to appellant's sexual interest in Theresa and Virginia Friskey; (3) failing to present all available mitigation evidence, specifically by (a) failing to present evidence of appellant's religious conversion and social background, (b) failing to call Laura Blankman, a private investigator hired by the defense for the purposes of developing mitigation evidence, and (c) failing to call experts who would have integrated appellant's social history with medical evidence that had been presented regarding appellant's mental health; (4) calling experts who gave conflicting testimony, failing to provide those experts with a video of appellant's police interrogation, and failing to discuss important points from their testimony during closing argument. In Claim V, appellant argued that his sentence of death is unconstitutional under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Finally, under Claim VI, appellant argued that the cumulative effect of all the claims in his motion entitled him to relief. [6] This rule was previously designated as Florida Rule of Criminal Procedure 3.172(h), but became rule 3.172(i) following an amendment to the statute. The text of the rule was unaltered by the amendment. See In re Amendments to Fla. Rules of Crim. Procedure 3.170 & 3.172, 938 So.2d 978 (Fla.2006). [7] We have defined "custody" as the restriction of a suspect's freedom of movement to a degree associated with formal arrest. See Ramirez v. State, 739 So.2d 568, 573 (Fla.1999). [8] Appellant also cites the failed execution of Ohio inmate Romell Broom, asserting that such an occurrence could "easily" happen in this case. However, there is no discussion of the specific procedures being challenged and no claim that there has been any change to Florida's lethal injection protocols that would require this Court to abandon its existing precedent. As we explained in Lightbourne, a defendant's "speculative list of horribles" is insufficient to establish a challenge to a state's death penalty protocols under the Eighth Amendment. See Lightbourne, 969 So.2d at 349. [9] After Dr. Riebsame's testimony, defense counsel called Commander Bobby Mutter of the Titusville Police Department as a partial rebuttal witness to counter the assertion that appellant was interested in child pornography, as opposed to adult pornography. Commander Mutter testified concerning an incident in which appellant's mother brought to the police a CD-ROM containing what she believed might be child pornography that her son had downloaded from the Internet. Commander Mutter informed the jury that he and another investigator reviewed the images, but determined that the women depicted therein were all eighteen years of age or older. No further action was taken by the police on the matter. [10] In addition to Victor Dodzweit, appellant presented four witnesses familiar with his religious conversionDavid Musalo, Richard Dean, Thomas Wood, and Frederick Shelor at the postconviction evidentiary hearing. Musalo, Dean, and Wood each testified that they were volunteers or employees of the prison ministry at the time of appellant's incarceration. Shelor was a fellow inmate, also involved in the prison ministry. All four testified that they were never contacted or interviewed by appellant's defense counsel. When asked about these individuals during his own postconviction testimony, Randall Moore responded that he was familiar with their names, but could not recall their precise roles in the defense investigation. [11] The only new evidence presented is taken from the postconviction testimony of Randall Moore. Moore was asked whether appellant pled guilty because he felt that he should be punished for his crime. Moore responded: "I don't know what his thinking was." Reviewing the transcript, this statement appears to be an expression of frustration rather than an admission that he was unable to give effective counsel to the defendant. Laura Blankman also testified that appellant's relationship with his attorneys was strained. As we explained on direct appeal, evidence of this kind is insufficient to support withdrawal of counsel. See Schoenwetter, 931 So.2d at 870 (citing Johnston v. State, 497 So.2d 863, 868 (Fla.1986)).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536261/	46 So. 3d 348 (2008) FLAGSTAR BANK, FSB, Appellant v. Calvin and Jamie DANOS, Individually and as Guardians and next of friends of Laura Matherne, a minor, Gavin Danos, a minor and Marissa Danos, a minor, Appellees. No. 2007-CA-00418-COA. Court of Appeals of Mississippi. December 2, 2008. Rehearing Denied March 31, 2009. 350 Camille Henick Evans, Jackson, Christopher Paul Palmer, Brandon, Craig Lawson Slay, attorneys for appellant. Catherine H. Jacobs, Ocean Springs, Matthew G. Mestayer, Biloxi, attorneys for appellees. EN BANC. KING, C.J., for the Court. ¶ 1. While the genesis of this appeal is the sale of an allegedly defective manufactured home, its resolution requires an examination of our law regarding judgments by default. Flagstar Bank, FSB, (Flagstar) is the last of two defendants in a suit filed by the Danos family who purchased a manufactured home only to discover after the sale that the structure had preexisting water damage, which they claim led to mold growth that harmed them. Flagstar is a Michigan-based banking and mortgage lending corporation that held the Danoses' mortgage for a short period. Flagstar is alleged by the Danoses to be vicariously liable because its alleged agent, an employee of a Lamar County mortgage company, submitted false and erroneous information to his employer and to Allstate Property and Casualty Insurance Company (Allstate). The Danoses claim that without the erroneous information being given to these parties, their loan would never have closed due to the inability of the property to qualify either for a loan or for insurance. ¶ 2. The trial judge entered a $500,000 judgment by default against Flagstar and against Michael H. Burks, the seller of the trailer home property, after he determined that neither party had ever appeared nor answered the complaint. Twelve days after the default judgment was entered, an attorney filed an appearance as counsel for Flagstar and timely filed a motion to set aside the default judgment. The motion claimed that the Danoses' service of process on Flagstar was defective; therefore, the default judgment based upon improper service was void thereby giving Flagstar good cause to have the default judgment set aside. Further, Flagstar argued that it had a colorable defense to the merits of the Danoses' claim in that their allegations against Flagstar rested solely upon vicarious liability through the actions of a defendant who was not Flagstar's employee and more importantly had been dismissed from the lawsuit. There was no direct allegation against Flagstar in the complaint. ¶ 3. The trial court denied the motion, and this appeal ensued. Flagstar raises three issues on appeal, which we quote verbatim: I. Did the trial court err when it entered a default judgment against Flagstar Bank, FSB for not appearing at docket call or trial when no notice of trial setting was sent by the Circuit Clerk to Flagstar, and even though the plaintiffs had not sought entry of judgment by default? II. Did the trial court abuse its discretion when it refused to set aside the default judgment and judgment against Flagstar Bank, FSB, and did it abuse its discretion in not considering the three factors for setting aside a default judgment? III. Did the trial court abuse its discretion in not setting aside the $500,000.00 damages award against Flagstar Bank, FSB or not apportioning damages as to Flagstar? ¶ 4. Finding error, we reverse the decision of the trial court and render as to the judgment against Flagstar. FACTS ¶ 5. In March 2001, Calvin J. Danos and his wife, Jamie A. Danos, began the process 351 to purchase from Burks a manufactured home and about eight acres of land located at 828 Pine Grove Road in Picayune, Mississippi. They used Angela Miller of Coldwell Banker Country Properties (Coldwell Banker) in Picayune as their real estate agent. In an effort to obtain financing, the Danoses contacted Chris Shirley, a mortgage broker with Amerigo Mortgage, Inc., (Amerigo) in Gulfport, who began the process of obtaining financing by getting an appraisal and insurance on the property. After the appraisal was done, the Danoses contacted Country Living Insurance, Inc., (Country Living) in Poplarville, which issued a homeowners' policy to them through Allstate. ¶ 6. The Danoses closed on the manufactured home and acreage on May 9, 2001, for a price of $65,000 and began occupying the property the first week of June 2001. Amerigo made the original loan and then shortly thereafter sold it to Flagstar pursuant to an agreement between Flagstar and Amerigo for Flagstar to purchase certain mortgages originated by Amerigo. Flagstar then apparently sold the mortgage to Chase Manhattan Mortgage, Inc., (Chase Manhattan) on November 16, 2001. In early June 2001, heavy rains associated with Hurricane Allison caused the Danoses' roof to leak. They investigated and found that the roof of the trailer had no ridge cap on the center of the roof and that visqueen which had been put on the roof was directing water down into the walls of the mobile home. As they attempted repairs, they found more and more rotted wood under the paneling. Odors from the rotting wood became apparent, and in September 2001, the family started experiencing respiratory problems. Because the conditions continued, the Danoses hired an inspector who determined that the mobile home suffered from mildew and mold. To alleviate their health problems, the family moved into a nearby workshop on the property that was not insulated and had insufficient lighting. Calvin testified that the time they spent in the workshop damaged the family relationship due to the living conditions. Also, Jamie testified that the family suffered allergic reactions which caused them to incur $1,500 in medical bills. The Danoses filed a claim with Allstate for the damage, which Allstate denied under the "wear and tear deterioration; molds" provision of the homeowners policy. ¶ 7. On March 22, 2004, Calvin and Jamie, individually and as guardians and next friends of their children, Laura Matherne, Gavin Danos, and Marissa Danos, all minors, filed suit in the Circuit Court of Lamar County against several defendants. Originally the defendants were Allstate, which wrote a policy of insurance on the trailer home; Coldwell Banker, a Picayune, Mississippi real estate company and Miller, a real estate broker employed by Coldwell Banker in Picayune; Country Living, an insurance agency located in Poplarville, which procured the Allstate policy for the Danoses; Amerigo, a mortgage brokering agency in Lamar County, and Shirley, an employee of Amerigo based in Pass Christian, Mississippi; Burks, a resident of Picayune, who sold the mobile home to the Danoses that is the subject of the litigation; and Flagstar, a lending institution incorporated in the state of Michigan, which held the mortgage on the property and mobile home for a short while. Venue was placed by the plaintiff in Lamar County as it is the principal place of business of Amerigo, even though the property involved and all other plaintiffs and defendants were either nonresident corporations or residents of Pearl River County. ¶ 8. Four of the defendants answered the complaint Allstate; County Living; real estate broker Coldwell Banker and its 352 employee, Miller; and Amerigo, the mortgage broker/lender and its employee, Shirley. The same defendants who answered the complaint also engaged in discovery with the plaintiff for about two years. ¶ 9. Each of these four defendants were dismissed from the suit. The first to go were defendants Miller and Coldwell Banker, having been dismissed from the action on June 7, 2005, as result of a settlement. Defendant Country Living was dismissed from the action pursuant to an agreement of the parties filed on December 6, 2005. Defendants Amerigo and its employee, Shirley, were granted summary judgment on September 12, 2006, with the Danoses agreeing that they "have no grounds to oppose the motion." The Danoses claimed that Allstate was negligent for not properly inspecting the property before issuing the insurance policy. Allstate moved for summary judgment, which was granted on September 13, 2006. The court found that there was no contractual provision requiring Allstate to inspect the home on behalf of the plaintiffs, nor did the company have a duty to advise them of the home's condition. Allstate admitted that it did not conduct a thorough inspection of the premises before issuing the policy. However, the court said that any inspection Allstate would have made would have been for the benefit of Allstate and not for the Danoses. The Danoses admitted that they had not conducted a thorough inspection of the premises before they bought it. Also, the court found that the alleged negligent act, Allstate's failure to inspect the property before issuing the policy, was outside the circle of foreseeability necessary to sustain a tort action. "While obtaining insurance was a prerequisite to obtaining financing, there is no evidence that the plaintiff would not have consummated the purchase with another insurer, or sought alternative financing," the trial court said. ¶ 10. Only Burks, who sold the trailer to the Danoses, and Flagstar remained as defendants. Burks was personally served with process on April 15, 2004, by a process server. Burks never answered the complaint nor took part in discovery. On September 11, 2006, the Danoses filed an application for entry of a default judgment against Burks for his failure to plead or answer. Attached to the application was the affidavit of Catherine J. Jacobs, the attorney for the Danoses, who stated that Burks was duly served with a copy of the summons and complaint on April 15, 2004, and that more than thirty days had elapsed since Burks was served; Burks had failed to answer or otherwise defend the action; and the plaintiffs, therefore, were entitled to an entry of judgment by default against Burks. The clerk's entry of default was entered against Burks on the same day, September 11, 2006. A default judgment was entered against Burks by the trial court in the same judgment as against Flagstar. ¶ 11. Flagstar also did not file an answer. Flagstar was a nonresident corporation with no registered agent in the state. The Danoses attempted service by certified mail with restricted delivery to Albert Gladner the registered agent for Flagstar, at a post office box in Troy, Michigan. The restricted delivery was signed for, returned, and filed with the Lamar County Circuit Court on July 13, 2004. The signature on the return receipt is illegible. Attached to a subsequent pleading was a letter from Robert K. Fleming, the operations coordinator for Flagstar's legal department in Troy, Michigan. The letter was addressed to Jacobs, counsel for the Danoses, at her Ocean Springs, Mississippi address. The letter read as follows: "Flagstar Bank, FSB (Flagstar) is in receipt of the summons regarding the above referenced matter. 353 The loan account was sold on November 16, 2001 to Chase Manhattan. You may contact them at the following address and phone number listed below." An address for Chase Manhattan Mortgage, Inc., followed. The plaintiffs never filed an application for entry of default judgment against Flagstar for failing to answer the complaint; thus, there was no clerk's entry of default judgment against Flagstar. However, on September 21, 2006, the trial judge entered a default judgment against Flagstar. The judgment read as follows: DEFAULT JUDGMENT THIS CAUSE having come before the Court for trial on the merits, and the clerk having called the docket, and on three different occasions called the Defendant, Flagstar Bank FSB, and said Defendant failed to answer or appear, it is therefore ORDERED and ADJUDGED that Default Judgment be and is hereby entered against the Defendant, Flagstar Bank FSB and in favor of the Plaintiffs pursuant to Rule 55(b) of the Mississippi Rules of Civil Procedure. It is further ORDERED and ADJUDGED that the hearing on damages be and is hereby set over to September 29, 2006 at 11:00 A.M. at the Lamar County Courthouse in Purvis, Mississippi. SO ORDERED and ADJUDGED this the 21 day of September, 2006. The order was then signed by the trial judge and filed on September 25, 2006. The hearing on damages was held on September 29, 2006, with Calvin and Jamie testifying and various documents introduced. Neither Flagstar nor Burks was present or had counsel present. After the hearing, the trial judge entered a judgment that same day in the amount of $500,000 against Flagstar and Burks, jointly and severally. ¶ 12. On October 11, 2006, attorney Christopher P. Palmer of Brandon filed a notice of entry of appearance as counsel for Flagstar, and on November 15, 2006, Palmer filed a motion to set aside the default judgment and for additional relief. Flagstar claimed that the Danoses' service on it as a nonresident corporation with no Mississippi registered agent was flawed; thus, good cause existed to set aside the judgment. Flagstar argued that the Danoses attempted service on Flagstar by mailing a certified letter, restricted delivery requested, to Gladner, the registered agent for Flagstar at a post office box in Troy, Michigan. The chief legal counsel for Flagstar submitted an affidavit stating that the registered agent for service of process upon Flagstar was Gladner. Flagstar's attorney swore that the return receipt attached to the summons did not bear the signature of Gladner, but instead it was signed by Romeo Pena, a mail clerk whose job it was to deliver the mail and who was not an authorized agent for service of process. Flagstar's attorney stated that he was familiar with Pena's signature. Flagstar's attorney said that the return receipt was marked "Restricted Delivery" for Gladner, and Pena had no authority to sign the receipt on Gladner's behalf. Flagstar said that because there was not a valid service of process upon it, the judgment of the Lamar County Circuit Court was void. Further, Flagstar argued that the Danoses did not follow the procedures of Rule 55 in obtaining its default judgment. Flagstar said that pursuant to Rule 55(a) of the Mississippi Rules of Civil Procedure, a plaintiff must apply to the clerk for an entry of default and support that application by affidavit or otherwise. Because there was no application for the default judgment, there also was no entry of default made by the clerk of court as required by Rule 55(a). Thus, Flagstar 354 argued that the trial court's entry of default was faulty because it did not follow the mandatory requirements of Rule 55. Further, Flagstar argued that the default judgment should be set aside because it had a colorable defense to the merits of the Danoses' complaint. Flagstar is mentioned in the complaint only twice, once in a paragraph stating who the registered agent is for process and another in three paragraphs that attempt to set out the Danoses' allegations against Flagstar. Those three paragraphs read as follows: 45. At all times, hereto, the defendant Angela Miller was acting as agent and employee of defendant Coldwell Banker as well as the seller, Michael Burks. Defendant Chris Shirley, at all material times hereto, was acting as agent and employee of Amerigo Mortgage and Flagstar Bank FSB. While acting as agents for Coldwell Banker, Amerigo Mortgage and Flagstar Bank FSB, defendants Miller and Shirley submitted false and erroneous information to their principals, as well as Allstate Property and Casualty. 46. But for the submission of said false and material information, this real estate transaction would not have closed due to the inability of the property to qualify either for a loan or for insurance. 47. As a result of said misrepresentations, whether intentional or erroneous, the plaintiffs have been caused to suffer property damage as well as personal harm, as is more fully set forth hereinafter. ¶ 13. Flagstar argued that there were no allegations against it other than those founded upon vicarious liability a claim that Flagstar's culpability rests on the actions of defendant Shirley. Because defendant Shirley had been dismissed from the action on summary judgment in September 2006, Flagstar argued that the doctrine of res judicata required that the default judgment be set aside. Flagstar said that the essence of summary judgment is that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Flagstar asserted the grant of summary judgment to Shirley found that Shirley had committed no act that would render him liable to the plaintiffs. Therefore, since Flagstar's alleged liability rests upon Shirley's liability, Flagstar could not be held liable to the Danoses as a matter of law. Further, Flagstar pointed out that there was no agency or employment relationship among Amerigo, Shirley, or any of the other defendants and Flagstar. Finally, Flagstar argued that the Danoses would suffer no prejudice if the default judgment were set aside. ¶ 14. The trial court denied the motion to set aside and in a memorandum opinion explained that the court entered the default judgment because "the defendant failed to appear for a trial on the merits, and that on three different docket calls, the defendant had failed to appear, or make any announcements. After entry of the judgment, and consistent with M.R.C.P. 55, this Court held a hearing on damages, where the defendant also failed to appear." The court made a scant finding regarding Flagstar's claim of lack of jurisdiction because of inadequate service of process, saying only that: "While the defendant raises numerous other issues relating to service and prejudice, this Court deems them to be without merit." The trial court denied Flagstar's argument that the record is void as to any entry of default, ruling that neither an application for default nor a clerk's entry of fault is required. The court said, "M.R.C.P. 55(b) expressly allows for a default to be taken if a party fails to appear at the trial. Here, the record reflects, that the defendant 355 failed to appear at three docket calls, trial and at writ of inquiry on damages." The trial court rejected Flagstar's contention that default judgments are not favored and should be set aside when certain factors are shown. The trial court's order stated: "[T]his Court does not adopt the position advocated by the defendant in regards to liberally setting aside default judgments. Setting aside defaults as envisioned by the plaintiff [sic] would become merely a perfunctory request. Moreover, failure to uphold default judgments would not foster the important judicial policy of finality of judgment." The trial court did not address the issue of whether Flagstar had a colorable defense to the action. It is from this order that Flagstar appeals. ANALYSIS ¶ 15. We find Issue I raised by Flagstar dispositive; therefore, we will limit our analysis only to that issue. ¶ 16. "Default judgments are not favored, and trial judges have traditionally been lenient when it comes to relieving a party of the burden of a default judgment." King v. Sigrest, 641 So. 2d 1158, 1161 (Miss.1994) (quoting Bell v. City of Bay St. Louis, 467 So. 2d 657, 661 (Miss. 1985)). Conflicting principles are at play when a trial court is faced with a default judgment. On the one hand the default judgment promotes efficient administration of justice by requiring a responding party to follow the requirements of Rule 55 of the Mississippi Rules of Civil Procedure. The default judgment provides a means to deal with a party against whom affirmative relief is sought who does nothing or very little to respond to the complaint. On the other hand, however, there is a strong desire to decide cases on the merits rather than on procedural violations. Manning v. Lovett, 228 Miss. 191, 195, 87 So. 2d 494, 496 (1956). For this reason, most courts, including our supreme court, disfavor the entry of a default judgment. This is a reflection of the often stated preference for resolving disputes on the merits. "Default is not favored as a way to settle lawsuits. It is the policy of our system of judicial administration to favor disposition of cases on their merits." Wheat v. Eakin, 491 So. 2d 523, 526 (Miss. 1986) (citing Bell, 467 So.2d at 661). ¶ 17. Whether to set aside a default judgment is committed to the sound discretion of the trial court. Lexington Ins. Co. v. Buckley, 925 So. 2d 859, 864(¶ 21) (Miss.Ct.App.2005). However, "this has never meant that the trial judge could do anything he or she wished." King, 641 So.2d at 1162 (quoting Bell, 467 So.2d at 661). "Sound discretion imports a decision by reference to legally valid standards [and] [w]here a trial judge in determining a matter committed to his sound discretion makes his decision by reference to an erroneous view of the law, this Court has authority to take appropriate corrective action on appeal." Id. ¶ 18. A party seeking to set aside a default judgment turns to Rule 55(c) of the Mississippi Rules of Civil Procedure which states: "For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Rule 60(b) provides for relief from judgments for various reasons such as mistakes, fraud, and newly discovered evidence. M.R.C.P. 60(b). ¶ 19. With the law concerning default judgments set out we turn to the pivotal issue of whether the trial court had jurisdiction over Flagstar to enter a judgment against it. Whether the Service of Process on Flagstar Was Effective ¶ 20. A salient requirement of issuing a judgment by default is that the 356 court must have jurisdiction over the party against whom the default judgment is to be taken. As the comment to the Rule 55 states: "Before a default [judgment] can be entered, the court must have jurisdiction over the party against whom the judgment is sought, which also means that he must have been effectively served with process. Arnold v. Miller, 26 Miss. 152 (1853)." M.R.C.P. Rule 55 cmt. Succinctly stated, a court must have jurisdiction obtained by proper service of process in order to enter a default judgment against a party. McCain v. Dauzat, 791 So. 2d 839, 842(¶ 7) (Miss.2001) (citing Arnold, 26 Miss. at 155). "Otherwise, the default judgment is void." Id. If a default judgment is void, then the trial court has no discretion and must set the judgment aside. Sartain v. White, 588 So. 2d 204, 211 (Miss.1991). ¶ 21. Flagstar was a nonresident corporation not doing business in Mississippi. The Danoses attempted service of process by summons issued pursuant to Rule 4(d)(4) of the Mississippi Rules of Civil Procedure by delivering a copy of the summons and complaint to "an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Then the Danoses had Flagstar served pursuant to Rule 4(c)(5) by sending a copy of the summons and the complaint to the person to be served by certified mail, return receipt requested. This subsection of the civil procedure rule further states that service "shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked `Refused.'" M.R.C.P. 4(c)(5). ¶ 22. The basis of Flagstar's argument that the default judgment against it should be set aside is that it was not properly served because the person receiving process by mail, signing the return receipt, and mailing it back to the circuit court was a mail clerk and not "an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process" pursuant to Rule 4(d)(4). In support of its argument, Flagstar submitted the affidavit of its chief legal officer saying that he was familiar with the signature of the mail clerk who signed the return receipt and that it was the mail clerk's signature on the return receipt, not the signature of the registered agent. Matthew Roslin, in his affidavit dated October 31, 2006, stated that he was the chief legal officer for Flagstar and that in April 2004 Flagstar's registered agent for service of process was Gladner. The affidavit states that the return receipt attached to the summons for Flagstar did not bear the signature of the addressee, Gladner. Instead Roslin said that the signature was that of Romeo Pena, a mail clerk at Flagstar, with whose signature Roslin said he was familiar. Roslin said that Pena's job responsibilities were to deliver mail from the mail distribution center to the recipients. Roslin said that Pena was not authorized to accept service of process for Flagstar, nor was he an agent for Gladner. "The Return Receipt is marked `Restricted Delivery' for Mr. Gladner and Romeo Pena had no authority to sign the Return Receipt on Albert Gladner's behalf," the affidavit concluded. ¶ 23. The Lamar County Circuit Clerk could not read the signature on the return as is noted by a July 13, 2004, docket entry that reads: "Summons returned-certified mail as to Flagstar Bank signed for 4-15-04 by ?, filed." As noted in the entry there was a question mark where the clerk places the name of the person returning service. ¶ 24. In the face of this denial of proper service, the Danoses offered no counter-affidavits or other proof regarding the signature 357 of the registered agent or as to its authenticity. Instead, the Danoses filed a "Response to Motion to Set Aside Judgment" and a "Motion to Strike the Affidavit." The Danoses, however, never brought the motion to strike on for hearing as there is no order in the record ruling on the motion. In the motion to set aside judgment, the Danoses said that the signature on the return receipt was "largely illegible and resembled the initials `A.G.'" The only other reference in the motion was that Flagstar sent a letter dated April 26, 2004, to counsel for the plaintiff advising her that Flagstar had sold the Danoses' loan account to Chase Manhattan on November 16, 2001. ¶ 25. Mississippi Rule of Civil Procedure 4(c)(5), which allows out of state service of summons by certified mail, and Rule 4(d)(4), which identifies the person upon whom service must be made if the defendant is a foreign corporation, must be read jointly. Brown v. Bristol-Myers Squibb Co., 2002 WL 34213425 at 3, 2002 U.S. Dist. LEXIS 27445 at 8-12 (S.D.Miss.2002).[1] If service is attempted by certified mail upon a corporation under Rule 4(c)(5), but is delivered to a person not designated to receive process under Rule 4(d)(4), then the process fails. Id. In Rogers v. Hartford Life and Accident Insurance Co., 167 F.3d 933, 940 (5th Cir. 1999), the federal appeals court considered the interrelationship between Rule 4(c)(5) and Rule 4(d). The court said: We begin by examining the plain language of Rule 4(c)(5). See Russell v. State, 231 Miss. 176, [189], 94 So. 2d 916, 921 [1957] (noting that "the meaning of statutes is to be sought and ascertained from their language.") [superceded by statute on other grounds]. The first sentence of the Rule states that "a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested." [M.R.C.P.] 4(c)(5) (emphasis added). The Rule then states that "[w]here the defendant is a natural person, the envelope containing the summons and complaint shall be marked `restricted delivery.'" [M.R.C.P.] 4(c)(5) (emphasis added). The Rule, therefore, distinguishes between the "person" that physically receives service, and the actual "defendant." The two terms are not synonymous. Rogers, 167 F.3d at 940. Thus, a plaintiff, when faced with which procedural rule to follow in serving process pursuant to Rule 4(d), must specifically identify whether the defendant is a "person" and apply the attendant civil procedure rule and/or identify who is the "the actual defendant" and follow the appropriate civil procedure rule. In this case, the Danoses determined that one of the defendants was Flagstar, a foreign corporation not doing business in Mississippi with no registered agent for service of process. Because Flagstar, the actual defendant, was a corporation then the civil procedure rule for serving an out-of-state corporation, Mississippi Rule of Civil Procedure 4(d)(4),[2] was to be followed. 358 The Danoses attempted to follow Rule 4(d)(4) but failed because the authorized agent for service of process was not served. Instead the uncontested evidence shows that service was had upon a mail clerk. We have affirmed the salient rule that procedural rules relating to service of process are to be strictly construed. Kolikas v. Kolikas, 821 So. 2d 874, 878(¶ 16) (Miss.Ct.App.2002) (citing Birindelli v. Egelston, 404 So. 2d 322, 323-24 (Miss. 1981)). ¶ 26. If service is attempted upon an agent, this entails an affirmative showing by the plaintiff that the person served was in fact the agent for service of process before a default judgment is entered. Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.1972). Just because an individual is an employee of a defendant "does not cloak that individual with authority to receive process for the defendant," and the burden of proof is upon the plaintiff to establish that the authority to receive service of process exists between the defendant and the individual served. Brakke v. Rudnick, 409 N.W.2d 326, 330 (N.D.1987); Hanover Modular Homes, 476 S.W.2d at 99, 101. When the return of service in situations other than by personal service is challenged by an affidavit and there are no counter-affidavits, the return itself is not even evidence and, absent evidence from the plaintiff, the affidavit must be taken as true and the purported service of summons quashed. Sullivan v. Bach, 100 Ill. App. 3d 1135, 56 Ill. Dec. 450, 427 N.E.2d 645, 649 (1981) (citing First Fed. Sav. & Loan Ass'n of Chicago v. Brown, 74 Ill. App. 3d 901, 30 Ill. Dec. 538, 393 N.E.2d 574, 578 (1979)). ¶ 27. Applying these general rules to the facts of our case, we find that the Danoses did not make an affirmative showing that the person who signed for the summons was in fact the registered agent for service of process for Flagstar. While Flagstar submitted an affidavit that the person who signed was a mail clerk and not the agent for service of process, the Danoses only said in a pleading that the signature on the return receipt "resembled the initials `A.G.'" The Danoses point to the fact that their attorney received a letter dated April 22, 2004, from Fleming, with the legal department at Flagstar advising her that Flagstar was in receipt of the summons regarding the matter, but that the loan account was sold to another bank on November 16, 2001. However, the Mississippi Supreme Court has long held that "actual knowledge by a defendant of the pendency of a suit against him is immaterial, `unless there has been a legal summons or a legal appearance.'" Brown v. Riley, 580 So. 2d 1234, 1237 (Miss.1991) (quoting McCoy v. Watson, 154 Miss. 307, 315, 122 So. 368, 370 (1929)). Thus, the Danoses may not use the letter as a substitute to a legal summons upon Flagstar. ¶ 28. The Danoses, as plaintiffs, had the burden to establish that the authority to receive service of process existed between Flagstar and the individual who was served. By affidavit, the attorney for Flagstar stated that the person who signed for the process was a mailroom clerk who was not the agent for service of process. The Danoses submitted no counter-affidavits. Therefore, the Flagstar affidavit from the Flagstar attorney Roslin must be taken as true, and the purported service of summons on Flagstar quashed. ¶ 29. The dissent takes the view that service upon Flagstar was complete upon the delivery of the certified mail, quoting in support of its argument the last sentence of Rule 4(c)(5), entitled "Service by Certified Mail on Person Outside 359 State" which reads: "Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked `refused.'" The dissent says that the certified letter was signed for by someone whose signature could not be deciphered and summons was returned. Thus, to the dissent, service was effectuated. However, while quoting in full Rule 4(d)(4), which sets out how a foreign corporation is to be served, the dissent then makes no analysis of how serving a mail clerk can meet the requirements of that rule that service be made on a foreign corporation like Flagstar "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." The Danoses' attempt to serve Flagstar failed when the mailroom clerk signed for the process and the Danoses took no further action to ensure that the person signing the return receipt was "an officer, a managing or general agent, or. . . any other agent authorized by appointment or by law to receive service of process." Even when told by Flagstar in the affidavit of Roslin that Peno, the mail clerk, had signed for the summons and that Peno was not authorized by appointment or by law to receive service of process, the Danoses did nothing. They took no steps to offer a counter-affidavit. We refuse to adopt a corporate "mailbox-type rule" where service upon a foreign corporation is complete upon delivery as evidenced by the return receipt regardless of who signs for the corporation. Process upon a corporation must be directed to one of its agents authorized by it to accept process. As the practice guide in American Jurisprudence 2d states: "Service of process on a corporation will be quashed upon the filing of an uncontradicted affidavit that the person served was not the general manager, officer, or agent of a corporation and had never been authorized to accept service of process on the corporation's behalf." 62B Am.Jur.2d Process, § 241 (2005). ¶ 30. Because the trial court lacked jurisdiction to issue a default judgment, we find that the judgment of the trial court must be reversed and rendered. ¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES. CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND MYERS, P.JJ., AND GRIFFIS, J. IRVING, J., dissenting. ¶ 32. The majority finds that process on Flagstar Bank, FSB (Flagstar) was defective and, on that basis, reverses and renders the default judgment in the amount of $500,000 ordered by the trial court in favor of Calvin and Jamie Danos and their minor children. The majority concludes that process was defective because the mailroom clerk at Flagstar signed for the restricted letter or package (containing the complaint and summons) that was addressed to Albert Gladner, Flagstar's registered agent for service of process. This finding is premised on the contents of an affidavit submitted by Flagstar's chief legal officer as a part of Flagstar's motion to set aside the default judgment that had been rendered against it after it failed to answer the Danoses' complaint. In finding that process was defective because the mailroom clerk signed for the letter addressed to Gladner, the majority, in my opinion, ignores or misconstrues Rules 360 4(d)(4) and 4(c)(5) of the Mississippi Rules of Civil Procedure, which specify to whom and how service of process may be served upon a domestic or foreign corporation. Therefore, I dissent. I would affirm the judgment of the trial court. ¶ 33. I begin with an analysis of the rules quoted above. Rule 4(d)(4) identifies the person to be served and provides that service by a sheriff or process server shall be made as follows: Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Rule 4(c)(5) provides for various methods of service of the summons and complaint including the following: Service by Certified Mail on Person Outside State. In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked "restricted delivery." Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked "Refused." (Second emphasis added). ¶ 34. It is clear from a reading of the plain language of Rule 4(c)(5) that where a defendant is a natural person the envelope must be marked restricted delivery. The defendant in this case, Flagstar, is a corporation, not a natural person. Therefore, Rule 4(c)(5) does not mandate that the envelope containing the summons and complaint sent to Flagstar be marked restricted delivery; however, the rule does not prohibit marking the envelope restricted delivery. When the defendant is a corporation, Rule 4(c)(5) only requires that the summons and complaint be sent by certified mail, return receipt requested. Of course, the summons and complaint must be addressed to the corporation's registered agent for service of process, as was done in this case. ¶ 35. As stated, the majority relies upon the affidavit of Flagstar's chief legal officer that stated that the mailroom clerk, Romeo Pena, signed for the certified letter and that Pena "is not, and has never been, authorized to accept service of process for Flagstar Bank." The fact that Pena was not, and never had been, an agent for service of process for Flagstar is beside the point. The certified letter was addressed and sent to Flagstar's registered agent for service of process Gladner. It is not contended in the affidavit that Pena did not have the authority to pick up mail at the post office for Gladner. Even if such an allegation had been made, it would be inconsequential. This is because Rule 4(c)(5) does not speak to the issue of whether someone other than the registered agent for service of process for a corporation may sign for a certified letter addressed to the registered agent. ¶ 36. Finally, it cannot be legitimately doubted that the certified letter was received by Gladner because in a letter dated April 22, 2004, Robert K. Fleming, Legal Department Operations Coordinator, advised counsel for the Danoses, inter alia, that "Flagstar Bank, FSB (Flagstar) is in receipt of the summons regarding the above referenced matter." The majority finds that this letter cannot take the place of a valid summons and complaint being 361 served upon Flagstar. I agree, but the importance of the letter is not that it serves in lieu of service of the summons and complaint upon Flagstar, but that it proves that the certified letter that was properly addressed to Flagstar's registered agent for service of process was in fact received by the registered agent. Rule 4(c)(5) provides: "Service by [certified mail] shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked "Refused."" The return receipt showed that the letter was signed for by someone whose signature could not be readily deciphered. However, Flagstar's chief legal officer was able to decipher the otherwise illegible signature, advising that it was signed for by Flagstar's mailroom clerk. As stated, the letter was sent restricted delivery, but it did not have to be. The United States Postal Service should not have allowed the mailroom clerk to sign for the letter. Nevertheless, that failure on the part of the postal service does not affect the legality or effectiveness of the process on Flagstar, because a certified letter, return receipt requested, was served on its registered agent for service of process, even though it was physically picked up by someone else for the registered agent. It is apparent that the majority equates the physical pickup of the certified letter by Pena with a failure of service of the certified letter on Gladner. That is simply not the case. As stated, for service to have been complete and effective under Rule 4(c)(5), all that was required was for the letter to have been sent by certified mail, return receipt requested, not restricted delivery, addressed to Flagstar's registered agent for service of process. That in fact was done in this case. Therefore, process was deemed complete when the certified letter was signed for and picked up by Pena. ¶ 37. For the reasons stated, I dissent. I would affirm the trial court's judgment, for it is clear that Flagstar slept on its responsibility to respond to the Danoses' lawsuit. LEE AND MYERS, P.JJ., AND GRIFFIS, J., JOIN THIS OPINION. NOTES [1] Federal Rule of Civil Procedure 4(e)(1) provides that serving an individual within a federal judicial district may be done by: "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Therefore, federal court decisions interpreting Mississippi's civil procedure rules are persuasive. [2] Rule 4(d)(4) provides in pertinent part: "Service by sheriff or process server shall be made as follows: (4) Upon a . . . foreign corporation . . . by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/705381/	67 F.3d 296 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Davey James REEDY, Plaintiff-Appellant,v.Dr. CEI, Central Classification; Augusta CorrectionalCenter; Commonwealth of Virginia; Lieutenant Cook; Ms.Brereton; Mr. Mueller; A.L. Crawford; Warden Saunders;Assistant Warden Taylor, Defendants-Appellees. No. 95-6726. United States Court of Appeals, Fourth Circuit. Submitted Aug. 31, 1995.Decided Oct. 5, 1995. Davey James Reedy, Appellant Pro Se. Martha Murphey Parrish, Assistant Attorney General, Richmond, Virginia, for Appellees. Before WILKINSON and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge. PER CURIAM: 1 Davey James Reedy appeals from district court orders dismissing his 42 U.S.C. Sec. 1983 (1988) action and denying reconsideration thereof. We affirm, with some modification. 2 With respect to Reedy's due process claims, the district court dismissed for lack of a liberty interest due to a lack of mandatory language in state statutes or regulations. Such an approach was proper at the time the district court filed its opinion and orders. However, since those orders, the Supreme Court has abandoned this approach and mandated an approach to liberty interests that allows such interests only by force of the Due Process Clause itself or in situations where deprivation of a state-created protection would "impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 63 U.S.L.W. 4601, 4604-05 (U.S.1995). We have reviewed the due process claims covered by Sandin and affirm the district court's dismissal of them on the basis that they fail to state claims under Sandin. We affirm the order dismissing the remainder of the claims and the order denying reconsideration of the dismissal order on the reasoning of the district court. Reedy v. Cei, No. CA-94-118-R (W.D.Va. Mar. 28 & Apr. 28, 1995). 3 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2929324/	Dismissed and Opinion filed April 10, 2003 Dismissed and Opinion filed April 10, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-03-00134-CR ____________ ANANIAS DIXON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 904,606 M E M O R A N D U M O P I N I O N After a guilty plea, appellant was convicted of the offense of possession of a controlled substance and sentenced on September 3, 2002 to 17 years= imprisonment in the Texas Department of Criminal Justice, Institutional Division. No motion for new trial was filed. Appellant=s notice of appeal was not filed until November 8, 2002. A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial. See Tex. R. App. P. 26.2(a)(1). A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal. Id. Accordingly, the appeal is ordered dismissed. PER CURIAM Judgment rendered and Opinion filed April 10, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).	01-03-2023	09-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/2536250/	47 So.3d 282 (2008) Mark PARTAIN v. STATE of Alabama. CR-06-0978. Court of Criminal Appeals of Alabama. August 29, 2008. 284 Mark Partain, pro se. Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee. SHAW, Judge. Mark Partain appeals the circuit court's summary denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief, in which he attacked his 2004 conviction for capital murder and his resulting sentence of life imprisonment without the possibility of parole. This Court affirmed Partain's conviction and sentence on appeal. See Partain v. State, (No. CR-04-0631) 933 So.2d 415 (Ala.Crim.App.2005) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on December 9, 2005. Partain filed his Rule 32 petition on or about September 26, 2006. In his petition, Partain alleged that his trial counsel was ineffective for a number of reasons. Specifically, Partain listed the following allegations of ineffective assistance of trial counsel in his petition: (1) Counsel refused to allow Partain to testify at trial; (2) Counsel did not timely investigate or interview a nurse from the Nashville, Tennessee, jail or attempt to subpoena her to testify at trial about the severity and possible causes of Partain's injuries when he was taken into custody, the pain those injuries would have caused, and Partain's mental state at the time he was taken into custody; (3) Counsel did not seek or obtain expert testimony to show that the damage to the window was caused years before the alleged break-in that gave rise to the burglary element of the capital charge; (4) Counsel did not seek or obtain expert testimony on battered spouse syndrome; and (5) Counsel generally failed to properly investigate the case by failing to obtain mental-health records, testimony from a neighbor about the damage to the window, testimony from Partain's mother about Partain's injuries, and information from Partain's friend about the alleged abusive behavior Partain received from the victim. After receiving a response from the State, the circuit court summarily denied the petition on January 23, 2007, finding that Partain's allegations of ineffective assistance of counsel were barred by Rule 32.2(a)(5), Ala.R.Crim.P.; that Partain failed to satisfy both his burden of pleading and his burden of proving his allegations; and that his allegations were without merit based on the court's recollection of Partain's trial. Initially, we note that the circuit court erred in finding Partain's allegations of ineffective assistance of counsel to be barred by Rule 32.2(a)(5). When an ineffective-assistance-of-counsel claim cannot reasonably be presented in a timely filed motion for a new trial, see Rule 24.1, Ala. R.Crim.P., the proper method for presenting the claim is in a Rule 32 petition. See Ex parte Ingram, 675 So.2d 863 (Ala.1996). In this case, Partain was represented by different counsel at trial and on appeal; however, appellate counsel was not appointed until after the time for filing a motion for a new trial had lapsed. It was trial counsel who filed the motion for a 285 new trial on Partain's behalf.[1] Therefore, Partain's allegations of ineffective assistance of trial counsel could not have reasonably been raised in the motion for a new trial. We note further that, contrary to the circuit court's apparent finding, Partain had no burden of proof at the pleading stage. As this Court explained in Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001): "[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only `a clear and specific statement of the grounds upon which relief is sought.' Rule 32.6(b), Ala. R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof." 831 So.2d at 644. See also Thomas v. State, 908 So.2d 308 (Ala.Crim.App.2004); Borden v. State, 891 So.2d 393 (Ala.Crim. App.2002); and Johnson v. State, 835 So.2d 1077 (Ala.Crim.App.2001). Thus, to the extent the circuit court denied Partain's petition on the ground that Partain failed to prove his allegations of ineffective assistance of counsel, that denial was improper. That being said, many of the allegations in Partain's petition were properly denied on the ground that Partain failed to meet the pleading requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P. Rule 32.3 provides, in pertinent part, that "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Pursuant to Rule 32.6(b): "The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings." As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003): "`Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.' Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion `which, if true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App. 1993). It is the allegation of facts in pleading which, if true, entitle[s] a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts." 913 So.2d at 1125. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, 286 the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689, 104 S.Ct. 2052. As this Court explained in Hyde v. State, 950 So.2d 344 (Ala.Crim.App.2006): "The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must `identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694, 104 S.Ct. 2052. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient." 950 So.2d at 356. With regard to Partain's claims (2), (3), (4), and (5), set out above, we agree with the circuit court that Partain failed to plead sufficient facts supporting both prongs of the Strickland test. These allegations consisted of little more than conclusory statements, much of which involved Partain's desire to present evidence that, based on the record before this Court, would have amounted to cumulative evidence, and none of these assertions indicate a reasonable probability that the outcome of Partain's trial would have been different had counsel acted differently. Therefore, summary denial of these allegations of ineffective assistance of counsel was proper. However, with regard to Partain's contention that counsel was ineffective for allegedly preventing Partain from testifying at trial despite his desire to testify, claim (1), set out above, Partain pleaded sufficient facts to meet his burden of pleading with regard to both prongs of the Strickland test. See, e.g., Miller v. State, 1 So.3d 1073 (Ala.Crim.App.2007). See also Reeves v. State, 974 So.2d 314, 325 (Ala.Crim.App.2007) ("A defendant has a fundamental right to testify on his own behalf, that right is personal to the defendant, and defense counsel may not waive that right."). We recognize that a circuit judge who has personal knowledge of the facts underlying an allegation of ineffective assistance of counsel may summarily deny that allegation based on the judge's personal knowledge of counsel's performance. See, e.g., Ex parte Walker, 800 So.2d 135 (Ala.2000). We likewise recognize that the circuit judge who ruled on the petition in this case was the same judge who presided over Partain's trial and specifically stated in his order that he had the "opportunity to observe counsel's performance throughout the proceedings" and found counsel to 287 be effective. (C. 63.) However, this particular claim of ineffective assistance of counsel was not within the court's personal knowledge. The transcript of Partain's trial reflects no discussions on the record regarding Partain's not testifying, and the allegations in Partain's petition reflect that this allegation is based entirely on communications between him and his counsel, to which the circuit judge was not privy. Thus, the circuit judge could not have found this allegation to be meritless based on his own personal knowledge. In addition, although the district attorney asserted in her response to the petition that she had spoken with Partain's counsel and that counsel had denied Partain's allegation in this regard, the State did not attach to its response an affidavit from counsel or any other evidence to support that assertion. Thus, although Partain's allegation does not have to be accepted as true, as would be the case if the allegation had gone completely unrefuted by the State, the circuit court was faced with competing pleadingsa sufficiently pleaded allegation of ineffective assistance of counsel by Partain and an unsupported assertion by the State that the allegation was meritlessand was required at that point either to conduct an evidentiary hearing or to accept evidence in other forms, see Rule 32.9(a), Ala.R.Crim.P., regarding Partain's allegation and then to rule on the merits of the allegation. Based on the foregoing, we remand this case for the circuit court either to conduct an evidentiary hearing or to accept evidence in the form of affidavits, written interrogatories, or depositions, see Rule 32.9(a), regarding Partain's claim that his trial counsel was ineffective for refusing to permit him to testify at trial and to then issue specific written findings of fact regarding that allegation. The circuit court may grant whatever relief it deems necessary. Due return shall be filed within 42 days of the date of this opinion, and shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings. REMANDED WITH DIRECTIONS.[] BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur. NOTES [1] This court may take judicial notice of its own records, and we do so in this case. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim. App.1992). [] Note from the reporter of decisions: On September 30, 2009, after the trial court had responded to the Court of Criminal Appeals' remand order, the Court of Criminal Appeals again remanded this case to the trial court by order. On May 21, 2010, on return to that second remand, the Court of Criminal Appeals affirmed, without opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536316/	43 So.3d 734 (2010) Charles Lindsey PURVIS, Appellant, v. STATE of Florida, Appellee. No. 2D08-5597. District Court of Appeal of Florida, Second District. May 14, 2010. 735 James E. Felman and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellant. LaROSE, Judge. Charles Lindsey Purvis appeals the summary denial of his postconviction motion focusing on his conviction for trafficking in cocaine by possession of more than 400 grams.[1]See Fla. R.Crim. P. 3.850; § 893.135(1)(b)(1)(c), Fla. Stat. (2001). We affirm, without further comment, the postconviction court's denial of his claim that trial counsel was ineffective for failing to move to suppress evidence found at Mr. Purvis's residence pursuant to a search warrant. However, the record before the postconviction court did not conclusively refute Mr. Purvis's claim that his trial counsel was ineffective for not objecting to the commingling of the contents of packages of suspected cocaine to establish a trafficking weight of over 400 grams.[2] Consequently, we are compelled to reverse as to this claim and remand for further proceedings before the postconviction court. When law enforcement officers searched Mr. Purvis's residence, they found a cell phone box containing twenty-seven small packets of what they assumed was cocaine, a bag of rock-like substance in a sock, a small amount of bagged white powder in a cooler, and a large bag of benzocaine, which is not a controlled substance. A Florida Department of Law Enforcement chemist separately tested the contents of the sock and the cooler. The contents were cocaine and weighed a total of 10.78 grams. The chemist weighed the contents of the bags from the cell phone box by emptying them into a weighing boat, four to seven bags at a time in five weighings. She tested each commingled pile and concluded that each contained cocaine. Her report reflects that the weights of the five piles match, with slight variation, the weights recorded in State's exhibits 11A-E.[3] The 736 total weight of the bags from the cell phone box exceeded 600 grams. On direct appeal, Mr. Purvis argued that the commingling of the contents of individual bags barred his conviction because there was insufficient proof of weight or identification of the contents. Unfortunately for Mr. Purvis, this issue was not preserved. We affirmed Mr. Purvis's convictions and sentences, per curiam. Purvis v. State, 969 So.2d 380 (Fla. 2d DCA 2007) (table decision). In his motion for postconviction relief, Mr. Purvis claimed that trial counsel was ineffective for failing to object. The postconviction court summarily denied this claim. It found that "the record indicates that at least with respect to Exhibits 11A, 11B, 11C, and 11D, ... the State's chemist weighed and tested each package separately [and] the sum of these four packages of cocaine exceeded 400-grams. ..." This conclusion conflicts with the chemist's testimony and report. It appears that the weights reflected in State exhibits 11A, B, C, and D correspond with the chemist's exhibits 3d, b, a, and c. However, each exhibit apparently consisted of commingled contents from other bags in the grouping, and the chemist did not test the contents of each of the four to seven individual bags before pouring them into the weighing boat. In Sheridan v. State, 850 So.2d 638 (Fla. 2d DCA 2003), we held that the evidence was insufficient to prove a trafficking weight of powdered methamphetamine where two bags of white substance were combined before testing and weighing. Id. at 640 (citing Safford v. State, 708 So.2d 676, 677 (Fla. 2d DCA 1998)); see also Campbell v. State, 563 So.2d 202, 202 (Fla. 3d DCA 1990) (reversing trafficking conviction where chemist tested contents of only one or two capsules found in change purse and suspected to contain heroin); State v. Clark, 538 So.2d 500, 501 (Fla. 3d DCA 1989) (affirming trial court's ruling that State violated defendants' due process rights by commingling powdery contents of tested capsules with contents of untested capsules prior to weighing). Many white powdery substances, including the large bag of benzocaine found in Mr. Purvis's home, can resemble cocaine. See Safford, 708 So.2d at 677. "[V]isual examination of untested packets ... is insufficient to convict because the white powder contained therein may be milk sugar or any one of the vast variety of other white powdery chemical compounds not containing cocaine." Ross v. State, 528 So.2d 1237, 1239 (Fla. 3d DCA 1988) (requiring testing of contents of each package before commingling to obtain aggregate weight). Lyons v. State, 807 So.2d 709 (Fla. 5th DCA 2002), on which the State relied below, does not command a different result. There, the chemist commingled two bricks of suspected cocaine before weighing and testing the entire substance. Id. at 710. The appellant argued that "because of the commingling, there was no way for the jury to reasonably conclude that one of the bags contained at least 400 grams of a substance containing cocaine." Id. The Fifth District held that even if only one of them did, in fact, by some oddity, contain a mixture involving cocaine, the fact that the two similar-appearing and similar-in-weight packages together weighed 816 grams, was *737 enough for a jury to reasonably find that one of the two rather identical bricks contained at least 400 grams of a substance containing cocaine. Id. at 711. Here, although logic and the testing establish that the contents of at least one bag in each of five commingled piles contained cocaine, neither logic nor testing establishes that all commingled bags in each pile contained cocaine. See Sheridan, 850 So.2d at 642 (Casanueva, J., concurring). "While it may be more likely than not that the [other bags] also contained [cocaine], there is no evidence from which that assumption may be reached." Id. Our record reflects that Mr. Purvis possessed 10.78 grams of cocaine found in the sock and the cooler plus the contents of five of the twenty-five to twenty-six bags from the cell phone box. Unlike the packages in Lyons, the bags here were not identical in size and weight. The average weight of the bags' contents making up each pile ranged from 13.47 to 27.72 grams. Thus, as Mr. Purvis argues, it appears that there was insufficient evidence to support his conviction. See Safford, 708 So.2d at 677; Nguyen v. State, 858 So.2d 1259, 1260 (Fla. 1st DCA 2003). The materials upon which the postconviction court relied do not conclusively refute Mr. Purvis's claim that trial counsel was ineffective by failing to object. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We reverse the denial of this claim and remand for further proceedings. Affirmed in part, reversed in part, and remanded. DAVIS and WALLACE, JJ., Concur. NOTES [1] The mandatory minimum prison sentence for trafficking in cocaine by possession of 400 grams or more, but less than 150 kilograms, is 15 years; 7 years for possession of 200 grams or more, but less than 400; and 3 years for possession of 28 grams or more, but less than 200. § 893.135(1)(b)(1)(a), (b), (c). Possession of less than twenty-eight grams cocaine is a third-degree felony punishable by up to five years in prison. §§ 893.13(6)(a), 775.082(3)(d), Fla. Stat. (2001). [2] The State did not file an answer brief. [3] Chemist's Report State's Exhibits 3a, 4 sealed bags, 109.88 grams 11C, 109.88 grams 3b, 5 sealed bags, 136.45 grams 11B, 136.45 grams 3c, 7 sealed bags, 190.57 grams 11D, 190.57 grams 3d, 5 sealed bags, 67.35 grams 11A, 67.35 grams 3e, 6 sealed bags, 97.02 grams 11E, 100.55 grams ______________________________________________________ TOTAL 601.27 grams 604.80 grams	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539895/	343 S.W.3d 162 (2011) Frank P. HERNANDEZ, Appellant, v. SOVEREIGN CHEROKEE NATION TEJAS, Appellee. No. 05-09-00535-CV. Court of Appeals of Texas, Dallas. March 31, 2011. Supplemental Opinion April 27, 2011. 166 Charles W. McGarry, Law Office of Charles McGarry, Dallas, for Appellant. William Lewis Sessions, The Sessions Law Firm, Dallas, for Appellee. Before Justices O'NEILL, MARTIN RICHTER, and LANG-MIERS. OPINION Opinion By Justice MARTIN RICHTER. Appellee Sovereign Cherokee Nation Tejas (SCNT) sued appellant Frank P. Hernandez alleging fraud, breach of fiduciary duty, and other claims. The trial court struck Hernandez's pleadings as a discovery sanction, and the case was submitted to a jury to determine damages. The jury answered questions awarding actual and exemplary damages to SCNT, and the trial court entered judgment for SCNT. Hernandez appeals, alleging the sanctions were an abuse of the trial court's discretion. Hernandez also alleges there was no evidence or insufficient evidence to support the jury's findings. For the reasons set forth below, we suggest a remittitur of actual and exemplary damages. In all other respects we affirm the trial court's judgment. BACKGROUND According to its Third Amended Petition, SCNT is "a domestic dependent Indian Nation located within the State of Texas."[1] Hernandez is an attorney licensed 167 in Texas who served as "attorney general" for SCNT from approximately 1993 to 2005. During that time, he maintained records for SCNT and worked on developing a casino for SCNT known as the Raven Casino Project. SCNT paid legal fees to Hernandez for his services. SCNT's petition alleges Hernandez acted without SCNT's authority in issuing a prospectus, raising money from investors, and purchasing land for the Raven Casino Project. SCNT's operative petition, over 100 pages in length, alleges an elaborate scheme involving Hernandez's use of an account created under the Interest on Lawyers Trust Account (IOLTA) program to convert funds raised for SCNT to his own use. In 2005, SCNT filed this action against Hernandez and others. SCNT's operative petition alleges causes of action against Hernandez for negligent misrepresentation, fraudulent inducement, fraud, statutory fraud, breach of fiduciary duty, conversion and misappropriation, and libel and slander. The petition also alleges a conspiracy. SCNT sought an accounting, declarative and injunctive relief, and damages, and requested that a constructive trust be imposed. SCNT obtained a temporary injunction on June 17, 2005, prohibiting Hernandez from acting as an agent for SCNT, issuing bonds in its name, using any bank account in its name, or obligating SCNT under any contract, including the Raven Casino Project. On April 16, 2007, the trial court entered a second temporary injunction prohibiting Hernandez from engaging in more than twenty acts relating to SCNT's finances and operation. In the course of the proceedings in the trial court, claims were asserted among and settled with investors in the Raven Casino Project and another SCNT group organized by Hernandez. Neither the investors nor the competing SCNT group are now making claims to the funds at issue. Throughout the proceedings in the trial court, SCNT sought in discovery to obtain SCNT records kept by Hernandez while he served as attorney general. As detailed more fully below, the trial court held hearings on numerous pretrial motions, including a hearing on October 4, 2007, after which the trial court struck Hernandez's pleadings. The case proceeded to a jury trial on damages. The jury made findings in favor of SCNT, and the trial court entered judgment for SCNT. STANDARDS OF REVIEW We review a trial court's imposition of sanctions for an abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.2006) (per curiam). A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the act was arbitrary or unreasonable. Id. We must conduct an independent review of the entire record in our review of the trial court's action. Id. In reviewing a verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a "scintilla of evidence" is legally sufficient to support the jury's finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). To be more than a scintilla, the evidence must rise "to a level that would enable reasonable and fair-minded people to differ in their conclusions." See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). In reviewing a factual sufficiency challenge, we consider and weigh all the evidence 168 in support of and contrary to the finding and will set aside the verdict only if the evidence supporting the jury finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex.App.-Dallas 2008, pet. denied). In making this review this Court is not a fact finder, and we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.-Dallas 2000, pet. denied). We review an exemplary damage award under a factual sufficiency standard of review. Ellis Cnty. State Bank v. Keever, 936 S.W.2d 683, 685 (Tex.App.-Dallas 1996, no writ) (citing Moriel, 879 S.W.2d at 30). We are not free to reweigh the evidence and set aside a jury verdict merely because we feel that a different result is more reasonable. Ellis Cnty. State Bank, 936 S.W.2d at 685. Because the award of exemplary damages rests in the jury's discretion, we will not set aside the damages unless after reviewing the entire record, we determine the award is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id. (citing Moriel, 879 S.W.2d at 30). When determining whether the exemplary damage award is excessive, we consider the following factors: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties; and (5) the extent to which such conduct offends a public sense of justice and propriety. Id. at 686 (citing Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981)); see also TEX. CIV. PRAC. & REM.CODE ANN. § 41.011 (West 2008) (listing factors). We must detail all of the relevant evidence and explain why that evidence either supports or does not support the exemplary damage award in light of the Kraus factors. Id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 41.013 (West 2008) (judicial review of award). SANCTIONS In one issue with fourteen subparts, Hernandez asserts the trial court abused its discretion by striking his pleadings as a discovery sanction. A discovery sanction must be just, that is, it must bear a direct relationship between the improper conduct and the sanction imposed, and it "should be no more severe than necessary to satisfy its legitimate purposes." TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). Discovery sanctions serve to secure compliance with the discovery rules, deter other litigants from abusing the discovery rules, and punish those who violate the rules. Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 384 (Tex.App.-Dallas 2009, pet. denied). Hernandez argues the trial court's October 4, 2007 order striking his pleadings was error because SCNT's motion for sanctions failed to give reasonable notice of the sanctionable conduct alleged; the failure to replead a counterclaim on special exceptions does not justify the death penalty; the contempt and enforcement orders Hernandez allegedly violated were void; the sanctions order does not recite any findings and is not based on evidence; and no lesser sanctions were ever considered by the trial court. After an independent review of the entire record, see American Flood Research, Inc., 192 S.W.3d at 583, we conclude Hernandez's complaints are not well-founded. 169 In reviewing the trial court's order and considering Hernandez's arguments, we first examine the relationship between the improper conduct and the sanction imposed. See TransAmerican Natural Gas Corp., 811 S.W.2d at 917. The October 4, 2007 order was not the only order entered in the course of the pretrial proceedings. The reporter's record includes transcripts from at least five separate pretrial hearings, some on multiple motions. Beginning in 2005, the trial judge heard and considered a variety of motions from both Hernandez and SCNT regarding discovery and other pretrial matters. In an October 2005 hearing, the trial court imposed a "very strict schedule" for discovery and ordered all parties to make requested documents available for inspection and copying as well as scheduling depositions within a set time period. The trial court at that time refused to impose sanctions or find Hernandez in contempt as requested by SCNT. On April 13 and 16, 2007, the trial court heard SCNT's request for temporary injunction. At this hearing, the trial court heard SCNT's request to enjoin Hernandez from engaging in a longer and more detailed list of activities in the name of SCNT than were prohibited under the trial court's June 17, 2005 injunction. In a two-day hearing, both SCNT and Hernandez called witnesses and introduced exhibits regarding Hernandez's continued activities in the name of SCNT after the June 17, 2005 injunction had been entered. Hernandez himself testified that after SCNT had terminated him from his position as attorney general, he used SCNT's records to contact approximately 120 SCNT "citizens" for the purpose of holding an election "to facilitate the Cherokees in Texas to be able to rejuvenate the Nation," and to put forward a plan to go forward with the Raven Casino Project. Hernandez and other witnesses testified that after the June 17, 2005 injunction, an election was held, and Hernandez was elected as SCNT attorney general. Acting as attorney general of the reconstituted group, Hernandez paid himself "for legal services and for managing the operation and construction of the casino" from funds raised for SCNT. He testified he would not agree to cease acting as attorney general of SCNT without an order from the court, and he further testified he thought the trial court did not have authority to enter such an order. After hearing testimony and argument, the trial court granted most of the relief requested. In June 2007, the trial court heard several motions. The first was SCNT's motion to compel Hernandez's deposition. At a previous hearing on a motion to compel Hernandez's deposition and other matters, the trial court had instructed the parties to confer on a new discovery schedule in light of new allegations made in an amended pleading. Hernandez, however, had refused to appear for his deposition after it had been noticed, arguing the discovery period was closed. At the hearing on SCNT's motion to compel, the trial court noted: Let me just say that this Court believes that all the attorneys should subscribe to the principles contained in the lawyer's creed, and that includes cooperation with each other to schedule depositions. I find it totally unnecessary to be conducting this hearing this morning to schedule your [Hernandez's] deposition.... This is a very simple matter that should have been agreed upon.... The deposition will be conducted today at 11:00 o'clock here in the Kaufman County Courthouse. I'm not going to award sanctions at this time on that matter. I do expect the deposition to be taken today. 170 The trial court denied SCNT's motion for sanctions against Hernandez regarding the deposition. Next, the trial court heard argument and testimony about Hernandez's failure to comply with a prior order of the court to produce documents and other tangible items in his possession, including certain computers, from his tenure as attorney general of SCNT. Hernandez cross-examined SCNT's witnesses and offered his own testimony regarding the requests for production. At the conclusion of testimony and argument, the trial court ordered that the computers be delivered by Hernandez that day, that Hernandez sign an authorization to permit SCNT to obtain bank records, and that he pay $1,000 in sanctions for failure to timely deliver the computers to SCNT. Next, at the June 2007 hearing, the trial court heard testimony and argument regarding whether Hernandez had violated the temporary injunction entered by the court on June 17, 2005. As noted above, that injunction had prohibited Hernandez from using the title of attorney general of SCNT or acting as an agent or representative of SCNT, using any bank account in SCNT's name, or obligating SCNT under any contract. SCNT adduced evidence that Hernandez was present at the 2005 hearing on the injunction and was aware of and understood its terms at the time it was entered. As at the April 2007 hearing, SCNT adduced evidence, through Hernandez's own testimony, that after the 2005 injunction order was entered, Hernandez organized a "reconstituted" SCNT group and continued his activities relating to the Raven Casino Project. SCNT offered evidence that Hernandez had continued to use the same bank account, acknowledging the court's order only by crossing out SCNT's name on some of the checks. Hernandez testified he held himself out as the attorney general of SCNT after the injunction because he was properly elected by the reconstituted SCNT. He argued the election "in effect, set aside the Court's order because now I was authorized to act." The trial court found Hernandez in contempt. As part of his challenge to the striking of his pleadings, Hernandez argues the contempt order does not support death penalty sanctions because it was void. Hernandez cites numerous reasons the contempt order is void, including denial of due process, denial of the right to counsel, denial of the right to trial by jury, and other issues. Even assuming the contempt order was not properly entered, however, the record does reflect Hernandez's own testimony and argument that he was aware of and understood the court's injunction but intentionally took actions prohibited under it. On October 4, 2007, the trial court held a hearing on SCNT's motions to enforce the court's prior orders and for contempt. SCNT requested sanctions under rules 13 and 215, Texas Rules of Civil Procedure, including the striking of Hernandez's pleadings, for Hernandez's failure to comply with the trial court's orders. The trial court granted the motion by order dated October 4, 2007. On the same day, the trial court also signed an Order for Enforcement of Contempt Orders and an Order of Commitment. In the Order for Enforcement, the trial court made specific findings to support its order, including Hernandez's willful failure to obey the court's order of June 19, 2007, to deliver two SCNT computer monitors; to deliver a written authorization to SCNT's counsel to obtain relevant bank records; to pay amounts ordered as sanctions; and to serve written responses to interrogatories. The trial court also made detailed findings about Hernandez's failure to comply with its June 19, 2007 order to pay fines and 171 disgorge funds "taken from bank accounts labeled with the name of SCNT." Hernandez makes several complaints about the October 4, 2007 order striking his pleadings. He argues the order "was based solely on the arguments of counsel and contained no findings." He argues the order does not give reasonable notice of the conduct for which he was to be sanctioned. He complains that after trial, when he filed a response to SCNT's motion for judgment alleging the trial court abused its discretion in striking his pleadings, the trial court entered a "Supplemental Order Granting Plaintiff's Motion for Sanctions" containing detailed findings supporting the striking of Hernandez's pleadings. Citing Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.1993), Hernandez argues the supplemental order should be disregarded "because the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any sanctions based on that conduct." Hernandez also argues that lesser sanctions were never considered by the trial court. We reject Hernandez's arguments. The record, including transcripts of evidentiary hearings and numerous orders, is abundantly clear that the trial court heard evidence regarding the same discovery abuse and violations of court orders multiple times, and attempted to obtain Hernandez's compliance multiple times through imposition of attorneys' fees and contempt of court, both specifically listed in rule 215.2(b) as available sanctions. See TEX.R. CIV. P. 215.2(b). An order issued on the same date as the order striking Hernandez's pleadings detailed Hernandez's violations of court orders and his sanctionable conduct, and the court's supplemental order contains similar findings. We conclude Remington Arms Co. is distinguishable because in that case, there was no hearing or order on pretrial discovery abuse until after trial. See id. Here, the trial court had conducted multiple hearings and entered several orders prior to trial based on Hernandez's conduct. We conclude there was a direct relationship between the offensive conduct and the sanction imposed. See Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). Discovery sanctions can be used to adjudicate the merits of a party's claims only when the party's hindrance of the discovery process justifies a presumption that its claims lack merit. Id. at 841. The record supports a conclusion that Hernandez intentionally violated the court's orders on multiple occasions. SCNT's allegations of fraud, breach of fiduciary duty, and other claims are directly related to Hernandez's alleged misuse of SCNT funds and unauthorized actions using SCNT's name. The discovery and court orders at issue bore directly on these claims. The trial court concluded the sanctions bore a direct relationship to Hernandez's "repeated acts and omissions in contempt of this Court's duty to enforce its orders and effectuate administration of justice between the parties to this cause," as the court noted in its supplemental order. The record supports this conclusion, and the trial court acted with reference to guiding rules and principles in reaching it. See Am. Flood Research, Inc., 192 S.W.3d at 583. Next we examine whether the sanction striking Hernandez's pleadings was excessive. A sanction is excessive if lesser sanctions would have served the purposes of compliance, deterrence, and punishment. Tex. Integrated, 300 S.W.3d at 384. The record reveals Hernandez had the opportunity to appear, argue, and testify at numerous hearings during the years prior to the trial court's order striking his 172 pleadings. The trial court signed multiple orders, including orders to produce documents and tangible items and appear for deposition, orders to pay attorneys' fees as sanctions for failure to comply with discovery, and orders to refrain from a variety of actions in the name of SCNT. While the October 2007 order itself does not detail each particular offense or recite particular evidence, the trial court issued both an enforcement order on the same date and a supplemental order after trial detailing Hernandez's violations of court orders and failure to comply with discovery. The record supports the conclusion that Hernandez's improper conduct prevented SCNT from obtaining evidence essential to the presentation of its case and to the refutation of Hernandez's defenses. See Cire, 134 S.W.3d at 841. The record further supports the conclusion that the lesser measures imposed by the trial court had neither deterred Hernandez from continued violations nor achieved his compliance with prior orders of the court. See Tex. Integrated, 300 S.W.3d at 384. Based on our independent review of the entire record, we conclude the sanction imposed by the trial court has a direct relationship to Hernandez's improper conduct and was not excessive. See Stromberger v. Turley Law Firm, 315 S.W.3d 921, 925 (Tex.App.-Dallas 2010, no pet.) (review of entire record revealed no abuse of discretion by trial court's imposing $5,300 in attorney's fees as sanction). Thus, we conclude the trial court did not abuse its discretion in entering the sanctions order. See Am. Flood Research, Inc., 192 S.W.3d at 583. We overrule Hernandez's first issue. JURY'S AWARDS OF DAMAGES In his second through seventh issues, Hernandez argues the evidence is legally and factually insufficient to support the jury's awards of damages. In his eighth and ninth issues, he complains the jury's answers to certain questions are in fatal conflict. In his tenth issue, he argues SCNT cannot elect an alternative measure of damages under the jury's verdict. We first reject Hernandez's eighth and ninth issues complaining of conflicts in the jury's answers. To preserve these issues for appeal, Hernandez was required to object before the jury was discharged. See Medistar Corp. v. Schmidt, 267 S.W.3d 150, 162 (Tex.App.-San Antonio 2008, pet. denied). Because he did not do so, and further, because we cannot assume the jury's answers conflict if they can be reconciled, we overrule these issues. See SAS & Assocs., Inc. v. Home Mktg. Servicing, Inc., 168 S.W.3d 296, 303 (Tex.App.-Dallas 2005, pet. denied). The challenged answers (regarding actual damages for fraud, statutory fraud, conversion, and breach of fiduciary duty) all awarded damages within the range of evidence presented at trial, except as noted below, and we are not permitted to disregard the jury's damages award on the basis that the jury's reasoning is unclear. Id.[2] 173 Next, we address Hernandez's complaints about the sufficiency of the evidence to support the jury's specific damage awards. Because SCNT elected the damages awarded by the jury on its fraud claim, we begin our review with that award. In Question 7 of the jury charge, the jury was asked to determine damages for fraud under two measures, "out-of-pocket" and "benefit of the bargain." The jury determined the out-of-pocket damages to be $1,348,920.75, and the benefit of the bargain damages to be $5 million. SCNT elected the $5 million award, which is included in the trial court's judgment. We conclude that the evidence is legally sufficient to support an award of damages, but we agree with Hernandez that the evidence is factually insufficient to support the amount of the award. The benefit of the bargain measure of direct damages for fraud "computes the difference between the value as represented and the value received." Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 775 (Tex.2009). The parties agree the jury included expected profits from the casino in the $5 million award. Under the benefit of the bargain measure, lost profits on the bargain maybe recovered if they are proved with reasonable certainty. Id. at 776 (quoting Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 50 (Tex.1998)); see also Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994) (party may recover lost profits only if it shows amount of loss by competent evidence with reasonable certainty). It is not necessary that profits should be susceptible to exact calculation; it is sufficient that there be data from which they may be ascertained with a reasonable degree of certainty and exactness. Tex. Instruments, Inc., 877 S.W.2d at 279. At a minimum, however, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates. Id. The evidence offered at trial showed that in 2004 and 2005, Hernandez sold subscriptions and entered into investor agreements for the Raven Casino Project. He deposited $709,343.90 in investor checks made payable to SCNT into an IOLTA trust account he controlled. Also in 2004, Hernandez opened a checking account entitled "Frank P. Hernandez, Attorney at Law Kaufman ProjectSCNT," and deposited $639,576.85 in funds received from investors. Investor funds and interest on these two accounts totaled $1,348,920.75. The evidence also showed that $661,572.84 was "spent on real estate," to purchase the property where the casino was to be located.[3] SCNT also introduced an exhibit entitled "Summary Plaintiff's Damages" showing the difference between the "money received by Frank Hernandez in name of Sovereign Cherokee Nation Tejas" and "money spent on real estate," in the amount of $687,347.91. Of the remaining investor 174 funds, $195,000.00 was paid to Hernandez, his son, and an employee, including $134,000.00 in checks made payable to Hernandez himself. The evidence also showed a total of $21,666.69 was paid to Chief Grey Wolf and Chief Bear Who Walks Softly, principals of SCNT. SCNT argues that the testimony of Chief Bear Who Walks Softly and Hernandez as to the expected profits from the casino are sufficient to support the jury's findings on the benefit of the bargain damages awarded in Question 7 for fraud. According to Chief Bear, Hernandez represented that SCNT would receive $25,000 per day from the operations of the casino. More detailed projections are included in the prospectus prepared by Hernandez to seek investors in the casino project. Under "gross income projections," Hernandez calculates income based on the square footage of the casino, the hours of operation, and the number of customers expected. His most conservative estimate is based on "75 persons gaming per hour 8 hours per day" at $25 per person, results in a daily gross of $15,000, a monthly gross of $450,000, and a yearly gross of $5,400,000. These figures did not include projected alcohol and food sales and parking fees, which were estimated separately. Hernandez's projections, however, do not appear to be based on actual data from any specific operations. The Raven Casino Project never became operational. An enterprise is not prohibited from recovering lost profits merely because it is new. Tex. Instruments, Inc., 877 S.W.2d at 280. But "the mere hope for success of an untried enterprise, even when that hope is realistic, is not enough for recovery of lost profits." Id. In the Texas Instruments case, the court stated the focus should be on the experience of the persons involved in the enterprise, the nature of the business activity, and the relevant market. Id. Applying these standards, we conclude SCNT's evidence of lost profits is not sufficient to support the jury's award of $5 million in benefit of the bargain damages for fraud. Cf. Bright v. Addison, 171 S.W.3d 588, 602-03 (Tex.App.-Dallas 2005, pet. denied) (expert witness testimony was sufficient to support lost profits where expert used actual data from operating casinos in calculations). We next consider the evidence to support the jury's answer of $1,348,920.75 to the first part of Question 7, inquiring about out-of-pocket damages for fraud.[4] The record shows the amount awarded by the jury in response to this question was the amount collected by Hernandez in SCNT's name. The record also showed, however, that in presenting its damages to the jury, SCNT subtracted from this amount the $661,572.84 in "payments for real estate" connected with the purchase of the real property for the casino project, claiming a total of $687,347.91 in damages. This latter amount was 175 awarded by the jury in response to Question 1, "loss of value" damages for conversion. Hernandez challenges the conversion damages specifically and all amounts of out-of-pocket damages generally by arguing that SCNT's pleadings defeated its right to recover. Hernandez argues that because SCNT is an unincorporated association, and because it pleaded Hernandez had no authority to enter into investor agreements, SCNT would not be bound by the investor agreements or liable to the investors under them. Hernandez cites the "general rule" that "unincorporated associations are not liable on their contracts, which are regarded as the liability of the individuals who sign them." See, e.g., Pitman v. Lightfoot, 937 S.W.2d 496, 527 (Tex.App.-San Antonio 1996, writ denied). Hernandez argues that the investor agreements were "his personal agreements" as a matter of law; he was personally liable under the agreements and therefore "the money in the accounts was his." Hernandez concludes SCNT suffered no damages because the money never belonged to it, and this question of law could not be established by the default judgment. We reject Hernandez's arguments. Assuming SCNT is an unincorporated association, it is nevertheless entitled to bring suit for the purpose of enforcing a substantive right. TEX.R. CIV. P. 28 ("Any... unincorporated association ... may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right...."). While Hernandez correctly notes that rule 28 does not enlarge the substantive rights of a party, neither does it diminish those rights. See TEX.R. CIV. P. 815 (substantive rights of parties unaffected by construction of rules). Whether or not SCNT would have been liable to third parties for breach of the investor agreements, Hernandez is not relieved of liability to SCNT for his own fraud or other breaches of duty. For example, Hernandez owed duties to SCNT, his client, even though it was an unincorporated association, and breach of those duties could result in damages to SCNT. See, e.g., TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.12 cmt. 2, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2005) (TEX. STATE BAR R. art. X, § 9) (lawyer employed or retained by organization represents the entity; rule applies to lawyers representing unincorporated associations). Hernandez's duty to his client included a duty of full disclosure, an "affirmative duty to make a full and accurate confession of all his fiduciary activities, transactions, profits, and mistakes." Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 22 (Tex. App.-Tyler 2000, pet. denied) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 312-14 (Tex.1984)). In soliciting investor funds for the casino project, Hernandez included a statement in the agreements with the investors that funds would be deposited into his IOLTA account, and he would "hold the funds in trust for SCNT for the use and benefit of the SCNT." The breach of the duty of full disclosure by a fiduciary is tantamount to fraudulent concealment. Chappell, 37 S.W.3d at 22 (citing Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988)). Further, "[a]n action will lie for conversion of money when its identification is possible and there is an obligation to deliver the specific money in question or otherwise particularly treat specific money." Houston Nat'l Bank v. Biber, 613 S.W.2d 771, 774 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.). The trial court properly submitted damages questions for the jury's determination. Because we conclude the evidence supports the amount of $687,347.91, 176 minus the $21,666.69 already paid to SCNT's principals, or $665,681.22, and we further conclude the evidence is factually insufficient to support an actual damages award in excess of $665,681.22, we sustain Hernandez's second and third issues to the extent they assert there is insufficient evidence to support an actual damage award in excess of $665,681.22. Therefore, we suggest a remittitur. This Court may suggest remittitur on its own motion when the appellant complains there is insufficient evidence to support an award and the court of appeals agrees, but concludes there is sufficient evidence to support a lesser award. Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 58 (Tex.App.-San Antonio 1995, no writ) (citing David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 838 (Tex.App.-Dallas 1984, writ ref'd n.r.e.)); see also TEX.R.APP. P. 46.3 (court of appeals may suggest remittitur). As explained by the supreme court in Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex.1987), If a court of appeals holds that there is no evidence to support a damages verdict, it should render a take nothing judgment as to that amount. If part of a damage verdict lacks sufficient evidentiary support, the proper course is to suggest a remittitur of that part of the verdict. The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded. Under these standards, SCNT should be given the option of accepting the remittitur or having the case remanded to the trial court. See TEX.R.APP. P. 46.3; Larson, 730 S.W.2d at 641. In his sixth issue, Hernandez contends there is no evidence or insufficient evidence to support the jury's award of $2,500,000 as exemplary damages for fraud. Hernandez argues that because the evidence is insufficient to support the jury's award of actual damages, the award of exemplary damages "must likewise be set aside." Similarly, in his seventh and tenth issues, he challenges the jury's three other awards of exemplary damages.[5] Hernandez does not challenge the jury's affirmative answers to Questions 2, 5, 8, and 11, the predicate questions for awards of exemplary damages. We must review an award of exemplary damages with careful scrutiny to ensure it is supported by the evidence, and we may vacate the award or suggest a remittitur only if the award is "so factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust." Khorshid, Inc. v. Christian, 257 S.W.3d 748, 767 (Tex.App.-Dallas 2008, no pet.). As noted above, in order to determine if the exemplary damages awarded were reasonable, we consider the factors set forth in Alamo National Bank v. Kraus, which include the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities of the parties concerned, and the extent to which such conduct offends a public sense of justice and propriety. See Ellis Cnty. State Bank, 936 S.W.2d at 686 (citing Kraus, 616 S.W.2d at 910); see also Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 926 (Tex.1998) (court of appeals must explain why evidence does or does not support 177 exemplary damages amount considering Kraus factors; similar requirements found in TEX. CIV. PRAC. & REM.CODE ANN. §§ 41.011 and 41.013); TEX. CIV. PRAC. & REM.CODE ANN. § 41.008 (West 2008) (limitations on amount of recovery of exemplary damages in relation to economic damages). If an appellate court finds that an award of exemplary damages is excessive, the court may suggest a remittitur. Khorshid, 257 S.W.3d at 757 (citing TEX. R.APP. P. 46.3). If the remittitur is timely filed, the court must reform and affirm the trial court's judgment in accordance with the remittitur. Id. If the remittitur is not timely filed, the court must reverse the trial court's judgment. Id. The judgment awarded the $2,500,000 found by the jury as exemplary damages for fraud. This amount was between the jury's highest exemplary damage award of $5 million for breach of fiduciary duty and its lowest exemplary damage award of $661,572.84 for conversion. We are not free to reweigh the evidence and set aside a jury verdict merely because we feel that a different result is more reasonable. Ellis Cty. State Bank, 936 S.W.2d at 685. Where a jury has probably considered improper items of compensatory damages in assessing exemplary damages, however, excessiveness may be indicated. Preston Carter Co. v. Tatum, 708 S.W.2d 23, 25 (Tex. App.-Dallas 1986, writ ref'd n.r.e.). As noted, the jury awarded $5 million in benefit of the bargain damages for fraud, improperly considering speculative lost profits, and it is probable the jury also considered the speculative lost profits in assessing exemplary damages. See id. (jury probably considered "improper and highly speculative" elements of damages in assessing exemplary damage amount; therefore, amount of exemplary damages should be reduced). Considering the Kraus factors, the evidence showed the nature of the wrong was Hernandez's intentional breaches of duty to his client. Although Hernandez's liability on each of SCNT's causes of action was established by default, SCNT introduced evidence regarding Hernandez's breaches of duty, self-dealing, and intent to cause harm. The evidence showed that SCNT and Hernandez had an attorney/client relationship; Hernandez used SCNT's name to raise money for the casino project without informing SCNT; made payments to himself from the funds he raised; sought to establish SCNT as a "domestic dependent Indian nation" until it furthered his own interest to challenge SCNT's standing; and attempted to start a new SCNT organization after SCNT's leadership questioned his actions and the trial court ordered him to cease acting on behalf of SCNT. At trial Hernandez continued to argue SCNT had ratified all of his actions by giving him full authority to manage the casino project, relying on documents that Hernandez himself had drafted. Each time it was asked, the jury found by clear and convincing evidence that Hernandez acted with malice or fraud. The harm to SCNT, however, was economic rather than physical. See Khorshid, Inc., 257 S.W.3d at 767. The character of the conduct involved was primarily limited to dishonesty and deceit. See id. While the degree of Hernandez's culpability was significant, the evidence showed that the funds Hernandez used were obtained from investors other than SCNT. The primary issue is precluding Hernandez from profiting from his fraud, as well as deterring similar disloyalty on the part of other fiduciaries. See Preston Carter Co., 708 S.W.2d at 24. With respect to the situation and sensibilities of the parties concerned, 178 the relationship between the parties was fiduciary, but also was a business relationship in which both parties hoped to profit from the plans for the casino. See Khorshid, Inc., 257 S.W.3d at 767; see also Preston Carter Co., 708 S.W.2d at 24-25. In reviewing the extent to which the conduct offends a public sense of justice and propriety, we consider the high loyalty required of a fiduciary, but we also consider that SCNT's economic loss can be recovered through monetary damages. See Preston Carter Co., 708 S.W.2d at 24; Khorshid, Inc., 257 S.W.3d at 767. After reviewing the entire record, applying the factors enumerated in Kraus, and considering the amount of compensatory damages properly recoverable, we conclude that exemplary damages are recoverable, but the $2,500,000 awarded to SCNT as exemplary damages in the judgment seems excessive in light of the harm. See Paramount Nat'l Life Ins. Co. v. Williams, 772 S.W.2d 255, 268 (Tex.App.-Houston [14th Dist.] 1989, writ denied) (appellate court suggested remittitur where exemplary damages awarded by jury were ten times actual damages, but "basic question" was whether insured or insurer would be charged with negligence of agent). We conclude a reasonable award of exemplary damages would be no more than $665,681.22, equivalent to the amount of actual damages properly recoverable, and that the award of $2.5 million is excessive by $1,834,318.78. See Preston Carter Co., 708 S.W.2d at 25 (suggesting remittitur of exemplary damages where jury probably considered improper items of compensatory damages, but evidence supported some amount of exemplary damages after application of Kraus factors). This amount is approximately the same as the jury's smallest award of exemplary damages; it is reasonably proportional to the actual damages supported by the evidence; and, as detailed above, it considers each of the factors outlined in Alamo National Bank v. Kraus. As with the award of actual damages, we suggest a remittitur in the amount of $1,834,318.78. We otherwise overrule Hernandez's issues challenging the jury's awards of exemplary damages. CONCLUSION We affirm the trial court's imposition of sanctions and striking of Hernandez's pleadings. We conclude the jury's award of actual damages is excessive in the amount of $683,239.53, and the jury's award of exemplary damages is excessive in the amount of $1,834,318.78, and suggest remittiturs. In accordance with rule 46.3 of the Texas Rules of Appellate Procedure, if appellee files with this Court, within fifteen days of the date of this opinion, a remittitur to $665,681.22 with respect to actual damages, and a remittitur to $665,681.22 with respect to exemplary damages, the trial court's judgment will be modified and affirmed. If the suggested remittiturs are not timely filed, the trial court's judgment will be reversed and the cause will be remanded. In all other respects, we affirm the trial court's judgment. SUPPLEMENTAL OPINION On March 31, 2011, this Court issued its original opinion in this case, in part suggesting a remittitur to $665,681.22 with respect to the actual damages awarded to appellee Sovereign Cherokee Nation Tejas, and a remittitur to $665,681.22 with respect to exemplary damages awarded to appellee Sovereign Cherokee Nation Tejas. This Court's opinion provided that if such remittiturs were filed by appellee within fifteen days of the date of the opinion, the trial court's judgment would be modified and affirmed. 179 On April 14, 2011, appellee timely filed with the clerk of this Court a Voluntary Consent to Suggestion of Remittiturs. In that filing, appellee requested that this Court modify the trial court's judgment consistent with our opinion and judgment in this matter. Therefore, we issue this supplemental opinion. In accordance with our original opinion of March 31, 2011 and appellee's timely remittiturs, the portions of the trial court's judgment awarding appellee $5,000,000.00 in actual damages and $2,500,000.00 in exemplary damages are reformed to award appellee $665,681.22 in actual damages and $665,681.22 in exemplary damages. See TEX.R.APP. P. 46.3. Further, the portions of the trial court's judgment relating to actual damages and exemplary damages are affirmed as reformed. See id. This Court's original opinion remains otherwise in effect. NOTES [1] The actual status of SCNT was hotly disputed by Hernandez at trial. At the time he sought investments in the casino project, he described SCNT's status in the prospectus he drafted as follows: The SCNT is not a federally recognized Nation, in accordance with the Department of the Interior and the Bureau of Indian Affairs. [BIA] The SCNT is acknowledged by the United States as a "domestic dependent nation" for all purposes. The federal courts and the State of Texas courts recognize the SCNT as a Nation. The U.S. Department of Justice acknowledges that the SCNT is a "domestic dependent Nation" under Cherokee v. Georgia, and that the SCNT is equivalent to a state. The SCNT has the ability to and does operate as a self-sufficient nation, for all purposes. Before trial Hernandez sought a writ of mandamus in this Court, complaining that the trial judge did not give full faith and credit to a final judgment of the SCNT court. See In re Chong Son Na & Frank P. Hernandez, No. 05-05-01020-CV, 2005 WL 1777119 (Tex.App.-Dallas, July 28, 2005, orig. proceeding) (mem. op.). This Court denied the writ. Id. At trial, however, Hernandez attempted to testify to his opinion that SCNT was not recognized as an Indian nation. SCNT then stipulated it was not a federally- or state-recognized Indian nation or Indian tribe. The trial judge accepted the stipulation, and at first noted that "they are going to be an unincorporated association of individuals," but then deferred any further ruling on SCNT's status or capacity until the close of evidence, if necessary. (In response to Hernandez's inquiry, "Let me get this clear. Are they, in the Court's ruling, an unincorporated association?", the trial judge responded, "I'm going to defer until the conclusion of all the evidence to rule on that if I need to rule on that, and I'll determine at the close of evidence if I need to rule on that one."). Other than overruling Hernandez's objection to the definition of SCNT given in the charge ("The terms `SCNT', `Sovereign Cherokee Nation Tejas' or `Plaintiff' shall mean and refer to the Sovereign Cherokee Nation Tejas."), the trial judge made no further ruling on SCNT's status or capacity. On appeal, Hernandez argues SCNT is an unincorporated association whose members cannot be bound by contracts between the association and any third party. To the extent this argument is relevant to his appeal of the jury's determination of damages, we address it below. [2] As a general rule, the jury has broad discretion to award damages within the range of evidence presented at trial, so long as a rational basis exists for its calculation. Mayberry v. Tex. Dep't of Agric., 948 S.W.2d 312, 317 (Tex.App.-Austin 1997, writ denied). The jury's findings will not be disregarded merely because its reasoning in arriving at its figures may be unclear. First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex.App.-Austin 1993, writ denied). The fact that there is nothing in the record to evidence how the jury arrived at a specific amount is not necessarily fatal to the verdict. Mayberry, 948 S.W.2d at 317. Instead, when the evidence supports a range of awards, as opposed to two distinct options, an award of damages within that range may be an appropriate exercise of the jury's discretion. Id.; see also Khorshid, Inc. v. Christian, 257 S.W.3d 748, 760 (Tex.App.-Dallas 2008, no pet.). [3] The record reflects that SCNT disavowed ownership in the real property in question, moved to cancel the notice of lis pendens on file, and "agreed to cooperate with Defendants in the legal transfer of said property to those persons determined to own such property." The trial court granted an agreed order on plaintiff's motion to cancel the notice of lis pendens, and ownership of the real property is not at issue. [4] When a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to judgment on the theory entitling him to the greatest or most favorable relief. Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988) (citing Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73 (1953)). If the judgment is reversed on appeal, the prevailing party may seek recovery under an alternative theory. Id. We therefore consider the sufficiency of the evidence to support the jury's awards of damages under an alternative theory presented in the charge. See also Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 650-51 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (court of appeals could consider sufficiency of evidence to support alternative theory of negligent misrepresentation after reversal of judgment for fraud). [5] In its response to Question 3, the jury awarded $661,572.84 in exemplary damages for conversion. In its response to Question 6, the jury awarded $5 million in exemplary damages for breach of fiduciary duty. In its response to Question 12, the jury awarded $2.5 million in exemplary damages for statutory fraud. Each of these answers followed a question in which the jury found Hernandez acted with malice or fraud by clear and convincing evidence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536332/	49 So.3d 1242 (2010) Robert TUCKER v. ALABAMA BOARD OF PARDONS AND PAROLES. CR-09-0209. Court of Criminal Appeals of Alabama. March 5, 2010. Rehearing Denied April 16, 2010. Robert Tucker, pro se. Gregory O. Griffin, Sr., chief counsel, and Steve M. Sirmon, asst. atty. gen., Alabama Board of Pardons and Paroles, for appellee. WISE, Presiding Judge. The appellant, Robert Tucker, filed a petition for a writ of certiorari, challenging the revocation of his parole. Without requiring a response by the Alabama Board of Pardons & Paroles ("the Board"), the circuit court summarily dismissed the petition on May 1, 2009, noting that the petition was not verified. On September 15, 2009, Tucker filed a "Motion for Relief of Judgment or Order" pursuant to Rule 60(b)(6), Ala. R. Civ. P., in which he sought to add a verification to his petition and to raise additional allegations about the revocation proceedings. The circuit court denied the motion on September 23, 2009. This appeal followed. On December 18, 2006, Tucker was released on parole. He asserted that, on October 15, 2007, the Board revoked his parole based on the fact that he had been arrested on new charges. However, he 1243 further asserted that those new charges were dismissed. Tucker argues that the circuit court erred in denying his Rule 60(b)(6) motion.[1] Rule 60(b), Ala. R. Civ. P., provides, in part: "(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. 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: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court. If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court. This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, supersedeas, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action." With regard to Rule 60(b) motions, the Alabama Court of Civil Appeals has held: "`A trial court's decision to deny a motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., for relief from a final judgment is itself a final judgment that will support an appeal; however, the only matter reviewable in such an appeal is the propriety of the denial.' Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ. App.2005). Except for motions brought pursuant to Rule 60(b)(4), whether a movant has established grounds for relief 1244 under Rule 60(b) is a matter within the sound discretion of the trial court. Ex parte Wal-Mart Stores, Inc., 725 So.2d 279 (Ala.1998). On appeal, this court will reverse a judgment denying relief under Rule 60(b) only if the trial court has exceeded its discretion. See Price v. Clayton, 18 So.3d 370 (Ala.Civ. App.2008)." Burleson v. Burleson, 19 So.3d 233, 238 (Ala.Civ.App.2009). The record in this case indicates that Tucker did not file a verified petition. "All applications for mandamus, prohibition, certiorari, or other remedial writ of a supervisory nature shall be commenced by a petition, verified by affidavit, in which the facts shall be stated as briefly and succinctly as the case will admit of. . . ." § 6-6-640, Ala.Code 1975. "The application in certiorari proceedings is a pleading within statutes relating to verification of pleadings. It is generally held that it must be verified, and the verification usually assumes the form of an affidavit." 14 C.J.S. Certiorari § 43 (1991) (footnotes omitted). Because Tucker did not verify his petition for a writ of certiorari, his case was not properly commenced, and there was not anything before the circuit court for review. See, e.g., Ex parte Ackles, 840 So.2d 145 (Ala.2002). Therefore, the circuit court summarily dismissed the petition on May 1, 2009. Afterward, Tucker filed a motion pursuant to Rule 60(b)(6), Ala. R. Civ. P., and attempted to file a verification for his petition. The mistake he sought to have corrected was his own error in not verifying his petition. Therefore, his motion was in the nature of a motion pursuant to Rule 60(b)(1), Ala. R. Civ. P., even though he styled it as a motion pursuant to Rule 60(b)(6), Ala. R. Civ. P., and we will treat it as such. See Ex parte Wal-Mart Stores, Inc., 725 So.2d 279 (Ala.1998); Higgins v. Douglas, 572 So.2d 1259 (Ala.1990); Chambers County Comm'rs v. Walker, 459 So.2d 861 (Ala.1984). However, he filed his motion more than four months after the circuit court's judgment dismissing the petition was entered. Thus, it appears that Tucker may have styled his motion as a motion pursuant to Rule 60(b)(6), Ala. R. Civ. P., in an attempt to avoid the four-month limitation that is applicable to motions pursuant to Rule 60(b)(1), Ala. R. Civ. P. In this regard, the Alabama Supreme Court has held: "Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5). Because clause (6) operates exclusively of the specific grounds listed in clauses (1) through (5), this Court has stated that a party may not escape the four-month limitation applicable to clauses (1) through (3) merely by characterizing the motion as seeking relief under clause (6). "Although grounds for relief under Rule 60(b)(1) generally cannot be valid grounds under Rule 60(b)(6), this Court has recognized an exception when, in the interest of justice, aggravating circumstances may be considered sufficient to allow the trial court to treat what would otherwise be a Rule 60(b)(1) motion as within Rule 60(b)(6). . . . [T]he Court has generally limited the application of this exception to circumstances where the dismissal was the result of mistake, inadvertence, or neglect of counsel and where, despite all diligence exercised to protect his own interests, the client was unable to reasonably protect his interests because he was misled about the status or conduct of his case by his *1245 counsel. This exception, therefore, applies to an extraordinary circumstance not contemplated by Rule 60(b)(1), for the purpose of protecting the public, vindicating the judicial process, and promoting the public's confidence in the legal system." R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229-30 (Ala.1994) (citations omitted). Tucker filed his motion, which was, in essence, a motion pursuant to Rule 60(b)(1), Ala. R. Civ. P., more than four months after the circuit court entered its order dismissing the petition for a writ of certiorari. Also, the record does not reflect that this is a case in which the dismissal was the result of mistake, inadvertence, or neglect of counsel and where, despite all diligence exercised to protect his own interests, Tucker was not able to reasonably protect his interests because he was misled about the status or conduct of his case by his counsel. Therefore, we do not find that there were extraordinary circumstances that would have allowed the motion to be treated as a motion pursuant to Rule 60(b)(6), Ala. R. Civ. P. Accordingly, the circuit court did not exceed its discretion in denying the motion, and we affirm the circuit court's judgment. AFFIRMED. WELCH, WINDOM, KELLUM, and MAIN, JJ., concur. NOTES [1] To the extent Tucker argues that the circuit court erred in denying his petition for a writ of certiorari, we note that "[a]n appeal from the denial of a Rule 60(b) motion does not bring the underlying judgment up for review, but presents only the question of propriety of the judgment denying the Rule 60(b) motion. Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala. 1979)." Bryant v. First Tuskegee Bank, 866 So.2d 1139, 1143 (Ala.Civ.App.2002), overruled on other grounds, Ex parte Full Circle Distribution, LLC, 883 So.2d 638 (Ala.2003). Therefore, any argument about the May 1, 2009, dismissal of the petition is not properly before this court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539919/	718 F. Supp. 2d 1186 (2010) James F. and Connie B. ALDERSON; Justin W. and Kristen N. Alderson; and Jennifer A. and Walter Page, Plaintiffs, v. UNITED STATES of America, Defendant. No. CV09-6155 SVW (MLGx). United States District Court, C.D. California. May 27, 2010. 1188 David B. Porter, Robert Warren Wood, Wood & Porter, San Francisco, CA, for Plaintiffs. Thomas Derrick Coker, AUSAOffice of U.S. Attorney, Los Angeles, CA, for Defendant. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDMENT [11]; DENYING PLAITIFFS' MOTION FOR SUMMARY JUDGMENT [17] STEPHEN V. WILSON, District Judge. I. INTRODUCTION Plaintiffs seek to obtain a tax refund by characterizing their False Claims Act qui tam award as capital gains rather than ordinary income. Plaintiffs' Complaint presents a question of first impression II. FACTS Plaintiff Jim Alderson was the Chief Financial Officer for the North Valley Hospital in Whitefish, Montana. Beginning in 1990, Quorum Health Group, Inc. ("Quorum") took over management of the hospital. Quorum instructed Alderson to retain two sets of cost reports: one to submit to the federal government's Medicare program when seeking reimbursements and another to submit to the hospital's auditors. Quorum requested that the Medicare books contain more aggressive cost reporting in order to increase the amount of proceeds received from Medicare. When Alderson refused to maintain the separate sets of books, he was fired. He then brought a wrongful termination action, which settled in late 1993. In the course of discovery during the wrongful termination proceedings, certain Quorum officials' testimony suggested that Quorum was engaged in Medicare fraud. In January 1993, Alderson filed a qui tam False Claims Act action against Quorum and related entities. The Department of Justice interviewed Alderson about the lawsuit in 1993, and ultimately decided to intervene in the action five years later. The United States then severed the actions against Quorum and its affiliate Hospital Corporation of America ("Hospital Corporation").[1] The present lawsuit only relates to the qui tam action against Hospital Corporation. In 1999, Alderson formed the Alderson Family Limited Partnership and transferred to the partnership 40% of his interest in the qui tam claim against Hospital Corporation. Alderson then transferred 49% shares in the Alderson Family Limited Partnership to each of his children and retained 1% shares in the Alderson Family Limited Partnership for himself and his wife.[2] In order to calculate the gift taxes owed on the transfer to the children, Alderson hired an appraiser to estimate the value of the qui tam claim. Plaintiffs submit evidence showing that the appraiser valued the claim at slightly more than $3,000,000. In June 2003, the United States and Hospital Corporation settled the False Claims Act suit involving Medicare fraud. The district court awarded Plaintiff 16% of the settlement proceeds. Plaintiffs received a total of $27,105,035 as a result of the settlement. After receiving these funds, all of the Plaintiffs initially reported their qui tam recovery as ordinary income. They now seek to recharacterize the income as capital 1189 gains. They have satisfied the procedural prerequisites for bringing the present action seeking a refund. III. LEGAL STANDARD The parties have filed cross-motions for summary judgment. If there were factual disputes, the taxpayer would bear the initial burden of showing that its legal contentions were supported by the evidence; following that initial showing, the burden would shift to the Government. Fed. R.Civ.P. 56(c); 26 U.S.C. § 7491; Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). However, "[i]n this case, there are no disputes about the material facts; the only question is the legal question of whether ... the [qui tam recovery] should be taxed as ordinary income [or] as a[ ] capital gain." See Trantina v. United States, 512 F.3d 567, 570 n. 2 (9th Cir.2008). Based on the undisputed facts stated above, the Court reaches the following legal conclusions. A. False Claims Act In order to fully understand the nature of Plaintiffs' recovery under the False Claims Act, it is necessary to briefly summarize the False Claims Act's structure and purpose. The False Claims Act establishes liability for "[a]ny person" who "knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval." Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 769, 120 S. Ct. 1858, 146 L. Ed. 2d 836 (2000) (quoting 31 U.S.C. § 3729(a)). Liability is established either by way of a direct suit brought by the Government or a qui tam suit brought by a private plaintiff. Id. (citing 31 U.S.C. § 3730(a)-(b)(1)). In a qui tam suit, the private plaintiff (known as a "relator") must file the suit under seal and provide the Government a copy of the pleadings and supporting evidence. Id. (citing 31 U.S.C. § 3730(b)(2)). The Government must decide whether to intervene in the action within sixty days; if the Government initially declines to intervene, it may intervene at a later time upon a showing of good cause. Id. (citing 31 U.S.C. § 3730(b)-(c)). If the Government fails to intervene and the relator successful proceeds to judgment, the relator is entitled to receive 25 to 30 percent of the recovery (plus fees and costs) and the Government receives the remainder. Id. at 770, 120 S. Ct. 1858 (citing 31 U.S.C. § 3730(d)(2)). If the Government intervenes and the action is "based primarily on disclosures" contained in government reports or news accounts, the relator may recover zero to ten percent of the final judgment, but only if the relator possessed "direct and independent knowledge of the information" upon which the suit was based. See 31 U.S.C. § 3730(d)(1), (e)(4); Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, ___ U.S. ___, 130 S. Ct. 1396, 1402-04, 176 L. Ed. 2d 225 (2010); Rockwell Intern. Corp. v. United States, 549 U.S. 457, 127 S. Ct. 1397, 167 L. Ed. 2d 190 (2007). If the Government intervenes and the relevant information was not publicly disclosed prior to the lawsuit, the relator may recover fifteen to twenty-five percent of the of the final judgment. Vermont Agency of Natural Resources, 529 U.S. at 769-70, 120 S. Ct. 1858 (citing 31 U.S.C. § 3730(d)(1)). The Supreme Court has explained that the relator obtains Article III standing because "the assignee of a claim has standing to assert the injury in fact suffered by the assignor." Id. at 773, 120 S. Ct. 1858. Under this framework, "[t]he [False 1190 Claims Act] can reasonably be regarded as effecting a partial assignment of the Government's damages claim." Id. Therefore, "the relator's bounty" is not merely "the fee he receives out of the United States' recovery for" his services of "filing and/or prosecuting a successful action on behalf of the Government." See id. at 772, 120 S. Ct. 1858. Rather, as the Court explained, in addition to the relator's recovery based on his services, the False Claims actlike all qui tam actions"allow[s] informers to obtain a portion of the penalty as a bounty for their information." Id. at 775, 120 S. Ct. 1858 (emphasis added); see also id. at 776 & nn. 5-7, 120 S. Ct. 1858 (noting history in United States of "several informer statutes expressly authorizing qui tam suits"). Numerous other courts have characterized the False Claims Act's qui tam provision in various ways, but the common core of their characterizations is that the relator receives a portion of the Government cause of action in exchange for the relator's information and (in some cases) services. The Ninth Circuit has stated that the law "operate[s] as an enforceable unilateral contract" which is "accepted by the relator upon filing suit." United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir.1993). The Fifth Circuit has explained that, through the Act, "the government seeks to purchase information it might not otherwise acquire." United States ex rel. Russell v. Epic Healthcare Management Group, 193 F.3d 304, 309 (5th Cir.1999); see also United States ex rel. Hebert v. Dizney, 295 Fed.Appx. 717, 723 (5th Cir.2008) (same) (citable pursuant to Fed. R.App. P. 32.1(a)). The Federal Circuit and the Tax Court have described the qui tam payment as a "reward" provided in exchange for the relator's "efforts," Roco v. Comm'r, 121 T.C. 160, 165 (2003), and for "successfully bringing suit on behalf of the government." SKF USA, Inc. v. United States Trade Comm'n, 556 F.3d 1337, 1355-56 (Fed.Cir.2009). The payment "is a financial incentive for a private person to provide information and prosecute claims relating to fraudulent activity." Id. (citations omitted) (emphasis added). In short, the overwhelming weight of the caselaw holds that a False Claims Act qui tam award is given in exchange for information and services. To the extent that there is any doubt about the nature of the qui tam award, it is helpful to focus on the language of the statute, which plainly establishes that the award is a payment in exchange for the relator's information and services. The statute provides three levels of recovery to the relator. If the qui tam suit is "based primarily on disclosures of specific information" disclosed in a government report or the news media, the relator is entitled to up to ten percent of the recovery based on "the significance of the information [provided by the relator] and the role of the [relator] in advancing the case to litigation." 31 U.S.C. § 3730(d)(1). If the suit is based on nonpublic information and the Government intervenes, then the relator is entitled to 15 to 25 percent "depending upon the extent to which the person substantially contributed to the prosecution of the action." Id. If the Government does not intervene and the relator is solely responsible for prosecuting the action, then the relator is entitled to recover 25 to 30 percent of the recovery. 31 U.S.C. § 3730(d)(2). In short, the qui tam awardwhether it is viewed as a contract between the relator and the Government, a bounty, a reward, or something differentis based entirely on the relator's information and personal efforts. As stated by the Ninth Circuit: "the extent of the recovery is tied to the importance of the relator's participation in the action and the relevance of the information 1191 brought forward." United States ex rel. Green v. Northrop Corp., 59 F.3d 953, 964 (9th Cir.1995); accord Black's Law Dictionary 211, 1435 (9th ed.2009) (defining "bounty" as a payment given "to induce someone to take action or perform a service," and defining "reward" as a payment given in return for services (such as recovering property) or information (such as information used to capture a criminal)). B. Capital Gains Treatment The parties do not dispute that the qui tam award is taxable income. That question appears to be settled. See Brooks v. United States, 383 F.3d 521 (6th Cir.2004) (holding that False Claims Act award is taxable income); Campbell v. Comm'r, 134 T.C. No. 3 (2010) (same); Roco v. Comm'r, 121 T.C. 160 (2003) (same). Here, the dispute is whether or not the award is characterized as a capital gain or as ordinary income. 1. Basic Principles of Capital Gains Half a century ago, the Supreme Court established the basic structure for determining if capital gains treatment is appropriate: Long-established principles govern the application of the more favorable tax rates to long-term capital gains: (1) There must be first, a `capital asset,' and second, a `sale or exchange' of that asset; (2) `capital asset' is defined as `property held by the taxpayer,' with certain exceptions not here relevant; and (3) for purposes of calculating gain, the cost or other basis of the property must be subtracted from the amount realized on the sale or exchange. Comm'r v. Gillette Motor Transport, Inc., 364 U.S. 130, 133-134, 80 S. Ct. 1497, 4 L. Ed. 2d 1617 (1960) (internal citations omitted) (quoting predecessor of 26 U.S.C. ("I.R.C.") § 1221). The principal concern in the present action is the second point in the list: the definition of "capital asset." The Tax Code provides the following definition: "For purposes of this subtitle, the term `capital asset' means property held by the taxpayer (whether or not connected with his trade or business)." I.R.C. § 1221(a).[3] 2. The "Property" Requirement "[T]he first step in determining whether the sale or exchange of an asset receives capital treatment is deciding whether or not the asset is property." Scott Shimick, 4 Mertens Law of Federal Income Taxation, § 22:4 (May 2010 update) ("Mertens"). When defining the scope of the term "property," state law is instructive but not determinative because the Tax Code is a creature of federal, not state, law. See Miller v. Comm'r, 299 F.2d 706, 708 (2d Cir.1962); Mertens § 22:4. In determining whether a property right exists, "[t]he ordinary technique is to refer to principles of state property law for, if not an answer, at least a hint. Since ultimately it is the Congressional purpose which controls, such non-tax definitions are certainly not binding on us. On the other hand, Congress may be presumed to have had ordinary property concepts in mind so they are relevant to our inquiry." Miller, 299 F.2d at 708. The leading case on this issue is Miller v. Comm'r, in which the Second Circuit held that "publicity rights" were not "property" and, as such, the sale of those publicity rights could not receive capital gains treatment. The case involved Glenn Miller's widow, who had sold the rights to 1192 produce the movie The Glenn Miller Story to Universal Pictures. Id. at 707. The court explained that "at the time of the `sale' there were no clear-cut decisions protecting publicity rights of a deceased celebrity," and there was no authority to support the proposition that "the reputation or fame of a dead person could give rise to ... `property rights.'" Id. at 709 (internal quotations and alterations omitted). Accordingly, the "sale" of these "rights" was not a sale of a legally recognized form of property. Rather, Universal Pictures had merely purchased a hedge against the "chance that a new theory of `property' might be advanced [in the future], and that a lawsuit predicated on it might be successful." Id. at 710. The court concluded: "We do not believe that for income tax computation purposes the beneficiaries of the estate of a deceased entertainer received by descent a capitalizable `property' in the name, reputation, right of publicity, right of privacy or `public image' of the deceased; or that in this case the petitioner, for tax purposes, owned any `property' which came into existence after Glenn Miller's death." Id. at 711. Absent the exchange of any "property" interest, the payment from Universal was accordingly treated as ordinary income rather than capital gains. Id.; see also Estate of Scharf v. Comm'r, 38 T.C. 15, 28-29 (1962) (holding that the sale of a "membership certificate" in a non-profit hospital, which represented only the right to participate in management of hospital, was not a sale of "property"). More recently, the Ninth Circuit has explained that, even where "property" exists, that property must have been owned by the taxpayer prior to being "sold" or "exchanged" for tax purposes. Trantina v. United States, 512 F.3d 567. The court examined an agency agreement between an insurance company and the taxpayer (who was an insurance agent). The court concluded that the taxpayer was not entitled to capital gains treatment with respect to his purported sale of intangible assets such as customer lists and goodwill to the insurance company. Per the terms of the parties' agency agreement, ownership of these intangible assets was retained by the insurance company rather than the taxpayer. In other words, the taxpayer "simply had no property that could be sold or exchanged" for purposes of receiving capital gains treatment. Id. at 573. In short, without any property, there can be no capital asset; and without any capital asset, there can be no capital gains. 3. The "Capital Asset" Requirement If it is established that some form of "property" is at issue, the Court must further determine whether the property constitutes a "capital asset." The Supreme Court has explained that, although the Tax Code defines "capital asset" as "property held by the taxpayer," see I.R.C. § 1221(a), "it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset." Gillette, 364 U.S. at 134, 80 S. Ct. 1497. The Court continued: "This Court has long held that the term `capital asset' is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year." Id. Accordingly, in Gillette, the Court held that the taxpayer's receipt of rent to use its business facilities was not a "capital asset" for taxation purposes. The case involved the following facts. The government had temporarily seized a motor carrier's transportation facilities during World War Two. Id. at 130-31, 80 S. Ct. 1497. Pursuant to the Fifth Amendment Takings 1193 Clause, the government compensated the taxpayer for the temporary taking of the property. Id. at 132-33, 80 S. Ct. 1497. The Supreme Court was then asked to determine the appropriate tax treatment of this compensation. The Court explained that the government had seized the "right to use" the facilities rather than the physical facilities themselves. Id. at 135, 80 S. Ct. 1497. The Court accordingly held that, although the taxpayer's "right to use its facilities was held to be a valuable property right compensable under the requirements of the Fifth Amendment ..., that right was not a capital asset within the meaning of the capital gains provisions of the Tax Code. Id. at 135, 80 S. Ct. 1497. The Court justified its conclusion by reference to two basic facts: first, the "right" to use the facilities was "not something in which [the taxpayer] had any investment" of capital; second, the right to use the facilities "is manifestly not of the type which gives rise to the hardship of the realization in one year of an advance in value over cost built up in several years, which is what Congress sought to ameliorate by the capital-gains provisions." Id.[4] Over time, the Ninth Circuit has distilled the Supreme Court's discussion in Gillette into a clear but flexible framework: "The essence of a capital transaction within the tax statutes and decided cases is that the sale or exchange of an asset results in a return of a capital investment coupled with realized gain or loss (as the case might be) which accrues to the investment over a certain period of time." Holt v. Comm'r, 303 F.2d 687, 691 (9th Cir. 1962). In one of its two most recent cases on the subject, the Ninth Circuit treated Gillette as setting forth two factors that can be "crucial" to determining whether capital gains treatment is appropriate: (1) whether the taxpayer "ma[d]e any underlying investment of capital in return for the receipt of the purported capital asset, and (2) whether "the sale of [t]his right... reflect[s] an accretion in value over cost to any underlying asset ... held" by the taxpayer. United States v. Maginnis, 356 F.3d 1179, 1183 (9th Cir.2004). (After establishing this test, the court then added that "we do not hold that [these factors] will be dispositive in all cases.") In applying this test, the Ninth Circuit has explained that a taxpayer's economic opportunity costs are not an "investment of capital." In Trantina, the taxpayer argued that "he made a substantial economic investment in [his employment] Agreement that increased over the years." 512 F.3d at 575. This argument was based on "the economic opportunity cost that he incurred when he decided to pursue a career as an insurance agent instead of something else." Id. The court rejected this argument, explaining that "[t]his argument sweeps far too broadly. Every individual incurs an opportunity cost when he or she decides to take one course of action instead of another. To use opportunity cost as the basis for a capital investment would render not only every employment contract, but also every economic exchange, a capital asset." Id. 1194 In other words, in order for property to be characterized as a "capital asset," there must first be an investment of "capital" in that asset. 4. Remaining Principles A few additional principles must also be mentioned. A taxpayer's sale or exchange of a contract is not necessarily a sale or exchange of "property." Trantina, 512 F.3d at 571-72. Rather, the court must examine the "the nature of the rights granted" by the contract. Furrer v. Comm'r, 566 F.2d 1115, 1117 (9th Cir.1977) (per curiam). In a similar vein, payments "made pursuant to, not in exchange for" a contract are not capital gains. Trantina, 512 F.3d at 574 (emphasis in original). Likewise, a taxpayer's sale or exchange of a cause of action is not necessarily a sale or exchange of "property." Rather, the court must scrutinize and the "nature of the claims asserted" in the lawsuit. Furrer, 566 F.2d at 1117. At the heart of these conclusions are the doctrines that courts must look to the substance rather than the form of a transaction, and courts must look to the "origin of the claim" when determining how to characterize it. Courts must reject a taxpayer's "attempted transubstantiation of income into capital" where "the essential elementthe capital asset, tangible or intangibleis not present." Id. IV. DISCUSSION The thrust of Plaintiffs' argument is contained in the opening of their Motion for Summary Judgment: Under applicable law, an exchange of secret information and know-how in return for cash or property is a capital transaction. In 1993, Alderson exchanged a capital asset in the form of information and know-how for a capital asset in the form of his qui tam claim and its corresponding contract rights. Thereafter, in 2003, Alderson (and the Alderson Family Limited Partnership) released the Claim and its corresponding contract rights for a cash relator share. This cash payment consummated the disposition of a capital asset. (Pls.' Mot. at 2, internal citations and abbreviations omitted). As will be explained infra, Plaintiffs' argument fails because its very premise that Alderson possessed a capital asset in the form of "secret information and knowhow"is incorrect. It is true, of course, that Alderson provided information to the Government. However, that information was neither "property" nor a "capital asset" for purposes of the Tax Code. Absent any "property" that is a capital asset, there necessarily cannot be any capital gains. See I.R.C. § 1221. A. The Parties' Arguments First, it is helpful to lay out the purported mechanics of the transactions at issue. Plaintiffs assert that "Alderson possessed property in the form of: (1) information and know-how he transferred to the government in exchange for his Claim; (2) the Claim itself; and/or (3) the contract rights encompassed by the Claim." (Pls.' Mot. at 9 n. 15.) Plaintiffs assert that Alderson's first capital transaction occurred when he exchanged "secret information and knowhow" to the Government in exchange for a portion of the False Claims Act recovery. (Id. at 9.) According to Plaintiffs, this "secret information" and "know-how" was a capital asset because it was valuable secret information. Plaintiffs further argue that, once Alderson received his portion of the qui tam claim, he still possessed a capital asset because "case law treats a cause of action or `chose in action' as intangible personal property and a capital asset." (Pls.' Mot. 1195 at 15.) "Alderson's [qui tam] Claim encompassed contract rights to a relator share" of the final recovery. (Id.) These contract rights, according to Plaintiffs, were also capital assets, because "[m]any contract rights receive capital gains treatment upon their disposition." (Id. at 16.) The final "disposition" of this contract right occurred when Plaintiffs ultimately received a 16% award from the District Court at the end of the False Claims Act litigation. (Id.) Plaintiffs correctly point out that the relevant inquiry is to look at the "origin of the claim" to determine whether the ultimate recovery is ordinary income or capital gains. (Id. at 17.) Substantial caselaw supports this view. E.g., United States v. Gilmore, 372 U.S. 39, 47-49, 83 S. Ct. 623, 9 L. Ed. 2d 570 (1963); Getty v. Comm'r, 913 F.2d 1486, 1491 (9th Cir.1990). Plaintiffs also correctly point out that "[t]he origin of Alderson's Claim was his secret information and know-how and rights to its value." (Pls.' Mot. at 17.) Based on these basic premises, Plaintiffs contend that because the information and know-how were capital assets, the property received by Alderson in exchange for that information and know-howthat is, the False Claims Act cause of action and/or the contractual right to a portion of the False Claims Act recoveryalso constituted capital assets. (Id.) Plaintiffs' entire line of argument rests on a shaky foundation. As described in further detail infra, Alderson's purported "know-how" and "secret information" simply do not constitute "property" under any applicable body of law. The Government correctly argues that "Plaintiffs' allegations beg the question[ ]: how does an individual acquire a proprietary interest in knowledge of fraudulent and unlawful conduct[?]" (Defs.' Mot. at 10, emphasis in original.) Likewise, the Government contends that "Alderson ... discovered illegal activity and disclosed it to obtain a handsome reward. The contention that information about illegal activity is equivalent to having knowledge of a `trade secret' is wholly without merit.... Neither authority, nor logic nor common sense support the conclusion that an individual's knowledge about illegal conduct constitutes a property interest or a capital asset." (Defs.' Reply at 6.) This threshold questionwhether there is any "property"is central to this case. If Plaintiffs lack a property interest in the information that formed the basis of the False Claims Act claim, then Plaintiffs are necessarily prohibited from seeking capital gains treatment. See I.R.C. § 1221(a) (defining "capital asset" as "any property" held by the taxpayer); see also Trantina, 512 F.3d at 573. B. The Nature of Property Rights With respect to Plaintiffs' apparent argument that information qua information is "property," this argument fails. In order to possess a property right, whether tangible or intangible, a person must be able to exclude others from using or taking the purported property. As explained by the Supreme Court, "[t]he right to exclude others is generally one of the most essential sticks in the bundle of rights that are commonly characterized as property." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011, 104 S. Ct. 2862, 81 L. Ed. 2d 815 (1984) (citation and quotations omitted); see also Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979) ("[T]he `right to exclude[ ]' [is] universally held to be a fundamental element of the property right.") (quoting, inter alia, Int'l News Svc. v. Ass'td Press, 248 U.S. 215, 250, 39 S. Ct. 68, 63 L. Ed. 211 (1918) (Brandeis, J., dissenting) ("[a]n essential element of individual property is 1196 the legal right to exclude others from enjoying it.")). This general principle is an element of all the relevant bodies of law.[5] This principle is supported by federal law as stated by the Supreme Court (which is relevant because this case involves the Internal Revenue Code), Montana (which is potentially relevant because that is where Plaintiff was employed), Florida (which is potentially relevant because that is where Hospital Corporation was located and where the False Claims Act suit was litigated) and California (which is potentially relevant because it is where Plaintiffs currently reside, see Compl. ¶ 2). The Ninth Circuit has distilled a threepart test for determining whether a property right exists: "First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity." G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 903 (9th Cir.1992), cert. denied 508 U.S. 959, 113 S. Ct. 2927, 124 L. Ed. 2d 678 (1993); see also Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir.2003) (same). Although this test is derived from California state law, it is based on well-established principles that are fundamental to the common law conception of property. The Ninth Circuit's test is consistent with the other relevant bodies of law. The Rasmussen three-part framework has been explicitly adopted as an accurate statement of Montana law. Berger v. Cable News Network Inc., No. CV 94-46-BLG-JDS, 1996 WL 390528, at 4 (D.Mont. Feb. 26, 1996).[6] Furthermore, this three-part test is consistent with the federal courts' interpretation of property rights under Florida law.[7] In Morris Comms. Corp. v. PGA Tour, Inc., 235 F. Supp. 2d 1269, 1281 (M.D.Fla.2002), the court held that the PGA Tour (a professional golf association) held a property right in scores of golf matches that had been compiled in real-time. The court explained that this property right was premised on the fact that the "PGA Tour controls the right of access to that information and can place restrictions on those attending the private event" to prevent them from disseminating the information. Id. The court also noted that this "property right vanishes when the scores are in the public domain." Id.[8] This analysis is consistent with the Ninth Circuit's three-part test, and like the Supreme Court's cases focuses on the importance of excluding 1197 third parties from accessing the "property." In other words, all of the potentially relevant bodies of lawthe general common law as interpreted by the United States Supreme Court; California law as interpreted by the Ninth Circuit; Montana law as interpreted by the federal district court in that state; and Florida law as interpreted by the federal courts in that statehold that property rights only exist if the person asserting the property right has a legitimate claim to the exclusive possession of that right and is capable of excluding others from such possession. C. Under General Principles of Property Law, Alderson Did Not Possess a Property Right Here, it is clear that Alderson did not have the right to exclude others from obtaining his "secret information" and "know-how." The "secret information" and "know-how" was nothing more than the knowledge that Alderson's employer was engaged in wrongdoing. Alderson's "information" and "know-how" was also known by Alderson's employer, Quorum Health Group. Indeed, Plaintiffs have introduced the undisputed fact that "Quorum's district vice-president informed Alderson of Quorum's policy to keep two sets of cost reports: an aggressive report to submit to Medicare for cost reimbursement; and a reserve report to submit to Quorum's auditors." (Pls. SUF ¶ 3.) Plaintiffs have also introduced the undisputed fact that, "[d]uring discovery [in Alderson's 1991 wrongful termination action], Alderson deposed certain Quorum officials, whose testimony suggested improprieties in its cost reporting policies." (Pls. SUF ¶ 6.) In other words, Plaintiffs admit that Alderson's valuable "information" was also known by "Quorum's district vice president" and "certain [other] Quorum Officials." Plaintiffs fail to introduce any evidence suggesting that Alderson knew of additional secret information beyond that which was also known by the company's executives. In short, Plaintiffs have failed to show that Alderson possessed exclusive information about Quorum's wrongdoing and that he had the right to exclude other individuals from possessing such information. Alderson therefore did not possess a property right in the "know-how" and "information." D. Under the More Specific Rules Regarding Trade Secrets, Alderson Did Not Possess a Property Right Just as Plaintiffs have not identified any property right within the generally accepted definitions of property law, Plaintiffs have likewise failed to show that Alderson possessed a property right under the more specific rules regarding trade secrets. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011, 104 S. Ct. 2862, 81 L. Ed. 2d 815 (1984) (holding that trade secrets are property rights for Fifth Amendment purposes); Nelson v. Comm'r, 203 F.2d 1 (6th Cir.1953) (holding that "secret process" or "know-how" was a capital asset); Plaintiffs repeatedly refer to the relevant information as "secret information and know-how," and insist that the tax caselaw recognizes "secret information and know-how" as a capital asset. (Pls.' Mot. at 9.) Plaintiffs are correct that the caselaw recognizes certain "secret information and know-how" as a capital asset. See generally David L. Cameron & Thomas Kittlekamp, Fed. Income Taxation of Intellectual Property & Intangible Assets ¶ 4.01 (2009 supp.). Plaintiffs fail to recognize, however, that older cases discussing "secret information and know-how" were discussing the doctrines that are now codified as "trade secrets." Plaintiffs studiously 1198 avoided using the term "trade secret," and they make no effort to show that their purported "secret information and know-how" satisfies any relevant body of trade secrets law. However, their arguments and citations require the Court to examine the viability of their arguments under established trade secrets doctrine. It is important to keep in mind that modern courts no longer use Plaintiffs' terminology of "know-how" and "secret information"; rather, these terms were used by older courts to refer to the law of trade secrets during its formative period. The modern law of "trade secrets" has solidified and superceded the former rules regarding "know-how" and "secret information." See 1-1 Milaram on Trade Secrets § 1.01[2][a] ("[I]n 1966 the Patent Section of the American Bar Association extensively discussed a resolution to the effect that `the ABA favors the enactment of a uniform state law to protect against the wrongful disclosure or wrongful appropriation of trade secrets, know-how or other information maintained in confidence by another.'") (quoting National Conference of Commissioners on Uniform State Laws, Recommendation re: Uniform Trade Secrets Protection Act, Feb. 17, 1968). Today, "[t]he words `trade secrets,' `knowhow,' and `confidential information' are in fact often used interchangeably, both by parties to agreements and the courts." 1-1 Milaram on Trade Secrets § 1.01; see also Uniform Trade Secrets Act § 1 cmt. (1985 rev.) ("The words `method [and] technique' [as used in the Uniform Trade Secrets Act's definition of trade secret] are intended to include the concept of `know-how.'") (emphasis added); Restatement (Third) of Unfair Competition § 39 cmt. d (1995) (describing "know-how" as a type of "trade secret") (emphasis added); Black's Law Dictionary 950, 1633 (providing cursory definition of "know-how" that cross-references the much lengthier and more elaborate definition of "trade secret"); Black's at 881 (defining "intellectual property" as "compris[ing] primarily trademark, copyright, and patent rights, but also includ[ing] trade-secret rights, publicity rights, moral rights, and rights against unfair competition") (emphasis added). Accordingly, the Court will address Plaintiffs' arguments about "secret information and know-how" in accordance with trade secrets law. Generally speaking, the law of trade secrets protects customer lists, chemical formulas, manufacturing processes, and the likenot "secret" information about an ongoing fraud. See generally. 1-1 Milaram on Trade Secrets § 1.09. Indeed, in the definitive trade secrets treatise (which contains more than 180 pages and 700 footnotes devoted solely to illustrating "examples of matters which do or do not qualify as trade secrets"), there is only a single case even discussing the applicability of trade secrets law to a person's knowledge of ongoing wrongdoing. See id. at n. 688 (citing KLM Royal Dutch Airlines, N.V. v. deWit, 98 Misc. 2d 946, 947, 415 N.Y.S.2d 190 (N.Y.Sup.Ct.1979); see also infra footnote 12 (discussing KLM Royal Dutch Airlines).) Here, Plaintiffs have not made a prima facie showing that a trade secret exists. To the extent they argue that Alderson's "know-how" and "information" was a trade secret, Plaintiffs use the following line of analysis: Alderson possessed information; the information was secret; he took steps to preserve its secrecy by filing the lawsuit under seal[9]; the information was only 1199 valuable to him if it was secret (because otherwise, Alderson would be limited to a 0-10% recovery under the "public source" provision of the False Claims Act); and the information was only valuable to Hospital Corporation if it was secret (because otherwise the Government would bring a lawsuit to recover on the fraud). Plaintiffs' argument is misguided. Under all of the relevant bodies of law,[10] there are three basic requirements for establishing a trade secret: (1) there is information (2) which is kept secret by reasonable means and (3) derives economic value from its secrecy. See Uniform Trade Secrets Act § 1(4).[11] The fundamentally important element is "secrecy"the information must be the subject of reasonable efforts to maintain secrecy, and it must derive its economic value from that secrecy. Indeed, it is the secrecy of the information that permits it to be treated as "property," because secrecy allows the informationholder to exclude others from using that information. See Monsanto, 467 U.S. at 1011, 104 S. Ct. 2862 ("With respect to a trade secret, the right to exclude others is central to the very definition of the property interest. Once the data that constitute a trade secret are disclosed to others, or others are allowed to use those data, the holder of the trade secret has lost his property interest in the data."); DVD Copy Control Ass'n, Inc. v. Bunner, 31 Cal. 4th 864, 881, 4 Cal. Rptr. 3d 69, 75 P.3d 1 (2003) ("[P]rohibiting the disclosure of trade secrets acquired by improper means is the only way to preserve the property interest created by trade secret law and its concomitant ability to encourage invention. `Trade secrets are a peculiar kind of property. Their only value consists in their being kept private.'") (quoting In re Iowa Freedom of Information Council, 724 F.2d 658, 662 (8th Cir.1983)). In the present case, as discussed supra, there simply was no "secrecy" regarding Quorum's wrongdoing. Alderson was not the only person who knew about the fraudulent accounting practices: Quorum executives also knew this information. Alderson simply had no means of preventing those 1200 executives from disclosing this shared information.[12] In addition, the Court disagrees with Plaintiffs' legal premise that a person can receive trade secret protection for information about ongoing illegal activities. A trade secret only exists if the secret-holder takes reasonable efforts to maintain the secrecy of the information. See Uniform Trade Secrets Act § (1)(4)(ii). This element simply cannot be satisfied with respect to information about ongoing illegality. There is no objectively "reasonable" method for concealing information about ongoing illegality. Courts have consistently refused to enforce post-employment confidentiality agreements that sought to prevent a former employee from revealing harmful information about the employer's illegality. See Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853-54 (10th Cir.1972) (refusing to enforce oil company's confidentiality agreement because it would have the effect of concealing evidence of tortious and/or criminal slantdrilling into competitor's oilfield); McGrane v. Reader's Digest Ass'n, 822 F. Supp. 1044, 1052 (S.D.N.Y.1993) ("Disclosures of wrongdoing do not constitute revelations of trade secrets which can be prohibited by agreements binding on former employees."). In the absence of the ability to take "reasonable efforts" to maintain secrecy through confidentiality agreements, there simply cannot be any trade secret about ongoing illegality. Notably, this conclusion is consistent with the underlying justifications of trade secrets law, which include "[t]he maintenance of standards of commercial ethics." Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481-482, 94 S. Ct. 1879, 40 L. Ed. 2d 315 (1974). "Commercial ethics" are not maintained if businesses are able to conceal illegality. In short, there was no "trade secret" because (1) as a factual matter, Alderson's information was not secret, and (2) as a legal matter, there is no "reasonable" manner in which a person who holds information about ongoing illegality can prevent that information from being disclosed to the public, and thus such information cannot be the subject of trade secret protection. E. SUMMARY In short, Plaintiffs' portion of the recovery against Hospital Corporation was not a "capital asset" for purposes of I.R.C. § 1221 because it was not "property" under any body of law. Because Alderson's did not hold a property interest in the information he exchanged to the Government, his subsequent recovery of $27 million was not a capital gain. Alderson "simply had no property that could be sold or exchanged" for purposes of receiving capital gains treatment. Trantina v. United States, 512 F.3d at 573; see also Miller v. Comm'r, 299 F.2d at 710-11. *1201 Accordingly, Plaintiffs' income from the False Claims Act award was correctly characterized as ordinary income. Plaintiffs are not entitled to recharacterize their income and obtain a tax refund from the Government. In light of the fact that Alderson did not possess any legally protectable property interest in the "information" he gave to the Government in exchange for his share of the False Claims Act cause of action, the Court refrains from discussing the parties' remaining arguments regarding the existence of a capital asset and the timing of the sale(s) or exchange(s) of the capital asset. V. CONCLUSION For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs' Motion for Summary Judgment is DENIED. IT IS SO ORDERED. NOTES [1] See United States ex rel. Alderson v. Quorum Health Group, Inc., 171 F. Supp. 2d 1323, 1337 n. 40 (M.D.Fla.2001) (discussing history of the litigation). [2] Alderson, his wife, and his children and their spouses are collectively referred to as "Plaintiffs." [3] The Tax Code's definition of "capital asset" provides eight exceptions that are not at issue in this case. See I.R.C. § 1221(a)(1)-(8). [4] Plaintiffs attempt to avoid the Gillette court's narrow reading of "capital asset" by pointing to the Supreme Court's later statement to the effect that the term "capital asset" refers to any and all property not listed in the eight statutory exclusions of I.R.C. § 1221. See Arkansas Best Corp. v. Comm'r, 485 U.S. 212, 217-18 & n. 5, 108 S. Ct. 971, 99 L. Ed. 2d 183 (1988). This argument is unavailing. The Ninth Circuit has explained that Arkansas Best "dealt with a different subject entirely," United States v. Maginnis, 356 F.3d 1179, 1186 (9th Cir.2004), and has continued to apply the Gillette Court's narrow reading of "capital asset." See Trantina v. United States, 512 F.3d 567, 571 (9th Cir. 2008). [5] As explained by the Second Circuit in Miller and by the author of Mertens, the Tax Code creates a federal law of "property" that is distinct from (but necessarily must refer to) state law. See Miller v. Comm'r, 299 F.2d at 708; Mertens § 22:4. [6] It is especially appropriate for the Montana courts to apply California's definition of property given that both the California and Montana Civil Codes define property in the following manner: "The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others." Cal. Civ. Code § 654; Mont.Code Ann. § 70-1-101. [7] As a general matter, Florida is a common law state that has adopted the general rules of the common law and can be expected to follow the United States Supreme Court's basic definition of "property." See Fla. Stat. Ann. § 2.01. [8] On appeal, the Eleventh Circuit summarily affirmed the District Court's conclusion. The court stated that "PGA has a right to control its property interest in ... the compiled golf scores," and that "[w]e agree with the district court that PGA `has a right to sell or license its product, championship golf, and its derivative product, compiled golf scores.'" Morris Comms. Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1296 & n. 13 (11th Cir.2004) (quoting District Court). [9] The False Claims Act requires lawsuits to be filed under seal so that: the Government may investigate the viability of the action while deciding whether or not to intervene. See American Civil Liberties Union v. Holder, 652 F. Supp. 2d 654, 664 (E.D.Va.2009) (in First Amendment challenge to sealing of False Claims Act complaint, court held that "Congress' central motivation in adding the seal provisions to the FCA was to protect the integrity of ongoing criminal investigations" and that the sealing provision was intended "to give the government ample time to check on the status of any ongoing criminal fraud investigation, coordinate among implicated federal agencies, and make an intelligent decision on intervention."). [10] A majority of jurisdictions in the United States (including California, Montana, and Florida), follow the Uniform Trades Secrets Act. See Uniform Trades Secrets Act § 1 ("Table of Jurisdictions Wherein Act Has Been Adopted"); Robert L. Haig (ed.), 8 Business and Commercial Litigation in Federal Courts, § 88:11, at 240 n. 1 (2d ed.2009 supp.) ("A majority of jurisdictions have adopted some formulation of the Uniform Trade Secrets Act. ... The Uniform Act was intended to codify the basic principles of trade secret common law; therefore, legal analysis of a trade secret claim is essentially the same under the Act or the common law.") (citations omitted). The alternative formulation, contained in the Restatement (Third) of Unfair Competition, § 39 (1995), is similar for all material purposes. See Restatement § 39 (defining "trade secret" as "any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others."). [11] In full, the Uniform Trade Secrets Act § 1(4) provides: "`Trade secret' means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." [12] To the extent that a trade secret even existed, it would appear that Quorum, not Alderson, owned that trade secret. In the only authority on point, a New York state trial court held (in a thinly reasoned opinion) that a company's auditor could be enjoined from disclosing information to the media about the company's "various improper payments to individuals in the United States." KLM Royal Dutch Airlines, N.V. v. deWit, 98 Misc. 2d 946, 947, 415 N.Y.S.2d 190 (N.Y.Sup.Ct.1979). The court concluded that the secret information "constitute[d] trade secrets of plaintiff [that is, the company]," and that the company was therefore entitled to enjoin the plaintiff from disclosing this information to the media. Id. However, for the reasons discussed infra, this Court disagrees with the KLM Royal Dutch Airlines court's conclusion that knowledge of wrongdoing may constitute a legally protectable trade secret.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539923/	723 F. Supp. 2d 411 (2010) Sandra Maldonado MORALES, et al., Plaintiffs, v. Dr. Jorge Noya MONAGAS, et al., Defendants. Civil No. 08-1703 (GAG). United States District Court, D. Puerto Rico. June 28, 2010. 412 Freddie O. Torres-Gomez, Law Office of Roberto Sueiro, Roberto Sueiro-Del-Valle, Roberto Sueiro Del Valle LLM, San Juan, PR, for Plaintiffs. Jose A. Miranda-Daleccio, Miranda Cardenas & Cordova, Jaime Sifre-Rodriguez, Nerylu Figueroa-Estasie, Sanchez-Betances, Sifre & Munoz-Noya Law Offices, PSC, Ramonita Dieppa-Gonzalez, San Juan, PR, for Defendants. OPINION AND ORDER GUSTAVO A. GELPI, District Judge. Pending before this court is Dr. Diego Solis' ("Dr. Solis") motion for summary judgment (Docket No. 135) and Sandra Maldonado's ("Plaintiffs") opposition (Docket No. 155). After reviewing the filings and the applicable law, Dr. Solis' motion for summary judgment is DENIED. I. Background Plaintiffs filed suit under diversity jurisdiction against various defendants, including the appearing co-defendant Dr. Solis, alleging medical malpractice, and seeking redress under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit 31, §§ 5141 & 5142. According to the complaint, Enrique Sanchez Vidal ("Sanchez") was admitted to the Presbyterian Community Hospital ("PCH") on May 17, 2007 for an elective laparoscopy procedure to remove his gall bladder. (Docket No. 1 at 4.) The surgery was performed by co-defendant surgeon Dr. Jorge Noya. (Id.) Due to complications, three more surgeries were performed afterwards. Sanchez was subsequently transferred to Auxilio Mutuo Hospital and was treated by Dr. Solis. (Id. at 6.) Dr. Solis performed a fourth surgery and found a perforated intestine with feces all over the abdominal area as well as a colon perforation and bile secretions. Instead of pancreatitis, Dr. Solis found acute peritonitis and a sepsis and performed four more unsuccessful surgeries. Plaintiffs allege that Dr. Solis performed a partial cholecystectomy when Sanchez was already suffering from a massive infection. On July 26, 2007, Sanchez died as a result of a multi-organ failure by sepsis and acute peritonitis. Plaintiffs argue that Dr. Solis failed to dictate detailed operative reports and was negligent in failing to take a careful history and physical exam of Sanchez. Plaintiffs also allege that Dr. Solis' malpractice caused them severe mental anguishes, economic damages, loss of gains, and medical expenses, amongst others. According to Plaintiffs, Dr. Solis' negligent acts caused Sanchez's death and as a result they seek that all defendants be held jointly and severally liable for damages in the amount of $27,690,000 plus interest and litigation costs. On February 25th, 2010, co-defendant Dr. Solis, his wife, and their conjugal partnership, as well as Conjunta de Seguros de Responsabilidad Professional Medico-Hospitalaria ("SIMED"), filed their motion for summary judgment. (Docket No. 135.) Plaintiffs submitted a report by their expert witness, Dr. Wingate, in which he analyzed Dr. Solis's actions towards Sanchez. Defendant Dr. Solis argues, among other things, that the expert's opinion fails to include any conclusions pertaining to the causal relation between his failures to use the wide drainage method and the patient's death. In their opposition, Plaintiffs aver that, contrary to co-defendants' allegations, their expert witness clearly established that Dr. Solis's negligence contributed to Sanchez's death, and as such, co-defendants' request for summary judgment should be denied. (Docket No. 155.) 413 II. Standard of Review for Summary Judgment Summary judgment is appropriate when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "An issue is genuine if `it may reasonably be resolved in favor of either party' at trial, and material if it `posses[es] the capacity to sway the outcome of the litigation under applicable law.'" Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (citations omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S. Ct. 2548. The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S. Ct. 2505. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)). Under Local Rule 56, Defendants must file a statement of facts, set forth in numbered paragraphs, and supported by record citations. See P.R. Laws Ann. tit 32, App. III, R. 56. In turn, when confronted with a motion for summary judgment, the opposing party must: [s]ubmit with its opposition a separate, short, and concise statement of material facts. The opposition shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule. The opposing statement may contain in a separate section additional facts, set forth in separate numbered paragraphs and supported by a record citation. . . . P.R. Laws Ann. tit 32, App. III, R. 56. Local Rule 56(e) further provides that a "court may disregard any statement of material fact not supported by a specific record citation to record material properly considered on summary judgment." P.R. Laws Ann. tit 32, App. III, R. 56(e). "These rules are meant to ease the district court's operose task and to prevent parties from unfairly shifting the burdens of litigation to the court." Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007). The First Circuit has held that when parties ignore the Local Rule, they do so at their peril. See Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000). III. Relevant Facts Upon reviewing the record, this court finds that Dr. Solis's Statement of Uncontested Facts ("SUF") ¶¶ 1, 5, and 7-9 are admitted by Plaintiffs, and as such, are deemed uncontested. Plaintiffs properly qualify ¶¶ 3, 4 and 6 and properly deny 414 ¶¶ 2, 10 and 11. Based on the foregoing, the uncontested facts are as follow. On June 27, 2007 Sanchez was transferred to Auxilio Mutuo Hospital from PCH in catastrophic condition. (Docket No. 157-13 at 47.) Dr. Solis only looked over the patient's record before performing surgery on him. (Docket No. 156-6 at 8.) On the following day, Dr. Solis took the patient to the operating room and found a transverse colon perforation and bile leak. (Docket No. 137-2 at 2.) Hospital records show that Dr. Solis performed a bile duct reconstruction. (Docket No. 156-5 at 6.) After the surgery, Dr. Solis made brief post-operative notes on a notebook but there were inconsistencies as to what was actually done. (Id. at 4-8.) During his deposition, Dr. Solis stated that he performed an exploratory surgery and found multiple abscesses as well as a colon perforation the size of a coffee stirrer, among other things. (Docket 156-6 at 11-12.) Dr. Solis attempted to repair the perforation by introducing a T-tube to provide drainage. (Id. at 15.) At that point, the surgery changed from being a bile duct reconstruction to stopping the inflammation. (Id. at 16, lines 14-17.) After that first operation, Sanchez underwent three more surgeries. (Id. at 22.) After falling into septic shock and due to his climbing bilirubin, Sanchez was taken in for a second surgery. (Id. at 25.) During that surgery, Dr. Solis found another abscess and a bile leak. (Id.) That is when Dr. Solis discovered that the T-tube had slipped and detached. (Id. at 21.) Two more surgeries were performed in an attempt to solve the bile leak. Nonetheless, on July 26, 2007, Sanchez expired. (Docket No. 1, ¶ 41.) Plaintiff's expert witness in this case, Dr. Michael Wingate, is a general surgeon. On March 22, 2008, Dr. Wingate rendered an expert report to Plaintiffs which states that the treatment Dr. Solis provided to Sanchez fell below the standard of care. (Docket No. 137-2 at 4.) Specifically, he stated that: (1) "a careful history and physical exam was not properly taken and accurately transcribed;" (2) "detailed operative reports were not dictated;" and (3) "a leaking cystic dump stump should have been treated with wide drainage and bile duct decompression not a T-Tube. The T-tube placed by Dr. Solis eventually fell out, resulting in further leakage and morbidity." (Id. at 4.) In his expert report, Dr. Wingate stated that the initial report was not final and he reserved the right to amend the report. (Id. at 7.) During his first deposition, Dr. Wingate admitted that he did not include any conclusions pertaining to the causal relation between Dr. Solis's failure to place the wide drainage and the death of the patient. (Docket No. 137-3 at 6, lines 11-19.) However, he further admits that he was lacking information, specifically the operative notes, to elaborate on the causal relation. (Id. at 5). In the amended expert report rendered on October 26, 2009, Dr. Wingate stated that Dr. Solis did not have the proper records or understanding of Sanchez's condition and was led to believe that Sanchez needed a bile duct reconstruction. (Docket No. 137-4 at 9.) He restated that the conduct of Dr. Solis fell below the standard of care, but, contrary to his initial report, made no mention of what type of drainage should have been placed. He only stated that "[t]he T-tube placed by Dr. Solis eventually fell out, resulting in further leakage and morbidity." (Id. at 10.) During his second deposition, taken on December 28, 2009, Dr. Wingate admitted that he thought Dr. Solis was negligent in the management of Sanchez's case. (Docket No. 137-5 at 2, lines 12-15.) Notwithstanding, he further admits that he "[did not] think Dr. Solis caused mister 415 Sanchez's death." (Id. at 2, lines 16-21.) This statement seems to contradict what he also stated during this second deposition to the effect that the complex bile reconstruction performed on Sanchez was a violation of the standard of care and "surely contributed to his death." (Docket No. 156-5 at 8, lines 20-24.) Dr. Wingate also stated in his deposition that when Sanchez "got to Auxilio Mutuo, he was going to die no matter what," only to later state that Sanchez had a chance of survival when he arrived at Auxilio Mutuo. (Docket 137-5 at 3, lines 3-5 and 22-24.) IV. Discussion Defendant Dr. Solis moves for summary judgment on the ground that Plaintiff's expert witness failed to establish the causal relation between the physician's departure from the standard of care and the death of the patient. (Docket No. 135.) Considering the above mentioned facts, this court will address the applicable standards in malpractice suits. In a diversity suit, Puerto Rico law is controlling. See Santiago v. Hosp. Cayetano Coll y Toste, 260 F. Supp. 2d 373, 380 (D.P.R.2003). Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141, governs a physician's liability in a medical malpractice suit. Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184, 189 (1st Cir.1997). Said article provides that "[a] person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done." P.R. Laws Ann. tit. 31, § 5141. Under this statute, three elements comprise a prima facie case of medical malpractice: "(1) the duty owed; (2) an act or omission transgressing that duty; and (3) a sufficient causal nexus between the breach and harm." Marcano v. Turabo Medical Center Partnership, 415 F.3d 162, 167 (1st Cir.2005). Puerto Rico courts have held, with regards to the first element, that the duty owed to a patient is "[t]hat [level of care] which, recognizing modern means of communication and education,. . . meets the professional requirements generally acknowledged by the medical profession." Lama v. Borras, 16 F.3d 473, 478 (1st Cir.1994) (quoting Oliveros v. Abreu, 101 D.P.R. 209, 226 (1973)). The third element, or causation, is established when plaintiff proves "that the physician's negligent conduct was the factor that most probably caused harm to [the patient]." Marcano, 415 F.3d at 168 citing Lama, 16 F.3d at 478. Expert' testimony is generally essential to "clarify the complex medical and scientific issues" that are prevalent in medical malpractice cases. Id. Moreover, at the summary judgment stage, expert testimony can be considered sufficient to allow the case to survive. See Henry v. Fisher, 2010 WL 1427354 (Del.Super.) (stating that the expert's opinion is sufficient enough to allow the plaintiff's [medical malpractice] case to survive summary judgment); Mason v. U.S., 372 Fed.Appx. 504 (C.A.5 (Miss.) 2010) (holding that district court did not err in granting summary judgment based solely on report filed by Plaintiff's expert medical witness.) The facts, as supported by the record, show that the patient went to Dr. Solis for treatment and died subsequent to several surgeries performed by Dr. Solis. Based on these facts and the expert witness's report and deposition testimony, Plaintiffs have presented sufficient evidence to create an issue of material fact with regard to the question of causation. Therefore, the question of whether or not Dr. Solis contributed to the death of the patient must be submitted to the jury. See Cristopher v. Father's Huddle Café, Inc., 57 Mass. App.Ct. 217, 782 N.E.2d 517, 521 (2003) (stating that "issues of negligence and causation *416 are most appropriately left to the jury"). Moreover, the contradictions in the expert testimony, pointed out by Defendant, are relevant to the issue of the expert's credibility which is an issue only a jury can decide. See Brown v. Wal-Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (D.Me.2005) (stating that "[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the testimony"); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (stating that "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences, from the facts are jury functions"). V. Conclusion For the reasons stated herein, the court DENIES Dr. Solis' motion for summary judgment (Docket No. 135.)[1] SO ORDERED. NOTES [1] The court, not withstanding its summary judgment ruling, however, counsels plaintiffs that the discrepancies in Dr. Wingate's testimony may ultimately prove fatal to their case when presented to the jury. Accordingly, plaintiffs should seriously attempt to settle this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539932/	709 F. Supp. 2d 1254 (2009) SIERRA CLUB, Natural Resources Defense Council, and National Parks Conservation Association, Plaintiffs, v. Lt. Gen. Robert L. VAN ANTWERP, Chief of Engineers, United States Army Corps of Engineers, and H. Dale Hall, Director, United States Fish and Wildlife Service, Defendants, Miami-Dade Limestone Products Association, Inc., Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., Apac-Florida, Inc., Rinker Materials of Florida, Inc., Kendall Properties and Investments, Defendants-Intervenors. Case No. 03-23427-CIV-HOEVELER. United States District Court, S.D. Florida. January 30, 2009. 1256 Bradford H. Sewell, Lawrence M. Levine, S. Ansley Samson, Natural Resources Defense Council Inc., Stanley N. Alpert, Alpert Firm, New York, NY, Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, DC, Paul Joseph Schwiep, Coffey Burlington, Charles H. Baumberger, Rossman Baumberger Reboso & Spier, Miami, FL, for Plaintiffs. Mark A. Brown, Michael Semler, Norman L. Rave, Jr., Barry Alan Weiner, United States Department of Justice, Environment and Natural Resources, Washington, DC, for Defendants. Douglas Martin Halsey, Thomas Neal McAliley, White & Case, Miami, FL, Lawrence R. Liebesman, Rafe Petersen, Holland & Knight, Washington, DC, Martin John Alexander, Holland & Knight, West Palm Beach, FL, John A. Devault, III, Bedell Dittmar Devault Pillans & Coxe, Jacksonville, FL, for Defendants-Intervenors. ORDER PURSUANT TO REMAND WILLIAM M. HOEVELER, Senior District Judge. THIS CAUSE comes before the Court to determine whether the United States Army Corps of Engineers complied with the Clean Water Act, 33 U.S.C. § 1251 (CWA), National Environmental Policy Act, 42 U.S.C. § 4321 (NEPA), and the Administrative Procedure Act, 5 U.S.C. § 706(APA), when it issued permits in 2002 to several limestone mining corporations for the discharge of dredged or fill material into wetlands in Miami-Dade 1257 County, pursuant to 33 U.S.C. § 1344 (§ 404 of the CWA). In granting summary judgment for the Plaintiffs in 2006, the Court concluded that the Corps did not comply with its statutory and regulatory obligations. Sierra Club v. Flowers, 423 F. Supp. 2d 1273 (S.D.Fla. 2006). After hearing argument from all sides regarding the appropriate remedy, the Court then issued a second order vacating the permits. Sierra Club v. Strock, 495 F. Supp. 2d 1188 (S.D.Fla.2007). On appeal by the Intervenors, the Eleventh Circuit vacated, in part, the Court's summary judgment order,[1] and vacated the additional order setting aside the permits. Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir.2008). The Court of Appeals remanded the case with instructions that, in resolving the summary judgment motions, the Court must apply the proper degree of deference to the Corps' permitting decision. Having freshly reviewed the administrative record and heard additional argument from the parties, the motions are now ripe for resolution as directed by the Court of Appeals. For the reasons explained below, the Plaintiffs' motion is GRANTED and the cross motions for summary judgment are DENIED. BACKGROUND The facts of this dispute have been addressed in detail on previous occasions. Briefly, this case is about a group of limestone mining corporations seeking permits under § 404 of the CWA to excavate limestone in a 54,000 acre area at the northwestern edge of Miami-Dade County and in areas near Everglades National Park. The area is primarily wetlands overlying the Biscayne Aquifer, the main source of drinking water for Miami-Dade County. The Corps issued the permits in April 2002, see Record of Decision (ROD), found at Administrative Record 1028 (AR1028), for a period of ten years, authorizing approximately 5,400 acres of wetlands to be converted to mining pits. The Corps' approval relied on an Environmental Impact Statement (EIS), AR614, issued two years earlier, which addressed the miners' original proposal for fifty years of mining and a total of 14,300 acres of destroyed wetlands, AR65. That EIS was criticized by a number of agencies, organizations, and individuals, and, as a result, the Corps reduced the initial term of these permits to ten years, with the stated intention of issuing additional permits in the future.[2] The Corps was asked by several agencies to further study the issue, i.e., prepare a Supplemental EIS (SEIS), prior to approval of the permits and again after the permits were issued, but the Corps elected to rely on the original EIS. After the Court entered summary judgment for Plaintiffs in March 2006, the parties were granted an evidentiary hearing regarding what should occur while the Corps was preparing an SEIS and considering whether to reauthorize the permits, withdraw the permits, or take some other action. During that phase of the case, the 1258 Court received evidence (not contained in the administrative record) of the presence of benzene in the Biscayne Aquifer. The benzene was detected in water pumped from an area known as the Northwest Wellfield, located within the area of the mining authorized in these permits. This contamination resulted in several municipal wells in the Wellfield being shut down, an investigation by Miami-Dade County into the source, and criticism directed toward the miners for using chemically hazardous blasting compounds near the County's wells. After weighing the evidence, I entered a supplemental order in July 2007 which imposed the traditional APA remedy of vacating the agency action; I also concluded that the limestone mining had contributed to the benzene contamination. In response to the Intervenors' claims of substantial economic hardship in the event of a cessation of all mining under these permits, I stayed the effect of the ruling as to mining in locations other than those nearest to the wells. The Corps subsequently issued a draft SEIS[3] and a "Second Three-year" review for the permits. ANALYSIS The CWA claims before the Court relate to whether the Corps was arbitrary or capricious in determining that no practicable alternatives existed. The NEPA claims are whether the EIS met NEPA's requirements and whether the Corps' determination that the ten year permits would have no significant effect (beyond the effects studied in the original EIS) was arbitrary, capricious, or an abuse of discretion. Standard of review A court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or without observance of procedure required by law." 5 U.S.C. § 706(2)(A).[4] The pertinent APA standard of review is "exceedingly deferential," Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996), and a court must not "substitute its judgment for that of the agency," Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996). However, the "failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct," and "courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself." Simmons v. Block, 782 F.2d 1545, 1549-1550 (11th Cir. 1986) (citations omitted) (affirming decision to set aside agency action as arbitrary and capricious where agency "followed neither course of action specified in the regulations"). Similarly, the Eleventh Circuit has held that it is unacceptable for an agency to "[i]nterpret[ ] a regulation in a manner that robs it of all meaning." Sierra 1259 Club v. Martin, 168 F.3d 1, 5-7(11th Cir.1999) (agency decision entitled to no deference when decision was "contrary to the clear language of [agency's forest plans] and the [National Forest Management Act]"). Statutory and regulatory guidance In issuing 404(b) permits the Corps' decisionmaking authority is governed substantively by the CWA and procedurally by both the CWA and NEPA. The primary focus of the analysis that follows is the CWA, although I have annotated that analysis with selected provisions of NEPA. The CWA imposes requirements on the Corps when deciding whether to issue permits for the discharge of dredged or fill material into wetlands.[5] The CWA also requires that the Corps follow guidelines developed by the Environmental Protection Agency (EPA), 40 C.F.R. Part 230 (the Section 404(b)(1) Guidelines), and regulations adopted by the Corps, 33 C.F.R. Parts 320-329, when issuing such permits. The 404(b)(1) Guidelines prohibit the Corps from issuing a 404(b) "dredge or fill" permit if the proposed project can be developed without disturbing wetlands, that is, if an environmentally preferable and practicable alternative exists. 40 C.F.R. 230.10(a). In addition to the 404(b)(1) Guidelines, the Corps' own CWA regulations also specifically require the Corps to consider practicable alternative locations and methods for accomplishing the project's objective, see 33 C.F.R. 320.4(a)(2)(ii). A practicable alternative is one that is "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. 230.10(a)(2). The Corps also must follow the procedures imposed by NEPA. NEPA's purpose is to "promote efforts which will prevent or eliminate damage to the environment." 42 U.S.C. § 4321. The statute contains procedural directives to "insure that [high quality] environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R. 1500.1(b). "Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA," id., and "Federal agencies must comply with both the letter and spirit of the statute," 40 C.F.R. 1500.1(a). The statute requires the preparation of an EIS, 42 U.S.C. § 4332(2)(c), which is governed by Corps regulations found at 33 C.F.R. 230.1 and Appendix B of 33 C.F.R. Part 325, and regulations promulgated by the Council on Environmental Quality (CEQ) (40 C.F.R. Part 1500). The EIS must study alternatives to the proposed action, 40 C.F.R. 1502.14. The alternatives analysis required by NEPA is similar to the alternatives analysis required by the CWA;[6] both analyses depend upon a proper statement of the project's purpose. 1260 I. The Clean Water Act The 404(b)(1) Guidelines include a specific requirement that "practicable alternatives that do not involve [wetlands] are presumed to be available" if the activity for which the permit is sought "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not `water dependent')." 40 C.F.R. 230.10(a)(3) (emphasis added). If the proposed activity is not water dependent, the permit applicant must rebut the presumption of environmentally preferable and practicable alternatives by clearly demonstrating the absence of such alternatives. Id. A. Project purpose The Corps' identification of the project purpose is essential to implementation of the CWA because the statement of the project's "basic purpose" determines whether the presumption of practicable alternatives applies, and thus whether the applicant has the burden of clearly demonstrating that there are no such alternatives. 40 C.F.R. 230.10(a)(3). See, e.g., Nat'l Wildlife Fed'n v. Whistler, 27 F.3d 1341, 1345 (8th Cir.1994) ("Central to evaluating practicable alternatives is the determination of a project's purpose."). A conclusion that the project's basic purpose "require[s] access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose," must be supported by the record. In this case, the Corps concluded that the project's basic purpose, limestone excavation, is water dependent. Plaintiffs have challenged that conclusion, and this Court must resolve the dispute by examining the record and any relevant authority to determine whether the Corps' decision was arbitrary or capricious. B. Is the project's basic purpose water dependent? The Corps stated in the ROD that the "basic purpose" of this project was "to extract limestone." AR1028 at 8. This decision is entitled to deference. Having established the project's basic purpose, the Corps then had to decide whether the activity is water dependent. 40 C.F.R. 230.10(a)(3). The water dependency test prevents the Corps from approving environmentally harmful activities in wetlands if those activities might otherwise be relocated to upland locations. Permit applicants can rebut the presumption that environmentally preferable locations exist by clearly demonstrating that there are no practicable alternatives to the proposed activity. Here, the Corps concluded, without explanation, that "[t]he activity needs to be located in a special aquatic site to fulfill its basic purpose," AR1028 at 59.[7] Neither the CWA nor its implementing regulations list examples of "water dependent" activities, nor does the definition of a 1261 project's purpose as "water dependent" receive much analysis in reported decisions. A statement of the Corps' standard operating procedures, referenced in a recent opinion, provides the following: [D]efining the purpose of a project involves two determinations, the basic project purpose, and the overall project purpose. . . . The basic purpose of the project must be known to determine if a given project is `water dependent.' For example, the purpose of a residential development is to provide housing for people. Houses do not have to be located in a special aquatic site to fulfill the basic purpose of the project, i.e., providing shelter. Therefore, a residential development is not water dependent. . . . Examples of water dependent projects include, but are not limited to, dams, marinas, mooring facilities, and docks. The basic purpose of these projects is to provide access to the water. Army Corps of Engineers Standard Operating Procedures for the Regulatory Program (October 15, 1999), cited in Fla. Clean Water Network, Inc. v. Grosskruger, 587 F. Supp. 2d 1236 (M.D.Fla.2008).[8] In this case, the Corps first announced in the EIS, without any explanation, that "[b]y nature of the project, it involves work in wetlands, and no practicable alternative to working in wetlands exists," AR614 at 103. The Corps repeated that conclusion in the ROD: "[t]he activity needs to be located in a special aquatic site to fulfill its basic purpose." AR1028 at 59. Absent some explanation by the Corps, however, the Court is unable to defer to the Corps' unsupported conclusion that this limestone mining is water dependent,[9] particularly because the Corps' conclusion as to these permits directly conflicts with the Corps' assessment in another permit issued for substantially similar limestone mining within months of the approval of these permits. In 2003, the Corps concluded that limestone excavation did not need to be located in a special aquatic site to fulfill its basic purpose of "develop[ing] a source for limerock" and approved a permit requested by Florida Rock also a recipient of one of the permits at issue in this case to mine limestone in Southwest Florida wetlands.[10] That permit was the subject of the decision in Nat'l Wildlife Fed'n v. Norton, 332 F. Supp. 2d 170, 186 n. 13 (D.D.C.2004); as noted by that court, it was "undisputed that this mining activity is not inherently water dependent," id. If limestone excavation is not inherently water dependent in one situation, then it is not inherently water dependent in another. 1262 The Corps is free, of course, to exercise its discretion and arrive at various conclusions, or change its position,[11] but a reviewing court necessarily examines carefully the Corps' decision to take diametrically opposed positions as to two projects with nearly identical parameters.[12] The Corps' water dependency conclusion in this case is also at odds with its reported decisions as to what constitutes water dependent activities in other cases. As stated in the Corps' standard operating procedures, noted above, construction of a dam, marina, mooring facility, or dock necessarily involve bodies of water. Reported decisions provide additional examples: Nat'l Wildlife Fed'n v. Whistler, 27 F.3d 1341, 1345-46 (8th Cir.1994) (providing boat access to a housing development); Korteweg v. United States Army Corps of Eng'rs, 650 F. Supp. 603, 605 (D.Conn. 1986) (boat slips for residential development); Friends of the Earth v. Hintz, 800 F.2d 822, 835 (9th Cir.1986) (constructing a sorting yard for logs waiting to be transported by ocean cargo carriers). On the other hand, the Corps has concluded, and reviewing courts have agreed, that other activities are not water dependent: Shoreline Assoc. v. Marsh, 555 F. Supp. 169 (D.Md.1983), aff'd. 725 F.2d 677 (4th Cir.1984) (construction of townhouse community); Great Rivers Habitat Alliance v. United States Army Corps of Eng'rs, 437 F. Supp. 2d 1019, 1028-30 (E.D.Mo.2006) (construction of flood control levee and road improvements for a mixed-use development); Northwest Bypass Group v. United States Army Corps of Eng'rs, 552 F. Supp. 2d 97, 108-109 (D.N.H.2008) (construction of roadway), and Hoosier Envt'l. Council v. United States DOT, 2007 WL 4302642, 2007 U.S. Dist. LEXIS 90840 (S.D.Ind.2007) (highways); Kentuckians for the Commonwealth v. Rivenburgh, 206 F. Supp. 2d 782, 804 (S.D.W.Va.2002) (surface coal mining); and Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir.2008) (gold mining). The Court's review of the Corps' conclusions in these cases is illuminating, and provides context in considering the Corps' analysis in this case. Nothing in the administrative record indicates that the basic purpose of this project, limestone excavation, requires siting within wetlands. Nor do any of the Corps' prior positions suggest that limestone excavation is a water dependent activity.[13] The inconsistency of the Corps' conclusion 1263 in light of the above referenced sources, particularly with respect to the Corps' conclusion about the limestone mining at issue in Nat'l Wildlife Fed'n v. Norton, 332 F. Supp. 2d 170, forces the Court to conclude that the Corps' decision that the basic purpose of this project was water dependent was arbitrary and capricious. C. Practicable alternatives The Corps has a duty to independently evaluate practicable alternatives to the proposed project "if such alternatives would have less adverse impact on the aquatic ecosystem [and no] other significant adverse environmental consequences." 40 C.F.R. 230.10(a). See also, Fund for Animals, Inc. v. Rice, 85 F.3d 535, 543.[14] The Corps has this duty regardless of whether the regulatory presumption, discussed above, is applied. The Corps "conducts its own independent evaluation [of practicable alternatives]," id. and, in doing so, the Corps must "exercise independent judgment in defining the purpose and need for the project from both the applicant's and the public's perspective," 33 C.F.R. Part 325, App. B(9)(b)(4).[15] The Corps also must "document in the record the . . . independent evaluation of the information [submitted by the applicant for the EIS] and its accuracy, as required by [NEPA CEQ regulations] 40 C.F.R. 1506.5(a)." 33 C.F.R. Part 235 App. B(8)(f)(2).[16] For example, courts have criticized the Corps for failing to exercise independent judgment when evaluating the applicant's statement of purpose for the project, see, e.g., Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 669 (7th Cir.1997) (Corps' "wholesale acceptance of [the permit applicant's] definition of purpose" did not comply with NEPA).[17] 1264 The Corps analyzes practicable alternatives in light of a project's "overall purpose," which is more particularized to the applicant's project than is the basic purpose, and reflects the various objectives the applicant is trying to achieve. However, "[a]n applicant cannot define a project in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable." Sylvester v. United States Army Corps of Eng'rs, 882 F.2d 407, 409 (9th Cir.1989). The Corps determined, as to these permits, that the "overall project purpose is to provide construction-grade limestone from Miami-Dade County." AR1028 at 8.[18] In considering all of the mining permit applicants collectively, as the miners requested, the Corps' practicable alternatives analysis only sought to identify potential alternative sites which could support a large scale limestone mining operation.[19] The draft EIS stated, without any supporting analysis, that there is a "difficulty of developing a foreign supply of rock to equal future demands in the next 15 years," AR605; the Fish and Wildlife Service (FWS) and Everglades National Park criticized that document for not answering the question of whether there were alternative sources of rock, foreign or domestic, that could reduce the need to mine this quantity of limestone in these wetlands. Prior to publication of the EIS, the Corps received relevant information which specifically identified potential alternative sources for limestone products: [B]oth cement and aggregate are being brought into Florida ports [listing websites for ports in Tampa, Palm Beach, Jacksonville]. Ostensibly, these alternate sources are competing with Dade County stone and cement, and therefore should be looked at in the alternatives analysis and economic analysis in order to help determine what amount of mining crosses over from within the public interest, to excess wetland destruction that can be prevented while still being able to supply cement and aggregate from alternate sources outside of the Lake Belt to the rest of FL. 1265 AR558 at 5 (public comments submitted March 1998).[20] In response to these federal agency concerns and public comments, the Corps obtained a report from the permit applicants, and published that report as Appendix I of the EIS, AR614 at 923 ("Analysis of the `Practicability' of Non-Lake Belt Alternative Sources to Supply Florida's Demand for Basic Construction Materials," December 1999). The report, submitted by Paul Larsen on behalf of the mining interests, AR583, was accepted by the Corps without critical review or verification[21] despite the fact that its author's bias had been credibly questioned.[22] Moreover, the report's evaluation of the environmental consequences of mining at the alternative sites was explicitly based on only one source of data: "interviews with the individuals who secured environmental permits for each mine [i.e., the mining industry]." AR585. There is no indication that the Corps independently investigated Larsen's claims or the alternative sources which were identified by others indeed, the Corps' EIS fails to identify with specificity any potential replacement sources of limestone. Instead, the Corps described the Larsen report as the Corps' "complete analysis of [alternative sources]," AR614 at 906, and adopted the report including the report's conclusion that practicable alternatives did not exist as the Corps' own analysis.[23]1266 The Corps made no effort, or at least the record is silent as to any such effort, to independently evaluate any of the claims in Larsen's report relating to the lack of practicable alternatives.[24] It is not this Court's responsibility to determine whether the Larsen report is accurate or worthy of reliance, but based on this Court's review of the record, the Corps has not articulated a reasoned explanation for its adoption of the report and its conclusions. Even after the EIS was published, the record indicates that the Corps did nothing else to address the question of practicable alternatives. Not a single alternative location is identified by name in the ROD. The ROD included a brief summary of the alternatives discussion in the EIS: Appendix I [of the EIS] provides an analysis of Non-Lake Belt Alternative Sources. . . . The Appendix describes the other alternative rock sites within and outside of Florida. . . . Most of these locations include quality wetlands or habitats. . . . Some of these alternative sites also have poor potential for expansion due to urbanization or other concerns. . . . Also, if rock mining operations were moved to the many smaller mines located throughout the State, there would be considerable costs to relocate the rail network, . . . plants, and trucking infrastructure that currently distributes the rock products from the Lake Belt. AR1028 at 38-39 (emphasis added). The ROD also repeats the Larsen report's conclusions: "Rock product is only available in limited portions of the State. Slightly over 40% of the rock used in Florida comes from the Lake Belt. . . . Any change in the cost or availability will have wide repercussions across the state," AR1028 at 38, and "other locations would result in impacts to other ecosystems, and probably to a greater extent than in the Everglades since the area of mining would have to be larger and the other ecosystems are smaller than even the remaining extent of the Everglades," AR1028 at 84. These summary statements do not reveal that the Corps conducted an independent review of whether practicable alternatives existed, as required by 33 C.F.R. Part 325, App. B(9)(b)(4), and Fund for Animals, Inc. v. Rice, 85 F.3d at 543. The record before me in this case fails to show that the Corps exercised independent judgment in rejecting all practicable alternatives to this proposed mining, particularly when compared to administrative records reviewed favorably by other courts. Noting the Corps' duty to conduct its own evaluation, the court in Fund for Animals, Inc. v. Rice, 85 F.3d 535, 543, upheld the Corps' permitting decision where the 1267 Corps independently evaluated the applicant's analysis of several alternative sites before determining that there were no practicable alternatives. Id. at 543. The court in Nat'l Wildlife Fed'n v. Whistler, 27 F.3d at 1345-46, approved the Corps' "thorough review" of the applicant's characterization of the project, noting that the Corps had support for its definition of the project purpose as encompassing two severable projects: the non-water-dependent construction of a housing development and the water dependent provision of boat access to the development.[25] In Friends of the Earth, Inc. v. Hintz, 800 F.2d 822, the Corps had "exhaustively studied" the permit applicant's information, id. at 835, and engaged in a "reasonably thorough examination of the water dependency issue, and reached a rational conclusion," id. at 831, before approving the permit. "Certainly, we would not condone blind acceptance by the Corps of [an applicant's] study of alternative sites." id. at 836. The Corps' decision to issue a 404(b) permit was upheld in Great Rivers, 437 F.Supp.2d at 1028, because the Corps had required the permit applicant to undertake a "formal practicable alternatives analysis" and received public comments and responses thereto; the Corps also "considered and rejected proposed practicable alternative sites . . . and articulated reasons for its decision as to practicable alternatives." Id. at 1030. Also, in Alliance for Legal Action v. United States Army Corps of Eng'rs, 314 F. Supp. 2d 534 (M.D.N.C.2004), the court upheld the Corps' determination that the basic purpose of a proposed air cargo hub was not water dependent, finding that the record demonstrated that the "Corps did not unthinkingly adopt the EIS." Id. at 551. Based on the record before me, I find that the Corps' conclusory statement that "there are no practicable nor less damaging alternatives which would satisfy the project's overall purpose," AR1028 at 59, and the lack of justification in the record, does not demonstrate that the Corps independently evaluated the question of practicable alternatives as required by 33 C.F.R. 325 App. B(9)(b)(4). "Alternatives might fail abjectly on economic grounds. But the Corps and, more important, the public cannot know what the facts are until the Corps has tested its presumption." Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 669-670 (7th Cir. 1997) (vacating permit because Corps failed to evaluate entire category of reasonable alternatives for water supply). Also, the Corps' reliance on the Larsen report without independent evaluation of its claims does not comply with the requirements of NEPA, specifically 40 C.F.R. 1506.5(a), and provides further support for my conclusion that the Corps was arbitrary and capricious in concluding that there are no practicable alternatives to this mining. In summary, after a deferential review of the Corps' unexplained decision that the activity proposed by these applicants required siting within wetlands, I find that the Corps' decision that this mining was water dependent was arbitrary and capricious, and plainly inconsistent with 40 C.F.R. 230.10(a). It is clear from the record that the Corps uncritically accepted the miners' assertions that limestone mining required siting in these specific wet-lands, 1268 in the face of possible alternatives that were presented to the agency. By not applying the presumption that environmentally preferable and practicable alternatives to this limestone mining were available, the permit applicants were excused from "clearly" demonstrating the absence of practicable alternatives. This is not the process anticipated and mandated by 40 C.F.R. 230.10(a)(3), and this failure by the Corps constitutes arbitrary and capricious conduct. See, e.g., Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986); Sierra Club v. Martin, 168 F.3d 1, 7 (11th Cir.1999).[26] Further, the Corps' decision to summarily reject all alternative locations for this mining was based on the Corps' uncritical acceptance of a single report from the permit applicants, as to which credible objections had been raised.[27] Insofar as the CWA practicable alternatives analysis is concerned, the Corps' decision to grant these permits was arbitrary and capricious. Plaintiffs are entitled to summary judgment. Moreover, the conclusions reached by the Corps did not comply with the procedural safeguards of the CWA and NEPA regulations which control the Corps' activities, as noted above, and on that separate and independent basis are arbitrary and capricious. Plaintiffs are entitled to summary judgment. II. Analysis of the "no action" alternative pursuant to NEPA Apart from the analysis required under the CWA as to practicable alternative locations for the proposed limestone mining, NEPA also directs the Corps to evaluate alternatives which include, e.g., taking "no action" by denying the permits, or any reasonable alternatives, in order to "sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. 1502.14. The EIS must demonstrate that the Corps complied with NEPA's requirements to "[rjigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. 1502.14(a).[28] 1269 The EIS issued in 2000 summarily dismissed the "no action" alternative of continuing to review permit requests case by case because of a "strong consensus among the environmental resources agencies and groups that the current wetland mitigation requirements [resulting from prior approval of individual permits] do not adequately compensate for the resulting wetland impacts." AR614 at 71. The "no action" alternative of revoking the then-existing permits (and denying any future mining permits) was dismissed because of "the legal issues arising from" such action by the Corps, and the "economic hardships imposed on the mining industry." AR614 at 71. Similarly, the ROD dismissed the "no action" alternative: While there is a possibility that adverse effects may occur despite the referenced measures [possible actions to minimize risk, etc.], there may be a risk to the Government in denying landowners use of their property based upon such `possibilities.'. . . [Discussion of takings case brought by one of the mining companies and government.] The alternative to this costly process would be public acquisition of the lands. However, the Corps is not a land management agency and does not have the necessary congressional authorization or funding to acquire conservation lands. AR1028 at 37. Based on the Corps' statements quoted above, it is clear that the Corps' decision to issue the permits was at least in part based on the Corps' belief that financial costs to the United States, i.e., from inverse condemnation actions by the miners (which may or may not succeed), might result from any prohibitions or limits on the proposed limestone mining. The Corps apparently thought that the risk of this outcome was unacceptable, and therefore narrowed the universe of possible alternatives to those that would allow the miners to mine their property. After rejecting the "no action" alternatives, the Corps concluded that: "[t]he proposed 10-year mining footprint is the least damaging to the aquatic ecosystem in that it is much smaller than the 50-year total plan (which itself minimizes impact to wetlands compared to other alternatives described in the fifty year analysis)." AR1028 at 36-40, 55. As the Corps presently is preparing an SEIS, and in light of the Court's finding, discussed above, that the Corps' analysis of alternatives under the CWA was arbitrary and capricious, the Court need not further address the merits of the Corps' "no action" alternatives analysis at this time. III. Analysis of impacts pursuant to the CWA and NEPA NEPA has been interpreted to require that courts "ensure that the agency took a `hard look' at the environmental consequences of the project," City of Oxford v. F.A.A., 428 F.3d 1346, 1352 (11th Cir.2005). The CWA also "requires that an environmental concern . . . be considered at an early enough stage in the policymaking process to affect the agency decision," Sierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1051 (2d Cir.1985). The Corps' CWA regulations require that analysis of a proposed activity begin with the presumption that the "unnecessary alteration or destruction of [wetlands] should be discouraged as contrary to the public interest," 33 C.F.R. 320.4(b)(1), and impacts to those wetlands which perform functions "important to the public interest" should be avoided, 33 C.F.R. 320.4(b)(2). The 404(b) Guidelines also provide that the "guiding principle should be that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources" and "is considered to be among the most severe 1270 environmental impacts." 40 C.F.R. 230.1(d).[29] Permits should not issue under the CWA for activities that will cause or contribute to "significant degradation" of the wetlands at issue, 40 C.F.R. 230.10(c), [e.g., activities which might cause significantly adverse effects on municipal water supplies, wildlife habitat, etc., 40 C.F.R. 230.10(c)(1), (3)]. The statute specifically provides that unacceptable adverse effects on municipal water supplies are sufficient grounds for denial of a 404(b) permit, 33 U.S.C. § 1344(c), and pertinent regulations direct that the Corps consider water quality and water supply issues as part of its "Public Interest Review," 33 C.F.R. 320.4(a)(1). During the preparation of the EIS and prior to issuance of the ROD, the Corps was urged by several local agencies to address the potential adverse effects on Miami-Dade County's municipal water supply from the proposed limestone mining activity, and the costs associated with mitigating those effects. The Court must decide whether the Corps considered, as required by the CWA and its implementing regulations, as well as NEPA, the significant adverse effects on municipal water supplies (which were a reasonably foreseeable result of this mining). The county protects the quality of the Northwest Wellfield by enforcing protection zones around the production wells, based on the theoretical distance a pollutant might travel toward a production well during a specific number of days. AR1175, p. 6, 9. Limestone mining, which removes the rock and leaves pits which fill with water, affects the effectiveness of those protection zones: [Limestone] makes up the Biscayne aquifer, which stores and filters the water supply for Miami-Dade County. Removal of the aquifer material by rock mining leaves the remaining aquifer more vulnerable to contamination from the newly created surface water bodies. . . . Implicit in the creation of wellfield protection zones is the assumption that the hydrogeologic parameters do not vary in time. However, the very nature of rock mining, removing the geologic material, negates this assumption. There is a concern that existing and future rockmining excavations serve to expand the travel time contours beyond those used to define the existing wellfield protection area. AR1176 ("Description and Analysis of Full-Scale Tracer Trials Conducted at the Northwest Wellfield, Miami-Dade County Florida," Miami-Dade County environmental department report, August 2000). One of the County's most important concerns is that the Aquifer not be subject to reclassification as "groundwater under the direct influence" of surface water-such a reclassification (from the present classification as "groundwater") would require a costly modification of the County's water treatment facilities. AR1175 (Northwest Wellfield Watershed Protection Plan, prepared for the State water agency by Miami-Dade County's environmental department, August 16, 2000). The County's municipal water department criticized the draft EIS as follows: [The EIS for fifty years of limestone mining] does not provide reasonable assurance that the Plan will protect the wells from contamination by surface water influence. . . . [and avoid] two adverse impacts: Public health risk the influence from surface water increases the risk of introducing disease causing 1271 microbial contaminants . . . in the water supply. . . . Economic the water treatment plants' process will have to be modified to provide additional filtration and disinfection which is required for surface water sources. The estimated cost of these improvements is $235 million. AR608 (letter from Director, Miami-Dade Water and Sewer Department, to Corps, May 28, 1999).[30] Although the final EIS reported that the excavation of limestone would convert a large portion of the Aquifer to "surface waters," AR614 at 78, that Miami-Dade County's wellfield protection plan's buffer zone "may be inadequate protection against [potentially deadly] surface water contaminants," AR614 at 69-70, and that the proposed mining plan "may compromise the existing wellfield protection program," AR614 at 88, nowhere does the EIS mention the potential $235 million cost of upgrading the water treatment plants.[31] The EIS identifies three mitigation measures to protect the wellfields: the construction of a berm around the larger mining area to prevent direct entry of surface water runoff, the prohibition of future development, and the use of land use regulations to prevent urban runoff into the wellfield, AR614 at 82-83. The EIS does not include mitigation measures to address the risk of the Aquifer becoming contaminated by the mining itself, and is silent as to the estimated cost for upgrades to the County's water treatment systems which would be necessary if the Aquifer is reclassified as groundwater under the direct influence of surface water. NEPA and its regulations impose a duty on the Corps, when evaluating "the environmental impact of the proposed action," 42 U.S.C. § 4332(2)(C)(i), to provide all available information that is "essential to a reasoned choice among alternatives," 40 C.F.R. 1502.22. By failing to include in the EIS the County's estimates of the costs of the potential upgrades to the water treatment system, or any analysis by the Corps as to whether such upgrades were reasonably foreseeable, the Corps did not comply with NEPA's regulations. After reviewing the EIS and the Corps' Public Notice of the intent to issue the permits, the County advised the Corps that: Quarry lakes have the potential to contain substantially more disease-causing organisms than groundwater . . . . Mining rock from the Biscayne aquifer in the vicinity of the wellfield decreases the time it takes for a contaminant to travel from the quarry lake to the wells. Rockmining that may be authorized by the proposed Federal action will exacerbate the existing footprint of lakes in the vicinity of the wellfield. Therefore, the proposed Federal action has the potential to increase the risk of water quality contamination at the wellheads and result in the necessity for upgrading the water treatment plants to treat for disease-causing organisms at the cost of approximately $250,000,000. AR654 (letter from Miami-Dade County to Corps, July 19, 2000); see also AR656 1272 (letter from Miami-Dade municipal water department to Corps, July 21, 2000). Despite these concerns, summarized in the ROD in a section reporting on comments received, AR1028 at 15, 33, the Corps never addresses the County's estimated costs of upgrading the water treatment facilities in the Corps' analysis of the foreseeable adverse effects of the proposed mining.[32] In the alternatives analysis, the ROD includes the statement that "[i]f the wellfield is reclassified to [ground water under the influence of surface water] existing water treatment plants would have to be upgraded," AR1028 at 54, without mentioning the estimated costs of the upgrade a secondary or indirect effect of the proposed mining activity. Although the Corps identifies the potential contamination as a secondary effect, "[t]he removal of the rock and muck increase the potential that contaminants from runoff could enter the aquifer and reach the public wellfield," it does not discuss mitigation of those adverse environmental impacts, 40 C.F.R. 1502.16, instead claiming that the risk will be reduced by "additional restrictions," AR1028 at 59. The Corps' evaluation of the 404(b)(1) Guidelines concludes that "there are no factors . . . that would cause an adverse water quality impact," AR1028 at 57,[33] and while the Corps finds that there is a "potential for introduction of contaminants from accidental spills during mining operations or from runoff from workpads or other adjacent land uses," AR1028 at 57, that risk will be minimized as "mining will not occur [in some locations near the wellfield]." AR1028 at 73.[34] Failing to 1273 mention in the evaluation of the Guidelines that if the wellfield is reclassified as a result of the mining activity the public costs of the upgrades would be approximately $235-$250 million indicates that the Corps failed to account for those costs in its analysis of whether these permits would have a significant effect on the environment. "NEPA imposes procedural requirements before decisions are made in order to ensure that those decisions take environmental consequences into account." Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir.2004). Thus, the Corps' decision, announced in the ROD, that these permits would have no significant effects other than those studied in the EIS was arbitrary and capricious because the EIS itself did not meet NEPA's procedural requirements as to the study of indirect effects and their significance. 40 C.F.R. 1502.16,1508.8.[35] CONCLUSION As discussed above, I have determined that the Corps acted arbitrarily and capriciously in concluding that this limestone excavation is water dependent and that no practicable alternatives existed. The Corps failed to articulate any explanation for its determination that the basic purpose of this project was water dependent, and failed to document any "analysis" of the practicable alternatives to this proposed mining, in violation of both the CWA and NEPA. Moreover, by failing to hold these limestone corporations to the test of "clearly demonstrating" the absence of practicable alternatives, the Corps failed to comply with 40 C.F.R. 230.10(a)(3). The EIS also failed to meet NEPA's requirements because the Corps adopted challenged data and conclusions submitted by the permit applicants without independent evaluation, and omitted pertinent information related to the anticipated cost of upgrades to the water treatment plants. Based on the record before the Court, the Corps was arbitrary and capricious in determining that the ten year permits would have no significant effect other than identified in the EIS, in part because the EIS itself was insufficient to meet NEPA's demands. The Corps failed to comply with statutory and regulatory directives and was arbitrary and capricious in its decision to issue the permits. The Corps' decision to issue these permits in 2002 must be set aside. The Court's decision today, and in the past, has been based on a full review of the record before me, and my understanding of the law. I have approached this case, as any other, with the intent to fulfill my commission as a judge fairly and fully, to the best of my ability. *1274 Plaintiffs' motions for summary judgment are GRANTED as to Counts I and V, and the motions filed by the Corps and Defendants-Intervenors are DENIED. The Court hereby enters judgment in favor of Plaintiffs and against the Corps.[36] This case is closed. NOTES [1] The Court of Appeals did not disturb this Court's entry of summary judgment for Plaintiffs relating to violations of the Endangered Species Act, 16 U.S.C. § 1531, and the APA. Defendants had been ordered, at a minimum, to engage in formal consultation regarding the impact on protected species, which they have done. [2] The Corps explains in the ROD that the decision on these ten year permits, which will not be mined out for 14 years, AR1028 at 67, is "made with full understanding and disclosure of their relationship to the larger plan," AR1028 at 96. In discussing mitigation, the Corps indicated anticipated approval of the fifty year mining plan: "since the mining impacts are spread over 50 years, there is opportunity to adjust the permit (either in the work authorized or in the compensatory mitigation plan) as appropriate." AR1028 at 73. [3] Although this Court's decision as to the SEIS has been vacated, the Corps has reported that they are, nevertheless, continuing to finalize the draft SEIS prepared in response to this Court's order. The Corps is studying not only the issues raised by the permits which caused this litigation, but also new permit requests for additional mining "in varying degrees over the next 5 to 30 years." See Draft SEIS, Dkt. No. 452. In light of the Corps' activities, Plaintiffs' original request for an SEIS is moot. [4] The APA standard of review, specifically the "arbitrary or capricious" test, applies to each of the environmental statutes at issue herein. See, e.g., Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1249 (11th Cir.1996) (applying "arbitrary and capricious" standard to CWA claim); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989) (rejecting "reasonableness" standard of review in favor of APA's "arbitrary and capricious" standard as to NEPA claims). [5] For example, the CWA requires that the Corps provide notice and an opportunity for public hearings prior to issuing such permits, 33 U.S.C. § 1344(a), (b); however, the regulations provide the Corps with discretion not to hold a hearing if there is "no valid interest to be served by a hearing," 33 C.F.R. 327.4(b). In this case the Corps rejected, as is its discretionary right, several requests for a public hearing, concluding that "substantive additional information would not be received and that a public hearing would not benefit the decision-making process on this permit application." AR1028 at 113-14. [6] "[T]he analysis of alternatives required for NEPA environmental documents ... will in most cases provide the information for the evaluation of alternatives under [the 404(b)(1)] Guidelines." 40 C.F.R. 230.10(a)(4). However, under the CWA, "alternatives outside of the applicant's control may be considered," 40 C.F.R. 230.10(a)(2). [7] In the EIS, the Corps reported that "[b]y nature of the project, it involves work in wetlands, and no practicable alternative to working in wetlands exists." AR614 at 103. In briefs filed in this litigation, the Corps asserted that "the purpose of the requested permits was to allow the applicants to exercise their mining rights." Dkt No. 32, at 33. The Corps argues that "the proposed activity is the extraction of particular mineral resources located in particular wetlands [and it] would be meaningless to state that this activity could be carried out elsewhere ... [t]hus, the Corps properly did not apply a presumption that practicable alternatives were available." Dkt No. 42, at 16. On the contrary, 40 C.F.R. 230.10(a)(3) would be meaningless if a project could be defined so narrowly as obtaining a particular mineral source from a particular wetland. See Sierra Club v. Van Antwerp, 526 F.3d 1353, 1367 (11th Cir.2008) (Kravitch, J., dissenting) ("A project is not water-dependent simply because an applicant asks to do it on wetlands, but only where it literally cannot be done elsewhere."). [8] Another source of potential guidance is found in the record. The "Draft ASTM Standard for Good & Customary Practice for Evaluating Practicable Alternatives Under the Clean Water Act Section 404 Program," was promoted by the mining permit applicants as providing "useful insight into the `practicability' issue." AR583 at 9. That draft standard defines the basic project purpose as "the fundamental, essential purpose for the proposed project" and offers examples such as "the basic purpose of a proposed housing development is to provide shelter and is generally considered to be non-water dependent," and "the basic purpose of a restaurant is to feed people," citing Preamble to EPA's section 404 guidelines at 45 Fed. Reg. 85336-39 (Dec. 24, 1980). AR583 at 62. [9] As one court recently observed in the NEPA context, it is impossible to "defer to a void." Oregon Natural Desert Ass'n v. BLM, 531 F.3d 1114, 1142 (9th Cir.2008) (finding violation of NEPA where agency stated that it need not consider wilderness values despite regulatory guidance to the contrary). [10] See Plaintiffs' Notice of Filing, Dkt No. 48 at Exhibit 2, Corps' Statement of Findings regarding Florida Rock permit for mining, dated February 6, 2003. The Corps' Public Notice as to that limestone mining permit was issued in March 1998, id. at 174, thus, that proposed mining activity was being reviewed at the same time that the Corps was evaluating the permit applications at issue in this case. [11] For example, an agency is permitted to change its interpretation of a regulation, but if it does so without explanation, a court might find that change to be "an arbitrary and capricious change from agency practice." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005). In Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1129 (D.C.Cir.1997), the court noted that because, inter alia, there was no evidence that the agency had ever "adopted a different interpretation of the regulation" or that the agency decision was "anything less than the agency's considered opinion," deference to the agency's interpretation was appropriate. [12] In the EIS issued in 1983 as to earlier attempts to obtain mining permits in the same geographic area at issue in the challenged permits, see "Excavation and Use of Limestone in South Florida," AR2, the Corps describes the purpose as "limestone mining," AR2 at 11, and there is no mention in the Record of Decision, AR3, that limestone mining is water dependent. [13] The "Draft ASTM Standard for Good & Customary Practice for Evaluating Practicable Alternatives Under the Clean Water Act Section 404 Program," AR583 at 9 (discussed above, at note 8), describes a marina and a water supply facility as water dependent, and notes that in projects with multiple components, "the basic purpose of each component must be evaluated individually . . . [f]or example, a project may not be considered water dependent merely because its components are contiguous to marina facilities." AR583 at 73. "The concepts of `integration,' `continuity' and `waterfront' must not be used to defeat the purpose of the `water dependency' and `practicable' alternatives provisions of the Guidelines nor to preclude the existence of practicable alternatives." Id. [14] The Corps is "obligated to determine the feasibility of the least environmentally damaging alternatives that serve the basic project purpose." Utahns v. United States DOT, 305 F.3d 1152, 1189-90 (10th Cir.2002) (agency decision arbitrary and capricious because agency deemed water dependent that portion of project which was irrelevant to basic purpose of meeting future travel demands for a highway corridor). [15] The Corps adopted the rule in Appendix B of 33 C.F.R. 325 to "clarify and streamline the Corps NEPA requirements" for activities related to water resource development projects. 53 F.R. 3120 (Feb. 3, 1988). This rule governs the Corps' analysis as to CWA 404(b) issues because "[t]he activity the Corps studies in its NEPA document is the discharge of dredged or fill material." Id. [16] The CWA's directive that public participation "shall be provided for, encouraged, and assisted" in enforcing the CWA's standards, 33 U.S.C. § 1251(e), also suggests the importance of disclosing accurate information to the public. As an example of misleading information distributed to the public regarding the extent of the proposed project and its impact on wetlands, there is a significant difference between the final public notice and the ROD in the reported numbers of acres to be mined. For example, the Revised Public Notice issued in March 2001 reports a total of 1,400.58 acres to be mined by Rinker Materials, AR737, but the ROD issued in April 2002 reports that the total in Rinker's first ten years of mining will be 1,961.4 acres, AR1028 at 5, 115; that is a total 561 acres (40%) more than the public was advised. Similarly, White Rock will be mining 941.7 acres, AR1928 at 115, compared to the 735.63 acres announced in the Revised Public Notice, AR737 a 28% increase. [17] The record indicates that the Corps' independent judgment also might be questioned as to one aspect of the mitigation plan for these permits. According to the Corps' CWA regulations, 33 C.F.R. 325.4(a), permits must include "reasonably enforceable" mitigation requirements. These mining permits provide that "[c]ompensatory mitigation for the ecological impacts to the wetlands associated with land clearing activities . . . will be provided by acquiring, restoring and managing lands within the Pennsuco." See, e.g., p. 4 of AR1055 (Permit issued to Sunshine Rock, Inc.). The Pennsuco is an area of wetlands designated for restoration, and one aspect of the mitigation plan for this mining is that any permittee owning land in the Pennsuco will transfer that land to the public so that the area may be protected from future mining or development. Although the EIS reports that the sale of permittees' land "will be negotiated with individual companies who agree in principle to sell at appraised value," AR614 at 99, the Corps admits that the agreement is merely a "gentleman's agreement," AR956, and acknowledges in the ROD that there is "no written commitment" for the miners to sell this land, AR1028 at 70. [18] The Corps identified the purpose of the proposed project in a June 2000 Public Notice (issued shortly after the final EIS) as: "Placement of fill related to excavation activities for the purpose of limestone quarrying," AR623A, and repeated that statement in the March 2001 Revised Public Notice, AR737. [19] NEPA regulations provide that "[i]n all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal." 33 C.F.R. Part 235 App. B(7)(b)(3). Because the Corps considered a large scope of analysis of the benefits of the proposed mining, the Corps should have analyzed impacts and alternatives similarly broadly. For example, in response to criticism that the employment benefits attributed to this proposed mining appeared to account for a larger area than the area of the proposed project, the Corps noted that the "review of benefits is not limited to just Miami-Dade County." AR614 at 918. This also impacted the weighing of "benefits which reasonably may be expected to accrue" from the mining as measured against the reasonably foreseeable detriments, as required by the CWA regulations. 33 C.F.R. 320.4(a)(1). [20] Also, at the evidentiary hearing, witnesses for the Intervenors testified that at least some alternative sources of rock could be found in the near future, e.g., 13 million tons could be found during the remand period. Dkt No. 352, p. 71 (citing Tr. 5957-58). [21] The Corps either conducted no independent review or, if such review occurred, it is not reflected in the administrative record. In October 1999, after receipt of Larsen's draft report, a Corps staff member noted that the Corps was not interested in funding an "independent analysis" and would agree to "let" the state Bureau of Land Reclamation review Larsen's analysis of alternative sites. AR587. Such review apparently never occurred. Administrative Record of FWS at 75. [22] In February 1996, Corps staff accused Larsen of providing "very biased" information. AR270. In November 1997, Everglades National Park staff noted that they would like to have someone impartial review Paul Larsen's "fiscal analysis" and asked the Corps if such a review was in progress. AR529. (Park staff also objected to the Corps' reliance on mining consultants' reports on hydroperiods. AR512.) [23] The Corps' socio-economic analysis also relied exclusively on a report submitted by the mining companies, based on data supplied by the permit applicants, AR614 at 871 ("The Economic Significance of Lake Belt Limestone Mining," James C. Nicholas, Ph.D., included as Appendix G of the EIS). The report included the following: The development of Florida has transformed a small and economically deficient state into what will become the third largest state . . . and one of the more economically prosperous. . . . The significance of the crushed limestone industry of the Lakebelt goes far beyond its local production, for it plays a vital role in the economic development of the state. AR614 at 69. The Corps describes the Nicholas report as a "detailed discussion of the economic significance of Lakebelt mining activities and products" and portions of the EIS, including the text above, are copied verbatim from the consultant's report, without any recorded attempt to verify the information despite criticism from another federal agency that the "information in the Economic Appendix may have overly relied on data supplied by the industry and its representatives." AR614 at 915. The Environmental Protection Agency sought "independent assessment of the economic consequences of limestone mining from a source or sources with less obvious bias." Id. Although the Nicholas report disclosed that its "methodology . . . was to distribute a written questionnaire to Lake Belt mining interests that constitute approximately 90% of mining and related activities within the Lake Belt," AR614 at 871, the Corps defended its total reliance on the report: "[the] economic analysis followed accepted principals [sic] and used the RIMMS methodology by the Department of Commerce . . . . [and we] rely on the professionalism of the prepares [sic] of the analysis unless we see or are advised of an irregularity." Id. NEPA requires that the Corps evaluate reasonably foreseeable significant adverse effects, and consider "the environmental impact" of the proposed action, 42 U.S.C. § 4332(2)(c)(I). One court has observed that misleading information about economic impacts can defeat the "hard look" function of an EIS required by NEPA. South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005 (5th Cir.1980). [24] The Corps responded to an objection to the EIS by summarizing one of the tables in the Larsen report (the table was based on data "obtained from U.S.G.S. publications and from mining industry sources," AR583 at 17). We have not prepared a formal cost benefit analysis of alternate sources of rock but the [Larsen report in EIS] includes a description of those sources. . . . [F]rom 2.1 to 3.9 acres of land at the alternate locations is needed to produce the same quantity of rock as 1 acre in the Lake Belt. . . . An elaborate cost-benefit analysis would add details but probably not contribute much additional information for the decision-maker. AR637. The Court did not find this statement in the EIS or ROD. [25] The applicants' stated project purpose when the 50 year permit application was filed in May 2000 was to "[p]rovide Limestone materials for construction of public and private infrastructure throughout the State of Florida." Application for Permit on behalf of Kendall Properties & Investments. AR1040 at 3. The Court observes that the current Draft SEIS filed with the Court indicates that the Corps now views the project purpose as "to continue to provide high-quality, construction-grade limestone to the construction industry in Florida from the Lake Belt area." Dkt. No. 452 at 1-3. [26] In the NEPA context, a court has observed that "[w]hat other alternatives exist we do not know, because the Corps has not looked." Simmons v. United States Army Corps of Eng'rs, 120 F.3d at 670. [27] Plaintiffs also criticized the Corps' reliance on an endangered species report submitted by mining industry consultants for the Corps' analysis of effects on protected species. A state agency's report in late 2001 indicated that almost 90% of all endangered wood storks located in Everglades National Park were nesting directly adjacent to the mining project area and would be adversely affected thus contradicting information submitted by the mining industry, relied upon by the Corps, AR944, and announced to the public. For example, the Public Notices had reported that the proposed mining would have "no effect" or was "not likely to adversely effect" any protected species, but FWS had observed that no biological evaluation was included in either of the Public Notices issued by the Corps, nor had the EIS provided a thorough analysis of the potential effects including cumulative effects on protected species. AR824. The Corps identified Annex A of the EIS as a "Biological Opinion," but that document, a letter from FWS to the Corps, specifically states that it "does not constitute a Biological Opinion." AR614 at 119. After this Court initially granted summary judgment for Plaintiffs in 2006, a Biological Opinion was completed, Dkt No. 241, announcing for the first time that the wood stork will be adversely affected and that a "take" of the species is occurring from the ongoing mining, id., at 57. [28] "Those alternatives that are unavailable to the applicant, . . . should normally be included in the analysis of the no-Federal-action (denial) alternative. Such alternatives should be evaluated only to the extent necessary to allow a complete and objective evaluation of the public interest and a fully informed decision regarding the permit application." 33 CFR Part 235 App. B(9)(b)(5)(a). [29] NEPA also requires analysis of the environmental impacts of a proposed action, including direct, indirect, and cumulative impacts, 42 U.S.C. § 4332(2)(c)(i), 40 C.F.R. 1502.1, 1502.14, 1502.16, 1508.7, 1508.8. [30] In May 1999, Miami-Dade County's environmental department also announced that it could not support the EIS until water quality and buffer issues were addressed fully, and that it could cost at least $235 million to add more filtration and disinfection to Northwest Wellfield "if groundwater becomes under direct influence of surface water as a result of mining". AR605 at 85. [31] The CEQ regulations and NEPA mandate that environmental information be available to officials and the public before decisions are made, 40 C.F.R. 1500.1(b), in order to help public officials make decisions "based on understanding of environmental consequences," 40 C.F.R. 1500.1(c). [32] The County's stated concern about upgrades to the water treatment systems may be particularly prescient, in hindsight. The Court notes that benzene, which had been sporadically detected in county sampling since January 2001, Plaintiffs' Exh. 203, Tr. 6551, appeared in the water delivered to the county's water treatment plant in early 2005 at levels which "are several times higher than had been previously detected anywhere in the vicinity of the [wellfield]." Dkt. No. 366 (Executive Summary of Northwest Wellfield Benzene Investigation, prepared by Miami-Dade County environmental department, February 2007), p. 3. Also, at the evidentiary hearing before this Court in 2006, the former Director of WASD testified that upgrades to the treatment plant would not have been necessary but for the encroachment of the limestone mining pits. Tr. 1575 (Brant). My decision today does not rely in any part on this information, and I include it in this order solely to provide a current context to this decision. [33] The Court notes that after the permits were issued by the Corps, the County hired the United States Geological Survey (USGS) to perform several field studies. Notably, the studies in 2003 revealed a much faster transmissivity in the Aquifer than expected. Despite the almost universal understanding that the Wellfield protections on which these challenged permits are based are inadequate, see e.g., the USGS study (Plaintiffs' Exh. 9, p. 319, Plaintiffs' Exh. 23, and County reports: Tr. 431) (Dr. Markley), Tr. 4248-49, 4276 (Dr. Yoder), Tr. 1438-40 (Brant), the Corps ignored specific evidence presented by Plaintiffs in early 2004 that the Wellfield protections are "no longer accurate." SAR1317 (Letter from NRDC to Corps, dated February 16, 2004). The Corps admitted that it never discussed the 2003 USGS study with the USGS. Tr. 2751 (Studt), despite the "Three Year Review" reporting and the water quality monitoring conditions relied upon in the 404(b)(1) analysis reported in the ROD. [34] The Corps reports that there is a "risk of contamination to the public wellfield," AR1028 at 55, but this is dismissed as insignificant because there are "additional interim restrictions" on the mining, and a "review is scheduled three years after permit issuance to minimize the potential that the adverse effect [on the wellfield] will occur." Id. The 404(b)(1) Guidelines provide that permits may issue for activities if "appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge," 40 C.F.R. 230.10(d). See also, Fund for Animals, Inc. v. Rice at 544 (where filling of wetlands cannot be avoided, appropriate and practicable steps must be taken to minimize potential adverse impacts of the discharge on wetlands). [35] The Corps' evaluation under the CWA of the "benefits which reasonably may be expected to accrue from the proposal . . . balanced against its reasonably foreseeable detriments," required before issuing a 404(b) permit, 33 C.F.R. 320.4(a)(1), also may have been compromised by the failure to account for the costs to the municipal water treatment system. The Intervenors argue that the limestone mining provides benefits, including the collection of mitigation fees to facilitate restoration of wetlands in compensation for those destroyed by the mining, the provision of available limestone for construction projects related to Everglades restoration, and the avoidance of costly expenses of acquiring these wetlands from the mining industry. The Corps presently is tasked with balancing those alleged benefits against the future costs related to necessary upgrades to the water treatment plants (and the investigation of the benzene contamination incident arguably caused by the mining activities), and other reasonably foreseeable detriments. The Court declines to address these issues as to the administrative record presently before the Court because of the Corps' ongoing evaluation of these issues related to preparation of the SEIS. [36] As of late 2006, several of the permittees had little acreage remaining to be mined under these permits, and nothing remaining to be devegetated. For example, Tarmac was "running up against the end of . . . [their] ten-year permitting," and had cleared "virtually everything" they had a permit to clear. Tr. 5064 (Townsend). It may be that very little discharge of dredged or fill material currently is occurring and the practical effect of this Court's order, or the nature of relief to Plaintiffs, may be minimal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536476/	208 P.3d 988 (2009) 228 Or. App. 441 In the Matter of the Estate Of Christopher L. Brown, Deceased. Scott E. BROWN, Appellant, v. Kathy Brown HACKNEY, Personal Representative of the Estate of Christopher L. Brown, Deceased, Respondent. PR03085; A136409. Court of Appeals of Oregon. Argued and Submitted October 6, 2008. Decided May 20, 2009. James R. Cartwright, Portland, argued the cause for appellant. On the brief were Brooks F. Cooper and Cartwright and Associates. Theodore Sims, Portland, argued the cause for respondent. With him on the brief was Sims & Sims. 989 Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge. WOLLHEIM, J. Plaintiff appeals a judgment of final distribution arising out of a probate proceeding in which the court approved personal representative fees payable to defendant by the estate of Christopher Brown (the decedent) based on the proceeds of a wrongful death claim settlement. We review de novo, Stanfield v. Stanfield, 192 Or.App. 447, 449, 86 P.3d 77, rev den, 337 Or. 160, 94 P.3d 876 (2004), and affirm. The facts are undisputed. The decedent died as a result of an automobile accident. The decedent died intestate and is survived by 10 siblings and half-siblings, including plaintiff (the decedent's brother) and defendant (the decedent's sister). The probate court appointed a personal representative for the decedent's estate and that personal representative commenced a wrongful death action against the driver and the passenger of the other automobile involved in the accident. See ORS 30.020 (providing that only the personal representative of a decedent's estate may bring a wrongful death action "for the benefit of," among other parties, the decedent's intestate successors). During the administration of the decedent's estate, the probate court appointed defendant as successor personal representative. As successor personal representative, defendant petitioned the court to approve a settlement agreement regarding the wrongful death action.[1] After the probate court approved the terms of the settlement, defendant filed a final accounting and petition for general judgment of final distribution, closing the decedent's estate. See ORS 116.083-116.113 (describing final accounting and petition for final distribution procedures). In the final accounting, defendant listed the proceeds of the wrongful death settlement, $238,333.34, and petitioned the court for "reasonable compensation in the sum of $5,200." Plaintiff objected to defendant's petition, arguing, among other things, that defendant should not receive Personal Representative's compensation based on the amount of the wrongful death settlement.[2] The general judgment of final distribution includes an explanation of the probate court's actions: "The Personal Representative is entitled to a fee for services rendered in the amount of $5,200.00, which includes her services in connection with the estate's prosecution of a wrongful death case." That judgment, in turn, is consistent with the oral findings of the court: "I find that the wrongful death action proceeds are to be included in the compensation of the personal representative. "I do find that the personal representative would have a substantially higher risk and more work to be done on the basis of the estate from a wrongful death action than they would on an estate without a wrongful death action. "And where you have the wrongful death action, the complications and the liability of a personal representative is substantially greater. An individual has the right to turn down being a personal representative and there must be some basis for inducement of an individual of competent nature to be a personal representative. "And that statutory scheme is the one that they stated is the fee schedule. And they break it down as the fee, as the estate goes up, the fee goes up. And similarly the liability would go up. And that's the only rational basis that I can see for why that fee is the way it is. 990 "Based on that argument and the arguments you stated as to why the personal representative would be compensated, I can't see any logical basis for the legislature to have drafted the statutes the way they have unless they intended that all of the things that the personal representative is responsible for marshalling and bringing together would be the basis for the fee." On appeal, plaintiff argues that the trial court erred in including the funds received in settlement of the wrongful death claim in its calculation of defendant's personal representative compensation. Plaintiff relies on ORS 116.173, the statute governing compensation to a personal representative, and, specifically, that statute's precept that a personal representative is to be paid a commission based only on the "whole estate," and argues that the statutory definition of "estate" does not include the value of a wrongful death settlement. Defendant maintains that the court did not err when it approved defendant's personal representative's fees. First, defendant argues that the proceeds of the wrongful death settlement are property subject to the jurisdiction of the probate court and that, as a result, the court has jurisdiction to determine how those proceeds are distributed. Second, defendant asserts that the wrongful death statute expressly allows for the payment of fees incurred in the prosecution or enforcement of a wrongful death claim and that the fee paid to defendant as personal representative falls within that category. Thus framed, the issue in this case is one of first impression: whether the legislature intended for the amount of a personal representative's compensation to be based on the proceeds from the settlement of a wrongful death action brought by that personal representative. In answering that question, we consider the probate code, specifically ORS 111.005 and ORS 116.173, in addition to portions of the wrongful death statute, ORS 30.020 to 30.050. The parties' arguments present a question of statutory construction that we resolve by initially examining the statutes' text and context. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Based on our review of the text and context of the relevant statutes, we conclude that a personal representative may be compensated based on the proceeds of a wrongful death settlement. We start with ORS 116.173, which describes the procedures for compensating a personal representative. That statute provides, in part: "(1) Upon application to the court a personal representative is entitled to receive compensation for services as provided in this section. If there is more than one personal representative acting concurrently, the compensation shall not be increased, but may be divided among them as they agree or as the court may order. The compensation is a commission upon the whole estate, as follows: "(a) Upon the property subject to the jurisdiction of the court, including income and realized gains: "(A) Seven percent of any sum not exceeding $1,000. "(B) Four percent of all above $1,000 and not exceeding $10,000. "(C) Three percent of all above $10,000 and not exceeding $50,000. "(D) Two percent of all above $50,000. "(b) One percent of the property, exclusive of life insurance proceeds, not subject to the jurisdiction of the court but reportable for Oregon inheritance tax or federal estate tax purposes. "(2) In all cases, further compensation as is just and reasonable may be allowed by the court for any extraordinary and unusual services not ordinarily required of a personal representative in the performance of duties as a personal representative."[3] 991 (Emphasis added.) ORS 116.173(1) includes the threshold provision that the personal representative's commission is based on a decedent's "whole estate." Whether defendant's fee was authorized under ORS 116.173(1), then, depends on whether the proceeds of the wrongful death settlement are part of the decedent's "whole estate." We turn to the statutory definitions provided in the probate code, ORS chapter 111. Although the legislature did not define the phrase "whole estate," it did define the word "estate." ORS 111.005(15) provides that an estate is "the real and personal property of a decedent, as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions or additions thereto and substitutions therefor or diminished by any decreases and distributions therefrom." "`Real property' includes all legal and equitable interests in land, in fee and for life." ORS 111.005(28). "`Personal property' includes all property other than real property." ORS 111.005(25). We understand from those definitions that, if the proceeds of a wrongful death claim settlement are included among the decedent's probate property, then the value of the settlement is, by definition, part of the decedent's probate estate. Wrongful death settlement proceeds, however, are not part of a probate estate; wrongful death actions are brought not for the benefit of a decedent's estate, but rather for the benefit of those entitled to share in the proceeds. See Hughes v. White, 289 Or. 13, 16, 609 P.2d 365 (1980) ("We have said that the personal representative, when bringing an action for the wrongful death of [the] decedent, acts solely for the benefit of the persons entitled to share in its proceeds."); see generally Mendez v. State of Oregon, 64 Or.App. 581, 586-87, 669 P.2d 364 (1983) (explaining that the 1973 amendments to the wrongful death statute eliminated language allowing for an action to be brought on behalf of the decedent's estate). Nevertheless, our inquiry is not over. We note that a personal representative's compensation is based on a decedent's "whole estate" and that that term is different than the defined term "estate." When the legislature uses different terms in the same statute, we infer that it intended those terms to have different meanings. State v. Guzek, 322 Or. 245, 265, 906 P.2d 272 (1995). If the legislature had intended to limit a personal representative's compensation to only the value of a decedent's estate, as opposed to a decedent's whole estate, it would have used the term estate throughout the probate code. In other words, if, in using the phrase "whole estate," the legislature meant that a personal representative's compensation could be based solely on the value of a decedent's probate "estate," then the word "whole" is superfluous. That construct would conflict with legislative directives that the office of the judge is to interpret statutes so as to give meaning to every word and that we shall not omit what has been inserted. ORS 174.010. Accordingly, the legislature's intent in conditioning a personal representative's compensation on a decedent's "whole estate" must mean something different than a decedent's probate "estate." The legislature did not expressly define whole estate in the probate code; nevertheless, a thorough reading of ORS 116.173 demonstrates the legislature's intended meaning of that phrase. Paragraph (a) of ORS 116.173(1) describes the property on which a personal representative's fee is based. A personal representative's compensation is based "[u]pon the property subject to the jurisdiction of the court." ORS 116.173(1)(a) (emphasis added). The words of the statute evince the legislature's intent to compensate a personal representative for the value of all property that is subject to the probate court's jurisdiction. Additionally, paragraph (b) of ORS 116.173(1) provides that a personal representative's compensation is based also on property not subject to the jurisdiction of the probate court. The legislature's inclusion of 992 paragraph (b) is telling because it demonstrates that a decedent's whole estate is comprised of all property both within the jurisdiction of the probate court as well as property outside the jurisdiction of the probate court. The proceeds of a wrongful death settlement are subject to the jurisdiction of the probate court. ORS 30.040 provides: "[e]xcept when all beneficiaries otherwise agree, if settlement, with or without action, is effected and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020(2)(d) shall be apportioned by the probate court to each beneficiary in accordance with the beneficiary's loss." (Emphasis added.) The meaning of ORS 30.040 is plain: The proceeds from a wrongful death settlement are part of the decedent's whole estate and are subject to the jurisdiction of the probate court. Finally, other portions of the wrongful death statute charge a personal representative with additional responsibilities. Only a personal representative of the decedent's estate may prosecute a wrongful death suit for the benefit of the decedent's survivors or intestate successors. ORS 30.020. Moreover, it is the personal representative who is responsible for distributing the wrongful death settlement proceeds including, but not limited to, satisfying debts incurred in prosecuting the claim and distributing the remainder of the settlement proceeds to decedent's intestate successors. Accordingly, the court did not err when it awarded defendant personal representative fees based on the value of the wrongful death settlement. Affirmed. NOTES [1] ORS 30.070 provides, in part: "The personal representative of the decedent, with the approval of the court of appointment, shall have full power to compromise and settle any claim of the class described in ORS 30.030, whether the claim is reduced to judgment or not, and to execute such releases and other instruments as may be necessary to satisfy and discharge the claim." [2] The issue on appeal is defendant's entitlement to personal representative fees based on the value of the wrongful death settlement. Plaintiff does not appeal the amount of the fee approved by the probate court, and we do not address that issue. [3] UTCR 9.060(3) provides that "[p]ersonal representative fees requested in excess of the statutory amounts provided in ORS 116.173(1) must be supported by affidavit setting out justification for the additional claimed amount." In addition to the arguments described above, defendant asserts that she is entitled to a personal representative fee under ORS 116.173(2). However, defendant did not submit an affidavit, and we do not consider whether payment for her services as personal representative would have been appropriate under ORS 116.173(2).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2671215/	Case: 14-1309 Document: 12 Page: 1 Filed: 04/24/2014 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ SOP SERVICES, INC. AND BEAR ARCHERY, INC., Plaintiffs-Appellees, v. VITAL HUNTING GEAR, INC., Defendant, AND ABBAS BEN AFSHARI, Defendant-Appellant, AND JACK BOWMAN AND ESCALADE INCORPORATED, Defendants. ______________________ 2014-1309 ______________________ Appeal from the United States District Court for the Southern District of Indiana in No. 3:11-cv-00112-RLY- WGH, Judge Richard L. Young. ______________________ ON MOTION ______________________ Case: 14-1309 Document: 12 Page: 2 Filed: 04/24/2014 2 SOP SERVICES, INC. v. VITAL HUNTING GEAR, INC. Before LOURIE, DYK, and REYNA, Circuit Judges. PER CURIAM. ORDER Abbas Ben Afshari seeks interlocutory review of an order of the United States District Court for the Southern District of Indiana, partially resolving some of the claims at issue in the case. Because the appeal is premature, we grant SOP Services, Inc. and Bear Archery, Inc.’s (collec- tively, “Bear Archery”) motion to dismiss. In response to Bear Archery’s suit against Vital Hunt- ing Gear, Inc. and its owner Abbas Ben Afshari for, inter alia, patent and trademark infringement, Afshari coun- terclaimed for infringement of his own patent. After the district court disposed of the parties’ motions for sum- mary judgment on January 24, 2014, what appears to remains for trial, currently set for September 2014, are the induced patent infringement claim and trademark infringement claim against Afshari. Afshari appeals. Section 1295(a)(1) of Title 28 authorizes this court to review “a final decision” of a district court in a patent infringement case, i.e., those that “end[] the litigation on the merits and leave[] nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). A decision disposing of some claims on summary judgment in a multi-claim litigation does not constitute a final judgment unless Fed. R. Civ. P. 54(b)’s requirements are met. The district court did not direct entry of judgment under Rule 54(b). Thus, Afshari’s notice of appeal is clearly premature. Accordingly, IT IS ORDERED THAT: (1) The motion to dismiss is granted. (2) Each side shall bear its own costs. Case: 14-1309 Document: 12 Page: 3 Filed: 04/24/2014 SOP SERVICES, INC. v. VITAL HUNTING GEAR, INC. 3 FOR THE COURT /s/ Daniel E. O’Toole Daniel E. O’Toole Clerk of Court s19 ISSUED AS A MANDATE: April 24, 2014	01-03-2023	04-24-2014
https://www.courtlistener.com/api/rest/v3/opinions/2536444/	47 So. 3d 901 (2010) Bonnie GREENBERG, Appellant, v. SCHINDLER ELEVATOR CORPORATION, etc., et al., Appellees. Nos. 3D08-848, 3D09-18. District Court of Appeal of Florida, Third District. October 27, 2010. 902 Samuel M. Yaffa, Delray Beach and Marjorie Gadarian Graham, Palm Beach Gardens, for appellant. Sedgwick, Detert, Moran & Arnold, Lenore C. Smith, Jeannine C. Jacobson, and Richard P. Hermann, II, Fort Lauderdale, for appellee, Schindler Elevator Corporation; and Law Offices of Clinton D. Flagg, Susana C. Nuñez, and John R. Buchholz, Coral Gables, for appellee, Miami-Dade County. Before RAMIREZ, C.J., and COPE and GERSTEN, JJ. PER CURIAM. Bonnie Greenberg ("Greenberg") appeals from final judgments entered after a directed verdict for Schindler Elevator Corporation ("Schindler") and Miami-Dade County ("the County") in this personal injury action. We reverse. Greenberg sued Schindler and the County for injuries she received when she fell on an escalator at Miami International Airport. Greenberg claimed that the escalator stopped short causing her to fall. This escalator, which the County and Schindler 903 owned and/or maintained, was reported as not working a few hours prior to Greenberg's fall. Although there is a record of a technician having checked the escalator, there was no record of any work performed on the escalator. At trial, the court excluded evidence of various reports showing prior problems with the subject escalator, and denied Greenberg's request for a jury instruction on negligence per se. Over Greenberg's objection and motion for mistrial, the trial court permitted defense counsel to argue there was no evidence of prior problems with the escalator. Dr. Gart, a doctor specializing in physical medicine, rehabilitation, and pain management, testified on behalf of Greenberg. Although he is not a surgeon, Dr. Gart opined that Greenberg would require back surgery in the future. However, the trial court did not allow Dr. Gart to give his opinion regarding future surgery because he was not a surgeon. Both Schindler and the County moved for directed verdict at the end of Greenberg's case. The trial court reserved ruling, and the trial proceeded. Thereafter, the jury returned a verdict in favor of Greenberg, apportioning 20% liability each to Schindler and the County. The trial court then entered directed verdicts, ruling there was insufficient evidence of negligence on the part of Schindler and the County. The trial court also denied Greenberg's motion for new trial. On appeal, Greenberg asserts that the trial court erred in setting aside the jury verdict and directing a verdict for Schindler and the County, and in failing to grant a new trial. On the other hand, Schindler and the County contend that the trial court correctly directed a verdict in their favor because Greenberg failed to prove they were negligent. We agree with Greenberg. Turning first to the directed verdict, we review the trial court's ruling de novo. See Banco Espirito Santo Int'l, Ltd. v. BDO Int'l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008). We consider the evidence, and all inferences which may be made from the evidence, in the light most favorable to Greenberg, as the non-moving party. 979 So. 2d at 1032. Only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party may a trial court enter a directed verdict. 979 So. 2d at 1032. Here, Greenberg presented evidence showing that the County and Schindler were notified that the subject escalator stopped running earlier on the day of Greenberg's fall. There was no evidence that any work was performed on the escalator. From this, the jury could reasonably infer that the County and Schindler negligently failed to examine the escalator to determine what was causing it to stop running, and to correct the problem. Greenberg's fall was a direct result of the escalator's sudden stop. Thus, since Greenberg presented evidence of negligence, the trial court erred in entering a directed verdict in favor of the County and Schindler. Next, we consider the trial court's denial of the motion for new trial. First, the trial court erred in not giving the jury instruction on negligence per se. The plaintiff was entitled to that instruction as to the County. See Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Fla. 3d DCA 1989). Second, the trial court erred in overruling Greenberg's objection to defense counsel closing argument. Defense counsel should not have been allowed to argue there was no evidence of prior problems with the subject escalator after the trial court excluded such evidence. It is *904 improper argument for defense counsel to obtain exclusion of evidence and then in closing argument criticize the plaintiff for failing to produce that very evidence. Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484, 485-86 (Fla. 3d DCA 1997). Finally, the trial court erred in excluding Dr. Gart's opinion regarding future surgery. Dr. Gart testified that in his practice he normally refers patients for surgery. Moreover, Dr. Gart was a treating physician and, as such, he was a fact witness, not an expert witness. Therefore, he did not need to be an expert back surgeon in order to testify to his belief that Greenberg would need surgery in the future. The nature and extent of Dr. Gart's expertise was a proper subject for cross-examination, not for determining whether he could testify. For these reasons the trial court erred in denying Greenberg's motion for new trial. Accordingly, we reverse the judgment entered on the directed verdict, and remand for a new trial. Reversed and remanded for new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536609/	41 So.3d 320 (2010) D.E.W., Appellant, v. Neal F. KROUSE, D.O., Appellee. No. 4D09-108. District Court of Appeal of Florida, Fourth District. July 14, 2010. Rehearing Denied August 24, 2010. Robert P. Bissonnette of Robert P. Bissonnette, P.A., Fort Lauderdale, for appellant. 321 Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and M. Katherine Hunter of Chimpoulis & Hunter, P.A., Davie, for appellee. STEVENSON, J. D.E.W. appeals the trial court's entry of final summary judgment in favor of Neal F. Krouse, D.O. We affirm because D.E.W. did not have a cause of action for medical malpractice based on a breach of confidentiality where there was no evidence of any disclosure. The facts are recounted in the light most favorable to D.E.W., the non-moving party. D.E.W., who is HIV positive, was admitted to the hospital for treatment of a kidney infection. Her mother brought D.E.W.'s two minor daughters, who were unaware of D.E.W.'s HIV-positive status, for a visit. While the family members were in the room, Dr. Krouse entered and asked if D.E.W. was taking any medication for her AIDS. D.E.W. filed a complaint against Krouse, alleging medical malpractice[1] based on Krouse's improper disclosure and seeking damages for her mental anguish and emotional distress. Thereafter, D.E.W. filed a motion for a protective order to prevent her daughters from being deposed in the lawsuit, explaining that her daughters "do not know that Plaintiff is, in fact, HIV positive." Krouse sought summary judgment, arguing that D.E.W. could not demonstrate causation or damages because she could not prove that her daughters heard the statements and they did not think their mother was HIV positive. The trial court granted the motion and entered a final judgment in favor of Krouse. In order to prevail in a medical malpractice action, a plaintiff must demonstrate that: (1) a doctor owed the plaintiff a duty of care; (2) the doctor breached the duty of care; and (3) the breach proximately caused injuries and damages are owed. Wroy v. N. Miami Med. Ctr., Ltd., 937 So.2d 1116, 1117 (Fla. 3d DCA 2006) (citing Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984)). Generally, the impact rule requires that "`before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.'" Fla. Dep't of Corr. v. Abril, 969 So.2d 201, 206 (Fla.2007) (quoting R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995)). There are, however, "limited exceptions in extraordinary circumstances." Woodard v. Jupiter Christian Sch., Inc., 913 So.2d 1188, 1190 (Fla. 4th DCA 2005). For example, in Gracey v. Eaker, 837 So.2d 348, 351 (Fla.2002), a psychotherapist was individually counseling a husband and wife and revealed each spouse's private information to the other spouse. Our Supreme Court held that the Graceys "presented a cognizable claim for recovery of emotional damages under the theory that there has been a breach of fiduciary duty arising from the very special psychotherapist-patient confidential relationship." Id. at 352. Similarly, in Abril, a nurse for the Department of Corrections took an HIV test, and the results, reflecting a false positive, were faxed to an unsecured fax machine at the Department, resulting in a number of fellow employees learning this private information. 969 So.2d at 203. Because the only reasonable damages resulting from the lab's breach of its duty of confidentiality were emotional distress, our Supreme Court held that "an exception to 322 the impact rule should be made when a laboratory or other health care provider is negligent in failing to keep confidential the results of an HIV test." Id. at 208. Here, we need not decide whether the instant cause of action fits within either the Gracey or Abril exceptions to the impact rule because the record is devoid of any evidence that D.E.W.'s daughters heard what Krouse said. Due to the existence of the protective order, D.E.W. cannot prove an actual disclosure of her medical condition, and whether we consider this deficiency a failure to establish liability or to prove damages, there is no genuine issue of material fact and we must affirm the summary judgment. We also conclude that the trial court did not abuse its discretion in denying D.E.W.'s motion to again amend her complaint. Affirmed. HAZOURI and GERBER, JJ., concur. NOTES [1] D.E.W.'s third amended complaint initially included counts for medical malpractice, invasion of privacy, and negligence, but she voluntarily dismissed the invasion of privacy and negligence counts.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540158/	722 F. Supp. 2d 1095 (2010) Rory STROKLUND, Plaintiff, v. NABORS DRILLING USA, LP, Defendant. Case No. 4:10-cv-005. United States District Court, D. North Dakota, Northwestern Division. July 13, 2010. 1096 Richard H. McGee, II, Katy M. Schaefer, McGee Hankla Backes & Dobrovolny PC, Minot, ND, for Plaintiff. Kent A. Reierson, Crowley Fleck PLLP, Williston, ND, James M. Cleary, Jr., Martin Disiere Jefferson & Wisdom, LLP, Houston, TX, for Defendant. ORDER GRANTING DEFENDANT'S MOTION TO COMPEL ARBITRATION DANIEL L. HOVLAND, District Judge. Before the Court is the Defendant's motion to compel arbitration filed on February 9, 2010. See Docket No. 3. The Plaintiff filed a response in opposition to the motion on February 17, 2010. See Docket No. 6. The Defendant filed a reply brief on February 24, 2010. See Docket No. 7. For the reasons set forth below, the motion is granted. I. BACKGROUND Plaintiff Rory Stroklund is a resident of Kenmare, North Dakota and a former employee of Defendant Nabors Drilling USA, LP (Nabors Drilling). Nabors Drilling is a limited partnership incorporated under the laws of the state of Delaware and doing business in Williston, North Dakota. In April 2008, Stroklund began employment with Nabors Drilling. Stroklund's employment relationship with Nabors Drilling was governed by the "Nabors Dispute Resolution Program" (Program), which provided that in the event of a dispute between Stroklund and Nabors Drilling, the matter would be submitted to an arbitrator. See Docket No. 3-1. On March 31, 2008, Stroklund, by signing an employee acknowledgement form, acknowledged that he would be required "to adhere to the Dispute Resolution Program and its requirement for submission of disputes to a process that may include mediation 1097 and/or arbitration." See Docket No. 3-1, p. 21. Paragraph 2E of the Program defines a "dispute," in relevant part, as follows: "Dispute" means all legal and equitable claims, demands, and controversies, of whatever nature or kind, whether in contract, tort, under statute or regulation, or some other law, between persons bound by the Program or by an agreement to resolve Disputes under the Program, or between a person bound by the Program and a person or entity otherwise entitled to its benefits, including, but not limited to, any matters with respect to: 1. this Program; 2. the employment or potential reemployment of an Employee, including the terms, conditions, or termination of such employment with the Company; 3. employee benefits or incidents of employment with the Company; 4. any other matter related to or concerning the relationship between the Employee and the Company including, by way of example and without limitation, allegations of: discrimination based on race, sex, religion, national origin, age, veteran status or disability; sexual or other kinds of harassment; workers' compensation retaliation; defamation; infliction of emotional distress, antitrust claim concerning wages or otherwise, or status, claim or membership with regard to any employee benefit plan[.] See Docket No. 3-1, pp. 4-5. On or about December 21, 2008, Stroklund suffered a non-work related injury and argues that, pursuant to his physician's recommendation, he sought a reasonable accommodation to continue working. Nabors Drilling denies that Stroklund sought accommodation. On March 28, 2009, Stroklund contacted Nabors Drilling about returning to work and was notified that his medical leave of absence had expired. In a letter dated April 8, 2009, Nabors Drilling informed Stroklund that he had exceeded his leave and his employment had been terminated as of March 23, 2009. On January 12, 2010, Stroklund filed a complaint in Williams County District Court. Stroklund alleges that he suffered "an adverse employment action when he was denied a reasonable accommodation after injuring his hand and [was] involuntarily terminated at the expiration of his medical leave of absence," in violation of the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4. See Docket No. 1-1. On February 5, 2010, Nabors Drilling removed the action to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. See Docket No. 1. On February 9, 2010, Nabors Drilling filed a motion to compel arbitration. See Docket No. 3. Nabors Drilling argues that when Stroklund accepted employment and signed the employee acknowledgement form, he agreed to the terms of the Program. II. LEGAL DISCUSSION The Federal Arbitration Act (FAA) makes all agreements to arbitrate "valid, irrevocable, and enforceable." 9 U.S.C. § 2. The FAA "mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985) (emphasis in original). It is well-established that federal courts are to interpret arbitration clauses liberally and any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Barker v. Golf U.S.A., Inc., 154 F.3d 788, 793 (8th Cir.1998). In the present case, Stroklund signed an "Employee Acknowledgement Concerning 1098 Nabors Dispute Resolution Program," in which he agreed to submit to arbitration. See Docket No. 3-1, p. 21. Stroklund argues that because Nabors Drilling had superior bargaining power the arbitration agreement is an adhesion contract and is unenforceable. Stroklund further argues that the contract was one of adhesion because the "agreement was offered to [him] on a `take it or leave it basis,' as he was required to sign the acknowledgement before he could begin employment at Nabors." See Docket No. 6. Stroklund also contends that he was not provided an explanation of the acknowledgement and had only limited time to review the documents prior to signing. Although Stroklund read the acknowledgement, he argues that he has no legal training and no education beyond trade school training in diesel technology, and that he understood the agreement to apply only to internal disputes among employees. The North Dakota Supreme Court has defined an adhesion contract as "one drafted by experts in the subject matter of the contract and offered on a `take it or leave it' basis." Strand v. U.S. Bank Nat'l Ass'n ND, 693 N.W.2d 918, 924 (N.D. 2005). "The party who drafts such a contract of adhesion bears the responsibility of assuring that the provisions of the contract are not so one-sided as to be unconscionable." Id. at 925. "Unconscionability is a doctrine which allows courts to deny enforcement of a contract because of procedural abuses arising out of the contract's formation and substantive abuses relating to the terms of the contract." Id. at 921 (citing Weber v. Weber, 589 N.W.2d 358, 361 (N.D.1999)). The court in Strand set forth a two-prong test to assess unconscionability. The first prong requires that there be "procedural unconscionability, which encompasses factors relating to unfair surprise, oppression, and inequality of bargaining power," and the second prong is "substantive unconscionability, which focuses upon the harshness or one-sidedness of the contractual provision in question." Id. at 922. In order to show that a contract is unconscionable there must be a showing of both procedural and substantive unconscionability when the contract was made. Id. at 924. Courts are required to balance various factors under a totality of the circumstances in determining whether a contract is so one-sided as to be unconscionable. Rutherford v. BNSF Ry. Co., 765 N.W.2d 705, 714 (N.D. 2009). To establish procedural unconscionability, it is necessary to determine whether the party had a choice about whether and how to enter into the transaction. Strand, 693 N.W.2d at 923 (citing 8 Richard A. Lord, Williston on Contracts § 18.10 (4th ed.1998)). When addressing procedural unconscionability, the court is to consider factors relating to unfair surprise, oppression, and inequality of bargaining power. Classic examples of procedural unconscionability are pre-printed standard form contracts, lack of negotiation of terms, and a "take it or leave it" transaction. Strand, 693 N.W.2d at 924. Stroklund argues that the arbitration agreement was procedurally unconscionable because he signed the contract on a "take it or leave it" basis. There is little dispute that Nabors Drilling had bargaining power over Stroklund and that Nabors Drilling dictated the terms of the pre-printed contract. There was virtually no negotiation regarding the contract provisions and Stroklund would not have been given the job had he not signed the contract. Stroklund also contends that he was not aware of what he was signing and did not receive a detailed explanation of the Program. However, as the North Dakota Supreme Court stated in David v. 1099 Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989), "[a] person having the capacity and opportunity to read a contract and who is not misled as to its contents cannot avoid the contract." Therefore, Stroklund's argument that he was not provided any explanation regarding the arbitration agreement fails. "Mere inequality in bargaining power ... is not enough by itself to overcome the federal policy favoring arbitration." Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir.2004) (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991)). In the present case, as in Strand where the plaintiff signed a pre-printed contract on a "take it or leave it" basis, procedural unconscionability is established. Stroklund also argues that the agreement is substantively unconscionable because enforcement of the agreement would leave him without an effective remedy. The North Dakota Supreme Court has found contractual provisions substantively unconscionable which limit or exclude other remedies available at law and which leave the plaintiff without an effective remedy. Strand, 693 N.W.2d at 926. However, Stroklund would not be left without an effective remedy by resolving the issue with Nabors Drilling through arbitration. Stroklund also asserts that by proceeding with arbitration he will forgo his rights, however, "`[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.'" Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 946 (8th Cir. 2001) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)). When there exists an express agreement to arbitrate, it is presumed that the parties agreed to submit disputes to arbitration unless there is a clear intent that the parties did not want to arbitrate the matter. Teamsters Local Union No. 688 v. Indus. Wire Prods., Inc., 186 F.3d 878, 881 (8th Cir.1999). Paragraph 4 of the Program expressly provides that the resolution of disputes "not otherwise settled by the Parties shall be finally and conclusively resolved under this Program and the Rules." See Docket No. 3-1, p. 7. The Court finds that the arbitration agreement at issue in this dispute is not substantively unconscionable. The Court expressly finds that this employment dispute is appropriate for arbitration under the broad language of the Program. The arbitration agreement in the Dispute Resolution Program is not an adhesion contract. It is clear that any controversies arising out of or relating to employment are arbitrable. More important, when there is an express agreement to arbitrate, there is a presumption that the parties agreed to submit the dispute to arbitration absent a clear intent to the contrary. Any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration, as "[t]here is nothing inherently unfair or oppressive about arbitration clauses." David, 440 N.W.2d at 274. The Federal Arbitration Act requires a district court to stay proceedings if the court is "satisfied that the issue involved in such suit or proceeding is referable to arbitration." 9 U.S.C. § 3. III. CONCLUSION For the reasons set forth above, the Court GRANTS the Defendant's motion to compel arbitration (Docket No. 3). This action is stayed pending arbitration. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540135/	721 F. Supp. 2d 1017 (2010) Chris JOHNSON, Plaintiff, v. Dennis K. ROBERTS, The Board of County Commissioners of Miami County, Kansas, and Frank W. Kelly, Sheriff of Miami County, Defendants. Case No. 09-2664-JTM. United States District Court, D. Kansas. June 30, 2010. Paul P. Hasty, Jr., Schmitt, Manz, Swanson & Mulhern, PC, Overland Park, KS, for Plaintiff. 1018 Michael K. Seck, Peter T. Maharry, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, for Defendants. MEMORANDUM AND ORDER THOMAS MARTEN, District Judge. This is an action by former Miami County, Kansas jail inmate Chris Johnson, alleging that he was subjected to excessive force when he was tasered while in the jail. The matter is before the court on the defendant's Motion for Summary Judgment. Findings of Fact Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987). In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. 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)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On December 3, 2009, Chris Johnson ("Johnson") was an inmate and Dennis Roberts ("Roberts") and Wesley McClain ("McClain") were deputy jailers at Miami County Jail. When Roberts came to work that day, he noticed Johnson's towel hanging down from the bunk in his cell, secured by his property box. Jail rules allow a towel to be kept outside the property box for the purpose of drying, but Johnson had hung his towel with the short side hanging down over the side of the top bunk. Prior to that date, Johnson had been warned that he could not hang his towel from his bunk, as it would obstruct the view of his cell from security cameras. Roberts told Johnson on December 3 that if his towel obstructed the view of the bunk, he would be written up for a disciplinary violation. Roberts reviewed the tapes for the security cameras and found the towel obstructed the view of the bottom bunk in Johnson's cell. It is a violation of the prison rules to obstruct the surveillance cameras on any 1019 part of an inmates cell.[1] According to Miami County Sheriff Frank W. Kelly, this policy is necessary to prevent unnecessary damage to cells, reduce hiding places for contraband and weapons, to ensure inmates are not harming themselves, and to simplify cell searches and property inventories. Roberts wrote a disciplinary report, and then went with McClain to Johnson's cell to give him the citation and confiscate his property box. After Roberts handed the report to Johnson and asked him to sign it, Johnson wadded up the report, threw it in the toilet, and flushed. Roberts ordered Johnson to hand over his towel and property box. Johnson handed his towel to Roberts through the cell door and McClain opened the cell door. Johnson threw the property box at Roberts and it struck Roberts on the foot. It is a violation of jail rules to refuse to comply with orders from jail staff. Roberts pulled his taser and ordered Johnson to pick up his property box, Johnson refused, Roberts repeated the demand, and Johnson refused a second time. Roberts fired the taser at Johnson, who grabbed his mattress. The taser prongs stuck to the mattress. Roberts ordered Johnson to turn over the mattress to the deputies, but Johnson refused. Roberts tried to pull the mattress away from Johnson and a struggle ensued. Roberts tried to drive stun Johnson, but was unsuccessful because the taser did not fire.[2] Johnson also continued to use the mattress to protect himself from the taser. Eventually, Roberts physically took the mattress from Johnson, and McClain moved it to the side of the cell. Having lost the mattress, Johnson picked up a blanket, which Roberts also ordered him to turn over. Johnson refused and another brief struggle ensued. Johnson used the blanket to shield himself while Roberts tried and failed to drive stun Johnson a second time because the taser did not fire.[3] Ultimately, Roberts was able to take the blanket and remove it and the mattress from the cell. The entire incident was over in a few minutes.[4] Roberts had not come to Johnson's cell to take Johnson's mattress or blanket, and Johnson stresses that Roberts did not explain to him why he wanted the mattress and blanket. However, the Court finds the reason for requesting the mattress and blanket was obviousJohnson was suing to aid in defiance of Roberts's orders. Roberts and McClain left the cell, locked the door, and then McClain took the taser prongs out of the mattress. After Roberts left the cell, Johnson threatened to "get" Roberts and that he was going to file 1020 charges. Johnson also asked to speak to the Sheriff. A short time later, Roberts and McClain came back to the cell to clean some debris from Johnson's cell. Before bending down to clean the debris, Roberts waited until Johnson had moved what Roberts believed to be a safe distance away. Johnson waited at the back of the cell while Roberts finished cleaning the debris. After the incident, Johnson paced in his cell. Meanwhile, Roberts filed a taser usage report stating that Johnson was "resisting," that Johnson's resistance consisted of "refusing to release property;" and that Johnson "refused to comply with officers [sic] commands." Between one and two hours later, McClain noticed a note on Johnson's cell indicating Johnson needed medical attention. McClain did not see an urgent need for medical care. Johnson later asked McClain for medical care again. Roberts brought Johnson a medical complaint form. In the time after the incident, Johnson could stand and walk. Although Johnson claimed to be in pain, he appeared to Roberts and McClain to be unhurt. Officers in the jail are to use the minimal level of force when it is necessary to ensure compliance with lawful orders and maintain order and security because it places the officer in less danger than a direct physical confrontation. Non-lethal force such as a taser is preferred over direct physical force because it allows the officer to stay in control and limits unforeseen injuries to inmates. According to Sheriff Kelly, after Johnson had refused the direct orders of Roberts, it was proper to attempt to ensure compliance by using the taser before forcing compliance through direct physical force. In Sheriff Kelly's opinion, the physical force used on Johnson was necessary to maintain order and security within the jail. In his Response, Johnson stresses that Roberts was not assigned a taser and the taser is kept under lock and key. Jail policy states the taser may only be used with authorization from the jail supervisor. In their Reply, Roberts avers that jail officers have keys to the taser and are permitted to use it in the event they believe it necessary to protect any officer from any threats posed by inmates. Prior to going to Johnson's cell, Roberts took the taser from its lockbox and brought it to Johnson's cell in his belt, ready to use it against Johnson. The taser was brought along as a precaution because Johnson had previously made unspecified threats toward Roberts.[5] Roberts had declined to participate in a voluntary tasing, but he was aware both that taser use may cause serious injury or death and that tasers are designed to reduce the likelihood of such serious injury or death. Roberts also knew that tasers are designed to incapacitate subjects. The Sheriff's Department has a general policy regarding the use of force which covers both inmates and non-inmates. The policy states that "deputies should use force with the highest tactical degree of restraint."[6] The policy also states that justification for the use of force is determined by the subject's resistence and whether the level of force "was necessary but not excessive when considering the type of resistence offered by the subject." Finally, the policy says that "good communication 1021 skills or a verbal direction can resolve many situations. Often the mere presence of a deputy and proper verbal direction will be sufficient to persuade most individuals to follow a deputy's direction." The policy of less-lethal weapons states that "[u]se of the TASER X26 is permitted to protect the deputy or the public from what it reasonably believed to be a non-compliant and/or threatening subject." It also states that taser use is permitted "during training sessions or to support an outside agency requesting assistance; to assist the capture of any dangerous or wild animals that present the threat or potential threat to the deputy or the public safety." In his Response to the Motion for Summary Judgment, Johnson presents several requested findings of fact[7] premised solely upon the video record of the incident. The Court has carefully reviewed the video recordings[8] and finds that in numerous instances the videotape does not support the requested finding. Accordingly, in these findings of fact, the Court omits any requested findings of fact based solely on speculation or on the video evidence where the video does not support the requested finding. Noting that the defendants have included some additional evidentiary materials in their Reply, Johnson has also moved to either strike a portion of the defendant's Reply, or for leave to file a Surreply. Surreplies are disfavored, and in the present case wholly unnecessary, as the court premises its factual findings on the basis of the evidence submitted in the defendants' initial Memorandum and Johnson's subsequent Response. Conclusions of Law Defendants have moved for summary judgment claiming that they entitled to qualified immunity. Qualified immunity is an "entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Government officials performing discretionary functions are typically eligible for qualified immunity unless two conditions are met: (1) the official violated a statutory or constitutional right and (2) the right was clearly established at the time the alleged violation occurred. Lowery v. County of Riley, 522 F.3d 1086 (10th Cir.2008). Once defendants asserted a qualified immunity defense, the burden shifted to Johnson to show the relevant law was clearly established, and to come forward with sufficient facts to show Roberts violated the clearly established law. Foote v. Spiegel, 118 F.3d 1416 (10th Cir.1997). Defendants argue that Johnson cannot establish that his constitutional rights were violated, and even if they were, the right against the use of the taser in this type of situation was not clearly established at the time of the incident. The Eighth Amendment prohibits the unnecessary and wanton infliction of pain. Hudson v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992). In order for Johnson to show a violation of his Eighth Amendment rights, he must show that Roberts used the taser not in a good-faith effort to maintain or restore discipline inside the jail, but rather to maliciously and sadistically cause harm to Johnson. See Hudson, 503 U.S. 1, 7, 112 S. Ct. 995. By hanging his towel in a way that obstructed the cameras, Johnson had 1022 broken a rule designed to advance prison order and security. Johnson had been warned previously about obstructing the cameras, yet was uncooperative when Roberts and McClain came to confiscate the towel and the property box. When asked to hand over the property box, Johnson either dropped or threw the box to the floor. This was reasonably interpreted as an act of defiance, especially after Johnson refused Roberts' order to pick up the box. Only after Johnson refused to pick up the property box did Roberts attempt to use the taser on Johnson. Throughout the incident, Roberts gave Johnson several orders to surrender items (the property box, the towel, the mattress, and the blanket). When the taser failed to force compliance with Roberts's orders, Roberts resorted to physical force. Johnson argues that force was not necessary to confiscate the property box because Roberts could have picked it up off the floor. However, this argument merely amounts to second-guessing the actions of a trained prison officer. The facts indicate Roberts acted out of a good faith effort to restore order and discipline in the jail. Roberts had just witnessed an act of defiance by Johnson (throwing the disciplinary report in the toilet). Thus, ordering Johnson to pick up the property box was a valid and reasonable order. Bending down to retrieve the property box from the floor could have put Roberts in a compromised position directly in front of a noncompliant inmate. In order to ensure the safety of everyone involved, Roberts reasonably ordered Johnson to pick up the box, which he, in turn, refused to do. Johnson advances other arguments challenging the propriety of Roberts's actions. Johnson claims Roberts kicked the property box, and that doing so was unnecessary, Roberts did not explain why he wanted to confiscate the mattress, and attempting to incapacitate Johnson was incompatible with the goal of forcing him to hand over the property box. All of these arguments again constitute the second-guessing of Roberts's actions. The question is not whether there was a different way Roberts could have acted, but whether Roberts's actions violated the Eighth Amendment. Roberts's actions were in direct response to Johnson's initial refusal to comply with Roberts's orders. The situation escalated from there, both with more defiance on the part of Johnson and more force on the part of Roberts. Johnson cannot show that Roberts's actions were a malicious or sadistic attempt to cause harm. Rather, his use of the taser began only after Johnson refused to comply with Roberts's order and ended as soon as Roberts had restored order by confiscating all of the items Johnson was using to defy the jail officials. Thus, Roberts's use of force was reasonable under the circumstances and was not a violation of the Eighth Amendment. Assuming for a moment that Johnson's constitutional rights were violated, he would also have to show that those rights were clearly established at the time the violation occurred. In order for a constitutional right to be considered clearly established, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing would violate that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). This does not mean that the very act of using a taser in this situation has been previously held unlawful, but rather in light of existing precedent, the unlawfulness of the act was apparent. Id. The use of a taser in this situation was not a clearly established violation of the Eighth Amendment at the time this incident occurred. Johnson devotes a considerable portion of his response to distinguishing the cases defendants presented to 1023 support their motion. Johnson distinguishes Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988) and Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984) on the basis that they dealt with maximum security prisons rather than a jail, Caldwell v. Woodford County, 968 F.2d 595 (6th Cir.1992) because it was regarding a prisoner being held in solitary confinement, and Poindexter v. Woodson, 510 F.2d 464 (10th Cir. 1975) because it analyzed force used to control a prison riot. He also advances his theory that none of the cases support the use of force as punishment, claiming that was Roberts's motivation here. First, there is no evidence Roberts sought solely to punish Johnson, but rather the evidence indicates Roberts sought to restore order after Johnson had shown defiance toward the officers and refused to comply with their orders. Second, the attacks Johnson makes on the defendants' supporting cases are largely irrelevant to his goal of defeating defendants' summary judgment motion. Although Johnson attempts to distinguish defendants' cited authorities, he does not present a single case clearly establishing that the use of a taser to ensure an inmate's compliance with orders violates the Eighth Amendment. Cases holding that qualified immunity does not protect taser use in a correctional environment have involved markedly different facts from those present here. Thus, in Lewis v. Downey, 581 F.3d 467 (7th Cir.2009), the court held that qualified immunity would not apply where the defendants used a taser without warning on a docile, nonthreatening inmate lying prone in his bunk. In reaching this conclusion, the court stressed that the taser and other non-lethal devices can play a legitimate role in enforcing orders in correctional facilities: Jails are dangerous places, and it is without rational dispute that security officials are justified in maintaining decorum and discipline among inmates to minimize risks to themselves and other prisoners. See Bell [v. Wolfish,] 441 U.S. [520,] 546, 99 S. Ct. 1861 [60 L. Ed. 2d 447 (1979)] ("[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees."); Soto, 744 F.2d at 1269 (according prison officials wide-ranging deference to adopt and execute policies "needed to preserve internal order and discipline"). We have previously discussed how important it is that prisoners follow orders: Orders given must be obeyed. Inmates cannot be permitted to decide which orders they will obey, and when they will obey them. . . . Inmates are and must be required to obey orders. When an inmate refuse[s] to obey a proper order, he is attempting to assert his authority over a portion of the institution and its officials. Such refusal and denial of authority places the staff and other inmates in danger. Soto, 744 F.2d at 1267; see also Colon v. Schneider, 899 F.2d 660, 668-69 (7th Cir.1990). 581 F.3d at 476-77. Without some clear precedent supporting his claim that the constitutional law on this issue is clearly established, summary judgment in favor of the defendants is appropriate. Johnson must do more than attempt to weaken defendants' case; he must come forward with controlling precedent of his own that clearly demonstrates Roberts should have known his actions violated the law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). Johnson simply has not carried his burden. *1024 IT IS ACCORDINGLY ORDERED this 29th day of June, 2010, that the defendants' Motion for Summary Judgment (Dkt. 35) is hereby granted. Plaintiff's Motion to Strike or for Leave (Dkt. 48) is hereby denied. NOTES [1] Johnson contends the policy in the inmate handbook, which states that "obstructing the view of the camera on any inmate cell" is a prohibited act, means that he is in compliance with the policy as long as at least one camera remains unobstructed. However, the Court finds that the Sheriff reasonably interprets this policy to mean that if the view of any camera is obstructed, it is a violation of prison rules. [2] "Drive stunning," also known as "dry stunning" is a technique in which a taser is put in direct contact with a target and activated. This is an alternative to firing the prongs from a distance. [3] Johnson states in an affidavit that Roberts used the taser on him in excess of ten times. However, it is not clear from Johnson's statements that he was actually stunned from each "use" of the taser. The Court assumes for purposes of the present Motion for Summary Judgment that Johnson received multiple shocks during the brief encounter in the cell. [4] A review of the video from the camera outside Johnson's cell indicates the entire incident, from the time Roberts appeared in the frame to the time the items were removed and the cell door closed, took place in about three minutes and four seconds. [5] However, because this information first appears in the defendants' Reply, it does not form the basis for any of the Court's findings of fact as to the material issues in the case. [6] The policy does not support Johnson's requested finding that physical force should only be used when verbal communication or other means cannot achieve the required action. It simply requires the highest tactical degree of restraint, which does not foreclose the possibility physical force may be necessary. [7] See., e.g., Resp. at ¶¶ 7, 16, 20, 21, 22, 27, 32, 37, 46, 55, 64, 66, 67, 68, 69, 72, 73, 75, 80, 81, 82-85, 86, 102-105. [8] There are video recordings of the incident from two viewpoints: first, the fixed camera outside the cell, and a second camera built in to the taser Roberts was using.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540140/	722 F. Supp. 2d 1210 (2010) SALEHOO GROUP, LTD., Plaintiff, v. ABC COMPANY, et al., Defendants. Case No. C10-0671JLR. United States District Court, W.D. Washington, at Seattle. July 12, 2010. 1212 David Allen Lowe, Lawrence D. Graham, Black Lowe & Graham, Seattle, WA, for Plaintiffs. Paul Alan Levy, Public Citizen Litigation Group, Washington, DC, Ambika K. Doran, Eric M. Stahl, Davis Wright Tremaine, Seattle, WA, for Defendants. ORDER GRANTING MOTION TO QUASH SUBPOENA JAMES L. ROBART, District Judge. I. INTRODUCTION This matter comes before the court on Defendant John Doe's motion to quash subpoena (Dkt. # 9). Doe is the anonymous owner and operator of the website , a purported Internet "gripe site" dedicated principally to criticism of Plaintiff SaleHoo Groups, Ltd. ("SaleHoo"). Doe requests that the court quash a subpoena served by SaleHoo on GoDaddy.com, Inc. ("GoDaddy") seeking to learn Doe's identity. Having considered the motion, as well as all papers filed in support and opposition, and deeming oral argument unnecessary, the court GRANTS the motion (Dkt. # 9) and QUASHES the subpoena. II. BACKGROUND Doe, an individual of unknown citizenship and residence, owns, operates, and created an Internet gripe site at . The home page of the website identifies itself as an anti-SaleHoo website dedicated to exposing the "truth" about SaleHoo. (Levy Aff. (Dkt. # 10) Ex. A (home page); Lowe Decl. (Dkt. # 14) Ex. 2 (home page).) The website claims that SaleHoo threatens individuals who post unfavorable information about Sale-Hoo with defamation lawsuits and thus "there is no way to get true unbiased reviews of SaleHoo." (Levy Aff. Ex. A.) SaleHoo purports to fill this void by posting "honest reviews" of SaleHoo. (Id.) Other pages of the website feature criticism of SaleHoo, including a negative review 1213 of SaleHoo by Terry Gibbs and numerous "reader comments." (Levy Aff. Ex. C (Gibbs Review) & Ex. G (reader comments); Lowe Decl. Ex. 13 (Gibbs Review) & Exs. 3-4 (reader comments).) The website states that Mr. Gibbs's review, titled "Is Salehoo A Scam? You Decide!", was originally posted on Mr. Gibbs's website, but later moved to . (Levy Aff. Ex. C.) The website also includes links to commercial websites. (Lowe Decl. Ex. 5-12.) For example, the home page includes a link to a "free quiz" to "test your eBay knowledge" and "help you earn more money in your eBay auctions." (Lowe Decl. Ex. 2.) The "free quiz" link takes users to a quiz on another website. (Lowe Decl. Ex. 6.) The website sells The Auction Revolution, a book written by Mr. Gibbs, and other services. (Lowe Decl. Ex. 7-11.) SaleHoo, which owns the trademark SLEHOO, filed this lawsuit for trademark infringement, false designation of origin, unfair competition, and defamation. (Am. Compl. (Dkt. # 12) ¶¶ 5, 7-21.) SaleHoo is a New Zealand limited liability company that offers a database of wholesalers and brokers of goods that can be sold on eBay, and sells memberships that authorize access to the database. (Mot. at 2.) SaleHoo explains that the SALEHOO mark is used "in connection with computer software for collecting product market data on the Internet and the provision of online services featuring product sourcing and business information related to online trading and auctions." (Id. ¶ 5.) SaleHoo moved for immediate discovery in this action to identify the owner of the website. (Dkt. # 2.) The court granted leave to take immediate discovery. (Dkt. # 5.) SaleHoo served a subpoena on GoDaddy, who in turn gave notice of the subpoena to Doe. (Levy Decl. ¶ 9 & Ex. H (subpoena).) Doe now moves to quash the subpoena. III. JURISDICTION This court has subject matter jurisdiction based on federal question jurisdiction and supplemental jurisdiction. It is less clear, however, whether the court has personal jurisdiction over Doe. Doe argues that the court lacks personal jurisdiction because the website is a passive website and SaleHoo has not alleged the existence of other contacts with Washington. These are serious jurisdictional concerns. See Holland Am. Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir.2007) ("We consistently have held that a mere web presence is insufficient to establish personal jurisdiction."); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416-20 (9th Cir.1997). Nevertheless, because Doe's motion is not a properly-noted motion to dismiss, the court will treat the factual allegations in SaleHoo's amended complaint as uncontested and deems them minimally sufficient for present purposes. Cf. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002) (in determining whether a plaintiff has met its burden to make a prima facie showing of jurisdiction in response to a motion to dismiss, the court must accept uncontroverted allegations in the complaint as true). IV. ANALYSIS The First Amendment protects the rights of individuals to speak anonymously both offline and online alike. Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D.Wash.2001) ("The right to speak anonymously extends to speech via the Internet."); see generally Reno v. Am. Civil Liberties Union, 521 U.S. 844, 853, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). "Internet anonymity facilitates the rich, 1214 diverse, and far ranging exchange of ideas," and individuals "who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court." 2TheMart.com Inc., 140 F.Supp.2d at 1092. Yet the right to speak anonymously on the Internet is not without its limits and does not protect speech that otherwise would be unprotected. USA Techs., Inc. v. Doe, 713 F. Supp. 2d 901, No. C09-80275 SI, 2010 WL 1980242, at 3 (N.D.Cal. May 17, 2010); Doe I v. Individuals, 561 F. Supp. 2d 249, 254 (D.Conn.2008). Subpoenas seeking the identity of anonymous individuals raise First Amendment concerns. Doe I, 561 F.Supp.2d at 254; 2TheMart.com Inc., 140 F.Supp.2d at 1091-92. With the expansion of online expression, the use of subpoenas to unmask anonymous Internet speakers in connection with civil lawsuits is on the rise. See generally Ashley I. Kissinger & Katharine Larsen, Untangling the Legal Labyrinth: Protections for Anonymous Online Speech, 13 No. 9 J. INTERNET L. 1 (2010); Nathaniel Gleicher, Note, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 YALE L.J. 320 (2008). The use of subpoenas in the context of the Internet raises serious concerns because it threatens to cause "a significant chilling effect on Internet communications and thus on basic First Amendment rights." 2TheMart.com Inc., 140 F.Supp.2d at 1093. In recent years, courts have been called on to balance one individual's First Amendment interests in anonymous Internet speech against another individual's interests in addressing the harm caused by tortious or actionable speech. As of yet, neither the Supreme Court nor the Ninth Circuit has addressed this issue. District courts and state courts, however, have adopted a range of different testssome permissive, some stringentdesigned to account for the competing interests in cases involving claims for defamation, trademark infringement, and copyright infringement. The case law, though still in development, has begun to coalesce around the basic framework of the test articulated in Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (N.J.Super.Ct.App.Div.2001). In Dendrite, the plaintiff brought suit for defamation arising out of postings by anonymous defendants on an Internet message board. The plaintiff sought to compel the internet service provider to disclose the identities of the anonymous defendants, and one defendant responded by filing a motion to quash. The plaintiff argued, inter alia, that its defamation claim against the defendant was sufficient to withstand a motion to dismiss and, accordingly, that discovery of the defendant's identity was warranted. Id. at 764. The Dendrite court disagreed, and held that a plaintiff seeking such discovery must (1) give notice; (2) identify the exact statements that constitute allegedly actionable speech; (3) establish a prima facie cause of action against the defendant based on the complaint and all information provided to the court; and (4) "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant." Id. at 760. Additionally, if the plaintiff makes out a prima facie cause of action, the court must (5) "balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed." Id. at 760-61. Some courts have adopted the Dendrite test wholesale, e.g., Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 999 A.2d 184, 193-94 (N.H.2010), 1215 and Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 966 A.2d 432, 456 (2009), while other courts have adopted streamlined versions of the Dendrite test, e.g., Doe v. Cahill, 884 A.2d 451, 461 (Del.2005) ("the plaintiff must make reasonable efforts to notify the defendant and must satisfy the summary judgment standard"), USA Techs., Inc., 713 F.Supp.2d at 907, 2010 WL 1980242, at 4 (requiring (1) "the plaintiff to adduce, without the aid of discovery, competent evidence addressing all of the inferences of fact essential to support a prima facie case on all elements of a claim" and (2) the court to balance the competing interests), and Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969, 975-76 (N.D.Cal.2005) (same). This court agrees with Doe and the weight of authority that a Dendrite-style test is appropriate to safeguard the First Amendment interests at stake in this action. Doe is engaged in a form of anonymous Internet speech by discussing and criticizing SaleHoo on the website. Regardless of whether SaleHoo ultimately establishes that Doe's speech is not entitled to First Amendment protection under trademark and defamation law, the purpose of a Dendrite-style test is to assess the viability of SaleHoo's claims before casting aside Doe's anonymity, which once lost cannot be recovered. SaleHoo contends that a Dendrite-style test is unnecessary here because Doe is not the actual speaker. (Resp. (Dkt. # 13) at 3.) This contention, however, is belied by the amended complaint, which targets Doe for having "created, endorsed and/or knowingly published" defamatory statements and for making other misleading statements throughout the website. (Am. Compl. ¶¶ 13, 17, 20-21.) Without more, the court is not persuaded that SaleHoo may sidestep application, of a Dendrite-style test. The court is also not persuaded that Doe's status as the defendant, rather than as a third party, mandates a different analysis. Though this court's decision in 2TheMart.com Inc. involved a subpoena directed at a thirdparty witness, the case law principally addresses the issue of subpoenas seeking to identify anonymous defendants. See, e.g., Dendrite, 775 A.2d at 760. Having reviewed Dendrite and the case law in this area, the court concludes that, at a minimum, a plaintiff seeking to use a subpoena to discover the identity of a defendant in connection with anonymous Internet speech must satisfy three basic requirements, subject to balancing by the court. This is a case-by-case analysis. The court intends only to sketch the general framework that it will follow. The precise contours of each factor must be explored in other circumstances, and consideration of additional factors may ultimately prove appropriate depending on the facts of a particular case. To begin with, the plaintiff must undertake reasonable efforts to give the defendant adequate notice of the attempt to discover his or her identity and provide a reasonable opportunity to respond. Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712, 721 (Ariz.Ct.App.2007). This requirement enjoys general acceptance by the courts, see, e.g., Doe I, 561 F.Supp.2d at 254, Indep. Newspapers, Inc., 966 A.2d at 456, and Cahill, 884 A.2d at 461, and promotes a full and fair consideration of the issues. Next, the plaintiff must, in general, allege a facially valid cause of action and produce prima facie evidence to support all of the elements of the cause of action within his or her control.[1]See USA 1216 Techs., Inc., 713 F.Supp.2d at 907, 2010 WL 1980242, at 4; Doe I, 561 F.Supp.2d at 256; Dendrite Int'l, Inc., 775 A.2d at 760. Courts agree that the strength of the plaintiffs case must be evaluated before he or she is permitted to unmask an anonymous defendant by subpoena. See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 72 Cal. Rptr. 3d 231, 241-44 (Cal.Ct.App.2008) (reviewing the various standards). As one court emphasized: "It is not enough for a plaintiff simply to plead and pray. Allegation and speculation are insufficient." Highfields Capital Mgmt., L.P., 385 F.Supp.2d at 975. Yet courts have articulated a range of different standards with respect to this critical step. At the lenient end of the spectrum, some courts have held that the plaintiff need only make a showing of good faith. E.g., In re America Online, Inc., 52 Va.Cir. 26, 2000 WL 1210372, at 8 (Va.Cir.Ct.2000). Other courts have evaluated the plaintiff's claims under a motion to dismiss standard. E.g., Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 579 (N.D.Cal.1999). Finally, at the stringent end of the spectrum, courts have required the plaintiff to submit evidence sufficient to defeat summary judgment, e.g., Doe v. Cahill, 884 A.2d 451, 461 (Del.2005), and Best W. Int'l, Inc. v. Doe, No. CV-06-1537-PHX-DGC, 2006 WL 2091695, at 4 (D.Ariz. July 25, 2006), or to make a prima facie evidentiary showing, e.g., Highfields Capital Mgmt., L.P., 385 F.Supp.2d at 975, and Dendrite, 775 A.2d at 760-61. "At bottom . . . the prima facie and summary judgment tests impose similar burdens in terms of how strong a case the plaintiff must present to the court, essentially requiring sufficient evidence to create a jury issue on the underlying claim, and both tests are very speech protective." Kissinger & Larsen, supra, at 19. Having reviewed these standards, the court finds the prima facie standard is appropriate in order to guarantee that the plaintiff has brought viable claims in connection with his or her attempt to unmask the anonymous defendant. See USA Techs., Inc., 713 F.Supp.2d at 907, 2010 WL 1980242, at 4. "Under such a standard, `[w]hen there is a factual and legal basis for believing [actionable speech] has occurred, the writer's message will not be protected by the First Amendment.'" Doe I, 561 F.Supp.2d at 256 (quoting Krinsky, 72 Cal.Rptr.3d at 245). Further, by limiting the plaintiff's burden to those elements within his or her control, this standard recognizes the potential evidentiary limitations associated with certain causes of action. "[A] plaintiff at an early stage of the litigation may not possess information about the role played by particular defendants or other evidence that normally would be obtained through discovery." Best W. Int'l, Inc., 2006 WL 2091695, at 5. Nevertheless, the plaintiff must still allege facially valid claims even if evidence is not available as to each element. The plaintiff also must demonstrate that the specific information sought by subpoena is necessary to identify the defendant and that the defendant's identity is relevant to the plaintiff's case. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir.2010); Doe 1, 561 F.Supp.2d at 255; Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 566 (S.D.N.Y.2004); UMG Recordings, Inc. v. Does 1-4, No. 06-0652 SBA (EMC), 2006 WL 1343597, at 2-3 (N.D.Cal. Mar. 6, 2006); cf. 2TheMart.com Inc., 140 F.Supp.2d at 1095. This factor may also include consideration of whether the plaintiff has alternative means to obtain the information sought by subpoena. See Arista Records, LLC, 604 F.3d at 119; 1217 Sony Music Entm't Inc., 326 F.Supp.2d at 566. Finally, where the preceding three factors do not present a clear outcome, the court should balance the interests of the parties. See USA Techs., Inc., 713 F.Supp.2d at 907, 2010 WL 1980242, at 4; Highfields Capital Mgmt., L.P., 385 F.Supp.2d at 976. In doing so, the court should "assess and compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of plaintiff and by a ruling in favor of defendant." Highfields Capital Mgmt., L.P., 385 F.Supp.2d at 976. With the foregoing test in mind, the court turns to SaleHoo's claims. The court begins with the second factor because Doe has received notice of the sub-poena and an opportunity to be heard, and there appears to be no dispute that Doe's identity is relevant to this action. Therefore, the court asks: has SaleHoo alleged facially valid claims and produced prima facie evidence to support all of the elements of these claims within its control? The answer, on this record, is no. 1. Trademark Infringement and Lanham Act Claims To prevail on its claims for trademark infringement, false designation of origin, and unfair competition, SaleHoo must show, among other things, that it holds a protectable mark and that Doe made commercial use of the mark or a similar mark in a manner that caused confusion in the minds of consumers about the origin of the goods or services in question. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117, 125 S. Ct. 542, 160 L. Ed. 2d 440 (2004); Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1052 (9th Cir.2008); GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir.2000). In its complaint, SaleHoo alleges that Doe operates the website as an Internet gripe site when in fact the website is designed to direct potential SaleHoo customers to other websites for commercial gain. (Am. Compl. ¶¶ 7-19.) SaleHoo alleges that Doe's use of the SALEHOO mark is "confusingly similar" to its own. (Am. Compl. ¶ 7.) In its motion to quash, Doe argues that SaleHoo has not met its burden to present evidence regarding likelihood of confusion and commercial use. (Mot. at 8-10.) SaleHoo challenges Doe's legal arguments, but does not point to evidence in the record to support these elements of its claims. (Resp. at 6, 8-11.) Here, the court finds that SaleHoo has not met its burden to make a prima facie showing with respect to likelihood of confusion. Doe plainly uses "SaleHoo" in its domain name and throughout its website, but it is not evident how Doe's use is confusing or whether it has caused actual confusion. (Am. Comp. ¶ 7.) The court is particularly mindful that the average Internet user is unlikely to believe that is either an official SaleHoo website or in any way sponsored or approved by SaleHoo. See Taubman Co. v. Webfeats, 319 F.3d 770, 777-78 (6th Cir.2003); Lucent Techs., Inc. v. Lucentsucks.com, 95 F. Supp. 2d 528, 535-36 (E.D.Va.2000); Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1165 n. 2 (C.D.Cal.1998) ("no reasonably prudent Internet user would believe that `Ballysucks.com' is the official Bally site or is sponsored by Bally"). Similarly, it is not evident that the content of the website is likely to cause confusion. Without more, SaleHoo has not made an adequate showing to overcome Doe's motion to quash with respect to these claims. See Highfields Capital Mgmt., L.P., 385 F.Supp.2d at 977-79 (quashing a subpoena to identify an anonymous defendant where the plaintiff failed to adduce evidence sufficient 1218 to make a prima facie showing as to likelihood of confusion). 2. Defamation Claim Under Washington law, to make out a prima facie case of defamation, a plaintiff must show falsity, an unprivileged communication, fault, and damages. Mohr v. Grant, 153 Wash.2d 812, 108 P.3d 768, 773 (2005). In its amended complaint, SaleHoo alleges that Doe, by way of example, has stated that SaleHoo's business is a `scam;' stated that SaleHoo and its legal counsel `threaten anyone who posts information not favorable to SaleHoo on the web with defamation suits;' falsely attributed untrue statements to SaleHoo personnel; and stated that SaleHoo personnel were either `drunk' or `a pathological liar.' (Am. Compl. ¶ 20.) SaleHoo then alleges in cursory fashion that the elements of a defamation claim are satisfied. (Id. ¶ 21.) In its response, SaleHoo does not identify evidence to support each element of its defamation claim, but instead rests on the argument that it has alleged a viable defamation claim on the face of its amended complaint. Without more, SaleHoo has not made an adequate showing to overcome Doe's motion to quash with respect to its defamation claim. Having concluded that SaleHoo has not satisfied its burden, the court grants Doe's motion to quash. The court, however, denies Doe's request to dismiss the amended complaint. SaleHoo may have viable infringement and defamation claims against Doe, and the question of whether Sale-Hoo's claims would survive a properlynoted motion to dismiss or motion for summary judgment is a question not presently before the court. V. CONCLUSION For the foregoing reasons, the court GRANTS Doe's motion to quash (Dkt. # 9) and QUASHES the subpoena served on GoDaddy. NOTES [1] The court has no occasion to explore the distinctions that may arise when the plaintiff is a public figure; however, at least one commentator has suggested that a different standard should apply in such circumstances. See Gleicher, supra, at 334-36.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536768/	46 So. 3d 787 (2010) Ericka Lynn CARTER, as Curatrix for Michael Lee Carter, and Ericka Lynn Carter, individually and on behalf of Baylee Carter, Audrey Carter, Wesley Carter and Kevin M. Carter, Plaintiffs-Appellants v. STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT, et al., Defendant-Appellee. No. 45,506-CA. Court of Appeal of Louisiana, Second Circuit. August 11, 2010. 788 Gregorio, Gregory & Payne, Shreveport, LA, by Sam N. Gregorio, Roy Steven Payne, Joseph A. Gregorio, for Appellants. The Malone Law Firm, Shreveport, LA, by Dannye Wayne Malone, Joseph W. Greenwald, Jr., for State of Louisiana, Dept. of Transportation and Development. Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Steven E. Soileau, for Appellee, Billy Dwayne Brumley. Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Shreveport, LA, by Donald Armand, Jr., for Appellee, Praetorian Specialty Insurance Co. Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by Richard B. King, Jr., for Appellee, Ancul D. Bland. Before PEATROSS, DREW & MOORE, JJ. PEATROSS, J. In this tort action for damages, Plaintiffs, Ericka Lynn Carter, et al. (collectively referred to as "Ms. Carter"), brought suit against B & B Wholesale, Inc., Praetorian Specialty Insurance Company, Billy Dwayne Brumley, Ancul D. Bland and the State of Louisiana, Department of Transportation and Development ("DOTD"), alleging that Defendants were liable for an automobile accident occurring on January 5, 2008. Defendant Brumley filed a motion for summary judgment contending that he could not be held personally liable for damages in the collision because all of his actions were taken in his corporate capacity as president of B & B Wholesale, Inc. The trial judge agreed with Brumley and, after taking the matter under advisement, granted the motion for summary judgment and dismissed Brumley as a defendant in the proceedings, leaving the other defendants remaining. Ms. Carter now appeals. For the reasons stated herein, we affirm the trial court's summary judgment. FACTS The accident in question occurred during the early evening of January 5, 2008, 789 on U.S. Hwy. 84 in DeSoto Parish, Louisiana. Michael Carter ("Michael"), an employee of SWEPCO, was driving his work truck northbound on La. Hwy. 482, approaching its intersection with U.S. Hwy. 84. Brumley, who is the owner, operator and president of B & B Wholesale, Inc., was approaching the same intersection from the west on U.S. Hwy. 84, following behind his employee, Ancul Bland. Bland was driving a 1981 International tractor-trailer that had been purchased by Brumley at an auction in Texas and was en route back to Mansfield with Brumley following in his own vehicle. On approaching the intersection, Michael had the stop sign and Bland and Brumley had the right of way. Michael claims that he stopped, but did not see the tractor-trailer that Bland was driving because the headlights were too dim. Consequently, Michael pulled out into the intersection in an attempt to make a right turn and collided with the tractor-trailer being driven by Bland. Brumley witnessed the accident, but neither he nor the vehicle he was driving was physically involved in the collision. The Louisiana State Police investigated the accident and issued a report indicating that the tractor-trailer (purchased by Brumley and being driven by Bland) was not roadworthy because it had defective brakes, defective steering and defective headlights. The officers also found that Bland did not have a valid Class A Commercial Driver's License ("CDL"). Citations were issued for the tractor-trailer's condition and for Bland's operation of the vehicle without a valid Class A CDL. As previously stated, Ms. Carter brought suit against Brumley on the grounds that he was personally liable for the accident because he conducted a negligent inspection of the tractor-trailer and determined that the vehicle was roadworthy when it was not, made the negligent decision to instruct his employee to drive the vehicle from the auction yard to his wrecker yard at night and negligently entrusted the vehicle to an unqualified driver. Brumley then filed a motion for summary judgment wherein he asserted that he could not be held personally liable for the accident because all of his actions were taken in his corporate capacity as president of B & B Wholesale, Inc. The trial judge agreed with Brumley, granted his motion for summary judgment and dismissed Brumley as a defendant from the proceedings. This appeal ensued. DISCUSSION In her sole assignment of error, Ms. Carter contends that the trial judge erred as a matter of law by holding that Brumley could not be held personally liable as a defendant in this case because he was acting in the course and scope of his employment when he committed the alleged acts of negligence. Ms. Carter argues that Brumley should not be shielded from liability for his own personal fault just because he is a corporate officer, i.e., the president, of B & B Wholesale, Inc. It is Ms. Carter's position that Brumley is also considered an employee of B & B Wholesale, Inc., and therefore, can be held personally liable for his alleged negligent actions, even when acting in the course and scope of his employment. Ms. Carter further complains that Brumley failed to set forth any argument as to the sufficiency of the evidence until the eve of oral argument, in a reply brief. Ms. Carter contends that, consequently, any argument advanced by Brumley on appeal pertaining to the sufficiency of the evidence should be considered untimely. 790 Ms. Carter concludes that a genuine issue of material fact clearly exists in this case as to Brumley's personal liability for the collision; and, consequently, the judgment of the trial court granting summary judgment in favor of Brumley and dismissing him from the proceedings should be reversed. In response, Brumley argues that Michael simply ran a stop sign, collided into the tractor-trailer being driven by Bland and, now, Ms. Carter is wrongfully attempting to claim that Brumley is liable for Michael's negligent actions. Brumley further contends that, even if he could have theoretically been negligent in this case, he cannot be held personally liable because all of his actions were taken in his corporate capacity as president of B & B Wholesale, Inc. La. C.C.P. art. 966(B) 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 material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(C)(2) sets forth the burden of proof applicable to a motion for summary judgment: The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. On appeal, a trial court's ruling on a motion for summary judgment is subject to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So. 2d 1002. La. C.C. Art. 2315. Liability for acts causing damages A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged. La. C.C. Art. 24. Kinds of persons There are two kinds of persons: natural persons and juridical persons. A natural person is a human being. A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members. La. R.S. 12:93. Liability of subscribers and shareholders A. Except as provided in the following subsections of this section, a subscriber to, or holder of, shares of a corporation organized after January 1, 1929, shall be under no liability to the corporation or its creditors with respect to such shares, 791 other than the obligation of complying with the terms of the subscription therefor. This obligation shall continue whether or not his rights or shares have been assigned or transferred, but the assignee or transferee of shares in good faith and without knowledge or notice that the shares have not been fully paid for, shall not be liable to the corporation or its creditors with respect to payment for such shares. B. A shareholder of a corporation organized after January 1, 1929, shall not be liable personally for any debt or liability of the corporation. C. If property or services taken in payment for shares are grossly overvalued contrary to the provisions of this Chapter, the shareholders who knowingly, or without the exercise of reasonable care and inquiry, consented thereto or voted in favor thereof shall be liable jointly and severally to the corporation for the benefit of creditors or shareholders, as their respective and relative interests may appear, for any loss or damage arising therefrom. D. Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit. E. When the directors are held liable solely because of having negligently consented to or participated in any unlawful dividend, distribution, payment or return of assets, the directors shall have, to the extent of the payments made by them, a cause and right of action for indemnity against each of the shareholders for the proportionate amount of the unlawful distribution received by such shareholder. This action must be brought within two years from the date of payment by the directors on account of the liability imposed by R.S. 12:92(D), and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit. It is well settled that a corporation is a distinct legal entity, separate from the individuals who comprise it. La. C.C. art. 24; First Downtown Development v. Cimochowski, 613 So. 2d 671 (La.App. 2d Cir. 1993), writ denied, 615 So. 2d 340 (La. 1993); Riggins v. Dixie Shoring Co., Inc., 590 So. 2d 1164 (La.App.2d Cir.1992); Cahn Electric Appliance Co., Inc. v. Harper, 430 So. 2d 143 (La.App. 2d Cir.1983); George A. Hormel & Co. v. Ford, 486 So. 2d 927 (La.App. 1st Cir.1986); American Bank of Welch v. Smith Aviation, Inc., 433 So. 2d 750 (La.App. 3d Cir.1983). The primary economic purpose underlying this framework of limited liability is the encouragement and promotion of business and industry. Kemper v. Don Coleman, Jr., Builder, Inc., 31,576 (La.App.2d Cir.7/29/99), 746 So. 2d 11, writs denied, 99-2954, 99-2955 (La.1/7/00), 752 So. 2d 861; Riggins, supra. Additionally, minimizing shareholder liability encourages business investments in high-risk areas by enabling investors who utilize the corporate form to make capital contributions to corporations while insulating their personal wealth from the risks inherent in business. Kemper, supra; Riggins, supra; Smith v. Cotton's Fleet Service, Inc., 500 So. 2d 759 (La. 1987); Glazer v. Commission on Ethics for Public Employees, 431 So. 2d 752 (La. 1983). No matter the size of the business, incorporation is an optional form for conducting 792 business in Louisiana and even a single individual may incorporate. La. R.S. 12:21. Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. Kemper, supra; First Downtown Development, supra. Louisiana courts are very hesitant to hold a shareholder, officer or director personally liable for corporate obligations. Kemper, supra; First Downtown Development, supra; Riggins, supra. In a few limited situations, however, a litigant can reach an individual shareholder by "piercing the corporate veil," thereby rendering the individual liable for the debts incurred by the corporation. Kemper, supra; First Downtown Development, supra; Riggins, supra; Cahn Electric Appliance Co., Inc., supra. If an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. La. C.C. art. 2315; Canter v. Koehring Co., 283 So. 2d 716 (La.1973); Petch v. Humble, 41,301 (La.App.2d Cir.8/23/06), 939 So. 2d 499, writ denied, 06-2482 (La.12/15/06), 945 So. 2d 692. If directors and officers of a corporation do not purport to bind themselves individually, however, they do not incur personal liability for debts of the corporation except for acts of fraud, malfeasance or criminal wrongdoing. Kemper, supra; First Downtown Development, supra; Riggins, supra. Regardless of the basis for piercing the corporate veil, the situation must be viewed with regard to the totality of circumstances in each case. Kemper, supra; First Downtown Development, supra; Riggins, supra; American Bank of Welch, supra; George A. Hormel & Co., supra. Whether imposition of individual liability is justified under particular circumstances is primarily a factual finding to be made by the trial court. Id. With these legal principles in mind, we now address the question of whether the motion for summary judgment was properly granted in the case sub judice. Billy Dwayne Brumley is a separate and distinct legal entity from B & B Wholesale, Inc. That being the case, the burden shifted to Ms. Carter to bring forth some evidence to show a genuine issue of fact as to some conduct which could give rise to personal liability on the part of the Brumley. There is no evidence in the record, however, to support Ms. Carter's contention that any of Brumley's acts or omissions were done in his individual capacity as opposed to his corporate capacity as the president of B & B Wholesale, Inc., or that Brumley purported to bind himself individually for the debts or liability of the corporation. There is no evidence of a violation of a personal duty owed by Brumley to the plaintiffs. Additionally, there is no evidence that any of Brumley's alleged actions in this case rose to the level of fraud, malfeasance or criminal wrongdoing such that the imposition of individual liability on Brumley would be warranted. Accordingly, we find the trial court did not err in rendering summary judgment in favor of Brumley, thereby dismissing him as a defendant in these proceedings. Given our finding that Brumley was properly dismissed as a defendant in these proceedings, we pretermit any discussion pertaining to the sufficiency of the evidence as advanced by either party in this case. 793 CONCLUSION For the reasons stated above, we affirm the judgment of the trial court granting summary judgment and dismissing Defendant Billy Dwayne Brumley from the proceedings in this case. Costs of this appeal are assessed to Plaintiffs, Ericka Lynn Carter, et al. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1824361/	210 Mich. App. 142 (1995) 533 N.W.2d 353 AYYASH v. HENRY FORD HEALTH SYSTEMS Docket No. 165101. Michigan Court of Appeals. Submitted January 10, 1995, at Detroit. Decided April 21, 1995, at 10:35 A.M. Hemming, Polaczyk & Crown, P.C. (by C. Gerald Hemming and Linda A. Phillips), for the plaintiffs. Kallas & Henk, P.C. (by Leonard A. Henk), for the defendants. Before: CONNOR, P.J., and WAHLS and SAAD, JJ. SAAD, J. The trial court granted summary disposition to defendants a doctor and a hospital because it held that, absent negligence, these health care providers should not be legally responsible, on strict liability theories, for an admittedly defective implant placed in Samira Ayyash (hereinafter plaintiff) by defendant physician at defendant hospital. For reasons articulated below, we agree with and affirm the trial court's ruling. I. FACTS Plaintiff fell down a flight of stairs at her home and broke her lower jaw, which was repaired surgically at Henry Ford Hospital. Thereafter, Dr. Wolford, who was at the time head of oral surgery at defendant hospital, treated plaintiff. After the initial surgery, plaintiff continued to complain of pain and discomfort in her jaw, and Dr. Wolford treated plaintiff for approximately one year. In November 1983, Dr. Wolford surgically implanted into plaintiff's temporomandibular joint a medical device known as a Vitek Proplast Silastic. It is this surgery that gave rise to this suit. After the implant surgery, plaintiff continued treating with Dr. Wolford until April 1986. The Vitek implants were approved by the Food and Drug Administration in 1983. In June 1990, Vitek, Inc., filed for Chapter 7 bankruptcy, and, in September 1991, plaintiff received a letter from a bankruptcy court in Texas that said that Vitek 144 had gone into bankruptcy and that she was entitled to make a claim against the bankruptcy estate. The implants were recalled in 1992 because many patients were experiencing a breakdown in the implants. In May 1993, plaintiff's implant was removed surgically. Plaintiffs' suit raises various products liability theories against defendants, including breach of express warranty, breach of implied warranty, and negligence.[1] In their motion for summary disposition, defendants argued that plaintiffs' products liability claims must fail because the implantation of the medical device during surgery was not the sale of a product, but rather the provision of a medical service. The trial court agreed and granted summary disposition, reasoning that "the essence of the relationship" between the hospital and the patient and the physician and the patient is the provision of a service, not the sale of a product, and, therefore, products liability theories were inapplicable. The trial court accordingly entered its order that dismissed plaintiffs' cause of action on May 3, 1993. II. STRICT LIABILITY OR NEGLIGENCE During this century, scholars advocated and many courts adopted tort theories of products or strict liability (liability without fault) to hold makers and sellers of products liable for injuries to consumers caused by defective products. Using various rationales, which include spreading of the risk, redistribution of wealth, and problems of proof and deterrence, courts developed several theories to impose liability without fault. These include strict liability in warranty and tort. Without 145 commenting on the wisdom of imposing liability without fault on those who make or sell products, this Court must now decide whether to extend these theories of products or strict liability to doctors and hospitals, whose primary function is to render service, not to sell products. Therefore, the legal issue, of first impression, before this Court is whether a plaintiff, injured by an admittedly defective medical implant placed in her body during surgery by her physician (at a hospital) may maintain a strict liability claim against her doctor and the hospital for the injuries caused by the defective implant. Inasmuch as our appellate courts have not ruled with respect to this significant question of law, we look to other states for guidance. Faced with this precise issue, other jurisdictions have used the "essence of the transaction" test to determine whether the appropriate theory of recovery is strict liability or negligence. Hector v Cedars-Sinai Medical Center, 180 Cal App 3d 493, 505; 225 Cal Rptr 595 (1986); Silverhart v Mount Zion Hosp, 20 Cal App 3d 1022, 1027; 98 Cal Rptr 187 (1971); Hoff v Zimmer, Inc, 746 F Supp 872, 875 (WD Wis, 1990). In other words, appellate courts have imposed strict liability upon sellers of defective products, but not upon providers of services.[2]Hector, supra at 505; Goldfarb v Teitelbaum, 149 AD2d 566; 540 NYS2d 263 (1989). Where, as here, the putative defendant uses a defective product in the course of providing a service, the courts must decide whether the "transaction" is primarily a sale or a service. If the relationship of defendant to plaintiff is seller to buyer, then products liability 146 theories will apply. On the other hand, if the relationship of defendant to plaintiff is service provider to one served, then negligence theories will apply. In the case of a physician or hospital rendering medical care, as here, courts typically have characterized the "transaction" as a service and, accordingly, used negligence rather than strict liability theories of recovery.[3]Hector, supra at 505; Goldfarb, supra at 566; Hoff, supra at 875. We agree with this approach and adopt it here, because there are good reasons to do so. Because the primary function of physicians and hospitals is to provide care, not to manufacture or distribute products, those economic theories that underlie the imposition of strict liability upon makers and sellers of products do not justify the extension of strict liability to those who provide medical services. It is reasonable to conclude that the vast majority of patients would bear the increased costs associated with such an impractical imposition of liability upon the medical profession for the benefit of a few who for some reason (here bankruptcy) may not be able to obtain recovery from the manufacturer of the defective product. This Court would be remiss if it failed to express its compassion for plaintiff, and others like her, who may be left without a remedy for injuries caused by a defective medical implant. However, this Court should not and will not let its compassion in this case persuade it to adopt a rule of law that would likely cause greater long-term harm to more patients and the medical profession by an ill-advised adoption of strict liability against health care providers. 147 Further, whereas imposing strict liability on manufacturers arguably may promote greater care in manufacturing safer products, imposing strict liability on hospitals and physicians would not. Rather, to do so would place an unrealistic burden on the physicians and hospitals of this state to test or guarantee the tens of thousands of products used in hospitals by doctors. Because imposing liability without fault in such cases would ultimately hurt rather than help patients and their doctors, we affirm the lower court's grant of summary disposition. NOTES [1] A count in the amended complaint for medical malpractice was dismissed by stipulation of the parties. [2] In a similar manner, our Supreme Court in Neibarger v Universal Cooperatives, Inc, 439 Mich. 512, 533-537; 486 NW2d 612 (1992), drew a distinction between sales of products and the provision of services when discussing the applicability of the Uniform Commercial Code, MCL 440.1101 et seq.; MSA 19.1101 et seq. [3] Where a doctor provides a service, a medical malpractice theory may apply. See MCL 600.2912a; MSA 27A.2912(1). However, in this case, the parties stipulated the dismissal of plaintiffs' medical malpractice claim.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536712/	44 So.3d 1109 (2010) Robin L. STRANGE v. Allen DAVIS. 2081065. Court of Civil Appeals of Alabama. February 26, 2010. 1111 James D. Walker, Albertville, for appellant. Laura D. Givens, Guntersville, for appellee. MOORE, Judge. Robin L. Strange appeals from a summary judgment entered by the Marshall Circuit Court in favor of Allen Davis in an action arising from the aborted sale of a house located in Albertville. We affirm in part and reverse in part. The following facts are based on the materials the parties submitted to the circuit court in support of and in opposition to Davis's motion for a summary judgment. In 1995, Davis and his sister acquired by warranty deed a house located in Albertville. In May 2002, Strange contacted Davis about possibly purchasing the house, which was advertised for sale. After several conversations, on May 26, 2002, Davis and Strange met at the house and reached an oral agreement by which Strange agreed to purchase the house for $35,000, with a $4,000 down payment and Davis's financing the balance because of Strange's bad credit rating.[1] Kelly Wilson, a friend of Strange's who had been holding some funds for Strange, tendered a check to Davis for $4,000 at that meeting.[2],[3] Davis then informed Strange that he would take care of the "paperwork," which both parties understood to mean the documentation of the transaction, and that he would provide Strange an amortization schedule so that she could deduct the interest on her payments on her income-tax returns. Strange and Wilson both stated in their affidavits that Davis had said he would have the paperwork available "in a few days." Davis gave Strange the keys to the house and told Strange she could move into the house whenever she was ready. Davis testified that he subsequently contacted his attorney to prepare the necessary paperwork memorializing the parties' agreement. According to the attorney's legal secretary, the attorney informed her that Davis would soon be in the office to provide her with information regarding the transaction; Davis visited the office near the end of June or the first of July and told the secretary the purchaser's name and the financial terms of the transaction; and, based on that information, the secretary drafted a document entitled "Lease 1112 With Option to Purchase and Contract of Sale" ("the document") in which she characterized the $4,000 down payment in that document as a "non-refundable purchase option payment." The secretary also testified that she then left the document in the attorney's office for his review but that the attorney never returned it to her for any corrections and the document remained in a file in the attorney's office. Strange and Wilson, who both learned of the document during the litigation, attested that the document did not accurately memorialize the transaction. According to the secretary, over the next few months, Davis would stop by periodically and indicate to her that he was trying to "get a hold" of Strange for her to come into the office, but Davis never requested that the secretary try to contact Strange. Davis testified that he had identified to Strange the attorney who was drafting the paperwork and had asked Strange to go to the attorney's office to review the draft of the paperwork. Davis further testified that he had inquired of the attorney's office on several occasions whether Strange had reviewed the paperwork and that he was told on each occasion that Strange had not visited the office. In her deposition, Strange denied that Davis had ever told her who the attorney was, and she testified that she had never asked. In her affidavit, Strange further attested that Davis had told her that his attorney was drafting the paperwork but that Davis had never told her that the paperwork was ready or asked her to review the paperwork. Neither Davis nor Strange reviewed the document during this period. During the several months the document remained in the attorney's office, Strange made monthly payments of $369[4] to Davis through Davis's assistant. Strange stated in her affidavit that she had expected to receive the paperwork regarding the transaction within a few days of the parties' entering into the oral agreement. She testified in her deposition that, on each occasion she made a payment, she had inquired of Davis's assistant as to the status of the paperwork. Strange also testified that, on one occasion, she overheard Davis inform his assistant over a radio that the paperwork was not yet complete and that Davis would contact Strange once Davis had obtained the paperwork. Strange further testified that she also spoke with Davis "a few times" about the paperwork, which Davis denied. According to Strange, on one occasion, Davis informed Strange that he had encountered a problem obtaining the paperwork because "something was going on with the attorney's wife,"[5] but, Strange said, Davis had promised he would give Strange the paperwork as soon as it was ready. At that time, Strange believed that Davis would provide the paperwork and that Davis was telling the truth about the attorney's wife. Strange did not inform Davis that, unless she received the paperwork promptly, she would move out of the house without making any further payments. Strange testified that, after more time lapsed without Davis producing the paperwork, she eventually felt that Davis did not 1113 intend to give her the paperwork. Strange spoke with Wilson and contacted an attorney. Based on those conversations, Strange concluded that she needed the paperwork Davis had promised to deliver to assure her legal rights to the house and that she should withhold further payment until she received the paperwork. Strange testified that she then telephoned Davis and told him that, if she did not receive the paperwork, she was not going to pay the October 2002 payment. Strange was not sure whether that telephone call occurred before or after the October payment was due. Davis denied that Strange had ever requested the paperwork from him, and he stated that, if she had, he would have directed her to the attorney's office. When Strange did not make the payment due on the first of October, Davis informed Strange's adult daughter who lived in the house, in two separate conversations using what the daughter described in her affidavit as a "hateful tone," that he considered himself the owner of the house, that he did not authorize any of Strange's other relatives to reside in the house,[6] and that he would evict Strange if Strange did not remit the October payment by October 15. Strange testified that she considered those statements to be harassing. Strange contacted her attorney, and her attorney drafted a letter to Davis in which the attorney indicated that Strange had withheld the October payment due, in part, to Davis's failure to provide Strange the paperwork. The letter further stated that Strange no longer wanted to buy the house and that she would vacate the house upon Davis's returning to Strange the $4,000 down payment she had made or by November 1, 2002. The letter further stated that the monthly payments could be treated as rent, but it threatened that litigation would be commenced if the full down payment was not returned to Strange. Davis testified that he received the letter from Strange's attorney. Strange testified that Davis telephoned her about the letter and that she told Davis that she had had her attorney send the letter because she had not received the paperwork and because she felt like she could be thrown out of the house at any time without it. According to Strange, Davis told her that she should not have sent the letter and that, if she did not pay the October payment, she would need to move. In her affidavit, Strange added that, during that telephone conversation, Davis did not tell her that he had the paperwork or that he would provide her the paperwork and he did not direct her to the attorney's office to review the paperwork. Davis recalled having talked to Strange about her not making the October payment, but he did not recall her mentioning his failure to provide her the paperwork as her reason for not having made the payment. Strange and her family vacated the house on November 1, 2002. Strange testified that she felt it was best for her to vacate the house because Davis had failed to provide the paperwork he had promised and he did not "hold[ ] up his end of the agreement." Strange testified that she had not wanted to vacate the house and that she had been happy living in the house but that she had vacated the house despite the fact that she was not actually evicted. Davis did not refund the $4,000 down payment to Strange. In her affidavit, Strange stated that Davis had informed her that he had kept the down payment to cover the costs of replacing the 1114 carpet in the house, which, Davis claimed, had been damaged by Strange's family; however, Strange attested that the carpet had not been damaged and that she had had the carpets professionally cleaned before vacating the house. Davis also testified that he had not replaced the carpet but that he had merely had the carpet cleaned for $50 or $100. On December 9, 2002, Strange filed a four-count complaint against Davis asserting claims of breach of contract, fraud, harassment, and wrongful eviction. Davis filed an answer and a counterclaim in early 2003. The case went to trial on January 9, 2006, but a mistrial was declared. On July 6, 2007, Davis moved for a summary judgment on all claims asserted in the complaint; Strange filed a response to the summary-judgment motion on August 17, 2007. The circuit court granted the motion for a summary judgment on November 26, 2007. Strange appealed to this court on January 11, 2008. This court dismissed that appeal as being from a nonfinal judgment on July 3, 2008. The circuit court then dismissed Davis's counterclaim, rendering the summary judgment final on July 7, 2009. Strange then appealed to this court on August 11, 2009. This court subsequently granted Strange's motion to incorporate the record from the first appeal. On appeal, Strange argues that the circuit court erred in granting the motion for a summary judgment on each count asserted in the complaint. Our standard of review in cases in which a summary judgment has been entered is well settled: "'"`This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce "substantial evidence" as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).'"' "Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004))." Ex parte Duncan, 1 So.3d 15, 19 (Ala. 2008). The elements of a breach-of-contract claim are (1) the existence of a contract, (2) a material breach by one of the contracting parties, and (3) damage to the other party as a result of that breach. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1078 (Ala.Civ.App.2005). At least for purposes of the motion for a summary judgment, both parties agree that they 1115 entered into a contract for the sale of the house. Davis maintains that he is entitled to a summary judgment on the breach-of-contract claim because, he says, the undisputed facts show that Strange breached the contract by failing to tender any monthly payment after September 2002, by failing to ascertain who was preparing the paperwork, and by vacating the house without notice to Davis, thereby preventing Davis from providing Strange the paperwork. Davis contends that he is entitled to a judgment as a matter of law because "[a] party to a contract who has caused a failure of performance by the other party cannot take advantage of that failure." Big Thicket Broad. Co. of Alabama v. Santos, 594 So.2d 1241, 1244 (Ala. Civ.App.1991). Strange, on the other hand, maintains that the circuit court erred in entering a summary judgment on the breach-of-contract claim because, she says, the evidence, when viewed in a light most favorable to Strange, indicates that Davis breached the contract by failing to produce the paperwork, thereby excusing Strange from making further contractual payments. Strange argues that, when the vendor in an installment land-sale contract breaches the contract, the "vendee may rescind the contract upon relinquishing possession of the [property] and may sue for a return of purchase money paid." Health Science Prods., Inc. v. Taylor (In re Health Science Prods., Inc.), 183 B.R. 903, 936 n. 45 (Bankr.N.D.Ala.1995) (citing, among other cases, McAllister v. Altus Bank, 578 So.2d 1266 (Ala.1991), and Clark v. Wilson, 380 So.2d 810 (Ala. 1980)). We agree with Strange. The undisputed evidence indicates that Davis assumed the sole responsibility for acquiring the paperwork memorializing the parties' transaction. According to the affidavit testimony of Strange and Wilson, which Davis did not refute, Davis agreed to deliver the necessary paperwork to Strange within a few days of the parties' entering into the oral agreement. Davis did not, however, physically deliver the paperwork to Strange. The evidence is conflicting regarding whether Davis contacted Strange to direct her to his attorney's office to review the paperwork prepared by the attorney's secretary. Davis says he did; Strange says he did not. According to Strange, Davis merely informed her that the paperwork was being prepared by his attorney, whom Davis did not identify, and that his attorney had not completed the paperwork. Even if Strange had some duty to ascertain the identity of the attorney, according to the evidence presented by Strange she had no reason to visit that attorney who, to her knowledge, had not completed the paperwork. Accordingly, a fair-minded person in the exercise of impartial judgment could determine that Strange had done nothing to prevent the completion and delivery of the paperwork. At the very least, a genuine issue of material fact exists as to whether Davis initially breached the contract, thereby excusing any further performance by Strange. We therefore reverse the summary judgment insofar as it pertains to the breach-of-contract claim. In her complaint, Strange premised her fraud claim on the misrepresentation by Davis that he would deliver to Strange the paperwork regarding the oral agreement. In other words, Strange asserts that Davis committed promissory fraud by promising to perform a future act with no present intention to do so. See Valley Props., Inc. v. Strahan, 565 So.2d 571, 579 (Ala.1990) ("If the fraud is based upon a promise to perform or abstain from performing in the future, two ... elements [in addition to elements of a `traditional' fraud claim] must be proved: (1) the defendant's 1116 intention, at the time of the alleged misrepresentation, not to do the act promised, coupled with (2) an intent to deceive."), overruled on other grounds, White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5 (Ala.2009). "`The burden is on the plaintiff to prove that when the promise was made the defendant intended to deceive. Martin v. American Medical Int'l, Inc., 516 So.2d 640 (Ala.1987); P & S Bus., Inc. v. South Cent. Bell Tel. Co., 466 So.2d 928 (Ala.1985). The plaintiff cannot meet his burden merely by showing that the alleged promise ultimately was not kept; otherwise, any breach of contract would constitute a fraud. Purcell Co. v. Spriggs Enterprises, Inc., 431 So.2d 515, 519 (Ala.1983). It is well settled that "a jury does not have untrammeled discretion to speculate upon the existence of [the requisite] intent [for promissory fraud]." There must be substantial evidence of a fraudulent intent that existed when the promise was made. Martin, 516 So.2d at 642 (quoting Purcell Co., 431 So.2d at 519).' "Goodyear Tire & Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala.1998). See also Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235, 237 (Ala. 1990) (`[I]n order for a promise to constitute a fraudulent misrepresentation, there must have been at the time the promise was made an intention not to perform, and such a promise must have been made with the intent to deceive.'); Clanton v. Bains Oil Co., 417 So.2d 149, 151 (Ala.1982) ('A promise, to constitute fraud, must be made with the intent not to perform it.'). Evidence of consistent, but unfulfilled, promises can in some cases amount to substantial evidence of an intent to deceive. Goodyear Tire, 719 So.2d at 777; Campbell v. Naman's Catering, Inc., 842 So.2d 654, 659 (Ala. 2002). Additionally, `[a] defendant's intent to deceive can be established through circumstantial evidence that relates to events that occurred after the alleged misrepresentations were made.' Byrd v. Lamar, 846 So.2d 334, 343 (Ala. 2002)." Southland Bank v. A & A Drywall Supply Co., 21 So.3d 1196, 1212 (Ala.2008). Strange contends that Davis always intended to maintain the contract as an oral agreement so that he could claim the parties had agreed only to a lease-purchase arrangement that would allow him to retain the $4,000 down payment in the event of a default. The evidence, when viewed in a light most favorable to Strange, could convince a reasonable person, in the exercise of impartial judgment, of the correctness of that theory. Davis was aware that, when he and Strange consummated the sale in May 2002, Strange had credit problems that made her more likely to default on an installment loan. Armed with that knowledge, Davis dictated the terms of the transaction to his attorney's secretary, and, based largely on Davis's word, the secretary labeled the document as a lease-purchase and characterized the $4,000 down payment in the document as a "non-refundable purchase option payment," which is contrary to the terms negotiated by Strange and Davis. According to Strange, Davis then took every action he could to assure that the document drafted by his attorney's secretary remained the sole written evidence of the agreement. Based on Strange's testimony, Davis did not disclose the existence of the document to Strange, did not deliver the document to her, did not advise her of the identity of the attorney drafting the document, and did not direct her to the attorney's office to review it. To the contrary, Davis continually maintained for 1117 four and one-half months that the paperwork was still in the process of being prepared and that he would contact Strange when it was ready. Even when Strange informed Davis that she was not paying the October payment because of his failure to provide her the paperwork, Davis did not provide Strange the document that Davis testified remained in the attorney's office. Davis then actually retained the $4,000 down payment based on the allegedly false claim that he had used it to replace the carpet in the house when, instead, he had merely had the carpet cleaned at a cost of $50 or $100. We therefore reverse the summary judgment on the fraud claim. In the third count of her complaint, Strange claimed that Davis had harassed her, thereby interfering with her peaceable and quiet enjoyment of the house she was purchasing from him. In her deposition, Strange testified that Davis harassed her when, on two separate occasions, he spoke with Strange's daughter to demand the October payment. In his motion for a summary judgment, Davis pointed out that mere efforts to collect a debt in a reasonable manner without more cannot be considered actionable. Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 47-48 (Ala.1982). We agree. Strange has not introduced any evidence indicating that Davis acted in such a manner as to warrant the conclusion that he committed any actionable conduct in merely attempting to collect the October payment. We therefore affirm the summary judgment as to the harassment claim. In count four of the complaint, Strange alleged that Davis had entered into a course of conduct to evict or to force Strange to vacate the house without lawful authority. In her deposition, Strange admitted that she had not actually been evicted or forced to vacate the house by Davis's actions. Rather, Strange explained that she had felt compelled to vacate the house after Davis failed to deliver the paperwork to her and because she believed she would be out the money she had paid instead of gaining title to the house. In his summary-judgment motion, Davis argued that Strange had elected to vacate the house of her own free will and that Davis had had nothing to do with her decision. Davis maintained that he was therefore entitled to a judgment as a matter of law on Strange's claim that Davis had wrongfully evicted her. "`When reviewing an excerpt of deposition testimony to determine whether it creates a genuine issue of material fact, this court does not consider it abstractly, independently, and separately from the balance of the deposition testimony. See Malone v. Daugherty, 453 So.2d 721 (Ala.1984). Rather, this court must consider the context of the testimony as well as the remainder of the deposition testimony in order to determine if the testimony as a whole creates a reasonable inference to support the proponent's position. See Hines v. Armbrester, 477 So.2d 302 (Ala.1985); and Alabama Power Co. v. Smith, 409 So.2d 760 (Ala.1982)." McGough v. G & A, Inc., 999 So.2d 898, 905-06 (Ala.Civ.App.2007). Viewing the entirety of the deposition testimony on the subject, it appears that Strange enjoyed the house and would still be living in the house had it not been for the failure of Davis to provide her the paperwork securing her legal claim to the house. Strange stated that she had not wanted to vacate the house but that she had felt that it was best to vacate the house to prevent the loss of further funds to Davis who, by that time, she believed had defrauded her. A fair reading of the deposition testimony simply does not support the inference that 1118 Strange vacated the house of her own volition and not due to the actions or omissions of Davis. As such, Davis did not carry his burden of demonstrating that there was no genuine issue of material fact that Strange had independently and voluntarily vacated the house. See Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992) ("The party moving for a summary judgment must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law."). In its order granting Davis's summary-judgment motion, the circuit court stated: "The law is clear that a non-moving party may not create a genuine issue of fact by submitting affidavits or testimony that contradicts her own earlier sworn testimony. McAlpine[McAlpin] v. City of Decatur, 628 So.2d 611, 613 (Ala.1993); Tittle v. Alabama Power Co., 570 So.2d 601, 604 (Ala.1990)." We agree with that statement as a general proposition of law, but we find it inapplicable to the facts of this case. With one exception, Strange's affidavit testimony does not contradict her deposition testimony; rather, it merely elaborates or supplements her deposition testimony. The lone exception we have discerned concerns Strange's statement in her affidavit that Davis informed her that his attorney's wife had had a baby, which contradicts Strange's deposition testimony that Davis did not explain the attorney's alleged delay in drafting the paperwork. However, that contradiction is immaterial and does not render the remainder of the affidavit inadmissible. Therefore, we find no basis for affirming the summary judgment on the theory that Strange impermissibly attempted to create a genuine issue of material fact through the filing of a sham affidavit. For the foregoing reasons, we affirm the summary judgment as to the harassment claim; we reverse the summary judgment as to the breach-of-contract, fraud, and wrongful-eviction claims, and we remand the case to the circuit court for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur. BRYAN, J., concurs in the result, without writing. NOTES [1] In his deposition, Davis recalled the transaction somewhat differently, but, for purposes of the motion for a summary judgment, Davis admitted that "[t]he parties believed that Ms. Strange was purchasing the house for $35,000 with the balance financed by Mr. Davis at a monthly rate to be determined by an amortization schedule." [2] At one point in his deposition, Davis denied that Wilson was the man who made the tender; however, Wilson attested that he was the only man attending the meeting with Strange, and Davis testified at another point that Wilson must have been the man. [3] Strange testified that Wilson loaned her a portion of the $4,000 and that she paid him back various amounts until Wilson informed her that she no longer owed him any money. Strange stated that she believed that she had reimbursed Wilson in full but that she did not know whether she had paid back "every dime" of the loan. [4] Strange testified that, at the time the parties entered into the oral agreement, Strange informed Davis that she could not afford monthly payments above $400. At some point, Davis informed Strange that the monthly payments would be $369 for between "12 and 15 years." Apparently, the amount was based on a 12% interest rate. [5] In her deposition, Strange testified that Davis did not elaborate on the matter, but, in her affidavit, Strange attested that Davis had said that the attorney was behind on his work because the attorney's wife had had a baby. [6] According to Strange's daughter, Strange's sister, who was very ill, was staying with Strange at the time.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536785/	47 So.3d 17 (2010) Scott Anthony PLAISANCE, et al. v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC., et al. No. 10-348. Court of Appeal of Louisiana, Third Circuit. October 6, 2010. 19 Patrick M. Wartelle, Leake & Andersson, L.L.P., Lafayette, LA, Counsel for Defendant/Respondent Our Lady of Lourdes Regional Medical Center, Inc. Ronald C. Richard, Richard Law Firm, L.L.C., Lake Charles, LA, Counsel for Plaintiffs/Applicants Scott Anthony Plaisance, et al. Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges. AMY, Judge. The plaintiffs filed suit in district court against the defendant hospital, alleging it negligently credentialed and retained the surgeon who performed various medical procedures on one of the plaintiffs. The defendant hospital filed an exception of prematurity, asserting that the plaintiffs' allegations were covered under the Louisiana Medical Malpractice Act, and thus, were required to first be reviewed by a medical review panel. The trial court sustained the defendant hospital's exception. The plaintiffs appeal and file an application for supervisory writ. For the reasons that follow, we affirm. Factual and Procedural Background Scott Plaisance, his wife, Monique Plaisance, individually and as legal representatives of their two minor children (collectively plaintiffs), filed suit in the Fifteenth Judicial District Court naming Our Lady of Lourdes Regional Medical Center (Lourdes), among others, as defendant, alleging Lourdes was responsible for the "[n]egligent credentialing and/or retention" of surgeon Dr. Curtis L. Beauregard, who had performed three neurosurgical 20 procedures on Scott Plaisance at Lourdes Hospital. The petition alleged, in part, that Lourdes was liable to the plaintiffs because "they were aware of Dr. Beauregard's acts and behavior that occurred during the course of his treatment of Mr. Plaisance during April, May, and June of 2008 that should have prevented him from being allowed to retain privileges at Our Lady of Lourdes." The petition further stated that the plaintiffs had also filed a "Petition for Medical Review Panel," asserting a claim of medical malpractice in connection with Dr. Beauregard's treatment. In response to the plaintiffs' suit, Lourdes filed an exception of prematurity asserting that the plaintiffs' claim against it was covered under the definition of "malpractice" found in Louisiana's Medical Malpractice Act (LMMA), and thus, the plaintiffs were required to submit their claims to a medical review panel before filing the instant suit in district court. La. R.S. 40:1299.41(A)(13); La.R.S. 40:1299.47. Following a hearing, the trial court sustained Lourdes's exception of prematurity. The plaintiffs appeal[1], asserting that the trial court erred in sustaining Lourdes' exception in finding that "negligent credentialing" constituted "malpractice" under the LMMA. La.R.S. 40:1299.41(A)(13). Discussion A medical malpractice claim against a private qualified health care provider[2] is subject to dismissal in a district court on an exception of prematurity if that claim has not first been presented to a medical review panel. La.R.S. 40:1299.47(A); LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-08, 07-16 (La.9/5/07), 966 So.2d 519. The LMMA and its procedural requirements apply solely to malpractice claims as defined in La.R.S. 40:1299.41(A)(13), as follows: "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient. The plaintiffs argue that the LMMA's definition of malpractice does not contain the claim of "negligent credentialing" and thus, as the LMMA is to be strictly construed against coverage under the statute, their claim falls outside the limitations of the LMMA. See Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-451 (La.12/1/04), 888 So.2d 782 (wherein the supreme court explained coverage under the LMMA should be strictly construed because the limitations of the Medical Malpractice Act on the liability of qualified health care providers is special legislation in derogation of the rights of tort victims). 21 Lourdes argues that the plaintiffs' claims while styled as a "negligent credentialing" claim, is, in reality, a claim for negligent supervision which is specifically mentioned in the LMMA. In determining whether the plaintiffs' claims constitute malpractice under the LMMA, we must go further than a review of whether plaintiffs' claims are titled "negligent credentialing" or "negligent supervision" and look instead to whether "the entirety of the conduct on which plaintiff[s'] claim against Dr. [Beauregard] is based fits within the ambit of the statutory definition of `malpractice.'" Coleman v. Deno, 01-1517, 01-1519, 01-1521, p. 22 (La.1/25/02), 813 So.2d 303, 318. The Coleman court set forth six factors to assist in the determination of whether a claim constitutes malpractice under the LMMA: [1] whether the particular wrong is "treatment related" or caused by a dereliction of professional skill, [2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, [3] whether the pertinent act or omission involved assessment of the patient's condition, [4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform, [5] whether the injury would have occurred if the patient had not sought treatment, and [6] whether the tort alleged was intentional. Id. at 315-16. Here, the exceptor, Lourdes, bears the burden of proving it is entitled to a medical review panel because the plaintiffs' allegations fall under the LMMA. LaCoste, 966 So.2d 519. The record reveals that neither party presented evidence at the trial on the exception of prematurity. As such, this court "must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true." Id. at 525; See also La.Code Civ.P. art. 930. [1] Whether the particular wrong is "treatment related" or caused by a dereliction of professional skill The plaintiffs assert, in brief, that the tortious act at issue is not "treatment related" because the decision by Lourdes to grant Dr. Beauregard credentials to operate in its hospital was made before the treatment of any patients. Lourdes, however, argues that the negligent credentialing claim, as stated in the plaintiffs' petition, "focuses on what was done by the hospital after Dr. Beauregard received credentials." While the plaintiffs argue that the alleged misconduct occurred before the treatment of any patients, the petition's allegations, which we must accept as true, allege Our Lady of Lourdes "were aware of Dr. Beauregard's prior acts and behavior that should have prevented him from obtaining full privileges" in addition to misconduct directly related to Mr. Plaisance's treatment. The petition states that Lourdes is liable for the plaintiffs' damages because "they were aware of Dr. Beauregard's acts and behavior that occurred during the course of his treatment of Mr. Plaisance at Our Lady of Lourdes during April, May, and June of 2008 that should have prevented him from being allowed to retain privileges at Our Lady of Lourdes." The plaintiffs' "negligent credentialing" claim, as explained by them in the petition, encompasses not only the initial decision to provide Dr. Beauregard credentials but the subsequent decision to retain those credentials in light of what it alleges were multiple unsatisfactorily performed medical procedures. Accordingly, 22 we find that the alleged misconduct relates to medical treatment or the dereliction of professional medical skill. [2] Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached The plaintiffs argue that expert medical evidence will not be needed to determine Lourdes's appropriate standard of care because the standard of care "is based in the standards of hiring and reviewing applicants for credentialing." While there may be merit in the plaintiffs' argument that expert medical evidence may not be needed to review Lourdes's hiring standards, as explained above, the misconduct alleged includes Lourdes response of retaining Dr. Beauregard in light of his alleged deficient performance of medical procedures. It follows that expert medical evidence would be required to determine whether Dr. Beauregard was qualified to perform the medical procedures, whether he committed malpractice, and whether that malpractice necessarily created a duty on the hospital to take action. [3] Whether the pertinent act or omission involved assessment of the patient's condition This factor additionally weighs in favor of finding the plaintiffs' allegations sound in malpractice. The plaintiffs' claims involve evaluating Lourdes's response in light of his treatment of Mr. Plaisance which will necessarily involve the assessment of his condition. [4] Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform The plaintiffs' petition alleges that Lourdes was aware of certain negligent acts of Dr. Beauregard "yet failed to suspend or revoke [his] privileges." Louisiana Revised Statutes 40:2114(E) provides that "[a] hospital shall establish rules, regulations, and procedures setting forth the nature, extent, and type of staff membership and clinical privileges, as well as the limitations placed by the hospital on said staff membership and clinical privileges for all health care providers practicing therein." Thus, Lourdes's action or inaction regarding Dr. Beauregard's privileges is within the scope of activities a hospital is licensed to perform, and the fourth factor is satisfied. See Dinnat v. Texada, 09-665 (La.App. 3 Cir. 2/10/10), 30 So.3d 1139, writ denied, 10-540 (La.6/18/10), 38 So.3d 322. [5] Whether the injury would have occurred if the patient had not sought treatment The plaintiffs' alleged injuries relate to Dr. Beauregard's performance of medical procedures and thus would not have occurred if the patient had not sought treatment. Thus, the fifth factor is satisfied. [6] Whether the tort alleged was intentional This factor is inapplicable in the present case as the plaintiffs' petition makes no allegations of an intentional tort. Id. Having considered the plaintiffs' allegations in the petition, the LMMA, and the six factor Coleman test, we find that the trial court correctly decided that the plaintiffs' claim are covered as a malpractice claim under the LMMA. DECREE The judgment of the trial court sustaining the defendant's, Our Lady of Lourdes *23 Regional Medical Center, exception of prematurity is affirmed. All costs of these proceedings are assessed to the plaintiffs-appellants. AFFIRMED. NOTES [1] Plaintiffs also sought review of the trial court's judgment through a writ application; in the interest of judicial economy and justice, the ruling on the plaintiffs writ application is rendered simultaneously with this opinion. For the companion case to this appeal, see Scott Anthony Plaisance, et. al. v. Our Lady of Lourdes Regional Medical Center, et. al., CW 09-1502 (La.App. 3 Cir. 10/6/2010), 47 So.3d 17. [2] Neither party disputes that Lourdes is a qualified health care provider under La.R.S. 40:1299.41(A)(10).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536788/	49 So.3d 181 (2010) NEW ACTON COAL MINING COMPANY, INC. v. Tim WOODS et al. 1081092. Supreme Court of Alabama. April 9, 2010. 182 J. Mitchell Frost, Jr., and Bradley L. Hendrix of Ferguson, Frost & Dodson, LLP, Birmingham, for appellant. Garve Ivey, Jr., and Dustin Whisenhunt, Jasper; and John E. Warren III, Jasper, for appellees. SMITH, Justice. Tim Woods, Connie Woods, James Harland, Millie M. Harland, J.C. Pugh, and Bonnie Pugh (hereinafter referred to collectively as "the appellees") and 20 other individuals and entities sued New Acton Coal Mining Company, Inc. ("New Acton"), in the Walker Circuit Court seeking damages for injury to their properties resulting from New Acton's blasting operations. At the conclusion of a separate jury trial on the appellees' claims against New Acton, the jury returned a verdict in favor of the appellees. The appellees, however, moved for a new trial arguing that the damages award was tainted by juror misconduct and was inadequate in light of the evidence they had presented at trial. The trial court granted the appellees' motion, and New Acton appeals. We dismiss the appeal. Facts and Procedural History Twenty-six individuals and entities owning property near New Acton's mining operations in Walker County (hereinafter referred to collectively as "the plaintiffs") sued New Acton, alleging that New Acton's blasting operations had damaged their properties, diminished the value of their properties, and caused them to suffer 183 mental anguish.[1] Because of the number of plaintiffs, New Acton moved the trial court to break the action into separate trials under Rule 42(b), Ala. R. Civ. P.[2] In the motion, New Acton asserted that this action involves 13 sets of plaintiffs owning varying types of properties scattered over a wide area and that 13 separate trials were warranted for the convenience of the trial court and to avoid prejudice to the parties. The trial court denied the motion. New Acton then moved for reconsideration of the trial court's denial of its motion for separate trials. Pursuant to that motion, the trial court then granted the motion for separate trials. First, plaintiffs Jack Clark and Martha Clark tried their claims against New Acton to a jury. The jury returned a verdict in favor of New Acton, and, on April 17, 2008, the trial court entered a judgment on the jury's verdict. The Clarks then filed a motion for a new trial, which the trial court denied. The appellees then tried their claims against New Acton to a jury. On January 20, 2009, the jury returned the following verdicts: $27,500 for Tim Woods and Connie Woods; $20,000 for James Harland and Millie M. Harland; and $15,000 for J.C. Pugh and Bonnie Pugh. The appellees then filed a motion styled "Motion to Vacate Jury Verdict, for New Trial, for Judgment Notwithstanding the Verdict, for Mistrial, or for Such Other Relief as may be Appropriate Under the Circumstances" under Rule 59, Ala. R. Civ. P. On April 17, 2009, the trial court entered an order granting the appellees' request for a new trial. New Acton now appeals from that order, arguing that in ordering a new trial the trial court exceeded its discretion. Discussion Before addressing the issues New Acton raises before this Court, we must consider whether we have jurisdiction over this action. "A court is obligated to vigilantly protect against deciding cases over which it has no jurisdiction because `[i]t would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself.'" Crutcher v. Williams, 12 So.3d 631, 635 (Ala.2008) (quoting Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930)). "`"As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties.. . ."'" North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344 (Ala.2008) (quoting Powell v. Republic Nat'l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974), quoting in turn McGowin Inv. Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)). "`"An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains 184 and declares the rights of the parties." Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). "[W]ithout a final judgment, this Court is without jurisdiction to hear an appeal." Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).'" Horn v. Brown, 4 So.3d 1106, 1108 (Ala. 2008) (quoting Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006)). New Acton asserts that this Court has jurisdiction over this action under § 12-22-10, Ala.Code 1975, which provides that "[e]ither party in a civil case . . . may appeal to the appropriate appellate court from an order granting or refusing a motion for a new trial by the circuit court." We disagree, however, because an appeal under § 12-22-10 may be filed only in reference to a final judgment, and a final judgment was not entered in this action. In Galloway v. Arnold, 374 So.2d 1350 (Ala.1979), this Court considered whether § 12-22-10 authorizes a party to appeal from an order granting a motion to reconsider an interlocutory order issuing a preliminary injunction. This Court answered the question in the negative and dismissed the appeal, holding: "We do not . . . find that the new Rules of Civil Procedure authorize this court, under Code 1975, § 12-22-10, to review a grant or denial of an application for rehearing of an interlocutory order where there has been no final adjudication of any determinative issue in the case. Such a finding would be in derogation of the principles of finality expressed in such rules as Rule 54, [Ala. R. Civ. P.]." 374 So.2d at 1351 (citing Moody v. State ex rel. Payne, 351 So.2d 547 (Ala.1977)). The judgment from which the appellees moved for a new trial is a nonfinal judgment because the appellees' trial was only the second of 13 separate trials in this single action. The record indicates that under Rule 42(b), Ala. R. Civ. P., the trial court granted New Acton's motion for 13 separate trials, that plaintiffs Jack Clark and Martha Clark tried their claims against New Acton in the first trial, and that the appellees tried their claims against New Acton in the second trial. Thus, from all that appears in the record, the claims of at least 11 plaintiffs are still pending.[3] Importantly, the trial court ordered separate trials under Rule 42(b); it did not sever the plaintiffs' claims under Rule 21, Ala. R. Civ. P.[4] A significant distinction 185 exists between an order separating trials under Rule 42(b) and one severing claims under Rule 21 because "severed claims become independent actions with judgments entered independently, while separate trials lead to one judgment." Universal Underwriters Ins. Co. v. East Cent. Alabama Ford-Mercury, Inc., 574 So.2d 716, 725 (Ala. 1990). The Committee Comments adopted February 13, 2004, to Rule 21 explain: "Confusion has sometimes arisen between a true severance and an order providing for separate trials pursuant to Rule 42(b). The distinction has at least the significance that a judgment on the first of two separate trials is not final, absent an order pursuant to Rule 54(b), Ala. R. Civ. P.,[[5]] while after a true severance a judgment on the first action to come to trial is final and appealable without reference to the proceedings in the severed action. Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala.1976). . . ." In Key v. Robert M. Duke Insurance Agency, 340 So.2d 781, 783 (Ala.1976), this Court advised that "separate trials of different claims in a single action under Rule 42(b) usually result in a single judgment. Consequently, when the court wishes to enter judgment as to fewer than all the claims or parties, in a single action, Rule 54(b)[, Ala. R. Civ. P.,] must be followed." See also 10 Charles Alan Wright et al., Federal Practice and Procedure, Civil § 2656 (3d ed.1998) (noting that "the fact that separate trials have been ordered under Rule 42(b) does not affect the finality of the judgment entered following each separate trial for purposes of Rule 54(b)"). Here, before the appellees moved for a new trial under Rule 59, the trial court did not direct the entry of a final judgment on the appellees' claims under Rule 54(b), Ala. R. Civ. P. Consequently, the appellees' motion for a new trial under Rule 59 and New Acton's appeal of the trial court's order granting that motion relate to a nonfinal judgment and, therefore, are improper. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003) ("`A Rule 59 motion may be made only in reference to a final judgment or order.'" (quoting Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999))); Galloway, 374 So.2d at 1351 (holding that an appeal under § 12-22-10, Ala.Code 1975, is proper only in relation to a final judgment). Accordingly, we vacate the trial court's order granting a new trial, and we dismiss the appeal. *186 ORDER VACATED; APPEAL DISMISSED. COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur. NOTES [1] The plaintiffs named in the complaint are R.L. Aaron, Sue Aaron, Clyde Thomas, Jeff Rigsby, Tim Woods, Jack W. Butler, Jack Clark, Martha Clark, Union Chapel United Methodist Church, Jimmy Aaron, Mary Frances Daniel, Dinah Sue Daniel Moon, James Harland, Millie M. Harland, Marie Turner, Karen Inmon, J.C. Pugh, Bonnie Pugh, Jerry Lawson, Brenda Lawson, Russ Haygood, Marie Haygood, Jim Woods, Connie Woods, Kenneth Gamble, and Vanessa Gamble. [2] Rule 42(b) provides that the trial court may order a separate trial of any claim "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." [3] The record indicates the following plaintiffs remain: R.L. Aaron; Sue Aaron; Jimmy Aaron; Jack W. Butler; Dinah Sue Daniel Moon as the administratrix of the estate of Mary Frances Daniel; Kenneth Gamble; Vanessa Gamble; Dinah Sue Daniel Moon; Jeff Rigsby; Marie Turner; and Union Chapel United Methodist Church. The trial court dismissed plaintiffs Jerry Lawson and Brenda Lawson on April 14, 2003. The trial court dismissed plaintiffs Clyde Thomas, Jim Woods, Russ Haygood, and Marie Haygood on April 30, 2003. New Acton moved to dismiss plaintiff Karen Inmon, but the record is unclear as to whether the trial court has ever granted this motion. [4] Rule 21, Ala. R. Civ. P., provides, in pertinent part: "Any claim against a party may be severed and proceeded with separately." We note that New Acton's six-page motion asking the trial court to reconsider its denial of New Acton's "Motion for Separate Trials" includes one reference to "severance of the claims," stating: "There does, however, exist a strong and convincing argument for severance of the claimsthere is a significant possibility for prejudice against [New Acton]." However, the motion makes no reference to Rule 21, and New Acton's prayer for relief states: "Wherefore, premises considered and pursuant to Rule 42(b) of the Alabama Rules of Civil Procedure, defendant [New Acton] respectfully requests this Court enter an Order granting its Motion to Reconsider its Motion for Separate Trials and order the plaintiffs' claims to be tried by jury in separate and individual trials." (Emphasis added.) In addition, New Acton's "Motion for Separate Trials" makes no reference to severing the plaintiffs' claims or to Rule 21, and the record does not indicate that the clerk docketed severed claims with new civil-action case numbers. The Committee Comments adopted February 13, 2004, to Rule 21 advise: "To avoid ambiguity at the time of bifurcation and later uncertainty as to finality, a party seeking a severance or a separate trial should request that the court make clear whether a Rule 21 severance or a Rule 42(b) separate trial is intended. Opinion of the Clerk, 526 So.2d 584, 586 (Ala.1988), expressed the clerk's opinion that the plaintiff in the severed action should pay a filing fee `[w]here a "true" severance under Rule 21 is ordered and the clerk dockets a separate case with a new civil action number.'" [5] "Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay." Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2536790/	46 So.3d 64 (2010) MERRICK v. STATE. No. 5D10-1552. District Court of Appeal of Florida, Fifth District. September 28, 2010. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537834/	343 S.W.3d 567 (2011) Chezaray MELANCON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. No. 14-10-00007-CV. Court of Appeals of Texas, Houston (14th Dist.). June 21, 2011. 568 Jack F. Burleigh, Houston, TX, James P. Ryan, Opelousas, TX, for appellant. Brian M. Chandler, Jack McKinley, Houston, TX, for appellee. Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER. OPINION KEM THOMPSON FROST, Justice. An insured sued his insurer for breach of an automobile insurance policy under the uninsured/underinsured motorists coverage. At trial, the jury found the amount of the insured's personal-injury damages, which was an amount less than the total amount paid in settlements to the insured by persons or organizations who had potential liability for the insured's damages. Under the unambiguous language of the policy, the insurer has no liability in this situation. Accordingly, we affirm the trial court's take-nothing judgment. I. FACTUAL AND PROCEDURAL BACKGROUND Appellant Chezaray Melancon is an insured under an automobile insurance policy issued by appellee State Farm Mutual Automobile Insurance Company. Under the uninsured/underinsured motorists coverage (hereinafter "UIM Coverage"), State Farm must "pay the damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident." The policy limits State Farm's liability under the UIM Coverage to the lesser of a. The difference between the amount of [Melancon's] damages for bodily injury or property damage and the amount paid or payable to [Melancon] for such damages, by or on behalf of persons or organizations who may be legally responsible; and b. The applicable limit of liability for this coverage [$100,000]. Melancon was injured in an automobile accident involving multiple vehicles. He brought suit against two other drivers involved in the accident, Noel Sholes and Miguel Garcia, and Garcia's employer, Lane Freight, Inc. Melancon also joined State Farm as a defendant, asserting a breach-of-contract claim on the basis that State Farm was liable to Melancon under the UIM Coverage of his policy. Melancon and State Farm stipulated that (1) Melancon settled his claims against Garcia and Lane Freight for $170,000; (2) Melancon settled his claims against Sholes for $20,012; and (3) State Farm paid Melancon 569 $5,000 in personal injury protection benefits under the policy. The total of these three amounts is $195,012. Following a trial on the merits, the jury found Sholes's negligence to be the sole proximate cause of the accident. The jury found that Melancon sustained various damages resulting from the accident. The total of the damages found by the jury is $168,800. Based on the jury's verdict, Melancon sought judgment awarding him $100,000 in UIM Coverage under the policy. State Farm sought a take-nothing judgment, arguing that Melancon cannot recover any damages under the UIM Coverage because the amounts he recovered in settlement exceed the amount of his damages as found by the jury. The trial court rendered a take-nothing judgment. II. ISSUE PRESENTED On appeal, Melancon asserts a single issue: "Did the trial court err in granting a credit to State Farm in excess of the amount allowed by the Texas Insurance Code?" III. ANALYSIS A court generally interprets an insurance policy under the same rules of construction as any other contract, reading all parts of the policy together and viewing the policy in its entirety to give effect to the written expression of the parties' intent. Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 740-41 (Tex.1998). Applying the ordinary rules of contract construction to insurance policies, the reviewing court ascertains the parties' intent by looking only to the four corners of the policy to see what is actually stated and does not consider what was allegedly meant. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex.2006); Williams Consolidated I, Ltd./BSI Holdings, Inc. v. TIG Ins. Co., 230 S.W.3d 895, 902 (Tex. App.-Houston [14th Dist.] 2007, no pet.). When, as in this case, the claim involves a standard-form insurance policy approved by a state regulatory agency, we determine the meaning of undefined terms in the policy based upon the everyday meaning of the words to the general public. See Fiess, 202 S.W.3d at 746; Progressive Cty. Mut. Ins. Co. v. Sink, 107 S.W.3d 547, 551 (Tex.2003). If a court can ascertain only one reasonable meaning of the policy provision, the insurance contract is not ambiguous, and the court will enforce it as written. See Fiess, 202 S.W.3d at 746; State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex.1998). But, when words in a policy are susceptible to more than one reasonable interpretation, the contract is deemed ambiguous. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). In the case under review, the parties disagree as to the construction of the following policy language: "persons or organizations who may be legally responsible." Melancon construes this language to mean "persons or organizations who are legally responsible." In this context, we conclude that the only reasonable meaning of "persons or organizations who may be legally responsible" is persons or organizations who might be legally responsible for the insured's damages. See Nalle v. Taco Bell Corp., 914 S.W.2d 685, 687 (Tex.App.-Austin 1996, writ denied) (stating that "may" means possibility, permission, liberty, or power rather than indicating a mandatory requirement); Simms v. Lakewood Village Property Owners Ass'n, Inc., 895 S.W.2d 779, 783-84 (Tex.App.-Corpus Christi 1995, no writ) (stating that "may" means "have the ability to," "be free," or indicating "possibility or probability" and, 570 unless the context indicates otherwise, is not treated as "a word of command"). In the case under review, Garcia, Lane Freight, and Sholes fall within this category. The jury found that Melancon's damages are $168,800, which is less than $190,012, the amount paid to Melancon by Garcia, Lane Freight, and Sholes for such damages. Therefore, under the unambiguous language of the insurance policy, State Farm's liability under the UIM Coverage is zero.[1]See Marley v. Allstate Ins. Co., No. 01-04-00174-CV, 2006 WL 1098946, at 2-3 (Tex.App.-Houston [1st Dist.] Apr. 27, 2006, no pet.) (mem. op.) (holding insurer's liability under same policy provision was zero). Melancon relies upon the Supreme Court of Texas's opinion in Henson v. Southern Farm Bureau Casualty Insurance Company. See 17 S.W.3d 652, 654 (Tex.2000). But in Henson, there was no settlement by a party other than the driver of the allegedly underinsured vehicle, and the Henson court did not construe or apply the limit-of-liability provision at issue in the case under review. See id. at 653-54. Henson is not on point. Melancon also asserts that the following statute precludes State Farm from reducing its liability based upon settlements by parties other than the driver of the allegedly underinsured vehicle: Underinsured motorist coverage must provide for payment to the insured of all amounts that the insured is legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage, not to exceed the limit specified in the insurance policy, and reduced by the amount recovered or recoverable from the insurer of the underinsured motor vehicle. TEX. INS.CODE ANN. § 1952.106 (West 2009). Melancon relies upon the reference in this statute to deductions based upon settlement of the claim against the driver of the allegedly underinsured vehicle and the lack of a reference to deductions for any other settlements. But, in this statute the legislature did not state that third-party settlements should not be considered in determining the amount of UIM Coverage. Under this statute, underinsured motorist coverage must provide for payment to the insured of all amounts that the insured is legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage. See id. Under Civil Practice and Remedies Code section 33.012(b), in determining the amount that an insured is legally entitled to recover from the driver or owner of an underinsured vehicle, the court deducts the sum of all settlements, including third-party settlements. See TEX. CIV. PRAC. & REM.CODE ANN. § 33.012(b) (West 2008) (stating that "[i]f the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amounts of all settlements"). Thus, if an insured obtains third-party settlements in excess of the amount of the insured's damages, the insured is not legally entitled to recover any damages from the owners or operators of underinsured motor vehicles.[2]*571 We conclude that this statute does not preclude the enforcement of the limit-of-liability provision in the insurance policy. Melancon also argues that allowing the settlement by Garcia and Lane Freight to reduce State Farm's liability under the UIM Coverage is contrary to Franco v. Allstate Insurance Company. See 505 S.W.2d 789, 792 (Tex.1974) (holding that claim for UIM benefits is governed by contract statute of limitations and stating that "the phrase `legally entitled to recover' has been interpreted to mean simply that the insured must be able to show fault on the part of the uninsured motorist and the extent of the resulting damages"). Melancon also relies upon other cases stating that procedural defenses that would be available to the driver of the allegedly uninsured or underinsured vehicle do not bar recovery from the insurer. These cases are not on point because this court is not applying a procedural defense to bar Melancon from recovering against State Farm.[3] We conclude that Melancon's sole issue and the arguments he asserts under it lack merit.[4] Accordingly, we overrule his issue and affirm the trial court's judgment.[5] NOTES [1] Melancon relies upon Holter v. Employers Mut. Fire Ins. Co., 520 S.W.2d 435 (Tex.Civ. App.-Houston [14th Dist.] 1975, no writ). Holter dealt with an insurance policy that contained a materially different limit-of-liability provision and a situation in which the drivers of the other two vehicles were found jointly and severally liable. See id. at 436-37. Holter is not on point. [2] Melancon also relies upon Texas Insurance Code section 1952.108. See Tex. Ins.Code Ann. § 1952.108 (West 2009). But this statute does not address an insurer's liability to pay an insured; rather, it addresses an insurer's subrogation rights after it pays an insured. See id. [3] Melancon also argues that State Farm judicially admitted in its answer that State Farm is only entitled to credit for amounts paid by those who are found "responsible" for Melancon's injuries. We conclude that State Farm's answer does not contain such a judicial admission. [4] We need not and do not address whether State Farm can invoke the "one satisfaction" rule. [5] Melancon asks that we reverse the trial court's judgment as to his extra-contractual claims against State Farm, but Melancon makes no argument for doing so in the event this court affirms the trial court's judgment as to his breach-of-contract claim.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540125/	344 S.W.3d 160 (2011) KANSAS CITY PREMIER APARTMENTS, INC., Appellant, v. MISSOURI REAL ESTATE COMMISSION, Respondent. No. SC 91125. Supreme Court of Missouri, En Banc. July 19, 2011. Motion to Modify Denied August 30, 2011. 164 David E. Roland, Freedom Center of Missouri, St. Louis, for Kansas City Premier Apartments. Edwin R. Frownfelter, Attorney General's Office, Jefferson City, for Missouri Real Estate Commission. ZEL M. FISCHER, Judge. Kansas City Premier Apartments, Inc. ("KCPA") appeals an injunction entered by the trial court finding it in violation of chapter 339 and prohibiting it from continuing any activities requiring real estate licensure. KCPA claims that the trial court misapplied § 339.010.1, RSMo Supp. 2010.[1] It also claims that the trial court erred in not declaring § 339.010.1 and § 339.010.7 unconstitutional. This Court has exclusive jurisdiction over this appeal under article V, section 3, of the Missouri Constitution, as the appeal involves the validity of a state statute. Judgment affirmed. Facts In 2001, Tiffany Lewis and Ryan Gran founded KCPA, a business devoted to assisting owners of rental property in locating prospective renters ("prospects"). Neither Lewis nor Gran has a Missouri real estate brokerage license. KCPA's business model is built on entering into non-exclusive performance-based agreements with property owners. The property owners agree to pay a fee to KCPA for each new tenant who submits to the property owner a card verifying that he or she was referred to the property by KCPA. KCPA offers a $100 gift card to each prospect who gives a property owner a card that results in a payment to KCPA. KCPA operates through its website, www.kcpremierapts.com. The website offers a searchable database of rental listings provided by property owners. It also offers prospects the option of direct, interactive contact with rental advisors. These advisors are independent contractors who will respond to any questions asked by prospects, recommend which properties to rent, and contact property owners to arrange appointments. The record shows that 80% of prospects take advantage of KCPA's rental advisors. In 2004, the Missouri Real Estate Commission received a complaint about KCPA and began an investigation to determine if KCPA was unlawfully engaged in real estate activities. In 2006, the Commission sent Lewis a letter stating it had determined that KCPA was "conducting real estate activity without a Missouri real estate license ... in violation of Missouri law and must cease immediately." In January 2007, KCPA responded, stating that it believed it was in compliance with the law. In March, the Commission sent another letter to KCPA insisting that it was "illegally operating as a real estate broker ... without the required Missouri real estate broker license." The letter threatened immediate legal action. In April, KCPA preempted the Commission by filing a lawsuit requesting a declaratory judgment that § 339.010.1 does not encompass its business activities, that 165 § 339.010.7 exempts KCPA from the licensure requirements of chapter 339, and that the Commission's interpretation of chapter 339 violates KCPA's rights under the United States and Missouri constitutions. In 2009, after two years of litigation, the Commission filed its own petition for a preliminary injunction, seeking to bar KCPA from performing real estate activities. In 2010, the two cases were consolidated and tried. The trial court issued an injunction prohibiting KCPA from "[c]ontracting with property owners to receive compensation in return for referring prospective tenants" and from performing "any act requiring real estate licensure." It also prohibited KCPA from dispensing rebate cards to tenants and denied KCPA's request for declaratory judgment. Application of § 339.010 KCPA challenges the trial court's judgment claiming that it erroneously applied § 339.010. KCPA claims that while it meets the definition of a "real estate broker" under § 339.010.1, it qualifies for an exemption under § 339.010.7. Standard of Review This Court must sustain the trial court's judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Analysis Section 339.010.1 defines a "real estate broker" as a person or corporation who for valuable consideration does or attempts to do any of the following: (3) Negotiates or offers or agrees to negotiate the sale, exchange, purchase, rental or leasing real estate; (4) Lists or offers or agrees to list real estate for sale, lease, rental or exchange; . . . . . (7) Assists or directs in the procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate; (8) Assists or directs in the negotiation of any transaction calculated or intended to result in the sale, exchange, leasing or rental of real estate; . . . . . (10) Performs any of the foregoing acts on behalf of the owner of real estate, or interest therein, or improvements affixed thereon, for compensation. § 339.010.1. Section 339.020 makes it unlawful for any person or corporation to act as a real estate broker without a license, and a violation is a class B misdemeanor. Section 339.170. KCPA argues the trial court's judgment erroneously applies these provisions because KCPA is retained by landlords to list and otherwise assist them in marketing their rental properties and, therefore, it qualifies for an exemption from the chapter 339 licensure requirements under § 339.010.7(5). Section 339.010.7(5) states that the provisions of chapter 339 do not apply to: [a]ny person employed or retained to manage real property by, for, or on behalf of the agent or the owner of any real estate shall be exempt from holding a license, if the person is limited to one or more of the following activities: (a) Delivery of a lease application, a lease, or any amendment thereof, to any person; (b) Receiving a lease application, lease, or amendment thereof, a security deposit, rental payment, or any related payment, for delivery to, and made payable to, a broker or owner; 166 (c) Showing a rental unit to any person, as long as the employee is acting under the direct instructions of the broker or owner, including the execution of leases or rental agreements; (d) Conveying information prepared by a broker or owner about a rental unit, a lease, an application for lease, or the status of a security deposit, or the payment of rent, by any person; (e) Assisting in the performance of brokers' or owners' functions, administrative, clerical or maintenance tasks. ... KCPA argues that because the statute does not define what it means for a person to be "employed or retained to manage real property," the term "retain" must be given its ordinary meaning as found in the dictionary. In re Coffman, 225 S.W.3d 439, 444 (Mo. banc 2007). It relies on the BLACK'S LAW DICTIONARY 1316 (6th ed.1990) definition of "retain," which is "to engage the services of an attorney or counselor to manage a specific matter." Based on this definition, KCPA argues that it is retained by property owners to list and otherwise assist them in marketing their rental properties; therefore, it qualifies for the exemption given under § 339.010.7(5). KCPA's broad interpretation of the § 339.010.7(5) exemption ignores the plain and ordinary meaning of the statute and the intent of the legislature. "The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning." Howard v. City of Kansas City, 332 S.W.3d 772, 779 (Mo. banc 2011). "Exemptions are interpreted to give effect to the General Assembly's intent, using the plain and ordinary meaning of the words." Brinker Missouri, Inc. v. Dir. of Revenue, 319 S.W.3d 433, 437 (Mo. banc 2010). This Court has previously found that "the manifest intention" of the legislature in enacting chapter 339 was "to protect the public from the evils of fraud and incompetency." Miller Nationwide Real Estate Corp. v. Sikeston Motel Corp., 418 S.W.2d 173, 176-77 (Mo.1967). Therefore, KCPA "must present a clear case, free from all doubt" that it fits under an exemption from chapter 339, and any such exemption "must be strictly construed against [it] ... and in favor of the public." Id. at 177. KCPA has failed to meet this burden. KCPA's interpretation of the exemption under § 339.010.7(5) ignores the language limiting the activities that can be performed by an unlicensed person "employed or retained to manage real property... to one or more of the ... activities" listed in subsections (a) through (e). Section 339.010.7(5). Of these subsections, § 339.010.7(5)(d) is most applicable to the activities performed by KCPA. This subsection allows the "[c]onveying [of] information prepared by a broker or owner about a rental unit, a lease, an application for lease ... by any person." Section 339.010.7(5)(d). However, KCPA's activities are not limited enough to fit under this exemption. KCPA provides other services that exceed all of the exemptions provided by § 339.010.7, such as providing rental advisors who market select units to prospects based on the prospect's particular needs and providing detailed advice about apartment search strategies. Because none of the exemptions applies to this type of assistance, KCPA cannot rely on any of the exemptions. Constitutional Validity of § 339.010 KCPA challenges the constitutional validity of § 339.010.1(3), (4), (7), (8), and (10) and § 339.010.7. 167 Standard of Review This Court reviews a constitutional challenge to a statute de novo. In re Brasch, 332 S.W.3d 115, 119 (Mo. banc 2011). "A statute is presumed valid and will not be held unconstitutional unless it clearly contravenes a constitutional provision. The person challenging the statute's validity bears the burden of proving the act clearly and undoubtedly violates the constitution." Id. Freedom of Speech under the United States Constitution KCPA argues that the challenged provisions should be struck down because they dramatically impair the ability of unlicensed persons to share knowledge about real estate and limit a potential renter's ability to receive this knowledge. KCPA essentially asserts that the State should not be able to license and regulate people who choose to perform real estate activities in Missouri. In making this assertion, KCPA offers no case law that stands for the proposition that a state cannot regulate professional conduct because it violates the constitutional right to freedom of speech.[2] If KCPA merely wanted to advertise or provide information, as suggested by the dissenting opinion, it would be exempt from regulation by the Commission. Further, the terms of the circuit court's judgment do not enjoin providing information, which would be considered protected commercial speech. In fact, the dissenting opinion suggests that this Court, rather than accepting the findings and conclusions of the circuit court, should reweigh the evidence and re-find the facts and re-conclude that KCPA merely "communicat[ed] to the public information about the availability of rental housing." Op. at 175. The findings and conclusions of the circuit court indicate that KCPA did much more than provide information and, in fact, crossed over the line into activities limited to those that the legislature has determined require a real estate license. These determinations are supported by substantial evidence and should be given due deference. In fact, many of these activities were not denied by KCPA. There are, however, numerous cases that have upheld the regulation of professional conduct even if that conduct takes the form of speech. In Ohralik v. Ohio State Bar Ass'n, the United States Supreme Court addressed whether the Ohio State Bar Association could discipline an attorney for personally soliciting automobile accident victims, or whether this conduct was a protected exercise of that attorney's right to free speech. 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978). The Supreme Court found that Ohio did not lose the ability to regulate commercial activity to protect the public simply because speech was a component of that activity. Id. at 456, 98 S. Ct. 1912. The Supreme Court also found that there was no need for proof that Ohralik's conduct actually harmed the public for Ohio to regulate it; all that was necessary was the potential for harm. Id. at 464, 98 S. Ct. 1912. Ultimately, 168 the Supreme Court found that the regulation of the practice of law in Ohio is "within the State's proper sphere of economic and professional regulation" and, therefore, "is subject to regulation in furtherance of important state interests." Id. at 459, 98 S. Ct. 1912. Many other courts have reached a similar conclusion to that in Ohralik, finding that the regulation of professions is necessary to protect the public and, therefore, is not unconstitutional simply because the regulations had an incidental effect on the free speech rights of unlicensed individuals. Courts have upheld the regulation of professionals such as psychologists, National Ass'n for the Advancement of Psychoanalysis v. California Bd. Of Psychology, 228 F.3d 1043 (9th Cir.2000), securities broker-dealers, Underhill Associates, Inc. v. Bradshaw, 674 F.2d 293 (4th Cir.1982), accountants, Accountant's Soc'y of Virginia v. Bowman, 860 F.2d 602 (4th Cir. 1988), and, most recently, interior designers, Locke v. Shore, 634 F.3d 1185. (11th Cir.2011). A state, however, does not have unlimited power to directly restrict speech through the regulation of a profession. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 770, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). Instead, to the extent that specific provisions of a regulatory scheme directly restrict speech, those provisions must survive either strict scrutiny or intermediate scrutiny standard. In determining which standard to apply, the United States Supreme Court has recognized a "`commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 562, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) (quoting Ohralik, 436 U.S. at 455-56, 98 S. Ct. 1912). For this reason, the lesser standard of intermediate scrutiny applies to state regulations of commercial speech. Id. at 562-63, 100 S. Ct. 2343. The information KCPA displays as part of its real estate activities is commercial speech. Commercial speech, as defined in Central Hudson, is an "expression related solely to the economic interests of the speaker and its audience." Id. at 561, 100 S. Ct. 2343. The information that KCPA displays serves its economic interest in that it gets paid when a prospect chooses one of the rental properties it advertises. The information also serves KCPA's prospects' economic interest by helping them find the rental that best fits their needs and by providing them with the additional incentive of a $100 gift card for using KCPA's services. Because chapter 339 only regulates commercial speech, this Court's review of the challenged provisions must apply the four-part intermediate scrutiny test as described in Central Hudson. Id. at 566, 100 S. Ct. 2343. In the first part of the Central Hudson test, this Court "must determine whether the expression is protected by the First Amendment." Id. "For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading." Central Hudson, 447 U.S. at 566, 100 S. Ct. 2343. If this Court determines that the speech in question is protected by the First Amendment, then it must determine "whether the asserted governmental interest is substantial." Id. If the governmental interest is substantial, this Court must "determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Id. 169 Assuming the information displayed on KCPA's website is lawful and not misleading, this Court must determine whether the Commission has asserted a substantial governmental interest. The governmental interest behind the challenged provisions is to protect the public from fraud and incompetence. Miller Nationwide, 418 S.W.2d at 176-77. Because this is a substantial governmental interest, this Court must perform the next step as described by Central Hudson to determine if the challenged provisions survive intermediate scrutiny. 447 U.S. at 566, 100 S. Ct. 2343.[3] Intermediate scrutiny requires compliance with two criteria: First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. Id. at 564, 100 S. Ct. 2343. Chapter 339 and the challenged provisions meet the requirement of directly advancing a state interest. The requirements of licensure directly relate to the honesty and competency that the legislature seeks to assure in those who practice real estate in this state. Chapter 339 is also not excessive. In Central Hudson, the Supreme Court defined the second requirement of intermediate scrutiny as allowing "the regulatory technique [to] extend only as far as the interest it serves." Id. at 565, 100 S. Ct. 2343. A state cannot reach beyond its interest and regulate speech that poses no danger to that state's interest. Id. The restrictions imposed by chapter 339 and the challenged provisions do not go beyond the State's interest in regulating "real estate brokers" as described by the definition in § 339.010.1. Because the challenged provisions survive immediate scrutiny, they do not violate KCPA's freedom of speech and are not unconstitutional. Freedom of Speech under the Missouri Constitution KCPA asserts that even if the challenged provisions do not violate the right to freedom of speech under the United States Constitution, these provisions still violate the right to freedom of speech under the Missouri Constitution. KCPA claims that the right to free of speech under article I, section 8, of the Missouri Constitution is broader than the federal right.[4] It claims that the article I, section 170 8, requires the Commission to demonstrate why KCPA's communications of information about rental properties should be considered an "abuse" of its expressive freedoms. This Court addressed a similar argument in Missouri Libertarian Party v. Conger, 88 S.W.3d 446 (Mo. banc 2002). In Conger, this Court disagreed with the argument that the right to free speech under article I, section 8, was so broad that it granted an absolute right to speech without restriction. Id. at 447-48. Instead, this Court held that "[t]he right to free speech is subject to the state's inherent right to exercise its police power." Id. at 448. This Court has previously held that chapter 339 serves an important purpose and is a proper exercise by the State of its police power. Miller Nationwide, 418 S.W.2d at 177. Therefore, chapter 339 does not violate the right to freedom of speech under article 1, section 8, of the Missouri Constitution. Equal Protection Clause of the United States and Missouri Constitutions KCPA argues § 339.010.7 violates the equal protection clause[5] and article I, section 2, of the Missouri Constitution because it arbitrarily discriminates by creating exemptions "not based on differences reasonably related to the purposes" of the statute. Petitt v. Field, 341 S.W.2d 106, 109 (Mo. banc 1960). Both the equal protection clause and article I, section 2, provide "that a law may treat different groups differently, but it cannot treat similarly situated persons differently without adequate justification." Comm. for Educ. Equal. v. State, 294 S.W.3d 477, 489 (Mo. banc 2009). Whether adequate justification exists is determined by applying either strict scrutiny if a "fundamental right" is impacted by the law or rational-basis review if one is not. Id. at 489-90. No fundamental right exists to engage in the profession of real estate brokerage, so this Court will review chapter 339 under the rational-basis standard. Rational-basis review requires that this Court find a "reasonably conceivable state of facts that ... provide[s] a rational basis for the classification." F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). Review under this standard is not an opportunity for this Court to question "the wisdom, fairness, or logic of legislative choices." Id. Instead, all that is required is that this Court find a plausible reason for the classification in question. Id. at 313-14, 113 S. Ct. 2096. Plausible reasons exist for the exemptions provided by § 339.010.7. The persons exempted from the licensure fall into four general categories; all of these persons have a plausible reason for being exempt. The first category includes persons acting on their own behalf, with regard to property under their legal control. This first category is created by § 339.010.7(1), (3), (5), (7), (10), and (12), which allows exemptions for property owners and their employees, auctioneers, property managers retained by owners, railroads and other public utilities, developers, and neighborhood associations, respectively. The plausible reason for these exemptions is to allow these persons to handle their own affairs without having to hire a 171 real estate broker. The second category is encompassed by § 339.010.7(2) and is limited to attorneys. The exemption of attorneys is rational because each attorney has been licensed professionally and is regulated by this Court and, therefore, does not need to be governed by chapter 339. The third category is made up of persons who have the authority of law to deal in land transactions. These persons are covered by § 339.010.7(4), (6), and (11) and consist of receivers, trustees, guardians, or executors; federal, state or local government employees; and employees of nonprofit organizations engaged in economic development. It is rational for the legislature to think that the persons in this category do not need to be regulated under chapter 339 because they already act in an official capacity under the authority of law. The fourth and final category consists of newspaper publishers and other representatives of media. They are exempted under § 339.010.7(9) as long as their advertising of real estate is incidental to their operation. This exemption is reasonable in that it allows newspapers and other media sources to continue to post classified advertisements for real estate. Because all the exemptions under § 339.010.7 have a reasonably conceivable rational basis, they do not violate the equal protection clause or article I, section 2, of the Missouri Constitution. Special Law Provision of the Missouri Constitution KCPA claims that § 339.010.7 violates article III, section 40(30), of the Missouri Constitution because it is a special law. Article III, section 40(30), prohibits the legislature from passing any special law "where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject." This Court has previously recognized that "whether a law is special or general can most easily be determined by looking to whether the categories created under the law are open-ended or fixed, based on some immutable characteristic." City of Springfield v. Sprint Spectrum, L.P., 203 S.W.3d 177, 184 (Mo. banc 2006). Chapter 339 classifies persons based on whether they are licensed real estate brokers. Section 339.040 provides a framework for how a person can become a licensed real estate broker. Many of the exemptions described in § 339.010.7 are also open-endeda person can become a licensed attorney or an auctioneer, for example. For this reason, § 339.010.7 is not a special law in violation of article III, section 40(30). Vagueness KCPA's final argument is that § 339.010.1(3), (4), (7), (8), and (10) and § 339.010.7 are unconstitutionally vague. It avers that the legislative definition of the practice of "real estate brokerage" is so vague that it violates due process. "Due process requires that all be informed as to what the State commands or forbids, and that men of common intelligence not be forced to guess at the meaning of the criminal law." Smith v. Goguen, 415 U.S. 566, 574, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974) (internal quotations omitted). This Court has reviewed vagueness challenges to the language of a statute "by applying it to the facts at hand." State v. Entm't Ventures I, Inc., 44 S.W.3d 383, 386 (Mo. banc 2001). "A valid statute provides a person of ordinary intelligence a reasonable opportunity to learn what is prohibited." Id. The words used in the challenged provisions are not vague; the conduct 172 prohibited is defined clearly. The words and phrases that KCPA challenges such as "negotiates," "listing," and "assists or directs in the procuring of prospects for rental" have everyday meanings. "[I]f the words or terms used in the statute are of common usage and are understandable by persons of ordinary intelligence they will satisfy the constitutional requirement as to definiteness and certainty." State v. Williams, 473 S.W.2d 382, 384 (Mo. banc 1971). Applying these statutes to the facts at hand, the prohibitions of chapter 339 are easily understood. These statutes gave KCPA adequate notice that it was acting in violation of chapter 339 by assisting and directing in the procuring of prospects for rental. Conclusion KCPA has failed to demonstrate that the trial court erroneously declared or applied the law by entering an injunction against KCPA. It also has failed to demonstrate that the challenged provisions are unconstitutional. The judgment is affirmed. RUSSELL, BRECKENRIDGE, STITH and PRICE, JJ., concur. WOLFF, J., dissents in separate opinion filed. TEITELMAN, C.J., concurs in opinion of WOLFF, J. MICHAEL A. WOLFF, Judge, dissenting. Introduction Kansas City Premier Apartments (KCPA) is enjoined from conveying truthful information through its website and through its "rental advisors" to potential renters who are in the market for apartments. KCPA does so for a fee, paid by the property owners to whom prospective tenants are referred, but this fee does not justify the state's suppression of KCPA's distribution of this information. The circuit court's injunction against KCPA's speech, upheld in the principal opinion, runs afoul of the First Amendment, as applied by the United States Supreme Court in a variety of commercial contexts, including the Supreme Court's June 23 decision in Sorrell v. IMS Health, 564 U.S. ___, 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011). One can plausibly disagree with the United States Supreme Court's unbending rationale in recent cases on free speech, but this court's duty is to apply the principles of these cases, not to pay homage to them while disregarding them. Because I can find no principled distinction between this case and the First Amendment principles set forth most recently in Sorrell, I respectfully dissent. Sorrell struck down a Vermont law that forbade the sale of prescriber-specific information by pharmacies to "pharmaceutical manufacturers and pharmaceutical marketers." VT. STATS. ANN., section 4631(f) (2010). It is common practice in the pharmaceutical industry for so-called "data mining" companies to buy information from pharmacies and then sell the information to pharmaceutical companies to use in refining their drug marketing to prescribing physicians. The Supreme Court rejected Vermont's explanation that it was intended to protect public health and keep health care costs in check, saying that the law could not withstand "heightened scrutiny." The Supreme Court found that heightened scrutiny was the appropriate standard of review because the Vermont law was a content-basedonly forbidding the marketing of drugsand a speaker-basedonly silencing pharmaceutical marketers and manufacturersprohibition on speech. The Supreme Court 173 held that the speech's commercial nature did not negate the need for heightened scrutiny because "[w]hile the burdened speech results from an economic motive, so too does a great deal of vital expression." 564 U.S. at ___, 131 S.Ct. at 2665. Like the regulation in Sorrell, here there is no evidence that the speech is false or misleading. The prohibition of marketing is content-based and speaker-based, as in Sorrell, justifying heightened scrutiny. By restricting the advertisement of rental properties to only licensed real estate agents, the state of Missouri has enacted content-basedonly the listing, or advertising of rentals and homes is forbiddenand speaker-basedonly non-licensed persons are prohibited from speakingrestrictions on speech. This case is directly parallel to the factual situation in Sorrell. As in Sorrell, heightened scrutiny is appropriate, and the state's regulation cannot survive such scrutiny.[1] The speech activities of KCPA are commercial, to be sure, but they are deemed worthy of First Amendment protection. Its activities are unadorned speech, not shown to be harmful or untruthful. The state has no business suppressing this speech under its police power to regulate occupations, and the broad injunction that the Court upholds in the principal opinion violates the First Amendment. Occupational licensing When KCPA challenges state suppression of its economic activities, its free speech theory seems but a proxy for its real challengethe denial of economic liberty by a state-created cartel for marketing real estate services. The Missouri legislature has seen fit to limit "real estate activities" to licensed real estate agents,[2] thus creating a cartel.[3]See section 339.010 RSMo Supp 2010.[4] By requiring occupational licensing in the real estate profession, the Missouri legislature has limited the abilities of Missourians to make a living.[5] The occupation of real estate agent is but one of the scores of occupations the state has seen fit to regulate from the early 20th century forward. Prior to that time, there were recognized but three "professions"the ministry, law and medicineand regulation was confined to the latter two. But the scores of regulatory 174 statutes that have been enactedusually at the behest of the regulated occupationshave some have some tangential relation to protection of the public and quite a direct relation to protection of the economic interests of members of the occupation group. These occupational licensing provisions can be analogized to the merchants' guilds of medieval times. Both economic systems serve to decrease competition by restricting access to the occupation, restricting non-members from participating in economic markets, and attaching legal consequences to "essentially determinations of what are ethically or economically permissible practices." Walter Gellhorn, INDIVIDUAL FREEDOM AND GOVERNMENTAL RESTRAINT 114 (1956). The constitution does not explicitly protect economic liberty, which may come as a surprise to those who skipped high school civics, but the constitutional guarantee of free speech often is invoked to fill the seemingly un-American void.[6] The connection between free speech and free enterprise is direct. When describing the necessity of protecting commercial speech, the Supreme Court explained that "so long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). Limiting the Flow of Information KCPA's free-speech theory is based on government suppression of truthful information about the availability of apartments for rent, information that is provided for a fee collected from landlords who obtain tenants for their properties through KCPA. The information KCPA provides serves a necessary function in our economy by providing consumers with information necessary to make rational decisions about their real estate rentals. By channeling all such information through licensed real estate agents, the state is limiting the information provided, creating an incentive to skew the information to the consumer to help close the deal. Truthful, non-misleading commercial speech is protected by the First Amendment. In order to regulate this speech, the state must adduce a substantial justification for regulation; that the regulation directly advances the governmental interest asserted; and whether it is no more extensive than necessary to advance the stated governmental interest. Cent. Hudson 175 Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). The threshold question, therefore, is whether KCPA's conduct is speech, and, if so, whether the speech is commercial speech. The activity at issue is KCPA's advertisement of rental properties to the consumer. The Supreme Court has held that advertising is a form of speech. See Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975) (finding that newspaper advertising of an abortion clinic's referral services was speech); Cent. Hudson, 447 U.S. at 557, 100 S. Ct. 2343 (finding that advertising of utility prices is speech). Neither party here disputes that KCPA's conduct is commercial speechwhich is protected under the First Amendment. Bigelow, 421 U.S. at 809, 95 S. Ct. 2222. The state argues that the occupational licensing governs primarily conduct and that any suppression of speech is purely incidental.[7] The circuit court's overly broad judgment enjoined KCPA from: A. Contracting with property owners to receive compensation in return for referring prospective tenants who rent from property owners, which is not an enforceable contract under the terms of Section 339.160, RSMo; B. Any act requiring real estate licensure pursuant to the terms of Chapter 339, RSMo. The circuit court judgment does not specify how KCPA violated chapter 339, leading to its broad injunction. The court concluded that: "KCPA's business activities do not include collecting rents or security deposits for owners. KCPA does not accept money directly from renters or prospective renters and does not handle tenant complaints for owners or managers of rental properties. KCPA does not `show' properties to prospective renters through actual in-person inspection. It does not advertise or hold itself out as licensed real estate broker or salesperson. KCPA does not charge or accept advance fees for advertisements appearing on KCPA website." Although the circuit court did not specify how KCPA acted as a real estate agent, the court concluded that it performed acts requiring licensure and enjoined KCPA from doing the activities quoted here, because as the court concluded that KCPA violated the following sections: (1) 339.010(3)negotiates or offers or agrees to negotiate the sale, exchange or purchase, rental or leasing of real estate; (2) 339.010(4)lists or offers or agrees to list real estate for sale, lease, rental or exchange; (3) 339.010(7)assists or directs in the procuring of prospects, calculated to result in the sale, exchange, renting, or leasing of real estate; and (4) 339.010(8)assists or directs in the negotiation of any transaction calculated or intended to result in the sale, exchange, or rental or real estate. A court as well could conclude, as this Court should, that KCPA did not violate chapter 339 by acting as a real estate agentby negotiating the purchase, sale or rental of real property but instead, by simply communicating to the public information about the availability of rental housing. This is indistinguishable from the advertising previously held to be speech. See Bigelow, 421 U.S. at 809, 95 176 S.Ct. 2222. This case differs from federal cases holding that blanket regulation of occupations are permissible under the First Amendment because any free speech restrictions are merely incidental. See, e.g., Accountant's Soc'y of Virginia v. Bowman, 860 F.2d 602 (4th Cir.1988); Nat'l Ass'n for the Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir.2000). KCPA is not challenging the ability of the state to license an occupation, just the lawfulness of its restricting communication of housing opportunities in the greater Kansas City area. The key to distinguishing between occupational regulation and First Amendment restriction of speech is whether there is a "personal nexus between professional and client." Lowe v. S.E.C., 472 U.S. 181, 211, 105 S. Ct. 2557, 86 L. Ed. 2d 130 (1985) (White, J., concurring). This personal nexus occurs when a professional "takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client's individual needs and circumstances...." Id. at 232, 105 S. Ct. 2557. For example, the Fourth Circuit held that accountants, by preparing individualized assessments of their clients' financial situations, were exercising their professional judgment on their clients' behalf, creating a personal nexus between client and professional. Accountant's Soc'y of Virginia, 860 F.2d at 602. Here, however, KPCA is not exercising professional judgment on behalf of its clients but merely is communicating information about available rentals. Testimony from prospective tenants shows instances in which the KCPA "rental advisors" expressed personal opinions about properties listed on the website and rendered advice to prospective tenants about how they should approach negotiation with property owners, but none of this information was proved to be harmful to the public or the prospective tenants. The state can completely restrict "false or misleading" speech as well as speech proposing an illegal activity. Peel v. Attorney Registration and Disciplinary Com'n of Illinois, 496 U.S. 91, 100, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990); Cent. Hudson, 447 U.S. at 557, 100 S. Ct. 2343. The circuit court in this case found that the state did not prove that any of the property advertisements on the KCPA website were false or misleading. The state argues that because KCPA's speech violates chapter 339, it is illegal and, therefore, does not fall under the protection of the First Amendment. This argument goes in a circle: The speech-restricting statute makes KCPA's conduct illegal, without that statute it would be legal speech, and, therefore, KCPA's speech is not advocating speech that is illegal under a separate statute, but speech that is made illegal by the speech-restricting statute being challenged.[8] But the bottom line is that KCPA's speech is not shown to be false or misleading, or advertising an illegal product or activityit is simply speech protected by the First Amendment.[9] "The party seeking to uphold a restriction on commercial speech carries the burden 177 of justifying it." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983).The state must show that the harms it recites are valid and that the restriction will alleviate them to a material degree. Edenfield v. Fane, 507 U.S. 761, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993). The government argues that chapter 339 serves a substantial government interest in preventing fraud and incompetence by persons engaged in the marketing of real estate. There is no question that the prevention of fraud is a substantial interest. Id. at 769-79, 113 S. Ct. 1792. To the extent that "competency" involves assuring that information is truthful, that might be an interest of the state. But, under Sorrell and the cases leading up to Sorrell, the state's interest does not justify its suppression of KCPA's speech. Not only must the interest be substantial but the proposed government regulation also must materially and directly advance that interest and be no more extensive than necessary to serve that interest. Edenfield, 507 U.S. at 773, 113 S. Ct. 1792. The state argues that the licensing criteria protect the public by assuring the honesty and good behavior of brokers and agents. The state has not shown a nexus between truthful advertising and forbidding unlicensed realtors from advertising. "The States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if that information may be presented in a way that is not deceptive." In re R.M.J., 455 U.S. 191, 203, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982). Here, the state could ban false or deceptive advertising from all personslicensees or notadvertising real estate. Instead, it chose to enact chapter 339, forbidding all those not licensed from advertising. The state has not shown any studies or anecdotal evidence illustrating that having a license prevents fraud and deception. See Edenfield, 507 U.S. at 761, 113 S. Ct. 1792 (declaring a ban on in-person solicitation by CPAs is unconstitutional after the state adduced no studies or even anecdotal evidence showing there was a relationship between fraud and overreaching and the solicitation ban). The state's main argument in this case is that licensure is necessary to provide a background in "the subtleties of agency, conflicts, fiduciary duties, fair housing laws, discrimination issues, and other questions in which licenses real estate professionals are trained." The state argues that this information is necessary for KCPA to render advice to their clients. For example, the state quotes Andrea Huffa KCPA "rental advisor"as telling a prospective tenant, "I have a few favorites... I really like Sandstone Creek with Enclave and The Crescent to be my last choices for the overland park area (sic) ... they're fine just not quite as new and update (sic) as the others." The state argues that she only gave this advice because *178 of Ms. Huff's lack of knowledge of fiduciary principles, although it is not clear whose fiduciary she would be. This example may illustrate a point opposite to the state's pointthe importance of allowing unlicensed realtors to convey information about rental listings. The rental advisor may be giving a valuable opinion that a licensed real estate agent would not givethat a particular property was not the most suitable for the prospective renter. The state also argues two instances in which the information given by a rental advisor was inappropriate because the advisor advocated lying to the apartment complex, in one instance, lying about the weight of the dog owned by a prospective tenant where the apartment owner limited rentals to owners of small dogs but did not weigh them. Putting aside the question of whether lying about the weight of one's dog is a proper rationale for occupational licensing, I would hasten to point out that if a rental advisor advocates false, deceptive or unethical information, the solution is not to limit all speech but to ban false, deceptive or misleading speech. See In re R.M.J., 455 U.S. at 203, 102 S. Ct. 929 (holding that misleading advertising may be prohibited entirely, but the state may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of law practice, if the information may be presented in a way that is not deceptive). "The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good." 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996). This is what the state seems to be doing in this case. By providing licensed real estate agents with a government-sanctioned cartel or monopoly on realty information, it is limiting the quality and quantity of information provided to consumers. The state's paternalistic view that only licensed real estate agents somehow possess accurate and valid information may be insulting to consumers and unlicensed persons but that is not the pointthe point is that the regulation violates the First Amendment. To that end, KCPA should not be censored by the government and should be allowed to communicate information to potential customers about the availability and characteristics of apartments. Conclusion I would reverse the judgment of the circuit court and remand. If the state wants an injunction limited only to the use of false or deceptive information, the state may be able to make the required showing. But the broad prohibition of this injunction violates the First Amendment, and I respectfully dissent. NOTES [1] KCPA's challenge to the injunction is governed by the version of chapter 339 now in effect. Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011). "This is because an injunction looks forward by addressing what conduct or actions will be permitted in the future." Id. For this reason, all statutory references in this opinion are to RSMo Supp.2010. [2] KCPA cites to Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), which declared unconstitutional a regulation that prevented licensed pharmacists from disseminating any information regarding the prices of prescription drugs. Id. at 756, 96 S. Ct. 1817. However, in doing so, the Supreme Court held only that a state could not completely suppress commercial speech but did not address to what extent commercial speech could be regulated. Id. at 771, 96 S. Ct. 1817. It is also important to note that this case is further distinguishable from the current case because it dealt with the regulation of the commercial speech of persons licensed under the regulation in question. [3] This case does not involve the combination of both "content based" and "speaker based" speech that was present in Sorrell v. IMS Health, 564 U.S. ___, 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011), relied on by the dissenting opinion to justify applying heightened scrutiny. "Heightened scrutiny" has not in the past and is not likely in the future to be expanded to all commercial speech because to do so would significantly change the legislative/judicial balance in a way that significantly weakens the legislature's authority to regulate commerce and industry. Traditionally, commercial speech can be subject to greater governmental regulation than non-commercial speech because of the government's neutral interest in preventing commercial harms. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993). The speech-related consequences here are incidental, and if KCPA would limit its activity to the speech-related activity, it would not be subject to regulation by the Commission. [4] "While provisions of our state constitution may be construed to provide more expansive protections than comparable federal constitutional provisions, analysis of a section of the federal constitution is strongly persuasive in construing the like section of our state constitution." Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) (internal quotations omitted). This Court has traditionally given due deference to United States Supreme Court precedents when our state constitutional provisions are the same as the United States constitutional provisions. [5] "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. Amendment XIV, § 1. [1] The Supreme Court went on in Sorrell to find that none of the government's justificationsprotection of medical privacy, integrity of the doctor-patient relationship, and improved public health and reduced healthcare costswere advanced by the regulation. Sorrell, 564 U.S. at ___, 131 S.Ct. at 2668. Instead, the Court held that the State's burdening of speech rested on "nothing more than a difference of opinion" as to the value of particular types of speech. Id. at ___, 131 S.Ct. at 2672. [2] This opinion uses the term "real estate agents" to refer to both real estate salespersons and real estate brokers as defined in section 339.010. [3] A cartel is "an association of firms with common interests, seeking to prevent extreme or unfair competition, allocate markets or share knowledge." BLACK'S LAW DICTIONARY, 207 (7th ed. 1991). [4] All statutory references are to RSMo Supp 2010 unless otherwise indicated. [5] Among the requirements for becoming licensed is that the person be of "good moral character," "good reputation for honesty, integrity, and fair dealing," and "competent to transact the business of a broker or salesperson in such a manner to safeguard the interest of the public." See section 339.040. And, of course, that the person pay a fee. Section 338.040.4. These fees range from $40 to $150 to obtain a license and another $56 to take the licensing examination. Real Estate Commission, Fees, available at http://pr.mo. gov/boards/realestate/fees.pdf (last visited June 29, 2011). [6] Though the federal constitution does not refer to economic freedom, the Missouri Constitution's Bill of Rights includes protection for the right of the people "to the enjoyment of the gains of their own industry." MO. CONST. art. 1 sec. 2. Fisher v. State Highway Comm'n of Mo., 948 S.W.2d 607, 613 (Mo. banc 1997), read the provision, enacted in the 1865 constitution, very narrowly to apply to recently freed slaves and a prohibition of slavery. Judge Holstein, joined in dissent by Judge Price, had the better view-that a "negligent taking by the State of one's fundamental, constitutionally protected liberty and property right to engage in lawful employment is prohibited absent payment of just compensation or other due process of law." Id. It seems farfetched to argue, as did the majority in Fisher, that article 1, section 2, which had been re-adopted in the constitutions of 1875 and 1945 and has persisted for the past 146 years, should be confined in contemporary times to discouraging or outlawing slavery. For our present purposes, it should suffice to note that an infringement of the right to pursue a lawful occupation should be evaluated by the same kind of heightened scrutiny that the United States Supreme Court applies to infringements on the right of free speech. [7] The state's argument fails because KCPA is not challenging the state's right to license real estate salespersons and brokers but instead the state's restriction on KCPA's communication to consumers. [8] Compare with Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376, 385, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973) (holding that there was no First Amendment protection for newspaper to carry help-wanted ads in sex-designated columns). In this case, the underlying activity being advertised forprostitutionwas illegal. The advertisement itself was not. Here, the underlying activityadvertising real estateis not illegal. [9] Central Hudson provides the appropriate analysis to determine whether a regulation on commercial speech violates the First Amendment: If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. Cent. Hudson, 447 U.S. at 564, 100 S. Ct. 2343.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540126/	707 F. Supp. 2d 163 (2009) WORLDNET TELECOMMUNICATIONS, INC., Plaintiff, v. TELECOMMUNICATIONS REGULATORY BOARD OF PUERTO RICO, et al., Defendant. Civil Nos. 08-1360 (FAB/BJM), 08-1359 (FAB/BJM). United States District Court, D. Puerto Rico. August 25, 2009. 170 Francisco A. Rullan-Molina, Gray Robinson PA, Ft. Lauderdale, FL, R. Bruce Beckner, Fleischman and Harding LLP, Eduardo R. Guzman-Casas, Drinker Biddle & Reath LLP, Washington, DC, Maria Del C. Garcia-Garcia, Puerto Rico Telephone Co., San Juan, PR, for Plaintiff. Leslie Paul Machado, Robert F. Reklaitis, Nixon Peabody LLP, Washington, DC, Eglee W. Perez-Rodriguez, Telecommunications Regulatory Board of Puerto Rico, San Juan, PR, for Defendant. AMENDED OPINION AND ORDER BRUCE J. McGIVERIN, United States Magistrate Judge. In these consolidated cases, which arise under the Telecommunications Act of 1996 (the "Telecommunications Act" or "Act"), 47 U.S.C. § 251 et seq., the court is asked to review numerous decisions made by the Telecommunications Regulatory Board of Puerto Rico (the "Board" or "TRB") approving or rejection provisions of an arbitrated interconnection agreement entered into between telecommunications carriers Puerto Rico Telephone Company, Inc. ("PRTC") and WorldNet Telecommunications, Inc. ("WorldNet"). Before the court are the parties' cross-motions for summary judgment. The TRB moved for summary judgment, attaching a statement of undisputed facts ("TRB's Fact Statement"). (Docket Nos. 58, 59, 60). PRTC also moved for summary judgment, attaching a statement of undisputed facts ("PRTC's Fact Statement"). (Docket Nos. 61, 62, 63). Finally, WorldNet moved for summary judgment, attaching a statement of undisputed facts ("WorldNet's Fact Statement"). (Docket No. 64). The parties each opposed the others' motions (Docket No. 71, 74, 75, 78), and PRTC replied to the oppositions to its motion. (Docket No. 84). The TRB and WorldNet each indicated that they did not dispute the opposing parties' Fact Statements. (Docket No. 69, 70, 72). PRTC opposed TRB's and WorldNet's Fact Statements. (Docket No. 76, 77). The parties consented to my jurisdiction (Docket No. 88), and the consolidated cases were referred to me for all proceedings, including entry of judgment. (Docket No. 89). 171 FACTUAL BACKGROUND AND PROCEDURAL HISTORY I. Telecommunications Act of 1996 Congress enacted the Telecommunications Act, 47 U.S.C. § 251 et seq., with the objective of creating competition in local telephone markets. Previously, markets were controlled by "Baby Bell" carriers, spun off of American Telephone & Telegraph as part of the 1982 divestiture ending the national telephone monopoly. AT & T Commc'ns of Ill., Inc. v. Ill. Bell Tel., 349 F.3d 402, 404 (7th Cir.2003). Under the Act, these former monopolistic owners are known as incumbent local exchange carriers ("ILECs" or "incumbent carriers"), and new carriers attempting to enter the market are known as competitive local exchange carriers ("CLECs" or "competitive carriers"). In order for competitive carriers to enter the local telecommunications markets, it is necessary for them to have access to the existing telecommunications lines and infrastructure owned by the incumbent carriers. This access, known as interconnection, "allows customers of the competitor to place calls to, and to receive calls from, customers on the incumbent's network." WorldNet Telecomms., Inc. v. Puerto Rico Tel. Co., 497 F.3d 1, 3 (1st Cir.2007) (hereinafter, "WorldNet I") (citation omitted). The Act requires incumbent carriers to negotiate with any competitive carriers that request to negotiate an agreement, known as an interconnection agreement ("ICA"). If the parties are unable to successfully negotiate an ICA, either party may petition the state regulatory board to arbitrate the agreement. 47 U.S.C. § 252(b)(1). The Act creates a dual regulatory scheme in which the Federal Communications Commission ("FCC") is the exclusive authority on certain aspects of the Act, while state regulatory boards ("state boards") are responsible for setting local pricing rules, reviewing generally-applicable terms and conditions, ensuring that all interconnection agreements comply with the Act, and acting as arbitrators, where necessary, in ICA arbitrations. See, e.g., 47 U.S.C. §§ 252(b), 252(d), 252(e)(1), 252(f)(2). A host of substantive provisions govern the terms of an agreement arbitrated pursuant to the Act, 47 U.S.C. § 252(c)(1), and a set of procedures govern the conduct of an arbitration under the Act. 47 U.S.C. § 252(b). The Act requires incumbents to sell their services as "unbundled network elements" ("UNEs") to competitive carriers at non-discriminatory rates. In establishing rates, there is a tension between a competitive carrier's desire to purchase UNEs at rates allowing it to combine the elements and sell them at competitive retail rates, and an incumbent's desire to derive the same income from selling services to its competitors as it does from selling services to customers. AT & T Commc'ns of Ill., 349 F.3d at 404. These rates also affect each party's incentives to invest in creating or renovating facilities. Id. In implementing the Act, the FCC sought to address these tensions and incentives by directing carriers and state boards to set UNE rates using a forward-looking methodology known as "total element long-run incremental cost" ("TELRIC"). 47 C.F.R. §§ 51.505-515. Under TELRIC, prices are based on the long-run costs that would be incurred to produce services using the most-efficient technology presently available regardless of whether the incumbent carrier actually uses the most up-to-date technology. AT & T Commc'ns of Ill., 349 F.3d at 404-05. In addition to these various substantive requirements, the Act sets forth the procedures a state board must follow in reviewing and approving interconnection agreements. The Act requires the state board 172 to make a determination within nine months of the date the ILEC received the CLEC's request to negotiate. 47 U.S.C. § 252(b)(4)(C). The Act requires that the state board review both negotiated and arbitrated ICAs and either "approve or reject" the agreement with written findings detailing any deficiencies. 47 U.S.C. § 252(e)(1). In the case of arbitrated agreements, the commission may reject an agreement only for limited reasons: (1) the agreement is inconsistent with the requirements of the Act set forth in 47 U.S.C. § 251 or § 252(d), or the Act's implementing regulations, or (2) the agreement conflicts with other requirements of state law. 47 U.S.C. §§ 252(e)(2)(B), 252(e)(3). If either party is dissatisfied with a state board's determination, that party may file an action in an appropriate district court to review whether the board's determination meets the requirements of the Act. 47 U.S.C. § 252(e)(6). If the state board fails to approve or reject the agreement within thirty days after it is submitted by the parties, the ICA is deemed approved and ripe for federal judicial review. 47 U.S.C. § 252(e)(4). Moreover, if the state board fails to take any action to comply with its obligations under the statute, the FCC may intervene. 47 U.S.C. § 252(e)(5). II. Proceedings in this Case PRTC, an incumbent carrier, provides local and long distance telephone services throughout Puerto Rico. (Docket Nos. 63, ¶ 1; 64-3, ¶ 2). WorldNet, a competitive carrier, also provides local and long distance telephone services in Puerto Rico. (Docket Nos. 63, ¶ 2; 64-3, ¶ 2). The TRB is a state board, as defined by the Telecommunications Act. (Docket No. 63, ¶ 3). In October 2006, WorldNet formally requested interconnection agreement negotiations with PRTC. (Docket No. 59, ¶ 3). After engaging in negotiations with PRTC for various interconnection terms, WorldNet filed a Petition for Arbitration with the TRB on March 7, 2007, requesting that the Board resolve 374 issues then outstanding. (Docket Nos. 63, ¶ 4; 59, ¶ 4). The Board thereby opened an arbitration proceeding, which was assigned Case Number JRT-2007-AR-0001. (Docket No. 63, ¶ 5). The parties resolved many of their disputed issues, and approximately 200 issues were submitted to the arbitrator. (Docket No. 59, ¶ 10, 11). In advance of the arbitration, the parties submitted over 1,000 pages of pre-filed direct and rebuttal testimony from a combined total of twenty fact witnesses and eight expert witnesses. (Docket No. 59, ¶ 12-14). From May 22-25, 2007, the parties participated in a hearing consisting of opening statements, cross-examination of fact and expert witnesses, and closing arguments. (Docket No. 59, ¶ 15). Following the hearing, the parties submitted extensive post-hearing briefs addressing the open issues that needed to be resolved by the arbitrator. (Docket No. 59, ¶ 16). On July 2, 2007, the arbitrator issued a ruling resolving approximately 200 outstanding issues. (Docket No. 59, ¶ 17). In compliance with the requirements of Section 252(e)(1), the parties jointly submitted the resulting arbitrated interconnection agreement (the "Agreement") to the Board for its approval. (Docket No. 63, ¶ 7). On November 2, 2007, the Board issued an order approving the Agreement in its entirety. (Docket No. 63, ¶ 8). WorldNet and PRTC each sought reconsideration of the Board's approval as to certain portions of the Agreement, and on February 25, 2008, the Board issued a ruling addressing approximately sixty issues raised in these motions. (Docket Nos. 63, ¶ 9; 59, ¶ 21). For eight pricing issues, the Board determined that neither party had proposed TELRIC-compliant rates, and thereby 173 adopted interim rates and scheduled a follow-on hearing to determine the rates. (Docket No. 59, ¶ 22, 23). The Board conducted the follow-on hearing and issued a ruling on those issues on August 8, 2008. (Docket No. 63, ¶ 10). Next, WorldNet and PRTC each sought reconsideration of the August 8 ruling, and the Board ruled on these motions on November 10, 2008. (Docket No. 63, ¶ 11). The parties then submitted a First Amendment to the Agreement to the Board for its approval. (Docket No. 63, ¶ 13). The parties have provided the record from the arbitration proceedings (containing 116 separate documents) to the court in a Joint Appendix in CD-ROM form (Docket Nos. 59, ¶ 28; 65), and have provided additional documents in a Supplemental Joint Appendix (Docket No. 85).[1] DISCUSSION I. Summary Judgment Standard Summary judgment is appropriate when "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 only 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). In determining if a material fact is "genuine," the court does not weigh the facts but instead ascertains whether the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact." Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Once this threshold is met, the burden shifts to the nonmoving party. The nonmovant may not rest on mere conclusory allegations or wholesale denials. Fed.R.Civ.P. 56(e); Libertad v. Welch, 53 F.3d 428, 435 (1st Cir.1995). Instead, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial" and support such facts with "affidavits ... made on personal knowledge ... set[ting] forth such facts as would be admissible in evidence." Fed.R.Civ.P. 56(e). Further, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Of course, the court draws inferences and evaluates facts "in the light most favorable to the nonmoving party." Leary, 58 F.3d at 751. Summary judgment is particularly appropriate for this administrative appeal on a closed administrative record. Courts have concluded that in disputes related to interconnection agreements under the Act, "the record created by the state utility commission is closed for the purposes of review." Bell Atlantic-Delaware, Inc. v. Global NAPS South, Inc., 77 F. Supp. 2d 492, 502 (D.Del.1999). See also MCI Telecomms. Corp. v. New York Tel. Co., 134 174 F.Supp.2d 490, 500 (N.D.N.Y.2001) ("this Court agrees that it is limited to the record created by the state utility commission when reviewing disputes related to interconnection agreements issued under [the Act]"); MCI Telecomms. Corp. v. Ohio Bell Telephone Co., 279 F. Supp. 2d 947, 954 (S.D.Ohio 2003) ("[u]nder the provisions set forth in the Act for judicial review, it is most inappropriate for a district court to review matters which have not been fully presented to the Commissioners"). II. Analysis A. Standard of Review State agency determinations resting principally on an interpretation of federal law are subject to de novo review by federal courts, and are not accorded the deferential review reserved for reviews of federal agencies interpreting their own rules and regulations. Global NAPs, Inc. v. Verizon New England, Inc., 444 F.3d 59 (1st Cir.2006). Specifically, in reviewing an arbitrated agreement under the Telecommunications Act, a court reviews de novo whether the agreement is in compliance with the Act and implementing regulations. U.S. West Commc'ns, Inc. v. Wash. Utils. and Transp. Comm'n, 255 F.3d 990, 994 (9th Cir.2001). However, a federal court reviews the state agency's decisions as to matters of fact, policy, and application of general standards under an arbitrary and capricious standard. WorldNet I, 497 F.3d at 5, U.S. West Commc'ns, Inc., 255 F.3d at 994. While not articulating a position itself, the First Circuit has noted, "other Circuits have held that where no error of law exists, the state agency's other determinations are reviewed under the arbitrary and capricious standard." Global NAPs, Inc. v. Verizon New Eng., Inc., 396 F.3d 16, 23 (1st Cir. 2005) ("Global NAPs I") (citing Southwestern Bell Tel. Co. v. Waller Creek Commc'ns, Inc., 221 F.3d 812, 816 (5th Cir.2000); MCI Telecomms. Corp. v. Ohio Bell Tel. Co., 376 F.3d 539, 548 (6th Cir. 2004); US West Commc'ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir. 1999); U.S. West Commc'ns, Inc. v. Sprint Commc'ns Co., 275 F.3d 1241, 1248 (10th Cir.2002)). In the absence of any contrary First Circuit authority, the court will apply this widely-used standard. Nevertheless, a different standard applies when the Board is interpreting the Puerto Rico Telecommunications Act of 1996, commonly known as Law 213. 27 L.P.R.A. § 265 et seq. In that situation, the court should give deference to the Board as the agency charged with administering Law 213. WorldNet I, 497 F.3d at 11 (discussing Law 213 and noting, "[a]lthough the Board's authority under local law is a legal issue, it is customary where any doubt exists to give some deference to the agency charged with administering the statute"). See also Antilles Cement Corp. v. Acevedo Vila, 408 F.3d 41, 51 (1st Cir. 2005) ("the administrative interpretation given to an act by the [Commonwealth] agency in charge of enforcing it deserves great weight and deference") (alteration in original) (quoting Zambrana Torres v. Gonzalez, 145 D.P.R. 616, 638 (1998)); Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 75 (1st Cir.2001) (noting that "[a]s the [state agency] is charged with administering the [state program], we owe deference to its interpretation of the [state statute]"); Fitch v. PUC, 261 Fed.Appx. 788, 791 (5th Cir.2008) ("state law determinations by state commissions are reviewed under the more deferential arbitrary and capricious standard") (internal quotation omitted); Mich. Bell Tel. Co. v. MFS Intelenet of Mich., Inc., 339 F.3d 428, 433 (6th Cir.2003) (noting the "inherent logic of ... allowing 175 state agencies wider deference in state law determinations"). However, in those cases where the Board overturns the arbitrator's decision, a "further wrinkle exists" in the analysis. WorldNet I, 497 F.3d at 5. As discussed above, the Act provides that either party may petition the state board to arbitrate any open issues. 47 U.S.C. § 252(b)(1). Upon petition, the state board may request further information from the parties to assist it in making a decision. 47 U.S.C. § 252(b)(4). When an agreement is arbitrated, the state board must "approve or reject" the agreement within thirty days of its submission. 47 U.S.C. §§ 252(e)(1), 252(e)(4). In exercising these two options, the state board may reject an arbitrated agreement only if it finds that the agreement does not hold the carriers to their obligations under section 251, or fails to meet the pricing standards of section 252. 47 U.S.C. §§ 252(e)(2)-(3), WorldNet I, 497 F.3d at 5-6. The TRB may also impose other requirements of Puerto Rico law so long as they are not inconsistent with the statute. WorldNet I, 497 F.3d at 6. The First Circuit explained in reviewing the previous WorldNet and PRTC agreement that when the TRB decides to delegate its authority to arbitrate an agreement to an independent arbitrator as it did herethe Act limits the TRB's options to either accepting or rejecting the resulting agreement. WorldNet Telecomms., Inc. v. Puerto Rico Tel. Co., 497 F.3d 13 (1st Cir.2007) (hereinafter, "WorldNet II") (denying rehearing of WorldNet I). In other words, the TRB should treat an arbitrated agreement as a "presumptive solution" which it "must" accept if it is consistent with the statute, "unless" the TRB "reasonably" finds that the arbitrated agreement conflicts with Puerto Rico law, TRB rules, or the TRB's "considered policy determinations". WorldNet I, 497 F.3d at 7 (original emphasis). A federal court reviewing the board's decision must accordingly look beneath the surface of the board's decision to analyze whether it is in fact "reasonable." WorldNet I, 497 F.3d at 6-7 (analyzing state and federal law and concluding that there was no support for TRB's assumption that liquidated damages provision was improper). Therefore, when the TRB overturns a decision of the arbitrator, the question is whether the TRB reasonably found that the Arbitrator's determinations were inconsistent with the statute or conflicted with one of the other referenced bodies of law and policy. B. Disputed Issues 1. Liquidated Damages PRTC challenges the Board's affirmance of the arbitrator's decision to include a provision in the agreement for liquidated damages. (Docket No. 62, p. 17). The arbitrator adopted a modified version of WorldNet's proposed provision imposing liquidated damages on PRTC if it failed to meet specific performance obligations in the Agreement. (JA, Ex. 92, p. 28). The Board affirmed the arbitrator's decision, finding that (1) the arbitrator's decision did not violate Law 213; (2) the general principles of Puerto Rico law and policy, as construed by the First Circuit in WorldNet I, are not violated by a liquidated damages clause; (3) there was sufficient evidence in the record for the arbitrator to conclude that the liquidated damages provision should be adopted and did not provide for excessive damages; and (4) as a matter of policy, liquidated damages provide appropriate, pro-competitive incentives to PRTC. (JA, Ex. 92, p. 31-36). PRTC argues that the Board's decision violated law and exceeded the Board's legal authority, and that the decision was arbitrary and capricious. In particular, 176 PRTC argues that (1) the Board's decision violated Law 213, as construed by the Puerto Rico Supreme Court in Caribe Commc'ns v. Puerto Rico Tel. Co., 157 D.P.R. 203 (2002), and 27 L.P.R.A. § 269j-1, as amended, which precludes the Board from awarding damages payable from one telecommunications carrier to another; and (2) no support for the Board's decision can be found in federal law, which does not permit the imposition of liquidated damages when such an imposition conflicts with state law. (Docket No. 62, p. 11-17). PRTC also argues that Puerto Rico law further prohibits the awarding of punitive damages (p. 17-23), and that the Board acted arbitrarily and capriciously in failing to appropriately address an issue of spoliation of evidence relating to liquidated damages (p. 23-26). WorldNet argues that the Board's decision was (1) consistent with both Puerto Rico and federal law; (2) not contrary to Puerto Rico law concerning punitive damages; and (3) not arbitrary and capricious because PRTC's spoliation argument misstates the record. (Docket No. 74, p. 8-23). Finally, the Board argues that its decision to adopt the liquidated damages provision in the Agreement was based on controlling First Circuit precedent, citing WorldNet I, 497 F.3d at 7. (Docket No. 60, p. 36). This court reviews the Board's decision on the legal issue de novo and the factual and policy decisions under an arbitrary and capricious standard. However, the court reviews the Board's interpretation of Puerto Rico law with deference. Initially, it is difficult to find fault with the Board's decision-making on this matter. In its review of the previous WorldNet-PRTC agreement, the Board rejected a liquidated damages provision included in the arbitrated agreement. WorldNet I, 497 F.3d at 5. The First Circuit, in no uncertain terms, found the Board's decision incorrect as a matter of both procedural and substantive law. Id., at 6-8. The court instructed the Board that "neither the Act nor Puerto Rico precedent forbids incentive-based liquidated damages ... [and] the Board should not assume an inability to use cost-based liquidated damages." Id., at 8. The court instructed that, on remand, the Board could continue to set aside the arbitrator's award only if "it violates general agency policy". Id. (original emphasis). Accordingly, this time the Board took care to follow these clear First Circuit instructions, affirming the arbitrator's award as consistent with state and federal law, as well as its own policies. Likewise, the arbitrator noted, "I am confused by the PRTC argument because it appears to challenge the holding of [WorldNet I]", and she proceeded to rely on WorldNet I as "the law of the First Circuit". (JA, Ex. 85, p. 30). Nevertheless, PRTC contends that the Board erred as a matter of law because Puerto Rico law prohibits the Board from awarding liquidated damages payable from one telecommunications carrier to another. (Docket No. 62, p. 11). The parties cite: (1) a Puerto Rico Supreme Court case, Caribe Commc'ns, Inc., 157 D.P.R. 203, concerning the jurisdiction and powers of the TRB; (2) the legislative history for 27 L.P.R.A. § 269j-1 indicating that it was passed in response to Caribe Communications in order to "clarify" that the Board was "granted express authority to estimate and grant compensation for damages and losses caused", Laws of Puerto Rico, Act. Nov. 4, 2005, No. 138, Statement of Motives; and (3) Section 269j-1 itself, which purports to grant authority to the TRB to adjudicate claims for damages "caused by any natural or juridical person to a user". 27 L.P.R.A. § 269j-1. 177 It is not clear that this set of laws prevents the Board from including or enforcing a liquidated damages provision in arbitrated agreements. As WorldNet correctly observes, there is "a crucial distinction between the Board as an adjudicator of claims for money damages and the Board as a regulator implementing its federal statutory obligation to resolve disagreements... about the terms of [a] federally-mandated interconnection agreement." (Docket No. 74, p. 9). Thus, even if Puerto Rico law does circumscribe the Board's authority to award liquidated damages, as PRTC urges, such a power is quite different from permitting parties to include a liquidated damages provision in their private contracts. It is improper for this court to attempt to rehash the arguments concerning the winding path of Puerto Rico law on this issue because, first, this court is bound by the First Circuit's interpretation of that set of laws; second, this court reviews the Board's interpretation of Puerto Rico law with deference; and third, the parties have not provided the court with English translations of the Puerto Rico cases to which they cite.[2] Nonetheless, it is also unnecessary for the court to provide its own interpretation of Puerto Rico law because it is clear that the Board provided a reasonable interpretation of state law, and moreover, that it correctly interpreted federal law in the First Circuit. PRTC further argues that Puerto Rico law prohibits the Board's imposition of a punitive damages provision, also known as a "penal clause" under Puerto Rico law, where one of the parties does not agree to the provision. (Docket No. 62, p. 18-23). PRTC suggests that the First Circuit's WorldNet I decision does not automatically control the outcome here because there the court "focused on the question that was presentedwhether liquidated damages could exceed actual damages under Puerto Rico lawand ... did not resolve the instant question." (Id.). In WorldNet I, the First Circuit held that the Board was incorrect in assuming that "liquidated damages exceeding a reasonable estimate of damages to WorldNet were forbidden either by Puerto Rico law or by something inherent in the concept of liquidated damages." WorldNet I, 497 F.3d at 6. The First Circuit held, however, that "despite our own holding that neither federal nor Puerto Rico law automatically forbids such `penalties'" in the context of arbitrating an interconnection agreement, "the Board may reasonably conclude [on remand] that such incentive payments are inconsistent with regulatory policy ..." Id., 497 F.3d at 8. PRTC reads this portion of the WorldNet I decision to mean that the "First Circuit asked the Board ... to consider any other statutory provisions, regulations, or policy determinations precluding the imposition of punitive liquidated damages." (Docket No. 62, p. 21-22). I read WorldNet I differently. In my reading of WorldNet I, the First Circuit quite clearly held that "neither the Act nor Puerto Rico precedent forbids incentive-based liquidated damages" and the Board could overturn the arbitrator's imposition of a punitive damages clause only if "it violates general agency policy". WorldNet I, 497 F.3d at 8. In other words, the First Circuit's decision allowed the Board to reach a different result only if such a result was required by the Board's own policies, not by the Board's differing view of the law. Moreover, PRTC does not contend that Puerto Rico law has changed since WorldNet I 178 was decided. In fact, the First Circuit cited the principal cases on which PRTC relies in support of its conclusion that "Puerto Rico courts have been more solicitous of liquidated damages clauses than their Anglo-American counterparts, seeming even in private contracts to permit coercive and punitive clauses so long as they are not excessively so." Id., 497 F.3d at 7 (citing Rochester Capital Leasing Corp. v. Williams Int'l Ltd., 3 P.R. Offic. Trans. 226, 103 D.P.R. 163 (1974); Rodriguez Lopez v. Jimenez Aponte, KLCE-97-000040, 1997 PR App. LEXIS 271, at 10-13 (P.R. Ct.App., Apr. 29, 1997)). Finally, PRTC contends that Puerto Rico permits "punitive" liquidated damages clauses "only [in] those instances in which parties willingly, expressly, and a priori agree on the penalty or compensation to be paid." (Docket No. 62, p. 19). However, the application of this principle (even if true) is undermined by the reality that "interconnection agreements are not ordinary commercial contracts: the Act dictates their creation; they are imposed by involuntary arbitration and agency review if the parties cannot agree; and their aim is to secure the public benefit of competition." WorldNet I, 497 F.3d at 7. Indeed, it makes little sense to complain that liquidated damages are permissible only where parties "willingly" agree to such a provision in the context of an entire agreement that may be brought into existence against the will of a party. Therefore, I find that the Board decided the liquidated damages issue correctly as a matter of law. I review the spoliation issue under an arbitrary and capricious standard. The Board addressed PRTC's argument on this issue, noting, "With regard to charges of deliberate destruction of evidence, the Arbitrator makes no mention of intentional shredding, so we conclude that it was not decisional. Only one sentence in PRTC's brief mentions the shredding of supporting documentation; it is likely that the arbitrator viewed the shredding as an unfortunate error." (JA, Ex. 92, p. 33). Having reviewed the record material on which PRTC bases its argument, it is clear that the Board's and arbitrator's decisions on this issue were far from arbitrary. PRTC complains that WorldNet's expert "selectively destroy[ed] relevant evidence" by shredding the notes containing the underlying data on which WorldNet's damages proposal was based. (Docket No. 62, p. 24-25). In fact, the expert, Brian Pitkin, testified that as a general rule he took notes and created drafts directly on his computer and that he created paper documents "only as a temporary convenience for reference," after which he routinely entered those changes into his computer and disposed of the notes.[3] (JA, Ex. 29, p. 9). The arbitrator would have been well within her discretion to find that these work practices, and the destruction of a small quantity of the expert's working notes which were later copied into his computer, did not require sanctions for either deterrence or remedial purposes. See, e.g., Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1st Cir.1997) (district court may exclude spoliated evidence "where necessary to prevent the non-offending side from suffering unfair prejudice.... Although deterrence may play a role, the primary aim is remedial, at least absent willful destruction"). Therefore, I find that on the issue of liquidated damages, the Board correctly interpreted the law and its evidentiary determination was not arbitrary or capricious. 179 Thus, the Board's decision is affirmed. 2. Performance Standards WorldNet asserts that the Board and the arbitrator erred by adopting general standards (the "Telecordia Standards" or the "Standards") for the performance standards portion of the agreement, rejecting the modifications proposed by the parties and incorporating the arbitrator's own modifications to the standards. (Docket No. 64-2, p. 22; JA, Ex. 92, p. 37). The Telecordia Standards were developed by outside consultants to the Board, Telecordia Technologies, Inc. As of the date of the Board's decision, the Board had initiated a general rulemaking proceeding to determine whether the Telecordia Standards should be adopted for all Puerto Rico telecommunications carriers. (JA, Ex. 92, p. 37, n. 90). The arbitrator noted that the parties agreed to apply the Standards to their agreement, with certain modifications: "In a rare instance of harmony in this Arbitration, the parties are in agreement as to the adoption of the Telecordia Standards. Each offers modifications, however." (JA, Ex. 85, p. 25). The arbitrator reasoned that it would be preferable to await the Board's decision in its pending rulemaking as to any modifications to the Standards, thus rejecting the parties' proposals and including only those modifications necessary to make the Standards applicable to a two-party agreement rather than a generalized rule. (Id., p. 26). The Board affirmed the arbitrator's policy determination that standardizing performance measures through generic rules would be more effective than including different standards on an agreement-by-agreement basis. In addition, the Board also affirmed the policy rationale that "standards prepared by an objective party, after a review of comparable standards nationwide, will best serve to improve service quality in Puerto Rico so that it is on a par with that in the rest of the United States." (JA, Ex. 92, p. 39). I find that on this matter of policy, the Board did not act arbitrarily and capriciously. WorldNet also raises legal arguments on this issue, arguing that the Board and arbitrator erred as a matter of law by failing to resolve this issue by determining, according to the Act's timetable, whether it complies with the Telecommunications Act. (Docket No. 64-2, p. 23). The cited section of the Act provides that "[t]he State commission shall resolve each issue set forth in the petition and the response, if any, by imposing appropriate conditions as required to implement subsection (c) of this section upon the parties to the agreement," within a given time frame. 47 U.S.C. § 252(b)(4)(C). Subsection (c), in turn, requires a state board to (1) ensure that the arbitrated agreement satisfies section 251 of the Act, (2) set any rates pursuant to subsection (d); and (3) provide a schedule for implementation of the terms and conditions of the agreement. 47 U.S.C. § 252(c). WorldNet contends that the arbitrator violated the Act but failing to "resolve" the issue, and by failing to resolve it within the time frame required by law because the performance standards are subject to change pursuant to the ongoing rulemaking. However, WorldNet does not accurately characterize the Board's decision. The Act requires that the state board "shall conclude the resolution of any unresolved issues not later than 9 months after the date on which the [LEC] received the request under this section." See 47 U.S.C. § 252(b)(4)(C). However, the arbitrator did resolve the issues insofar as there is a term in the contract setting forth the parties' obligations on the matter; that those obligations are subject to 180 change does not make the disputed issue "unresolved" for purposes of the Act. See, e.g., Petition of DIECA Commc'ns, Inc., No. 00-DCIT-997-ARB, 2000 Kan. PUC LEXIS 110 (Kan.P.U.C. Aug. 18, 2000) (approving rates, terms and conditions for parties to arbitration "to use on an interim basis, subject to modification, and true up if necessary, based on the results of the generic docket"); Application of Cincinnati Bell Tel. Co., No. 96-899-TPALT, 1997 Ohio PUC LEXIS 343 (Ohio P.U.C. May 15, 1997) ("[n]either of these requirements [Section 252(b)(4)(C) or Section 251] mandates a permanent decision.... By proceeding in this matter, we will certainly be resolving the involved arbitration issues even if we are doing so on an interim basis"). WorldNet also claims that the Board violated its due process rights. Although WorldNet included this claim in its complaint, it did not so much as make a passing reference to the "due process" issue in its opening summary judgment brief (Docket No. 64-2); it was only in response to the Board's discussion of this issue (Docket No. 60, p. 39) that WorldNet included the argument in its reply brief. (Docket No. 74, p. 67). While ordinarily an argument made for the first time in a reply brief cannot be considered, because WorldNet's reply brief also serves as its opposition to the Board's and PRTC's cross-motions for summary judgment, that rule does not strictly apply in this case. Nonetheless, the court may easily dispose of WorldNet's due process claim on the merits. To state a violation of procedural due process, a plaintiff must show (1) a deprivation of a protected property interest, and (2) a denial of due process. Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 30 (1st Cir.2008). Other courts have held that there is no protected property right to particular terms in an interconnection agreement, and specifically, that there is no protected interest in permanent contract terms which would give rise to a due process claim when a state board orders that an interim term be used. e.spire Commc'ns, Inc. v. N.M. Pub. Regulation Comm'n, 392 F.3d 1204, 1210 (10th Cir.2004) (affirming denial of due process claim because a "unilateral expectation that the rate stated in the IA [interconnection agreement] was permanent does not constitute a protectable property right"). Moreover, even if WorldNet did have a protected interest in such a contract term, it has been afforded sufficient process. "The essential requirements of due process... are notice and an opportunity to respond." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). WorldNet does not contest that it was given the opportunity to be heard in the proceedings below which included a hearing before the arbitrator and various motions for reconsideration directed to the Board. Nonetheless, WorldNet argues that its due process rights were violated because the Board failed in its duty to ensure that the arbitrated agreement satisfies the requirements of section 251 of the Act. See 47 U.S.C. § 252(c) ("In resolving by arbitration... any open issues and imposing conditions upon the parties to the agreement, a State commission shall(1) ensure that such resolution and conditions meet the requirements of section 251 of this title"). However, WorldNet does not argue now and did not argue before the Board that the arbitrated performance standards in any way fail to meet the substantive requirements of section 251; WorldNet argues merely that the Board procedurally acted improperly in imposing interim terms and terms to be decided in a rulemaking of general applicability. Thus, 181 this argument is without merit. Moreover, WorldNet conveniently ignores the fact that the Act governs both the arbitration of interconnection agreements as well as the setting of general-applicability rates. Thus, there is no merit to WorldNet's assertion that it has a "property interest in an interconnection agreement that has been properly and fairly determined to comply with the requirements of the Act and Puerto Rico law." (Docket No. 74, p. 67). As noted, courts have repeatedly found that interim rates do not violate any such right, e.g., Petition of DIECA Commc'ns, Inc., 2000 Kan. PUC LEXIS 110; Application of Cincinnati Bell Tel. Co., 1997 Ohio PUC LEXIS 343; and moreover, the Board's Telecordia Standards are required to comply with the Act just as much as the arbitrated terms. See 47 U.S.C.A. § 252(d) ("just and reasonable" generic rates must be based on cost, nondiscriminatory, and may include a reasonable profit). For the foregoing reasons, WorldNet's performance standards arguments are without merit and the Board's decision is affirmed. 3. Transit Traffic WorldNet asserts that the Board also failed to resolve the issue of transit traffic. The issue here involves the question of an incumbent carrier's duty to interconnect with competitors "for the transmission and routing of telephone exchange service," 47 U.S.C. § 251(c)(2)(A), and whether that duty extends to the "indirect" transmission and routing of such traffic to third-party carriers, or is limited to end users. (Docket No. 64-2, p. 26). In other words, there is a question as to whether the incumbent carrier has a duty to provide such indirect interconnection where two competitive carriers negotiate with the incumbent carrier (with whom they are each interconnected) to "transit" traffic between their two networks as an alternative to establishing a direct connection between their respective networks. (Id.). In the administrative proceedings below, the arbitrator noted that the question of the extent of PRTC's transit traffic duties is currently before the Board in a rulemaking proceeding. (JA, Ex. 85, p. 59). The arbitrator thus directed PRTC to continue to carry transit traffic "until the Board issues its decision in that proceeding." (Id.). PRTC challenged this decision before the Board, and the Board held that the arbitrator "erred in creating an uncertain obligation" and accordingly modified the arbitrator's decision to include a "sunset provision" of 365-days from the latter of the effective date of the Board's Reconsideration Order or of any court order finalizing any appeal of the Reconsideration Order. (JA, Ex. 92, p. 11-12). The Board noted that this holding would "provide ample time for the completion of the Board's rulemaking process." (Id., at p. 12). Here, WorldNet argues that the arbitrator and Board improperly punted on the issue of transit traffic, and under the Act were required to definitively resolve the issue rather than defer resolution pending the completion of the rulemaking proceeding. (Docket No. 64-2, p. 26). Further, WorldNet argues, PRTC is required by federal law to carry WorldNet's transit traffic, and a decision on the matter does not require awaiting the Board's determination in the rulemaking. (Id.). PRTC does not directly address these arguments, but instead contends that WorldNet is judicially estopped from challenging the Board's decision on this issue. (Docket No. 78, p. 39-42). PRTC argues that in the proceedings below, WorldNet proposed that PRTC be required to carry transit traffic until the Board resolved the legal issues in the rulemaking proceeding, and thus WorldNet cannot now change position 182 to challenge just such a requirement. (Id.). The Board, for its part, argues that its determination on this issue did resolve these issues for purposes of the Act's requirement that it resolve all issues put before it. (Docket No. 60, p. 54-55). As a preliminary matter, the court must determine what standard of review applies to this issue. The Board did not fully overturn the arbitrator's decision, but instead modified the order to include a "sunset provision". Thus, if the Board has not yet concluded its rulemaking procedure in one year, PRTC will at that time be permitted to cease allowing transit traffic. As noted, the First Circuit has instructed that the Board must accept the arbitrator's decision if it is consistent with the Act, unless the Board finds that the solution conflicts with state statutes, agency rules, or considered policy determinations. WorldNet I, 497 F.3d at 7. While one might quibble over how much the Board's modification substantively changed the arbitrator's decision, it is clear that the Board did not "accept" the arbitrator's decision. As such, the Board could only modify the arbitrator's decision on these enumerated grounds. However, the Board's only explanation for its modification of the arbitrator's decision was that it created "an uncertain obligation." (See JA, Ex. 92, p. 11-12). The Board did not explain whether this uncertainty was a violation of state law, federal law, or considered Board policy, or whether the Board simply had a difference of opinion with the arbitrator. In the absence of further explanation, the court is unable to determine whether the Board overturned the arbitrator's decision on one of the grounds permitted under WorldNet I, 497 F.3d at 8. WorldNet argues that the Board's result does not constitute a resolution of this issue, and the arbitrator and Board were required to more definitively resolve the issue. However, as discussed above, the Board may satisfy its obligation under the Act by putting a term in the parties' contract even if that term is subject to change pending a generic rulemaking. See Section II.B.2, supra. Because this argument is without merit, I need not reach PRTC's assertion that WorldNet is estopped from making the argument. However, none of the parties here specifically requested relief in the form of overturning the Board's decision and reinstating the arbitrator's decision,[4] so it is unclear whether the court has the authority to order such a result. Therefore, the issue is remanded to the Board to reconsider the arbitrator's decision with the options of either (1) accepting the arbitrator's solution, or (2) overturning or modifying the arbitrator's solution only on grounds consistent with this decision. 4. Mixed Bundles WorldNet challenges the Board's decision to overrule the arbitrator on the matter of pricing the telecommunications services offered in a "mixed bundle"-that is, a packaged resale product containing both telecommunications and non-telecommunications services. Section 251(c)(4)(A) provides that an incumbent carrier has an obligation "to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers." 47 U.S.C. § 251(c)(4)(A). The question here concerns the appropriate "wholesale rates" for products that the incumbent carrier 183 offers at retail to its own customers in mixed bundles. To illustrate the issue, the Board gave the example of an ILEC that charges $30 for telecommunications service A, $10 for non-telecommunications service B, and packages them together in mixed bundle C for a resale price of $30. (JA, Ex. 92, p. 10). The $30 price-tag of product C reflects a 25% discount over the un-bundled rate of $40 if products A and B were each purchased separately. The arbitrator determined that (1) the ILEC (PRTC) must disaggregate telecommunications product A from this bundle and offer it individually to the CLEC (WorldNet), (2) at a price reflecting this 25% discount, e.g., $22.50 (25% of $30), and (3) and then apply the parties' agreed-upon wholesale discount (say, 20%) to the $22.50 price. (Id.) (See also JA, Ex. 85, p. 135) ("the retail price of a telecommunications service within a mixed bundle is to be determined and used in conjunction with the wholesale discount to determine charges for resold services"). PRTC argued, and the Board agreed, that the appropriate wholesale price under the Act does not reflect this double-discounting, and in this scenario, PRTC need only offer two options to WorldNet: WorldNet may "choose between two rates for the telecommunications service it seeks to resell: the stand alone rate for the telecommunications service and the rate for the mixed bundle which includes one or more telecommunications service", thus reflecting either the wholesale discount or the bundled discount (Id., at p. 11). Because the Board was overruling the arbitrator on this issue, the Board was required to accept the arbitrator's solution if it was consistent with the statute, "unless" the Board "reasonably" found that the arbitrated agreement conflicted with Puerto Rico law, TRB rules, or TRB policy determinations. WorldNet I, 497 F.3d at 7 (original emphasis). The Board's decision on this issue rested on multiple grounds: (1) as a legal matter, the arbitrator's decision conflicted with Section 251(c)(4) of the Act; and (2) as a matter of TRB policy, "the Arbitrator should not break new ground, but should apply [established] principles of law...." (JA, Ex. 92, p. 10-11). The first question, then, is whether the Board correctly determined that the arbitrated agreement was inconsistent with the Act. As noted, the Act creates an obligation for ILECs "to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers." 47 U.S.C. § 251(c)(4)(A). The FCC has interpreted this provision in the context of mixed bundles to mean that the ILEC must "make available at wholesale rates retail services that are actually composed of other retail services, i.e., bundled service offerings." Implementation of the Local Competition Provisions in the Telecomms. Act of 1996, 11 FCC Rcd. 15499, 15936, ¶ 877 (1996) ("First Local Competition Order").[5] The FCC was 184 clear, however, that the Act "does not impose on incumbent LECs the obligation to disaggregate a retail service into more discrete retail services." Id. In other words, "The 1996 Act merely requires that any retail services offered to customers be made available for resale." Id. In 2006, a telecommunications company petitioned the FCC for a declaratory ruling establishing that: for all promotions greater than 90 days, ILECs are required either to offer to telecommunications carriers the value of the giveaway or discount, in addition to making available for resale at the wholesale discount the telecommunications service that is the subject of the ILEC's retail promotion, or to apply the wholesale discount to the effective retail rate of the telecommunications service that is the subject of the ILEC's retail promotion; [and] the effective retail rate of the telecommunications service component(s) of a mixed-bundle promotion shall be determined by prorating the telecommunications service component based on the percentage that each unbundled component is to the total of the bundle if added together at their retail, unbundled component prices.... Petition of Image Access, Inc. d/b/a Newphone for Declaratory Ruling, 21 FCC Rcd. 7806 (2006). The FCC requested comments due in July and August 2006, but in the intervening three years, the FCC has not ruled or acted on the petition (according to the parties' representations and as best as the court is able to determine). Thus, while it may be possible that the Act permits a pricing structure of the sort WorldNet urges, the FCC's analysis in the First Report and Orderalong with its silence as to the proposed declaratory rulingdemonstrates that such a structure is not required by the current law on this matter. It not clear, however, that such a pricing provision is "inconsistent" with the Act: it may not be required by the Act, but it also may not violate the Act. WorldNet I, 497 F.3d at 7. Nonetheless, the Board may also overturn the arbitrator if the Board reasonably finds that a decision conflicts with Board policy. Id. It seems eminently reasonable for the Board to enforce a policy that "the Arbitrator should not break new ground, but should apply principles of law that have already been established." (JA, Ex. 92, p. 10-11). As discussed above, even if WorldNet's proposed pricing structure does not violate the Act, the established principles of law on this matter do not require WorldNet's proposed result. Indeed, that the arbitrated solution "break[s] new ground" is illustrated by the fact that an identical proposed rule has been pending for three years before the FCC without ruling. Therefore, the Board's decision on this issue is affirmed. 5. OSS Access Issue I: Download, Upload, and Batches OSS Access PRTC challenges the Board's decision requiring PRTC to provide WorldNet with certain forms of Operations Support Systems ("OSS") access. Generally, OSS includes "databases or facilities used in the provision of a telecommunications service." 11 FCC Rcd. 15499, 15763, ¶ 517 (1996). As the parties characterize it, OSS refers more specifically to computer database systems used to store and provide information related to customer subscription, maintenance and repair, billing, service requests, and other services. (Docket No. 60, p. 25). In particular, PRTC challenges the Board's determination that PRTC must provide WorldNet with the ability to 185 download and upload OSS information both as individual datum and in batches of data. The Board affirmed the arbitrator's decision that PRTC was required to provide this access to WorldNet. (JA, Ex. 85, p. 63). The Board held that the FCC Local Competition Order required PRTC to provide WorldNet with access in a manner that provides WorldNet with a meaningful opportunity to compete, and accordingly, that PRTC was required to provide the OSS functionalities at issue. (JA, Ex. 92, p. 62). In the FCC's Third Local Competition Order, the FCC interpreted the Act's requirement of "nondiscriminatory access" to require an ILEC to provide access and unbundled network elements to a CLEC "in substantially the same time and manner to that which the incumbent provides to itself." Implementation of the Local Competition Provisions of the Telecomms. Act of 1996, 15 FCC Rcd. 3696, 3913, ¶ 490 (1999) ("Third Local Competition Order") (internal quotation omitted) (citing 47 U.S.C. § 251(c)(3)). However, in those cases where such an analysis is inapplicable because the ILEC does not provide itself with access to the particular network element, the FCC requires the ILEC to provide the CLEC with access "in a manner that provides the requesting carrier with a meaningful opportunity to compete." Id., ¶ 491. Here, the parties dispute the proper standard and further, the application of that standard to the facts at issue. WorldNet seeks access to download and upload PRTC's customer information and process that information in batches. The Board found that PRTC "would have no reason to provide its own employees with the functionalities at issue" and that accordingly, the "meaningful opportunity to compete" standard applies. (JA, Ex. 92, p. 62). Applying that standard, the Board found that WorldNet "must have upload, download and batch capability to have a meaningful opportunity to compete." (Id.). In other words, the Board required PRTC to provide WorldNet with the ability to obtain individual datum and batches of data. Where the Board affirms the arbitrator's holding, this court reviews its interpretation of the law de novo and its decisions as to matters of fact, policy, and application of general standards under an arbitrary and capricious standard. Based on the above explication of the FCC's rulings on this issue, I find that the Board correctly determined that a "meaningful opportunity to compete" standard applied to issues of access to elements which PRTC does not provide to its own employees. See 15 FCC Rcd. 3696, 3913, ¶ 491 ("In those situations where an incumbent LEC does not provide access to network elements to itself, we reaffirm our requirement that incumbent LECs must provide access in a manner that provides a requesting carrier with a meaningful opportunity to compete."). The next question is whether the Board correctly determined that (1) PRTC does not provide the upload, download, and batch functions to itself and thus the "meaningful opportunity to compete" standard applies to those OSS functions, and (2) that WorldNet required upload, download, and batch functions in order to meaningfully compete. Because these are factual matters, the court reviews the issue under an arbitrary and capricious standard. The Board and arbitrator referred to certain facts concerning these issues, but did not provide citations to particular record evidence. (JA, Ex. 85, p. 63, 220; Ex. 92, p. 62). Nonetheless, I find that there is ample evidence in the record on these issues in support of the Board's decision. 186 First, the record evidence shows that the functionalities at issue are not the kind PRTC provides to itself. WorldNet seeks more streamlined electronic interfaces in order to access PRTC's databases. (Ex. 28, p. 29). PRTC does not need to provide itself with "electronic interfaces" to access its databases because PRTC's employees have direct access to PRTC's own databases. A WorldNet witness explained that when a PRTC customer calls PRTC for a repair, "PRTC keys the repair order directly into its electronic system." (JA, Ex. 28, p. 29). However, "when a WorldNet customer calls WorldNet, WorldNet does not have an electronic interface to do what PRTC can do for its customers." (Id.). Currently, WorldNet's "daily transactions as related to the preorder, order, provisioning and repairs processes" requires duplicative and inefficient data entry processes because information must be entered in multiple systems and cannot be directly uploaded to the PRTC system. (Id., p. 30). There is also sufficient record evidence that the lack of OSS functionalities hinders WorldNet's ability to compete. WorldNet's inability to download creates an "enormous manual workload in order to try to track [its] orders and repairs and keep any accountability and performance tracking." (JA, Ex. 28, p. 6-7). In the arbitration hearing, a WorldNet witness testified that the absence of download capability has "greatly impacted WorldNet's ability to retain its customer base", hampered its ability to provide effective service to its own customers, and impacted its business in other ways. (JA, Ex. 62, p. 182; 233-39). For example, if a WorldNet customer needs repairs, WorldNet requests that PRTC open a "trouble ticket" in PRTC's system, but WorldNet is unable to directly open "trouble tickets" itself and has limited ability to obtain detailed information on the status of that service request. (Id., p. 238). Therefore, the Board applied the correct legal standard and, further, was supported by sufficient record evidence in its application of that legal standard to the facts before it such that its decision on OSS functionalities was not arbitrary or capricious. Thus, the Board's decision is affirmed. 6. OSS Access Issue IIAccess to OSS Systems Access PRTC challenges the Board's determination, affirming the arbitrator's decision, that PRTC must provide WorldNet with electronic access to certain enumerated OSS interfaces. The Board determined that WorldNet needed access to the OSS systems and not merely to the information contained in the systems in order for it to, in the terms of the legal standard, have a meaningful opportunity to compete. (JA, Ex. 92, p. 90). PRTC challenges this determination on the grounds that (1) as a matter of law, PRTC is not required to provide access to the actual OSS systems so long as it provides access to the OSS functions; and (2) the decision is arbitrary and capricious because it represents an unexplained change in policy by the Board. (Docket No. 62, p. 34-36). The FCC explained in the First Local Competition Order that "nondiscriminatory access to the functions of operations support systems ... would include access to the information they contain." 11 FCC Rcd. 15499, 15763, ¶ 517 (1996). The FCC continued that this nondiscriminatory access is governed by an ILEC's duty under Section 251(c)(3) to provide nondiscriminatory access to unbundled network elements and its duty under Section 251(c)(4) to provide resale services under just, reasonable, and nondiscriminatory terms and conditions. Id. This language suggests that the nondiscrimination requirements of 187 the Act extend not only to the "information" contained in OSS, but also to the "functions" of those systems. See 11 FCC Rcd. at 15763, ¶ 517 It is unclear whether the Board interpreted the "functions" language to extend to providing access to the OSS interfaces and to the system itself. However, as a legal matter, it is within the Board's authority to enforce the nondiscrimination requirements more stringently than that required by law. WorldNet I, 497 F.3d at 9 ("[t]he authority of the Board to adopt under local law additional interconnection requirements not mandated by the Act is explicitly set forth ... the Act sets a federally mandated floor of equal service and State commissions retain authority to raise the bar") (internal quotation omitted). Therefore, even if the Board's result was not compelled by law, PRTC provides no evidence that it was contrary to established law. The question then becomes whether the Board's decision to "raise the bar" was arbitrary and capricious. There is ample evidence in the record supporting the Board's determination that PRTC must provide WorldNet with access to its OSS systems in order to provide WorldNet a "meaningful opportunity to compete." The Board noted that its decision was based in part on "the well documented difficulties the parties have had in implementing OSS requirements in their interconnection agreements" making it therefore "appropriate that the agreement enumerate the specific requirements." (JA, Ex. 92, p. 90). Thus, PRTC's assertion that this decision represents an arbitrary change in Board policy is without merit. To the contrary, the reason for the Board's change in position is explained by its effort to address the parties' past "well documented difficulties." This documentation includes testimony that the parties have had difficulties implementing WorldNet's access to OSS functions, resulting in prolonged competitive barriers to WorldNet. (See, e.g., JA, Ex. 26, p. 5). PRTC has not shown any record evidence to the contrary. Thus, I find that the Board was not arbitrary and capricious in requiring that PRTC provide WorldNet with access to certain OSS functions, and the Board's decision is affirmed. 7. Collocation Issues Collocation refers to an incumbent carrier's obligation under the statute to permit competitive carriers to install equipment on the incumbent's property in order to connect to the incumbent's existing network. MCI Telecomms. Corp. v. U.S. West Commc'ns, 204 F.3d 1262, 1269 (9th Cir.2000). The Act imposes on incumbent carriers the duty to provide for physical collocation, or where impractical, virtual collocation, "on rates, terms, and conditions that are just, reasonable, and nondiscriminatory...." 47 U.S.C.A. § 251(c)(6). WorldNet challenges three of the Board's decisions related to collocation, which will each be addressed in turn. a. Collocation Construction WorldNet and PRTC dispute which of them should have the obligation to perform collocation construction. The arbitrator noted that while the parties' previous agreement required PRTC to perform collocation construction at WorldNet's request, she was unable to find any legal basis for requiring this arrangement, and further, the arrangement had resulted in problems for the parties. (JA, Ex. 85, p. 151). Thus, she adopted PRTC's proposal requiring WorldNet to perform collocation construction. (Id.) The Board affirmed the arbitrator's decision, finding that the decision was "well-reasoned" and also correct as a matter of law that there was no legal basis for requiring PRTC to perform construction services. (JA, Ex. 92, p. 129). 188 This court reviews the fact-based policy portion of the decision under an arbitrary and capricious standard, but reviews the legal analysis de novo. As noted, the Act creates a duty for incumbent carriers to "provide ... for physical collocation of equipment necessary for interconnection or access to unbundled network elements at the premises of the local exchange carrier, except that the carrier may provide for virtual collocation if the local exchange carrier demonstrates to the State commission that physical collocation is not practical for technical reasons or because of space limitations." 47 U.S.C.A. § 251(c)(6) (emphasis added). The parties dispute whether the statutory language of "provide ... for" collocation literally means that the construction must be provided by the ILEC, or simply that the ILEC must permit and make arrangements for the CLEC to construct the collocation on its property. WorldNet cites a number of rules and regulations referencing ILEC construction of physical collocation. (See Docket No. 64-2, p. 31-33). Most persuasive is WorldNet's citation to an FCC ruling on various matters related to collocation. Deployment of Wireline Services Offering Advanced Telecomms. Capability, 15 FCC Rcd. 17806 (2000) (hereinafter, "Deployment of Wireline Services" or the "Order"). In Deployment of Wireline Services, the FCC established minimum national standards for various collocation services in order to effectively implement the collocation requirements of Section 251(c)(6) of the Act. 15 FCC Rcd. at 17812, 17819, ¶ 8, 22. A careful reading of the Order makes clear how the Act's collocation framework should be interpreted. First, the Order clarifies the difference between physical and virtual collocation. Id., ¶ 9. Physical collocation, which the Act requires an ILEC to provide if "practical" 47 U.S.C.A. § 251(c)(6), is an arrangement in which the competitive carrier has physical access to the collocation space to install, maintain, and repair its equipment. 15 FCC Rcd. at 17812, ¶ 9. In a virtual collocation, the competitive carrier does not have physical access to the space, and instead, the equipment is under the physical control of the ILEC, who is responsible for installing, maintaining, and repairing the equipment. Id. The Order sets forth standards for the timely provision of physical collocation specifically, declining to set forth standards for virtual collocation. Id. at 17819, 17824, ¶ 22, 32. In establishing national standards for the time frame within which physical collocation must be provided, the FCC noted that an ILEC "must perform essentially three groups of tasks in order to provision collocation space in response to a competitive LEC's request." Id. at 17820, ¶ 24. These three steps clarify the ILEC's responsibilities under the statute. First, the ILEC must inform a CLEC whether its request has been accepted or denied. Id. Second, in some instances the ILEC will have to perform design or planning work to accommodate the request, and may have to determine the price it will charge for the collocation arrangement. Id. at 17820-21, ¶ 25. Third, the ILEC "must promptly provision the collocation arrangement in those instances where the [CLEC] wishes to proceed with collocation." Id. at 17821, ¶ 26. The Order sets a deadline for the ILEC to "complete any technically feasible physical collocation arrangement, whether caged or cageless...." Id., ¶ 27. An ILEC is deemed to have complied with the deadline if it has "complete[d] provisioning of a collocation arrangement," or in other words, has "finish[ed] construction in accordance with the requesting carrier's application and turn[ed] functional space over to the requesting carrier." Id. at 17823, ¶ 30. 189 Thus, while a reading of the statute alone might leave room for doubt as to the precise meaning of the requirement that an ILEC "provide ... for physical collocation," the FCC's elaboration of the various steps involved in providing for collocation clarifies that the requirement makes the incumbent carrier responsible for "construction" of the collocation arrangement. Id. at 17823, ¶ 30. Indeed, even in the case of physical collocation in which the CLEC ultimately has physical access to the collocation space to install, maintain, and repair its equipment, the FCC requires the ILEC to "finish construction in accordance with the requesting carrier's application" before "turn[ing] functional space over to the requesting [CLEC]." Id. at 17812, 17823, ¶ 9, 30. Once the space is turned over to the CLEC in a physical collocation arrangement, responsibility then passes to the ILEC to "install, maintain, and repair its equipment".[6]Id. at 17812, ¶ 9. Thus, the Order describes a scenario in which the incumbent carrier is responsible for constructing the collocation space or arrangementthe part of the job that involves the incumbent's equipment and spaceand the competitive carrier is then responsible for installing its own equipment once the collocation space has been turned over to it. PRTC's response to Deployment of Wireline Services does not alter this analysis. PRTC asserts that the Order "makes clear that ... it is up to the various states to implement their own collocation standards." (Docket No. 78, p. 55). This assertion fails to help PRTC's cause. First, the Order sets a national standard for the deadlines by which an ILEC must "provide... for physical collocation" under the Act. The FCC explains that states may provide for different time frames for physical collocation provisioning. 15 FCC Rcd. at 17823, ¶ 29. However, the FCC's authorization for states to set their own deadlines for providing for collocation does alter the import of the FCC's interpretation of the steps involved in providing for collocation. Moreover, the FCC allows that a state "could set its own standards by statute, through an existing or future rulemaking order, by enforcing a state tariff, or by applying the precedent of a state arbitration decision." Id., ¶ 22. PRTC suggests that the Board has in fact taken one of these steps here, and thus the state has "set its own standards" as permitted by the Order. This assertion is not persuasive. First, as noted, the Order allows a state to set different deadlines, not to wholly change the interpretation of "provide... for collocation." Second, even if "applying the precedent of a state arbitration decision" would allow for the result here, the Board gives no indication that it is attempting to set a standard that differs from the national standard. Indeed, the Board appears unaware of this FCC interpretation of the Act, finding that "there is no legal basis for the Arbitrator to require PRTC to perform construction services." (JA, Ex. 92, p. 129). Granted, it is unclear that either of the parties brought this Order to the Board's attention in the proceedings below. Nonetheless, on this de novo review, I find that the FCC has established that the Act indeed requires an ILEC to perform construction of the collocation arrangement in response to a request for collocation, and therefore the Board's determination was incorrect as a matter of law. 190 Nevertheless, the Board also affirmed the arbitrator on the alternate grounds that the record demonstrated "problems as a result" of the previous agreement's requirement that PRTC perform collocation construction. (JA, Ex. 85, p. 151). In particular, the arbitrator cited testimony describing the disputes that would arise between PRTC and WorldNet if PRTC were required to perform collocation construction work at WorldNet's request. (JA, Ex. 19, 7-10). However, the foregoing analysis demonstrates that the law requires PRTC to perform construction of the collocation arrangement, and thus the Board does not have the authority to make such an exception to the FCC's interpretation of the Act's requirements. Therefore, because the Board applied the incorrect legal standard, the court vacates the Board's decision and remands this issue for further proceedings consistent with this opinion. In particular, on remand the Board should craft a solution under which PRTC is required to construct the portion of the collocation space or arrangement which involves PRTC's space and equipment, and once that space has been turned over to WorldNet, WorldNet becomes responsible for installing its own equipment. b. Collocation Pricing WorldNet objects to the Board's determination on the issue of collocation price quotation response. The Board adopted PRTC's proposal that when PRTC quotes a price for collocation, WorldNet's challenge to that price will toll PRTC's time for provisioning the collocation arrangement such that, in effect, PRTC will not have to provision the collocation until the parties have agreed on the price. WorldNet argues that this arrangement will result in "irreparable harm" to it as PRTC uses the pricing dispute to delay construction and with it, WorldNet's ability to effectively compete. The essence of WorldNet's argument is that the contract provision is bad policy because "PRTC can still be made whole through interest and true-ups if the charges are ultimately deemed proper [but] WorldNet suffers irreparable harm if its collocations were delayed by the requirement ..." (Docket No. 64-2, p. 35). WorldNet also asserts that the provision violates the Act's requirement that collocation be provided on terms that are "just, reasonable, and nondiscriminatory." 47 U.S.C. § 252(c)(6). PRTC, in turn, argues that the Board's decision was not arbitrary and capricious because there was no evidence in the record to support WorldNet's claim of irreparable harm, and did not violate the Act because the requirement is just and reasonable. (Docket No. 78, p. 57). While the parties dispute the meaning of the broad language of the Act, WorldNet does not point to any rules or regulations further construing that language in the context of collocation pricing disputes.[7] In light of the lack of FCC or other relevant guidance before the court, the task of interpreting "just" and "reasonable" becomes a matter of policy, not law. Put differently, WorldNet has not articulated how the arbitrator's decision violates the Act, merely that it improperly interprets the "just" and "reasonable" requirements. Accordingly, WorldNet's invocation of the Act does not trigger this court's de novo 191 review. Instead, WorldNet's arguments are more properly viewed as policy and factual arguments, and thus require this court to determine whether the Board's decision was arbitrary and capricious. The arbitrator here found that it was "not unreasonable to be required to agree on pricing before construction commences." (JA, Ex. 85, p. 180). This decision was based on record evidence that disputes had already arisen between WorldNet and PRTC as a result of the provision in the prior agreement allowing WorldNet to dispute pricing quotations after construction was undertaken. (Id., citing JA, Ex. 19, p. 20). In the cited testimony, a witness for PRTC stated that, "there already have been instances in the recent collocation work done for WorldNet in which WorldNet disputed the price quotation after work had been started and/or almost completed" and "WorldNet certainly would not be able to tell one of its own contractors that it disagrees with a contractor's price after the contractor's work is done; there is no reason why WorldNet should get that opportunity when PRTC is involved." (JA, Ex. 19, p. 20). The Board affirmed the arbitrator's decision, finding it "well-reasoned and supported by sufficient evidence," and further, "entirely reasonable." (JA, Ex. 92, p. 131). The Board elaborated that it was reasonable to require the parties to agree on pricing before construction begins because if "WorldNet cannot reach agreement with PRTC before construction begins, WorldNet is free to consult with other contractors who can perform the requested services." (Id.). A review of these decisions shows that there is record evidence supporting the arbitrator's stated concern that disputes may arise between the parties if WorldNet is permitted to dispute a price after construction has already begun. However, it is unclear that there is any evidence supporting the Board's assertion that if "WorldNet cannot reach agreement with PRTC before construction begins, WorldNet is free to consult with other contractors who can perform the requested services." (Id.). The portion of the collocation at issue here appears to be that for which PRTC is responsible: establishing the connection to PRTC's own equipment and setting aside space for competitive carriers. (See Section II. B.7.a, supra). The idea that WorldNet could hire its own contractors stands in contrast to the scenario elucidated in Deployment of Wireline Services, in which incumbent carriers bear responsibility for "finishing construction in accordance with the requesting carrier's application and turning functional space over to the requesting carrier." 15 FCC Rcd. at 17823, ¶ 30. Under this scenario, PRTC is responsible for the initial collocation arrangement construction, and WorldNet would not have authority to access that space, or hire contractors to work in that space, until PRTC has turned over the space to WorldNet. The parties do not point to any record evidence suggesting that the result should be any different here. Importantly, this is the only remedy the Board suggests WorldNet may have if it believes that PRTC isas WorldNet fearsusing the price quotation process improperly to "hold WorldNet's network build out hostage to disputes over [] pricing." (JA, Ex. 52, p. 18). The Board does not suggest any other remedy.[8] In this way it appears that at least 192 this portion of the Board's decision was not properly based on record evidence consistent with the governing law, and is thus arbitrary and capricious. Therefore, this issue is remanded to the Board to properly decide in accordance with this opinion and the evidence in the record. It should be noted that the parties may be conflating various elements of collocation pricing. WorldNet suggests that collocation pricing includes PRTC's rates for collocation and for use of its facilities (Docket No. 64-2, p. 36), but the dispute here appears to center on the price of contractor fees for initial construction of the collocation arrangement. Moreover, within the construction process, it appears that the dispute here concerns only that construction for which PRTC is responsible (See Section II.B.7.a., supra) and not the installation of equipment for which WorldNet bears responsibility, but none of the administrative decisions or briefs are clear on this point. Viewed against that background, the parties do not seem to dispute that they would be able to agree on PRTC's fees ahead of time. Instead, the dispute here concerns advance agreement to the pricing estimates of third-party contractors. The parties appear to assume, but do not explicitly inform the court, that PRTC is responsible for arranging this construction, but WorldNet is responsible for paying the fees. However, on remand the Board should make explicit exactly which fees are at issue here in order to better facilitate the court's analysis of the issue and should consider the collocation pricing issue in light of the court's analysis in Section II.B.7.a. c. Collocation Construction Schedule The arbitrator adopted WorldNet's proposal to require a joint collocation schedule and time limits on PRTC's response to any reasonable collocation-related requests made by WorldNet that are not included in the joint schedule. (JA, Ex. 85, p. 185-86). The Board agreed with PRTC's objection to holding it responsible for compliance with the schedule where third-party contractors perform construction. (JA, Ex. 92, p. 89). However, the Board affirmed that portion of the arbitrator's decision requiring PRTC's compliance with the schedule and with other non-scheduled requests where PRTC performs the construction. (Id.). As a result, PRTC will be responsible for liquidated damages under the agreement where it does not comply with the schedule. (Id.). WorldNet objects that PRTC should still be responsible for compliance with the schedule even where a third-party contractor is involved. (Docket No. 64-2, p. 37). In particular, WorldNet argues that the Board's decision was arbitrary and capricious because it reflected a misunderstanding of the collocation process, and that in reality, PRTC is still "significantly involved" in the construction process even where work is delegated to a third-party contractor. (Id.). PRTC's response is confusing because it seems to focus on a different aspect of the arbitrator's decision than the one challenged by WorldNet. PRTC focuses on the portion of the Board's decision affirming the arbitrator's requirement that PRTC perform certain non-scheduled tasks within five days of WorldNet's "reasonable" request, arguing that there is "no rational connection" between the punitive liquidated damages provision and this requirement. (Docket No. 78, p. 60). PRTC does not appear to be directly challenging this provision, however, but uses it to argue "[a]gainst this backdrop, it was well within the discretion of the Board to limit the operation of the liquidated damage provision associated lines would be available to WorldNet under the Board's solution. 193 with these sections." (Id.). As best as the court can make sense of the issue, the Board's "limit[ation of] the operation of the liquidated damage provision" was not based on the non-scheduled activities, but rather on those construction tasks performed by third-party contractors rather than PRTC itself. (JA, Ex. 92, p. 89 ("We direct the Parties to draft language making it clear that only when PRTC performs construction will it be liable for liquidated damages.")). If there is a relationship between the non-scheduled activities and the activities performed by a third-party contractor, the parties have not so informed the court. WorldNet challenges the portion of the Board's decision which overruled the arbitrator. As noted, the First Circuit instructs that when the Board delegates its authority to an arbitrator, it may overturn the arbitrator only if the decision is inconsistent with the Act or if the Board reasonably finds that the arbitrator's solution conflicts with Puerto Rico law, Board rules, or Board policy determinations. WorldNet I, 497 F.3d at 7. Here, the Board's rationale for overturning the arbitrator's decision as to third-party contractors was that the decision was "inconsistent" with other portions of the decision. (JA, Ex. 92, p. 89). In its brief on this motion, the Board does not elaborate on its rationale for this decision, arguing only that WorldNet's argument is "puzzling" because "PRTC should not be required to pay liquidated damages to WorldNet because a third-party contractor delayed construction of a facility." (Docket No. 60, p. 57). The Board seems to believe that this is such a straightforward, common-sense view that no further explanation is required. However, the arbitrator seems to have viewed the evidence differently. A difference of opinion as to the record or the evidence is not a proper ground for the Board to overturn the arbitrator. Therefore, the Board exceeded its authority in overturning the arbitrator and the arbitrator's determination on this issuethat PRTC be held responsible for liquidated damages for delays due to third-party contractorsis hereby reinstated. 8. Pricing Issues The parties challenge various pricing decisions of the Board. While the general standard applies here in which this court reviews legal determinations de novo and fact-based determinations under an arbitrary and capricious standard, courts have cautioned that there is reason for courts to be particularly deferential to agency determinations in the pricing context. TDS Metrocom, LLC v. Bridge, 387 F. Supp. 2d 935, 939 (W.D.Wis.2005) ("[b]ecause courts lack the technical expertise to conduct an in-depth analysis of rate components, a deferential standard of review of the commission's choice of rate components is appropriate"); MCIMetro Access Transmission Servs. v. GTE Northwest, No. C97-742WD, 1998 U.S. Dist. LEXIS 11335 (W.D.Wash. July 7, 1998) ("[s]ubstantial deference should be afforded to a state commission's findings because the Act gives it original jurisdiction in the area of rate-setting"). See also Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352 (D.C.Cir.1999) (regarding FCC ratemaking, "because agency ratemaking is far from an exact science and involves policy determinations in which the agency is acknowledged to have expertise, courts are particularly deferential when reviewing ratemaking orders") (internal citation omitted). However, where the Board overturns the arbitrated decision, a different analysis applies. The Board may reject an arbitrated agreement only if it finds that the agreement does not hold the carriers to 194 their obligations under section 251, or, more relevant here, fails to meet the pricing standards of section 252. 47 U.S.C. §§ 252(e)(2)-(3); WorldNet I, 497 F.3d at 5-6. As noted, in implementing the statute, the FCC sought to address tensions between the interests of incumbent and competitive carriers by directing carriers and state boards to set UNE rates using a forward-looking methodology known as TELRIC.[9] 47 C.F.R. §§ 51.505-515. Under TELRIC, prices are based on the long-run costs that would be incurred to produce services using the most-efficient technology presently available regardless of whether the ILEC actually uses the most up-to-date technology. AT & T Commc'ns of Ill., 349 F.3d at 404-05. a. WorldNet's Pricing Challenges (1) NID and Block Terminal Costs The first pricing dispute concerns the costs associated with network interface devices and block terminals. A network interface device (NID) is a small boxed device connecting the telephone network to the inside wires of a house or other premises. (Docket No. 78, p. 11). A block terminal is similar, but connects the telephone network plant to the inside wires of a large building. (Id.). The issue here concerns, in particular, "ground rods," or metal shafts driven into the ground that carry current away from the telephone network in case of an electrical surge. (Id.). Ground rods are typically connected to NIDs and block terminals, and thus factored into the costs of those two network elements. (Id.). The dispute here concerns whether the appropriate costs of these elements should reflect PRTC's installation of ground rods to be used with all of its NIDs and block terminals, or whether it should use existing ground rods in cases where they have already been installed in a given location by electric power companies or cable television providers. (Id., p. 12). Before the arbitrator, PRTC presented evidence that its practice was to install ground rods together with all of its NIDs and block terminals rather than "rely on non-company equipment that may be moved, changed, replaced, etc." (JA, Ex. 85, p. 293). WorldNet provided evidence that ground rods needed to be installed just 66% of the time for NIDs and 10% of the time for block terminals. (Id.). Based on this evidence, the arbitrator determined that in a "least cost, most efficient designed network", PRTC should share the existing ground rod and its insistence that it should install new ground rods in all cases was "unreasonable." (Id.). The arbitrator accordingly adopted WorldNet's proposal. (Id.). The Board overturned the arbitrator's decision. Although the Board argues here that its decision was based on the proper application of TELRIC principles, the Board decision below contained no articulated consideration of those principles. Instead, the Board held that "the record does not provide sufficient support for WorldNet's proposals" and concluded that the arbitrator erred in adopting those proposals "without sufficient evidence." (JA, Ex. 92, p. 23). According to the Board, PRTC's practice was based on safety concerns. (Id.). In what can only be characterized as a reconsideration of the evidence, the Board found that "without contradictory persuasive evidence, PRTC's safety concerns must prevail." (Id.). 195 The First Circuit has made clear that the Board should treat an arbitrated agreement as a "presumptive solution" which it "must" accept if it is consistent with the statute, "unless" the Board "reasonably" finds that the arbitrated agreement conflicts with Puerto Rico law, Board rules, or Board policy determinations. WorldNet I, 497 F.3d at 7. Here, the Board did not even suggest that the arbitrated solution conflicted with the statute, Puerto Rico law, Board rules, or Board policy determinations, but rather stated that the arbitrator incorrectly weighed the evidence. The Board exceeded its authority in overturning the arbitrator on this ground. This result is not altered by the Board's assertion before this court that its decision was based on proper application of TELRIC principles, and thus reflected a finding that the arbitrated decision was inconsistent with federal law. The Board asserts here that the arbitrator improperly ignored PRTC's supposed safety concerns because "TELRIC does not require that the Board ignore these safety factors in positing an efficient hypothetical network." (Docket No. 60, p. 52). However, even if the Board is correct in asserting that TELRIC permits a consideration of safety factors, such a fact does not mean that the arbitrator was incorrectas a matter of law or otherwisein failing to give the same weight to the safety factors. Moreover, the Board does not suggest that the arbitrator failed to consider the safety factors, but rather it appears that the arbitrator and the Board simply weighed the evidence differently. This is precisely the sort of situation in which the First Circuit instructs that the Board may not properly overturn the arbitrator: when a state board delegates its duties to an arbitrator, it cannot overturn the arbitrator's solution simply because "if framing the agreement itself" it would follow different policies based on "ad hoc preferences". WorldNet I, 497 F.3d at 8. Therefore, the Board exceeded its authority in overturning the arbitrator on the NID and block terminal issue, and summary judgment is granted for WorldNet, reinstating the arbitrator's decision on the issue. (2) Circuit Demand WorldNet's second pricing challenge concerns pricing for unbundled "transport" network elements, which are connections between PRTC switching centers that WorldNet leases for its use. (Docket No. 78, p. 14). For the purposes of establishing the proper TELRIC-compliant rate for those network elements, the Board considers both the level of investment in the various pieces of equipment needed to establish transport circuits as well as a projection of total demand for such transport circuits. (Id.; JA, Ex. 85, p. 299). The Board considered proposals from both parties in order to determine the proper rate. PRTC had proposed a cost model based on 2005 and 2007 prices for the equipment for the investment part of the model, and divided it by the 2001 circuit demand figure in order to establish the forward-looking rate. (Docket No. 78, p. 14). WorldNet disputed the use of the 2001 circuit demand level and offered testimony of its own expert witness to establish a more current, forward looking demand figure. (JA, Ex. 85, p. 299). The arbitrator determined that the future demand projection provided by WorldNet's expertwhich was unrefuted by PRTCwas "reasonable" and thus applied that figure to the cost model. (Id.). The Board, however, found that the arbitrator had failed to "account for the match between investment and demand" and therefore, the arbitrator's order was "inconsistent with Section 252(d) in not considering all of the 196 data and the effect of the decision in determining forward-looking rates." (JA, Ex. 92, p. 25). Accordingly, the Board overturned the arbitrator's price model and applied PRTC's model with its 2001 circuit demand figure. (Id.). WorldNet contests the Board's determination, arguing the Board exceeded its authority in overturning the arbitrator on these grounds. (Docket No. 64-2, p. 12). As noted, the Board should consider an arbitrated agreement to be a "presumptive solution" which it "must" accept if it is consistent with the statute, "unless" the Board "reasonably" finds that the arbitrated agreement conflicts with Puerto Rico law, Board rules, or Board policy determinations. WorldNet I, 497 F.3d at 7. Here, the Board's invocation of the magic words "inconsistent with Section 252(d)" is not sufficient to give the it carte blanche to overturn the arbitrator. A closer reading of the Board's decision makes clear that the Board's dispute with the arbitrator was actually based on a difference in interpretation and weight given to the record evidence. (JA, Ex. 92, p. 25). The Board did not provide any discussion of how the arbitrator's decision conflicted with the TELRIC standard or was otherwise inconsistent with the Act, nor did the Board flesh out that finding in its briefs before this court (to the extent that a such a post hoc justification would be credited here). The Board's sole argument here concerning the TELRIC standard is that "TELRIC requires the Board to consider all of the costs of a hypothetical future model" and thus must consider both the number of circuits and the investment costs. (Docket No. 60, p. 53). However, there is simply no indication that the arbitrator did not consider "all of the costs". To the contrary, the arbitrator cited the rule that "TELRIC-based pricing requires a forward looking examination of investment and a projection of future demand." (JA, Ex. 85, p. 299). Referencing the need to factor both investment and future demand into the model, she noted that PRTC's proposed model based both these figures on 2001 levels and stated her skepticism with PRTC's assertion that it was unable to project circuit demand for a forward-looking model. (Id.). Thus, it appeared that the arbitrator did consider all of the data and the TELRIC requirements. In such circumstances, the Board may not overturn the arbitrator simply because it would have reached a different conclusion about the evidence "if framing the agreement itself." WorldNet I, 497 F.3d at 8. Therefore, summary judgment is granted for WorldNet, reinstating the arbitrator's decision on the issue. (3) Value of Land WorldNet's third pricing challenge concerns a dispute over the value of land on which PRTC might build physical plants in the future in order to determine a rate for the square meters of land purchases. Before the arbitrator, PRTC proposed a figure of $400 per square meter, despite evidence that its recent land transactions averaged $328 per square meter, asserting that its future collocation sites would be located in the San Juan metro area and thus have a higher cost. (JA, Ex. 85, p. 306). The arbitrator stated that there was no evidence supporting PRTC's assertion that future collocation sites would be located in "the `metro area'" and, in the absence of evidence showing land estimates from "all possible locations" of future collocation sites, she relied on the $328 figure as the basis for the arbitrated price. (Id.). The Board concluded that the arbitrator "misunderstood the evidence" and therefore "erred through inconsistency with Section 252(d)." (JA, Ex. 92, p. 27). Accordingly, the Board overturned 197 the arbitrator's decision and adopted PRTC's proposal of $400 per square meter. (Id.). Again, the Board's invocation of a supposed inconsistency with the Act is not a magic talisman shielding its decision from this court's scrutiny. The Board did not provide any explanation in either its decision or its filings before this court as to how the arbitrator's decision is inconsistent with Section 252(d). Moreover, the Board's assertion that the arbitrator "misunderstood the evidence" makes clear that its dispute with the arbitrator concerns their differing interpretations of the evidence. "[W]hen the Board delegates power to an independent arbitrator, ... it is limited" in its authority to review the resulting agreement, and a differing view of the evidence is not a proper ground on which to overturn the arbitrator. See WorldNet II, 497 F.3d at 14. The Board asserts here that the arbitrator erred because "the record evidence showed that, to date, WorldNet had only requested collocation in metro areas, and had never indicated that it was considering ordering sites outside of the metro areas. Thus, because the evidence showed that the metro area would be the only location for the collocation sites, ... the Arbitrator's approved rate did not satisfy TELRIC." (Docket No. 60, p. 54). This argument is flawed in multiple respects. First, the arbitrator explicitly stated that "there is no evidence that the `metro area' will be the only location for collocation sites" (JA, Ex. 85, p. 306), and thus it simply appears that the Board credited evidence which the arbitrator did not. As noted, a differing view of the record is not proper grounds for reversal. Second, the Board's statement fails as a matter of its own internal logic. TELRIC standards require a forward-looking cost model, and thus the relevant inquiryas the arbitrator notedis where future collocation sites will be located. Even if there was evidence, as the Board asserts (without citation to any evidence), that WorldNet had "to date, ... only requested collocation in metro areas," this fact would not mandate a finding that "the metro area would be the only location for the collocation sites" in the future. (See Docket No. 60, p. 54). Therefore, the Board exceeded its authority in overturning the arbitrator, and summary judgment is granted for WorldNet, reinstating the arbitrator's decision on the issue. b. PRTC's Pricing Challenges (1) Transit Traffic Rates Both WorldNet and PRTC challenge the rate adopted by the Board for when PRTC transits WorldNet's traffic. Transit traffic refers to an arrangement whereby, in a typical situation, two competitive carriers do not have sufficient traffic between them to justify dedicated facilities connecting their respective networks, so instead they negotiate with the incumbent carrier (with which they are each interconnected) to "transit" traffic between their two networks as an alternative to a direct connection. (Docket No. 62, p. 65). The arbitrator did not decide this issue. (JA, Ex. 105, p. 17). The Board determined (1) as a legal matter, it is unsettled whether TELRIC principles apply to transit traffic rates; (2) the applicability of TELRIC rates should be determined in the Board's ongoing proceeding as a matter of general policy; and (3) for "pragmatic" reasons, it is fair and reasonable to adopt a rate of $0.0038 per minute, the lower of various rates proposed by PRTC over the course of the proceeding and the current rate in effect, though higher than WorldNet's proposals. (Id., p. 18). PRTC argues that the Board's decision was arbitrary and capricious because the Board had initially found that there was "insufficient 198 information" to support the adoption of any of the proposed rates, then reversed itself and adopted a rate for which there was not (unlike PRTC's other proposal) cost support or other record evidence. (Docket No. 62, p. 67). WorldNet argues that the Board's adopted rate should be vacated because it is not TELRIC-compliant. (Docket No. 64-2, p. 28). The FCC has held that TELRIC pricing is not required for transit service rates. Petition of WorldCom, Inc., Pursuant to Section 252(e)(5) of the Commc'ns Act for Preemption of the Jurisdiction of the Virginia State Corp. Comm'n Re. Interconnection Disputes with Verizon Virginia Inc., 17 FCC Rcd. 27039, 27101 ¶ 117 (2002) (hereinafter "Petition of WorldCom I") ("any duty Verizon may have under section 251(a)(1) of the Act to provide transit service would not require that service to be priced at TELRIC"). The parties have not indicated that either the FCC or any other authority has subsequently altered this determination and the court defers to the FCC's interpretation of the Act under the doctrine of Chevron deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Therefore, as a legal matter, the Board was correct in holding that it was not required to apply TELRIC rates. As for PRTC's argument that the Board's decision was arbitrary and capricious, PRTC takes a curious position here. The Board here adopted PRTC's own proposalalbeit, PRTC's initial proposal before PRTC nearly doubled its proposed rate: in the arbitration proceeding, PRTC proposed a rate a $0.0038 per minute of use of transit traffic, and in the further proceeding before the Board, proposed a rate of $0.00739, a 94% increase over its earlier proposal. In rejecting the $0.00739 rate, the Board noted that (1) it was nearly double the rate PRTC had originally proposed; and (2) it was 14% higher than the rate included in PRTC's tariff filing with the FCC. (JA, Ex. 105, p. 18). On the other hand, the rates proposed by WorldNet in the arbitration proceeding and the further hearings were, respectively, 82% and 37% lower than PRTC's lowest proposed rate. (Id.). Accordingly, the Board determined that it would be "fair and reasonable" to use a rate proposed by PRTC, but to use the lowest of the rates it had proposed at different stages of the proceeding. (Id.). However, PRTC complains that the Board's decision was arbitrary and capricious because there was not cost support or other record evidence for the rate the Board ultimately selected. (Docket No. 62, p. 67). WorldNet counters that (1) the backing of a cost-study would not automatically make PRTC's later (and higher) proposal reliable and reasonable, (2) PRTC's cost study was based on embedded PRTC costs, which the FCC has found do not serve as an effective basis to foster competition, and (3) the Board acted reasonably in rejecting PRTC's proposal that was higher than its earlier proposal and its rate on file with the FCC. (Docket No. 74, p. 62). These complex factual arguments illustrate the concerns other courts have expressed about the ability of courts to effectively review pricing determinations by administrative agencies. See, e.g., TDS Metrocom, LLC, 387 F.Supp.2d at 939 ("[b]ecause courts lack the technical expertise to conduct an in-depth analysis of rate components, a deferential standard of review of the commission's choice of rate components is appropriate"). The decision involved a number of technical factors, and in the absence of demonstrating a legal violation or a clearly unreasonable result, this court defers to the Board's determination 199 on the myriad technical and policy factors that go into its pricing determinations. Applying the appropriate deference to that determination, I find that the Board acted within its authority in adopting the transit service rate here and its determination is affirmed. (2) Depreciation Inputs "Depreciation" is the mechanism by which the investment in an asset is recovered over the life of the asset. Petition of WorldCom, Inc., Pursuant to Section 252(e)(5) of the Commc'ns Act for Preemption of the Jurisdiction of the Virginia State Corp. Comm'n Re. Interconnection Disputes with Verizon Virginia Inc., 18 FCC Rcd. 17722, ¶ 105 (2003) ("Verizon Virginia").[10] The depreciation calculation takes two factors into consideration: the useful life of the asset and the rate at which the asset is depreciated over the useful life. Id., ¶ 106. The dispute here concerns the figures used for the range of asset lives. The arbitrator applied a rate based on the determination of the FCC in Verizon Virginia. (JA, Ex. 85, p. 285). In Verizon Virginia, the FCC found that asset lives at the low end of a "safe harbor" range (as established by the FCC in 1994 and 1995 and modified in 1999) were consistent with the FCC's TELRIC rules. Verizon Virginia, 18 FCC Rcd. at 17770, ¶ 112. The arbitrator here thus followed the FCC's guidance in that order and required the parties to use asset life lengths falling within the FCC safe harbor range since those lengths have been determined by the FCC to be TELRIC-compliant. (JA, Ex. 85, p. 285). The Board affirmed the arbitrator as legally correct and correct in light of her review of the record. (JA, Ex. 92, p. 17). PRTC contends that the Board and arbitrator erred in this holding because the safe harbor figures were adopted "to allow carriers to avoid the expense of performing a thorough depreciation study." (Docket No. 62, p. 42). Under this framework, "[i]f a carrier used regulatory lives that fell within the [safe harbor] ranges, it was not required to file a comprehensive study; if it used regulatory lives that fell outside the ranges, it was required to file a full depreciation analysis." (Id.). This analysis appears to be correct. See Matter of Simplification of the Depreciation Prescription Process, 10 FCC Rcd. 8442, 8443-8444, ¶ 3 (1995) ("Under our new process, if a price cap LEC meeting the requisite criteria selects future net salvage and projection life estimates that are within the established ranges, it need not submit the detailed supporting data otherwise required.... These streamlined procedures are intended to simplify the depreciation process ..."). PRTC argues that here, it submitted just such a detailed depreciation study, and therefore it was permitted to rely on that study in lieu of 200 reliance on the safe harbor ranges. (Docket No. 62, p. 43). Initially, it appears that the Board's quibble with PRTC was not over the legal standard but over the weight to give the depreciation study in the record. The Board held that the arbitrator "[a]ppropriately [gave] less weight... to this evidence." (JA, Ex. 92, p. 17). In particular, the Board held that it "agreed with the Arbitrator who found unpersuasive PRTC's claim that its depreciation rate study was vetted in a manner similar to those carriers required to participate in the FCC's service life prescription review." (Id.). However, on closer inspection of the arbitrator's decision, it is unclear whether this is an accurate characterization of the arbitrator's reasoning or if her reasoning was based on simply requiring the safe harbor rates to be adopted without considering PRTC's study at all. (See JA, Ex. 85, p. 185 ("PRTC wants the rates it developed in the mid-1990's that were not part of the FCC's safe harbor determination to be given the same imprimatur as the safe harbor rates even though they are generally lower than the lowest safe harbor rates. I reject PRTC's approach.")). Nonetheless, even if the Board erred in failing to clarify the correct legal standard, the Board was correct in affirming the arbitrator's resulting rates. The Board may only overturn the arbitrator's decision if the result is inconsistent with the statutenot the reasoning. The First Circuit explained that when the Board delegates its authority to an arbitrator, "an arbitrated agreement ... must be accepted by the Board if consistent with section 251 and 252(d), unless the local agency reasonably finds that the arbitrator's solution conflicts with state statutes, agency rules, or considered policy determinations...." WorldNet II, 497 F.3d at 14 (emphasis added) (original emphasis omitted; internal quotation omitted). Here, even if the arbitrator applied somewhat faulty reasoning, PRTC makes no claim that the resulting rates violate the statute, and indeed, the very purpose of using safe harbor ratesas the Board did hereis that they have been determined to be TELRIC-compliant and therefore consistent with the Act.[11] Therefore, I affirm the Board's determination on the issue of depreciation inputs. (3) Cost of Capital The parties further disagree on the Board's determination of the input in the cost model for the Weighted Average Cost of Capital ("WACC"). The WACC determines the level of return to investment contained within UNE prices that an incumbent carrier is expected to earn, and is often referred to as the company's "rate of return." (Docket No. 62, p. 43). A WACC calculation includes a determination of the "beta" factor. Beta measures the degree to which a company's stock price varies relative to the market as a whole. Verizon Virginia, 18 FCC Rcd. at 201 17761, ¶ 87. A company has a beta value of 1.0 if its stock price changes over time to an identical degree as the stock market in the aggregate changes; it has a beta value of less than 1.0 if it changes less than the market as a whole (i.e., has less risk than the market); and it has a beta value greater than 1.0 if it changes more than the market (i.e., has more risk than the market). Id. In calculating WACC, a beta value is used in order to account for the risks associated with investment in a forward-looking network that uses the most efficient technology available so that a WACC rate will be developed that encourages competitive carriers to invest in their own facilities and increase the development of facilities-based competition. Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Rcd. 16978, 17396-7, ¶ 682 (2003) ("Unbundling Obligations"). However, the FCC has noted that selecting a beta value is "the most difficult aspect of the cost of capital calculation because there is no real-world company that provides UNEs in the type of competitive market assumed under the Commission's TELRIC rules, and therefore no real-world company's beta precisely reflects the risk of participating in such a market." Verizon Virginia, 18 FCC Rcd. at 17761, ¶ 87. The arbitrator here rejected PRTC's proposed beta value, which was an average value based on a peer group of national carriers. (JA, Ex. 85, p. 284). The arbitrator found that the national carriers' activities included video ventures and thus were not reflective of the risk faced by PRTC, which was not implementing such a venture. Instead, the arbitrator expressed her agreement with the FCC that "the overall beta of 1.0 for the S & P 500 companies . . . does produce a useful benchmark for the risk faced on average by established companies in competitive markets." (JA, Ex. 85, p. 284 (quoting Verizon Virginia, 18 FCC Rcd. at 17762, ¶ 90)). The arbitrator asserted that she found this figure appropriate because "absent evidence to support the establishment of an industry beta value higher than 1.0 that would be reflective of the level of risk faced by PRTC" it was preferable to "adopt the market beta value representing the risk faced on average by competitive companies." (Id.). The Board held that the video deployment finding was "unsupported in the record" but nonetheless affirmed the arbitrator's beta value determination, finding that the arbitrator did not rely solely on the video deployment issue to reach her determination. (JA, Ex. 92, p. 15). The Board also expressed its agreement with the arbitrator's (and the FCC's) use of the S & P 500 beta value of 1.0, finding that this value "reflects the level of risk faced on average by market participating companies facing competitive markets," and concurring that the Board would "`be uncomfortable prescribing a cost of equity capital for UNEs that is based on a beta significantly higher or lower than the average beta for companies that face competition.'" (Id. (quoting Verizon Virginia, 18 FCC Rcd. at 17762, ¶ 90)). In short, the Board concluded that the arbitrator's selection of a 1.0 beta value "was reasonable and not contrary to either law or policy." (Id.). PRTC challenges this beta value determination on two grounds: (1) the Board incorrectly affirmed the beta value determination even though it found that the video deployment finding was unsupported by the record, and (2) in adopting the S & P 500 beta value of 1.0, the arbitrator and Board misinterpreted and misapplied the FCC's holding in Verizon Virginia. (Docket No. 62, p. 43-47). Essentially, the arbitrator found that she could not adopt PRTC's proposal based on her (erroneous) view of the video-deployment 202 issue, and in seeking an alternative figure, selected the FCC's determination from the Verizon Virginia decision as a beta value figure that had previously been approved by the FCC. As noted previously, the Board should only overturn the arbitrator if her result is inconsistent with law or policynot if the Board simply has a difference of opinion in the rationale used to arrive at the ultimate result. See WorldNet II, 497 F.3d at 14 (when the Board delegates its authority to an arbitrator, "an arbitrated agreement . . . must be accepted by the Board if consistent with section 251 and 252(d), unless the local agency reasonably finds that the arbitrator's solution conflicts with state statutes, agency rules, or considered policy determinations.. . .") (emphasis added; original emphasis omitted) (citing WorldNet I). Moreover, the arbitrator is not required to select from among the parties' proposals, but may craft her solution so long as it is consistent with the record evidence, laws, regulations, and policy. See note 11, supra. Therefore, the Board was within its discretion in determining that the arbitrator's decision was not solely based on the erroneous video deployment and thus proceeding to consider whether the arbitrator's ultimate solution was correct as a matter of law and policy. PRTC also argues that the arbitrated solutionborrowing the beta figure from Verizon Virginiawas contrary to law as expressed in that decision. In particular, PRTC contends that in Verizon Virginia, the FCC adopted the S & P 500 beta value of 1.0 in order to increase the average ILEC beta to reflect the additional risk of operating in a competitive market, but here the arbitrator reduced the average beta. (Docket No. 62, p. 45-46). PRTC is correct that the FCC found that the proposed beta "likely understate[d] the risk of selling UNEs in a competitive market" and applied a beta of 1.0 rather than the proposed beta of .75. Verizon Virginia, 18 FCC Rcd. 17722, 17762-63, ¶ 89, 93. However, PRTC's attempt to draw a distinction between the Board's decision here and Verizon Virginia is without merit. In Verizon Virginia, the CLEC advocated a beta of .75 based on actual average betas of incumbent carriers; the ILEC proposed a higher beta (reflecting higher risk) of 1.0 based on the risk of S & P 500 companies. Here, PRTC proposed a beta value of 1.12 based on the average betas for certain local exchange carriers; WorldNet proposed a figure (presumably lower) based on PRTC-specific information.[12] However, a close reading of Verizon Virginia demonstrates that whether an agency uses the S & P 500 beta value to increase a CLEC's beta proposal or to decrease an ILEC's beta proposal, the FCC's holding is simply that using a 1.0 beta value is "reasonable" and provides "a useful benchmark for the risk faced on average by established companies in competitive markets." Verizon Virginia, 18 FCC Rcd. at 17762, ¶ 90. See also Unbundling Obligations, 18 FCC Rcd. at 17396, ¶ 681 (state agencies "should establish a cost of capital that reflects the competitive risks associated with participating in the type of market TELRIC assumes"; that is, "a competitive market . . . in which . . . carriers would face the risk of losing customers to other [] carriers"). In short, the FCC found that a beta value of 1.0 was consistent with the requirements of the Act. Therefore, the Board's decision correctly interpreted the FCC's decision on this issue, and PRTC's challenge is without merit. 203 PRTC also argues that the debt-equity ratio used by the arbitrator, and affirmed by the Board, was unsupported in the record and therefore arbitrary and capricious. (Docket No. 62, p. 47). It appears that in the proceedings below PRTC proposed to the arbitrator a ratio based on an average of other national carriers (JA, Ex. 85, p. 284), and did not propose a PRTC-specific figure until the reconsideration proceeding before the Board. (See JA, Ex. 92, p. 16 ("we reject PRTC's attempts to introduce additional information that is not currently in the record")). The arbitrator thus adopted WorldNet's proposal based on PRTC-specific figures gleaned from documents regarding PRTC's sale to América Móvil as the figure that "best reflects the current debt and equity structure of PRTC." (JA, Ex. 85, p. 284). PRTC complains that these figures were outdated and could not have accurately represented its "current" capital structure. (Docket No. 62, p. 48). However, the court defers to the arbitrator's selection from among various pieces of record evidence as to which one "best reflects" the issue before her, and defers to the Board's choice not to admit additional evidence that was not before the arbitrator and accordingly affirm the arbitrator's determination. Therefore, because the arbitrator and Board reasonably relied on record evidence in making their determinations, their decisions are not arbitrary and capricious and are affirmed. (4) Maintenance and Operations Factors PRTC challenges the Board's determination of the factor to be applied in the TELRIC pricing model based on the long-run forward-looking costs of operating and maintaining the PRTC network. (Docket No. 62, p. 48). This factor is generally determined based on a cost model that first determines the ratio of current maintenance costs to current investment, and then applies that ratio to the forward-looking investment in order to determine the forward-looking maintenance costs. Here, the arbitrator determined that figure and then further determined that PRTC's expense-to-investment ratio would change in the future, and accordingly decreased the maintenance expense value by 10%. (JA, Ex. 85, p. 285). PRTC challenges the Board's affirmance of the arbitrator's additional 10% decrease (not the ratio itself) as contrary to law and unsupported by record evidence. (Docket No. 62, p. 48). PRTC cites Verizon Virginia for the proposition that because the expense-to-investment ratio is applied to the forward-looking investment figure, the result already reflects a forward-looking maintenance expense and that additional adjustments are unnecessary. In particular, the FCC stated, "Because we apply the expense ratios to forward-looking investment, additional adjustments generally should be unnecessary unless we can anticipate with some certainty that the underlying relationship between investment and expenses will change in the future." Verizon Virginia, 18 FCC Rcd. at 17781, ¶ 141. PRTC contends that the arbitrator erred by not basing her decision on the required "certainty" that the previous ratio was "not representative of what would be expected on a forward-looking basis." Id. WorldNet contends that even if this heightened standard of "certainty" is correct, the arbitrator found that the record supported the conclusion that the expense-to-investment ratio would indeed change in the future. Because the parties essentially agree on this legal standard (and the court does not disagree), I review whether the arbitrator's decision was arbitrary and capricious in applying this standard to the record. 204 The arbitrator found that the 10% reduction in forward-looking expenses was justified by the record because (1) past arbitrations had determined that PRTC's long-term plans justified a 10% reduction in expenses; (2) there was no evidence that these long-term plans had either changed or been completed and stabilized the expense-to-investment ratio; (3) record evidence showed that productivity gains were continually being made by PRTC; and (4) PRTC's then-recent sale to América Móvil would result in additional improvements in its network and decreased maintenance expenses not captured under the current expense-to-investment ratio. (JA, Ex. 185, p. 286). Thus, the arbitrator relied on extensive, detailed support in the record for her determination that PRTC's expense-to-investment ratio would change in the future to a degree not captured by applying the ratio to the future investment ratio. This reliance on record support satisfies the "certainty" standard in the Verizon Virginia order, and in the alternative, would satisfy an arbitrary and capricious standard under a less strict legal standard. Accordingly, the arbitrator did not exceed her authority and the Board correctly affirmed the arbitrator's decision. The court therefore affirms the Board's determination on this issue. (5) Buried Drop Costs PRTC also challenges the arbitrator's selection of an input to the cost model based on the cost of placing the buried wire that connects a customer's home or business to the PRTC network. (Docket No. 62, p. 51). In the administrative proceedings, PRTC proposed a figure based on the assumption that it would place such buried wires into conduit 100% of the time; WorldNet's proposal assumed the use of conduits 10% of the time.[13] (JA, Ex. 85, p. 292). The arbitrator found that neither assumption was supported by record evidence, and further, that PRTC's proposal was not TELRIC-compliant because it was not the least-cost, most-efficient design. (Id.). Pursuant to Board policy requiring conduit drops only for new urban sub-divisions and developments and not in rural areas, the arbitrator determined that the cost figure should assume the use of conduit drops 25% of the time. (Id.). The Board affirmed the arbitrator, finding her solution to be a "reasonable compromise" that was "consistent with the Board's policy" and consistent with law and policy generally. (JA, Ex. 92, p. 21). PRTC challenges the Board's decision on two related grounds. First, PRTC argues that there was simply no support in the record evidencing that the use of conduits 25% of the time was consistent with the Board's policy. (Docket No. 62, p. 52). Second, PRTC argues that applying the Board's policy to record evidence produces a figure of 84% conduit use. (Id.). I may easily dispose of PRTC's second argument. As WorldNet points out, PRTC did not present this argument or the evidence on which it is based before the arbitrator or the Board. (See JA, Ex. 85, p. 292; Ex. 92, p. 21). PRTC may not make this argument for the first time before this court. See, e.g., MCI Telecomms. Corp., 279 F.Supp.2d at 954 ("[u]nder the provisions set forth in the Act for judicial review, it is most inappropriate for a district court to review matters which have not been fully presented to the [state board]"). 205 As for PRTC's more fundamental argument that there was simply no support for the arbitrator's particular solution, this argument is insufficient to require this court to overturn the Board's decision. As noted, the Board may overturn the arbitrator's result only if it is inconsistent with law or policy. See WorldNet II, 497 F.3d at 14 ("an arbitrated agreement . . . must be accepted by the Board if consistent with section 251 and 252(d), unless the local agency reasonably finds that the arbitrator's solution conflicts with state statutes, agency rules, or considered policy determinations.. . .") (internal citation omitted). Moreover, under Puerto Rico rules, the arbitrator is not required to select from among the parties' proposals, but may craft another solution that is consistent with the Act. See note 11, supra. Here, PRTC does not argue that the arbitrated solution is inconsistent with TELRIC principles, any other legal standard, or any relevant policies. I find that the decision of the Board and arbitrator was not arbitrary and capricious in that it sought a compromise between the parties' positions that would be consistent with TELRIC standards and consistent with Puerto Rico policy, and I defer to the Board's decision that the decision was accordingly consistent with those standards, its own policies, and the record evidence. The Board's decision on this issue is therefore affirmed. (6) Direct Fed Buildings PRTC also challenges the cost model input for the costs associated with installing its equipment in "direct fed buildings." (Docket No. 62, p. 52). This term refers to buildings in which the cables from the network go directly into the end-user's building and must be connected to PRTC equipment inside the building. (Id.). The arbitrator found that although there was evidence that PRTC's practice was to always terminate its connection at the customer's premises with PRTC-owned equipment, or "terminals", there was no evidence that this practice was consistent with the TELRIC least-cost, most-efficient design practice. (JA, Ex. 85, p. 292). The arbitrator found that WorldNet's proposed 15% reduction to PRTC's figure was a "reasonable estimate" of the appropriate frequency of the use of PRTC termination equipment that would be TELRIC compliant. (Id., p. 292-93). The Board affirmed the arbitrator's decision over PRTC's objection that WorldNet's proposed 15% reduction did not include any support in the record. (JA, Ex. 92, p. 22). The Board found that while it was undisputed that PRTC's current practice was to terminate 100% of its cables in PRTC-owned terminals, there was not sufficient support showing that this practice was consistent with forward-looking cost principles. (Id.). The Board found the arbitrator's decision reasonable and consistent with law and policy, and affirmed. (Id.). PRTC argues here that there was no support in the record for the arbitrator's determination that terminating all cables in PRTC-owned terminals was inconsistent with forward-looking cost principles, and no support for her determination that a 15% reduction was consistent with TELRIC principles, noting that the arbitrator's decision did not include any record or legal citations. (Docket No. 62, p. 53). Nonetheless, PRTC's argument once again challenges the arbitrator's process, and does not contend that the ultimate solution she crafted violated any law or policy. See WorldNet II, 497 F.3d at 14 (when the Board delegates its authority to an arbitrator, "an arbitrated agreement.. . must be accepted by the Board if consistent with section 251 and 252(d), unless the local agency reasonably finds that the arbitrator's solution conflicts with state statutes, agency rules, or considered 206 policy determinations . . . .") (emphasis added) (original emphasis omitted; internal quotation omitted). Here, PRTC did not suggest that the arbitrated "solution" violated the Act or any other law or policy, and thus the Board correctly adopted that determination and its decision is affirmed. (7) Structure Sharing PRTC also challenges the Board's decision on the issue of structure sharing. "Structure sharing" refers to how much of the cost of installing poles, digging trenches, and placing conduit would be shared on a forward looking basis by the incumbent carrier with other entities, such as power companies, cable operators, and other telecommunications carriers. Rules Regarding the Pricing of Unbundled Network Elements, 18 FCC Rcd. 18945, 18970, ¶ 71 (2003) (notice of proposed rulemaking) ("UNE NPRM"). The more sharing that is assumed, the lower the cost to the incumbent carrier, and thus the lower the cost that is reflected in interconnection agreements with competitive carriers. Id. at 18970-71, ¶ 71. Here, the arbitrator rejected PRTC's proposed term reflecting no sharing of buried and underground structures, instead holding that TELRIC principles require an assumption of at least some sharing and, accordingly, adopted WorldNet's proposal. (JA, Ex. 85, p. 287). PRTC argued before the Board that the arbitrator had disregarded PRTC's evidence that it had been unable to share these structures, but the Board found that the arbitrator had considered these facts and "weighed this evidence appropriately." (JA, Ex. 92, p. 18). Moreover, the Board agreed that PRTC's claim that it "will never share copper structure because it has been unable to coordinate with other utilities in the past does not reflect forward-looking principles." (Id.). Accordingly, the Board affirmed the arbitrator's decision. (Id.). PRTC now challenges the Board's decision on the ground that the Board erred as a matter of law in finding that PRTC's non-sharing proposal did not reflect TELRIC principles. (Docket No. 62, p. 55). The Board relied on the FCC's decision in Verizon Virginia, adopting WorldNet's proposed sharing assumptions both because they "appear reasonable" and because they are the same assumptions used by the FCC in Verizon Virginia. (JA, Ex. 85, p. 287-88 (citing JA, Ex. 51, p. 35; Verizon Virginia, 18 FCC Rcd. at 17834, ¶ 288)). However, a close reading of Verizon Virginia cautions that the FCC's determinations may not be applicable here because the FCC's decision was heavily dependent on the specific facts before it, and also because it was a product of the FCC's "baseball arbitration" practice of adopting the final proposal of one side or the other, not crafting a decision that the agency found to best implement the law and policy. See 18 FCC Rcd. at 17833, ¶ 287 (noting that both parties' proposals are "unsupported by actual documentation" but the agency is "left to choose" between them). Most helpful to figuring out the law on this issue is the FCC order on which Verizon Virginia relied, Federal-State Joint Board on Universal Service, 14 FCC Rcd. 20156, 20262, ¶¶ 245-247 (1999) ("Inputs Order").[14] In the Inputs Order, the FCC 207 found that "a forward-looking mechanism must estimate the structure sharing opportunities available to a carrier operating in the most-efficient manner." Id., ¶ 247. Accordingly, "the forward-looking practice of a carrier does not necessarily equate to the historical practice of the carrier" and as a result, even if the commission "had accurate and verifiable data with respect to the incumbent LEC's existing structure sharing percentages, we would still need to decide whether or not those existing percentages were appropriate starting points for determining the input values for the forward-looking cost model." Id., ¶¶ 245, 247. Accordingly, the FCC adopted universal percentages ranging from 55-100% (reflecting the ILEC sharing 0-45% of underground costs with other carriers). Verizon Virginia, 18 FCC Rcd. at 17833-34, ¶ 288 (citing Inputs Order, 14 FCC Rcd. at 20262, ¶¶ 243-248). Thus, the Inputs Order provides examples of structure sharing percentages that the FCC found "reasonable". Inputs Order, 14 FCC Rcd. at 20263, ¶ 249. However, these percentages are not requirements. Verizon Virginia shows that the FCC would have preferred to rely on record evidence but because both parties put forth proposals "unsupported by actual documentation," the FCC relied on the Inputs Order as "the only independent evidence of forward-looking structure sharing values available to us to evaluate the parties' . . . proposals." 18 FCC Rcd. at 17833, ¶ 287. In short, the FCC would have preferred to rely on "actual documentation" from the parties, but turned to the Inputs Order in the absence of such evidence. Taken together, these FCC orders demonstrate that: (1) structure sharing assumptions should be forward looking; (2) forward looking assumptions may differ from historical practice; and (3) the state board should consider the record evidence before it, and such evidence may show that even in a forward-looking model, structure sharing is not possible in some cases. Inputs Order, 14 FCC Rcd. at 20262, ¶ 247. See also Verizon Virginia, ¶ 288. The question is whether the Board properly applied this legal framework to the facts before it. First, the arbitrator appeared to assume that the forward-looking TELRIC principles require an arrangement that includes structure sharing, and preclude a result that does not include sharing. (JA, Ex. 85, p. 288 ("PRTC's claim that it will never share underground and buried facility does not reflect the views of the FCC regarding TELRIC principles.")). The arbitrator does not appear to have considered the evidence of PRTC's historic inability to create sharing arrangements and accordingly determined whether or not that historic evidence would lead to a similar inability in the future. The Inputs Order requires the Board to make just such a determination: "we would still need to decide whether or not those existing percentages were appropriate starting points for determining the input values for the forward-looking cost model." 14 FCC Rcd. at 20262, ¶ 245 (emphasis added). In other words, the FCC allows that those historic percentages may be accurate starting points, while the arbitrator appears to have ruled out this possibility entirely. While the Board asserts that the arbitrator considered PRTC's evidence and "weighed [it] appropriately," it is unclear from reading the arbitrator's or the Board's decision that this assertion is accurate. 208 More to the point, the Board proceeds to assert that PRTC's claim that it has been unable to create sharing arrangements "does not reflect forward-looking principles." (JA, Ex. 92, p. 18). These assertions by the arbitrator and Board appear to dismiss the possibility that a practical inability to create sharing arrangements in the future could be consistent with TELRIC principles. This conclusion is not supported by FCC precedent. Instead, the Board should consider whether in the Puerto Rico context, future structure sharing is possible, allowing for the possibility that even in a forward-looking model, sharing may not be possible. The Board may determine that based on the facts before it, PRTC's existing sharing percentages are not appropriate starting points, but it must allow for the possibility that they are appropriate. See 14 FCC Rcd. at 20262, ¶ 245 ("we would still need to decide whether or not those existing percentages were appropriate starting points"). Therefore, I conclude that this issue must be remanded to the Board for further consideration consistent with this opinion. (8) Cable Sizes PRTC challenges the Board's determination of the cost figure based on "cable size." The cable size figure determines the total quantity of cables in a forward-looking, efficient, least-cost network. The arbitrator found that PRTC's proposal "overstates smaller cable sizes" and that PRTC did not adequately explain how it derived its proposed figures. (JA, Ex. 85, p. 290). Finding that PRTC had failed to sufficiently dispute WorldNet's proposal, the arbitrator adopted WorldNet's proposed cable size figures. (Id.). PRTC challenged this determination, arguing that the arbitrator's result did not produce a sufficient amount of cable for the network. (JA, Ex. 105, p. 5). Affirming the arbitrator, the Board determined that PRTC's proposal could not be used "consistently with the requirements of the Act." (Id., p. 6). In particular, the Board found that assumptions in PRTC's proposed model were "not realistic" and not supported by sufficient evidence.[15] (Id., p. 7). The Board noted that "PRTC's only defense of its assumption is that it produces a total cable requirement that is lower than what is on the books." (Id.). The Board stated it was "forced to choose between robust inputs and reasonable outputs," and accordingly chose the "better forward-looking inputs" because "only by focusing on the inputs can we be assured that our actions are consistent with the Act and FCC rules." (Id.). PRTC now contends that this choice was an error of law, arguing that the law requires the Board to focus on the results, not the methodology, of the arbitrator's rate setting. (Docket No. 62, p. 56). In support of its proposition, PRTC cites Federal Power Commission v. Hope Natural Gas Co. for its holding that when Federal Power Commission ("FPC") rate-making is challenged in federal court, "[u]nder the statutory standard of `just and reasonable' it is the result reached not the method employed which is controlling." 320 U.S. 591, 602, 64 S. Ct. 281, 88 L. Ed. 333 (1944). That analysis, as suggested by the text, was based on the statutory requirement of the Natural Gas Act of 1938 that all gas rates set by the FPC "shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful." Id., 320 U.S. at 600, 64 S. Ct. 281 (citing 15 U.S.C. § 717). In the context of the Telecommunications 209 Act of 1996, however, a "just and reasonable" rate has been defined quite differently from its definition in Hope Natural Gas. The 1996 Telecommunications Act provided that a state board's determination of a "just and reasonable" rate shall be "based on the cost (determined without reference to a rate-of-return or other rate-based proceeding) of providing the interconnection or network element." 47 U.S.C. § 252(d)(1). As the Supreme Court has explained, the FCC, in its discretion, "chose a way of treating `cost' as `forward-looking economic cost,' something distinct from the kind of historically based cost generally relied upon in valuing a rate base after Hope Natural Gas." Verizon Commc'ns, Inc., 535 U.S. at 495, 122 S. Ct. 1646 (citing 47 CFR § 51.505). Thus, the rate-setting requirements of the 1996 Telecommunications Act are defined in contrast to those of the 1938 Natural Gas Act, making Hope Natural Gas a problematic source of support. Bearing that distinction in mind, the Board's decision here to ensure that the inputs for the rate-setting algorithm were properly forward-looking in compliance with federal regulations appears eminently reasonable and consistent with law. (See JA, Ex. 105, p. 8 (choosing to focus on "forward-looking inputs" in order to "be assured that our actions are consistent with the Act and FCC rules")). Nevertheless, the Supreme Court has emphasized that certain principles of Hope Natural Gas have lasting value. Duquesne Light Co. v. Barasch, 488 U.S. 299, 310, 109 S. Ct. 609, 102 L. Ed. 2d 646 (1989). In particular, the Supreme Court has "reaffirm[ed] these teachings of Hope Natural Gas: [I]t is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unreasonable, judicial inquiry . . . is at an end. The fact that the method employed to reach that result may contain infirmities is not then important." Id. (citing Hope Natural Gas, 320 U.S. at 602, 64 S. Ct. 281). See also Verizon Commc'ns, Inc., 535 U.S. at 525, 122 S. Ct. 1646 ("[t]he fact that the method employed to reach [just and reasonable rates] may contain infirmities is not . . . important . . . the general rule is that any question about the constitutionality of rate setting is raised by rates, not methods"). However, the Court's emphasis on focusing on the rates rather than the methods is directed at federal courts, not, as PRTC contends, to administrative agencies themselves. Indeed, the very purpose for this focus is that an agency order "is the product of expert judgment which carries a presumption of validity," and therefore, a plaintiff challenging the rate-setting order "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences." Hope Natural Gas, 320 U.S. at 602, 64 S. Ct. 281. This "presumption of validity" is the predecessor to the more modern Chevron deference that courts grant agencies in the interpretations of their own statutes. See Verizon Commc'ns, Inc., 535 U.S. at 541-42, 122 S. Ct. 1646 (Breyer, J., dissenting) ("[a]s a reviewing court, . . . we must assume that Congress intended to grant the [FCC] broad legal leeway in respect to the substantive content of the rules, particularly since the subject matter is a highly technical one, namely rate making, where the agency possesses expert knowledge" (citing Hope Natural Gas, 320 U.S. at 602, 64 S. Ct. 281; Chevron, U.S.A., Inc., 467 U.S. at 842, 104 S. Ct. 2778)). To that end, the reason that federal courts must focus on final rates rather than rate-setting methodologies is because "it was the very point of Hope Natural Gas that regulatory bodies required to set rates expressed in these terms [i.e., `just and reasonable'] have ample discretion to choose methodology." 210 Verizon Commc'ns, Inc., 535 U.S. at 500, 122 S. Ct. 1646 (citing Hope Natural Gas, 320 U.S. at 602, 64 S. Ct. 281). The cases cited by PRTC make clear that this court must focus on the Board's result, not the Board's process. However, a closer look at PRTC's arguments reveals that its only argument about the Board's result is a challenge to the reasonableness and evidentiary support for the arbitrated solution. (See Docket No. 62, p. 57-59 ("[t]he end result . . . [is] incapable of serving the customers currently using the PRTC network"; the Board's methodology "produced an unreasonably small amount of cable"; the arbitrator's solution "produced a network with insufficient cable to connect and serve all current customers on the island of Puerto Rico")). Likewise, PRTC's challenge to the arbitrator's decision in its motion for reconsideration by the Board equally focused on the weighing of evidence and other discretionary factors in her decision and did not include a challenge to the result of her rate-setting. PRTC challenged the arbitrator's decision on the basis that (1) PRTC's assumption was consistent with evidence as to PRTC's actual network; (2) the results of World-Net's methodology produced a cable amount "plainly inadequate"; (3) further errors in WorldNet's methodology result in an "overstatement in the number of large cables"; and (4) PRTC's assumption "reasonably approximates a typical network." (JA, Ex. 105, p. 5). In its second motion for reconsideration, PRTC argued that (1) the Board should have relied on the Metro Loop Length Study in addition to the Isla Loop Length study; (2) the Board wrongly believed that PRTC used 4, 5, and 6 route directions in areas that serve less than 20 lines; (3) the Board's finding "completely ignores Puerto Rico's high population density"; and (4) it is "plainly unreasonable" not to consider the outcome of rejecting PRTC's assumption when "the effect is an aggregate length figure significantly lower than the figure in the current network and insufficient to serve the entire island of Puerto Rico" and therefore "produce[s] unreasonable and arbitrary results." (JA, Ex. 113, p. 13-14). These arguments do not ask the Board to find that "the arbitrator's solution conflicts with state statutes, agency rules, or considered policy determinations", but rather challenge the arbitrator's solution with regard to weighing of evidence. WorldNet II, 497 F.3d at 14. As repeated throughout this decision, the Board is required to focus on the arbitrator's result, not the arbitrator's process. See WorldNet II, 497 F.3d at 14 (when the Board delegates its authority to an arbitrator, "an arbitrated agreement.. . must be accepted by the Board if consistent with section 251 and 252(d), unless the local agency reasonably finds that the arbitrator's solution conflicts with state statutes, agency rules, or considered policy determinations. . . .") (emphasis added) (original emphasis omitted; internal quotation omitted). PRTC did not challenge the arbitrator's decision on any of these enumerated grounds, and the Board found it consistent with law and policy. Therefore, the Board was correct in affirming the arbitrator's solution over PRTC's challenges. PRTC's challenges here do not allow this court to engage in a de novo review of the law, as PRTC urges, because PRTC's challenges focus on the weighing of evidence and other matters entrusted to the Board and arbitrator. For the reasons expressed by the Supreme Court in Hope Natural Gas and, more recently, in Verizon Communications, Inc., this court must focus on legal challenges to the Board's results, not to its methodology. PRTC has not attacked the Board's results as a matter of law or abuse of discretion, and 211 therefore the court affirms the Board's determination as to cable sizes. See Hope Natural Gas, 320 U.S. at 602, 64 S. Ct. 281 ("If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end."). (9) Fiber Structure Costs (a) Trenching and Excavation PRTC also challenges the Board's decision on fiber structure costs as it relates to the use of trenching and excavation for fiber placement.[16] (Docket No. 62, p. 60). In determining this element, the Board considered PRTC's proposal to rely on excavation for fiber placement one hundred percent of the time, and WorldNet's proposal to rely on trenching one hundred percent of the time. (JA, Ex. 105, p. 11). The Board heard evidence that trenching is less costly than excavation, but excavation is safer, can be used in different soil types, and can dig a wider trench. (JA, Ex. 113, p. 6, n. 11). The Board also heard evidence that other carriers use a mixture of the two methods, that PRTC has historically used trenching as a method in its network construction, and that both are accepted methods with upsides and downsides depending on the circumstances, (JA, Ex. 113, p. 6, n. 13). Based on this evidence, the Board found that "neither [party's] extreme position is correct." (JA, Ex. 105, p. 11). Rather, in a forward-looking, least cost, most-efficient network, some mixture of trenching and excavation should be used. (Id.). Since the Board had no evidence before it of the precise balance between the two methods in the TELRIC-compliant network, the Board "appl[ied] Solomonic judgment to the issue" and simply split the two proposals, ordering a cost figure based on the use of each trenching and excavation fifty percent of the time. (Id.). PRTC contends that this result is arbitrary and capricious because there is no support in the record for the proposition that PRTC currently uses, or should use in a forward-looking network, trenching fifty percent of the time. (Docket No. 62, p. 61). However, this is not an accurate characterization of the Board's decision. As described above, the Board's decision was based on various sources of evidence showing that there are "upsides and downsides" to both methods as to cost, safety, and usefulness, that other carriers use a mix of the two methods, and that PRTC has previously included trenching in its network construction. (JA, Ex. 113, p. 6). The Board supported each of these propositions with citations to record evidence. (Id., n. 11, n. 12, n. 13). In short, the Board found that there was no evidence supporting either party's proposition that one method or the other should be used one hundred percent of the time, but there was also no evidence demonstrating the proper, precise ratio that should be used in a forward-looking network. (JA, Ex. 105, p. 11). Therefore, the Board exercised its judgment and discretion to determine a value for this figure, and in the absence of any proposals supported by the record, simply split the difference between the parties' diametrically-opposed "extreme positions". (Id.). This decision was reasonable and supported by record evidence, and thus was neither arbitrary nor capricious. Therefore, the Board's decision on this issue is affirmed. (b) Paving In the Ninth Cause of Action in its amended complaint, WorldNet challenged 212 another aspect of the Board's fiber structure cost determination (the "paving issue"). (Docket No. 50, p. 15). While the Board moved for summary judgment on the paving issue (Docket No. 60, p. 60), WorldNet did not address this issue in either its own motion for summary judgment or in its opposition to the Board's motion. (Docket Nos. 62, 74). In fact, in addressing PRTC's challenge to other aspects of the fiber structure cost determination, WorldNet was silent about its own challenge and instead asserted that the "Board made no reversible error in establishing the input for fiber structure." (Docket No. 74, p. 55). Therefore, the court deems WorldNet to have waived its Ninth Cause of Action and grants summary judgment for the Board affirming its decision on the paving issue. (10) Non-Recurring Charges (a) Fall-Out Percentage The arbitrated leasing rates include both recurring charges for WorldNet's use of PRTC's network elements over an extended time period as well as non-recurring charges for one-time activities performed by PRTC for WorldNet associated with ordering a service and provisioning that service. (Docket No. 62, p. 62). See also Sprint Commc'ns. Co. v. FCC, 274 F.3d 549, 557 (D.C.Cir.2001) (defining non-recurring charges). The dispute here involves the "fall-out" percentage included in the non-recurring charges. As the D.C. Circuit explained the issue, "[e]ven with the best technology available, each stage in the automatic [service ordering] processes may fail requiring more expensive manual intervention. When this occurs, a service order is said to `fall out.'" Id. The cost of manual intervention is much higher than automatic processing. The issue here concerns the rate that WorldNet pays PRTC for non-recurring ordering and pre-ordering charges, and how the "fall-out" factor will affect that rate. The arbitrator held that PRTC would charge for service orders only in those instances when an electronic order actually falls out of the system and must be processed manually. (JA, Ex. 105, p. 20). The Board overruled the arbitrator and reconsidered the "fall-out factor" in its follow-on proceedings, where it determined that the non-recurring charge should assume a fall-out percentage of two-percent, rather than including a specific charge for each instance that an order actually falls out of the system. (JA, Ex. 113, p. 22). PRTC challenges board's non-recurring cost determination on multiple grounds. First, PRTC argues that the decision was a legal error because it violates FCC mandate in departing significantly from PRTC's actual practice. Second, PRTC contends that the Board was arbitrary and capricious in relying on WorldNet witness Steven E. Turner because he had no first-hand knowledge of PRTC's systems. Third, PRTC argues that the Board was arbitrary and capricious in requiring PRTC to provide evidence of the costs that would be necessary to upgrade its systems. Before PRTC's arguments can be addressed directly, the procedural posture of the Board's decision must be considered. This was an issue on which the Board overruled the arbitrator. As noted, the Board may overrule the arbitrator only where the Board finds the arbitrator's solution inconsistent with the Act or if the Board "reasonably finds that the arbitrator's solution conflicts with state statutes, agency rules, or considered policy determinations." WorldNet II, 497 F.3d at 14. Here, the Board overruled the arbitrator because it found that (1) the arbitrator's solution "created incentives to operate inefficiently"; and (2) in a forward-looking network, establishing a fall-out percentage "is more consistent with the Act." (JA, Ex. 213 113, p. 21). While the court would have preferred the Board's legal reasoning to be stated less equivocally, I will assume for the purposes of this analysis that the Board found the arbitrator's decision to be inconsistent with the Act. Because PRTC asks this court to consider the law de novo, the question of whether the Board properly overruled the arbitrator and whether the Board applied the correct law in its own determination require the same analysis. The Board found that TELRIC principles required it to "assume that service ordering and provisioning systems are efficiently designed, operated and maintained so as to virtually eliminate manual processing caused by system errors." (JA, Ex. 113, p. 22). Further, the Board found that applying a fall-out percentage was more consistent with TELRIC principles than "accept[ing] the limitations of the legacy PRTC system, as apparently the Arbitrator did." (Id.). PRTC contends that this decision was inconsistent with FCC directives, but a close reading of the FCC order cited by PRTC actually supports the Board's position. PRTC cited the FCC's UNE NPRM for reflecting the FCC's "concern that network assumptions that depart significantly from an incumbent LEC's existing network might preclude recovery of the cost of non-recurring activities that would be required in establishing a competitive market." 18 FCC Rcd. at 18984, ¶ 117. PRTC contends that this statement requires the Board to ensure that its "network assumptions" as to fall-out percentages do not "depart significantly" from PRTC's actual systems, and that the Board was therefore incorrect as a matter of law in applying a rate based on a hypothetical forward-looking network, rather than on PRTC's own system. (Docket No. 62, p. 63-64). However, PRTC mischaracterizes the FCC's guidance on this issue. First, the UNE NPRM was a notice of proposed rulemaking, and the FCC has not issued any resulting rules to date. However, to the extent that the UNE NPRM has any instructive value for courts, it is precisely the opposite of what PRTC asserts. In the UNE NPRM, the FCC first observed that determining non-recurring costs was a "constant source of dispute" in state proceedings. 18 FCC Rcd. at 18984, ¶ 116. The FCC explained both sides of this dispute. On one side was the view that state boards should assume a forward-looking network in calculating non-recurring costs, and on the other side was the view that commissions should use assumptions that more closely reflect the actual costs incurred in the existing network. Id. The FCC observed that its own "rules suggest" the former view, citing the requirement in 47 C.F.R. § 51.507(e) that "[n]on-recurring charges . . . shall not permit an incumbent LEC to recover more than the total forward-looking cost of providing the applicable element." Id., n. 157. Beyond this legal justification for the former view, the FCC emphasized that state boards used just such a TELRIC-based consideration in determining recurring charges and expressed its policy view that "[w]e believe that consistency among the various components of rates is important." Id., ¶ 116-17. The FCC proceeded to explain the justification for the latter view, stating, "[n]evertheless, we are sensitive to the practical concern that network assumptions that depart significantly from an incumbent LEC's existing network might preclude recovery of the cost of nonrecurring activities that would be required in establishing a competitive market." Id., ¶ 117. Finally, the FCC requested that parties address which view should be applied in the non-recurring cost context. 214 Accordingly, the UNE NPRM expresses the FCC's view that a forward-looking assumption in non-recurring costs was consistent with the FCC's rules, but an assumption based on the existing network might have "practical" benefits. Id., ¶ 117. Because the FCC has not issued any further guidance on the matter, the law as it currently stands requires a state board to apply a forward-looking assumption to non-recurring costs, consistent with the FCC's rules. See id., ¶ 116 (citing 47 C.F.R. 51.507(e)). Therefore, the Board was correct in its interpretation of the law as requiring it to overturn the arbitrator in order to apply TELRIC principles to its calculation of the non-recurring charge. PRTC also challenges the Board's admission of testimony by WorldNet's expert witness, Mr. Turner. PRTC contends that his testimony was improperly admitted because he lacks expertise concerning PRTC's operations support systems. For the purposes of this analysis, the court will assume, as PRTC urges, that certain evidentiary rules govern the admission of expert testimony in administrative proceedings. See Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir.2004) (although the Federal Rules of Evidence and Daubert do not apply in administrative proceedings, "the spirit of Daubert . . . does apply" because "`[j]unk science' has no more place in administrative proceedings than in judicial ones" (citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993))).[17] Nonetheless, it follows from the foregoing analysis that Mr. Turner was not required to be an expert on PRTC's systems because the Board was correct in establishing a rate based on a forward-looking, least cost, most efficient system rather than on PRTC's own system specifically. The Board correctly admitted Mr. Turner for the purpose of testifying about this TELRIC-compliant, forward-looking system. The Board rejected PRTC's challenge to Mr. Turner's testimony, finding instead that Mr. Turner's testimony "was based on his experience and his expertise and consisted of an extensive discussion of fall-out percentages and TELRIC principles." (JA, Ex. 113, p. 22). Further, applying the "spirit of Daubert", Niam, 354 F.3d at 660, the Board noted that "Mr. Turner is a frequent witness on these and similar matters before state regulatory commissions" and that the Board "found his discussion of the benefits of a low fall-out percentage to be compelling." (Id.). See also Fed.R.Evid. 702 (testimony of witness "qualified as an expert by knowledge, skill, experience, training, or education," may be admitted where it "will assist the trier of fact to understand the evidence or to determine a fact in issue"). Thus, the Board did not abuse its discretion in relying on Mr. Turner's testimony. Therefore, the court finds that PRTC's challenge to the "fall-out" percentage included in the non-recurring cost element is without merit, and the Board's decision on this issue is affirmed.[18] 215 (b) Dispatch Occurrence Frequency PRTC's complaint references a second aspect of the non-recurring cost determination: dispatch occurrence frequency. (Docket No. 51, ¶ 74-79). While the Board moved for summary judgment on both fall-out rates and dispatch occurrence frequency (Docket No. 60, p. 74), PRTC's motion and opposition to the Board's motion discuss only the issue of fall-out percentage. (Docket Nos. 62, p. 62; 75, p. 47). Therefore, the court deems PRTC to have waived any challenge to the issue of dispatch occurrence frequency and grants summary judgment for the Board, affirming its decision on the issue of dispatch occurrence frequency. (11) Rates for Local Loops PRTC includes a section in its brief challenging the Board's determination of rates for "loops". (Docket No. 62, p. 67-69). However, PRTC does not include a single citation to the decisions of the Board or arbitrator that would allow the court to locate and review the decisions that PRTC seeks to overturn, and the court is unable to locate the Board's discussion of this issue among any of the myriad Board orders included in the Joint Appendix.[19] Nevertheless, even if this issue were properly considered in this motion, PRTC's arguments are without merit. PRTC again argues that the Board, in violation of Hope Natural Gas, failed to consider PRTC's evidence that the results of its pricing analysis were "unreasonable" because the Board chose instead to focus on the methodology and inputs, rather than the final costs, of its analysis. Even assuming that this is an accurate characterization of the Board's reasoning and determinationand I have to take PRTC's word for it since they did not direct me to the portion of the Board's order they are challengingPRTC's argument would fail. As discussed previously, the Supreme Court's emphasis in Hope Natural Gas that administrative challenges should focus on results rather than methodology was a direction to federal courts reviewing administrative decisions. Administrative agencies, on the other hand, are given wide latitude in exercising their discretion to choose a proper methodology. See Verizon Commc'ns, Inc., 535 U.S. at 500, 122 S. Ct. 1646 ("it was the very point of Hope Natural Gas that regulatory bodies required to set rates . . . have ample discretion to choose methodology" (citing Hope Natural Gas, 320 U.S. at 602, 64 S. Ct. 281)). Here, the Board's methodology is precisely what PRTC challenges, arguing that its methodology was improper because it focused on inputs rather than outputs. However, this court must focus on the legality of the ultimate cost determinations, and PRTC's only challenge to them is that they are "unreasonable." The court may view the "reasonableness" of the Board's determinations only under an arbitrary and capricious standard, and nothing in PRTC's argument suggests that *216 the Board acted arbitrarily and capriciously. Therefore, for the fundamental reason that PRTC failed to provide any citation to the administrative decision it challenges, and because the substance of its argument is without merit, PRTC's challenge to the Board's decision as to local loop rates fails and Board's decision is affirmed. CONCLUSION For the reasons stated above, the court concludes as follows: As to the following issues, the Board's decision is AFFIRMED: a. Liquidated damages; b. Performance standards; c. Mixed bundles; d. OSS access (download, upload, and batches OSS access); e. OSS access (access to OSS systems interfaces); f. Transit traffic rates; g. Depreciation inputs; h. Cost of capital; i. Maintenance and operations factors; j. Buried drop costs; k. Direct fed buildings; l. Cable sizes; m. Fiber structure costs (trenching versus excavation); n. Fiber structure costs (paving); o. Non-recurring rates (fall-out rates); p. Non-recurring rates (dispatch occurrence frequency); and q. Rates for local loops. As to the following issues, the Board's decision is VACATED and the arbitrator's decision is reinstated: a. Collocation construction schedule; b. NID and block terminal costs; c. Circuit demand; and d. Value of land. As to the following issues, the Board's decision is VACATED and the matter is REMANDED for further proceedings consistent with this opinion: a. Transit traffic; b. Collocation construction; c. Collocation price quotation response; and d. Structure sharing. IT IS SO ORDERED. NOTES [1] References to the Joint Appendix, filed under seal with the court, are denoted as (JA, Ex____, p.). The page numbers refer to the pages of the PDF files, which may differ from the numbering of the underlying documents contained therein. [2] See Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 67 (1st Cir.2008) (where a party relies on a Spanish-language decision of the Puerto Rico courts, "the party must provide the district court with and put into the record an English translation of the decision"). [3] Pitkin also testified that he continually made changes within the draft document itself, without maintaining earlier drafts. PRTC does not challenge this practice, referencing only the "shredding" of paper documents. (Docket No. 62, p. 25). [4] WorldNet sought to have both the arbitrator's and Board's decisions invalidated and a permanent term not subject to the rulemaking determination inserted; PRTC and the Board defended the Board's decision. [5] The First Local Competition Order was the subject of a series of back-and-forth decisions between the Supreme Court and the Eighth Circuit, which served as the consolidation forum for all challenges to the FCC rules. These cases addressed the FCC's authority to establish pricing methodology and other requirements under the Act and the merits of that methodology. See Verizon Communs., Inc. v. FCC, 535 U.S. 467, 494, 122 S. Ct. 1646, 152 L. Ed. 2d 701 (2002) (describing procedural history). While those cases resulted in vacating certain sections of the First Local Competition Order, the mixed bundles analysis described above remained intact throughout this process. See Iowa Utils. Bd. v. FCC, 120 F.3d 753, 819, n. 39 (8th Cir. 1997) (listing rules and provisions initially vacated). [6] This arrangement stands in contrast to the virtual collocation arrangement in which "the incumbent is responsible for installing, maintaining, and repairing equipment designated by the competing provider." Id. [7] Deployment of Wireline Services makes oblique reference to the collocation price quotation process, but makes no explicit reference to the impact of pricing disputes on the timeline it sets forth. 15 FCC Rcd. at 17821, ¶ 25 (an ILEC "can streamline its design, planning, and price quotation processes by developing standardized rates, terms, and conditions..."). In any event, WorldNet does not cite or analyze this Order or any other rules or regulations on this issue. [8] In contrast, WorldNet suggest that, under its proposal, "PRTC can still be made whole through interest and true-ups if the charges are ultimately deemed proper...." (Docket No. 64-2, p. 35). However, none of the parties suggest that a true-up remedy along these lines would be available to WorldNet under the Board's solution. [9] The Supreme Court has upheld the FCC's selection of TELRIC methodology for pricing network elements under the Act. Verizon Commc'ns, Inc. v. FCC, 535 U.S. 467, 523, 122 S. Ct. 1646, 152 L. Ed. 2d 701 (2002). [10] In Verizon Virginia and Petition of WorldCom I, 17 FCC Rcd. 27039, the FCC Wireline Competition Bureau ("WCB") arbitrated the terms and conditions of the interconnection agreements between Verizon Virginia and various competitive carriers. The Virginia state board declined to arbitrate the terms and conditions of the agreements under federal standards, as required by section 252(c) of the Act, asserting that it could not do so without potentially waiving its Eleventh Amendment sovereign immunity. Thus, upon petition, the FCC assumed jurisdiction pursuant to section 252(e)(5) of the Act, and delegated to the WCB the duty of resolving the requests for arbitration. Petition of WorldCom I, 17 FCC Rcd. at 27044-45, ¶ 6. The WCB "advises and makes recommendations to the [FCC], or acts for the [FCC] under delegated authority, in all matters pertaining to the regulation and licensing of communications common carriers and ancillary operations." 47 CFR 0.91. "As such, it has unique expertise in the area of interpreting rules promulgated by the FCC." Ind. Bell Tel. Co. v. McCarty, 362 F.3d 378, 386 (7th Cir.2004). [11] As the Board argues, "Nothing in the law compels the Board to accept PRTC's rates; the law requires only that the adopted rates are TELRIC-compliant." Indeed, the rules governing the Board's conduct of an arbitration stand in contrast to the FCC's arbitration procedures, which require "final offer" or "baseball arbitration" and allow the arbitrator to select a result different from that proposed in the parties' final offers only when one such offer fails to comply with the requirements of the Act or in the "unique circumstances" that a different solution would better implement the objectives of the Act. 47 CFR 51.807; Verizon Virginia, 18 FCC Rcd. at 17736, ¶ 24. Cf. 27 L.P.R.A. § 269d (b)(4)(C) (stating simply that "[t]he Board shall resolve each issue set forth in the petition and the response thereto ... by imposing appropriate conditions as required to implement subsection (c) of this section [e.g., comply with the (federal) Telecommunications Act]"). [12] The beta value in WorldNet's proposal is not specified in the administrative decisions or the parties' briefs. [13] "Conduit" refers to a pipe, generally made of metal, that runs along a floor or ceiling to protect the cables and prevent a burning cable from spreading through a building. Ill. Cent. Mgmt. Servs. Div. of Telecomms., Glossary of Telecomms. Terms, http://www.state.il. us/cms/Telecom/Products/gloss.pdf. [14] PRTC contends that there is no settled law emanating from the FCC on structure sharing, noting that the FCC has not issued any rules on the issue subsequent to its notice of proposed rulemaking in which the FCC requested suggestions on how it could provide guidance on the "difficult" issue of structure sharing. UNE NPRM, 18 FCC Rcd. at 18971, ¶ 71. However, my review of the Inputs Order and Verizon Virginia has convinced me that there is indeed law on the issue which is binding on the Board and to which this court defers as it is the result of the FCC interpreting its own statute, even if that law is subject to change if and when the FCC issues rules on the issue. [15] The assumption at issue was part of the "tapering algorithm" and assumed that "all lines are eventually served by a 50 pair cable." (Id.). [16] As best as the court is able to determine from its review of the administrative record and briefs on this motion, the arbitrator did not render a decision on the specific issue of trenching and excavation. [17] Daubert, as codified in Federal Rule of Evidence 702, requires a district court, prior to admitting expert testimony based on "scientific, technical, or other specialized knowledge" to determine whether "(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. [18] PRTC also complains that the Board "criticized" PRTC for failing to provide certain evidence. First, it is unclear to the court that this issue was integral to the Board's decision. Thus, even if the court were to find that the Board was indeed arbitrary and capricious in "criticiz[ing]" PRTC for failing to provide the evidence, it is unclear that such a finding would require the court to overturn the Board's decision. Moreover, PRTC's three sentences on this matter do not satisfy its burden of sufficiently developing its claims. See Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 295 F.3d 59, 67 (1st Cir.2002) ("[a] party advancing a legal claim must make a respectable effort to argue it, supplying pertinent authorities or accounting for their lack. At least where the proposition is open to doubt, it is not enough to assert it and hope the court will do the research") (internal citation omitted). [19] The court has not identified any discussion of this issue (as best as the court can make sense of the issue based on the discussion in the parties' briefs) in the portion of the arbitrator's report devoted to "Individual UNE Pricing Issues." (JA, Ex. 85, p. 283-209). Moreover, the issue is not mentioned or cited directly in PRTC's complaint.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540159/	720 F. Supp. 2d 817 (2010) George SAIEG, Plaintiff, v. CITY OF DEARBORN and Chief of Police Ronald Haddad, Defendants. No. 09-CV-12321. United States District Court, E.D. Michigan, Southern Division. June 7, 2010. 820 Robert J. Muise, Ann Arbor, MI, William J. Becker, The Becker Law Firm, Los Angeles, CA, for Plaintiff. Laurie M. Ellerbrake, Matthew J. Zalewski, Dearborn City Legal Department, Dearborn, MI, for Defendants. OPINION AND ORDER (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, (2) DENYING PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF, and (3) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PAUL D. BORMAN, J. I. INTRODUCTION This case is brought under the First and Fourteenth Amendments to the United States Constitution. Plaintiff George Saieg is the founder and former director of Arab Christian Perspective ("ACP"), a national ministry established for the purpose of proclaiming the Gospel of Jesus Christ to Muslims.[1] Defendants are the City of Dearborn ("Dearborn" or "the City") and its Police Chief, Ronald Haddad (collectively, "Defendants").[2] Plaintiff seeks a declaration that his free speech rights were abridged when Defendants restricted the ability of Plaintiff and his associates to distribute religious literature while walking around last year's annual Arab International Festival (the "Festival"), which is an outdoor event organized by a private organization and held every summer in Dearborn, Michigan. Plaintiff also seeks injunctive relief preventing Defendants from imposing the same restrictions on his speech at this year's Festival, which is scheduled for June 18-20, 2010. Finally, Plaintiff seeks his reasonable attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988.[3] Plaintiff does not seek monetary damages. 821 Plaintiff filed his Motion for Summary Judgment and Request for Injunctive Relief on March 15, 2010. Defendants filed their Motion for Summary Judgment on April 9, 2010. After the parties completed their briefing, but before oral argument, the Court issued an order requiring Defendants to "designate ... where Plaintiff's booth/table would be located at th[e] [2010 Festival]." See docket entry 55. Defendants responded, stating that Plaintiff's booth/table would be located within the "Artesian Tent," which, according to the map attached to Defendants' submission, is centrally located within the inner perimeter. See docket entry 56. That tent has night lighting. Counsel for Defendants stated at oral argument that Plaintiff would receive the tent location free of charge. These cross-motions mark a continuation of the case filed last year by Plaintiff and his then-organization, ACP, seeking to enjoin Defendants from enforcing the anti-leafleting ban against Plaintiff's, who wanted to carry out their Christian missionary activities at the Festival, which was held on June 19-21, 2009. The present action was filed on June 16, 2009. The next day, on June 17, 2009which was two days before the start of the 2009 FestivalPlaintiff filed an "Emergency Motion for Temporary Restraining Order" after learning that Defendants would not allow ACP members to distribute their religious literature on the public sidewalks within the inner and outer perimeters of the Festival. The next day, on June 18, 2009the day before the start of the 2009 Festival Presiding U.S. District Judge Nancy G. Edmunds held an evidentiary hearing on Plaintiff's emergency motion and denied injunctive relief.[4] Ruling from the bench, Judge Edmunds stated: the question is really whether the restriction imposed by the organizers of the festival and enforced by the City of Dearborn are neutral with respect to content and are justified under the restriction of timeplaces on time, method and place. And it seems to me that they clearly are. They do not distinguish among the content of what's being distributed or promulgated, they are narrowly focused, they do provide an alternative means of access. It's not the method of access that the Plaintiff's would choose if they could have their way on this, but it appears to support a legitimate government interest for crowd control and safety. Def. Ex. P., p. 36. Judge Edmunds also held that the United States Supreme Court's decision in Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), and the Sixth Circuit's decision in Spingola v. Village of Granville, 39 Fed.Appx. 978 (6th Cir.2002) (unpublished), both cases upon which Defendants heavily rely, control here, precluding the relief sought by Plaintiff. Plaintiff filed an Amended Complaint on July 7, 2009. The Amended Complaint contains four counts. The first count alleges a violation of Plaintiff's First Amendment right to freedom of speech. The second count alleges a violation of Plaintiff's First Amendment right to association. The third count alleges a violation of Plaintiff's First Amendment right to freely exercise his religion. Finally, the fourth count alleges a violation of Plaintiff's Fourteenth Amendment right to equal protection. Although not the subject of an independent count in the Amended Complaint, Plaintiff also alleges municipal liability under 42 U.S.C. § 1983. 822 Now before the Court is Plaintiff's Request for Injunctive Relief and the parties' cross-motions for summary judgment. The matters have been fully briefed and the Court heard oral argument on May 21, 2010. For the reasons that follow, Defendants' Motion for Summary Judgment will be granted: Plaintiff's Request for Injunctive Relief and Motion for Summary Judgment will be denied. II. BACKGROUND A. Plaintiff, a Christian pastor with "a deeply-held religious conviction to evangelize non-Christians" and convert them to the Christian faith, is the founder and former director of ACP, a national ministry established for the purpose of proclaiming the Gospel of Jesus Christ to Muslims.[5] Saieg Aff. ¶¶ 1, 3; Saieg Dep. at 15-16. As stated by Plaintiff, [a]s part of my Christian outreach efforts, I travel around the country with fellow Christians attending and distributing Christian literature at various festivals and mosques to exercise my religion and to follow my religious duty ... Saieg Aff. ¶ 4. Plaintiff's religious materials, which are distributed free of charge to willing recipients, "do not contain solicitations" or "commercial speech"only "religious messages." Id. ¶ 5. B. The Festival is organized and operated by the American Arab Chamber of Commerce ("AACC"), a private organization. Beydoun Dep. at 14. The purpose of the Festival is to "bring as many Metro Detroiters to the East Dearborn area," "promote the Warren Avenue Business District," and "build bridges from the Warren Avenue community to the Greater Metro Detroit area." Def. Ex. E, p. 3. Festival events include a carnival, main stage with live performers, children's tent, vendor and artisan tents, sidewalk sales, and multi-cultural food and entertainment. Id. at p. 1; Def. Ex. D (flyer and program). Fay Beydoun is the current Executive Director of the AACC, a position that she has held since 2009. Beydoun Dep. at 11-12. As Executive Director of the AACC, Beydoun was the chief organizer of the 2009 Festival; she will also organize this year's Festival. Plaintiff has not sued the AACC. The Festival is held in an area that envelops public streets and sidewalks in Dearborn. See Def. Ex. F(map). Thus, street closures by the City are necessary to facilitate the Festival. See Def. Ex. E (memo from the AACC to the Dearborn City Council listing street closure requests); Def. Ex. M (Dearborn City Council resolution approving the closure of streets); Def. Ex. I (memo regarding placement of barricades on roads). "Core" Festival activitiesincluding the main stage, the carnival, the children's tent, and the vendor and artesian tents take place within what the parties call the "inner perimeter," which is defined by the following boundaries: western and eastern boundaries at Hartwell Street and Kingsley Street, respectively; northern and southern boundaries at the front of the businesses located on Warren Avenue, encompassing the sidewalks on Warren Avenue. To the extent that core Festival 823 activities occur on Miller Road, the northern and southern boundaries extend one block beyond the Warren Avenue businesses. See Def. Ex. M (Dearborn City Council resolution listing Festival boundaries). See also Beydoun Dep. at 41-42 (discussing Festival boundaries). "Ancillary" activities take place in what the parties call the "outer perimeter," which is defined by the following boundaries: western and eastern boundaries at Schaefer Road and Wyoming Avenue, respectively; northern and southern boundaries at Morrow Circle and Blesser Avenue, respectively. Defendants concede in their brief that "the outer perimeter [does] not include activities such as carnival rides or vendor booths," but rather "provid[es] a safe, controllable buffer between the bulk of the Festival activities and the outside world." Def. Br. at 4-5.[6] Also within the outer perimeter is parking for both Festival-related and non-Festival-related traffic: [parking in the outer perimeter] was for people that were going to the businesses [on or around Warren Avenue], not just [for people] coming to attend the festival, and it was also for some [Festival] vendors. Beydoun Dep. at 43-44. A map of the inner perimeter is attached as Exhibit D to Defendants' motion. The main stage is located on the western edge of the inner perimeter; the carnival is located on the eastern edge of the inner perimeter. A series of tents line the space in betweenfrom west to east along Warren Avenue: food booths, sponsor booths, children's tent, and artisan tent containing forty booths. See Def. Ex. D. In total, the 2009 Festival featured fourteen food vending areas, seventeen sponsor areas, forty artisan booths, and twenty-five information tables, for a total of ninety-six booths or tables throughout the inner perimeter. See id. Beydoun anticipates that the inner perimeter will be expanded at the upcoming 2010 Festival to accommodate additional sponsors and vendors. Beydoun Dep. at 54-55. The Festival attracts hundreds of thousands of people. Def. Ex. G (Dearborn Press & Guide article). More than 250,000 were expected to attend the 2009 Festival. Id. C. The Festival is organized by the AACC, not by the City. However, as Defendants acknowledge in their brief, any large-scale event that occurs within the City of Dearborn inevitably requires City services. For example, the [AACC] cannot close the streets and sidewalks without the City's permission. (Exhibit E.) Police support is needed for crowd control, to maintain a perimeter around the event, and to ensure public safety. (Transcript of deposition of Ronald Haddad, p. 15, 18, attached as Exhibit K. [Hereinafter "Haddad dep."]) To facilitate this support, the Dearborn Police Department set up a command post within the Festival boundaries. (Haddad dep., p. 52.) Additionally, the City is responsible for maintaining the cleanliness of the streets and sidewalks. Def. Br. at 5. Moreover, [t]o ensure orderly planning, the City sends representatives to meetings of the Festival committee. Five meetings took place for the 2009 Festival. (Mrowka dep., p. 8.) City participants included Sgt. Jeffrey Mrowka and Deputy Recreation 824 Director Eric Peterson. (Mrowka dep., p. 9.) Mrowka is special events coordinator for the police department. (Mrowka dep., p. 5.) Peterson is the special events coordinator for the recreation department. Mrowka and Peterson ensure that organizations hosting events in the City obtain necessary approvals, and they identify the steps that will need to be taken to maintain the public health, safety, and welfare during the event. Id. See also Beydoun Dep. at 21 (testifying that "[t]he City provides a lot of support for the festival and ... they're the key people that would help ... facilitat[e] the festival and so forth, so [City officials] were invited to the [AACC] meetings"); id. at 40 (testifying that City police officers are physically present at the Festival to "ensure that sidewalks and traffic ... [are] ... maintained"); id. at 77 (testifying that the AACC "coordinated with the police" in attempting to control handbilling). Dearborn's Chief of Police, Ronald Haddad, and its Mayor, both participated in the 2009 Festival opening ceremony. Beydoun Dep. at 75. The City granted permission to the AACC to conduct the 2009 Festival "subject to all applicable ordinances and the rules and regulations of the Police Department." Def. Ex. M (Dearborn City Council Resolution 5-330-09). Via the same resolution, the City Council also (1) authorized the road closures sought by the AACC, (2) authorized the use of certain City-owned lots for off-site Festival parking, and (3) authorized assistance from the Dearborn Police, Fire, Public Works, Building & Safety and Recreational Departments to "insure a safe[], healthy, fun and successful event." Id. D. As noted above, the Festival grounds include the sidewalk area along Warren Avenue. Any existing business along Warren Avenue that wanted to set up a sidewalk sale on the sidewalk in front of their store was required to submit an application to the AACC and obtain an AACC-issued permit/certificate.[7] Beydoun Dep. at 31-32. Non-Warren Avenue businesses, such as food vendors, artists, and private organizations such as ACP, were also allowed to participate in the 2009 Festival. Such businesses and organizations were required to submit a timely application to the AACC and pay a fee. As explained by Beydoun: Q: Now, the tables and vendors that wanted to set up along Warren Avenue, did you have a separate process for them? A: Yes. Q: Was there a fee for individuals to set up a vending table or a tent along Warren Avenue? A: We don't allow just anybody to come and set up, and they're not allowed to decide where they want to set up. We have specific areas for specific things. 825 Q: If somebody wanted to do vending, wanted to sell food items but not be on the sidewalk but wanted to be on Warren Avenue, was there an application process that they would go through with [the AACC]? A: Yes. Q: Was there a fee associated with that? A: Yes. Beydoun Dep. at 33. The fee schedule applicable to non-Warren Avenue businesses/organizations wishing to participate in the Festival is attached as the last two pages to Defendants' Exhibit O. An organization wishing to distribute religious materials at the Festival would have to purchase an information table. Beydoun Dep. at 50. An information table costs $150 plus a $100 refundable deposit. Id. A sign costs an extra $55, if needed by the business/organization. Id. Plaintiff has never sought an information table through the AACC: "I never asked for a booth and I don't want a booth." Saieg Dep. at 105. Plaintiff wants to freely roam the public sidewalks, handing out religious literature, for the purpose of evangelizing Muslims; he does not want to distribute his materials from a fixed location. In 2009, the AACC provided Plaintiff with a booth, free of charge. This year, counsel for Defendants stated at the hearing on May 21, 2010, that the AACC would provide Plaintiff with a booth, free of charge, in the artisan tent, which is closer to the middle of the Festival than was last year's booth location next to the children's carnival. Also, unlike last year's fixed location, this booth is equipped with lighting to facilitate nighttime activity. E. The Festival rules, which are promulgated by the AACC, prohibit "solicitation ... outside designated vendor areas." Def. Ex. O, p. 3, ¶ 2. The rules also prohibit "political solicitation." Id. at p. 2. Beydoun conceded in her deposition that ACP's activity, because it is not commercial in nature, would not fall under the definition of "solicitation." Beydoun Dep. at 53-54. ACP's activity also would clearly not constitute "political solicitation." Thus, there does not appear to be any written rule, promulgated by the AACC, preventing the distribution of religious materials at the Festival. Nonetheless, Beydoun testified that "handbilling along the sidewalks adjacent to the festival" is not allowed. Beydoun Dep. at 35-36. As stated by Beydoun, "[i]f you want to distribute, there is a specific place for you to distribute, which is at an information table." Id. at 51-52. Beydoun testified that the AACC was concerned about keeping the sidewalks clear for the benefit of both Festival-goers and non-Festival-goers alike: "[w]e wanted to make sure that the sidewalks were available ... for the people attending the festival [and] [for the] people that were trying to get from one location to another to go to the businesses." Beydoun Dep. at 37. See also id. at 62 ("[t]he concerns were that we wanted to make sure that there was a clear path for people, for pedestrians to be able to walk and to get from one place to another"). Beydoun further testified that [ACP] wanted to hand out items and we have the information tables for them to do that. That's how we control making sure that we have a safe environment by creating those information tables within the tents for them. Id. at 54. Beydoun testified that, during the 2009 Festival, she was aware that "city police officers were prohibiting individuals from distributing literature in [the] outer [perimeter]." Beydoun Dep. at 55. She expects 826 that City police officers will again prohibit the distribution of literature in both the inner and outer perimeters during the upcoming 2010 Festival. Id. at 56. Beydoun testified regarding the potential problems that could arise if handbilling was allowed in the outer perimeter: Q: [W]hat would be the pedestrian or traffic issues with ... allowing individuals to distribute literature in that outer boundary area? A: [I]f you allowed someone to distribute literature within [the] outer area, you might as well allow the other street vendors to set up tables and start selling things in that area, too. That is the buffer between going in and out. You got to maintain a security area. Id. at 58. Dearborn Police Chief Ronald Haddad also testified that his officers patrolled the sidewalks during the 2009 Festival to ensure that they remain clear and open. Haddad Dep. at 17-18. He further testified that handbilling on the sidewalks during the Festival "was not going to be permitted" because we have rules where everybody is going to be in an assigned booth or table or tent, and anything that would delay the passage of anyone that would have a free access to the sidewalk, anything that would occur there that wasn't part of the sanctioned festival, it was not going to be permitted. Id. at 18.[8] Moreover, Haddad and his officers "were going to make sure that we kept the sidewalks, knowing that it was going to be a very crowded situation, we were going to do our very best to keep the sidewalks flowing." Id. Dearborn police officers who observed an individual distributing literature of any kind would be expected to stop that activity from occurring. Haddad Dep. at 70, 76. Haddad testified that if the individual persisted despite a police warning to stop, the individual would be subject to possible arrest. Id. at 72. With regard to handbilling at the upcoming 2010 Festival, Haddad testified as follows: I'm going to recommend that no one be allowed to give out any kind of free material in a venue that swells up to a hundred thousand plus at any hour of the day and that hopefully will attract 300,000 people in the course of one weekend. I think it's a bad practice. I think that I'm not the only one that feels that way. You can go to the Michigan State Fair, they will not allow you to give out a paper clip unless you're stationary and at a booth. It just makes good sense, it's a good practice and it's 827 not a standard that is applied indiscriminately, it's across the board. Id. at 95. F. Because Dearborn contains one of the largest Muslim populations in the United States, Plaintiff deems it "an important location for [his] Christian outreach efforts." Saieg Aff. ¶ 8. Accordingly, Plaintiff has visited Dearborn during the Festival every year since 2004. Id. ¶ 9. The Festival has grown in size every year. The ability of Plaintiff and his associates to freely roam the Festival grounds distributing their religious literature became circumscribed beginning at the 2009 Festival. Plaintiff describes his experience at Festivals prior to 2009 as follows: 9. For the five years prior to 2009 (2004-2008), I and other ACP members and volunteers visited the City during the Festival. During each of these years, we freely roamed the public areas adjacent to and surrounding the Festival, including public sidewalks, handing out religious literature and discussing our Christian faith. Saieg Aff. ¶ 9. See also Saieg Dep. at 80 (explaining that at Festivals prior to 2009, Plaintiff and his associates conducted their outreach only on public sidewalks). However, at the 2009 Festival, ACP members were not permitted to freely distribute their religious materials on the public sidewalks along Warren Avenue, as they had done in previous years. See Saieg Aff. ¶¶ 12-13; Saieg Dep. at 70-71. G. Dearborn Police Sergeant Jeffrey Mrowka testified that the fixed location limitation applied equally to everyone wishing to distribute literature at the 2009 Festival: Q: My understanding is you couldn't even distribute literature individually within the festival unless you were in your fixed location, that's right. A: In a fixed location, that's right. Q: So if individuals were away from their booths trying to distribute literature, either on the sidewalks or on Warren Avenue, that would have been stopped; is that right? A: Yes. Q: So the only location thenand then you said the outer boundaries they weren't permitted to do the same thing, is that right, distribute the literature? A: Yes. Q: So the only place, then, in the City of Dearborn during the time this festival was going on that you could distribute the literature would be beyond those outer boundaries; is that right sir? A: In relationship to this festival, yes. Mrowka Dep. at 32-33. H. Plaintiff states that ACP members were unable to reach their intended audience from the eastern location. According to Plaintiff, their tent/booth was not equipped with electricity and "[p]eople appeared unwilling to approach [their] location at night." Id. ¶ 36. Additionally, because the eastern location was near the carnival, "the vast majority of people who came to this location were children." Id. ¶ 37. As stated by Plaintiff, "[t]he ability to evangelize adult Muslims is made more difficult if Muslim children receive materials from Christians because the adult Muslims get angry if this happens." Id. See also Saieg Dep. at 74 (explaining that adult "Muslims 828 get offended if you give gospel material to their children"). Plaintiff also complains that his 2009 tent/booth was far from the main stage area, which was on the western edge of the inner perimeter: "[t]he majority of the people attending the Festival congregated around the stage to listen to the free concert. From our location, we were unable to reach these people with our materials." Id. ¶ 38. As noted above, this year's tent/booth location is closer to the main stage area, and not next to the children's rides, and provides electricity to facilitate nighttime activity. Plaintiff states that it is essential to his mission that he and his associates be permitted to freely roam the sidewalks of the Festival handing out their religious materials: 39. It is very difficult to evangelize Muslims from a fixed location because there are severe penalties under Islamic law for converting to Christianity.... The Muslims who do approach us will inevitably be watched by family, neighbors, and friends, subjecting them to possible ridicule, scorn, and punishment. As a result, Muslims who are interested in Christianity are typically not willing to go to and be seen at a location that is known to be occupied by Christian evangelists, such as ACP. I have personally experienced this in the past, and I experienced this at the 2009 Festival. 40. In order to reach our intended audienceMuslims who we want to convert to Christianitywith our religious message, it is essential for us to be able to distribute our religious materials while walking on the public sidewalks where the exchange between the Christian brother or sister and the person he or she is evangelizing is more personal and confidential. This allows the person receiving the religious materials to do so discretely and to read or view the materials in private at a later time without being exposed to ridicule, scorn, or punishment, which is likely if the individual was seen receiving materials at a Christian "booth." In fact, it is not uncommon for a Muslim woman to take the Christian materials and hide them under her burqa for fear that her husband will see her with them. I have experienced this many times myself. Id. ¶¶ 39-40. See also Saieg Dep. at 75-76.[9] When permitted to freely roam the sidewalks at Festivals prior to 2009, ACP members distributed approximately 37,000 and 20,000 packets of religious materials at the 2007 and 2008 Festivals, respectively. Id. ¶ 41. At the 2009 Festival, by contrast, ACP members were only able to distribute approximately 500 packets of religious materials from their fixed location. Id.; Saieg Dep. at 101-102. Thus, the speech restriction placed on ACP members at the 2009 Festival "severely limited [their] ability to distribute [their] religious materials" and consequently, ACP had to seek storage space for the leftover materials. Saieg Aff. ¶ 42; Pl. Ex. 1L (photograph of storage space). See also Saieg Dep. at 92 (explaining that "a lot less" people approached 829 ACP members at the 2009 Festival compared to prior years). ACP members wish to visit the City during the 2010 Festival to distribute [their] religious materials on the public streets and sidewalks adjacent to and surrounding the Festival. However, because [they] are subject to arrest by City police officers for engaging in [their] peaceful speech activity in the City, [they] are deterred from doing so. Id. ¶ 45. See also Saieg Dep. at 66. III. SUMMARY JUDGMENT STANDARD Pursuant to Fed.R.Civ.P. 56(b), a party against whom a claim is asserted may "at any time, move with or without supporting affidavits, for a summary judgment in the party's favor as to all or any part thereof." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "Of course, [the moving party] always 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." Id. at 323, 106 S. Ct. 2548. A fact is "material" for purposes of a motion for summary judgment where proof of that fact "would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine "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, 247-248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-1211 (6th Cir. 1984). If this burden is met by the moving party, the non-moving party's failure to make a showing that is "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," will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-323, 106 S. Ct. 2548. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce "evidence of evidentiary quality" demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997). IV. ANALYSISFREEDOM OF SPEECH (COUNT I) Defendants argue, as Judge Edmunds found in her ruling on June 18, 2009, that the City's ban on handbilling in both the inner and outer perimeters of the Festival constitutes a valid time, place, and manner restriction under Heffron and Spingola. Additionally, Defendants argue that the 830 Amended Complaint should be dismissed under Fed.R.Civ.P. 12(b)(7) for failure to join the AACC, a purported necessary party under Fed.R.Civ.P. 19. Plaintiff, on the other hand, contends that (1) this case is distinguishable from Heffron and Spingola, (2) Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks, and (3) the ban is not a valid time, place, and manner restriction because it is impermissibly content-based and does not satisfy intermediate scrutiny. Additionally, Plaintiff argues that dismissal of this case for failure to join a party is unwarranted. The Court first addresses Defendants' joinder argument. The Court then addresses whether the handbilling ban in the inner and outer perimeters is a valid time, place, and manner restriction under the First Amendment. A. Should the Case be Dismissed for Failure to Join a Party? Defendants urge the Court to dismiss this case under Fed.R.Civ.P. 12(b)(7) because Plaintiff failed to name the AACC as a party defendant. According to Defendants, the AACC is a necessary party defendant because "even if ... Plaintiff is successful against ... Defendants, it would not change the rules of the Festival that require Plaintiff to ... limit materials distribution to a fixed location." Def. Br. at 14. For this reason, Defendants contend that "complete relief" could not be granted to Plaintiff unless the AACC is a party. Defendants' argument is unpersuasive because it ignores two crucial facts. First, even if he wanted to, Plaintiff probably could not sue the AACC, a private organization, for First Amendment violations. See Hudgens v. Nat'l Labor Relations Bd., 424 U.S. 507, 513, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976) ("[i]t is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state"). But see also Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) ("a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state"). Second, and more importantly, the Cityand not the AACCis the proper party defendant in this case because it is the City's police officers who will be enforcing an "across the board" ban on all handbilling (except for handbilling occurring from assigned booths). As mentioned above in Section 11(E), there is no written AACC-promulgated rule prohibiting religious handbilling. The AACC-promulgated rules prohibit only "solicitation" (which, according to Beydoun, is meant to cover distribution of handbills of a commercial nature) and "political solicitation." Plaintiff's religious literature does not qualify under either of these two banned categories. However, notwithstanding the lack of a written AACC-promulgated rule banning all handbilling, Dearborn Police Chief Haddad testified that he and his officers will be enforcing an "across the board" ban on all handbilling at the Festival (except handbilling from a assigned booths). Haddad Dep. at 18, 70, 76, 95. Haddad also testified that an individual handing out materials at the Festival in violation of the ban would be subject to possible arrest. Id. at 72. Plaintiff seeks an order preventing the City from enforcing, via threat of arrest, what he contends to be an unconstitutional speech restriction. See Saieg Aff. ¶ 44 ("[m]y fellow Christians and I .... intend to, visit the City during the 2010 Festival to distribute our religious materials.... However, because we are subject to arrest by City police officers for engaging in this ... speech activity in the City, we are deterred from doing so"). Because Plaintiff seeks to enjoin Dearborn police officers from enforcing what is alleged to be an unconstitutional speech restriction, 831 the City and its Police Chief are the proper party defendants. Defendants' joinder argument is unpersuasive. B. Is the Handbilling Ban a Valid Time, Place, and Manner Restriction? 1. The First Amendment, Generally The First Amendmentwhich applies to the states through the Fourteenth Amendment, see Murdock v. Commonwealth of Pa., 319 U.S. 105, 108, 63 S. Ct. 870, 87 L. Ed. 1292 (1943)declares, in relevant part: "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. As stated by the Sixth Circuit, [g]overnmental restrictions on the content of speech pose a high risk that the government really seeks to suppress unwelcome ideas rather than achieve legitimate objectives. As a general rule, therefore, the government cannot inhibit, suppress, or impose differential content-based burdens on speech. Nevertheless, courts will uphold such a regulation if necessary to serve a compelling state interest and it is narrowly tailored to the achievement of that end. Spingola, 39 Fed.Appx. at 982 (citations omitted). "[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron, 452 U.S. at 647, 101 S. Ct. 2559. Laws that do not regulate speech per se, but, rather, restrict the time, place and manner in which expression may occur are treated differently. Such laws burden speech only incidentally, for reasons unrelated to the speech's content or the speaker's viewpoint. In considering such content-neutral, time, place and manner restrictions, the Supreme Court employs "intermediate scrutiny," upholding limitations on the time, place, and manner of protected expression as long as "they are justified without reference to the content of the regulated speech, ... are narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Spingola, 39 Fed.Appx. at 982 (citation omitted) (emphasis in original). Thus, time, place, and manner restrictions are valid so long as they (1) are content-neutral, (2) are narrowly tailored, (3) serve a significant governmental interest, and (4) leave open ample alternative channels for communication. First of all, this Court reiterates that Plaintiff and his fellow missionaries will be able to mingle throughout the Festival and talk to people. Additionally, while circulating freely, they will be able to wear pins containing a message. The sole issue of contention is leafleting. Heffron and Spingola both provide examples of speech restrictions that were upheld as valid time, place, and manner restrictions. In Heffron, the Supreme Court upheld a regulation on speech at the Minnesota State Fair, which was held on a 125-acre tract of state-owned land, that prohibited the distribution of literature or the soliciting of funds except at a rented booth. 452 U.S. at 643, 656, 101 S. Ct. 2559. The Court held that the regulation was content-neutral because it "applie[d] evenhandedly to all who wish to distribute and sell written materials or to solicit funds" regardless of the speaker, viewpoint, or subject matter. Id. at 648-649, 101 S. Ct. 2559. The Court also accepted the State's argument that the regulation was justified by a substantial state interest: protecting the "safety and convenience" of the fair-goers and ensuring the orderly flow of pedestrian traffic through the crowded fairgrounds. Id. at 650, 101 S. Ct. 2559. Relatedly, the Supreme Court held that "consideration of a forum's special attributes is relevant to the constitutionality 832 of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved." Id. at 650-651, 101 S. Ct. 2559. As stated by the Court, there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment. The Minnesota Fair, as described above, is a temporary event attracting great numbers of visitors who come to the event for a short period to see and experience the host of exhibits and attractions at the Fair. The flow of the crowd and demands of safety are more pressing in the context of the Fair. As such, any comparisons to public streets are necessarily inexact. Id. at 651, 101 S. Ct. 2559. Finally, the Court held that the regulation left open ample alternative means for the communication of information because (1) the rule did not prevent members of the religious sect who brought the case, the Krishna, from practicing their religion outside the fairgrounds and (2) the rule did not prevent Krishna members from mingling with the crowd, orally propagating their views, or arranging for a booth to distribute and sell their religious literature. Id. at 654-655, 101 S. Ct. 2559. In Spingola, the Sixth Circuit upheld an ordinance requiring anyone engaged in public speaking during a town assemblage to speak from a designated "public speaking area." 39 Fed.Appx. at 979. The assemblage at issue was a street fair, drawing thousands of people over a twoblock area comprised of public streets. Id. at 978. There was no dispute in Spingola that the ordinance was content-neutral. Id. at 983. Relying heavily on Heffron, the court found that the fair area, "though comprised of public streets, [was] not serving in that function during the festival." Id. at 983. The court also held, citing Heffron, that the ordinance served the important governmental purposes of increasing public safety during the festival, ensuring smoother traffic flow, and balancing free speech with the rights of persons attending the festival to be free from hindrance. Id. at 984. Moreover, alternative channels for speech existed because the ordinance called for a designated speaking area and the plaintiff, a "confrontational evangelist," could stand outside the festival grounds if he chose. Id. at 984-985. In the instant case, the Court concludes that the site at issue is in reality a fairgrounds. 2. The Parties' Arguments The crucial question in this case is whether the "across the board" ban on mobile handbilling in the inner and outer perimeters of the Festival, which was enforced at the 2009 Festival and will again be enforced at the upcoming 2010 Festival, see Haddad Dep. at 18, 70, 72, 76, 95, qualifies as a valid time, place, and manner restriction.[10] 833 Plaintiff makes several arguments. First, he broadly contends that Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks. Second, he argues that the handbilling ban does not qualify as a valid time, place, and manner restriction. In so arguing, Plaintiff attacks each of the four required elements of a valid time, place, and manner restriction; specifically, he contends that the handbilling ban (1) does not leave open ample alternative channels for communication, (2) is content-based, (3) does not serve a significant governmental interest, (4) is not narrowly tailored. Defendants disagree with Plaintiff on each point. According to Defendants, they may regulate handbilling on public streets and sidewalks and the restriction at issue herethe "across the board" ban on handbilling in the inner and outer perimeters constitutes a valid time, place, and manner restriction. 3. Discussion Before addressing Plaintiff's arguments, the Court first notes that the speech at issue in this case is undisputably protected by the First Amendment. See Murdock, 319 U.S. at 110, 63 S. Ct. 870 ("spreading one's religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types [of religious practices]"). Plaintiff first argues that because the Festival grounds are comprised of public streets and sidewalks, Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks. In so arguing, Plaintiff emphasizes in his brief that public streets are traditional public fora and are thus "held in public trust," Frisby v. Schultz, 487 U.S. 474, 481, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), as "proper places for the dissemination of information and opinion." Schneider v. State of N.J., Town of Irvington, 308 U.S. 147, 151, 60 S. Ct. 146, 84 L. Ed. 155 (1939). While this is a component of the relevant First Amendment analysis, Plaintiff does not acknowledge that the Festival grounds here are analogous to those in Spingola inasmuch as both festival grounds are comprised of public streets that, in the words of the Spingola court, are "not serving in that function during the festival." See 39 Fed.Appx. at 983. As such, Plaintiff's reliance on cases such as Jamison v. State of Tex., 318 U.S. 413, 63 S. Ct. 669, 87 L. Ed. 869 (1943), Martin v. City of Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943), and Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938)all of which involve the enforcement of speech restrictions on streets and sidewalks that are serving in their ordinary function as open streets and sidewalksis misplaced. This is because "[t]he flow of the crowd and demands of safety are more pressing in the context of [a][f]air" and "[a]s such, any comparisons 834 to public streets are necessarily inexact." Heffron, 452 U.S. at 651, 101 S. Ct. 2559. Additionally, Plaintiff also fails to acknowledge that speecheven if taking place in a traditional public forumis subject to valid time, place, and manner restrictions. See Spingola, 39 Fed.Appx. at 983 ("regardless of whether we would classify the ... festival area as a traditional public forum or a limited public forum ..., the Ordinance is examined under the same intermediate level of scrutiny"). Therefore, the argument that Defendants may not regulate speech on public streets and sidewalks is unpersuasive. Plaintiff's main argument is that the handbilling ban in the inner and outer perimeters of the Festival does not constitute a valid time, place, and manner restriction. Specifically, Plaintiff contends that the handbilling ban (1) does not leave open ample alternative channels for communication, (2) is content-based, (3) does not serve a significant governmental interest, (4) is not narrowly tailored. The Court addresses each of these requirements, in turn, below. Ultimately, the Court concludes that the ban on handbilling in the inner and outer perimeters qualifies as a valid time, place, and manner restriction. a. Does the Handbilling Ban Leave Open Alternative Channels for Communication? Plaintiff argues that by banning the distribution of religious literature on the sidewalk and in other public areas and forcing Plaintiff to a fixed location, Defendants' restriction does not leave open ample alternative means of communication, and it prevents Plaintiff from reaching his intended audience in violation of the Constitution. Pl. Br. at 18-19. Heffron and Spingola preclude Plaintiff's argument. The speech restriction at issue in Heffron prohibited the distribution of literature or the soliciting of funds at the Minnesota State Fair except at a rented booth. The Supreme Court found that the restriction left open ample alternative means for the communication of information because (1) the regulation did not prevent Krishna members from practicing their religion outside the fairgrounds and (2) the regulation did not prevent Krishna members from mingling with the crowd, orally propagating their views, or arranging for a booth to distribute and sell their religious literature. See 452 U.S. at 654-655, 101 S. Ct. 2559. Similarly, in Spingola, the Sixth Circuit held that alternative channels for speech existed because the ordinance, which required anyone engaged in public speaking during a town assemblage to speak from a designated "public speaking area," called for a designated speaking area and the plaintiff, a "confrontational evangelist," could stand outside the festival grounds if he chose. See 39 Fed.Appx. at 985-985. So too, the instant case. There is no allegation that Plaintiff missionaries were in anyway prohibited or discouraged from distributing their religious literature outside the Festival boundaries. Nor does Plaintiff allege that then-ACP members were prevented from mingling with the Festival crowd and orally propagating their religious views; Plaintiff and his associates were only prevented from distributing literature outside of their designated booth. Finally, then-ACP members couldand did at the 2009 Festivalutilize a booth to distribute their religious literature.[11] They will be permitted to do the same at the 2010 Festival.[12] This year, 835 Plaintiff will receive a booth, free of charge, with electricity to facilitate evening activities, and a location closer to the center of the Festival. Plaintiff and his fellow missionaries have never been denied access to the Festival forum, nor have they been denied the opportunity to interact with their intended audience, Festival-goers. Thus, the case upon which Plaintiff reliesBay Area Peace Navy v. United States, 914 F.2d 1224, 1229-1230 (9th Cir.1990), where the speech restriction in question prevented the plaintiff from reaching its intended audience with its messageis inapposite. In short, the very same alternative avenues of communication are available to Plaintiff in this case as were available to the respective plaintiffs in both Heffron and Spingola. These alternative avenues were deemed constitutionally adequate by the Supreme Court and the Sixth Circuit in Heffron and Spingola, respectively; they are constitutionally adequate here, as well. The Court acknowledges Plaintiff's complaint that "[p]eople appeared unwilling to approach [the booth] location at night" because their tent was not equipped with electricity, see Saieg Aff. ¶ 36, and the tent was not ideally located because it was near the children's area. Id. ¶ 38. This year, the tent is equipped with electricity, and the location is not in the children's area, but instead in the central area. The Constitution does not guarantee a person "her best means of communication." Phelps-Roper v. Strickland, 539 F.3d 356, 372 (6th Cir.2008) (citing Heffron, 452 U.S. at 647, 101 S. Ct. 2559 ("the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired")). See also Prime Media, Inc. v. City of Franklin, Tenn., 181 Fed. Appx. 536, 541 (6th Cir.2006) (unpublished) ("alternative channels of communication need not be available at every location, or at the most desirable location, within a city"). Plaintiff and his fellow missionaries will not be denied access to the Festival forum, nor denied the opportunity to interact with their intended audience. Under these circumstances, notwithstanding Plaintiff's complaints, alternative channels for communication of their message remained sufficiently open. See Heffron, 452 U.S. at 654-655, 101 S. Ct. 2559; Spingola, 39 Fed.Appx. at 985-985. b. Is the Handbilling Ban Content-Neutral? "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). Thus, [g]overnment action that stifles speech on account of its message ... contravenes this essential [First Amendment] right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. Turner Broad. Sys., Inc. v. Fed. Commc'n Comm'n, 512 U.S. 622, 641, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). For this reason, content-based regulations are subject to "the most exacting scrutiny," id. at 642, 114 S. Ct. 2445, and are "presumptively invalid." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). Plaintiff argues that the ban on handbilling is content-based and therefore subject to strict scrutiny. Plaintiff believes that the ban favors commercial speech in violation of the First Amendment because it permits local businesses along Warren Avenue, 836 and no one else, to set up sidewalk sales immediately outside their respective storefronts.[13] Plaintiff relies mainly upon the following three cases in support of his argument, all of which hold that the government cannot favor commercial speech over non-commercial speech, or vice-versa: S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir.1998) (invalidating as content-based an ordinance that prohibited the distribution of handbills that contain commercial advertising while allowing the distribution of handbills that did not contain commercial advertising); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981) (White, J., plurality opinion) (invalidating as content-based a city ordinance that, among other things, favored commercial advertisements on billboards over non-commercial advertisements); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993) (invalidating as content-based a city regulation banning newsracks that distributed commercial handbills but not newsracks that distributed newspapers). The regulations in each of these cases were invalidated essentially because, in the words of the Ninth Circuit, "an officer who seeks to enforce the [regulation] would need to examine the contents of the handbill to determine whether its distribution was prohibited." See S.O.C., Inc., 152 F.3d at 1145. Defendants, on the other hand, argue that the ban on handbilling is content-neutral: Plaintiff has taken great pains to argue that distinctions have been made between commercial and non-commercial speech, but the evidence clearly demonstrates that no such content-based decisions were made. First and foremost,... the sidewalks were not functioning as sidewalks, but instead were incorporated in to the Festival grounds, and the [AACC] was granted the same control over the sidewalks that it had over the streets during the Festival. Beydoun explained, "we don't allow just anybody to come and set up, and they're not allowed to decide where they want to set up. We have specific areas for specific things." (Beydoun dep., at 33.) For example, there were numerous themed tentsone for food vendors, one for artists, and one for children's activities. (Exhibit D.) The Warren Avenue businesses effectively constitute their own themed area of the Festival, and they are able to take advantage of their location by setting up in front of their business, when logically feasible. (Beydoun dep., p. 36.) Resp. Br. at 21. Defendants' position is persuasive. One of the stated purposes of the Festival is to "promote the Warren Avenue Business District." Def. Ex. E, p. 3. Thus, the AACC affords anyone who occupies existing store space along Warren Avenue, subject to logistical concerns, the opportunity to utilize the sidewalk in front of their store during the Festival.[14] As Defendants 837 note, and the Court agrees, "[t]he Warren Avenue businesses effectively constitute their own themed area of the Festival, and they are able to take advantage of their location by setting up in front of their business, when logically feasible." To the extent that Defendants enforce the AACC's rule permitting occupants of space along Warren Avenue to set up on the sidewalk outside their storefronts at the exclusion of those who do not occupy space along Warren Avenue, the restriction is not content-based because no expression is being restricted based on "its message, its ideas, its subject matter, or its content." See Mosley, 408 U.S. at 95, 92 S. Ct. 2286. Rather, Defendants, by enforcing the AACC's rule, are favoring, if anyone, those with space along Warren Avenue no matter who they are or what their message. In reality, this is a quid pro quo for stores negatively impacted by the Festival. In exchange for subjecting them to Festival crowds in front of their stores and closed-off streets that block regular customers' ingress and egress, the existing merchants are permitted to set up tables out front to sell their wares. Thus, if ACP had an existing office located in the inner perimeter along Warren Avenue, there is nothing in the record to suggest that it could not set up a table outside its office like everyone else occupying space along Warren Avenue. In other words, there is nothing to suggest that the criterion to set up a sidewalk sale along Warren Avenue has anything to do with the message of the occupant, or the subject matter of the occupant's speech (i.e., commercial versus non-commercial); rather, the criterion is that the occupant simply occupy space in the inner perimeter along Warren Avenue. See Beydoun Dep. at 65 (testifying that the sidewalk vendors along Warren Avenue are Warren Avenue businesses). Because Defendants are not enforcing a restriction on expression that favors commercial speech over non-commercial speech, the cases cited by Plaintiff, discussed above, are not controlling.[15] c. Does the Handbilling Ban Serve a Substantial Governmental Interest? In Heffron, the Supreme Court held that the government's interest in ensuring the orderly flow of pedestrian traffic through a crowded fairgrounds constitutes a substantial governmental interest. See 452 U.S. at 650, 101 S. Ct. 2559. The Sixth Circuit, in Spingola, held the same. See 39 Fed. Appx. at 984. Indeed, Judge Edmunds also held the same in the instant case, in denying Plaintiff's request for a temporary restraining order last year. Defendants argue that the holdings in Heffron and Spingola apply with equal force here because the goals underlying the handbilling ban are the same as those proffered by the governments in both Heffron and Spingola. Plaintiff, on the other hand, argues that the holdings are inapplicable here for two reasons. First, Plaintiff points out that the fairgrounds in Heffron were not located on public streets and sidewalks as are the Festival grounds here. Thus, as Plaintiff notes, "the fair [in Heffron] occurred at a closed, fixed location 838 entirely dedicated for that purpose there was no ongoing business activity on the fairgrounds nor pedestrian traffic moving through that was unrelated to the fair." Pl. Br. at 19. Plaintiff contends that Heffron is inapplicable here based on this distinction. In Heffron, everyone on the fairgrounds was there for the fair; here, because the Festival takes place on public streets that are lined with stores that are open to Festival-goers and non-Festival-goers alike, not everyone at the Festival, presumably, was there for the Festivalsome were there for matters unrelated to the Festival. This argument is foreclosed by Spingola. The fair at issue in Spingola took place over a two-block area comprised of public streets in the Village of Granville. See 39 Fed.Appx. at 978. Thus, in upholding the public speaking ban at issue in Spingola as a valid time, place, and manner restriction, the Sixth Circuit applied the Heffron holding to a venue, like the one here, that was comprised of public streets and was open to pedestrian traffic unrelated to the fair. Plaintiff's second argument as to why Heffron does not apply here is also unpersuasive. Plaintiff argues that the presence of some Festival activities on the sidewalk along Warren Avenue frustrates the government's stated goal of ensuring the orderly flow of pedestrian traffic through the crowded Festival. As stated by Plaintiff, "it makes little sense to permit businesses to set up fixed locations that plainly block the public sidewalks and then prohibit individuals from distributing noncommercial, religious literature in the same forum." Pl. Br. at 17. However, a similar argument was made by the plaintiff, and rejected by the Sixth Circuit, in Spingola: Spingola argues that the [public speaking] regulation does not relieve the crowding and pedestrian flow obstructions that take place during the festival regardless. That, however, is not the question. The question is whether preventing uncontrolled public speaking in these areas promotes a significant governmental interest that would be less effectively achieved without the law. That is accomplished by providing a smoother flow of traffic within the festival crowd. 39 Fed.Appx. at 984. Accordingly, Plaintiff's second argument, like his first one, is foreclosed by Spingola. Based on the Supreme Court's holding in Heffron and the Sixth Circuit's holding in Spingola, Defendants' proffered justifications for the handbilling banmaintaining crowd control, relieving pedestrian congestion, and ensuring an orderly Festivalconstitute substantial governmental interests. d. Is the Handbilling Ban Narrowly Tailored to Serve the City's Substantial Governmental Interests? As stated by the Sixth Circuit, time, place, and manner regulations of speech must be narrowly tailored to serve the government's legitimate, content-neutral interests. Narrow tailoring means that the "[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals," but it does not require that the means chosen "be the least restrictive or least intrusive means" of serving its goals. "Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 528 (6th Cir.2009) (citations omitted). For example, in United States v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983), a case upon which Plaintiff heavily relies, the Supreme 839 Court declared unconstitutional a broad restriction on speech on the public sidewalks surrounding the Supreme Court's building. The regulation banned, in part, the display of "any flag, banner, or device designed ... to bring into public notice any party, organization, or movement." Id. at 175, 103 S. Ct. 1702. The purpose of the regulation was to "provide for the protection of the [Supreme Court] building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum." Id. at 182, 103 S. Ct. 1702. The Court found that the regulation was not a valid time, place, and manner restriction "because it ha[d] an insufficient nexus with any of the public interests that may be thought to undergrid [it]." Id. at 181, 103 S. Ct. 1702. In other words, the regulation did "not sufficiently serve those public interests that [were] urged as its justification." Id. See also Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) ("[b]road prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms"). Plaintiff argues that the City's goals of maintaining crowd control, relieving pedestrian congestion, and ensuring an orderly Festival are not furthered by prohibiting handbilling in the outer perimeter. This is because the outer perimeter is not crowded with wall-to-wall people as is the inner perimeter, which serves as the actual Festival grounds. As stated by Plaintiff, Defendants do not limit their speech restriction to the public sidewalks immediately adjacent to where the Festival activities are taking place on Warren Avenue and Miller Road. Instead, they created a broad, prophylactic prohibition on the distribution of literature that extends beyond the actual Festival grounds to include more than 30 surrounding City blocks ("outer perimeter"). Consequently, the City has created a "First-Amendment-free-zone" that has little to no connection with the Festival. Pl. Br. at 17 (footnote omitted). Via this argument, then, Plaintiff is challenging the handbilling ban in the outer perimeter only, asserting that the ban is not narrowly tailored to alleviate the City's crowd control concerns since those concerns are not implicated in the uncrowded outer perimeter. Plaintiff does not mount a "narrow tailoring" challenge with respect to the enforcement of the handbilling ban in the inner perimeter. For the reasons that follow, the Court rejects Plaintiff's argument and finds that the ban on handbilling in the outer perimeter is narrowly tailored to serve the City's legitimate and substantial interest in ensuring an orderly Festival. The outer perimeter runs approximately five blocks to the west of the western edge of the inner perimeter, covering the following blocks: Rueter Avenue, Jonathon Street, Bingham Street, Calhoun Street, and Schaefer Highway. The outer perimeter runs approximately four blocks to the east of eastern edge of the inner perimeter, covering the following blocks: Emanon Street, Freda Street, Normile Street, and Wyoming Avenue.[16] The stated purpose of the outer perimeter is to "provid[e] a safe, controllable buffer between the bulk of the Festival activities and the outside world" in order 840 "[t]o ensure an orderly and safe transition from the open streets and the streets occupied by the Festival." Def. Br. at 3-4. See Mrowka Dep. at 15 (testifying that the purpose of the outer perimeter is to "restrict traffic and crowd control into the festival area"). There is no dispute that this constitutes a substantial interest under Heffron. See 452 U.S. at 650, 101 S. Ct. 2559 ("it is clear that a State's interest in protecting the `safety and convenience' of persons using a public forum is a valid governmental objective"). Rather, the dispute is whether a handbilling prohibition in the outer perimeter is narrowly tailored to serve the City's interest. The Court finds that it is. It is crucial to note that this case is not just about Plaintiff's right to exercise his First Amendment rights in the outer perimeter; it is about the right of everyone to do so. That is, if the Court struck down the ban as unconstitutional, everyonenot just Plaintiff and his associateswould be permitted to distribute literature in the outer perimeter. Organizations of all kinds, businesses, and individuals alike would all flock to the outer perimeter to promote their respective interests and messages. The consequence of this would be to effectively extend the Festival grounds into an area that is meant to serve as a buffer zone between the Festival and the outside world. This result would undermine the legitimate and substantial interest of the City to "ensure an orderly and safe transition from the open streets and the streets occupied by the Festival." It is for this reason that a ban on handbilling in the outer perimeter is narrowly tailored. A result to the contrary would severely undercut the City's substantial interest in maintaining a safe zone, clear of wall-to-wall Festival crowds, between the Festival grounds and the outside world. It is also for this reason that the Court finds the Supreme Court's decision in Grace inapplicable here. In Grace, the ban on certain communicative activity on the public sidewalks surrounding the Supreme Court building did not sufficiently serve the government's interest in protecting the Supreme Court grounds and maintaining proper order and decorum. There was an "insufficient nexus" between the ban and the public interests undergridding it. In other words, the Grace Court effectively held that the government could accomplish its goals, which were deemed to be substantial governmental interests, without imposing the ban. The same is not true here for the reasons stated in the preceding paragraph. Without a ban on the distribution of literature in the outer perimeterwhich is meant to serve as a safe zone for three days out of the year the City could not accomplish its goal. The Court also finds Grace distinguishable because the ban in Grace applied to communicative activity taking place on sidewalks that were serving in their traditional function as sidewalks. See Grace, 461 U.S. at 179, 103 S. Ct. 1702 ("[t]he sidewalks comprising the outer boundaries of the [Supreme] Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently"). The same is not true here. For three days out of the year, the streets and sidewalks of the outer perimeter are not serving as traditional streets and sidewalks; rather, they are serving in an entirely different role. See Heffron, 452 U.S. at 651, 101 S. Ct. 2559 ("[t]he flow of the crowd and demands of safety are more pressing in the context of [a] Fair. As such, any comparisons to public streets are necessarily inexact"). For these reasons, Grace is not controlling here. The Court analogizes the two perimeters to airport traffic; the inner perimeter is like the main runway, while the outer perimeter 841 is like a taxiway which serves the purpose of unimpeded ramp up and ramp down of traffic speeds into the inner perimeter. For the reasons stated above, the Court finds that the handbilling ban in the inner and outer perimeters meets the requirements for a valid time, place, and manner restriction on speech. Accordingly, summary judgment will be granted in favor of Defendants on Plaintiff's First Amendment free speech claim. V. ANALYSISFREEDOM OF ASSOCIATION (COUNT II) Defendants argue that they are entitled to summary judgment in their favor on Plaintiff's freedom of association claim. Plaintiff does not seek summary judgment on this claim, and the claim is scarcely discussed in Plaintiff's motion papers, and not at all at oral argument. In the Amended Complaint, Plaintiff states that "Defendants have deprived [him] of [his] right to expressive association guaranteed by the First Amendment" "[b]y reason of the [handbilling restriction]." Am. Compl. ¶ 78. In his response to Defendants' Motion for Summary Judgment, Plaintiff states that the handbilling ban forces Plaintiff "to be a participant inand thus [a] supporter ofthe Festival." Resp. at 9 (emphasis deleted). This argument, although interesting, is unpersuasive. Plaintiff relies solely upon Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), in support of his argument. There, the Supreme Court held that the government cannot force private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey. Id. at 559, 115 S. Ct. 2338. Thus, the Court found that compelling the parade organizer to include the Irish-American Gay, Lesbian, and Bisexual Group in the parade "violates the fundamental rule . . . under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Id. at 572, 115 S. Ct. 2338. The present case is not like Hurley. Hurley involved a situation where the government was attempting to use its power to compel a private speaker, the parade organizer, to alter its message. Here, the government is not forcing Plaintiff to do anything; Plaintiff, by his own choice, wishes to impart his religious message upon Festival-goers. For this reason, Hurley is inapplicable. Plaintiff's freedom of association claim is unavailing. VI. ANALYSISFREE EXERCISE CLAIM (COUNT III) Plaintiff does not discuss his free exercise claim in his motion papers despite the fact that the claim is discussed by Defendants. Therefore, the claim is deemed abandoned. See Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th Cir.1992) (if the non-moving party fails to carry its burden of setting forth specific facts showing genuine issues of fact for trial, "its opportunity is waived and its case wagered"). In any event, the claim is not viable. As stated in a respected treatise, the free exercise clause is invoked in several situations. One is when the government prohibits behavior that a person's religion requires. . . . The free exercise clause also is invoked when the government requires conduct that a person's religious prohibits. . . . Additionally, the free exercise clause is invoked when individuals claim that laws burden or make more difficult religious observances. E. Chemerinsky, Constitutional Law § 12.3.1, p. 1247 (3d ed. 2006). None of 842 these situations appear to be implicated in this case; if one is, Plaintiff does not explain how. Accordingly, summary judgment will be granted in favor of Defendants on Plaintiff's free exercise claim. VII. ANALYSISEQUAL PROTECTION CLAIM (COUNT IV) Plaintiff's equal protection claim under the Fourteenth Amendment is not viable for the reasons stated in footnote 15, above. VIII. ANALYSISMUNICIPAL LIABILITY Although not the subject of a separate count, Plaintiff broadly asserts municipal liability against the City. Plaintiff contends that the City is liable under § 1983 because it enforced an unconstitutional speech restriction. In addition, Plaintiff alleges throughout his Amended Complaint and motion papers that the handbilling ban at the 2009 Festival was selectively enforced by Dearborn police officers. Although the parties do not explicitly acknowledge it as such, the selective enforcement claim constitutes a municipal liability claim. Three general rules govern a municipal liability claim. First, "a municipality cannot be held liable [under § 1983] solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In other words, a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S. Ct. 2018. Second, "[a] local government entity violates § 1983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights." Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). Third, "[t]he burden of proof is on the plaintiff to set forth the unconstitutional policy and link it with both the municipality and the injuries at issue." King v. City of Eastpointe, 86 Fed.Appx. 790, 801 (6th Cir.2003) (unpublished). The Supreme Court has explained why a plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal "policy" or "custom" that caused injury: Locating a "policy" ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Similarly, an act performed pursuant to a "custom" that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law. Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403-404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (citation omitted). Put differently, [t]he requirement that a municipality's wrongful actions be a "policy" is not meant to distinguish isolated incidents from general rules of conduct promulgated by city officials. It is meant to distinguish those injuries for which "the government as an entity is responsible under § 1983" from those injuries for which the government should not be held accountable. "Monell is a case 843 about responsibility." "The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir.1994) (citations omitted) (emphasis in original). Because the Court has found that enforcement of the handbilling ban in the inner and outer perimeters is constitutional, Plaintiff cannot establish an unconstitutional policy or custom. His municipal liability claim, therefore, is not viable. With regard to Plaintiff's selective enforcement claim, the Third Circuit has stated that in order to establish municipal liability for selective enforcement of a facially viewpoint- and content-neutral regulation, a plaintiff whose evidence consists solely of the incidents of enforcement themselves must establish a pattern of enforcement activity evincing a governmental policy or custom of intentional discrimination on the basis of viewpoint or content. Brown v. City of Pittsburgh, 586 F.3d 263, 294 (3d Cir.2009). There is no policy of selective enforcement at issue in this case. Thus, in order to sustain his selective enforcement claim, Plaintiff must demonstrate a municipal custom of selective enforcement or, in the words of the Third Circuit, "a pattern of enforcement activity evincing a governmental . . . custom of intentional discrimination on the basis of viewpoint or content." Brown, 586 F.3d at 294. Plaintiff testified that he observed Dearborn police officers selectively enforcing the handbilling ban at the 2009 Festival: 27. During the 2009 Festival, the rules and regulations were selectively enforced. For example, various festival booths on Warren Avenue blocked parts of the sidewalk (Haddad deposition exhibit 14); ART (Arabic Radio & Television) had a booth at the Festival and was allowed to pass out flyers outside of the booth, even in front of the police and security guards; a "Monster" truck was allowed to pass out free drinks within the border areas to Festival goers; and a Five Star Video representative was permitted to distribute flyers to Festival goers in the street and on the sidewalks without first purchasing a booth. True and accurate photographs of these activities are attached to this declaration as Exhibit F. 28. Even though my fellow Christians and I were prohibited from distributing our religious literature on the adjacent and surrounding public streets and sidewalks during the Festival, certain individuals unrelated to us and our Christian outreach were not so prohibited. In fact, some individuals were distributing literature within the Festival itself on Warren Avenue and the City police did not stop them. A true and accurate photograph of an individual distributing literature to me on Warren Avenue during the Festival (Haddad deposition exhibit 17) and a true and accurate photograph of an individual distributing literature to me on the public sidewalk adjacent to Warren Avenue during the Festival (Haddad deposition exhibit 18) are attached to this declaration as Exhibit G. Additional true and accurate photographs of individuals distributing materials on the public sidewalks and on Warren Avenue during the 844 2009 Festival are attached to this declaration as Exhibit H. Saieg Aff. ¶¶ 27-28. Accepting Plaintiff's testimony as true and assuming that the pictures show what they are alleged to show, and taking the evidence in the light most favorable to Plaintiff, the testimony above is insufficient to establish a cognizable municipal liability claim based on selective enforcement. Plaintiff alleges the following instances of selective enforcement of the handbilling ban during the 2009 Festival: (1) Arabic Radio & Television was allowed to pass out flyers outside of its booth; (2) a "Monster" truck was allowed to pass out free drinks within the border areas to Festival-goers; (3) a Five Star Video representative was permitted to distribute flyers to Festival-goers in the street and on the sidewalks without first purchasing a booth; (4) "some individuals were distributing literature within the Festival itself on Warren Avenue and the City police did not stop them." These four instances, even if true, do not amount to "a pattern of enforcement activity evincing a governmental . . . custom of intentional discrimination on the basis of viewpoint or content." Brown, 586 F.3d at 294. This is because these instances, alone, are insufficient to show that selective enforcement of the handbilling ban was "so widespread as to have the force of law." Brown, 520 U.S. at 403-404, 117 S. Ct. 1382. In addition, Plaintiff has not demonstrated that "those whose edicts or acts may fairly be said to represent official policy," such as Chief Haddad, are responsible for the above-described instances of selective enforcement. See Monell, 436 U.S. at 694, 98 S. Ct. 2018. In other words, Plaintiff has not alleged that the constitutional injury, selective enforcement of the handbilling ban, was inflicted by the City itself, through its decision-makers (i.e., Haddad), as opposed to one or more of its employees or agents (i.e., individual patrol officers). See Monell, 436 U.S. at 691, 98 S. Ct. 2018 ("a municipality cannot be held liable under § 1983 on a respondeat superior theory"). For these reasons, Plaintiff's selective enforcement claim is not viable under § 1983. IX. QUALIFIED IMMUNITY Haddad mistakenly argues that he is entitled to qualified immunity. This is not an action for monetary relief; it is an action for declaratory and injunctive relief. Moreover, Haddad is sued in his official capacity only. "Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief." Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir.1989). Moreover, "[q]ualified immunity shields [a] defendant from personal liability, but it does not shield him from . . . claims brought against him in his official capacity." Hall v. Tollett, 128 F.3d 418, 430 (6th Cir.1997). Accordingly, Haddad is not entitled to qualified immunity. X. ORDER For the reasons stated, Defendants' Motion for Summary Judgment is granted. Plaintiff's Motion for Summary Judgment and Request for Injunctive Relief is denied. All other outstanding motions are denied as moot. This case is dismissed. SO ORDERED. NOTES [1] ACP and George Saieg were the original plaintiffs in this case. ACP was dissolved in 2009, but Plaintiff and his associates continue their Christian ministry of evangelizing Muslims. On January 15, 2010, ACP was voluntarily dismissed from this action, see docket entry 25, leaving only Saieg as a party plaintiff. [2] Haddad is sued in his official capacity only. [3] Section 1988(b) authorizes a court, in its discretion, to award reasonable attorney's fees to the prevailing party in a civil rights case. [4] A full transcript of the hearing is attached as Exhibit P to Defendants' motion. [5] ACP dissolved in 2009 but its mission remains important to Plaintiff and his associates: [i]n December 2009, the Board of Directors voted to dissolve ACP. Nonetheless, my fellow Christians and I will continue our public ministry to evangelize Muslims, including evangelizing Muslims in the City of Dearborn, Michigan ... during the annual Dearborn Arab International Festival. Saieg Aff. ¶ 6. See also Saieg Dep. at 16. [6] The Festival organizers requested that this "buffer zone" be created "between the open streets and the area where the core Festival activities were occurring" "[t]o ensure an orderly and safe transition from the open streets and the streets occupied by the Festival." Id. at 3. [7] For Festivals prior to 2009, any Warren Avenue business that wanted to set up a sidewalk sale at the Festival was required to apply to the City for a permit and obtain a City-issued permit/certificate. This changed beginning with the 2009 Festival: A: [I]n the past [before 2009] the city had issued the sidewalk sales permits and then after that [the AACC] had a discussion [with the City] and it was agreed that the [AACC] would issue permits or certifications allowing [Warren Avenue businesses] to have things outside ... Beydoun Dep. at 31. See also id. at 65. According to Defendants, "this change in procedures caused the sidewalks to become subsumed within the Festival boundaries." Def. Br. 7. [8] Haddad has extensive experience in law enforcement and, specifically, in crowd control. As he testified before Judge Edmunds: I'm in my 35th year of law enforcement. I spent 34 short years of my life in the City of Detroit.... I worked for Chrysler security over their fire and security at three major plants for nine months, and I've been the 18th police chief for the City of Dearborn since December 15th. * * I was assigned in charge of Detroit's east side, and that included the downtown area. Also, southwest Detroit was attached to it, and I had the occasion to be the commanding officer of the 11th Precinct for eight years during which time we did the Michigan State Fair for eight consecutive years. I was the task force commander there, as well. And the short answer is yes, I've been assigned many jobs for crowd control. * * * And I was also in charge of Homeland Security for six years as an added responsibility for the City of Detroit, and I oversaw all major special events. Def. Ex. P., pp. 18-19. [9] In short, Plaintiff states that he wishes to reach Muslims who have "been [held] captive in their countries for years," who have previously "not [been] allowed to hear about Jesus Christ"; in other words, "the people that are afraid to walk to a Christian booth." Saieg Dep. at 96. [10] The Court takes this opportunity to clarify precisely what rule/regulation is being subjected to constitutional scrutiny in this case. Again, as discussed above, there is no written rule promulgated by the AACC banning all handbilling at the Festival. Instead, the written Festival rules ban "solicitation," which, according to Beydoun, covers commercial handbilling only, and "political solicitation." These written rules are not at issue in this case because they are rules that are promulgated by a private organization and Dearborn Police Chief Haddad has never indicated that he and his officers will be enforcing them. Instead, Haddad indicated that he and his officers will be enforcing an "across the board" ban on all types of handbilling at the Festival, except for handbilling that occurs at designed booths. It is this "across the board" ban about which Plaintiff complains; it is therefore the "across the board," police enforced ban that is the subject of constitutional scrutiny. Thus, the City has vowed to enforce a broad ban on handbilling in both the inner and outer perimeters of the Festival, except for handbilling from a designated booth/table. Plaintiff complains about this police-enforced ban and, because Dearborn police officers did (in 2009), and will (in 2010), enforce it, the First Amendment applies. The Court finds that the public streets on which the Festival is held are "not serving in that function during the festival" see Spingola, 39 Fed.Appx. at 983, rather, they comprise part of a fairground. [11] As noted in the background section, the AACC waived Plaintiff's rental fee. [12] During oral argument, counsel for Defendants indicated that the AACC would waive Plaintiff's rental fee, as it did last year. [13] Plaintiff also argues that the ban violates his Fourteenth Amendment right to equal protection for the same reason. [14] Beydoun testified that only businesses along Warren Avenue were permitted to be sidewalk vendors: Q: Is there anybody other than the businesses [along Warren Avenue] who were the sidewalk vendors? * * * A: No. Q: So the sidewalk vendors are essentially the businesses along Warren Avenue? A: That is correct. Beydoun Dep. at 64-65. [15] For the same reason, Plaintiff's equal protection claim fails. The case upon which Plaintiff relies in support of his equal protection claim, Mosley, is inapplicable. In Mosley, the Supreme Court held that a city ordinance prohibiting all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute, violated the Equal Protection Clause because it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Id. at 94, 92 S. Ct. 2286. Here, on the other hand, as explained, occupants along Warren Avenue are conferred the right to conduct sidewalk sales during the Festival because of their location alone, not because of a message, idea, or subject matter of speech espoused by the occupant. [16] Plaintiff's briefs contain repeated references to an outer perimeter that is "30 blocks" in size. This description is misleading because, as discussed, the outer perimeter runs only one block to the north and south of the inner perimeter and five and four blocks, respectively, to the west and east of the inner perimeter.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2664809/	UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE PAPST LICENSING GMBH & CO. KG LITIGATION Misc. Action No. 07-493 (RMC) MDL Docket No. 1880 This Document Relates To: Papst Licensing GmbH & Co. KG v. Samsung Techwin Co., et al., Civ. No. 07-2088 (D.D.C.) MEMORANDUM OPINION DENYING PAPST’S MOTION TO AMEND COMPLAINT In this Multi District Litigation (“MDL”), Papst Licensing GmbH & Co. (“Papst”) has alleged that digital camera manufacturers that sell products in the United States have infringed U.S. Patent Nos. 6,470,399 and 6,895,449 (collectively the “Patents”). In opposition, the camera manufacturers seek a declaratory judgment of non-infringement and/or patent invalidity.1 1 This litigation currently consists of First and Second Wave Cases. The “First Wave Cases” currently are: Fujifilm Corp. v. Papst, 07-cv-1118; Matsushita Elec. Indus. Co., Ltd. v. Papst, 07-cv- 1222; Papst v. Olympus Corp., 07-cv-2086; Papst v. Samsung Techwin Co., 07-cv-2088; Hewlett Packard Co. v. Papst, 08-cv-865; and Papst v. Nikon Corp., 08-cv-985. The “First Wave Camera Manufacturers” include: Fujifilm Corporation; Fujifilm U.S.A., Inc.; Fujifilm Japan; Matsushita Electric Industrial Co., Ltd.; Victor Company of Japan, Ltd.; Olympus Corporation; Olympus Imaging America Inc.; Samsung Techwin Co.; Samsung Opto-Electronics America, Inc.; Panasonic Corporation of North America; JVC Company of America; Hewlett-Packard Company; Nikon Corporation; and Nikon, Inc. The “Second Wave Cases” are: Papst v. Canon, 08-cv-1406; Papst v. Eastman Kodak, 08-cv-1407; Papst v. Sanyo, 09-cv-530. The “Second Wave Camera Manufacturers” include: Canon, Inc.; Canon USA, Inc.; Eastman Kodak Company; Sanyo Electric Co., Ltd; and Sanyo North America Corporation. At the time this Court gained jurisdiction over the Second Wave Cases, the First Wave Cases were on the eve of the September 2008 claims construction hearing. Because no discovery had been conducted in the Second Wave Cases, those cases could not be addressed in the claims construction hearing. Rather than put the First Wave Cases on hold for an extended period while the Second Wave Cases conducted discovery and caught One of the underlying lawsuits that was transferred to this MDL is Papst Licensing GmbH & Co. KG v. Samsung Techwin Co., Civ. No. 07-2088 (D.D.C.) (“Papst v. Samsung Techwin”). In that case, Papst brought suit against Samsung Techwin Co. and Samsung Opto- Electronics America, Inc. alleging that they made, used, or sold digital cameras that infringed the Patents. Papst now moves to amend the complaint in Papst v. Samsung Techwin to add three additional parties: Samsung Electronics Co. Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC. Papst also seeks to amend the complaint to allege that additional products infringe the Patents, namely camcorders, camera phones, and MP3 players/voice recorders. As explained below, the proposed amendment would greatly prejudice the opposing parties and thus the motion to amend will be denied. I. FACTS In June of 2007, Papst brought suit against Korea-based Samsung Techwin Co. (“Techwin”) and its U.S. subsidiary, Samsung Opto-Electronics America, Inc. (“Opto-Electronics”) in the Central District of California. See Papst Licensing GmbH & Co. KG v. Samsung Techwin Co., No. 07-4249 (C.D. Calif.). Venue was transferred to the District of New Jersey. See Papst Licensing GmbH & Co. KG v. Samsung Techwin Co., 07-4940 (D.N.J.). The MDL Panel transferred the case into this MDL on November 5, 2007. See Papst Licensing GmbH & Co. KG v. Samsung Techwin Co., 07-2088 (D.D.C.), MDL Transfer Order [Dkt. #1]. Papst alleged that the Techwin and Opto-Electronics infringed the Patents by “making, using, offering to sell or selling within the United States and/or importing into the United States, including this judicial district, digital cameras” covered by the Patents. See id., Compl. [Dkt. #3-1]. up, the Court stayed the Second Wave Cases. The Second Wave Cases currently remain stayed. See Seventh Practice and Procedure Order [Dkt. # 391]. -2- Early in this litigation, on April 8, 2008, the Court entered a scheduling order requiring that motions to join third parties or to amend the pleadings be filed by June 25, 2008. See Second Practice & Pro. Order [Dkt. # 36 ] ¶ 19. In November of 2008, the Court stayed discovery. See Minute Order filed Nov. 13, 2008. Subsequently, in February of 2009, Techwin transferred its digital camera business to Samsung Digital Imaging Co., which in turn merged its digital camera business into Korea-based Samsung Electronics Co. Ltd. on April 1, 2010. Samsung Digital Imaging Co. then ceased to exist as a separate entity. On October 4, 2010, Papst moved for leave to file a first amended complaint. Papst seeks to add three parties to the Papst v. Samsung Techwin case: Samsung Electronics Co. Ltd. and its U.S. subsidiaries, Samsung Electronics America, Inc. and Samsung Telecommunications America, LLC. (all three collectively “the Samsung Electronics entities”). Papst also moves to amend the complaint to allege that, in addition to digital cameras, the following products infringe the Patents: camera phones, camcorders, and digital voice recorders/MP3 players. Techwin, Opto- Electronics, and the First Wave Camera Manufacturers oppose. II. LEGAL STANDARD Papst erroneously contends that this matter is governed by Federal Rule of Civil Procedure 15(a), which provides that a leave to amend should be freely granted “when justice so requires.” Fed. R. Civ. P. 15(a). Under this standard, a court may deny a motion to amend if it finds “undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party.” Foman v. Davis, 371 U.S. 178, 182 (1962). Because Papst seeks leave to amend which deviates from a court-ordered deadline, the more stringent good cause standard imposed by Federal Rule of Civil Procedure 16(b) applies. -3- The good cause standard under Rule 16(b) applies after the deadlines set forth in a scheduling order have passed. Lurie v. Mid-Atlantic Permanente Medical Grp., P.C., 589 F. Supp. 2d 21, 23 (D.D.C. 2008) (relying on numerous circuit courts). “To hold otherwise would allow Rule 16’s standards to be ‘short circuited’ by those of Rule 15 and would allow for parties to disregard scheduling orders, which would ‘undermine the court’s ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.’” Id. at 23 (quoting Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003)). Rule 16(b) provides that a court may enter a scheduling order that limits the time to amend the pleadings and that such schedule may be modified only for good cause and with the judge’s consent. Fed. R. Civ. P. 16(b)(4) (emphasis added). The Second Practice and Procedure Order that set the June 25, 2008 deadline for joining third parties and amending the pleadings recited this rule. See Second Practice & Pro. Order [Dkt. # 36] (“This schedule shall not be modified, even where all parties consent, except upon a showing of good cause and by leave of the Court.”). To show good cause under this Rule, the moving party must show both diligence and a lack of prejudice to the opposing parties. See Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002) (motion to amend denied due to undue delay); Leary, 349 F.3d at 906 (to determine whether good cause has been shown, a court must consider the issue of prejudice). IV. ANALYSIS A. Diligence Papst was not diligent in moving to amend the complaint in Papst v. Samsung Techwin. The Techwin spin off of its digital camera business in February 2009 was a matter of public knowledge. Papst knew about it and mentioned the fact in a hearing before the Court on July 14, 2009. However, Papst did not file its motion to amend until October 2010, more than a year later. See, e.g, Monolithic Power Sys., Inc. v. 02 Micro Internat’l Ltd., Civ. No. 08-4567, 2009 WL -4- 3353306, 2 (N.D. Cal. Oct. 16, 2009) (finding that 02 Micro was not diligent because it had the new information on the proposed accused products three months before it filed its motion to amend its infringement contentions); Realtime Data, LLC v. Packeteer, Inc., Civ. No. 08-144, 2009 WL 2590101, 5 (E.D. Tex. Aug. 18, 2009) (waiting nine months after serving the original infringement contentions to seek leave to amend is not a reasonable period of time). “With a lawsuit of great complexity, it is all the more imperative to avoid springing new claims on Defendants at a late stage.” Realtime Data, 2009 WL 2590101 at *6. B. Prejudice 1. Addition of New Parties Even if Papst were timely, the Court must consider the prejudice to other parties and its obligation to manage its docket. Techwin and Opto-Electronics would be greatly prejudiced by the addition of three additional parties this late in the case. The Samsung Electronics entities are entities separate and apart from Techwin and Opto-Electronics. They have separate management and separate product lines. Any alleged liability of Techwin and Opto-Electronics stopped accruing in February of 2009 when Techwin transferred its digital camera business to Samsung Digital Imaging Co. The actions of the three Samsung Electronics entities have no bearing on the claims and defenses in Papst v. Samsung Techwin. If three new parties were added to the case, they would need sufficient time to review the last three years of litigation. Even if the Court were to add them to the Second Wave cases, the presence of the new parties in Papst v. Samsung Techwin would prevent an early appealable disposition with regard to Techwin and Opto-Electronics because a disposition with regard to only some of the parties to a case is not appealable without a certification under Federal Rule of Civil Procedure 54(b). “Absent Rule 54(b) certification, there may be no appeal of a judgment disposing of fewer than all aspects of a consolidated case.” Spraytex, Inc. v. -5- DJS&T, 96 F.3d 1377, 1382 (Fed. Cir. 1996) (citing Fed. R. Civ. P. 54(b)). Moreover, Papst v. Samsung Techwin appears close to a final disposition. That case is confined to 95 camera models. Some of those models are SLR cameras, which were manufactured and sold by Techwin and Opto-Electronics under an agreement with Papst’s licensee, Pentax. Techwin and Opto-Electronics allege that those SLR cameras cannot infringe the Patents because they are licensed. Also, Techwin and Opto-Electronics allege that the remainder of their cameras lack a “second connecting device”as construed by the Court in the Modified Markman Opinion, and thus they do not infringe the Patents. See Modified Claims Construction Op. [Dkt. # 336]; Modified Order [Dkt. # 337]. At this juncture, it appears that the disposition of Papst v. Samsung Techwin could be imminent. To permit the addition of new parties at this late stage would prevent a final ruling and the delay would prejudice Techwin and Opto-Electronics. B. Addition of New Product Categories Techwin, Opto-Electronics, and the First Wave Camera Manufacturers have shown prejudice regarding the request to amend to add product categories. This MDL has been pending since November 5, 2007, i.e., over three years. When the MDL Panel transferred this litigation to this Court, the suit included the following five cases: 1. Casio, Inc. v. Papst Licensing GmbH & Co. KG, D.D.C. No. 06-1751; 2. Fujifilm Corp. v. Papst Licensing GmbH & Co. KG, D.D.C. No. 07-1118; 3. Papst Licensing GmbH & Co. KG v. Olympus Corp., D. Del. No. 07-415 (07-2086 (D.D.C.)); 4. Papst Licensing GmbH & Co. KG v. Fujifilm Corp., N.D. Ill. No. 07-3401 (07-2087 D.D.C.) ; and 5. Papst Licensing GmbH & Co. KG v. Samsung Techwin Co., D.N.J. No. 07-4940 -6- (previously C.D. Calif. No. 07-4249) (07-2088 D.D.C.). See MDL Transfer Order [Dkt. # 1]. The MDL Panel determined that “[t]he actions involve common factual allegations regarding digital cameras made by certain manufacturers, which Papst claims infringe two of its patents; the validity and enforceability of these patents is at issue in all five actions." Id. (emphasis added). The MDL Panel titled the litigation “In re Papst Licensing Digital Camera Patent Litigation.” In sum, venue for these cases was transferred here because these cases all involved the question of whether digital cameras infringe the Patents. Since the inception of this MDL, the Court and the parties have proceeded believing that the products at issue were digital cameras. Specifically, Papst’s complaint against Techwin and Opto-Electronics alleges that they infringed the Patents by “making, using, offering to sell or selling within the United States and/or importing into the United States, including this judicial district, digital cameras . . . .” See, e.g., Civ. No. 07-2088 (D.D.C.), Compl. [Dkt. #3-1] ¶¶ 9 & 17. Further, the September 3, 2008 tutorial hearing, held in preparation for claims construction, was focused exclusively on digital cameras. The parties chose the terms for claims construction with an eye toward how such claims terms would apply to digital cameras. The Court held a claims construction hearing September 22 through 24, 2008, and rendered its final claims construction opinion and order on November 24, 2009. See Modified Claims Construction Op. [Dkt. # 336]; Modified Order [Dkt. # 337].2 A great deal of discovery has been completed with a focus on digital cameras. When discovery was stayed in November 2008, there were fewer than six weeks remaining for fact discovery on liability. 2 The Modified Claims Construction Opinion and Order were issued upon reconsideration and replaced the original opinion and order filed on June 12, 2009. See Op. [Dkt. # 312]; Order [Dkt. # 313]. -7- Adding new product categories — camera phones, camcorders, and digital voice recorders/MP3 players — this late in the case would significantly expand and delay the litigation against Techwin and Opto-Electronics, especially since these product categories are not manufactured or sold by Techwin or Opto-Electronics, but are only produced and sold by the Samsung Electronics entities. It should also be noted the new product categories that Papst wishes to add are product categories that were made or sold by the Samsung Electronics entities long before the June 2008 deadline for adding new parties or amending the pleadings in this MDL. Papst could have brought suit against the Samsung Electronics entities well before the deadline imposed by this Court. The fact that Papst did not do so demonstrates that even Papst understood that this MDL was centered on digital cameras and not on other products.3 Techwin and Opto-Electronics would be greatly prejudiced by the addition of new parties and products to Papst’s suit against them. Even if litigation efficiencies promote the addition of new cases to this MDL, Papst v. Samsung Techwin should be permitted to move forward unencumbered by new parties who sell new product categories. IV. CONCLUSION As explained above, Papst’s motion for leave to file a first amended complaint in the Samsung case [Dkt. # 377] will be denied. A memorializing Order accompanies this Memorandum Opinion. 3 This point also goes to the issue of diligence. Because Papst could have brought suit against the Samsung Electronics entities even before the June 2008 deadline for adding third parties and amending pleadings, its attempt to bring new parties and new claims into the suit against Techwin and Opto-Electronics two and a half years later does not constitute diligence. -8- Date: February 1, 2011 /s/ ROSEMARY M. COLLYER United States District Judge -9-	01-03-2023	04-04-2014
https://www.courtlistener.com/api/rest/v3/opinions/2537838/	351 S.W.3d 507 (2011) Gail MAYBERRY, Appellant, v. The STATE of Texas, Appellee. No. 04-10-00274-CR. Court of Appeals of Texas, San Antonio. August 10, 2011. 508 Chris Iles, Attorney at Law, Refugio, TX, for Appellant. Rene M. Pena, Criminal District Attorney, Mark Ledet, Assistant District Attorney, Floresville, TX, for Appellee. Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice. OPINION Opinion by: MARIALYN BARNARD, Justice. A jury convicted appellant Gail Mayberry of several counts of child endangerment. In her sole point of error, Mayberry contends the evidence is insufficient to support her conviction. We affirm the trial court's judgment. BACKGROUND On December 21, 2008, Mayberry came home from work and found numerous children in her home. The children were out of school on Christmas break. The children included her fifteen-year-old son, her two other children, and several of their friends. According to certain testimony, when Mayberry arrived, her fifteen-year-old son asked if he could have the car keys so he and some of the other children could "go driving around" in the family station wagon. Mayberry contends her son was driving only to take the children home. Despite the fact that her son was fifteen and unlicensed, Mayberry handed him the keys. Mayberry did not accompany the children. Mayberry's son drove the group around for a while, ultimately heading to a place known as the "third bridge," a bridge over water where children would fish and swim. When they got to the bridge it was dark and Mayberry's son turned the car lights off in an attempt to scare the other children. There is apparently a legend about a ghost woman or some other entity haunting the bridge. At least one of the girls was scared and wanted to go home. The group then returned to Mayberry's house. When the group arrived back at the house, Mayberry's son honked the horn and the only two children that stayed behind during the first "ride around," decided to go along on the second trip-all of those along on the first trip stayed in the car. There was evidence that before they left, Mayberry stepped outside and saw the children in the car. With the two additional passengers, there was insufficient space in the car seats for all of the children, requiring that at least some of them remain without a seatbelt. Including the fifteen-year-old driver, there were nine children in the car. One of the children testified that Mayberry told them some of them could sit in the 509 storage compartment in the back. The group drove off with Mayberry's son still at the wheel. On this second trip, the group decided to go back to the third bridge. Again, the lights were turned off in an attempt to scare the younger children. As before, one of the children wanted to go home so they left and went back to Mayberry's house. Two of the children got out of the car, but Mayberry's son left a third time with six of the children still in the car. Their destination was once again the third bridge. This time, however, the evidence showed Mayberry's son drove very fast toward the bridge, causing the car to become airborne. When the car landed, the driver lost control, crashed through a fence, and landed in an empty pond. As a result of the crash, some of the children were seriously injured and two of them died. It was ultimately determined that Mayberry's son had been traveling over 100 miles per hour; he was the only child in the car wearing a seatbelt. Mayberry was indicted on seven counts of child endangerment. After a jury trial, she was found guilty and the trial court sentenced her to two years in a state jail facility, but suspended the sentenced and placed Mayberry on two years community supervision. She was also ordered to pay a $1,500.00 fine and court costs. Mayberry then perfected this appeal. ANALYSIS Standard of Review We begin by noting that although Mayberry raises both legal and factual sufficiency challenges to the evidence, the Texas Court of Criminal Appeals has abolished factual sufficiency review. See Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim.App.2011) (citing Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App.2010) (plurality opinion)). Now, the legal sufficiency standard established in Jackson v. Virginia is the only standard a reviewing court uses in determining whether the evidence is sufficient to support each element of the charged offense. Brooks, 323 S.W.3d at 895 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Accordingly, we will review Mayberry's issue as a challenge to the legal sufficiency of the evidence. In reviewing a claim that the evidence is legally insufficient, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, 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. This standard accounts for the fact finder's duty "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. Accordingly, in analyzing legal sufficiency, we will determine whether the necessary inferences are reasonable based on the combined force of the evidence, direct and circumstantial, when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). Application Mayberry argues the State failed to produce sufficient evidence that she knew the danger to the children was "imminent" or that she acted "intentionally, knowingly, recklessly, or with criminal negligence." A person commits the offense of endangering a child if she "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical, or mental impairment." TEX. PENAL CODE ANN. § 22.041(c) (West 2011). 510 The Texas Court of Criminal Appeals has held "imminent" means "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989); see also Rodriguez v. State, 137 S.W.3d 758 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding danger was "imminent" in child endangerment case where defendant drove under the influence with children as passengers). In support of her argument, Mayberry points out her son "did much driving under her tutelage." She also allowed him to drive across the street to the grocery store, to basketball practice, to take friends home, "and many other places." Mayberry also apparently allowed him, on previous occasions, to drive with other children in the car. She allowed him to drive the car to San Marcos with her supervision. Mayberry even allowed her son to drive at night. Mayberry contends that in all the times she allowed him to drive, with or without her, he never received a ticket, never damaged the car, and she never received any complaints about his driving. Accordingly, Mayberry asserts that her offense, at most, was allowing her son to drive without a license. Mayberry seems to contend that without evidence she knew her son would drive recklessly or negligently, she was not subject to a conviction for child endangerment. We disagree. The evidence, when viewed in the light most favorable to the verdict, established that Mayberry allowed a fifteen-year-old, unlicensed driver to drive a station wagon, at night, without adult supervision. She allowed that fifteen-year-old, unlicensed driver to drive around, at night, unsupervised with first six, and then eight, children. Moreover, she allowed this knowing that not all of these children would be able to sit safely in the vehicle, requiring that at least some of them travel without seatbelts. There was evidence that on the second trip, she saw all of the children in the vehicle, saw they could not all sit safely on the vehicle seats given their numbers, and advised that some of them could sit in the open cargo compartment in the back. Mayberry allowed her son to leave her house and drive with these children as passengers not once, not twice, but three times. Clearly, Mayberry had no idea where her son was or where he was taking the children, as the officer testified she stated her son "should have been driving around town but he shouldn't have been out there." According to her own testimony, she did not know where all of her children were-in the house or with her fifteen-year-old son. It is irrelevant that her son had no previous accidents. His previous driving experience is likewise irrelevant. At the moment Mayberry allowed an underage, unlicensed driver to operate the vehicle at night with more passengers than there were available seats, the danger to the children was imminent. See Rodriguez, 137 S.W.3d at 761 (holding rational fact finder could have found appellant placed children in imminent danger where officer testified he could not rule out alcohol consumption as contributing factor to car accident, even though other driver failed to yield right of way; alcohol impairment could have caused appellant to react more slowly). Moreover, the evidence shows Mayberry's actions in giving her son the car keys and allowing him to drive with improperly seated children was intentional, or at least reckless. Mayberry herself saw there was insufficient room in the car for all of the children, and specifically told them to sit in the open cargo space. Considering this evidence within the Jackson v. Virginia standard, we hold the jury could have found Mayberry intentionally, knowingly, recklessly, or with criminal 511 intent placed the children in imminent danger of death, bodily injury, or physical impairment. See 443 U.S. at 319, 99 S. Ct. 2781; TEX. PENAL CODE ANN. § 22.041(c). There was conflicting evidence, but it was within the province of the jury to resolve the conflicts, weigh the evidence, and draw reasonable inferences. Jackson, 443 U.S. at 319, 99 S. Ct. 2781. We hold the jury's inferences were reasonable based on the combined force of the evidence, direct and circumstantial, when viewed in the light most favorable to the verdict. See Clayton, 235 S.W.3d at 778. The dissent points out that "[t]he determination of whether a child is in imminent danger is always a fact-intensive exercise." Dissenting opinion at 513. We wholly agree with this assertion. However, the dissent then ignores the applicable standard, which places fact finding within the province of the jury, allowing it to draw reasonable inferences from the basic facts and make an ultimate determination with regard to whether the danger to the children was imminent. See Jackson, 443 U.S. at 319, 99 S. Ct. 2781. Our duty is not to act as a thirteenth juror, but merely to determine whether the jury's inferences are reasonable based on the combined force of the evidence-both direct and circumstantial-when viewed in the light most favorable to the jury's verdict. Id. Given the combined force of the evidence in this case, any rational fact finder could have found Mayberry placed the children in imminent danger of bodily injury beyond a reasonable doubt. See Rodriguez, 137 S.W.3d at 761 (holding rational fact finder could have found appellant placed children in imminent danger where officer testified he could not rule out alcohol consumption as contributing factor to car accident, even though other driver failed to yield right of way; alcohol impairment could have caused appellant to react more slowly). Certainly, the evidence establishing the driver's lack of experience given his age, his unlicensed status, and Mayberry's decision to allow unbelted children to travel with such a driver was evidence from which the jury could have inferred imminent danger-especially when combined with the testimony that Mayberry's son was driving one hundred miles an hour at the time of the accident, suggesting he was not the safe driver Mayberry claimed he was and that she was aware of this. Given the standard of review, we cannot say such an inference by the jury was unreasonable. CONCLUSION Based on the foregoing, we overrule Mayberry's issue and affirm the trial court's judgment. Dissenting opinion by: STEVEN C. HILBIG, Justice. STEVEN C. HILBIG, Justice, dissenting. The majority concludes the evidence is legally sufficient to support Gail Mayberry's six convictions for endangering a child. I disagree. Background Mayberry was charged with seven counts of endangering a child under section 22.041(c) of the Texas Penal Code.[1] The charges arose from an automobile accident that caused the death of two children and harmed several other children. 512 The indictment alleged Mayberry "intentionally, knowingly, recklessly, or with criminal negligence" engaged in conduct that placed a child younger than fifteen years of age in "imminent danger of death, bodily injury, or physical or mental impairment." The State pled that the criminal conduct was either "allowing or requesting" her son Deon Mayberry, who was fifteen years old and did not hold a valid Texas driver's license, to operate a motor vehicle with the child as a passenger, or by "failing to prevent" her son from operating the vehicle.[2] ARTICLE 21.15 TEXAS CODE OF CRIMINAL PROCEDURE I disagree with the majority's decision because the evidence does not support a conviction for endangering a child under section 22.041(c) of the Texas Penal Code. Article 21.15 of the Texas Code of Criminal Procedure provides that whenever the accused is charged with acting recklessly or with criminal negligence in the commission of the offense, the charging instrument "must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence." TEX.CODE CRIM. PROC. ANN. art. 21.15 (West 2009); Mitchell v. State, 321 S.W.3d 30, 36-37 (Tex.App.-Houston [1st Dist.] 2010, pet. refd). The State is limited to the acts pled in the charging instrument to prove the recklessness or criminal negligence of the conduct. See Mitchell, 321 S.W.3d at 36-37; Goodrich v. State, 156 S.W.3d 141, 145-47 (Tex. App.-Dallas 2005, pet. refd); Millslagle v. State, 81 S.W.3d 895, 897-98 (Tex.App.-Austin 2002, pet. ref'd); see also Sanchez v. State, ___ S.W.3d ___, ___ (Tex. Crim.App.2010) (limiting discussion of sufficiency of evidence to manner and means theories alleged in indictment); Jefferson v. State, 189 S.W.3d 305, 310-14 (Tex. Crim.App.), cert. denied 549 U.S. 957, 127 S. Ct. 386, 166 L. Ed. 2d 276 (2006) (in discussing unanimous verdict requirement, court limited discussion to manner and means alleged in indictment). Because the State chose to limit its allegations of child endangerment to Mayberry's "allowing or requesting Deon Mayberry, a 15 year old, without a valid Texas driver's license, to operate a motor vehicle in which [the child] was a passenger," or "by failing to prevent Deon Mayberry, a 15 year old, without a valid Texas driver's license, to operate a motor vehicle in which [the child] was a passenger," our analysis should only address those facts. The majority relies on the following evidence to sustain the jury's verdict: Mayberry's son was fifteen and was unlicensed, he drove without adult supervision, at night, with six or eight children without sufficient seatbelts for each child, Mayberry advised some of the children to sit in an area of the car that did not have any seatbelts, she allowed her son to leave the residence with child passengers three times, Mayberry had "no idea" where her son was driving, and Mayberry did not know the whereabouts of all her children that night. Majority opinion at 510. But the State chose to limit its allegations to only the first two facts to prove she committed the offense. Therefore, our analysis should properly rely only on those two facts to determine whether the children were in imminent danger when she requested, allowed, or failed to prevent her unlicensed son from operating the vehicle in which the children were passengers. The parties appear to agree this case turns on whether the danger of death, bodily injury, or impairment was imminent. 513 In a previous child endangerment case, this court defined "imminent" as meaning "`ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near.'" Elder v. State, 993 S.W.2d 229, 230 (Tex.App.-San Antonio 1999, no pet.) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim. App.1989)). Conduct that merely places a child in a potentially dangerous situation is not sufficient for conviction. See Millslagle, 81 S.W.3d at 898. The determination of whether a child is in imminent danger is always a fact-intensive exercise. However, my review of cases discussing the "immediacy" element reveals a consistent pattern. Where the danger is at hand, courts have affirmed the convictions. See Rodriguez v. State, 137 S.W.3d 758, 762-63 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (intoxicated driver failed to slow down when second vehicle turned in front of him and vehicles collided); Walker v. State, 95 S.W.3d 516, 520-21 (Tex.App.-Fort Worth 2002, pet. refd) (while evading officer, defendant drove at speeds up to eighty-five miles per hour, ran stop sign, drove across highway grass median, and eventually wrecked vehicle with child occupant); see also Butler v. State, No. 14-09-000067-CR, 2010 WL 547055, at 4 (Tex.App.-Houston [14th Dist.] Feb. 18, 2010, no pet.) (mem. op., not designated for publication) (defendant drove while intoxicated with two unrestrained children in vehicle, defendant admitted to smoking marijuana and left cocaine and marijuana in vehicle with children while talking with police); Wahlig v. State, No. 03-07-00695-CR, 2009 WL 884779, at 4-5 (Tex.App.-Austin Mar. 27, 2009, pet. ref'd) (mem. op., not designated for publication) (defendant set fire to house with children inside); Teeter v. State, No. 05-06-00309-CR, 2007 WL 510356, at 6-12 (Tex.App.-Dallas Feb. 20, 2007, no pet.) (not designated for publication) (intoxicated school bus driver drove at a high rate of speed, went off road, crossed center line, swerved from side-to-side, and nearly "flipped" bus while turning without slowing); Steinecke v. State, No. 01-05-00813-CR, 2007 WL 1119890, at 4-6 (Tex.App.-Houston [1st Dist.] Apr. 12, 2007, no pet.) (mem. op., not designated for publication) (defendant took no action when vehicle on fire, with children in back seat); Vreeland v. State, No. 13-04-368-CR, 2006 WL 3028065, at 4-5 (Tex. App.-Corpus Christi Oct. 26, 2006) (mem. op., not designated for publication) (defendant left child in closed car for eight hours when outside temperatures exceeded ninety degrees); Dewey v. State, No. 05-06-00445-CR, 2006 WL 2337800, at 3 (Tex.App.-Dallas Aug. 14, 2006, no pet.) (mem. op., not designated for publication) (intoxicated driver driving erratically came within four feet of a group of children); Tems v. State, No. 06-04-00164-CR, 2005 WL 2076639, at 5-8 (Tex.App.-Texarkana Aug. 30, 2005, pet ref'd) (mem. op., not designated for publication), cert. denied, 547 U.S. 1211, 126 S. Ct. 2898, 165 L. Ed. 2d 926 (2006) (defendant drove at speeds exceeding ninety-five miles per hour while fleeing from police with unrestrained eighteen-month-old daughter in vehicle); Head v. State, No. 09-06-028-CR, 2006 WL 3742800, at 2-4 (Tex.App.-Beaumont Dec.20, 2006, no pet.) (mem. op., not designated for publication) (defendant drove at excessive speed while intoxicated with three children in vehicle); Pittman v. State, No. 14-03-01296-CR, 2005 WL 1149819, at 1 (Tex.App.-Houston [14th Dist.] May 17, 2005, no pet.) (mem. op., not designated for publication) (intoxicated school bus driver appeared to fall asleep while driving, unable to control bus by driving within a single lane, failed to negotiate a turn and drove the bus into a ditch); Anguiano v. State, No. 08-02-00443-CR, 514 2004 WL 178601, at 1-2 (Tex. App.-El Paso Jan. 29, 2004, pet. ref'd) (mem. op., not designated for publication) (intoxicated driver crashed car against curb, found passed out with door open and child restrained in car seat reaching for a liquid-filled syringe ten inches away); Suarez v. State, No. 05-03-00096-CR, 2003 WL 23025024, at 3-5 (Tex. App.-Dallas Dec. 30, 2003, pet ref'd.) (mem. op., not designated for publication) (defendant allowed three-year-old child to remain unrestrained in moving vehicle, child fell out of front passenger window); Harrist v. State, Nos. 11-01-00093-CR & 11-01-00094-CR, 2002 WL 32344342, at 2-3 (Tex.App.-Eastland Mar. 28, 2002, no pet.) (not designated for publication) (while defendant slept in motel room, her six year-old child with Down's syndrome twice crossed busy street and police discovered open knives, syringes and pill bottles strewn about table and floor of motel room, and defendant had knowledge that child had tendency to run into roadways); Perez v. State, No. 05-99-00830-CR, 2000 WL 1716517, at 2 (Tex.App.-Dallas Nov. 17, 2000, no pet.) (not designated for publication) (defendant found unconscious in parking lot next to vehicle with door open, four-month-old baby found inside vehicle, upon awakening defendant appeared intoxicated and incoherent, and did not know his identity). However, where the danger was a more remote possibility, courts have concluded the danger was not imminent. See Millslagle, 81 S.W.3d at 895 (defendant left three-year-old boy unattended in truck while inside store hiding in space above ceiling and using methamphetamine; State alleged culpable conduct as leaving child alone for forty-five minutes in vehicle and using drugs); Elder, 993 S.W.2d at 231 (defendant and children lived with person on probation for indecency with child, person molested one of defendant's children); see also Williams v. State, No. 03-08-00684-CR, 2010 WL 2788819, at 5-7 (Tex. App.-Austin July 14, 2010, no pet.) (mem. op., not designated for publication) (no imminent harm to three children who lived with defendant in apartment where drugs were packaged with decorative comic-book character Batman sticker; drugs were found on high shelf in living room closet, and court reasoned too many intervening steps between location of drugs and harm to children); Salazar v. State, No. 10-07-00335-CR, 2008 WL 2374941, at 2 (Tex. App.-Waco June 11, 2008, pet. refd) (mem. op., not designated for publication) (defendant's two and three-year-old children found on public street headed towards busy road, defendant was talking on phone when children apparently climbed out window and ran into street); Medearis v. State, No. 11-04-00201-CR, 2006 WL 1913488, at 2-3 (Tex.App.-Eastland July 13, 2006, no pet.) (mem. op., not designated for publication) (defendant's two and three-year-old children found unsupervised in unfenced front yard located in residential area while defendant slept in residence); Moody v. State, No. 01-03-00685-CR, 2004 WL 1472216 (Tex.App.-Houston [1st Dist.] July 1, 2004, no pet.) (mem. op., not designated for publication) (defendant's two and three-year-old children habitually found outside residence on private gravel road near busy road with 45 mph speed limit, often seen clad only in diapers even in colder temperatures, and residence kept in dirty, "nasty," smelly, and unsanitary condition.); Moreno v. State, No. 07-01-0441-CR, 2003 WL 21516575, at 2-3 (Tex.App.-Amarillo July 3, 2003, no pet.) (mem. op., not designated for publication) (defendant arrested for DWI, left ten-month-old baby, ten-year old child and eight-year-old child home alone in custody of twelve-year-old child); Bordelon v. State, No. 09-96-305-CR, 1998 WL 515 770449, at 2 (Tex.App.-Beaumont Nov. 4, 1998, no pet.) (not designated for publication) (defendant and co-worker moved heavy object through part of day care center, defendant left coworker to answer phone and told co-worker to wait for her return, co-worker attempted to move object which fell on child killing her). I believe the evidence demonstrates Mayberry did no more than to place the children in a potentially dangerous situation by engaging in the acts alleged by the State. As her son drove away, the danger to the children was not "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Elder, 993 S.W.2d at 230. Certainly, Mayberry placed the children in a potentially dangerous situation that tragically came to fruition. However, her actions were closer to the actions of the defendants in the latter cases cited above where the courts found danger was not imminent. I do not reach this conclusion acting as a thirteenth juror as suggested by the majority or by abandoning the applicable standard of review.[3] Rather, I disagree with the majority's continued reliance upon acts not pled by the State in the indictment as a rationale for concluding the evidence is sufficient to support the jury's verdict. The sufficiency of the evidence is measured against a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). "[T]he hypothetically correct charge would include an indictment allegation which is necessary to give the defendant adequate notice of the charge against him so as to meaningfully defend himself." Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App. 2001). As discussed above, the State must provide notice to a defendant of the acts upon which the State intends to rely to demonstrate recklessness or negligence by including those allegations in the indictment. See also Smith v. State, 309 S.W.3d 10, 14-16 (Tex.Crim.App.2010) (discussing requirements of article 21.15). Thus, the legal sufficiency of the evidence must be measured against only those allegations. Viewing the proper evidence in the light most favorable to the jury's verdict, there is insufficient evidence upon which a rational jury could have found the danger was imminent. Accordingly, I would reverse the judgments of the trial court and render a judgment of acquittal. NOTES [1] "A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." TEX. PENAL CODE ANN. § 22.041(c) (West 2011). [2] At trial, the State abandoned Count VII, which charged Mayberry with endangering her son Deon, and the jury returned guilty verdicts on the remaining counts. [3] Simply because a jury has found the defendant guilty does not relieve an appellate court of its obligation, when the sufficiency of the evidence is raised as a point of error, to determine whether the evidence supports the jury's verdict, even as to the issue of immediate harm. Elder, Millslagle, Williams, Medearis, Moody, Moreno, and Bordelon are all cases where the appellate court reversed the conviction after a jury trial, concluding the evidence was insufficient to support the jury's finding of imminent danger.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537848/	46 So. 3d 780 (2010) Tiffany M. PRUITT, Connie Pruitt and Bobby Pruitt, Plaintiffs-Appellees v. Glenn C. NALE, Sidney Stokes d/b/a Sidney Stokes Timber, Sidney Stokes & Son, L.L.C., Empire Indemnity Insurance Company, and State Farm Automobile Insurance Company, Defendants-Appellants. No. 45,483-CA. Court of Appeal of Louisiana, Second Circuit. August 11, 2010. 781 Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by David F. Butterfield, for Appellants. Dennis W. Hennen, Christian C. Creed, Monroe, LA, for Appellees. Before BROWN, CARAWAY and LOLLEY, JJ. CARAWAY, J. The appellants appeal a partial summary judgment rendered in favor of the plaintiffs that found the defendant truck driver solely at fault for an accident that occurred when his logging truck attempted to make a left hand turn. The accident occurred on a crowded city street when logs extending from the truck struck plaintiffs' vehicle. Appellants additionally request a new trial in order for consideration of a late-filed expert witness report. For the following reasons, we affirm the judgment of the trial court. Facts This suit arises out of an automobile accident which occurred in Bastrop, Louisiana. On March 9, 2007, 19-year-old Tiffany Pruitt was driving her father's pickup truck eastbound in the center lane of travel on East Jefferson Avenue. The street is a one-way thoroughfare. Defendant, Glenn C. Nale, was also driving in an easterly direction on Jefferson Avenue in a specially designated left-turn lane. Nale, who was driving an 18-wheel Mack tractor trailer, was hauling a load of logs to the Bastrop paper mill for his employer, the defendant Sidney Stokes Timber d/b/a Sidney Stokes and Son, L.L.C. ("Sidney Stokes Timber"). The accident occurred when Nale attempted to make a left hand turn onto South Franklin Street.[1] As Nale began to turn from the left turning lane, the logs protruding from the rear of his trailer[2] entered Tiffany's center lane of travel and impacted the truck that she was driving. At least one of the logs entered the driver's side window, leaving Tiffany with severe injuries. On February 8, 2008, Tiffany Pruitt along with her parents (collectively "the Pruitts") filed a petition for damages, naming as defendants Nale, as the driver of 782 the log truck; Sidney Stokes Timber, Nale's employer; Empire Indemnity Insurance Company, who had issued a policy of automobile liability insurance covering Sidney Stokes Timber and Nale, which was in effect at the time of the accident; and State Farm Automobile Insurance Company, plaintiffs' uninsured/ under-insured insurance company.[3] The defendants filed answers asserting, among other things, the affirmative defense of comparative negligence or fault of the plaintiff. Thereafter, on November 12, 2008, the Pruitts filed a motion for summary judgment, seeking a judgment in their favor as to the issue of defendants' liability. A hearing on the motion was held March 31, 2009 and a ruling was subsequently rendered in favor of plaintiffs on July 1, 2009. In ruling that Nale was 100% at fault, the court noted: The turning maneuver violated state law which required that Defendant Nale make sure before turning that he could safely turn. La. R.S. 32:104. Defendant Nale breached his duty to make the left turn safely and is liable to Plaintiffs. The evidence showed that plaintiff Tiffany Pruitt could not fairly be said to have followed the truck too closely. After the light turned green she drove off at a normal speed, the truck right ahead of her turned and the logs came in front of her truck for just a second or two, but long enough for contact to be made. She was not at fault if she ran into the logs. It is from this judgment establishing liability that defendants have appealed.[4] On appeal, the defendants contend that the trial court erred in granting the motion for summary judgment on the issue of liability because there were material factual disputes as to whether defendants were negligent and whether Tiffany Pruitt was comparatively at fault. Additionally, defendants urge the granting of a new trial to consider an expert report submitted after the hearing on the motion for partial summary judgment. For the following reasons, we affirm the actions of the trial court. Discussion The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Duncan v. USAA Ins. Co., 06-363 (La.11/29/06), 950 So. 2d 544; Morris v. Union Parish Police Jury, 39,709 (La. App.2d Cir.5/11/05), 902 So. 2d 1276. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the proceeding is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Duncan v. USAA Ins. Co., supra. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. 783 The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material fact issue remains. The failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So. 2d 228; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So. 2d 606. Appellate review of the grant or denial of a summary judgment is de novo. Thus, the court uses the same criteria as the trial court in determining whether summary judgment is appropriate-whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. A "genuine issue" is a "triable issue," that is, an issue on which reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue. A fact is "material" when its existence or nonexistence may be essential to a plaintiff's cause of action under the applicable theory of recovery. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So. 2d 1002. Ordinarily, the determination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence ordinarily are not appropriate for summary judgment. Freeman v. Teague, 37, 932 (La. App.2d Cir.12/10/03), 862 So. 2d 371; Powers v. Tony's Auto Repair, Inc. 98-1626 (La.App. 4th Cir.4/28/99), 733 So. 2d 1215, writ denied, 99-1552 (La.7/2/99), 747 So. 2d 28. This principle extends to a question of comparative fault as well. However, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment. See Rance v. Harrison Co., 31,503 (La.App.2d Cir.1/20/99), 737 So. 2d 806, writ denied, 99-0778 (La.4/30/99), 743 So. 2d 206. For the affirmative defense of comparative fault, the defendants have the burden of proof. A party asserting comparative fault bears the burden of proof by a preponderance of the evidence that the other party's fault was a cause in fact of the damage complained of. Watson v. Brazeel, 36,499 (La.App.2d Cir.12/18/02), 833 So. 2d 1276, writ denied, 03-0217 (La.4/4/03), 840 So. 2d 1215; Begnaud v. Camel Contractors, Inc., 98-207 (La.App. 3d Cir.10/28/98), 721 So. 2d 550, writ denied, 98-2948 (La.2/5/99), 738 So. 2d 1. Therefore, the Pruitts' burden in this summary judgment setting did not require them to negate all essential elements of defendants' affirmative defense of comparative fault, "but rather to point out to the court that there is an absence of factual support" for that defense. La. C.C.P. art. 966(C)(2). In the instant case, filings in support of plaintiffs' motion for partial summary judgment on the issue of liability included the depositions of plaintiffs' witnesses Dessa McMillian and Barbara Montgomery, along with the deposition of Bastrop Police Officer Della Wallis. Photographs of the accident, along with an accident diagram and accident report were also submitted. Additionally, affidavits of Dessa McMillian and Plaintiff Tiffany Pruitt were presented.[5] 784 Both McMillian and Montgomery were eyewitnesses to the accident. McMillian was a guest passenger in a vehicle driven by her mother in a northerly direction on Franklin Street. They were stopped at the red light for the intersection just before the accident occurred, and the collision occurred right in front of her. Montgomery was headed east on Jefferson Avenue, the same direction as Tiffany. Her car was in the lane next to Tiffany's lane of travel and slightly behind Tiffany. Both eyewitnesses testified that Tiffany was stopped behind Nale's log truck, in the middle lane, until the light turned green. At that point everyone proceeded forward at a normal rate of speed. McMillian further testified that Nale's truck was straddling the left turn lane. When he began to execute the turn, the logs swung out into Tiffany's middle lane of travel and went through her window. McMillian believed that the logs penetrated the driver's side window because she noticed that the left side of Tiffany's face had been struck. Montgomery's deposition testimony revealed "that there was maybe one or two [cars] in front of her [Tiffany]." As the light turned green, all of the cars heading east on Jefferson Avenue began to proceed through the intersection. She then heard a "big pow" at which point glass flew into her truck and all of a sudden Tiffany's truck swerved toward her. Officer Wallis, the investigating officer of the accident, inspected Tiffany's truck and believed that "the logs hit the side of the door itself. Instead of like crashing right through the front." Her belief was formed after noticing the steering wheel was pushed through the windshield from the inside of the truck. Additionally, one of the timber poles was broken and was left protruding out the right side of the truck's trailer. As Nale completed the turn onto Franklin Street before stopping, the protruding pole struck the rear window of a third vehicle parked on the east side of Franklin street. Nale was ticketed for making an improper turn. Officer Wallis acknowledged that accidents of this nature were common at this particular intersection; however, she testified that she has witnessed trucks execute the turn correctly by utilizing the appropriate level of caution. In Nale's deposition, he admits that he did not check his mirror for traffic in Tiffany's lane of travel. When asked whether his truck was ever located solely in the left turn lane, he stated that it was. Nevertheless, he acknowledged that the collision occurred completely in Tiffany's lane, but asserted that there is no way to make that particular turn without the logs veering into the middle lane of travel: Q: Okay. Thank you, sir. Okay. And it's your contention that all this activity occurred in Tiffany's lane of travel? A: Right. Because the logswhen I make that turn that log's going to extend over into her lane. Q: Okay A: It don't matter how far over to the left you are. Q: It don't matter how far over to the left you are. They're still going to go over as faras long as they are A: Right Q: There's no way that you could turn at that turn without those logs going into the other lane of travel. A: There's no way. Nale further testified that the logs would not have been in Tiffany's lane for very long, "wouldn't be over a couple of seconds." 785 His testimony also revealed that he never came to a complete stop before making the turn.[6] Moreover, Nale acknowledged that alternative routes were available such that the downtown intersection could have been avoided altogether. La. R.S. 32:104(A) provides: No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. Under this statute, Nale was under a duty to refrain from making the left turn until such movement could "be made with reasonable safety." Judicial interpretations of La. R.S. 32:104(A) have made it clear that a left-turning motorist has a strong duty of care. Bruce v. State Farm Ins. Co., 37,704 (La.App.2d Cir.10/29/03), 859 So. 2d 296. The duty includes properly signaling an intention to turn left and keeping a proper lookout for both oncoming and overtaking traffic in order to ascertain that the left turn can be made with reasonable safety. Id.; Agency Rent-A-Car, Inc. v. Hamm, 401 So. 2d 1259 (La.App. 1st Cir.1981). The jurisprudence has recognized that commercial truck drivers are required to undergo testing and licensure which involve attending a special school designed to teach the mechanics and attendant hazards of operating large rigs. Davis v. Witt, 02-3102 (La.7/2/03), 851 So. 2d 1119. Based upon that premise, our courts have recognized that a professional truck driver is a superior actor in the eyes of the law. Id. Conceding Nale's negligence, the defendants' main point of contention in this appeal is that genuine issues of material fact exist with regard to Tiffany's contributing fault in causing the accident. Significantly, defendants do not deny that Tiffany's vehicle remained in her lane which was in the center of the three lanes which intersected South Franklin Street. However, they argue that Nale's truck was positioned throughout the turn maneuver so that it straddled both the center lane and the left turning lane. They assert that Tiffany's negligence therefore resulted from her ramming the end of the extended logs since Nale's truck had always remained partially in her lane. Defendants contend that there were multiple points of impact and that the original log went through Tiffany's windshield, signaling a front-to-rear collision. This view of the accident according to the defendants raises issues of material fact. Initially, from the description of the intersection and Nale's account of the requirements for this turn of his large truck, we agree with the defense that Nale was required to position the truck largely within the middle lane (Tiffany's lane) in addition to the left turn lane in order to complete the turn. Nevertheless, from the evidence brought forth in support of plaintiffs' motion for summary judgment, plaintiffs have shown that Nale's truck was not positioned in Tiffany's lane throughout the entire turning maneuver so as to constantly block her traffic lane. Plaintiffs demonstrated without dispute that both vehicles were moving at the time of the accident. Defendant did not show 786 that the truck had suddenly stopped or was moving at a considerably slower speed than Tiffany's vehicle at the time of the collision. Tiffany's vehicle did not ram the logs and stop. McMillian and Nale describe a swinging of the logs from the left turn lane into Tiffany's lane, and Nale admits that the swing of the logs would happen very briefly. This means that the furthest ends of the moving logs did not remain constantly in the center lane so as to block that lane and prevent Tiffany from proceeding forward in her lane alongside the back of the truck and then receiving a blow from the swinging logs. Finally, plaintiffs presented undisputed evidence of the eyewitness report of a side impact by the logs against Tiffany's vehicle[7] and of Tiffany's vehicle swerving to the right and continuing out of control for 331 feet. Officer Wallis's investigation confirmed such impact which would tend to push the vehicle to the right. From review of the evidence presented in this summary judgment setting, we do not find that the defendants presented evidence regarding Tiffany's contributory fault in the accident sufficient to establish that they will be able to satisfy their burden of proof at trial. We disagree that Tiffany violated the duty of not following another vehicle more closely than is reasonable. La. R.S. 32:81. The vehicles were in close proximity stopped on the courthouse square in Bastrop when they began to move slowly through the intersection. Tiffany stayed in her lane and moved close to the rear of the 18-wheeler when that end of the truck had moved into a separate lane, the left turn lane. The evidence does not present a material issue of fact indicating that Tiffany rear-ended the protruding logs on the truck. Nor does the evidence show that Nale positioned his truck within Tiffany's lane continuously through the turn maneuver so as to prevent her from moving into the position where the accident occurred. Accordingly, the trial court's granting of the motion for summary judgment on the issue of liability is affirmed. As a secondary issue, defendants claim the trial court erred in refusing to consider a report of an expert in accident reconstruction which they attempted to be presented by their motion for new trial/rehearing. The trial court found the motion untimely. The Pruitts' motion for summary judgment had been filed in November 2008 and the hearing on the motion did not occur until March 2009, over a year after filing of the suit. La. C.C.P. art. 966(B) provides: The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary (emphasis added). In the recent case, Newsome v. Homer Memorial Medical Center, 10-0564 (La.4/9/10), 32 So. 3d 800, the Louisiana Supreme Court reversed a trial court's grant of a continuance in order to allow the submission of plaintiff's expert affidavit *787 in opposition to a motion for summary judgment. The court found that the continuance, filed just seven days prior to the date of a scheduled hearing, violated the "eight-day limit contained in Article 966(B)." In light of the Newsome ruling and the procedural circumstances of this case, we find no error in the trial court's ruling. Conclusion For the foregoing reasons, we affirm the decision of the trial court granting plaintiffs' motion for partial summary judgment on the issue of liability and further denying defendants' motion for rehearing/new trial. All costs of this appeal are hereby assessed to the defendants/appellants. AFFIRMED. NOTES [1] Both East Jefferson Avenue and South Franklin Street are one-way streets. East Jefferson Avenue runs eastbound; as it intersects with South Franklin Street there are three lanes of travel: a specially designated left turn lane and two eastbound travel lanes. Franklin Street runs north with two lanes of travel. These two streets intersect at the corner of the Morehouse Parish Courthouse. There are parking spaces west of the intersection in front of the Courthouse, so that the left turn lane does not extend for the entire block. [2] The logs extended 19 feet from the rear of Nale's trailer and a red flag was placed on the end of the load to signal the overhang. It is undisputed that this 19 foot extension was within the 20 foot extension allowed by law. See La. R.S. 32:382(B)(1). [3] State farm was dismissed by joint motion, without prejudice, November 6, 2008. [4] Writs were initially denied by this court on July 21, 2009, on the ground that the July 1, 2009 ruling was in the form of reasons for judgment and thus not subject to immediate appeal until a partial final judgment had been executed. The Louisiana Supreme Court thereafter denied writs on September 23, 2009. The initial lack of final judgment designation pursuant to La. C.C.P. art. 1915(B) was cured by a judgment rendered by the trial court on October 6, 2009, which designated the partial summary judgment as final. On December 3, 2009, the trial court denied defendant's motion for rehearing/new trial and thereby refused the filing of any late evidence, including an expert report. [5] Tiffany Pruitt was struck in the head during the accident and rendered unconscious. She has no memory of the collision. Her affidavit simply reveals that at all times her vehicle remained entirely within its lane of travel and further that she obeyed all traffic laws and ordinances. [6] While this conflicts with the testimony of plaintiffs' witnesses, the conflict is not essential to the determination of liability for all testimony consistently revealed that both the log truck and Tiffany's truck were moving when the impact occurred. [7] Copies of certain photos of the damage to Tiffany's vehicle are in the record, but are unclear. These unclear photos do not place into conflict Officer Wallis's conclusion regarding the side impact.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537024/	43 So. 3d 758 (2010) Ryan Donald-James PARTCH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. No. 1D09-1894. District Court of Appeal of Florida, First District. July 20, 2010. Rehearing Denied August 26, 2010. 759 Ross A. Keene of Beroset & Keene, Pensacola, for Appellant/Cross-Appellee. Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant. WOLF, J. Appellant challenges his convictions for sexual battery by vaginal penetration and attempted sexual battery on a person helpless to resist. He raises a number of issues; we find merit in one. Appellant's dual convictions violate principles of double jeopardy. We, therefore, reverse the conviction for attempted sexual battery on a person helpless to resist and remand for resentencing on the sexual battery. In light of our disposition, it is unnecessary for us to address the State's cross-appeal challenging the downward departure sentence imposed by the trial court. Following a trial, appellant was convicted of: COUNT I: [Appellant] on or about March 30, 2008, at and in Escambia County, Florida, did unlawfully commit a sexual battery upon a person twelve (12) years of age or older, to-wit: [victim]... nineteen years of age, by penetration of the vagina of said victim by the penis of said defendant without the consent of [victim], and in the process thereof did not use physical force and violence likely to cause serious personal injury, in violation of Section 794.011(5), Florida Statutes. . . . . COUNT 3: [Appellant] on or about March 30, 2008, at and in Escambia County, Florida, did unlawfully attempt to commit a sexual battery upon a person twelve years of age or older, to-wit:, [victim] ..., nineteen years of age, without the consent of said victim, and while the said victim was physically helpless to resist, in violation of Section 794.011(4)(a), Florida Statutes. At trial, evidence established appellant entered a room where an intoxicated young woman was sleeping and began to undress her. After the young woman awoke, appellant continued his sexual assault and, in doing so, completed an act of vaginal penetration. Appellant asserts his convictions violate double jeopardy. "The most familiar concept of the term `double jeopardy' is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions and punishments for the same criminal offense." Valdes v. State, 3 So. 3d 1067, 1069 (Fla.2009). However, there exists "no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction, as long as the Legislature intends to 760 authorize separate punishments." McKinney v. State, 24 So. 3d 682, 683 (Fla. 5th DCA 2009) (citing Hayes v. State, 803 So. 2d 695, 699 (Fla.2001)). In deciding whether separate offenses exist, absent clear Legislative intent, Florida law requires a three-step inquiry into whether the same offense has been charged multiple times. Specifically, in order to determine if appellant's convictions violate double jeopardy, we must first ascertain if the charges were based on an act or acts which occurred within the same criminal transaction and/or episode. If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts. If the charges are not predicated on distinct acts and have occurred within the same criminal episode, we must next decide if the charges survive a same elements test as defined by section 775.021, Florida Statutes (2008), commonly referred to as the Blockburger[1] analysis, which provides in pertinent part: (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial. (b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are: 1. Offenses which require identical elements of proof. 2. Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. A. Same Criminal Transaction and/or Episode Multiple punishments and convictions may rest on offenses occurring within differing criminal episodes. In State v. Paul, 934 So. 2d 1167, 1173 (Fla.2006) (overruled on other grounds by Valdes, 3 So. 3d 1067), the supreme court reasoned in order to determine if offenses arose out of the same criminal episode, a reviewing court must: "look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a `temporal break' between offenses." Murray v. State, 890 So. 2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So. 2d 400, 401 (Fla. 2nd DCA 2002)); see also Russo v. State, 804 So. 2d 419, 420-21 (Fla. 4th DCA 2001) (same); Cabrera v. State, 884 So. 2d 482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense). Here, based on the testimony provided at trial, the conduct giving rise to the charges occurred within a small time span of minutes, included no discernable temporal 761 break, and was committed on the same victim. Consequently, this appears to have been one criminal episode. Paul, 934 So.2d at 1173. B. Distinct Acts In addition to asking whether the charges arose out of a single criminal episode, we must also decide if the charges were predicated on distinct criminal acts. Specifically, in Hayes, 803 So.2d at 700, the supreme court recognized "the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts." (Emphasis in original). See also Valdes, 3 So.3d at 1078 n. 12 (noting in that case, "because one criminal act gave rise to multiple separate offenses, double jeopardy is not violated," which is "distinguishable from cases in which double jeopardy is not a concern because multiple convictions occurred based on two distinct criminal acts."). In applying the distinct acts exception to double jeopardy principles, the court in Hayes limited the exception's application. 803 So. 2d at 700-01. Specifically, not all charges arising out of different acts occurring within the same criminal episode will rise to the level of "distinct" acts and allow for a finding of multiple offenses. Hayes, 803 So.2d at 700. Instead, the relevant inquiry into whether acts are "distinct" rests on factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed. Id. (citing Hearn v. State, 55 So. 2d 559, 560 (Fla.1951); Brown v. State, 430 So. 2d 446, 447 (Fla.1983)); see also Saavedra v. State, 576 So. 2d 953, 958 (Fla. 1st DCA 1991) (holding the crucial question in determining whether distinct acts occurred is typically whether defendant had time to reflect and form a new criminal intent between the acts).[2] In addition to the foregoing, Florida courts have also held the Florida sexual battery statutes are particularly susceptible to the distinct acts exception because the statutes "may be violated in multiple, alternative ways, i.e., `oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other act.'" See Saavedra v. State, 576 So. 2d 953, 956-57 (Fla. 1st DCA 1991); see also State v. Meshell, 2 So. 3d 132 (Fla.2009); § 794.011(1)(h), Fla. Stat. (2008). Thus, convictions for these "sexual acts of a separate character and type requiring different elements of proof" do not violate double jeopardy because the acts are "distinct criminal acts that the Florida Legislature has decided warrant multiple punishments." Meshell, 2 So.3d at 135; see also Yeye v. State, 37 So. 3d 324 (Fla. 4th DCA 2010) (citing M.P. v. State, 682 So. 2d 79, 81 (Fla.1996), for the proposition that the prevailing standard for "determining the constitutionality of multiple convictions. . . for offenses arising from the same criminal transaction . . . is whether the legislature `intended to authorize separate punishments for two crimes.'"). Based on the foregoing, recently, in Meshell, the supreme court upheld two lewd and lascivious battery charges arising out of the same criminal episode because the charges were clearly predicated, in the charging information, on distinct sex acts. 2 So. 3d at 135. Here, similar to Meshell, appellant was charged with two counts of sexual battery; however, unlike Meshell, neither the 762 charging information nor the jury verdict form included language clearly predicating the disputed charges on two distinct sex acts. The ambiguous wording of the charging information and the jury verdict makes it impossible for this court to know if the jury convicted appellant for one act of sexual battery or two distinct acts. Specifically, the jury could have found appellant guilty of both the attempt (which began prior to the victim awakening) and the completion of the same criminal act (which ended after she was no longer incapacitated). For that reason, while there exists a distinct acts exception to double jeopardy, we may not apply that exception on the record before us. See also Roberts v. State, 39 So. 3d 372 (Fla. 1st DCA 2010) (finding convictions for sexual battery and lewd or lascivious molestation for acts committed in the same criminal episode were based on distinct criminal acts and, therefore, did not violate double jeopardy principles, noting the "distinction is readily apparent here because the information and jury verdict form included particulars for each charge."); Duke v. State, 444 So. 2d 492, 493-94 (Fla. 2nd DCA 1984) (finding no double jeopardy violation where the charging information included two counts for (1) attempted vaginal penetration followed a moment later by (2) attempted anal penetration because the differing sex acts constituted distinct acts for double jeopardy purposes).[3] C. Blockburger and its Exceptions Had distinct acts been found, the analysis would end here. However, because it is unclear if the charges were predicated on distinct acts, we must next engage in the Blockburger same elements test, i.e., whether each offense has an element that the other does not. § 775.021(4)(a), Fla. Stat. (2008). In section 775.021(4)(b), the Legislature made clear its intent to "convict and sentence for each criminal offense committed in the course of one criminal episode or transaction. . . ." However, in doing so, the Legislature provided for three exceptions to this general rule which would prohibit multiple convictions for (1) "offenses which require identical elements of proof;" (2) "offenses which are degrees of the same offense as provided by statute;" or (3) "offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b), Fla. Stat. (2008). In the underlying case, the offense of attempted sexual battery on a person helpless to resist includes elements (person helpless to resist and attempt) that the sexual battery through penetration offense does not. Thus, the offenses survive the initial inquiry of the Blockburger analysis. However, because the offenses constitute degrees of one another as that term has been recently defined in Valdes, they fall into the exception outlined in section 775.021(4)(b)(2), and reversal is required. 3 So. 3d at 1068-77. Admittedly, the application of this subsection has had a long and confusing history in Florida law. However, recently in Valdes, 3 So.3d at 1076, the supreme court attempted to clear up any confusion over this subsection's application by announcing a new test: the plain meaning of the language of subsection (4)(b)(2) . . . is that "[t]he Legislature intends to disallow separate punishments for crimes arising from the same criminal transaction only when the 763 statute itself provides for an offense with multiple degrees." quoting Paul, 934 So. 2d 1167 (Cantero J., concurring) (emphasis in original). The statute itself creates an exception for crimes that "are degrees of the same offense as provided by statute." § 775.021(4)(b)(2), Fla. Stat. (1999) (emphasis added). By its very language, this exception is intended to apply narrowly. It prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, so that the defendant would be punished for violating two or more degrees of a single offense. See Sirmons v. State, 634 So. 2d 153, 156 (Fla.1994) (Grimes, J., dissenting) (highlighting the phrase "as provided by statute" and concluding that the "Court's obligation is to apply the statute as it is written"). One example is the theft statute, which expressly identifies three degrees of grand theft and two degrees of petit theft. See § 812.014, Fla. Stat. (2005). Another is the homicide statute, which expressly identifies three degrees of murder, as well as multiple forms of manslaughter. See id. §§ 782.04, 782.07. Yet another is arson, which has two degrees. See id. § 806.01. It is in such cases, and only such cases, that the exception was intended to apply. Valdes, 3 So.3d at 1076 (quoting Paul, 934 So.2d at 1177-78 (Cantero, J., concurring) (emphasis in original)). At first blush, this explanation appears to overlap with the third exception dealing with lesser included offenses. However, in clarification, in Valdes, the court noted that: Numerous examples of degree variants are found throughout Florida Statutes. Many of these examples would satisfy both the second and third statutory exception to the Blockburger test, in that they would constitute "degrees of the same offense as provided by statute" (subsection 4(b)(2)) and "lesser offenses the statutory elements of which are subsumed by the greater offense" (subsection 4(b)(3)). However, note that if a defendant received multiple convictions under sections 790.15(1), 790.15(2), and 790.15(3), the offenses would satisfy the second statutory exception, but not the third. 3 So.3d at 1078 n. 11. The subsections referred to above authorize punishments for (1) knowingly discharging a firearm in any public place (first-degree misdemeanor); (2) discharging a firearm within 1,000 feet of any person while an occupant in a vehicle (second-degree felony); and (3) knowingly directing another to discharge a firearm while in a vehicle (third-degree felony). § 790.15, Fla. Stat. (2009). However, the statute expressly notes an individual should be charged with subsection (1) unless he or she is guilty of either subsection (2) or (3), thereby creating Legislative intent to cap offenses charged to either (1) or (2) and (3). Based on the foregoing, charges stemming from one act giving rise to offenses that are (1) included in the same charging statute and are (2) expressly provided by statute to be degrees of one another violate double jeopardy pursuant to Valdes regardless of whether each subsection charges a different element. In fact, since Valdes, two courts have acknowledged the degrees of one another exception to provide relief for those with dual convictions based on subsections of the same statute. See Smith v. State, 19 So. 3d 417 (Fla. 2d DCA 2009); Ruiz-Alegria v. State, 14 So. 3d 1276 (Fla. 2d DCA 2009). In the instant case, appellant was charged with violations of section 794.011(5) and section 794.011(4). Section 790.011(6) states, "[t]he offense described 764 in subsection (5) is included in any sexual battery offense charged under . . . subsection (4)." As such, the State correctly concedes there is a statutory trigger which would render the two offenses degrees of one another as that term is defined in Valdes. Accordingly, we reverse appellant's conviction and sentences with directions to strike the conviction for attempted sexual battery on an incapacitated person. We further direct appellant be resentenced in light of the amended conviction. In doing so, we note if the trial court intends to depart downward from the guidelines sentence, we remind the court that all evidence used to support the departure must be included in the record. REVERSED. BENTON and PADOVANO, JJ., concur. NOTES [1] Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [2] According to Hayes, this analysis, though similar, differs from the analysis in determining whether two criminal transactions or episodes have taken place. [3] This is not to say that a charging information and/or jury verdict form that specifies different acts would necessarily support the application of a distinct acts exception to the Blockburger statute. As noted in the opinion, a finding of different acts does not mandate a conclusion that those acts were distinct as that term is defined by Hayes and Meshell.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537032/	43 So. 3d 1046 (2010) Rich BAILEY, In His Capacity As Assessor for Ouachita Parish, Plaintiff-Appellee v. ENERVEST OPERATING COMPANY, LLC, et al., Defendants-Appellants. No. 45,553-CA. Court of Appeal of Louisiana, Second Circuit. June 30, 2010. 1048 Milling Benson Woodward, by Hilton S. Bell, Angela W. Adolph, Baton Rouge, for Defendants-Appellants, EnerVest Operating Co., EnerVest Production Partners and EnerVest Production Primos Acquisition. Brian A. Eddington, Baton Rouge, for Plaintiff-Appellee, Rich Bailey. Robert D. Hoffman, Jr., for Defendant-Appellee, Louisiana Tax Commission. Before BROWN, STEWART and GASKINS, JJ. STEWART, J. EnerVest Operating Company LLC, EnerVest Production Partners Ltd., and EnerVest Prod. Primos Acquisition (referred to hereafter collectively as "EnerVest"), the defendants herein, appeal a judgment in favor of Rich Bailey, Assessor for Ouachita Parish ("Assessor Bailey"). The trial court reversed a ruling by the Louisiana Tax Commission ("LTC") and reinstated Assessor Bailey's original determinations of the fair market value of gas pipelines owned by EnerVest in Ouachita Parish. At issue are various exceptions raised by EnerVest concerning venue, subject matter jurisdiction, prescription, and no right of action and the question of whether the fair market value of the pipelines should be reduced due to obsolescence. For the reasons explained in this opinion, we reverse the trial court's judgment and reinstate the ruling of the LTC to grant EnerVest a reduction in the fair market value of its pipelines due to obsolescence. FACTS EnerVest is the owner of eight natural gas pipelines in the Monroe Field, an area that covers parts of Ouachita, Morehouse, and Union Parishes. The pipelines traverse Ouachita Parish and are subject to ad valorem taxation there. In its Ouachita Parish tax returns for the 2007 tax year, EnerVest requested a reduction in the fair market value of its pipelines for obsolescence. EnerVest submitted tax form LAT 14 for each pipeline. On each form, EnerVest provided the pipeline's diameter, length, type, age, and percent good, as well as its determination of the pipeline's market value, throughput obsolescence factor, adjusted market value, and assessed value. As support for the obsolescence reduction, EnerVest submitted a 1998 pipeline utility study by Mustang Engineering, Inc. (hereafter the "Mustang Study") showing the actual diameter of the pipeline segments and the diameter that would be required to transport the production volumes generated from the gas field. EnerVest also submitted a graph and worksheet showing the total gas production levels in the Monroe Field from January 1999 through July 2007. Assessor Bailey rejected EnerVest's request for a reduction for obsolescence and determined the fair market value of the pipeline property at issue to be $10,230,982, whereas EnerVest's proposed fair market value with obsolescence taken into account in the calculation was $7,312,902.[1] EnerVest sought review of Assessor Bailey's determinations of fair 1049 market value before the Ouachita Parish Board of Review, which upheld Assessor Bailey's valuations. Thereafter, EnerVest filed an appeal with the LTC. The LTC conducted a hearing on May 6, 2008. Appearing at the hearing were Mark Harris of K.E. Andrews & Company, a tax consulting firm representing EnerVest; Assessor Bailey; and Bob Dumas, the deputy assessor for Ouachita Parish. Assessor Bailey informed LTC that EnerVest's request for an obsolescence reduction in fair market value was denied due to lack of supporting financial documentation. He also complained that two of the pipelines were not even owned by EnerVest in 1998, when the Mustang Study was done. However, Assessor Bailey admitted that his office did not ask EnerVest for financial information to support the requested reduction for obsolescence. On behalf of Assessor Bailey, Dumas explained that balance sheets showing revenue and expenses associated with the pipelines would have been needed to substantiate the claimed obsolescence. Dumas stated that he had worked for EnerVest's predecessor, Louisiana Gas Productions, for 35 years and that he had helped design and install some of the pipelines. According to Dumas, the pipelines had been laid at different times beginning as early as the 1920s and as recently as the 1980s. He explained that "ten times as much natural gas" flowed through the pipelines then as does now. However, he noted that the "price of gas was about one-tenth of what it is now." Bailey further explained that income information from EnerVest was necessary because his office had no information on whether other gas companies were running gas through EnerVest's pipelines. Noting that EnerVest based its claim for obsolescence on the pipeline throughput, Bailey explained that throughput does not provide enough information for determining economic obsolescence especially when a company may be running less gas through the pipelines but making more money due to the higher price of gas. Mark Harris explained that EnerVest based its obsolescence request on pipeline throughput, as shown by the Mustang Study, being less than its capacity. He explained that, according to field staff, production in the Monroe Field is declining at a rate of five percent a year and that there is little new drilling. Because of declining production, he asserted that the capacity of the pipelines will never again be fully utilized. Harris explained that economic obsolescence is based on the fact that the pipelines as used now would not be valued the same as identical pipelines located in a field where capacity could be fully utilized. Stated another way, if the current pipelines were replaced, they would be replaced with pipelines having smaller diameters. Harris told the LTC that EnerVest provided Assessor Bailey with the information required by the applicable regulations, namely the formula for calculating obsolescence. He noted that the LAT rules do not mention financial data in connection with obsolescence and that Assessor Bailey did not ask for financial information from EnerVest. Moreover, Harris stated that he was told by the Assessor's office that everyone, not just EnerVest, was being turned down for obsolescence requests. Dumas confirmed that the Assessor's office "did not allow obsolescence for any pipeline companies in Ouachita Parish." Additionally, Harris explained to the LTC that Assessor Bailey's insistence on income information would actually involve valuing the minerals and go beyond determining obsolescence, which focuses on the value of the pipeline. Finally, Harris asserted that the Mustang Study is valid for 1050 addressing obsolescence even though EnerVest did not operate some of the pipelines in 1998. Supporting documentation was submitted to LTC by both parties. On December 2, 2008, LTC issued a ruling that reversed Assessor Bailey's valuations and determined fair market value of the eight pipelines at issue as proposed by EnerVest. The LTC recognized that the assessor has discretion in deciding whether to apply obsolescence. However, the assessor also has an implied duty to review information provided by the taxpayer to determine whether obsolescence is appropriate. The LTC concluded that Assessor Bailey abused his discretion by giving no weight to the evidence of obsolescence provided by EnerVest. The ruling notes that Assessor Bailey had a policy in 2007 of not granting obsolescence to any pipeline company. The LTC found that such a policy would not ameliorate the abuse of discretion considering that the Assessor's office had granted obsolescence in prior years and then decided to deny it for 2007. The LTC further found that the policy of denying obsolescence rendered moot the argument that EnerVest did not provide documentation to support their request for obsolescence. According to the LTC, Assessor Bailey had the burden of proving the correctness of his determination that EnerVest's request for obsolescence was incomplete. He did not meet this burden. LTC explained that when an assessor finds the information submitted by a taxpayer insufficient to grant obsolescence, the assessor should request additional documentation as provided by La. R.S. 47:1957. Here, Assessor Bailey failed to inform EnerVest that its documentation was inadequate and failed to request additional information. After the LTC's ruling, Assessor Bailey filed a petition for judicial review in the Fourth Judicial District Court on December 22, 2008. Though only EnerVest was named a defendant, LTC was served with notice of the petition. Arguing that an appeal of an agency decision is not subject to review in the 4th JDC, EnerVest filed declinatory exceptions of improper venue and lack of subject matter jurisdiction. It also filed an exception of nonjoinder of an indispensible party, namely LTC. The trial court sustained the nonjoinder exception, ordered Assessor Bailey to amend his petition to add LTC as a defendant, and deferred consideration of the remaining exceptions. On May 4, 2009, Assessor Bailey "in his official capacity as Assessor for Ouachita Parish and as the bona fide representative of the Ouachita Parish Assessor's Office, a tax recipient body affected by the ruling under review," filed an amended petition naming LTC as a defendant. On November 5, 2009, the district court heard arguments on the exceptions and the review petition. The district court denied EnerVest's remaining exceptions of improper venue and lack of subject matter jurisdiction upon finding that venue was proper in the 4th JDC under La. R.S. 47:1998. The district court also reversed the LTC's ruling and reinstated the valuations as originally determined by Assessor Bailey. As indicated by the district court's oral reasons, it disagreed with LTC's determination that Assessor Bailey had abused his discretion. Instead, the district court found that EnerVest had not provided Assessor Bailey sufficient documentation to show obsolescence. The district court also concluded that the record did not support EnerVest's argument that it had provided the same documentation as in prior years when it received the obsolescence reduction and as provided to Union and Morehouse Parishes for 2007. Following the judgment vacating the LTC's ruling and reinstating Assessor Bailey's 1051 valuations, EnerVest filed its appeal. Additionally, EnerVest filed an exception of peremption with this court, arguing that Assessor Bailey failed to institute suit against the LTC within the required 30-day time period. In six assignments of error, EnerVest argues that the district court erred in denying its exceptions, in concluding that it had not provided Assessor Bailey with sufficient evidence to support obsolescence, in rejecting the LTC's valuations, in finding that Assessor Bailey was not required to request additional information from it, in finding there was no evidence in the record to support its claim that Assessor Bailey had deviated from his past practice of granting obsolescence, and in rejecting the LTC's conclusion that Assessor Bailey's deviation from past practices was arbitrary. DISCUSSION Exceptions EnerVest first argues that the trial court erred in denying its exceptions of improper venue and lack of subject matter jurisdiction. EnerVest asserts that venue is governed by La. R.S. 49:964 of the Administrative Procedure Act ("A.P.A."), which requires an action seeking judicial review of an administrative decision to be brought in the parish where the agency is located. Applying the A.P.A., proper venue for judicial review of a ruling by the LTC would be in East Baton Rouge Parish. EnerVest further argues that because Ouachita Parish was not the proper venue, the 4th JDC lacked subject matter jurisdiction. EnerVest's arguments are wholly without merit. The correctness of assessments by a parish assessor are subject to review first by the parish governing authority, which was in this matter the Ouachita Parish Police Jury sitting as the Board of Review, then by the LTC, and finally by the courts, all in accordance with procedures established by law. Holiday Bossier Limited Partnership v. Louisiana Tax Commission, 574 So. 2d 1280 (La.App. 2d Cir.1991), writ denied, 578 So. 2d 136 (La. 1991). Judicial review of LTC rulings is addressed by La. R.S. 47:1998(A)(1)(a): A. (1)(a) Any taxpayer or bona fide representative of an affected tax-recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment. Any taxpayer who owns property assessed in more than one parish may institute this suit in either the district court for the parish where the tax commission is domiciled or the district court of any one of the parishes in which the property is located and assessed, provided at least twenty-five percent of the parishes where the property is located are named in the suit. However, if at least twenty-five percent of the parishes are not named in the suit, then suit must be filed in the parish where the property is located. In Dow Chemical Co. v. Pitre, 421 So. 2d 847 (La.1982), Dow excepted to venue in a suit instituted in the district court for Iberville Parish by the Iberville Parish Assessor and other parties contesting the LTC's reduction in an assessment of machinery, equipment, and pipelines. Dow argued that the LTC was subject to the A.P.A., which requires suit to be filed in the parish where the agency is located. The district court overruled Dow's exception, the appellate court denied writs, and 1052 then the supreme court granted writs and affirmed the district court. The supreme court recognized that R.S. 47:1998 is a specific procedure provided by the Legislature for judicial review of LTC rulings on appeals from decisions by local boards of review, and as asserted by the assessor, would take precedence over the more general provisions of the A.P.A. As this court noted in Holiday, supra, at footnote 2, the 1982 amendment to La. R.S. 49:967(A) to provide that the LTC is governed by the A.P.A. unless otherwise specifically provided by law appears to have legislatively overruled Dow, supra, to the extent that it held the A.P.A. to be inapplicable to the LTC. However, we find that because R.S. 47:1998 provides specific venue provisions, those specific provisions rather than the general provisions of the A.P.A. are applicable to suits for judicial review of LTC rulings under R.S. 47:1998. Therefore, under the specific venue provision of La. R.S. 47:1998(A),[2] venue for the matter before us was proper in the 4th JDC in Ouachita Parish, which is the district court of the parish where the pipeline property is located. Because venue was proper in Ouachita Parish, EnerVest's exception of lack of subject matter jurisdiction based on its belief that Ouachita Parish was not the proper place for the suit to be heard is also without merit. Next, EnerVest argues that its exception of no right of action should have been granted. EnerVest filed this exception in response to Assessor Bailey's amended petition in which he designated himself as appearing in his "official capacity as Assessor for Ouachita Parish and as the bona fide representative of the Ouachita Parish Assessor's Office, a tax recipient body affected by the ruling under review." EnerVest complains that Assessor Bailey cannot proceed as the bona fide representative of an affected tax recipient body. EnerVest's argument is without any merit and overlooks the fact that Assessor Bailey is also appearing in his official capacity as Assessor of Ouachita Parish. La. R.S. 47:1998(C) specifies that the assessor "shall bring suit, when necessary to protect the interest of the state" and further provides that the assessor "shall also have the right of appeal." The supreme court in Dow, supra, recognized that an assessor may bring the very type of suit at issue, namely a suit challenging the correctness of an LTC ruling that reduced an assessment, and the opinion implicitly recognizes that venue for suits for judicial review brought by an assessor is governed by the provisions of La. R.S. 47:1998. The court stated: Moreover, since the assessor may bring suit to protect the state's interest (as was done here) under the express provisions of R.S. 47:1998 C, it is highly unlikely that the Legislature contemplated that the taxpayer could bring suit as an alternate remedy under the A.P.A., while the assessor may bring suit in a different parish under R.S. 47:1998 C. Dow, 421 So.2d at 850. See also Williams v. Belle of Orleans, L.L.C., 2003-1203 (La. App. 4th Cir.12/1/04), 890 So. 2d 670, in which a trial court judgment granting an exception asserting that the Assessor for Orleans Parish had no right to institute suit in his official capacity for judicial review of an LTC ruling was reversed on appeal pursuant to R.S. 47:1998(C). Lastly, EnerVest argues that the trial court erred in not granting an exception 1053 of prescription, which is also asserted as an exception of peremption on appeal. These exceptions are based on the fact that the LTC was not named a party defendant in the original petition filed by Assessor Bailey within the 30-day time period provided by R.S. 47:1998(A). First, we find no merit to EnerVest's assertion that the 30-day period provided by La. R.S. 47:1998(A) for instituting suit for judicial review following an LTC determination is a peremptive period and that the failure of Assessor Bailey to name the LTC as a defendant within that period destroyed his right to seek review. In Naghi v. Brener, 2008-2527, p. 6 (La.6/26/09), 17 So. 3d 919, 923, the supreme court explained that a period is peremptive when a statute creates a right of action and stipulates the delay within which the right of action may be executed. Once the delay expires, the cause of action no longer exists. See Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899, 901 (1900). La. R.S. 47:1998(A) does not create a right of action. It merely provides for judicial review as authorized by La. Const. Art. 7, § 18(E), which states: The correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law. Therefore, the 30-day delay in La. R.S. 47:1998(A) is not a peremptive period. When an action or defense asserted in an amended petition arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the filing date of the original pleading. La. C.C.P. art. 1153. In the absence of prejudice, the doctrine of relation back should be liberally applied. Hunsucker v. Global Business Furniture, 33,972 (La.App.2d Cir.9/27/00), 768 So. 2d 698, writ denied, 2000-3013 (La. 12/15/00), 777 So. 2d 1235; Strouse v. M & M Properties, 32,792 (La.App.2d Cir.3/3/00), 753 So. 2d 434. Even if LTC is a necessary party defendant, Assessor Bailey's amended petition filed May 4, 2009, relates back to the timely filed petition against EnerVest. The record shows that LTC was served with a copy of the original petition and that LTC filed its administrative hearing record into the record of the judicial review proceedings in the district court. Thus, no prejudice results from the amended petition naming LTC as a party defendant. We find no merit to EnerVest's exceptions of prescription or peremption. Correctness of Assessment EnerVest asserts that the trial court erred in finding that it did not provide Assessor Bailey with sufficient information to show obsolescence, that Assessor Bailey was not required to request additional information, and that there was no evidence in the record of the LTC hearing to show that Assessor Bailey's denial of obsolescence was a deviation from past practices or to support the LTC's finding that the deviation was arbitrary. As previously stated, the correctness of assessments is subject to review by the parish governing authority, the LTC, and then by the courts, all in accordance with procedures established by law. La. Const. Art. 7, § 18(E). Though La. R.S. 47:1998 provides for judicial review of LTC determinations as authorized by La. Const. Art. 7, § 18(E), it does not provide specific standards for judicial review. Where not otherwise specifically provided by law, the 1054 LTC is governed by the A.P.A.[3] La. R.S. 49:967(A). Thus, the standards set forth in La. R.S. 49:964 guide our review of this matter. See Holiday Bossier Ltd. Partnership v. Louisiana Tax Commission, supra. Under La. R.S. 49:964(G), we may reverse or modify the decision of the agency only if substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. Smith v. State Dept. of Health & Hospitals, 39,368 (La.App.2d Cir.3/2/05), 895 So. 2d 735, writ denied, 2005-1103 (La.6/17/05), 904 So. 2d 701. Because the district court functions as an appellate court when reviewing a final determination by an agency, the appellate court in an appeal from the district court's judgment owes no deference to the factual findings and legal conclusions of the district court. Id. Thus, we review the findings and decision of the administrative agency and not the district court's decision. Id. As provided by La. Const. Art. 7, § 18(A), property subject to ad valorem taxation shall be listed on the assessment rolls at its assessed valuation, which shall be a percentage of its fair market value. Each assessor is charged with determining the fair market value of all property, except for public service property, subject to taxation within his respective parish, and the fair market value shall be determined in accordance with criteria which shall be established by law and applied uniformly throughout the state. La. Const. Art. 7, § 18(D). Fair market value is the price a willing and informed buyer and seller would agree upon under usual and ordinary circumstances; it shall be the highest price the property will bring if sold on the open market with reasonable time allowed to find a purchaser who has knowledge of all the uses and purposes to which the property is best adapted and for which it can legally be used. La. R.S. 47:2307. Guidelines for determining the fair market value of pipelines are provided in the Louisiana Administrative Code (L.A.C.). Pipelines, other than those considered public service properties, are to be assessed by parish assessors in the taxing district where located. L.A.C. 61:V:1301(A). For assessment purposes, pipelines are to be valued at cost less physical deterioration. The guidelines set forth in L.A.C. 61:V:1301(A)(2) state: Functional and/or economic obsolescence shall be considered in the analysis of fair-market value as substantiated by the taxpayer in writing. Consistent with Louisiana R.S. 47:1957, the assessor may request additional information. For the 2007 tax year, the reporting procedures set forth at L.A.C. 61:V:1305(F) provided the following with regard to obsolescence: F. Assessment will be based on fair market value (refer to column on LAT 14) unless taxpayer provides evidence that conditions exist that warrant change. Economic and/or functional obsolescence is a loss in value of personal property above and beyond physical deterioration. 1055 Upon a showing of evidence of such loss, substantiated by the taxpayer in writing, economic or functional obsolescence may be given. Subsection G of L.A.C. 61:V:1305 provides that economic obsolescence may be recognized with a service factor that represents the remaining utility for the pipeline; the service factor may be applied in addition to normal depreciation. The service factor is calculated using the following formula: Service Factor = (Actual Throughput/Rated capacity), which is then multiplied by the exponent "0.6." The service factor is applied to a conversion chart set forth in Subsection G to determine the amount of economic obsolescence that may be applied. As explained in Crosstex LIG, LLC v. Bailey, 2006-CA-1013, 936 So. 2d 886 (La. App. 1st Cir.9/15/2006), the actual throughput is the amount of gas that passes through the pipeline, whereas the rated capacity is the maximum amount of gas as measured in billion cubic feet (BCF) that could pass through the pipeline.[4] A pipeline operating at full capacity would have a service factor near 100 percent. In that case, there would be no obsolescence. However, as the capacity of the pipeline exceeds the amount of gas that flows through it, a lower service factor would result, and obsolescence would be identified and quantified. Id. The record shows that EnerVest provided Assessor Bailey with sufficient documentation to support its claim of obsolescence. Assessor Bailey testified before the LTC that EnerVest failed to submit financial documentation to support its claim for obsolescence, and Bob Dumas, the deputy assessor, claimed that income information from EnerVest would have been necessary to determine obsolescence. However, the guidelines for calculating the fair market value of pipelines, specifically those addressing the recognition of obsolescence, do not indicate that financial data or income information is required to determine whether obsolescence should be given. The guidelines indicate that the amount of obsolescence granted, if any, is based on the service factor, which is calculated with information showing the actual throughput and the rated capacity of a pipeline. EnerVest provided Assessor Bailey with its own calculation of obsolescence in its renditions. To support its calculation, EnerVest provided data showing production levels on a monthly basis from January 1999 to July 2007, and it provided the Mustang Study showing the flow volumes through each pipeline, the actual diameter of each pipeline, and the diameter that would be required based on the flow volumes. Though the Mustang Study was done in 1998, based on the then current conditions, the data on monthly production levels shows that production has steadily decreased over the years. This data substantiates EnerVest's claim for obsolescence. Assessor Bailey is correct in asserting that a taxpayer does not have an unqualified right to an obsolescence reduction in fair market value. In fact, the supreme court recently noted that parish assessors have great discretion in determining obsolescence and that they normally do not account for obsolescence absent extraordinary circumstances. Transcontinental Gas Pipeline Corp. v. Louisiana Tax Commission, 2009-1988 (La.3/16/10), 32 1056 So.3d 199.[5] Under the guidelines, the burden is on the party claiming obsolescence to give the assessor sufficient data to support the claim. Dow Chemical Co. v. Pitre, 468 So. 2d 747 (La.App. 1st 1985), writ denied, 474 So. 2d 1308 (La.1985). In Dow, supra, the taxpayer submitted only conclusions without supporting data in support of its request for obsolescence. Even when the assessor requested additional information, Dow did not comply. The assessor did not allow for obsolescence on the basis that Dow had not provided supporting evidence. At the LTC hearing, the LTC modified the assessment based on an appraisal submitted by Dow; the appraisal had been withheld from the assessor. Both the trial court and the appellate court found that Dow had withheld information from the assessor without just cause and that the LTC erred in using the appraisal to modify the assessment. The opinion explains that the LTC is permitted to review and correct erroneous assessments, but it may not usurp the constitutional authority of the assessor to make assessments. Unlike the situation in Dow, supra, the record shows that EnerVest provided sufficient data in support of its claim to Assessor Bailey. In reviewing and correcting the assessment to grant a reduction for obsolescence, the LTC did not rely on data withheld from Assessor Bailey. Rather, the LTC found that Assessor Bailey did not take EnerVest's documentation of obsolescence into account in making the assessment. It appears that the LTC concluded that the denial of EnerVest's obsolescence request was part of a policy to deny obsolescence to all pipeline owners that year. Assessor Bailey's contention that there is no evidentiary basis for the LTC's finding of a policy to deny obsolescence is incorrect. Harris testified that he was told by the Assessor's office that all requests for obsolescence were being denied. Bob Dumas confirmed that they "did not allow obsolescence for any pipeline companies in Ouachita Parish." This testimony shows that the Ouachita Parish Assessor's office determined to deny obsolescence requests for the 2007 tax year. The LTC also found that Assessor Bailey had granted EnerVest's requests for obsolescence in prior years and then denied it for the 2007 tax year. EnerVest asserted that it submitted the same documentation in past years in support of its requests for obsolescence. Notably, Assessor Bailey does not deny the truth of EnerVest's assertion but only contends that the record does not support it or the argument that it deviated from its past practices by denying obsolescence for 2007. Neither party submitted tax forms or renditions by EnerVest from years other than 2007 to support their argument. However, Assessor Bailey does assert that he was forced to change his policy and procedure regarding obsolescence following the Crosstex decision in which he was a party. In Crosstex, supra, Assessor Bailey had based the assessment on filings from previous years and rejected more recent throughput information provided by the taxpayer. This was found to be arbitrary. To the extent that Crosstex, supra, would require Assessor Bailey to change his policies and procedures, it would seem to require him to consider documentation submitted 1057 by the taxpayer to determine whether obsolescence should be granted. Here, Assessor Bailey appears to have simply rejected or ignored the evidence of obsolescence submitted by EnerVest. Even if Assessor Baily was enacting a change in policy with regard to determining obsolescence, he should have requested additional information from EnerVest. An assessor is permitted access to a property owner's books and accounts and has the authority to put the property owner, his agents, or employees under oath and ask questions so as to determine the fair market value of the property. La. R.S. 47:1957(C). The assessor is mandated to gather all data necessary to determine fair market value. La. R.S. 47:2324. We do not find that the burden is on the assessor to substantiate a claim for obsolescence, but we do find that when an assessor changes a policy or procedure regarding the information to be provided by a taxpayer then the assessor should take steps to inform the taxpayer of what information is required before completing the determination of fair market value and the assessment. The LTC found that Assessor Bailey abused his discretion by giving no weight to the evidence of obsolescence provided by EnerVest. The LTC reviewed the testimony and evidence submitted by EnerVest and determined that EnerVast had provided Assessor Bailey with the information required for determining obsolescence under the service factor formula. After this, the LTC found that the burden was then on Assessor Bailey to show the correctness of his determination that EnerVest's tax forms and request for obsolescence were incomplete or incorrect and that Assessor Bailey did not meet this burden. Having reviewed the entire record, we find that the LTC's ruling was supported by a preponderance of the evidence and that its conclusions were neither arbitrary nor an abuse of discretion. Therefore, the district court erred in reversing the LTC's ruling and reinstating Assessor Bailey's original determinations of fair market value and assessments. CONCLUSION For the reasons stated, we reverse and vacate the trial court's judgment and reinstate the ruling of the LTC regarding the valuations and assessments of EnerVest's pipeline property in Ouachita Parish. Pursuant to La. R.S. 47:1998(C), no costs are assessed to Assessor Bailey. REVERSED AND RENDERED. NOTES [1] The record indicates that both Union and Morehouse Parishes granted EnerVest the obsolescence reduction in fair market value for the pipelines located in their respective parishes for the 2007 tax year. [2] La. R.S. 47:1998(B) provides identical venue provisions for suits contesting changes in assessments made under written instructions of the LTC pursuant to La. R.S. 47:1990. [3] As an example, La. R.S. 47:1998 specifies venue provisions for judicial review of LTC determinations, thereby supplanting the A.P.A. venue provision in La. R.S. 49:964(B). [4] Crosstex, supra, is an unpublished opinion. However, La. C.C.P. art. 2168 provides that unpublished opinions that are posted to the websites of the court may be cited as authority. [5] Transcontinental, supra, concerned whether the state's ad valorem tax scheme violates the Commerce Clause of the United States Constitution in its treatment of certain pipelines as public service properties subject to a 25 percent tax rate and other pipelines as "other property" subject to a 15 percent tax rate. No constitutional violation was found. The case is not specifically applicable to this matter.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537036/	40 So. 3d 704 (2009) JOE HUDSON COLLISION CENTER, Joe Hudson, and Traweek Dickson v. Blake DYMOND. Kenneth Stringfellow v. Blake Dymond. 1060809 and 1060856. Supreme Court of Alabama. December 30, 2009. 706 David E. Allred and D. Craig Allred of David E. Allred, P.C., Montgomery, for appellants Joe Hudson Collision Center, Joe Hudson and Traweek Dickson. F. Chadwick Morriss and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and E. Ham Wilson, Jr., and W. Christopher Waller, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant Kenneth Stringfellow. Submitted on appellants' brief only. PARKER, Justice. These two appeals are from the denial of two motions to compel the arbitration of claims asserted in a single complaint in the Montgomery Circuit Court. The appeals have been consolidated for the purpose of writing one opinion. Background Blake Dymond was hired by Joe Hudson Collision Center ("JHCC") as a painter's helper, and within days he was moved to the position of painter. He participated with two other painters in a plan under which each painter would receive one-third pay for all hours worked by the three painters, but when Dymond returned from a two-day leave, the compensation method had been modified so that each painter was paid a commission for each job he completed. Dymond allegedly spoke to Kenneth Stringfellow, his immediate supervisor, to complain that the new payment method was unfair to him and that he was not being assigned jobs. Stringfellow responded that Dymond worked more slowly than the others and that the earlier compensation method unfairly penalized the other two painters. Dymond alleges that on or about August 6, 2004, Stringfellow assaulted him when he attempted to bring the matter to the attention of Stringfellow's supervisor. On August 4, 2006, Dymond filed an action in the Montgomery Circuit Court, naming as defendants Stringfellow, in his individual capacity; JHCC; Joe Hudson, as an owner and operator of JHCC; Traweek Dickson,[1] as an owner and operator of JHCC; and fictitiously named defendants. 707 He claimed that Stringfellow committed an assault and battery against him; that JHCC, Hudson, and Dickson ("the JHCC appellants") were vicariously liable under the theory of respondeat superior and were negligent and/or wanton in their hiring, training, and supervision of Stringfellow; and that all defendants were guilty of the tort of outrage. Stringfellow and the JHCC appellants each filed a motion to compel arbitration under an agreement that was part of an "employment-dispute-resolution program," which Dymond and Dickson signed on May 24, 2004[2] ("the agreement"). In their motion, the JHCC appellants averred that "[b]y executing the [agreement], ... Dymond agreed to participate in a dispute-resolution program which compels that all disputes involving matters directly or indirectly related to his employment ... be resolved through binding arbitration pursuant to the American Arbitration Association `National Rules for the Resolution of Employment Disputes.'" The agreement reads, in pertinent part, as follows: "A. INTRODUCTION "Please take time to read the following material. IT APPLIES TO YOU. It will govern all future legal disputes between you and [JHCC].... "Effective July 15, 2003, all employee disputes will be referred for resolution through the JHCC Dispute Resolution Program (the `Program').... "This Program is binding on all employees.... Except as expressly provided below, this Program precludes an employee and JHCC from going to court to have disputes heard by a judge or a jury. .... "B. SCOPE OF PROGRAM "This [Program] covers all matters directly or indirectly related to your ... employment including, but not limited to, claims involving discrimination, harassment, or retaliation, whether brought under federal, state, of local laws. Except as provided in the following paragraph neither the employee nor JHCC may initiate or prosecute any lawsuit or action in any way related to any dispute covered by this Program. "Excluded ... are employees claims for workers' compensation benefits (except that retaliation claims must be arbitrated) or unemployment compensation. Also excluded ... are claims by JHCC for injunctions or other types of injunctive relief for unfair competition [and for the protection of trade secrets, confidential information, and restrictive covenants]. Moreover, nothing contained [herein shall be construed as] prohibiting an employee or JHCC from filing an administrative charge of discrimination or an unfair labor practice charge, or from reporting alleged violations of the law to the Equal Employment Opportunity Commission, the National Labor Relations Board, or any other governmental agency acting pursuant to federal or state law. "Arbitration under this Program may be used to resolve only those disputes that would constitute a legal cause of action in a court of law. This Program is intended to substitute final and binding arbitration for going to court.... Arbitration must be initiated within the applicable statute of limitation. ".... "D. THE ARBITRATION PROCEDURE 708 "Unless otherwise agreed by the parties, any arbitration under this Program shall be in accordance with the [American Arbitration Association's] National Rules for the Resolution of Employment Disputes.... The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, formation, or scope of this Program, including but not limited to any claim that all or any part of this Program is void or voidable. ".... "F. JUDICIAL REVIEW "Either party may bring an action in any proper court to require arbitration... and to enforce an arbitration award. A party opposing enforcement of an award may not do so in an enforcement proceeding but must bring a separate action in any court of competent jurisdiction to set aside the award where the scope of review will be that established by the Federal Arbitration Act. "G. GENERAL "1. Interstate Commerce. By ... becoming or remaining employed with JHCC, you agree that JHCC engages in transactions involving interstate commerce and that your employment involves such commerce. "2. Requirements for Modification or Revocation. This Program shall survive the termination of employment and shall apply to all disputes whether they arise or are asserted before, during, or after termination of employment with JHCC. "3. Severability. If any portion or provision of this Program is found to be invalid or unenforceable in any respect, the remainder of the Program will remain in full force and effect." (Capitalization in original.) In their brief on appeal the JHCC appellants present Dickson's affidavit, in which he stated, in support of the motion to compel arbitration, that the business of JHCC both involves, and has a significant nexus with, interstate commerce. Also, as quoted above, section G of the agreement states that Dymond's employment involves interstate commerce. Stringfellow quoted in his motion to compel arbitration that part of the agreement that says that the agreement "`covers all matters directly or indirectly related to [the employee's] recruitment, employment, terms and conditions of employment, including, but not limited to, claims involving ... harassment.'" Dymond filed an objection on October 19, 2006, to the JHCC appellants' motion to compel arbitration, arguing that his employment at JHCC did not involve interstate commerce, that he was rushed when he signed the agreement and did not understand the implications of the agreement, which were not explained to him, and that he was told that he would not be paid until he signed the agreement. In his motion to compel arbitration, Stringfellow adopted the motion of the JHCC appellants. He also asserted in the motion, as he does in his brief on appeal, that although he was not a signatory to the agreement, he is a third-party beneficiary of the agreement. Stringfellow also asserts in his motion and appellate brief that, because the claims against him are so closely related to the claims against the JHCC appellants, Dymond is equitably estopped from denying the arbitrability of the claims against him. Because we find, as discussed below, that Stringfellow may compel arbitration of the claims against him, we do not reach these assertions. 709 The trial court held a hearing on January 23, 2007, at which the arguments regarding the motions to compel arbitration were presented.[3] The trial court determined that the agreement did not require arbitration of the dispute. The order of the trial court denying both motions to compel arbitration reads: "This matter came before the Court on January 23, 2007 for a hearing on Motions to Stay/Compel Arbitration filed by Defendants Joe Hudson Collision Center, Joe Hudson, [Traweek Dickson], and Kenneth Stringfellow. Upon consideration of these motions, this Court is of the opinion that said motions are due to be DENIED. "Therefore, it is hereby ORDERED that the Motions to Stay/Compel Arbitration filed by all defendants are DENIED, which order is a FINAL order of this Court on the issue. "DONE and ORDERED this 26th day of Jan, 2007." (Capitalization in original.) The JHCC appellants and Stringfellow appeal. Dymond did not file an appellee's brief. Issues Presented on Appeal The JHCC appellants present three issues for resolution by this Court. The JHCC appellants allege that the trial court erred when it denied their motion to compel arbitration on the basis that the agreement did not encompass the disputes here. The JHCC appellants next contend that Dymond offered insufficient evidence that the agreement is invalid or inapplicable, because, they say, Dymond failed of meet his burden under Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So. 2d 1129 (Ala.2003), requiring the party opposing arbitration to present evidence indicating that the arbitration agreement was either invalid or inapplicable to the dispute in question. Finally, they also argued that, by incorporating the rules of the American Arbitration Association ("the AAA") into the agreement, the JHCC appellants and Dymond agreed that the issue of arbitrability of disputes would be decided by an arbitrator. Stringfellow presents one issue on appeal: "Whether the trial court committed reversible error in denying Stringfellow's Motion to Compel Arbitration where the arbitration agreement at issue encompasses `all matters directly or indirectly related' to [Dymond's] employment, and [Dymond's] claims arose out of a dispute with his former manager regarding compensation." Stringfellow's brief, at 4. Standard of Review "[T]he review applied to a trial court's ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review. Ex parte Roberson, 749 So. 2d 441 (Ala.1999)." Brown v. Dewitt, Inc., 808 So. 2d 11, 13 (Ala.2001). "Initially, the party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Polaris Sales, 710 Inc. v. Heritage Imports, Inc., 879 So. 2d 1129, 1132 (Ala.2003). The moving party `must "`produce some evidence which tends to establish its claim.'"' Wolff Motor Co. v. White, 869 So. 2d 1129, 1131 (Ala.2003)(quoting Jim Burke Auto., Inc. v. Beavers, 674 So. 2d 1260, 1265 (Ala.1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party has properly supported his or her motion to compel arbitration, the burden then shifts to the nonmovant to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris Sales, 879 So.2d at 1132." Edwards v. Costner, 979 So. 2d 757, 761 (Ala.2007). Furthermore, "[t]he [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration...." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). Analysis Case Mo. 1060809The JHCC Appellants The JHCC appellants contend that the trial court erred when it denied their motion to compel arbitration on the basis that the agreement did not encompass this dispute. The JHCC appellants argue that by incorporating the AAA rules into the agreement, the parties agreed that the issue of arbitrability of any dispute would be decided by an arbitrator. We agree. Section D of the agreement incorporates the AAA National Rules for the Resolution of Employment Disputes. Rule 8(a) of the AAA National Rules provides that the arbitrator "shall have the power to rule on his or her own jurisdiction, including any objections, with respect to the existence, scope, or validity of the arbitration agreement." JHCC appellants' brief, at 27. "[A]n arbitration provision that incorporates rules that provide for the arbitrator to decide issues of arbitrability clearly and unmistakably evidences the parties' intent to arbitrate the scope of the arbitration provision. CitiFinancial Corp., L.L.C. v. Peoples, [973 So. 2d 332, 340, (Ala.2007)]." JHCC appellants' brief, at 27. Moreover, there are two provisions in the agreement, which Dymond signed, that defined the authority of the arbitrator and the scope of the agreement. The agreement, in section D, specifically states that the "Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the ... applicability, or scope of this Program...." In section B, the parties agreed that the agreement "covers all matters directly of indirectly related to [the]... employment, including ... claims involving discrimination, harassment, or retaliation." In response to Dymond's claim that his employment at JHCC did not involve interstate commerce, the JHCC appellants cite Wolff Motor Co. v. White, 869 So. 2d 1129 (Ala.2003), for the proposition that "`[t]he automobile, if anything, is the paradigm of modern interstate commercial activity... [and that] "cars themselves are instrumentalities of commerce,"'" such that JHCC's operation of "numerous businesses within Alabama and an additional location in the state of Florida," all of which receive parts and equipment in interstate commerce, indicates, "without question that the business of [JHCC] and the plaintiff's employment at one of the locations ... affected interstate commerce" and "the employment relationship and all legal disputes arising therefrom" 711 are governed by the agreement. JHCC appellants' brief, at 21-22. In addition, Dickson, as president of JHCC, submitted his affidavit to the trial court stating that the "business of [JHCC] involves and affects interstate commerce and has a significant nexus with interstate commerce in its day-to-day operations." We agree that JHCC is engaged in interstate commerce, that Dymond's employment there involves interstate commerce, and that the agreement applies to Dymond. The JHCC appellants respond to Dymond's claim that the agreement was never explained to him, stating that although Dymond's allegation is totally unsupported by any evidence, "[t]he law is well settled that: "`A party to a contract is responsible for reading the contract. See Ex parte Perry, 744 So. 2d 859, 863 (Ala. 1999) (opinion of three Justices). "[W]hen a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract, including an arbitration provision, and will be bound thereby." First Family Fin. Servs., Inc. v. Rogers, 736 So. 2d 553, 558 (Ala. 1999).' "Advance Tank and Construction Company, Inc. v. Gulf Coast Asphalt Company, L.L.C., [968 So. 2d 520, 528 (Ala. 2006).]" JHCC appellants' brief, at 22. Thus, it is immaterial whether the agreement was explained to Dymond. As a competent and literate adult, he is responsible for the contracts that he makes. Advance Tank & Constr. Co. v. Gulf Coast Asphalt Co., 968 So. 2d 520 (Ala.2006). This Court recently reiterated its recognition of the strong federal policy favoring arbitration. "The United States Supreme Court recognizes a strong federal policy favoring arbitration: "`The [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.' "Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (footnote omitted)." Ex parte Johnson, 993 So. 2d 875, 885 (Ala. 2008). Because the agreement, which was mutually executed, unambiguously stated that the arbitrator, and not any court or agency, would have exclusive authority to resolve any dispute concerning the applicability and scope of the agreement, the trial court erred when it denied the JHCC appellants' motion to compel arbitration. Accordingly, the judgment of the trial court denying the JHCC appellants' motion to compel arbitration is reversed. Case Mo. 1060856Stringfellow Stringfellow, a nonsignatory to the agreement he seeks to enforce, argues that the claims against him are so closely related with those asserted against the JHCC appellants that Dymond is equitably estopped from denying the arbitrability of the claims against him. Moreover, Stringfellow argues that he is a third-party beneficiary of the agreement and that he is entitled to the benefit of the agreement. We need not reach Stringfellow's assertions, however, because he is entitled to compel Dymond to arbitrate his claims against Stringfellow. In count 5 of his complaint, Dymond stated that "at the time of the incident ... *712 Stringfellow was acting in the line and scope of his employment. He was acting in the capacity of assistant manager [in the service] of the `Center,' Hudson and [Dickson]." The claims filed against the other defendants are intimately founded in the same incident. In his objection to the motions to compel arbitration, Dymond did not challenge Stringfellow's standing to seek arbitration. As this Court has previously stated: "[An] employee[] of a signatory to the contract[] ha[s] standing to enforce the arbitration provision." Ex parte Rush, 730 So. 2d 1175, 1177 n. 2 (Ala.1999). Because Stringfellow has standing to compel arbitration, the order of the trial court denying Stringfellow's motion to compel arbitration is in error and must be reversed. Conclusion Case No. 1060809The JHCC Appellants The determination of the arbitrability of this dispute is a question reserved for an arbitrator under the agreement. Thus, the ruling of the trial court was in error. Therefore, we reverse the judgment of the trial court, and we remand the case with directions to grant the motion of the JHCC appellants to stay the proceedings in the trial court and to compel arbitration. Case No. 1060856Stringfellow As an employee of JHCC, Stringfellow is entitled to compel Dymond to arbitrate the claims against him. Accordingly, we reverse the judgment of the trial court, and we remand the case with directions to grant the motion to stay the proceedings in the trial court and to compel arbitration. 1060809REVERSED AND REMANDED WITH DIRECTIONS. 1060856REVERSED AND REMANDED WITH DIRECTIONS. STUART, SMITH, BOLIN, and SHAW, JJ., concur. COBB, C.J., and LYONS and WOODALL, JJ., concur specially. WOODALL, Justice (concurring specially). I concur in the main opinion, but I write to clarify that Kenneth Stringfellow, in both the trial court and this Court, has adequately argued that Ex parte Rush, 730 So. 2d 1175 (Ala.1999), supports his claim that his status as an employee of Joe Hudson Collision Center allows him to enforce the arbitration agreement. As noted in the main opinion, Dymond's objections to the motions to compel arbitration did not include any challenge to Stringfellow's standing to enforce the arbitration agreement, and Dymond has filed no brief in this Court. Therefore, I question whether it is necessary for this Court to address the issue of Stringfellow's standing to enforce that agreement. However, I certainly agree that, under the facts of this case, he had standing to do so. COBB, C.J., and LYONS, J., concur. NOTES [1] In the complaint and in places in the record Dickson is referred to as "Dixon." [2] The document bears a date of "5/24/05," but Dickson has provided his sworn affidavit stating that it was executed on the day Dymond began work at JHCC, May 24, 2004. [3] The trial court also heard argument on a motion by Alfa Mutual Insurance Company to intervene in the case. Alfa sought a judgment declaring its liability to cover Stringfellow under his homeowner's liability policy for the claims asserted against him by Dymond. Alfa's action, however, has no bearing on the issue before this Court, i.e., whether the motions to compel arbitration should have been granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537577/	358 S.W.3d 685 (2011) SAN ANTONIO EXTENDED MEDICAL CARE, INC. d/b/a Med Mart, Appellant, v. Ruben VASQUEZ, Individually and as Administrator of the Estate of Ruben Vasquez, Jr. Deceased & Oralia Vasquez, Joe Jimenez and Rosa Ward, Appellees. No. 04-10-00727-CV. Court of Appeals of Texas, San Antonio. August 17, 2011. Rehearing Overruled November 16, 2011. 686 Michael E. Flume, Flume Law Firm, LLP, San Antonio, TX, for appellant. Andrew E. Toscano, Gene Toscano, Inc., San Antonio, TX, for appellees. Sitting: KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice. OPINION Opinion by: PHYLIS J. SPEEDLIN, Justice. San Antonio Extended Medical Care, Inc. d/b/a Med Mart ("Med Mart") challenges the trial court's order denying its motion to dismiss the underlying lawsuit for failure to file a medical expert report required by statute. Because we conclude the trial court erred in denying the motion to dismiss, we reverse the trial court's order and render judgment dismissing the lawsuit with prejudice. 687 BACKGROUND This is the second time this case has been before us on an interlocutory appeal. In San Antonio Extended Med. Care, Inc. d/b/a Med Mart v. Vasquez, 327 S.W.3d 193 (Tex.App.-San Antonio 2010, no pet.), we set forth the underlying facts as follows. On April 7, 2008, Ruben Vasquez, Jr. ("Mr. Vasquez") underwent a tracheostomy. Ten days after the surgery, he was discharged from the hospital under doctor's orders to receive home oxygen therapy and trachea care. Med Mart delivered two oxygen tanks to Mr. Vasquez's home on April 17, 2008. The following day, Mr. Vasquez's wife called Med Mart and informed them that her husband was running low on oxygen. She again informed Med Mart that the oxygen supply was low on April 19, but another delivery was not made. Later that day, Mr. Vasquez became unconscious and was transported to the hospital by EMS. He died the next day. Thereafter, on December 9, 2008, Ruben Vasquez, individually, and as administrator of the Estate of Ruben Vasquez, Jr., deceased and Oralia Vasquez, Joe Jimenez, and Rosa Ward (collectively, "Vasquez") sued Med Mart alleging, among other claims, that Mr. Vasquez's death was proximately caused by the negligent acts and/or omissions of Med Mart, including: failing to provide adequate oxygen tanks as ordered; failing to respond to requests by Mr. Vasquez's family for an adequate oxygen supply; failing to institute safeguards to ensure that patients such as Mr. Vasquez would always have an adequate supply of the medical supplies, including oxygen; and failing to provide adequate oxygen supply ordered by his treating doctors. On January 12, 2009, Vasquez hand delivered a Stowers[1] demand letter to counsel for Med Mart. Attached to the letter were nine exhibits, one of which was an autopsy report authored by Dr. Louis A. Levy; Dr. Levy's curriculum vitae was also included. On May 14, 2009, Med Mart filed a motion to dismiss claiming Vasquez failed to serve his 120-day expert report as required by the Medical Liability Act detailed in section 74.351(a) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West 2011). On May 20, 2009, Vasquez filed a motion to strike the motion to dismiss and a response to the motion to dismiss claiming that he is not subject to the requirements of section 74.351 because he did not assert a health care liability claim against Med Mart and because Med Mart is not a health care provider. Vasquez alternatively argued that if his suit is in fact governed by the Act, he complied with section 74.351 by timely filing an expert report authored by Dr. Levy, and that Med Mart waived any objections to Dr. Levy's report when it failed to file objections within 21 days of service. The trial court denied the motion to dismiss without making findings of fact or conclusions of law, but orally stated that the evidence did not demonstrate Med Mart to be a health care provider. Med Mart filed its first interlocutory appeal. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2008). After a review of the evidence before the trial court, we concluded Med Mart met the statutory definition of a "health care provider." Vasquez, 327 S.W.3d at 198-99. We further held Vasquez's suit alleged a departure from the accepted standards of health care, thereby constituting a health care liability claim subject to the expert report requirements of the Act. Id. at 199. Because of the trial court's erroneous 688 determination that Med Mart did not qualify as a health care provider, it never reached Vasquez's responsive motion to strike. Accordingly, we reversed and remanded the case to the trial court for further proceedings. Id. at 200. On remand, Med Mart again filed a motion to dismiss Vasquez's suit for failure to have timely filed an expert report. Med Mart specifically argued the written autopsy report signed by Dr. Levy did not satisfy the statutory requirements of an expert report and was so deficient as to constitute "no report." In response, Vasquez argued Med Mart waived all objections to Dr. Levy's report because it had not filed objections to the report within 21 days after it was served. The trial court heard arguments by both parties and subsequently denied Med Mart's motion to dismiss by a written order signed September 17, 2010 without stating a basis for its denial. Med Mart now challenges the September 2010 order. APPLICABLE LAW AND STANDARD OF REVIEW At issue in this appeal is whether the trial court abused its discretion by denying Med Mart's motion to dismiss Vasquez's suit. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (West 2011). We review a trial court's order denying a motion to dismiss for failure to have timely filed a required expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); Pedroza v. Toscano, 293 S.W.3d 665, 666 (Tex.App.-San Antonio 2009, no pet.); Holguin v. Laredo Reg'l Med. Ctr., L.P., 256 S.W.3d 349, 352 (Tex.App.-San Antonio 2008, no pet.). Under current law, a health care liability claimant is required to serve an expert report with curriculum vitae by the 120th day after the original petition is filed for each physician or health care provider named in the suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). An expert report is defined as: [A] written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6) (West 2011). If the required report has not been served by the 120-day deadline, on proper motion by a defendant, the trial court shall dismiss the suit with prejudice and award reasonable attorney's fees and court costs incurred by the physician or health care provider. Id. § 74.351(b). If, however, the required report has not been served within the specified time period because elements of the report are deficient, the trial court may grant one 30-day extension to the claimant in order to cure the deficiency. Id. § 74.351(c) (West 2011). A defendant physician or health care provider can waive all objections to an expert report by failing to file and serve any objection to the sufficiency of the report no later than the 21st day after the date the expert report was served. Id. § 74.351(a). The Supreme Court of Texas recently addressed whether an inadequate expert report can contain so many deficiencies as to be incurable, and thus not subject to the Act's thirty-day extension because no report was timely filed in the first instance. See Scoresby v. Santillan, 346 S.W.3d 546 (Tex.2011). In Scoresby, the plaintiff sued two physicians for medical malpractice. Id. at 549. The plaintiff timely served the physicians with a letter written by Dr. Charles D. Marable; the letter did not 689 attach Marable's curriculum vitae or describe his credentials or experience other than to state he is "a Board-Certified neurologist." Id. Marable concluded the letter by opining that both physicians violated the standard of care. Id. at 550. The physicians timely objected that the letter was inadequate as an expert report, and also argued that Marable's letter was so woefully deficient that it did not even qualify as an expert report under the Act to meet the 120-day deadline, and moved the court to dismiss the case with prejudice and award reasonable attorney fees and costs. Id. at 551. The trial court denied the physicians' motions to dismiss, and granted the plaintiff a thirty-day extension to cure the deficiencies in the report. Id. The physicians appealed, persisting in their contention that Marable's letter was too inadequate to qualify as an expert report, and therefore the Act did not permit an additional thirty days to cure the deficiencies. Id. The Fort Worth Court of Appeals dismissed the physicians' appeal for want of jurisdiction, holding that pursuant to Ogletree v. Matthews,[2] a trial court's decision to grant a thirty-day extension is not subject to appellate review. Scoresby v. Santillan, 287 S.W.3d 319, 325 (Tex.App.-Fort Worth 2009). The appellate court stressed that an expert report could be either absent, i.e., not timely served, or deficient, but declined to recognize a third category of expert reports in which a timely served report is so deficient as to constitute no report at all. Id. The physicians appealed to the Supreme Court, which affirmed the judgment of the court of appeals. After considering the Act's text and purpose, the Supreme Court held that "a document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit." Scoresby, 346 S.W.3d at 549. The court concluded that "a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated." Id. at 557. The court recognized that this is a "minimal standard," but considered it necessary to avoid multiple interlocutory appeals and to give claimants the opportunity to show that their claim has merit. Id. ANALYSIS On appeal, Med Mart maintains that the trial court abused its discretion in denying Med Mart's motion to dismiss for failure to file an expert report because no expert report was served. Med Mart contends that the autopsy report in this case is not a good faith effort to comply with the definition of an expert report. Vasquez responds that the timely served autopsy report is an expert report, and therefore Med Mart waived any objection to the report by not objecting within 21 days of service. Given the standard recently enunciated in Scoresby, we must determine whether the autopsy report served in this case meets the requirements of a section 74.351 expert report, thus requiring Med Mart to object within 21 days.[3] In reviewing the document at issue, we first note it is titled "Autopsy Protocol." It consists of five full typed pages. The first paragraph is titled "Clinical Summary" and states in part: 690 This is a morbidly obese Hispanic male with a history of sleep apnea which was treated by tracheostomy. He was sent home and reportedly was to receive oxygen and tracheostomy supplies from a local vendor. The vendor did not deliver the supplies as promised and the patient developed respiratory difficulties. He was transferred to Jourdanton Hospital and was comatose on arrival. He subsequently expired of apparent respiratory arrest. The first paragraph ends with the only direct reference to Med Mart"Medmart (sic) was to provide the local supplies, some of which [Mr. Vasquez] already had." Thereafter, Dr. Levy presents his clinical findings and observations gained by his external, internal, and microscopic examinations of Mr. Vasquez's body to include examinations of his heart, lungs, neck, liver, spleen, pancreas, adrenals, kidneys, GI tract, and head. Finally, Dr. Levy lists fifteen principle autopsy findings and ends with a paragraph titled "Comment" which concludes as follows: Respiratory failure as a complication of morbid obesity is the most likely cause of death. Other contributing factors may include the hiatal hernia, lack of supplemental oxygen (empty tanks), mechanical obstructions, complication of hypertrophic cardiomyopathy, etc. but I cannot specifically evaluate or quantitate these for the reasons stated. Nowhere in the document is there a single reference to any applicable standard of care, the manner in which the care rendered by Med Mart failed to meet the standard, or the causal relationship between any claimed failure by Med Mart and Mr. Vasquez's death as required by statute. See TEX. CIV. PRAC. & RED.CODE ANN. § 74.351(r)(6). The document at issue extensively reports autopsy findings from external, internal, and microscopic examination; and, as its title suggests, appears on its face to be simply a report of Dr. Levy's clinical findings. None of the statutory requirements for an expert report, as it is defined under section 74.351 of the Act, were met or even attempted. Aside from stating that Med Mart failed to deliver the supplies, the report is silent as to the standard of care Med Mart was to provide, how Med Mart fell short, and how that shortcoming caused Mr. Vasquez's death. The purpose of a section 74.351 expert report is to inform the defendant of the specific conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.2008); Palacios, 46 S.W.3d at 879. The autopsy report here does neither. The Supreme Court has recently instructed that, at a minimum, an expert report must (1) be timely served; (2) contain the opinion of an individual with expertise that the claim has merit; and (3) implicate the defendant's conduct. Scoresby, 346 S.W.3d at 556. The autopsy report here wholly fails as to the second prong. Dr. Levy merely opines as to the suspected cause of death and "other contributing factors," but fails to opine on whether Vasquez's claims are meritorious. That Med Mart failed to deliver the oxygen tanks is within the realm of common knowledge. What is lacking is an opinion as to whether an adequate supply of oxygen was delivered in the first instance, or whether the tanks were set to the correct flow rate, i.e., information that could only be determined by the specialized knowledge of a health care expert. Because Dr. Levy does not provide his opinion as to whether Vasquez's claims have merit, we hold that Dr. Levy's autopsy report does not meet the standard for an expert report as enunciated in Scoresby. Scoresby, 346 S.W.3d at 556 (holding expert report is not curable if 691 it does not contain the opinion of an individual with expertise that the claim has merit); see also Bogar v. Esparza, 257 S.W.3d 354, 364, 368 (Tex.App.-Austin 2008, no pet.) (holding physician's report which opined about the cause of death without explaining who caused it or how was essentially a "second autopsy report" that failed entirely to implicate the conduct of a defendant; such a report is not merely deficient, but is in effect no report as to that defendant). Because Dr. Levy's autopsy report is not an expert report as defined by the standard set out in Scoresby, the trial court did not have a basis on which to deny Med Mart's motion to dismiss. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (trial court has no discretion but to dismiss case upon proper motion when no expert report is timely served). We reverse the trial court's order denying Med Mart's motion to dismiss, and render judgment dismissing the cause with prejudice. NOTES [1] G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. 1929). [2] Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007). [3] We note that the trial court ruled on the motion to dismiss before the Supreme Court issued the Scoresby opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537655/	351 S.W.3d 1 (2011) Linda GERKEN, et al., Respondents, v. Gary SHERMAN, et al., Appellants. No. WD 72601. Missouri Court of Appeals, Western District. June 28, 2011. Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2011. 4 Mark E. Long, Bradford R. Jones, Jefferson City, MO, for Appellants. Deborah S. Greider, Clayton, MO, Barbara J. Gilchrist, John J. Ammann, Amy N. Sanders, St. Louis, MO, for Respondents Before: MARK D. PFEIFFER, P.J., THOMAS H. NEWTON, and ALOK AHUJA, JJ. THOMAS H. NEWTON, Judge. The Missouri Family Support Division[1] and the Director of the Department of Social Services (collectively "Division") appeal from the trial court's judgment in favor of a class composed of pensioners of Missouri's blind pension fund (Pensioners). They contend the trial court erred in its rulings as to the statute of limitations and its awards of damages, prejudgment interest, and attorney's fees. We affirm in part, reverse in part, and remand. Factual and Procedural Background The Missouri Constitution requires the General Assembly to levy an annual property tax for the blind pension fund in order to pay pensions to "the deserving blind." Mo. Const. art. III, § 38(b);[2]Gerken v. Sherman, 276 S.W.3d 844, 846 (Mo.App. W.D.2009) (Gerken I). On February 16, 2006, Pensioners sought, inter alia, a declaratory judgment that the pension amounts were improperly calculated, and requested an accounting of the fund. See Gerken I, 276 S.W.3d at 847.[3] They contended that pursuant to subsection 209.040.4, which sets out the formula for calculating increases to the pensions, (1) monthly pensions to the blind should have been higher before fiscal year 1999 and (2) the Division incorrectly calculated increases after fiscal year 1999. The parties filed a joint stipulation of facts and exhibits relevant to the claims. The trial court denied Pensioners' requests, and Pensioners appealed. Id. In Gerken I, we affirmed the trial court in part, reversed in part, and remanded.[4]Id. We determined that the Division's method of calculation was incorrect because, 5 contrary to the relevant statutes and the Missouri constitution, the Division erroneously tied increases in pension payments to growth in the fund's balance (the balance method) rather than growth in the fund's revenue (the revenue method). Id. at 852. Consequently, we reversed the trial court's finding that the Division's methodology was correct. Id. at 856. We further found that the trial court had erred in finding that the three-year statute of limitations in section 516.130 applied to Pensioners' claims and reversed that determination. Id. at 855. We remanded for the circuit court to determine if Pensioners had proven the elements for an accounting, to order an accounting if such was the case, and to "reissue a judgment in accord with [our] opinion concerning those issues." Id. at 855-56. We otherwise affirmed the judgment. Id. at 856. On remand, the trial court denied the Division's request to apply a five-year statute of limitations and ordered an accounting. It suggested the appointment of Dr. James LePage as the special master for the accounting. The Division and Pensioners consented to Dr. LePage's appointment, although the Division objected to the need for an accounting. Dr. LePage prepared a report calculating a historic underpayment of $23.6 million, which the Division raised issues with during a hearing on December 17, 2009. Dr. LePage submitted a revised report to the court on March 20, 2010; it calculated the aggregate amount of underpayment to the Pensioners from 1992 to 2009 to be $18,832,188. A hearing was held to receive the report on March 22, 2010. On March 31, 2010, the trial court adopted Dr. LePage's findings and conclusions as its own accounting and entered an aggregate judgment for $18,832,188 as actual damages "representing the total of the historic underpayment of Blind Pension benefits due Plaintiff Class for the years 1992 through the present."[5] The trial court further found that Pensioners' class was entitled to prejudgment interest in the amount of $11,297,500, pursuant to section 408.020. It ruled that individual pensioners were "entitled to their portion of the unpaid benefits and interest depending on the number of months, and which months, they were underpaid benefits" and ordered the Division to immediately calculate and pay the damages due to each class member. It further awarded twenty-five percent of the common fund, $7,532,422, as attorneys' fees, and ordered the parties to submit either a stipulated claims process or separate proposed claims processes if no stipulation could be reached. It then denominated its findings and orders as a judgment "final for the purposes of appeal under Missouri Rule 74.01(b)." The Division moved to stay judgment pending appeal, which the trial court granted. The Division appeals, raising five points. Standard of Review We review a court-tried case under the standard articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Midwest Div.-OPRMC, LLC v. Dep't of Soc. Servs., Div. of Med. Servs., 241 S.W.3d 371, 376-77 (Mo.App. W.D.2007). We affirm the trial court's decision unless it lacks substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. Where the facts before the court are stipulated, our concern is whether the trial court drew the correct legal conclusions from the facts. Midwest Div.-OPRMC, 241 S.W.3d at 377. Despite the stipulation, we view all evidence and inferences in favor of the prevailing 6 party and disregard contrary evidence. Id. Questions of law we review de novo. Id. Legal Analysis Scope of Authority to Consider Five-Year Statute of Limitations In its first point, the Division argues the trial court erred in concluding it was without authority to apply the five-year statute of limitations period in section 516.120(2) because of our mandate in Gerken I. The Division asserted the five-year limitation within section 516.120 in its answer. However, because the trial court determined the three-year limitations period of section 516.130 applied in Gerken I, it did not address the Division's affirmative defense of section 516.120. In Gerken I, we held that the three-year statute of limitations in section 516.130[6] was not applicable to plaintiff's claim because the "gravamen" of the complaint showed that their suit concerned actions taken by the Division, not the Director in his official capacity. 276 S.W.3d at 854-55. We did not address the applicability of section 516.120, as it was not at issue. In its judgment in the present case, the trial court determined that it could not consider the Division's continued statute of limitations argument under 516.120(2) because it had jurisdiction only to address the issues in our mandate. The Division argues that because Gerken I only addressed the limitations period in section 516.130, the trial court erred in concluding our mandate prohibited it from considering the limitations period in section 516.120(2). The scope of the trial court's authority on remand is defined by our mandate. Guidry v. Charter Commc'ns, Inc., 308 S.W.3d 765, 768 (Mo.App. E.D.2010). The trial court must render judgment in accord with our mandate and opinion. Id. Whether the trial court followed the mandate is a question we review de novo. Id. A remand may be one of two types: "(1) a general remand, which does not provide specific direction and leaves all issues open to consideration in the new trial; and (2) a remand with directions, which requires the trial court to enter a judgment in conformity with the mandate." Id. If the mandate gives express instructions on a specific course of action, the trial court may not diverge from those instructions, or its act is void. Id. at 768-69. In Gerken I, we instructed the trial court on remand to "determine whether or not the appellants proved the requisite elements for an accounting," and to order an accounting if it determined the elements were shown. Gerken I, 276 S.W.3d at 855. An action for an accounting requires the requesting party to show a right to an accounting: the party must show "a need for discovery, complicated accounts, a fiduciary or trust relationship between the parties, and lack of an adequate legal remedy." Id. In accord with the remand, the trial court found that Pensioners' need for discovery was demonstrated throughout the action in that thousands of pages of records were in the exclusive possession and control of the Division; determining the underpayment was a "daunting" task; the Division held a position of trust as they were responsible for administering the Blind Pension Fund; and that Pensioners had no remedy absent an accounting for determining the underpayment. 7 However, if Pensioners' accounting action was barred by the statute of limitations, they necessarily could not show a legal right to an accounting. See, e.g., Lane v. Non-Teacher Sch. Emp. Ret. Sys. of Mo., 174 S.W.3d 626, 633 (Mo.App. W.D. 2005). Further, if the statute of limitations limited Pensioners' damages, this was necessarily integral to the accounting. Consequently, the determination of whether section 516.120 barred or limited Pensioners' action was within the scope of our mandate.[7] The trial court therefore erred in finding it was without authority to address the Division's affirmative defense of the statute of limitations. The Division's first point is granted. Applicability of Five-Year Statute of Limitations In its second point, the Division contends the trial court erred by not applying the five-year statute of limitations in section 516.120(2). Section 516.120(2)[8] provides that "[a]n action upon a liability created by a statute other than a penalty or forfeiture" must be brought within five years. Pensioners' suit was filed on February 16, 2006. The Division argues that Pensioners' cause of action accrued monthly, each time a pension payment was made to the Pensioner, and that the five-year statute of limitations precludes damages prior to February 16, 2001. Although the trial court found itself without authority to consider section 516.120(2), it noted parenthetically that the Division had not proven that Pensioners, or any pensioner, had ascertained damages before late 2003, "well in advance of the expiration of any possibly applicable statute of limitations." Section 516.100 provides that the limitations period in section 516.120 "shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs." Consequently, the commission of the wrong and a resulting damage are insufficient to cause the action to accrue. Gaydos v. Imhoff, 245 S.W.3d 303, 306-07 (Mo.App. W.D.2008). Rather, the action accrues "when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained." § 516.100. Thus, the statute of limitations is triggered when the damage is both sustained and "capable of ascertainment." Bettis v. Potosi R-III School Dist., 51 S.W.3d 183, 186 (Mo.App. W.D.2001). It is not triggered, as the trial court's judgment implies, when the plaintiff actually ascertains the injury. Rather, Missouri uses a reasonable person standard: a wrong is capable of ascertainment when "a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages." Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 584-85 (Mo. banc 2006). Pensioners argue that "no notices explaining the calculation process were provided to the pensioners," "there were no written rules, regulations, or policies explaining the pension calculation method," and the Division's budget books were not 8 available in Braille, though it was not contended that they requested documents in Braille. The Division contends that the erroneous payments "could have been ascertained at any time, as [Pensioners] had both public information, and their monthly payments." It argues that the Pensioners could have determined the error from the amount of their pension increase (or the lack thereof) and the statute dictating the increase calculation, section 209.040. It further argues that the Division's and the Governor's annual budget requests are public documents, as is the appropriations bill which sets the pension amount. Subsection 209.040.4 provides that: "[t]he monthly pension . . . shall be increased. . . by a monthly pension amount which equals one-twelfth of the quotient obtained by dividing seventy-five percent of the annual growth of funds in the blind pension fund for the preceding fiscal year by the number of persons eligible to receive the monthly pension. . . . The pension increase is thus determined by a simple formula: (1) dividing seventy-five percent of the annual growth of funds by the number of pensioners to obtain the annual increase; then (2) dividing the annual increase by twelve to obtain the monthly increase. It was stipulated that the property tax revenues levied and collected to fund the pension fund have increased every year since at least 1994. In fact, the average revenue collected in 2006 was nearly double the amount in 1994. From 1995 to 1998, the property tax revenues levied and collected for the fund increased from $14,033,071 for fiscal year 1995 to $16,765,336 in fiscal year 1998. During this same period, no increases were made to the monthly pension amount, while the average number of pensioners increased only slightly. Ms. Beverly Armstrong, a pensioner and then a member of the Missouri Council for the Blind (MCB), testified that in 2003 she was asked by MCB to investigate how DSS calculated the pension amounts. Ms. Armstrong agreed on cross-examination that the catalyst for the investigation of the Division's methodology was that in 1996, 1997, and 1998 no increases were made to the monthly pension amount. She did not know why MCB waited five years to initiate the inquiry. The pension payments from 1996-1998 clearly did not correlate with the growth in property tax revenues levied and collected, as mandated by the statute. We find that the fact that the fund's revenues increased substantially, yet no increase in payments were made would have put a reasonable person on notice prior to Pensioners' 2003 investigation. Further, the fiscal year-end cash balance in the fund grew from $3,140,921 in fiscal year 1994 to $12,998,555 in fiscal year 2006, approximately a four-fold growth in a fund that was required by the Missouri Constitution to be zeroed out every two years. See Gerken I, 276 S.W.3d at 852. At oral argument and at trial, when asked why the pension methodology question had been raised in 2003, counsel explained that notice was created because of the increase in the fund's cash balance each year. We find this cash balance, accruing over twelve years, would also have put a reasonable person on notice that the statute was being violated. For the foregoing reasons, we find that the fact of Pensioners' injury was capable of earlier ascertainment and Pensioners' damages should have been limited by the five-year statute of limitations in section 516.120(2). See State ex rel. Edwards v. Donovan, 226 Mo.App. 392, 41 S.W.2d 842, 846-47 (1931) (limiting pensioner's recovery to five years of back payments because of applicable five-year statute of limitations 9 contained in section 516.120's predecessor). The Division's second point is granted. Pensioners' damages are limited to those accruing from February 16, 2001. Methodology for Calculating Aggregate Damages In its third point, the Division raises two additional arguments as to the trial court's aggregate calculation of the damages owed to the class members: (1) it contends the damages were not in accord with section 209.040 in that they were calculated from historic figures rather than the Division's estimates; and (2) it argues that the damages measure does not reflect the correct amounts due to individual pensioners. 1. "Preceding fiscal year" in Subsection 209.040.4 Subsection 209.040.4 requires the pension increase to be made by an appropriations bill and the increase to be calculated using two figures: (1) "the annual growth of funds in the blind pension fund for the preceding fiscal year," and (2) the number of eligible pensioners. The Division argues that the trial court erred in rejecting the use of projections that would have been available to the Division at the time of the appropriations bill in order to ascertain what the required monthly payment should have been each fiscal year. The Division contends the correct increase, and thus the required monthly payment each fiscal year, should have been determined using the estimates available to it for the fiscal year in which the appropriation was made and passed. Missouri's fiscal year begins July 1 each year. Mo. Const. art. IV, § 23. Fiscal year 2012, for example, begins July 1, 2011. The Missouri Constitution, article III, section 25, "Limitation on introduction of bills," requires that "[n]o appropriation bill shall be taken up for consideration after 6:00 p.m. on the first Friday following the first Monday in May of each year." The Missouri Constitution bars appropriation bills from being considered after the first Friday following the first Monday in May, while the current fiscal year does not end until June 30. As a result, the pension appropriation for the upcoming fiscal year must be determined prior to the end of the current fiscal year. The Division argues that the appropriations bill mandated by the statute necessarily relies on estimated numbers because the actual data for the current fiscal year is not available at the time the appropriation is required to be made. The Division's argument, however, rests upon an erroneous interpretation of section 209.040. We seek to ascertain the legislature's intent in a statute through the plain and ordinary meaning of the words the legislature chose. Bd. of Educ. of City of St. Louis v. Daly, 272 S.W.3d 228, 234 (Mo.App. E.D.2008). If the language is clear and unambiguous, we give effect to the language as written and do not insert superfluous or contrary terms. Id. Subsection 209.040.4 directs the increase to be determined using the "annual growth of funds in the blind pension fund for the preceding fiscal year." (Emphasis added). It does not direct the increase to be calculated using annual growth for the current fiscal year (i.e. the fiscal year in which the appropriations bill is considered and passed). If the legislature had intended the calculations to use the "annual growth of funds" for the current fiscal year, we presume it would have stated so. If the legislature had intended the calculations to use the "annual growth of funds" over the preceding fiscal year, we also presume it would have stated so. Moreover, "[w]e interpret statutes in a manner that is consistent with reason." Gerken I, 276 S.W.3d at 852. We reject 10 constructions that "produce an unreasonable, oppressive, or absurd result." Board of Educ. of City of St. Louis, 272 S.W.3d at 234 (internal quotation marks and citation omitted). We find it illogical to presuppose either the legislature ignored a conflict with a constitutional deadline when requiring the appropriation, or that it preferred the use of projected numbers rather than actual data. Consequently, by its plain language, subsection 209.040.4 requires the appropriation to be based on the growth of funds for the year preceding the year in which the appropriation is made and passed. For example, the appropriation made during fiscal year 2002, setting the monthly pension amount due to Pensioners in fiscal year 2003, is calculated using the annual growth in funds for "the preceding fiscal year," which was fiscal year 2001, not 2002. The "annual growth" for 2001 is calculated by subtracting the actual revenue for 2000 from the actual revenue for 2001. We therefore reject the Division's argument that the trial court should have used the Division's projected figures. 2. Average Annual Number of Pensioners The Division next argues that the trial court erred in adopting the report's aggregate calculation of the amount of the underpayment to the class each year. It contends that the trial court's calculation of what should have been paid is erroneous in that "the number of persons eligible to receive the monthly pension" was based on an annual average and resulted in an over-calculation of the amount the fund should have paid each fiscal year. To determine the underpayment, it was necessary to find the difference between what should have been paid to the Pensioners' class, and what actually was paid. To determine what should have been paid, a "net" required payment was calculated for each fiscal year. To find the net required payment, the report first determined what the monthly pension amount should have been each year pursuant to subsection 209.040.4. The report then multiplied the monthly pension amount by the average annual number of eligible pensioners to find a "total" required payment. The SSI payment was then subtracted to reach the "net" required payment. The net required payment was then compared with the fund's "actual payment" to all Pensioners for that fiscal year, and the difference was determined to be Pensioners' damages. Report's Calculation of Underpayment by Year Required Monthly Pension × Average Number Eligible × 12 -------------------------- Total Required Payment - SSI Payment --------------------------- Net Required Payment - Actual Payment ---------------------------- Underpayment (Damages) The Division contends it was erroneous to use the average annual number of eligible pensioners to determine the total required payment. It argues that the caseload varies monthly, and that not all eligible pensioners are entitled to a full payment each month because their pension payment may be reduced by the SSI received. See Gerken I, 276 S.W.3d at 851. It contends that by using the annual average number of pensioners, and assuming each was entitled to a full payment each month, the total required payment is inflated, and therefore, the aggregate damages are inflated. We reject the Division's argument. First, we note that the determination of the underpayment took account of the SSI payment each fiscal year, reducing the net required payment each year by that amount. Second, the report indicates that "[d]ata are not available to determine the 11 exact number of individuals receiving a payment and the exact amount of the SSI payment deducted" and that "[c]aseload data are necessarily average data." More importantly, we do not believe, as the Division argues, that the burden was thrust on the trial court to determine an award that "actually calculates the amount of damage that any pensioner suffered for any particular month for any particular year." We do not require damages to be established with absolute certainty: the measure is reasonable certainty. Shechter v. Brewer, 344 S.W.2d 784, 791 (Mo.App.1961). In class actions, aggregate proof of damages is proper where liability can reasonably be shown by mathematical computation and "may also be based on sampling techniques or other reasonable estimates." 3 Alba Conte & Herbert Newberg, NEWBERG ON CLASS ACTIONS § 10:3 (4th ed.2002). As noted by the United States Supreme Court in distinguishing between the measure of proof necessary to establish a right of recovery and the measure of the amount of the recovery: if a wrongdoer's damages cannot be shown with absolute certainty, it is sufficient that they are shown by "just and reasonable inference" because "[t]he wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562-63, 51 S. Ct. 248, 75 L. Ed. 544 (1931). Moreover, although the trial court awarded an aggregate of class damages, it held specifically that individual pensioners were "entitled to their portion of the unpaid benefits and interest depending on the number of months, and which months, they were underpaid benefits and the interest relating to such underpayments." (Emphasis added). It then ordered the Division "to calculate the benefits and interest owed to each class member and pay the same to each class member." (Emphasis added). Upon remand, once a claims process is developed and individual pensioners are credited their claims, it can then be ascertained if the aggregate damage award results in a surplus. It would then fall to the court "to make a determination about the distribution of the surplus," such as whether such funds should revert to the pension fund or escheat to the state. See NEWBERG ON CLASS ACTIONS § 10:15; see also 107 ALR Fed 800, 801 (1992). The Division's third point is denied. Prejudgment Interest Award In its fourth point, the Division contends the trial court's award of prejudgment interest was erroneous. The trial court awarded Pensioners prejudgment interest, calculated annually, on the pension underpayments dating from 1992 pursuant to section 408.020.[9] The Division first argues that its sovereign immunity bars the recovery of prejudgment interest. We do not agree that sovereign immunity barred the trial court's award of prejudgment interest. Section 207.020 defines the powers of the Division of Family Services and grants it the power "[t]o sue and be sued." In analyzing a suit against the State for money had and received, the Missouri Supreme Court explained that in non-tort claims, "[s]tatutory authority to sue and to be sued is sufficient consent to 12 suit to waive the doctrine of immunity of the sovereign from suit without its consent." Kubley v. Brooks, 141 S.W.3d 21, 31 (Mo. banc 2004); see also Palo v. Stangler, 943 S.W.2d 683, 685 (Mo.App. E.D. 1997). Further, as noted by Pensioners, we have previously found that the Department of Social Services, of which the Division is a part, to be subject to the payment of prejudgment interest. See Midwest Division-OPRMC, LLC, 241 S.W.3d 371, 384 (Mo.App. W.D.2007). The Division attempts to distinguish Palo and Midwest Division-OPRMC on the grounds that the actions at issue were contractual in nature and in the instant case, "the obligation is based on a statute, and the statute does not provide for prejudgment interest." The Division's argument, however, does not follow Kubley, in which the Missouri Supreme Court distinguished the doctrine that the sovereign is immune from tort liability from the doctrine that the sovereign cannot be sued without its consent. 141 S.W.3d at 28-29. Because in section 207.020 the State consented to suit, the trial court's award of prejudgment interest was not barred by sovereign immunity. The Division next argues the trial court erred in awarding prejudgment interest because damages were not liquidated. Damages are liquidated when they are "fixed and determined or readily ascertainable by computation or a recognized standard." Midwest Division-OPRMC, 241 S.W.3d at 384 (internal quotation marks and citation omitted). The rationale for this requirement is "the idea that where the person liable does not know the amount he owes he should not be considered in default because of failure to pay." Columbia Mut. Ins. Co. v. Long, 258 S.W.3d 469, 480 (Mo.App. W.D.2008) (internal quotation marks and citation omitted). The Division argues that because Pensioners did not know the amount due and sought an accounting, this demonstrates that the damages were not liquidated. We do not agree. Dr. LePage's report shows that the damages were readily ascertainable by computation or a recognized standard. In fact, both the Division and Pensioners performed their own calculations to determine the amounts of underpayment. Where the damages can be ascertained through standard accounting measures, the fact that the damages had not yet been calculated is not a cause for denying Pensioners the time-value of the benefits due them. See id. Further, the fact that the Division disputes the methodology of the calculation does not make the damages unascertainable.[10] The Division's fourth point is denied, except that on remand, prejudgment interest will need to be recalculated consistent with the trial court's new findings on damages. Attorneys' Fees In its fifth point, the Division argues the trial court erred in awarding twenty-five percent of damages as attorneys' fees. As noted, the trial court entered judgment in accord with its accounting, finding that Pensioners as a class were entitled to the amount of the historic underpayment and prejudgment interest on the underpayment, designating this total to be the "common fund" for the class. It then awarded twenty-five percent of the 13 common fund to Pensioners' attorneys. The Division argues that the trial court does not have the authority to order it to spend money from the pension fund because it is only permitted to spend money from the pension fund pursuant to an appropriations bill passed by the General Assembly.[11] Missouri follows the American rule, which ordinarily requires litigants to bear their own attorney's fees. Lett v. City of St. Louis, 24 S.W.3d 157, 162 (Mo. App. E.D.2000). Exceptions, however, are made where the fees are permitted by statute or contract, "where very unusual circumstances exist so it may be said equity demands a balance of benefits," or where the fees result from an individual being involved in collateral litigation. Id.; see also Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S. Ct. 745, 62 L. Ed. 2d 676 (1980). `Balancing the benefits' incorporates two doctrines that apportion the costs of the litigation among those benefitting from it: First, the common fund doctrine permits a trial court to require non-litigants to contribute their proportionate part of the counsel fees when a litigant successfully creates, increases, or preserves a fund in which the non-litigants were entitled to share. Second, the common benefit doctrine permits recovery of attorney's fees when a successful litigant benefits a group of other individuals similarly situated. Lett, 24 S.W.3d at 162 (internal citations omitted). Under this equitable theory, the attorney's fees are shared between the litigants benefitting from the suit. Consequently, the Division was not ordered to spend money from the pension fund. Pensioners were ordered to share in the costs of bringing suit with the result being a pro rata deduction of their damage awards. The attorney fees should be revisited on remand after the recalculation of damages. See Knopke v. Knopke, 837 S.W.2d 907, 922 (Mo.App. W.D.1992) (finding where attorneys' fees were based on the amount of the judgment and the amount was substantially reduced on appeal, "the attorneys fee award must be reduced as the amount of the judgment is reduced, although not necessarily ratably"). The Division's challenge to the attorney's fees award is otherwise denied. Conclusion For the foregoing reasons, we affirm the trial court's judgment in part, reverse in part, and remand for further proceedings consistent with this opinion. PFEIFFER, P.J., and AHUJA, J., concur. NOTES [1] The Family Support Division is an agency of the Missouri Department of Social Services and is responsible for administering the pensions and services for the blind. Gerken v. Sherman, 276 S.W.3d 844, 848 (Mo.App. W.D. 2009). The Director was sued in his official capacity only. [2] That provision declares: The general assembly shall provide an annual tax of not less than one-half of one cent nor more than three cents on the one hundred dollars valuation of all taxable property to be levied and collected as other taxes, for the purpose of providing a fund to be appropriated and used for the pensioning of the deserving blind as provided by law. Any balance remaining in the fund after the payment of the pensions may be appropriated for the adequate support of the commission for the blind, and any remaining balance shall be transferred to the distributive public school fund. Mo. Const. art. III, § 38(b). [3] Because Gerken v. Sherman, 276 S.W.3d 844 (Mo.App. W.D.2009) provides a detailed discussion of Pensioners' claims, we provide only an overview here. [4] Our mandate in Gerken I was issued on February 4, 2009. [5] The statutory formula for calculating benefits became effective in 1992. § 209.040.4. [6] Section 516.130(1) provides a three-year statute of limitations for "An action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise[.]" [7] Pensioners argue that addressing the statute of limitations in section 516.120(2) was barred by the doctrine of the law of the case, which prevents issues that have been determined from being reexamined. See Lane v. Non-Teacher Sch. Emp. Ret. Sys. of Mo., 174 S.W.3d 626, 634 (Mo.App. W.D.2005). The doctrine does not apply as no determination as to the applicability of section 516.120(2) was made in Gerken I. [8] Statutory references are to RSMo 2000 and the Cumulative Supplement 2009. [9] Section 408.020 permits the recovery of prejudgment interest for "all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner's knowledge of the receipt." [10] Although the argument portion of the Division's brief makes some reference to a requirement that a plaintiff have made a pre-judgment demand for payment in order to recover prejudgment interest, this demand requirement is not referenced in the Division's Point Relied On, and we accordingly do not address the Division's cursory statement on this issue. [11] The Division cites Mo. Const. art.III, § 36, art. IV, §§ 23 and 28.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537832/	47 So. 3d 273 (2009) Alisia Denese ROSE v. Eric JACKSON. 2071057. Court of Civil Appeals of Alabama. October 16, 2009. Rehearing Denied December 18, 2009. Certiorari Denied April 9, 2010 Alabama Supreme Court 1090439. Karen Laneaux of The Law Office of Sandra Lewis, P.C., Montgomery, for appellant. Fred F. Bell, Montgomery, for appellee. PITTMAN, Judge. Alisia Denese Rose ("the mother") appeals from a judgment modifying the child-custody provisions of the judgment that divorced her from Eric Jackson ("the father"). The mother contends that the trial 274 court erred in awarding custody of the parties' child to the father. Apparently, the parties were divorced by a judgment that incorporated an agreement of the parties and that was entered on April 30, 2007. Four months later, the father filed a pleading asking the trial court to find the mother in contempt of court for having failed to comply with certain provisions of the parties' divorce judgment. In that pleading, the father sought sanctions against the mother, including the sanction of awarding custody of the parties' child to the father. Subsequently, the father filed an amendment to his pleading in which he requested a modification of the custody provisions of the parties' divorce judgment, specifically seeking an award of physical custody of the child. The trial court conducted an ore tenus proceeding on April 3, 2008. The day before the hearing, the mother filed a request for an increase in child support and a request for a modification of the father's visitation schedule; her requests were denied as having been untimely filed. During the hearing, only the father and the mother testified. Following that proceeding, the trial court awarded the father custody of the child and awarded the mother standard visitation. The mother filed a timely appeal. The mother first contends that the trial court erred in entering a judgment awarding the father primary physical custody, a custody modification as to which the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala.1984), applied. She asserts that there was insufficient evidence to support the trial court's finding "that the change in custody would materially promote the [child's] best interest and that the benefits of the requested change would more than offset the inherently disruptive effect caused by uprooting [her]." See McLendon, 455 So.2d at 865. The evidence adduced at trial indicated that the mother had violated the parties' divorce judgment in a number of particulars: in failing to return the child to preschool at Head Start, in failing to follow the stipulated visitation schedule, and in defaulting on an automobile lease-purchase arrangement. The reasons for each of those violations, however, were disputed. The father testified that he had been very unhappy with the mother's failure to follow all the conditions of their divorce judgment. The father also stated that the only reason he had filed the contempt action was to force the mother into treating him better vis-à-vis visitation. Although the child did not return to Head Start as directed in the parties' divorce judgment, she did attend OIC Early Childhood Development Center; the mother stated that the father filled out the appropriate paperwork for OIC. The father admitted that he never attempted to process the Head Start paperwork himself. Moreover, by the time of the hearing in April 2008, the child was ready to begin public school in the fall; the mother stated that the child had been admitted into a local magnet-school program for the 2008-2009 school year. The evidence established that the child had essentially completed preschool and had been admitted to a magnet-school kindergarten class; none of these facts indicates that the child's welfare had been affected in any manner. The father also testified that the mother had injured his credit rating by defaulting on a motor-vehicle lease-purchase agreement on a vehicle that she had been awarded in the parties' divorce judgment. Although the testimony was conflicting, the mother admitted that her annual salary had decreased from $30,000 to $18,000 and that she had been unable to make the monthly payments on the vehicle. At the time of trial, she was negotiating with the 275 pertinent finance company to establish a payment schedule that would satisfy the debt owed on the vehicle within the limits of her monthly income. The father did not indicate that the mother's default on the lease-purchase agreement had in any way affected the child's welfare; in fact, he testified that the mother had been able to afford to buy a used vehicle after the leased vehicle had been repossessed. Finally, we note that most of the father's testimony surrounded the mother's failure to follow the visitation schedule set out in the parties' divorce judgment. The father admitted during the hearing that the parties had not had any problems with visitation since he had filed his pleading seeking custody of the child. In Kelley v. Akers, 793 So. 2d 821, 826 (Ala.Civ.App.2001), this court stated that although the mother in that case had interfered with the parent-child relationship and had hindered the noncustodial parent's visitation attempts, the trial court could not properly modify custody solely on that basis. Id. at 827; see also Vick v. Vick, 688 So. 2d 852, 856 (Ala.Civ.App.1997). Moreover, in a recent case, Brooks v. Brooks, 991 So. 2d 293 (Ala.Civ.App.2008), this court noted that when there is conflicting disputed testimony, this court may uphold the trial court's judgment only insofar as it relies on one of the versions of conflicting testimony. However, when the evidence is clear or the question is one of law, the ore tenus rule, which requires an appellate court to presume that a trial court's findings on disputed facts are correct, has no application. See Brooks, 991 So.2d at 302. Just as in Brooks, the father's testimony primarily addressed the parties' visitation disputes; he also alleged that the mother had improperly affected his credit rating in a negative manner and that the mother had violated the divorce judgment by removing the child from Head Start. Those assertions by the father fail to satisfy the father's burden under Ex parte McLendon. The father failed to establish how any of those actions by the mother had affected the child's welfare. Moreover, the father did not show that material changes affecting the child's welfare had occurred since the original award of custody, nor did he demonstrate how the positive good brought about by a change in custody would more than offset the disruptive effect of uprooting the child. Thus, none of the reasons cited by the trial court are sufficient to meet the standard set forth in Ex parte McLendon to support a modification of custody in this case. Based upon the evidence of record, we must conclude that the custody modification in this case is plainly erroneous; thus, we reverse the judgment modifying custody and remand the cause to the trial court. REVERSED AND REMANDED. THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2537839/	50 So. 3d 868 (2010) STATE of Louisiana v. Theron J. BRAUD. No. 2010-KA-0836. Court of Appeal of Louisiana, Fourth Circuit. October 6, 2010. Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant. (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN). EDWIN A. LOMBARD, Judge. The defendant, Theron Braud, appeals his conviction and sentence for second offense possession of marijuana, requesting only a review of the record for errors patent. Because such review finds no error, we affirm Braud's conviction and sentence and grant his counsel's motion to withdraw. Relevant Facts and Procedural History The defendant was charged on January 20, 2009, by bill of information with one count of possession of second-offense marijuana in violation of La.Rev.Stat. 40:966(E)(2) and one count of possession of MDMA (ecstasy) in violation of La.Rev. Stat. 40:966(C)(3). He pleaded guilty to both counts on October 9, 2009, reserving his rights under State v. Crosby, 338 So. 2d 584 (La.1976), to appeal only the marijuana count. He was originally sentenced on each count to a two-year suspended sentence but, following the court's finding that the defendant violated his probation, the court resentenced him on April 16, 2010 to serve concurrent eighteen-month sentences at hard labor. The facts of the offense are not found in the appeal record. Discussion By his sole assignment of error, the defendant requests a review of the record for errors patent. Counsel for the defendant on appeal has complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So. 2d 528 (La.App. 4 Cir.1990) and filed a brief in compliance with State v. Jyles, 96-2669 (La.12/12/97), 704 So. 2d 241. Counsel's detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because he believes, after a conscientious *869 review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. Counsel noted that the sole issue preserved for appeal, the alleged unconstitutionality of La.Rev.Stat. 40:966(E), has been rejected both by the Louisiana Supreme Court and this Court. See State v. Jefferson, 2008-2204 (La.12/1/09), 26 So. 3d 112; State v. George, 2008-1193 (La.App. 4 Cir. 3/11/10), 34 So. 3d 941. A copy of counsel's brief was forwarded to the defendant and this Court informed him that he had the right to file a brief in his own behalf. He has not done so. Thus, this Court's review is limited to errors on the face of the record. La.Code Crim. Proc. art. 920. As per State v. Benjamin, we performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. The defendant was properly charged by bill of information with possession of marijuana, second offense in violation of La.Rev.Stat. 40:966(E)(2) and the bill of information was signed by an assistant district attorney. The record does not show that the defendant was formally arraigned. Nonetheless, La.Code Crim. Proc. art. 555 provides that the failure to arraign a defendant is waived if the defendant "enters upon trial without objecting thereto, and it shall be considered as if he had pleaded not guilty." See State v. Foreman, 2008-0902 (La.App. 4 Cir. 4/29/09), 10 So. 3d 1238. Although the defendant did not go to trial, the minute entry of October 8, 2009 indicates that he withdrew his prior plea of not guilty before he pleaded guilty as charged. Accordingly, all of the parties were apparently under the impression that he had formerly pleaded not guilty. Therefore, any error that may have occurred by the court's failure to arraign the defendant was cured when he pleaded guilty to the bill of information. The defendant was present and represented by counsel while pleading guilty and at sentencing. His guilty plea and sentence are legal in all respects. Conclusion Our independent review reveals no non-frivolous issue and no trial court ruling that arguably supports the appeal. Therefore, we affirm the defendant's guilty plea and sentence and grant appellate counsel's motion to withdraw. CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538223/	45 So. 3d 1212 (2010) Bryan Kent HAWKINS, Appellant v. Suzanne A. HAWKINS, Appellee. No. 2008-CA-01774-COA. Court of Appeals of Mississippi. March 16, 2010. Rehearing Denied July 20, 2010. Certiorari Denied October 21, 2010. 1213 Timothy M. Farris, attorney for appellant. Ray T. Price, Hattiesburg, attorney for appellee. Before KING, C.J., BARNES and ROBERTS, JJ. BARNES, J., for the Court: ¶ 1. Bryan Hawkins appeals the decision of the Chancery Court of Lamar County which denied his request to partition real property jointly titled to him and his former wife, Suzanne Hawkins. Bryan raises two issues: (1) whether the chancellor erred in ruling that the property settlement agreement implied that Bryan had "contracted his right of partition away" when he granted Suzanne the use and occupancy of the parties' homestead, and (2) even if the chancellor was correct in 1214 finding Bryan contracted away his right to partition, whether the chancellor should have found that the grant of "the use and occupancy of the homestead" by Suzanne was unreasonable. Finding no error, we affirm. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶ 2. In March 1988, a final judgment of divorce based on irreconcilable differences was entered in the Chancery Court of Lamar County for Bryan and Suzanne Hawkins, ending more than eighteen years of marriage. Attached to the judgment was an "Agreement and Property Settlement" (Agreement) which stated the parties had "reached a full and complete settlement as to all matters." The Agreement provided for child custody for the couple's two children (who were minors at that time), child support, and permanent alimony for Suzanne of $600 per month until her death or remarriage. Regarding the property settlement, paragraph X of the Agreement awarded Suzanne "the use and occupancy of the homestead," with Bryan paying the monthly mortgage installments, which included taxes and insurance on the homestead. ¶ 3. Previously, Bryan filed two petitions to modify the final judgment: one in November 1995 and one in August 1998. The 1995 petition requested that the homestead be sold as the children were no longer minors, with Bryan to receive all of the proceeds from the sale. Suzanne answered with a counter-petition for contempt of court due to Bryan's alleged failure to pay certain expenses and alimony ordered by the divorce judgment. In 1998, Bryan filed another "Complaint for Modification." Suzanne duly answered and counter-petitioned for judicial conveyance of the property. However, in May 2005, the chancery court entered an order of dismissal without prejudice for lack of prosecution of the action. ¶ 4. In February 2008, Bryan filed the instant petition for modification, wherein he requested that Suzanne's alimony be terminated and the marital home be sold, with his receiving an equitable division of any resulting equity. Before Suzanne filed a formal response to Bryan's complaint, the parties appeared before the chancellor, who opined that the ultimate resolution of the case involved a question of law. Accordingly, the chancellor requested that the parties agree to the issues before the court, which they determined to be: (1) does the chancery court have authority to partition the property in question; and (2) did paragraph X of the Agreement create a life estate in the property in favor of Suzanne. The parties subsequently submitted memoranda of law on these issues. ¶ 5. In October 2008, the chancery court ruled that it did have the authority to partition the property, and paragraph X did not create a life estate for Suzanne. Further, the chancery court ruled in favor of Suzanne, stating that the partition could not be granted because an agreement not to partition the property was implied, since there was no termination clause in the Agreement. Bryan timely appealed. STANDARD OF REVIEW ¶ 6. This Court's standard of review regarding a chancellor's determinations is well established. The chancellor's findings will not be disturbed on appeal unless the chancellor was "manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Nichols v. Funderburk, 883 So. 2d 554, 556 (¶ 7) (Miss.2004) (citing Tinnin v. First United Bank of Miss., 570 So. 2d 1193, 1194 (Miss.1990)). However, the chancellor's interpretation and application of law is reviewed de novo. Id. (citing 1215 Tucker v. Prisock, 791 So. 2d 190, 192 (¶ 10) (Miss.2001)). ANALYSIS ¶ 7. Paragraph X of the Agreement provides the following: That Suzanne A. Hawkins shall be awarded the use and occupancy of the homestead of the parties, together with the furniture, furnishings and appliances contained therein, with the exception of the personal belongings of Bryan Kent Hawkins, and Bryan Kent Hawkins agrees to satisfy and pay the monthly mortgage installments on the homestead, it being understood that taxes and insurance on the homestead are included in the monthly mortgage payment. The chancellor found the terms of the award unambiguous and no language of limitation in the Agreement, and we find no error in this regard. For the two stipulated issues, the chancellor ruled that Mississippi Code Annotated section 11-21-3 (Rev.2004) grants the court the right to partition property "held by joint tenants, tenants in common, or coparceners," and paragraph X did not create a life estate in favor of Suzanne. However, the chancellor went on to explain that he found the core issue, which was not raised by either party, is whether there is a right to partition the property. He concluded that an agreement between the parties not to partition is implied, and Bryan is estopped from asserting that right. ¶ 8. Bryan argues that the chancellor erred, as a matter of law, in ruling that paragraph X of the Agreement implied that Bryan "contracted his right of partition away" when he granted Suzanne "the `use and occupancy of the homestead' without limitation." Bryan contends that the plain language of the Agreement and the parties' intent was not to limit the right to partition; therefore, the chancellor should have granted Bryan the partition. Bryan concludes that the chancellor improperly "rewrote" the Agreement by ruling that an agreement not to partition was implied. ¶ 9. We disagree with Bryan's contentions. The chancellor relied upon Weeks v. Weeks, 403 So. 2d 148, 149 (Miss. 1981), which held that when a divorce settlement stated that the former husband had "the exclusive use, possession and control of the home owned by the parties," the former wife, in consenting to the agreement, gave up any right to partition the jointly owned property, unless the parties agreed to sell the property. For authority, the Weeks court cited Wiener v. Pierce, 203 So. 2d 598, 603 (Miss. 1967), which stated: Although the statute gives joint owners the right to have their property partitioned, the right is not one that cannot be restricted or limited for a reasonable length of time by contract, will, or deed. It is a well settled general rule that the right of partition may be limited by the provisions of the deed under which the parties claim and that joint owners may contract that their property will not be partitioned for a reasonable length of time. (Emphasis added.) Importantly, the "general rule is well settled that partition will not be granted at the suit of one in violation of his own agreement, since the agreement operates as an estoppel against the right to partition." Weeks, 403 So.2d at 149 (quoting 68 C.J.S., Partition § 44). Finally, the right not to partition may be express or implied. Id. It is a long-standing rule that property settlements are not subject to modification: "[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character." East v. East, 493 So. 2d 927, 932-33 1216 (Miss.1986) (citing In re Estate of Kennington, 204 So. 2d 444, 449 (Miss.1967)); see also McManus v. Howard, 569 So. 2d 1213, 1215 (Miss.1990) (agreements created during divorce proceedings are contracts "made by the parties, upon consideration acceptable to each of them, and the law will enforce them."). ¶ 10. The chancellor noted the homestead in this case is jointly titled to Bryan and Suzanne. Section 11-21-3 gives the chancellor the right to partition the property of joint tenants; however, as stated in Wiener, the right to partition can be limited or restricted for a reasonable length of time. The Agreement is a binding, unambiguous contract. Because there is no mention in the Agreement of any limitation on Suzanne's "use and occupancy of the homestead," either express or implied, we agree with the chancellor in our de novo review of the case that it is implied that the parties agreed not to partition the property. In reading the unambiguous contract, we conclude, as did the chancellor, that the absence of a termination provision means that no termination of the terms was intended. As the chancellor stated, partitioning the property would be in violation of the intent of the Agreement; thus, Bryan is estopped from doing so. ¶ 11. Bryan argues that the chancellor erroneously relied on Wiener, reasoning that if the Agreement is not ambiguous, and there is no limiting language restricting the right to partition, the chancellor cannot find that the parties "contracted away" the right to partition. We find this argument wholly at odds with the unambiguous language of the Agreement, which states that Suzanne "shall be awarded the use and occupancy of the homestead." Further, our supreme court has held otherwise in similar situations. ¶ 12. In Sartin v. Sartin, 405 So. 2d 84, 84 (Miss.1981), during divorce proceedings, the former wife was "awarded exclusive use and possession" of the jointly-owned marital home. Shortly thereafter, the former husband filed a bill for partition, claiming that the property was incapable of partition in kind, and he had an absolute right to partition under section 11-21-3. Id. at 85. Citing Weeks as authority, the Sartin court held the former husband was not allowed to partition the property and have the proceeds divided between himself and his former wife because it was in derogation of the decree, which gave the former wife the right to have the exclusive possession of the property as long as she remained unmarried. Id. at 86. ¶ 13. In Rushing v. Rushing, 414 So. 2d 429, 429 (Miss.1982), the supreme court affirmed a former husband's preclusion from partitioning real estate owned by him and his former wife as tenants in common. The settlement agreement allowed the wife to reside in "and retain possession of" the marital homestead, which was situated on thirty-four acres of land. Id. One year later, the former husband filed a petition seeking to partition the thirty-four acres of land pursuant to section 11-21-3. Id. at 430. Citing Weeks and Sartin, the supreme court held that such partition would have the effect of annulling the former wife's right to occupy the homestead. Id. ¶ 14. Accordingly, we find no error in the chancellor's reliance on Wiener, which is based upon the same rationale as Weeks and its progeny. ¶ 15. Bryan also argues that even if the chancellor was correct in finding Bryan "contracted away" his right to partition, the chancellor erred in denying the partition because the limitation on partition has been extended for an unreasonable length of time, contrary to the rule stated in Weeks and Wiener. Here, the divorce and Agreement were entered more than twenty years ago, and the parties' *1217 children are now adults. Again, we find Bryan's argument is without merit. In Weeks, the supreme court was not called upon to determine what would be a "reasonable time" for a party to have the full use and occupancy of the homestead in this situation and, therefore, gave no guideline for what would constitute a "reasonable" time, except to state that use and occupancy, without partition, did "not extend to a time that clearly could be said to be unreasonable." Weeks, 403 So.2d at 149. Instead, the court held the "reasonableness" determination would be made on a case-by-case basis. Id. ¶ 16. As in Weeks, here, it is presumed that Bryan knew what he was agreeing to in the plain, unambiguous language of the property settlement, and there is no evidence to the contrary. We find this situation is analogous to the situation where a decedent leaves his/her widow/widower property. Mississippi Code Annotated section 91-1-23 (Rev.2004) exempts property from partition or sale for partition during the widowhood "as long as it is occupied or used by the widow [or widower] unless she [or he] consent." The Agreement here granted Suzanne the use and occupancy of the former marital homestead, without limitation as to time. ¶ 17. We conclude the chancery court did not err in denying Bryan's petition to partition the homestead property. ¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2129224/	349 N.E.2d 173 (1976) VERNON FIRE & CASUALTY INSURANCE COMPANY AND GREAT AMERICAN INSURANCE COMPANY, Appellants (Defendants below), v. A.W. SHARP, d/b/a Columbus Wood Preserving Company, Appellee (Plaintiff below). No. 676S181. Supreme Court of Indiana. June 10, 1976. Rehearing Denied September 3, 1976. 175 Mark W. Gray, John T. Lorenz, Kightlinger, Young, Gray & De Trude, Indianapolis, William A. Conner, Walker & Conner, Columbus, for appellants. Charles E. Brown, Crabbe, Brown, Jones, Potts & Schmidt, Columbus, Ohio, Charles R. Wells, Columbus, for appellee. OPINION ON PETITION TO TRANSFER HUNTER, Justice.[] Petitioners, Vernon Fire & Casualty Company and Great American Insurance Company, seek transfer from the decision of the Court of Appeals, 316 N.E.2d 381, affirming the judgment of the trial court in favor of their insured A.W. Sharp, d/b/a Columbus Wood Preserving Company. The judgment awarded compensatory damages based upon petitioners' contracts to indemnify the insured for loss sustained by a fire which gutted his creosoting plant. The judgment also awarded punitive damages based upon the second and third paragraph of Sharp's complaint, infra Part II, generally alleging tortious conduct on behalf of petitioners in dealing with their insured and in refusing to pay over the proceeds of the insurance contracts. After hearing oral argument, the Court voted to grant transfer and my brother Justice Prentice agreed to prepare the Court's opinion. Upon circulation of the proposed opinion, a majority of the Court concurred with that portion of the opinion which treated the issue of compensatory damages, but disagreed with the disposition of the punitive damages award, requiring another opinion to be written upon that issue. As set forth in Part I, but without quotation marks, the Court now adopts the opinion of Justice Prentice on the issue of compensatory damages. I PRENTICE, J. Plaintiff (Appellee) was the owner of property destroyed in part and damaged in part by fire. Defendants (Appellants) are two insurance companies, each of which had written a policy (contract) of fire insurance upon the property. The evidence is not in dispute and consisted of stipulation and testimony from the plaintiff and his attorney. 176 The contracts of insurance had been issued by the same agency, and at the same time. Insofar as is pertinent to this litigation, the contracts were in identical form. The property insured was scheduled in the contracts and of the total value of $125,000.00, but the liability of the insurer under each policy was limited to $31,250.00 or twenty-five percent of the scheduled values. The insuring agreement of each policy was as follows: "IN CONSIDERATION OF THE PROVISIONS AND STIPULATIONS HEREIN OR ADDED HERETO AND OF the premium above specified, this Company, for the term of years specified above from inception date shown above at Noon (Standard Time) to expiration date shown above At Noon (Standard Time) at location of property involved, to an amount not exceeding the amount(s) above specified, does insure the insured named above and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace * ." (Emphasis ours.) The amount of insurance provided and the property insured was designated in each policy as follows: "This policy being for $31,250. covers its pro-rata proportion of and on the following amounts: (Emphasis ours.) 1. $3,000. On the one story, iron clad and frame Retort Room. 2. 65,000. 80% On contents of the one story, iron clad and frame Retort Room. 3. 4,000 On the concrete block, Creosote Oil Storage Tanks (Limits of Liability) ($1,000. per tank) 4. 15,000. On the one story, iron clad and frame Boiler Room and Storage (including boiler and appurtenances) 5. 1,000. On the steel Metal Stack. 6. 35,000. On contents of Material, principally lumber and ties in yard. 7. 1,000. 80% On contents of One story, frame Office building. 8. 500. On the one story, frame Laboratory Building. 9. 500. On contents of the one story, frame Laboratory Building. ___________ $125,000. " The plaintiff's business was under the management of one John Easter, who also had property of his own destroyed in the fire which occurred on June 7, 1971. Mr. Easter's property was not scheduled in the contract, but he filed a claim with the defendants and their agent who had issued the contracts in question. The plaintiff by his attorney, filed a formal proof of loss with the defendants' adjusting representative upon each contract on August 16, 1971. Such action followed some informal negotiations between the adjuster and the plaintiff personally, the details of which are not disclosed, and from which the plaintiff had concluded that the 177 defendants would refuse to pay his claim until the claim of Mr. Easter was settled. The proofs of loss were on forms provided by the adjuster to the plaintiff's attorney on July 15, 1971. Completed and filed by the plaintiff, each such proof of loss was as follows: "Total THE TOTAL AMOUNT OF INSURANCE upon the property described by Insurance this policy was, at the time of the loss, $31,250.00, as more particularly specified in the apportionment attached, besides which there was no policy or other contract of insurance, written or oral, valid or invalid. Value THE ACTUAL CASH VALUE of said property at the time of the loss was ........................................ $93,000.00 Loss THE WHOLE LOSS AND DAMAGE was ................... $93,000.00 Amount Claimed THE AMOUNT CLAIMED under the above numbered policy is ................................................ $31,250.00" The amount of the plaintiff's loss by reason of the fire was $94,108.09 which was itemized as follows: Retort Room $ 3,000.00 Retort Room contents 80% 65,000.00 Creosote Tank 4,000.00 Boiler 15,000.00 Materials, Lumber Ties, etc. 6,108.09 Laboratory Building 500.00 Laboratory Building contents 500.00 ___________ $ 94,108.09 From the foregoing, it is readily determined that the plaintiff's loss as to some items was equal to the scheduled value. However, two items insured (a metal stack and office contents) of the total scheduled value of $2,000.00 were not damaged, and only $6,108.09 of the scheduled materials were destroyed or damaged. The plaintiff's losses exceeded the amount of the insurance provided under the two contracts, and under "blanket" policies he would have been entitled to reimbursement for the stated policy limits of $31,250.00 upon each contract. However, these were not "blanket" policies but were "scheduled" policies, i.e. the property insured was separately scheduled and valued in the contracts. The liability of the insurers under such policies is limited as to each scheduled item, and a portion applying to one item but unused may not be transferred to another item which was under-valued and thus underinsured. "A distinction must be made between a policy which speaks in terms of a lumpsum obligation or value of the property and one which separately schedules different items of property. In the latter case, each separately treated item of property is in effect covered by a separate contract of insurance and the amount recoverable with respect to a loss affecting such property is determined independently of the other items of property." Couch on Insurance, 2d Ed., § 54:83. To the same effect, also see 45 C.J.S. Insurance § 918 and cases there cited. 178 This distinction was recognized in Indiana in Continental Insurance Company v. Chew (1894), 11 Ind. App. 330, 38 N.E. 417. In that case, the appellee had been awarded a judgment upon a contract which insured both a house and its contents. The judgment was for less than the total amount of the policy, but the court reversed saying: "The policy provides for $450 insurance on the house, and $150 on the contents. Thus, there was not a general or blanket policy of $600 on both house and contents, but separable contracts for insurance to the amount of $450 on the house, and $150 on the personalty. Nappanee Furniture Co. v. Vernon Ins. Co. 10 Ind. App. 319 37 N.E. 1064. "There is also in the policy a provision that the company shall not be liable for an amount beyond the value of the interest of the assured in the property insured. "It is conceded by counsel for the appellee that she owned but a one-third interest in the realty, and that consequently she was entitled to recover on account of the building, the value of which was $400, only the one-third thereof, or $133.33. "The amount of the recovery was $433.34. Counsel seek to justify this amount upon the theory that appellee is entitled to the full value of the personal property destroyed, which was shown to be $300. "This position, however, cannot be maintained, because she could not in any event recover on account of the loss of the personalty more than the amount of insurance distributed to it in the policy." 11 Ind. App. 330, 333-34, 38 N.E. 417, 419. Where an aggregate amount of insurance is on separately valued items pro rata, the risk as to each item is to be determined by prorating the insurance according to the value of the different items. E.H. Stanton Co. v. Rochester German Underwriters' Agency, D.C.Wash., 206 F. 978; Springfield Fire and Marine Insurance Co. v. Simmons, 184 Okla. 323, 87 P.2d 941. The total declared or "scheduled" value of the insured property was $125,000.00 and the amount of coverage under each policy was one-fourth of that value ( $ 31,250.00 or one-fourth), i.e. the ___________ $125,000.00 ratio of the policy limits to the scheduled value. The prorating of insurance to value applied separately to each scheduled item, the same as would have been the case had the policy limits equaled the total scheduled value. The words "this policy * * covers its pro rata portion * * " was a clear expression of the limitation of the defendants' risk to one-fourth of the scheduled values. The defendants tendered their proposed final instruction No. 1 which, in effect, was a directed verdict in favor of the plaintiff for $23,527.02 against each defendant, such amount being one-fourth of the plaintiff's loss. This instruction was refused. The trial court erred in its denial of the defendants' tendered instruction No. 1 for the reasons hereinbefore expressed. As a matter of law, the liability of each defendant was limited to $ 31,250.00 or one-fourth ___________ $125,000.00 of the scheduled value of each item listed in the contracts of insurance, and the portion of the coverage not utilized by reason of some of the properties having not been damaged was not applicable to increase the amount of coverage upon those items that were lost or damaged but underinsured. The plaintiff was insured under each contract only to the extent of one-fourth of the scheduled or declared value of each item of property scheduled. Continental Insurance Company v. Chew, supra. There was no ambiguity in the contract with respect to the defendants' limits 179 of liability. There was confusion from which the trial court and the Court of Appeals apparently concluded that the defendants sought some relief by reason of the standard "pro rata clauses" found in another section in the insurance contracts, and plaintiff has, by his brief, kept this clause in the foreground. The Court of Appeals correctly stated the law with regard to such clauses, i.e. they do not come into play when the amount of the loss exceeds the face value of the contracts. the purpose of such clauses is to require pro rata contribution from all insurers when there are multiple contracts in effect at the time of the loss. The pro rata clauses were merely inapplicable in this case, but by no stretch of the imagination did they increase the amounts of insurance beyond the shceduled limits expressly provided. II Plaintiff-appellee sought punitive damages against defendants-appellants in the second and third paragraphs of his complaint. The second paragraph alleged: "That said defendants have wrongfully breached said contracts of insurance and refuse to pay for the loss sustained by the plaintiff, and that said defendants have been guilty of bad faith in dealing with their insured, this plaintiff." The third paragraph alleged: "That the said defendants have acted in an intentional and wanton manner in dealing with their insured, this plaintiff, and as a result thereof they have refused to pay this plaintiff the proceeds of said insurance." At the close of plaintiff's evidence (which was also the close of all evidence), defendants-appellants moved for judgment on the evidence on these paragraphs. The trial court overruled the motion and appellants assign such action as error. There are no mystical considerations confronting a trial court faced with such a motion: the interpretation of Ind.R.Tr.P. 50 consistently has been that the motion must be denied where there is any evidence or legitimate inference therefrom tending to support at least one of the allegations. Where the evidence is such that the minds of reasonable men might differ, a directed verdict is improper, and the resolution of conflicting evidence is for the jury. Mamula v. Ford Mtr. Co. (1971), 150 Ind. App. 179, 275 N.E.2d 849. A. STATEMENT ON THE LAW The parties to this appeal have briefed the evidentiary question without concern for the legal basis upon which the award of punitive damages may rest. If there be no basis in law for this claim, it cannot matter how much evidence the jury had before it. The general rule, recognized in Indiana, Hibschman Pontiac, Inc. v. Batchelor (1976), Ind. App., 340 N.E.2d 377; Standard Land Corp. v. Bogardus (1972), 154 Ind. App. 283, 289 N.E.2d 803, and throughout the United States, 11 Williston on Contracts § 1340 (W. Jaeger, 3d ed. 1968), is that punitive damages are not recoverable in contract actions. In most contract situations, the rule is a fair one, considering the nature of the interest to be protected. As Dean Prosser notes: "Contract actions are created to protect the interest in having promises performed. Contract obligations are imposed because of conduct of the parties manifesting consent, and are owed only to the specific individuals named in the contract. Even as to these individuals, the damages recoverable for a breach of the contract duty are limited to those reasonably within the contemplation of the defendant when the contract was made, while in a tort action a much broader measure of damages is applied." Prosser, Law of Torts, 613 (4th ed. 1971). 180 The well-defined parameters of compensatory and consequential damages which may be assessed against a promisor who decides for whatever reason not to live up to his bargain lend a needed measure of stability and predictability to the free enterprise system. Thus, a promisor's motive for breaching his contract is generally regarded as irrelevant, Pirchio v. Noecker (1948), 226 Ind. 622, 82 N.E.2d 838, because the promisee will be compensated for all damages proximately resulting from the promisor's breach, Cincinnati & Chi Air Line R.R. v. Rodgers (1865), 24 Ind. 103. Where the facts surrounding the promisor's breach indicate sub-standard business conduct, the promisee may also enjoy a limited sense of requital in taking his business elsewhere in the future, but he is not entitled to mulct the promisor in punitive damages. The general rule is not ironclad. Exceptions have developed where the conduct of the breaching party not only amounts to a breach of the contract, but also independently establishes the elements of a common-law tort such as fraud. Murphy Auto Sales, Inc. v. Coomer (1953), 123 Ind. App. 709, 112 N.E.2d 589. The requirement that an independent tort be found serves several purposes. First, it maintains the symmetry of the general rule of not allowing punitive damages in contract actions, because the punitive damages are awarded for the tort, not on the contract. Secondly, the independent tort requirement facilitates judicial review of the evidence by limiting the scope of review to a search for the elements of the tort. Neither of these functions of the independence requirement is very compelling when it appears from the evidence as a whole that a serious wrong, tortious in nature, has been committed, but the wrong does not conveniently fit the confines of a pre-determined tort. The foregoing circumstances alone, however, will not sustain the award of punitive damages. It must also appear that the public interest will be served by the deterrent effect punitive damages will have upon future conduct of the wrongdoer and parties similarly situated. Only when these factors coalesce, will the independent tort requirement be abrogated, and the allowance of punitive damages be sustained. A careful review of the case law in this area leads to the conclusion expressed herein, that an independent tort need not always be established, and the same conclusion is reached in Corbin's treatise: "It can be laid down as a general rule that punitive damages are not recoverable for breach of contract, although in certain classes of cases, there has been a tendency to instruct the jury that they may award damages in excess of compensation and by way of punishment. These cases, however, are cases that contain elements that enable the court to regard them as falling within the field of tort or as closely analogous thereto." 5 Corbin on Contracts § 1077 (1964) [Emphasis added, footnotes omitted]. The standard for awarding punitive damages is necessarily a flexible one. Indiana case law follows Sedgwick's formulation which appears in Taber v. Hutson (1854), 5 Ind. 322, 324: [W]henever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the law, instead of adhering to the system or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, it blends together the interest of society and of the aggrieved individual, and gives damages not only to recompense the suffer, but to punish the offender." [Emphasis added.] Sedgwick's recognition that the lines between contract and tort often become blurred is aptly demonstrated by his choice of the word "mingle" in describing the presence of tortious activity which accompanies the breach of contract. This formulation 181 clearly recognizes that an independent tort is not a prerequisite to the recovery of punitive damages, and we adhere to this standard as a wise one. Appellants acknowledge the foregoing rule allowing punitive damages, but maintain that their conduct in dealing with their insured reflects nothing more than a legitimate exercise of an insurer's "right to disagree" as to the amount of recovery, citing Meridian Mutual Insurance Co. v. McMullen (1972), 152 Ind. App. 141, 282 N.E.2d 558. It is evident that the exercise of this right may directly result in the intentional infliction of temporal damage, including the damage of interference with an insured's business (which an insured will undoubtedly consider to be oppressive). The infliction of this damage has generally been regarded as privileged, and not compensable, for the simple reason that it is worth more to society than it costs, i.e., the insurer is permitted to dispute its liability in good faith because of the prohibitive social costs of a rule which would make claims nondisputable. Insurance companies burdened with such liability would either close their doors or increase premium rates to the point where only the rich could afford insurance. For these reasons, we agree that an insurer cannot be subjected to a punitive damage award for seeking in good faith to pay only the amount which the law requires to be paid under its contract. Insofar as defendants' conduct is ascribable to their good faith efforts to pay the legal proceeds, their conduct is privileged. B. STATEMENT ON THE FACTS Appellants maintain that the trial court erred in overruling their motion for a directed verdict because there was no evidence presented from which the jury could find that appellants were either "guilty of bad faith" or had "acted in an intentional and wanton manner" in dealing with the plaintiff. Since the jury did so find, its verdict must be upheld if there is any evidence presented from which a reasonable jury could conclude that appellants engaged in conduct, not privileged (as that term is used above), which amounted to an independent tort or was tortious in nature. Plaintiff's evidence and the reasonable inferences therefrom indicate that the defendants knew plaintiff desired to rebuild his business, but could not do so without the insurance proceeds, and that plaintiff continued to incur the expense of a monthly rental of $300 for the plant site in anticipation of rebuilding. While plaintiff was demanding that the insurers were liable for the full face value of the policies of insurance, the record indicates that appellants made no offer to pay plaintiff even that portion of the face value which they deemed him entitled. The jury also had before it evidence from which it could reasonably infer that the defendants sought to use their knowledge of plaintiff's desperate need for funds for reconstruction to require plaintiff to procure a settlement of a separate lawsuit brought by plaintiff's manager, John L. Easter, against the defendants for negligent failure to issue a fire insurance policy on Easter's property which was consumed in the blaze. From such evidence the jury could reasonably infer that the defendants had refused, and would continue to refuse, to pay the plaintiff even the amount which the insurance companies concede he was entitled to, until the plaintiff obtained a release of Easter's claim. That evidence is as follows: (a) Plaintiff's Exhibit 4, letter from plaintiff's attorney Leon D. Cline to Mr. J.P. Heffernan, Branch Manager of the General Adjustment Bureau, Inc., dated June 30, 1971. "Dear Mr. Heffernan: "This is to confirm our telephone conversation of yesterday afternoon relative to the recent fire loss of our client, Mr. A.W. Sharp, d/b/a Columbus Wood Preserving Co. 182 "Mr. Sharp is most desirous of getting this matter settled promptly and without further delay because of pressing financial matters arising from the loss of his business here in Columbus, Indiana. Consequently, we ask that you submit to my office proof of loss forms and any other forms necessary to get this matter adjusted without further delay. "In our conversation you mentioned a lawsuit which had been filed by Mr. Sharp's Plant Manager, Mr. John Easter, and the insurance companies' wishes to hold up on Mr. Sharp's fire claim until Mr. Easter's suit had been settled. This, of course, is impossible. .. ." (b) Direct examination of Leon D. Cline, attorney for plaintiff. PRELIMINARY QUESTION Mr. Gray Q "Are the conversations you are about to relate sir, before or after you filed suit?" A "Before." MR. GRAY: "All right, go ahead." A "On August 27, 1971, following this last letter, I got a call, it was from an adjuster, and it was either Mr. Hefferman [sic] or Mr. Dyer. Want me to relate?" Q "Yes, would you? Relate the conversation." OBJECTION Mr. Conner: "We renew our original objection, Your Honor." JUDGE: "You may note the same objection heretofore made by counsel, and the Court overrules said objection. You may answer." A "The sum and substance of the conversation by this adjuster was that Mr. Easter's claim, or, sorry, Mr. Sharp's claim was not going to be disposed of until they had handled or got the suit settled with Mr. Easter." * * * * * Q "Now I'll ask you, Mr. Cline, at any time during your negotiations, and so forth, in your representation of Mr. Sharp, did the insurance company at any time offer to settle his claim for any amount during the period of time you represented him?" A "No, they " OBJECTION Mr. Gray: "To which we will object by reason of the fact that any offer or negotiation of settlement after suit was filed would not be germane, would not be admissible." JUDGE: "You may note that the question is overruled. You may answer that question." A "At no time did they make any offer to settle." (c) Direct examination of Amor Sharp, plaintiff. Q "Why was a lawsuit filed?" OBJECTION Mr. Gray: "Now if the Court please, this is a self-serving declaration and calls for an answer which is not germane to the issues." JUDGE: "You may note that the objection is overruled. And you may answer." A "The reason the suit was filed was because I couldn't collect otherwise." * * * * * * Q "To your personal knowledge, not talking about any knowledge your lawyer might have, to your personal knowledge, did these insurance companies, or did any of their representatives ever tell you why they didn't pay you?" 183 A "Yes, sir." Q "What did they tell you?" A "Because of a counterclaim that John Easter had filed against my policies." Q "Did John Easter own or have any interest in any of the matters under which you are making your claim?" A "No, sir. It was a ficticious [sic] claim." Q "Had you always carried insurance with , not always, but for some years carried insurance with these two companies?" A "Yes, sir." Q "They knew who you were?" A "Yes, sir." Q "Did anyone else own or have an interest in the Columbus Wood Preserving Company?" A "No, sir." Q "Whatever interest Mr. Easter might have had in anything would have been confined to what, sir?" A "Why it would have been confined to treating fluids of machines that he bought to help him in the operation of the " Q "I think he bought a forklift." A "A forklift, he bought a tractor." Q "Did you make any kind of a claim for anything that Mr. Easter owned?" A "No, sir." Q "And did these fire insurance companies ever dispute the fact that you owned the things that you claim that you owned?" A "No, sir." (d) Plaintiff's Exhibit 9, letter from attorney for defendants to the plaintiff, dated October 6, 1971. "Dear Mr. Sharp: "We return herewith the Proofs of Loss which you filed August 12th, 1971, with the Great American Insurance Company of New York and the Vernon Fire and Casualty Company of Indianapolis. "Both Companies find it necessary to reject these Proofs of Loss for the following reasons: "(a) The amount claimed is in excess of the loss reflected in your sworn statement. "(b) Contrary claims against these policies have been filed by your manager and contracting party, John L. Easter. "If you can provide us with Proofs of Loss in the correct amount and can provide us with release of any claims by John L. Easter against these two Companies, I believe the Companies would be willing to make payment at an early date for the actual loss suffered under the coverage of these two policies." [Emphases added.] The insurance contracts were in evidence, and both contained identical "Requirements in Case Loss Occurs" clauses. These clauses are exceedingly detailed, but they do not purport to require the plaintiff to settle the lawsuits of other parties arising from the occurrence which produced plaintiff's loss, and no reasonable juror could find that the clauses contained such a requirement. C. APPLICATION OF LAW At the outset, we note that the second and third paragraphs of plaintiff's complaint do not charge appellants with 184 the commission of an independent tort. In view of the foregoing evidence, however, we believe the jury could have reasonably found that the appellants promised to pay the legal proceeds of the policies in accordance with the terms thereof, that appellants knew such representation to be false, in that the policy did not contain all pre-conditions to payment, that plaintiff relied upon this representation by continuing to carry his insurance with appellants and by not insuring his property through another carrier, and that plaintiff was damaged by this reliance. Viewed in this manner, plaintiff's evidence establishes the elements of fraud, Edwards v. Hudson (1938), 214 Ind. 120, 14 N.E.2d 705, and any inconsistency between plaintiff's pleading and proof will be resolved in favor of the proof at trial, Ayr-Way Stores, Inc. v. Chitwood (1973), 261 Ind. 86, 300 N.E.2d 335. Plaintiff's second paragraph charged appellants with wrongfully breaching their contracts by refusing to pay his loss. Plaintiff embellished his claim by charging "that said defendants have been guilty of bad faith in dealing with their insured." As noted above, appellants are not subject to punitive damages insofar as their actions are attributable to their good-faith efforts to pay the legal proceeds. Consequently, the evidence herein dictates that appellants' actions which ultimately required plaintiff to seek judicial determination of the amount of appellants' liability under the contracts of insurance were in good faith, since there was no evidence to indicate that the policies were reasonably susceptible of only one interpretation and that being in favor of the plaintiff. We therefore hold that the trial court erred in denying appellants' motion for a directed verdict on the second paragraph of plaintiff's complaint. Plaintiff's third paragraph charged that appellants acted in an intentional and wanton manner in refusing to pay plaintiff the proceeds of the policies. From the evidence herein the jury could reasonably conclude that appellants acted in an "intentional and wanton" manner in dealing with plaintiff in regard to securing a settlement of Mr. Easter's claim, and since this conduct did not relate solely to the appellants' actions in paying the legal proceeds, it was not privileged. We believe such conduct might also have been characterized as "oppressive" as that term is issued in Murphy Auto Sales, supra. Black's Law Dictionary defines oppression as: "An act of cruelty, severity, unlawful exaction, or excessive use of authority." Plaintiff's evidence showed that the insurers dealt with his claim with an "interested motive" and wrongfully attempted by virtue of their superior position to exact additional consideration from the plaintiff before performing their obligations under the contract. This evidence was sufficient to establish a serious intentional wrong. As noted above, punitive damages "do not rest upon any ground of abstract or theoretical justice but upon the basis of an established public policy which seeks to promote the public safety." Murphy Auto Sales, supra. The public policy of the state is to be determined from a consideration of our constitution, statutes, the practice of governmental officers in the course of administration and the decisions of our courts. Hogston v. Bell (1916), 185 Ind. 536, 112 N.E. 883. From an examination of Title 22 of the Indiana Code, we find expressed therein a public policy to regulate those engaging in the insurance business in this state, not only for the good of the public, but for the benefit of insurers as well. One area regulated by this title is insurance company rate-making. Ind. Code § 27-1-22-1, et seq. (Burns 1975). An insurance company, like any other business, is entitled to a reasonable return on its investment. To guarantee such a return, the company demands a premium which will offset its cost of doing business and which will enable the company to meet its obligations as they become due. One of the costs of engaging in the insurance business, 185 and allowable under the statute, is the settling of spurious claims, such as that of plaintiff's manager. When such rates have been determined in accordance with the statutory scheme, Ind. Code § 27-1-22-18 (Burns 1975) prohibits insurers from altering the rates by knowingly charging, demanding or receiving a premium which is in excess of those established by law. Appellants' actions in demanding non-contractual settlement service from their insured as a pre-condition to paying the loss they were already obligated to pay under the contract offend the statutes governing the rate-making process. If appellants' demands had been met, it is clear that appellants would have reaped an unbargained-for benefit from the insured, which would have operated to increase the value of the premium paid by the insured. This type of behavior ignores the rights of the individual insured and undercuts the rights of insurers who abide by the rate-making laws. When a statutory scheme exists to protect the public, those who are regulated thereby may not act in an intentional and wrongful manner so as to defeat the statutory objective, see Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425. We conclude that the public policy of this state permits the recovery of punitive damages under the circumstances of this case. There was evidence presented under the third paragraph of plaintiff's complaint from which the jury could reasonably find that appellants acted tortiously in dealing with the plaintiff. The trial court did not err in overruling appellants' motion for a directed verdict on plaintiff's third paragraph. Judgment for plaintiff awarding compensatory damages of $31,250 against each defendant is hereby reversed and the cause is remanded to the trial court with instructions to vacate the judgment and enter final judgment for the plaintiff in the amount of $23,527.02 against each defendant, with interest from the date of entry. The judgment of the trial court in all other matters, including the award of punitive damages of $17,000 against each defendant, is hereby affirmed. GIVAN, C.J., and ARTERBURN, J., concur. PRENTICE, J., dissents with opinion in which DeBRULER, J., concurs. PRENTICE, Justice (dissenting). I disagree with the majority opinion upon the issue of punitive damages, and I am unable to ascertain the basis upon which it has upheld the allowance in this case. It appears that it is saying that such damages may be awarded for breach of contract without a showing of tortious conduct but, that in this case, there was evidence of an independent tort, i.e. fraud in the inducement. I dispute both premises. I further dispute that there was probative evidence presented from which the jury could reasonably find that the defendants were guilty of "bad faith," or acted in an "intentional and wanton manner," which of course also disputes that the defendants committed a fraud upon the plaintiff. The conclusion to the contrary, can be drawn only by accepting the opinions of the plaintiff and his counsel as probative evidence. Notwithstanding that such opinions found their way into the evidence, they were not probative, and they were therefore not entitled to be weighed as such. Without them the record is devoid of any evidence of improper acts or omissions by the defendants. There are additional reasons in law why the allowance of punitive damages in this case was improper, and I shall touch upon these briefly later in this opinion. When I voted to grant transfer and undertook to write what I then assumed would be the opinion for the majority, my intention was to correct the error of the trial court and the Court of Appeals upon 186 the issue of compensatory damages. It was my opinion at that time, however, that if the record revealed evidence from which the jury could reasonably find that the defendants had acted in bad faith in their settlement negotiations with the plaintiff, the judgment upon the issue of punitive damages should stand. My subsequent research revealed that this was an erroneous concept as will be hereinafter revealed. Prior to reaching that point, however, I discovered from repeated and careful readings of the entire bill of exceptions that there was no evidence of probative value from which bad faith or wantonness could reasonably be inferred. The denial of such evidence is here intended to negate also any reasonable inference of "elements of fraud," "serious intentional wrong," conduct "characterized as `oppressive,'" conduct violative of a "public policy," any act of "cruelty, severity, unlawful exaction, or excessive use of authority," or any "tortious dealings," such terms having been variously employed throughout the majority opinion. I neither disparage nor ignore the rule that prohibits this Court from reversing a trial court judgment upon the weight of the evidence. It is a rule of long standing and for the most part serves the cause of justice well, although it has not always been the rule and is not infallible. Toledo and Wabash Railway Co. v. Goddard (1865), 25 Ind. 185; Martin v. State (1867), 28 Ind. 310; Batterson v. State (1878), 63 Ind. 531; Jeffersonville, etc., R.R. Co. v. Bowen (1874), 49 Ind. 154. The rule, however, requires facts found and inferences drawn to be reasonable and to be found and drawn from probative evidence. If they are not, it is the right and the duty of this Court to disregard them. And in making the determination of reasonableness the evidence must be viewed in context. Tom v. State (1973), 261 Ind. 295, 302 N.E.2d 494. Bits and pieces of evidence may not be isolated out of context and each given its most devastating force, which is but another way of saying that evidence that merely tends to support or to establish suspicion is not sufficient, Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641, or that there must be more than a mere scintilla of evidence. Gipe v. Pittsburgh, etc. R. Co. (1907), 41 Ind. App. 156, 82 N.E. 471; Richey, etc. v. Sheaks (1967), 141 Ind. App. 423, 228 N.E.2d 429. FACTS RESTATED Under the heading of "Statement on the Facts" the majority opinion recites the evidence which it maintains supports its decision not merely a portion adequate to illustrate its sufficiency, but essentially all of it. None of the evidence was in dispute, and all of it came from the plaintiff and his lawyer. Notwithstanding that it will be, to some extent, repetitious, I find it necessary to recite here all of the relevant evidence adduced at the trial, not because it refutes that recited by the majority but because that omitted is contextual. Additionally, a full recital will avert the supposition that what was not recited by the majority was supportive of its conclusions. For example, the majority opinion recites that it was reasonably inferable that the defendant sought to use its knowledge of plaintiff's "desperate need for funds." There is no evidence that the plaintiff had a "desperate" or even urgent need for funds. The testimony was that he desired to rebuild his investment property that had been destroyed but would be unable to do so until the insurance proceeds were paid. Such circumstances, to my mind, do not reflect desperation. If I am wrong, the use to which the plaintiff intended to apply the contract proceeds was, nevertheless, immaterial, as will be later shown. Clark v. Life & Casualty Insurance Co. (1932), 245 Ky. 579, 53 S.W.2d 968; Haas v. Pacific Mutual Life Insurance Co. of California et al. (1941), 70 Ohio App. 332, 41 N.E.2d 263. The majority opinion recites that the defendants knew, at the time the contracts of insurance were purchased that such contracts did not contain all pre-conditions to 187 payment. There simply is no evidence to support such a finding. The majority opinion also charges that the defendants demanded "Non-contractual" settlement services from the plaintiff, and there is no probative evidence in support of that charge. Plaintiff had two policies of fire insurance, one with each defendant, each being for a maximum of $31,250.00. These policies were scheduled, i.e. each policy insured each scheduled article for a maximum one-fourth of its scheduled value. Plaintiff had a fire loss on June 7, 1971 to the extent of $94,108.09. Some property scheduled was not lost or damaged, but other property lost or damaged was either of a value greater that that scheduled or was not scheduled at all. This Court has agreed, as a matter of law, that the plaintiff's insured loss was a total of $47,054.04 or $23,527.02 under each policy. Plaintiff's business, where the fire occurred, was upon leased land and was, at that time, under the management of one John Easter. Easter also lost property in the fire, which appears to have been uninsured. He claimed, however, that the same insurance agent that had handled the Sharp insurance had agreed to include his property in the plaintiff's insurance, and he filed suit against the agent and the two insurance companies that are the defendants in this cause. We are not privy to the details of such claim, but from the trial judge's order denying the defendant's motion to inter-plead Easter in this case, I conclude that Easter's claim was not made under the policies with which we are here concerned. Following the fire, verbal negotiations between the plaintiff and the defendants' adjuster took place. The record does not reveal any of the details of such negotiations, but it is clear that the plaintiff demanded not the amount of his insured loss but the policy limits of $31,250.00 from each defendant. It is also clear that the defendants did not deny liability and that the plaintiff concluded, from his negotiations with the adjuster, that the defendants were being arbitrary and would refuse to pay his claim and that, for that reason, he turned the matter over to legal counsel on or about June 21, 1971. Excerpt from direct testimony of Plaintiff: "Q All right, sir, after the fire, after the loss, did you attempt to collect from the Vernon Fire and Casualty Insurance Company and the Great American Insurance Company the amount of your loss? "A Yes, sir. "Q And what was the total amount of the loss, that is, the total amount of the loss that you had in the fire? "A Ninety-four thousand dollars ($94,000.00) plus. "Q And what was the face amount of each policy that you had with Vernon Fire and Casualty Insurance Company and Great American Insurance Company? "A Thirty-one thousand two hundred and fifty dollars ($31,250.00). "Q Did you make a demand upon each of those companies to pay that amount of money? "A Yes, sir. "Q Did they ever pay that amount of money? "A No, sir. "Q Did they ever deny to you that you did, in fact, have an insurance policy in full force and effect with them? "A No, sir. "Q In that amount. And as we know, you did obtain counsel here in Columbus, Indiana? "A Yes, sir. 188 "Q Namely, Mr. Cline, and ultimately a lawsuit was filed? "A Yes, sir. "Q Why was a lawsuit filed? OBJECTION Mr. Gray "Now if the Court please, this is a self-serving declaration and calls for an answer which is not germane to the issues. JUDGE: "You may note that the objection is overruled. And you may answer. "A The reason the suit was filed was because I couldn't collect otherwise." The plaintiff's attorney contacted the adjuster on the following day. On June 29th, the adjuster verbally advised the attorney that his companies did not want to settle the matter until the Easter claim was resolved. On June 30th, the attorney wrote to the adjuster and advised that such a delay in settlement was not satisfactory, and he requested forms for making the proof of loss. "General Adjustment Bureau, Inc. 606 Franklin Street P.O. Box 527 Columbus, Indiana 47201 "Attention: Mr. J.P. Heffernan, Branch Manager Re: A.W. Sharp, d/b/a Columbus Wood Preserving Co. Fire Loss June 7, 1971 "Dear Mr. Heffernan: "This is to confirm our telephone conversation of yesterday afternoon relative to the recent fire loss of our client, Mr. A.W. Sharp, d/b/a Columbus Wood Preserving Co. "Mr. Sharp is most desirous of getting this matter settled promptly and without further delay because of pressing financial matters arising from the loss of his business here in Columbus, Indiana. Consequently, we ask that you submit to my office proof of loss forms and any other forms necessary to get this matter adjusted without further delay. "In our conversation you mentioned a lawsuit which had been filed by Mr. Sharp's Plant Manager, Mr. John Easter, and the insurance companies' wishes to hold up on Mr. Sharp's fire claim until Mr. Easter's suit had been settled. This, of course, is impossible and if settlement cannot be made within the next few days, we will be forced to file an action for Mr. Sharp on his policies of insurance. As such, we ask that you inform us of what course of action the insurance companies intend to make in adjusting and settling Mr. Sharp's fire loss. "Very truly yours, "Leon D. Cline "LDC: ewm "CC: Mr. A.W. Sharp Columbus Wood Preserving Co. 518 East Town Street Columbus, Ohio 43215" 189 On July 15th, the proof of loss forms were mailed to the attorney. On August 16th, proof of loss was submitted by the attorneys and reflected a loss of $93,000.00 and the claim for the face amount of the policies $31,250.00 each, rather than for $23,527.02 actually owing under each policy. This was accompanied with a request for early payment and an expression of the plaintiff's need for the insurance proceeds. "August 16, 1971 "General Adjustment Bureau, Inc. 2421 Willowbrook Parkway P.O. Box 55507 Indianapolis, Ind. 46205 "Attention: Mr. C.F. Dyer General Adjuster Re: A.W. Sharp, d/b/a Columbus Wood Preserving Co. v. Great American Insurance Co., et al Our File No. 71-341 Your File Columbus Wood Preserving Co. Fire 6-7-71, Columbus, Indiana "Dear Mr. Dyer: "Enclosed are Proof of Loss forms properly executed by our client, Mr. A.W. Sharp, d/b/a Columbus Wood Preserving Co., in accordance with the instructions contained in your letter dated July 15, 1971. You will note that one of these Proof of Loss forms goes to Great American Insurance Company and the other to Vernon Fire and Casualty Insurance Company. "We request that you advise us by return mail when our client can expect payment for this loss. Mr. Sharp is in the process of making plans to reestablish his plant, but it is necessary that he have the insurance proceeds available to him before moving ahead. Consequently, we must ask you to expedite this matter without further delay. "Very truly yours, "Leon D. Cline" On August 27th, the adjuster and the attorney conferred, and the attorney was advised that the claim would not be paid until the Easter claim was resolved. Excerpt from direct testimony of Mr. Cline, one of the attorneys for the plaintiff: "A The sum and substance of the conversation by this adjuster was that Mr. Easter's claim, or, sorry, Mr. Sharp's claim was not going to be disposed of until they had handled or got the suit settled with Mr. Easter. "Q And then what occurred, if anything? "A Well, following that, then I filed suit for and on behalf of Mr. Sharp around the first of September. "Q And this is the suit or complaint we are hearing now? 190 "A Right, the suit the jury is hearing now." On September 2nd, a complaint in three paragraphs was filed. Paragraph one was a complaint for breach of the insurance contracts and set damages of $31,250.00 against each defendant. Paragraph two of the complaint was a repeat of paragraph one, with the additional allegation that the defendants had breached said contracts in bad faith. It asked damages for $31,250.00 and punitive damages of $50,000.00 against each defendant. Paragraph three of the complaint was a repeat of paragraph one and additionally alleged that the defendants had acted "in an intentional and wanton manner in dealing with their insured." It set compensatory damages of $31,250.00 and punitive damages of $50,000.00 against each defendant. The following letters followed the aforementioned August 27th conference between plaintiff's attorney and defendants' adjuster, notwithstanding that the complaint had been filed in the interim: "Mr.A.W. Sharp d/b/a Columbus Wood Preserving Company c/o Mr. Leon D. Cline Goltra, Cline, King & Beck 1015 Third Street, Box 250 Columbus, Indiana 47201 RE: A.W. Sharp, d/b/a Columbus Wood Preserving Company Vernon Fire and Casualty Ins. Co. Great American Ins. Co. Our File No. 11-413A "Dear Mr. Sharp: "We return herewith the Proofs of Loss which you filed August 12th, 1971, with the Great American Insurance Company of New York and the Vernon Fire and Casualty Company of Indianapolis. "Both Companies find it necessary to reject these Proofs of Loss for the following reasons: "(a) The amount claimed is in excess of the loss reflected in your sworn statement. "(b) Contrary claims against these policies have been filed by your manager and contracting party, John L. Easter. "If you can provide us with Proofs of Loss in the correct amount and can provide us with release of any claims by John L. Easter against these two Companies, I believe the Companies would be willing to make payment at an early date for the actual loss suffered under the coverage of either of these two policies. "We will await your further attention. "Very truly yours, "Kightlinger Young Gray & Hudson "/s/ Mark W. Gray "Mark W. Gray "MWG/ep "Enclosures Proofs of Loss" 191 "Kightlinger, Young, Gray & Hudson Attorneys at Law Sixth Floor First Federal Bldg. 11 North Pennsylvania Street Indianapolis, Ind. 46204 "Attention: Mr. Mark W. Gray Re: A.W. Sharp, d/b/a Columbus Wood Preserving Company Vernon Fire and Casualty Ins. Co. Great American Ins. Co. Your File No. 11-413a Our File No. 71-341 "Dear Mr. Gray: "I find it hard to believe that you could be the author of the letter dated October 6, 1971 on your firm's stationery and bearing your signature. "It has been over four months since the occurrence of the fire which completely obliterated Mr. Sharp's wood preserving business and the two insurance companies you represent still have not come forward to offer Mr. Sharp any money whatsoever for his fire loss. "Your statement that the insurance companies will not pay anything because they think `the amount claimed is in excess of the loss reflected in your (Mr. Sharp's) sworn statement' is absolutely ridiculous. This situation could be remedied rather quickly if the two companies would pay the loss which is reflected in Mr. Sharp's sworn statement. "Your further statement that Mr. Easter has filed a contrary claim on these policies is extremely difficult to understand. As you and your clients well know, Mr. Easter is making no claim on the retorts (completely destroyed), or the storage tanks (completely destroyed), or the new boiler (completely destroyed), or the ties (which were completely destroyed), etc. Such statement on behalf of your clients is nothing more than a feeble excuse for their arbitrary and malicious position in refusing to pay Mr. Sharp's claim or even to make a good faith attempt to negotiate a settlement with him. The statement contained in the last paragraph of your letter that Mr. Sharp's loss will be paid `at an early date after he gets you a release from Mr. Easter's is a blatant attempt on the part of the insurance companies to pressure Mr. Sharp to get Mr. Easter's pending lawsuit against them settled. As you and your clients well know, there is no requirement in these policies that Mr. Sharp furnish the insurance companies with a release from Mr. Easter or anyone else. "Very truly yours, "Leon D. Cline" At no time did the defendants offer to pay any specified sum to the plaintiff. Although it did, on several occasions indicate a willingness to pay the proper amount, it was in each instance conditioned upon the Easter claim also being resolved. Neither did the plaintiff ever reduce its demand to the amount actually owing under the policy. The plaintiff continued to pay rent at the rate of $300.00 per month upon the business site but was unable to rebuild the 192 plant because of his inability to collect the insurance proceeds. CONCLUSIONS OF FACT AND DISCUSSION OF LAW It is, in my opinion, unreasonable to infer from the foregoing evidence that the defendants either breached the contract in "bad faith" or "acted in an intentional and wanton manner * * ," or did any of the other nefarious deeds attributed to it by the majority opinion. A contrary inference can be drawn only from the defendants' unwillingness to pay the plaintiff's claim until the claim of John Easter was also resolved. In this regard, the defendants may have been wrong the trial court thought that they were, hence it denied the defendants' motions, first to consolidate the two lawsuits and second to inter-plead Easter in the lawsuit with the plaintiff. But, may not one be mistaken without being in bad faith, wanton, or otherwise evil? Did not the defendants have a right to consider the possibility of paying the wrong person or wrong amount to one of two claimants and accordingly to seek releases or a court sanction before paying out their money? The defendants' actions, although they may be consistent with an evil design were, nevertheless, not in any way inconsistent with bona fide intentions; and this is not altered by a subsequent court determination but their ultimate goal was not tenable. It is presumed in law that all persons act honestly and in good faith. Sutton v. Bunnell (1929), 91 Ind. App. 427, 167 N.E. 731; and where facts are equally consistent with honesty or dishonesty and fraud, the presumption of honesty will prevail. American Varnish Co. v. Reed (1899), 154 Ind. 88, 55 N.E. 224. The findings of bad faith, etc. therefore has simply not been proved by a preponderance of the evidence and can be sustained only by invoking a presumption of such and then supporting with a mere scintilla of evidence. To say that the defendants' actions were not in good faith or were wanton is to say that reasonable minds may not differ and that one whose judgment ultimately turns out to be incorrect was unreasonable and in bad faith from the beginning. Our entire system of civil jurisprudence is diametrically opposed to this concept. TORTIOUS CONDUCT INDEPENDENT TORT If I am incorrect in the foregoing and the defendants were, in fact, guilty of wrong doing the next issue to be resolved is whether or not their conduct was tortious. Although an over-simplification, for purposes of this analysis we may take the rudimentary definition of a tort as a wrong, other than a breach of contract, for which a civil action for damages will lie; a breach of duty which the law, as distinguished from a mere contract, has imposed. "An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable." Cooley on Torts, § 3, (4th Ed. 1932). In some instances, an action for a breach of contract or for a tort may be brought by the same person upon the same facts, but the rule generally is that where contract relations exist the parties assume towards each other no duties whatsoever other than those contracted for. Cooley on Torts, § 60, (4th Ed. 1932). The majority concedes that punitive damages are not generally allowable in contract actions but notes an exception in cases where the breach also constituted or embodied an independent tort. Under such circumstances, punitive damages may be awarded, not for the breach but for the tort. The majority then departs momentarily from this point why, I do not understand to comment that an independent tort is not a prerequisite. It then returns to the matter at hand and proceeds to a determination that the evidence in this 193 case warranted a finding that the defendant did, in fact, commit an independent tort upon the plaintiff, to-wit, fraud. I shall here challenge that conclusion and respond to the digression subsequently. Obviously, fraud in the breach of the contract is not supportable, because one of the requisites of a fraud, to be actionable as a tort, is that the complaining party relied upon the perpetrator's representations and acted upon them to his detriment. If the plaintiff did, in fact, believe that the defendants were attempting to coerce him into obtaining a release from Easter a position clearly not supported by the evidence he, nevertheless, did not act upon it or alter his position in the slightest. His position thereafter was no different than it was before. He still had a right to collect the amount of his insured loss, which he promptly demonstrated by filing suit. I say that the claim that the defendants were attempting to coerce the plaintiff into obtaining a release from Easter is not supported by the evidence. A careful reading of the evidence will disclose that the defendants never demanded or even requested such action by the plaintiff. They did make it clear that they would not pay the claim until the Easter claim was resolved, thus leaving that course of action open to the plaintiff if he so desired. The October 6th letter from the defendants' counsel to plaintiff's counsel might well be regarded as a suggestion that the plaintiff might expedite matters by assisting with the Easter problem but nothing more. I see no impropriety in that. The only inference of impropriety comes from the plaintiff's counsel. In his letter of October 8th, he wrote: "The statement contained in the last paragraph of your letter that Mr. Sharp's loss will be paid `at an early date after he gets you a release from Mr. Easter' is a blatant attempt on the part of the insurance companies to pressure Mr. Sharp to get Mr. Easter's pending lawsuit against them settled. As you and your clients well know, there is no requirement in these policies that Mr. Sharp furnish the insurance companies with a release from Mr. Easter or any one else." The letter to which defense counsel's letter replied contained no such statement. The statement which had been made was in evidence and spoke for itself. It cannot be ignored and replaced by the defense counsel's interpretation of it under the guise of conflicting evidence that cannot be reweighed by this Court. By his March 3, 1972 letter, plaintiff's counsel accused the defendants of attempting "* * * to involve him in the matter and `blackjack' him into giving up some benefits of his policies in order to help your clients effect a settlement with Easter." This evidence simply recited the professed opinion of plaintiff's counsel. It was not evidence of any of the defendants' statements or actions, and it came in response to a letter from the defense counsel assuring their willingness to negotiate and settle the matter if they could be secure against duplicate losses. Again, by his letter of April 13th, the plaintiff's lawyer accused the defendants of foul play. And again, this was merely an accusation and not probative evidence. It was made in response to an announcement of the filing for inter-pleader to include Easter in the litigation and an explanation of the purpose thereof, which may have been wrong but certainly was not unreasonable. Tortious conduct not being embodied in the alleged breach, that is the defendants' refusal to pay the plaintiff's claim, the majority turned to "fraud in the inducement." This claim was never made by the plaintiff, but admittedly it would support the judgment under Ayr-Way Stores, Inc. et al. v. Chitwood (1973), 261 Ind. 86, 300 N.E.2d 335, but for the absence of probative evidence. The majority opinion states that the jury could have reasonably found that the defendants promised to perform upon the conditions stated in the contract and that the plaintiff relied upon such representation. Obviously this 194 is the case. In other words, the parties entered into a contract! The majority also states, however, that the jury could have reasonably found that at the time the contracts were induced, the defendants had no intention of performing their obligations thereunder. I recognize that fraud usually must be proved by circumstantial evidence. One with fraudulent intentions is not likely to announce them, and their existence at a prior time may be evidenced by subsequent actions that are inconsistent with bona fide intentions. To say, however, that the failure to perform, coupled with a stated reason for not performing and subsequently determined to be erroneous evidences a fraudulent intent from the beginning, can only be categorized as ludicrous. Under such a determination, I can conceive of no contract default that would not evidence fraud in the inducement, with the possible exception of one where the defaulter either stood mute or stated that he would not perform and would not say why. But surely a court that would find fraud in the inducement upon the evidence in this case would also be bound to say that such an onerous attitude was "wanton," "oppressive," and "a serious intentional wrong," reasonably supportive of a determination that the non-performing party had a black heart from the beginning. The implications of this decision are far reaching and devastating. A few hypothetical situations quickly come to mind. The insured in this case erroneously claimed benefits considerably in excess of those to which he was entitled. This has now been determined as a matter of law. His lawyer badgered the defendants for payment and called the defendants' contentions that the claim was excessive "absolutely ridiculous." Yet we have determined that the defendants' position not only was not absolutely ridiculous but was, in law, absolutely correct. Was the plaintiff fraudulent in making his claim? His excessive claim is consistent with that hypothesis. It is equally consistent with the hypothesis of honest error, and he is entitled to that presumption. Under the majority view, however, the defendants could have voided the policies under the claim that the plaintiff, at the time he purchased the policies, intended to make excessive claims fraudulently induced the defendants to issue their contracts. Assume a bank returned a depositor's check for insufficient funds but that the depositor protested and claimed that the bank had erred in honoring an earlier draft that had been forged by his wife. Assume also that the depositor became irate and demanded that the dishonored check be paid and that the balance of his account be paid over to him immediately. Must the bank comply? Can the bank delay action pending a determination of the validity of the allegedly forged instrument, without risking an award of punitive damages? If it is ultimately determined by litigation that the questioned instrument was in fact forged, can the jury reasonably infer that the bank intended from the beginning to dishonor or to delay payment of valid drafts and thus fraudulently induced the deposits, thereby negating the U.C.C. provisions governing wrongful dishonor? Add to either of the foregoing hypotheticals a claimant who genuinely believes in his claim and a lawyer equally convinced and prone to write vituperative and accusative demands, and we have a case identical to the one before us. The case at bar differs from these hypotheticals only in that a jury verdict and a trial judge's ruling on a motion to correct errors have clothed the award with a presumption of correctness, and we are understandably hesitant to pierce that cloak. However, the plaintiff has simply failed in his burden of proof of elements to support punitive damages. His accusations and those of his lawyer simply are not probative evidence; and except for those accusations, all evidence is consistent with good faith. Coming now to the majority statement that an independent tort is not a prerequisite to an award of punitive damages, the 195 statement is not supported by case law. The majority has stated that a careful review of the case law leads to that conclusion, but it has cited no cases. Instead it cites Corbin on Contracts and Sedgwick on Damages. The quotation from 5 Corbin, § 1077 does refer to punitive damages in "* * * cases that contain elements that enable the court to regard them as falling within the field of tort or closely analogous thereto" indicating that only tort elements, as opposed to a tort or tortious conduct would be required. I believe this is an unfortunate and erroneous inference. The section quoted from is not a treatise upon the law of punitive damages in contract actions. Rather, it is a pronouncement that such damages are not recoverable for breach of contract, with the caveat that there are certain exceptions. A detailed enumeration of the exceptions and their interplay between certain actions that are a mixture of tort and contract was not required in the context of this portion of the treatise, and I believe the quoted statement was casual and unguarded. At any rate, none of the cases cited in the footnote support the inference. On the contrary, it appears that in each case cited and in which punitive damages were allowed, there had been a tort committed and not merely unsavory conduct. The quote from Sedgwick was taken from Taber v. Hutson (1854), 5 Ind. 322, 325, as disclosed by the majority opinion. That case, however, was not a contract case but was one for assault and battery and false imprisonment. The quotation from Sedgwick was quite appropriate in that case. The formulation from Sedgwick obviously was related to tort cases. The word "mingle" accented in the majority opinion refers not to the mingling of the elements of fraud, malice, etc. in contract controversies but in tort controversies. The author, it appears was explaining that punitive damages are not allowable in all tort cases but only in those also embodying the especially reprehensible elements. I confess to no familiarity with Mr. Sedgwick's works. The quote having appeared in the 1854 case, it obviously was taken from an earlier work. I do find Sedgwick's Sixth Edition, published in 1874, and the quotation there appears at page 35 in the introduction to the subject matter entitled "General View of the Subject." The discussion is a general introduction to the rules of damages. The text preceding it is, for the most part, related to the development of tort law. Indeed, the following statement from page 33 under the heading of "Limits of Compensation," appears to be diametrically opposed to the statement from page 35, if the latter be regarded as applicable to contract cases. "In all cases growing out of the non-performance of contracts, and in those infringements of rights, or non-performance of duties, created or imposed by the law, in which there is no element of fraud, wilful negligence, or malice, the compensation recovered in damages consists solely of the direct pecuniary loss, which includes, in mere money demands, interest for the detention of the amount claimed, and the costs of the suit brought for the recovery of the demand." (Emphasis added). Elsewhere in Sedgwick's Sixth Edition, we find the following statements reflective of the attitude of that day upon the matter of determining damages in contract actions: "* * ; in all cases of contract, the sole object of the court is to ascertain the agreement of the parties, and that agreement as a general rule, controls the measure of remuneration." (p. 238). "Motives of Contracting Parties Disregarded. We have now to consider the exceptions which have been engrafted upon this general rule, that the contract as a matter of law fixes the damages. And the first that presents itself, is that growing out of the question whether the 196 motives of the defaulting party are in any case to be taken into consideration. "It has been already said that our law makes a broad distinction on the subject of compensation between actions of contract and actions of tort, and while it permits the jury in the latter instance to take into consideration the intention of the offending party, to review all the circumstances of the case, and to make their verdict conduce to the purposes of punishment as well as compensation, that on the other hand in actions of contract the motive or animus of the defendant is entirely disregarded, and the damages are strictly limited to the direct pecuniary loss resulting from the breach of the agreement in question." (pp. 240, 241). "* * * It is to be borne in mind, that the rules of damages are all intended to conform to those other fundamental rules which determine the issue to be tried and the testimony on which it is to be decided. Pleading prescribes the form of action, and declares the precise issue. Evidence points out the testimony to be given in support and discharge of the demand, while the damages are awarded in conformity to those rules which govern the proceedings in the cause down to the time of trial." (pp. 243, 244). "* * * No form of action has yet been devised for the fraudulent breach of an agreement." (p. 244). That evidence of tortious conduct, an independent tort, and not merely of "tortlike" conduct is a prerequisite to an award of punitive damages in contract actions is borne out by an abundance of cases, and we have been cited to none to the contrary. In the recent case of Hibschman Pontiac, Inc. v. Batchelor (1976), Ind. App., 340 N.E.2d 377, cited with approval by the majority, our Court of Appeals said: "However, there are exceptions to the general rule that punitive damages are not recoverable in breach of contract actions. When the conduct of a party to the contract has gone beyond mere breach and when the conduct amounts to or is accompanied by an independent willful tort, punitive damages may be recoverable even though the independent tort is not pleaded." "We do not feel that the doctrine of punitive damages should be expanded to contract actions because: "(1) Oppressive breaches of contract, unaccompanied by tortious conduct, do not warrant punishment through the medium of punitive damages. "(2) Punitive damages are not the proper remedy for inadequate compensatory damages." In the Hibschman case, the Court of Appeals reversed the award of punitive damages, notwithstanding a number of wrongful representations made by the defendant to the plaintiff, because it was evident that the defendant had not relied upon such representations, and hence no fraud had been committed. In Standard Land Corporation of Indiana v. Bogardus (1972), 154 Ind. App. 283, 289 N.E.2d 803, our Court of Appeals affirmed the judgment as to compensatory damages but reversed the award of punitive damages, saying: "It must be noted that the special findings of fact did not find any fraud, although it did find that the contract `imports oppression' and there was a `spirit of wanton disregard of the rights of Macke.'" 289 N.E.2d at 820. The doctrine is also clearly reflected by Murphy Auto Sales, Inc., et al. v. Coomer et al. (1953), 123 Ind. App. 709, 112 N.E.2d 589; Voelkel v. Berry (1966), 139 Ind. App. 267, 218 N.E.2d 924; Jerry Alderman Ford Sales, Inc. v. Bailey (1972), 154 Ind. App. 632, 291 N.E.2d 92, 294 N.E.2d 617; Physicians Mutual Insurance Company v. Savage (1973), Ind. App., 296 N.E.2d 165. 197 In Murphy Auto Sales, the defendant had sold an automobile with a worn-out engine to a minor and his widowed mother. The following day, the engine fell apart. Punitive damages were awarded, and the Court of Appeals affirmed, expressly finding a fraud and reciting the evidence of fraudulent misrepresentations intentionally made and relied upon by the plaintiff. The action was for a rescission of the contract and damages for fraud. In the Voelkel case, paragraph one was a standard complaint for breach of contract, and paragraph two repeated the allegations of paragraph one but added that " * * `well knowing himself to have promised the plaintiff the consideration mentioned hereinabove, and well knowing that plaintiff performed his part of the agreement mentioned hereinabove, nevertheless arbitrarily, and for no reason known to plaintiff, refused to perform his part of the agreement mentioned hereinabove, and by reason thereof demands exemplary and punitive damages * * .'" The trial court struck the second paragraph of complaint, and the Court of Appeals affirmed saying: "We find no merit in this contention since appellant is asking that we distinguish between the two paragraphs due to the fact that the second paragraph asks for punitive damages. While it is true that this court recently upheld an award of punitive damages in a contract reformation action, it was stated at that time that the trial court, sitting in equity, had established fraud by the evidence and had awarded exemplary damages in conjunction with the reformation. Hedworth v. Chapman, (1963) 135 Ind. App. 129, 133, 192 N.E.2d 649. One must bear in mind that in the above mentioned decision we stated that the upholding of the award required an extension of a minority holding. We feel that the rule of that case must be narrowly construed to apply only when the court, sitting in equity, finds fraud and in addition facts which positively require it in the interest of justice." In the Alderman Ford case, the plaintiff had purchased a truck from the defendant, Alderman. It was defective and was returned for repairs. Alderman delivered it to the defendant, Central, who made the repairs. Thereafter, both Alderman and Central wrongfully refused to surrender the truck to the plaintiff. The suit was for both breach of warranty and for conversion. Punitive damages were awarded and affirmed, the Court of Appeals saying: "Where the acts constituting a breach of contract also amount to a cause of action in tort, there may be a recovery of exemplary damages upon proper allegations and proof. As sometimes stated, exemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort." The Physicians Mutual case, probably most resembles the case at bar, except in that case there was evidence of a fraud committed in the breach, whereas such evidence is lacking here. In that case, the plaintiff was the beneficiary of an insurance policy upon the life of his wife. Upon her death, Physicians Mutual falsely represented to the plaintiff that the policy had a rider invalidating the policy as to injury sustained in consequence of intoxication. The evidence disclosed that the wife was intoxicated at the time of death, but the policy contained no such rider. The plaintiff brought suit upon the policy and additionally alleged the entitlement to punitive damages by reason of "defendant's wrongful and wilful denial of its contractual 198 obligations." Punitive damages were awarded and affirmed. The Court of Appeals pointed out that the trial court specifically found fraud which would allow punitive damages, although the action was based upon contract. It further commented that the specific finding of fraud distinguished the case from the holding of Standard Land Corporation discussed above, where punitive damages were reversed because of the absence of such a finding. This subject was recently annotated in 47 A.L.R. 3d 316 (1973). An analysis of each cited case reveals that when the award of punitive damages was upheld, there was evidence from which an independent tort could have been found. Punitive damages were either denied by the trial court or reversed on appeal in a number of cases where the evidence reflected malicious wrong doing only, and I conclude that this is because there could be no end to the mischief that would come forth if the courts should begin to inquire into the motives of those who breach their contracts and to apply different measures of damages with varying degrees of culpability. Under such a rule, it follows that one who breached his agreement only because performance would have occasioned a great hardship, should be excused from performance or the payment of compensatory damages. A case from the A.L.R. citation that is remarkably similar to the one at hand is Vann v. Nationwide Insurance Company (1971), 257 S.C. 217, 185 S.E.2d 363. There, the plaintiff had a liquidated claim for medical benefits and an unliquidated claim for damages under an uninsured motorist provision of the same insurance policy. The provisions were severable. The defendant, with fraudulent intent according to the complaint, refused to pay the liquidated claim unless the plaintiff would also settle the unliquidated damage claim. The plaintiff proceeded to file suit, seeking punitive damages as well as those provided by the policy, and alleged that the defendant engaged in a fraudulent scheme or plan to cheat and defraud the plaintiff of his rights due under the various provisions of the policy. The court struck the allegations relating to the fraud and punitive damages, and the Supreme Court of South Carolina affirmed saying that there was not a fraudulent act, inasmuch as there was no change of position by the appellant in reliance upon the representations of the defendant. The Court said: "The respondent did nothing that would prevent the appellant from seeking to recover any actual damages which he may have by reason of the alleged breach of the contract or alleged failure to pay." In Dawkins v. National Liberty, etc. (D.S.C. 1966), 252 F. Supp. 800, the court distinguished the case before it from an earlier one where the plaintiff had elected to treat the insurance policy as void and sought to recover damages for fraud and deceit in its inducement and said: "Mere failure or refusal to pay money, for whatever motive, is not a basis for an award of punitive damages without the requisite fraudulent act. * * * * While the complaint here reveals a pattern of behavior on the part of the defendant which would be reprehensible if true, there are no allegations properly setting forth a fraudulent act accompanying the breach of contract which would support punitive damages." 252 F. Supp. at 803. The reported case giving rise to the foregoing A.L.R. Annotation, was Fletcher v. National Life Insurance Company (1970), 10 Cal. App. 3d 376, 89 Cal. Rptr. 78. This case, in part at least, may represent a departure from the foregoing cited cases holding that punitive damages could be awarded for a breach of contract, only when the breach also gave rise to an independent action in tort. I say "may," because the court first decided that punitive damages were awardable in this case because the breach was accompanied by an 199 independent tort, i.e. the California tort of intentionally inflicting emotional distress. After reaching that decision, however, the court reached out with an additional finding. I quote from page 306. "We hold, therefore, that defendants' threatened and actual bad faith refusals to make payments under the policy, maliciously employed by defendants in concert with false and threatening communications directed to plaintiff for the purpose of causing him to surrender his policy or disadvantageously settle a nonexistent dispute is essentially tortious in nature and is conduct that may legally be the basis for an action for damages for intentional infliction of emotional distress. We further hold that, independent of the tort of intentional infliction of emotional distress, such conduct on the part of a disability insurer constitutes a tortious interference with a protected property interest of its insured for which damages may be recovered to compensate for all detriment proximately resulting therefrom, including economic loss as well as emotional distress resulting from the conduct or from the economic losses caused by the conduct, and, in a proper case, punitive damages." 47 A.L.R. 3d at 306. The court justified its additional holding (or dicta, whichever it may be) rationalizing that the law recognizes, as a tort, the intentional interference with one's contractual relations with a third party and that there was no sound reason why plaintiff's legally recognized interest should receive less protection from interference by the insurer than from an outside party or why an insurer should be held to a lower standard of conduct than a stranger. The jury's verdict in the last mentioned case was for $60,000.00 compensatory damages and $640,000.00 punitive damages, the trial court, however reduced the award of punitive damages to $180,000.00, which the Court of Appeals also affirmed. The foregoing appears to be a case of first impression. It should also be noted that it is not a Supreme Court decision. The Supreme Court of California has, however, more recently given its approval to the Fletcher additional holding in Gruenberg v. Aetna, etc. (1973), 9 Cal. 3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032. There are several additional reasons why the judgment for punitive damages should be set aside in this case. By their answers to the complaint, the defendants admitted liability but alleged the failure of the plaintiff to file a proper proof of loss, thereby putting the amount of compensatory damages squarely at issue. They denied the allegations of bad faith and wantonness and moved for the dismissal of the paragraphs seeking punitive damages for failure to state a claim for which relief could be granted. At the conclusion of the evidence, the defendants moved for judgments upon those paragraphs of complaint seeking punitive damages, and the motion was denied. The defendants' requested Instruction No. 1 would have directed a verdict against each defendant in the sum of $23,527.02 (the sums which this Court has found was owing as a matter of law) as opposed to the $31,250.00 which the plaintiff was seeking from each defendant. This instruction was refused. We have corrected this error insofar as it permitted an improper award of compensatory damages. However, it is my opinion that the refusal of the tendered instruction erroneously affected the jury's decision upon the punitive damage issue as well as upon the compensatory issue. If the jury was warranted in awarding punitive damages, and the majority has held that it was, it was because it believed that there was bad faith in the defendants' refusal to pay the face amount of the policies. The jury obviously concluded that the face amounts were due and had been refused in bad faith. Had the tendered instruction been given, the jury would have 200 known, as we do, that the plaintiff's claim was excessive; and it appears unlikely that it would have attributed the defendants' refusal to pay the plaintiff to a larcenous desire to avoid its legal obligations. It may require some speculation to conclude that the jury would not have awarded punitive damages had it been aware that there was an area of the dispute wherein the defendants were right and the plaintiff was wrong. It requires greater speculation, however, to conclude that had the jury had this pertinent information it would have, nevertheless, made the punitive award. It simply is not consistent with my concept of justice that one party should be rewarded and the other penalized as the result of a dispute, when it has been determined that each was in part right and in part wrong. That anomaly having followed the denial of a tendered proper instruction which likely would have averted it, the injured party should, at the very least, be entitled to a new trial upon that issue. The defendants' act which, according to the majority, was tortious, was the violation of Ind. Code § 27-1-22-18 (Burns 1975), an attempted extraction from the plaintiff of an unauthorized premium. This misdeed, if committed, was a criminal offense for which the defendants, and not merely their agents, are subject to criminal prosecution under the same act. Ind. Code § 27-1-22-20 (Burns 1975). Although it appears to be a minority rule, it is, nevertheless, the law of this state that exemplary damages may not be given where the act is punishable as a crime. Wabash Printing & Publishing Co. et al. v. Crumrine (1889), 123 Ind. 89, 21 N.E. 904, and cases there cited; Louisville, New Albany & Chicago R.R. Co. v. Wolfe (1890), 128 Ind. 347, 27 N.E. 606. The stated reason for this rule is that the wrongdoer might otherwise be subject to double jeopardy. However, it also seems to be consistent with the universally accepted reason for allowing punitive damages, i.e. to punish the wrongdoer in cases where the actual damages are insufficient for such purpose and thereby to deter him and others from similar misconduct in the future. There seems to be no need for such punishment and deterrent, where statutory agencies and criminal laws have been established to regulate the conduct and to punish violators. The majority has referred to the statute prohibiting insurance companies from receiving premiums, in excess of those established by law, as a statutory scheme to protect the public and has stated that public policy, therefore, permits punitive damages in furtherance of the statutory scheme. It is, therefore, appropriate to examine another statute aimed at protecting the public against unconscionable acts of insurance companies. I refer to Ind. Code § 27-4-4-5 (Burns 1975), which provides for an award of attorney's fees against unauthorized insurance companies that delay or refuse to make payment vexatiously or without reasonable cause. Such fees are limited to twelve and one-half percent of the recovery, which in this case would have amounted to $5882.00 as compared to $34,000.00 punitive damages allowed. If the defendants were guilty of any misconduct whatever, it fell squarely within the purview of this statute, but for the defendants being authorized to deal within the state and thereby subject to all of its statutory and regulatory mandates and proscriptions. It is obvious to me that the Legislature the proper body to formulate public policy has concluded that the insurance statutes and regulations of this state are adequate to protect the public against unreasonable or vexatious delays in payment by regulated companies. Otherwise, there would have been no reason for Ind. Code § 27-4-4-5 to have been made applicable only to unauthorized companies. The ruling of the majority assesses a penalty against authorized companies nearly six times as great as the maximum that could have been imposed against a company "bootlegging" its policies within the state and thus avoiding the control to which domestic 201 and authorized alien companies are subject. I do not agree that such results comport to any public policy. Although paragraphs two and three of the complaint prayed for punitive damages, the case was litigated only as one for breach of contract. Our recently revised trial rules have been designed with a liberal view towards a determination of disputes upon their merits. Under Trial Rule 15(B) issues not raised by the pleadings may, nevertheless, be determined, if tried by express or implied consent of the parties. This rule, however, should not permit a case to be litigated upon one count and a recovery awarded upon another not within the contemplation of the parties. Issues are drawn today by pleadings and orders following pretrial conference. A clear understanding of the issues, prior to and during trial, is essential to a fair and orderly trial. The issues, however formed, control the admissibility of evidence. As has been acknowledged by the majority, the general rule is that a promisor's motive while breaching a contract is regarded as irrelevant. Pirchio v. Noecker (1948), 226 Ind. 622, 82 N.E.2d 838. Should the appendage of a prayer for punitive damages to a complaint for breach of contract alter this rule? If so, where are the limits of admissibility, and how may a jury be confined to a consideration of the relevant only? Although paragraph two and three of the complaint alleged bad faith and wantonness and prayed for punitive damages, there was no tort flavor to the trial and most certainly no gravamen of fraud in the inducement. There were no allegations of fraud in the complaint and no mention of it came into the pretrial order. If the plaintiff intended to prove fraud, Trial Rule 9(B) required the circumstances thereof to be specifically averred. As the issues were formed and tried, the defendants have had no opportunity to defend against a charge of fraud in the inducement. The thought obviously had not entered the minds of the litigants and, I submit, that it did not occur to the jury. The majority opinion also attaches particular significance to the defendants' knowledge of the plaintiff's need for the policy proceeds, if he was to rebuild the destroyed premises. This is hardly a unique situation in insurance cases! And it does not alter the rules of damages in contract cases. The plaintiff was entitled to receive the amount of money agreed upon by the contract of insurance, upon due proof of loss, and to interest upon such amount, if payment was improperly withheld no more and no less. That the plaintiff was grossly under insured is, indeed, unfortunate but does not alter the laws of contracts and damages. "There are many classes of cases where consequential damages may be recovered for the violation of a contract, when such recovery may by considered as fairly within the contemplation of the parties as proximately flowing from the breach. But we have been unable to find any case, nor have we been furnished one by counsel for plaintiff, where such damages may be recovered upon the breach of a promise solely to lend or pay money, except to the extent of placing the complaining party in the exact position that he would have occupied had the contract not been breached;" Clark v. Life & Casualty Insurance Co., supra, 53 S.W.2d at 969. "As stated by counsel for plaintiff-appellant the sole question presented is whether an insurance company can be held liable as upon a breach of contract for damages in amounts in excess of the insured benefits contracted for because the company, through its agents, knew of the special purpose to which the insured contemplated applying any disability payments to which he might be entitled and thus contracted with reference thereto or because of general averments of fraud, malice, bad faith and the like. * * 202 "Counsel for plaintiff have cited a number of cases in which courts have held that the failure to pay money under certain conditions gave rise to a cause of action in addition to the recovery of the money. We have examined these cases and can not bring ourselves to the view that the plaintiff is in the position of any of the litigants in the cited cases. "He simply stood as one seeking to enforce a contract against the insurance company. The company had a right to negotiate for a settlement of his claim and a right in good faith to delay payment of the claimed monthly benefit of $300 even though such a denial reduced the plaintiff to the alleged condition arising from lack of finance and rendered him unable to pay his premium on his $25,000.00 insurance. This is so even though the plaintiff's claim is established that this was the purpose of the policy so known to the company. The insurance company could assume no such obligation. Its liability was limited to the terms of the policy. On the other hand the plaintiff had a right to bring an action as soon as the company defaulted." Haas v. Pacific Mutual Life Insurance Co. of California et al., supra, 41 N.E.2d at 264-66. This matter was summed up by the court in Scottish Union & National Insurance Co. v. Bejcy et al. (6th Cir.1953), 201 F.2d 163, where it was said: "To extend the coverage of an ordinary fire insurance policy and so to enlarge the hazard which an insurer assumes that everything injurious, which may follow in point of time a failure to pay a loss, would result in so great an increase in the cost of insurance as to make protection unavailable to most persons, and render actuarial studies a useless guide." 201 F.2d at 166. It is agreed that punitive damages are to punish and deter the wrongdoer and not intended as compensation for the recipient. The record in this case reflects that the plaintiff had a fire loss to the extent of $94,108.09 but that he was insured only to the extent of fifty percent or $47,054.04. I cannot regard it as mere coincidence that the jury award of punitive damages, added to its award of compensatory damages in an erroneous amount came to $96,500.00. It is apparent, to me, that the jury, for reasons not supported by the record desired to make the plaintiff whole. For the reasons hereinabove, I would vacate the award of punitive damages. DeBRULER, J., concurs. NOTES [] This case transferred and re-assigned to this office April 7, 1976.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1675670/	432 So. 2d 1237 (1983) Rubye ROSE, et al. v. MILLER & COMPANY, INC. 81-1033. Supreme Court of Alabama. May 27, 1983. Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellants. J. Garrison Thompson of Pitts, Pitts and Thompson, Selma, for appellee. EMBRY, Justice. This is an appeal by the administratrix of the estate of Gus Rose, deceased, from a directed verdict entered in favor of Miller & Company (Miller), a corporation. We affirm. Plaintiff's intestate, Gus Rose, died as a result of an accident on 10 January 1978 in Dallas County. At that time, Rose was employed by Dallas Welding Machine and Metal Company (Dallas Welding) as a welder and had been employed in such capacity for approximately seventeen years. Some 1238 three to six weeks prior to the accident, an employee of Miller delivered a piston to Dallas Welding and requested that the shaft of the piston be replaced. No other instructions were given. The piston was eight to ten inches in diameter with a two to two and one-half inch diameter shaft. It weighed between 150 and 200 pounds. On 10 January 1978, John Strickland, President of Dallas Welding, and Rose began work on the piston. An inspection revealed that it was covered with a great deal of rust and sawdust. Because Strickland's company had performed similar work for Miller over the years, the presence of rust and sawdust on parts and equipment to be repaired did not appear unusual to them. Strickland had no standard procedure for cleaning off items brought into his business before working on them and on this occasion failed to clean the piston. After several hours of unsuccessfully attempting to press the shaft out of the piston by various methods, Rose suggested heating it with an oxyacetylene torch to expand and dislodge the frozen part or parts. Strickland agreed that heating was the correct procedure. After Rose had heated the piston for about three minutes, there was an explosion and Rose was fatally injured. About two days after the accident, Strickland assembled the pieces of the piston he could find and while examining them noticed three plugs in the bottom. Neither Strickland or Rose had noticed these plugs before the explosion, although they had cursorily examined that particular area of the piston. The plugs indicated that the piston was manufactured with a cavity in it. On 8 January 1979, the administratrix of the estate of Gus Rose filed a complaint in Dallas County Circuit Court seeking damages for the wrongful death of Rose. The complaint, as it relates to Miller, alleged that Miller negligently and wantonly maintained and caused the piston which exploded to be delivered to Rose's place of employment; that it was unreasonably dangerous and defective and that it was not reasonably safe for the intended use as impliedly warranted by Miller. The complaint was later amended to allege that Miller gave no warning or instructions to Rose when the piston was brought in for repairs. Miller denied all the material allegations of the complaint and further set out the defenses of lack of control by Miller over the piston, negligence by Rose's employer and the manufacturer, and new, independent and intervening cause. Further amended answers by Miller alleged contributory negligence on the part of Rose, the fact that the piston was not being used for its intended use, statute of limitations, assumption of risk, lack of knowledge and duty on the part of Miller, and that Dallas Welding was an independent contractor. The case was tried before a jury on 10 December 1981. At the conclusion of plaintiff's case, Miller filed a motion for directed verdict, which was granted by the trial court. The plaintiff's motion for new trial was denied on 25 March 1982. On appeal, Rose's administratrix maintains that the trial court erred in granting a directed verdict for Miller because there is a fact issue of actionable negligence on the part of Miller. In this respect, the law is well-settled: "In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and (3) An injury to the plaintiff from such failure of the defendant. When these three elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these renders a complaint bad or the evidence insufficient." Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 677, 180 So. 2d 269 (1965). The existence of a legal duty under a given statement of facts and circumstances is essentially a question of law for the court. See, Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir.1976). It is elementary that where there is no duty, there can be no 1239 negligence. Bryant v. Morley, 406 So. 2d 394 (Ala.1981). In considering the propriety of a directed verdict, our function is to view the evidence in a light most favorable to the non-moving party. If, by any interpretation, it can support a conclusion in favor of the non-moving party, we must reverse. Herston v. Whitesell, 374 So. 2d 267 (Ala. 1979). A directed verdict is proper only where there is a complete absence of proof on an issue material to the cause of action or where there are no controverted issues of material fact upon which reasonable persons could differ. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981). Applying the above principles to the case before us, the essential inquiry is whether there is sufficient evidence to establish that on the occasion in question, Miller, a bailor-contractee owed a legal duty to Rose, an employee of Dallas Welding, the bailee-independent contractor. In this connection, the undisputed evidence shows that Miller requested Dallas Welding to repair the piston which exploded and caused Rose's death; that Dallas Welding had performed work for Miller numerous times over the years; that Miller gave no instructions to Strickland or Rose as to how the piston should be repaired; and that no representative of Miller was present when Strickland and Rose attempted such repairs. The evidence further shows that the cause of the explosion which killed Rose was the application of heat to the piston with an oxyacetylene torch; that the piston contained a cavity in it; that the access to this cavity was three plugs which Strickland and Rose failed to see because they were stopped up with rust and sawdust; and that Strickland had no standard procedure for cleaning off items brought into his business, but had he done so and discovered the plugs, he would have known to remove one of the plugs before applying heat to permit pressure to escape. It was Rose who suggested the application of heat to the piston. Prior to Miller's delivering the piston and shaft to Dallas Welding, it had always been in good working order. There was no evidence that any agent, servant or employee of Miller had any knowledge of any alleged defect or dangerous condition in the piston, that the piston contained a cavity, or that the presence of plugs are indicative of a dangerous condition. After a thorough review of the record, it is readily apparent that Dallas Welding was an independent contractor. Dallas Welding was not owned by Miller but was solely owned and managed by John Strickland. There is no evidence in the record to suggest that Miller exercised or retained any right of control over the manner or prosecution of the work. Miller's only concern was in the result of the work. Generally speaking, the owner of a chattel who surrenders the entire control thereof to an independent contractor or bailee for repairs is not liable for injuries or death to an employee of that independent contractor unless the principal-owner was under some duty to such employee. Sloss-Sheffield Steel & Iron Co. v. Gardner, 17 Ala.App. 363, 85 So. 40 (1920); Coal City Mining Corp. v. Davis, 17 Ala.App. 22, 81 So. 358 (1919); Kimbrell v. St. Louis-San Francisco Ry. Co., 221 Ala. 505, 129 So. 274 (1930). In support of her position, the plaintiff argues that Miller had a legal duty to inform Rose of the history and condition of the piston because it was foreseeable that a torch would be used in repairing the piston; and that the defendant had a duty to inform Dallas Welding and its employees of the piston's dangerous potentialities. In support of those assertions, plaintiff contends that, normally, the question of whether an instrument is dangerous for purpose of the "dangerous instrumentality doctrine" is for the jury. Weatherby v. Meredith, 341 So. 2d 139 (Ala.1976). Heretofore, this court has addressed the "dangerous instrumentality doctrine" only in cases involving land owner and attractive nuisance liability. See, Foster v. Alabama Power Co., 395 So. 2d 27 (Ala.1981); Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976). The doctrine is based on a straight negligence *1240 theory. Under this doctrine the standard is one of reasonableness. Tolbert, supra. In its application to one who supplies a chattel for repair, the doctrine is very similar to the Restatement (Second) of Torts § 388 (1965), which reads thusly: "One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is applied, if the supplier "(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and "(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and "(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous." Here the evidence is insufficient to find a duty owed by Miller to Rose. Under § 388, the supplier is liable if he "knows or has reason to know that the chattel is or is likely to be dangerous," and fails to so warn. It is the duty of the user to reasonably inspect the chattel, and a supplier is never held liable for a condition "which a mere casual looking over will disclose.... However, the condition, although readily observable, may be one which only persons of special experience would realize to be dangerous." Comment K. A similar rule was adopted in Lambert v. Pittsburgh Bridge & Iron Works, 227 Pa. Super. 50, 323 A.2d 107 (1974), in which the Pennsylvania court concluded: "[W]here, as in the instant case, the evidence discloses that the bailee over a long period of business dealing is competent to recognize certain defects or conditions of disrepair in a particular kind of chattel, the duty is on the bailee, and not on the bailor, to make reasonable inspections of the chattel to insure that its employees will not become injured thereby in the course of the intended bailment." Lambert, 323 A.2d at 112. The evidence in this case discloses that neither Strickland nor Rose attempted to make a reasonable inspection of the piston or shaft. Strickland had done such work for approximately 20 years, while Rose had 16 years' experience. While this court is of the opinion that a piston in and of itself is clearly not a dangerous instrument within the scope of this case, we, nevertheless, find that both Strickland and Rose possessed sufficient experience to realize and detect any dangers presented by their performing work on the piston. The piston became dangerous only when Rose unskillfully applied heat to it without a reasonable inspection to determine the presence of the cavity or the plugs which are indicative of the cavity. There is no evidence to support plaintiff's contention that Miller was aware of the cavity in the piston or that heat would be used to make the repairs. We find there was no evidence produced in this case to establish a duty on the part of Miller with respect to the injury suffered by Rose based on either ordinary negligence or the "dangerous instrumentality doctrine." Having considered and reviewed the entire record and briefs in a light most favorable to the plaintiff, we are of the opinion that the trial court properly granted a directed verdict for the defendant in this case. AFFIRMED. TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538704/	80 P.3d 153 (2003) 2003 UT App 357 Laura BAKANOWSKI, Petitioner and Appellee, v. Paul F. BAKANOWSKI, Respondent and Appellant. No. 20020268-CA. Court of Appeals of Utah. October 23, 2003. Frederick N. Green, Green & Berry, Sandy, for Appellant. David C. Blum, Crippen & Cline LC, and Monica Z. Kelley, Kelley & Kelley LLC, Salt Lake City, for Appellee. 154 Before Judges BENCH, GREENWOOD, and ORME. OPINION BENCH, Judge: ¶ 1 Paul F. Bakanowski (Husband) appeals from the alimony provisions in a decree of divorce, arguing that the trial court failed to make adequate findings and failed to apply the appropriate test in awarding alimony. Because we agree that the trial court abused its discretion in awarding alimony, we reverse and remand. BACKGROUND ¶ 2 Husband and Laura Bakanowski (Wife) were married for approximately 33 years, during which time they were geographically separated from one another for four separate intervals while Wife pursued out-of-state employment. Over the course of the marriage, the parties lived frugally and remained free from debt. They acquired two houses, two automobiles, and a number of savings, retirement, and stock accounts. Wife petitioned for divorce, citing irreconcilable differences. ¶ 3 Before trial, Husband and Wife stipulated to the equal division of the marital estate, with each party receiving assets worth approximately $386,000. At trial, the only issues to be considered were alimony and attorney fees. The trial consisted of written and oral proffers of evidence, and oral arguments from counsel. Evidence presented at trial showed that, at the time of divorce, Wife was working outside of her field for an annual salary of $45,000. Husband was employed as a pharmacist, earning $73,500 annually. ¶ 4 The relevant alimony provisions in the decree of divorce are as follows: 14. The Petitioner seeks alimony of $1,000 per month based on an income-equalizing formula that will place her on substantially equal footing with the Respondent financially. While the Court finds the Petitioner's monthly living expenses of $5,259 inflated, the Court also finds that without alimony, the Petitioner does not have the ability to fund ongoing retirement and investments at the rate of $1,000 per month as the Respondent now has, and the parties cannot have a similar standard of living without an income-equalizing alimony award. Rather than evaluating the Petitioner's monthly budget, the Court finds that ... without alimony, the Petitioner could not enjoy a similar standard of living as the Respondent without spending down marital assets, where the Respondent would not have to do this. The [Respondent] does not dispute this. Moreover, it is well within the Court's equitable powers to order alimony in an amount sufficient to equalize the parties['] standards of living, and by doing so, both will have equal opportunity to preserve their marital assets or spend them down in a manner they alone might choose. Where this is a marriage of long duration and all other assets are divided evenly between the parties, income-equalization is appropriate. 15. The Petitioner has demonstrated a need for alimony in the amount of $1,000 per month, as the cost of equalizing her standard of living to that of the Respondent's exceeds her income by $1,000 per month. The Respondent has the ability to pay alimony in the amount of $1,000 per month as demonstrated by his doing so while he has paid temporary alimony of $1,000 per month. ¶ 5 The trial court awarded Wife $1,000 per month in alimony "for a time equal to the duration of [the] marriage." Husband appeals. ISSUE AND STANDARD OF REVIEW ¶ 6 The only issue on appeal is whether the trial court abused its discretion in awarding alimony.[1] Husband challenges the adequacy of the trial court's findings of fact. He also 155 argues that the trial court overstepped its bounds by awarding Wife what he refers to as "savings alimony," contrary to established case law. ¶ 7 We review a trial court's award of alimony for abuse of discretion. See Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). "We will not disturb the trial court's alimony award so long as the trial court exercises its discretion within the standards set by the appellate courts." Haumont v. Haumont, 793 P.2d 421, 423 (Utah Ct.App.1990). ANALYSIS ¶ 8 Three factors[2] have long been considered, and must always be considered, before awarding alimony: (1) the financial needs and condition of the recipient spouse; (2) the ability of the recipient spouse to provide a sufficient income for himself or herself; and (3) the ability of the payor spouse to provide support. See Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (citing Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985)).[3] ¶ 9 "[I]n considering these factors, the trial court is required to make adequate factual findings on all material issues, unless the facts in the record are `clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.'" Haumont v. Haumont, 793 P.2d 421, 424 (Utah Ct.App.1990) (citations omitted); see also Howell v. Howell, 806 P.2d 1209, 1213 (Utah Ct.App.1991) (finding reversible error where trial court failed to make findings on all material issues unless the "pertinent facts in the record [were] `clear, uncontroverted, and capable of supporting only a finding in favor of the judgment'" (citation omitted)). ¶ 10 "If the trial court considers these factors in setting an award of alimony, we will not disturb its award absent a showing that such a serious inequity has resulted as to manifest a clear abuse of discretion." Haumont, 793 P.2d at 424. However, where a trial court fails to enter specific findings on the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion. See Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct.App.1990). ¶ 11 Here, the trial court abused its discretion by failing to enter specific findings on Wife's financial needs and condition, and the pertinent facts in the record are not "`clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.'" Howell, 806 P.2d at 1213 (citation omitted); Haumont, 793 P.2d at 424 (citations omitted). The trial court found Wife's "monthly living expenses of $5,259 inflated." "Rather than evaluating the Petitioner's monthly budget," the court determined that, without $1,000 per month in alimony, Wife would not enjoy a similar standard of living as Husband. ¶ 12 The trial court concluded that Wife "has demonstrated a need for alimony in the amount of $1,000 per month, as the cost of equalizing her standard of living to that of [Husband's]." As explained in Martinez v. Martinez, 818 P.2d 538 (Utah 1991), "[u]sually the needs of the spouses are assessed in light of the standard of living they had during marriage." Id. at 542. Here, the trial *156 court never determined Wife's needs based on the parties' historical standard of living. Instead, the trial court engaged in an effort to simply equalize income. In attempting to equalize the parties' income rather than going through the traditional needs analysis, the trial court abused its discretion. See Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct.App.1994) (holding that trial court "should not have awarded plaintiff more than her established needs required, regardless of defendant's ability to pay this excess amount" and remanding "for a reassessment of the alimony award in accordance with the precept that the spouse's demonstrated need must, under Jones, constitute the maximum permissible alimony award"). ¶ 13 The absence of findings of fact "is a fundamental defect that makes it impossible to review the issues that were briefed without invading the trial court's fact-finding domain." Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987). "The findings of fact must show that the court's judgment or decree `follows logically from, and is supported by, the evidence.'" Id. (quoting Smith v. Smith, 726 P.2d 423, 426 (Utah 1986)). Here, we cannot say that the court's decree "follows logically from, and is supported by, the evidence." Smith, 726 P.2d at 426. This is particularly true when the trial court found Wife's monthly living expenses to be inflated, and then explicitly avoided evaluating her monthly needs and her independent ability to meet those needs. We therefore remand the case so the trial court may enter appropriate findings. ¶ 14 Husband argues that the trial court cannot award Wife what he calls "savings alimony"alimony used to fund post-divorce savings, investment, or retirement accounts. Savings alimony, Husband claims, "is not a component of [Wife's] `needs' or the standard of living enjoyed during the marriage" and therefore cannot be part of the alimony determination. ¶ 15 Because this issue is certain to resurface on remand and because the parties cite the inclusion of savings alimony as a recurring topic in alimony disputes, we will address whether savings/retirement deposits may ever be considered as part of the needs analysis in an alimony determination. See Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 22, 20 P.3d 388 (an appellate court has a duty to point out, and address, issues which may become material on remand even where a separate issue was dispositive to the resolution of the appeal). ¶ 16 While the recipient spouse's need to fund post-divorce savings, investment, or retirement accounts may not ordinarily be factored into an alimony determination, we cannot say that the ability to fund such post-divorce accounts may never be taken into account as part of a needs analysis. The critical question is whether funds for post-divorce savings, investment, and retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple's marital standard of living. The inclusion of savings deposits as part of the needs analysis in an alimony determination is allowed only under such circumstances. We have previously so held. See, e.g., Kemp v. Kemp, 2001 UT App 157, 2001 WL 522413. If, on remand, the trial court determines that savings deposits should be taken into account as part of the needs analysis, then the court's findings must be even more detailed than those in a standard needs analysis because allowing savings to be taken into account is the exception, rather than the rule. See id.; see also Rudman v. Rudman, 812 P.2d 73, 76 (Utah Ct.App.1991) (stating "it is essential that the reviewing court clearly understand the findings on which the trial court bases its conclusions"). CONCLUSION ¶ 17 The trial court abused its discretion by failing to make adequate findings in awarding alimony. We therefore remand for further findings on the financial needs and condition of Wife, consistent with this opinion. ¶ 18 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges. NOTES [1] Wife also argues that she is entitled to costs and attorney fees on appeal. However, given our disposition of this appeal, Wife is not entitled to costs and attorney fees. Cf. Baker v. Baker, 866 P.2d 540, 547 (Utah Ct.App.1993) (supporting the proposition that when fees in a divorce case have been awarded to the prevailing party below who also prevails on appeal, fees will be awarded on appeal). [2] The 1995 amendment to Utah Code Ann. § 30-3-5 added a fourth factorthe length of the marriage. A later amendment, effective in 1999, added three additional factors. We refer only to the three original factors specified in Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985), as they are the only factors relevant to the disposition of this appeal. [3] In addition to these, numerous other cases have required findings under the Jones factors. See, e.g., Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991); Gardner v. Gardner, 748 P.2d 1076, 1081-82 (Utah 1988); Paffel v. Paffel, 732 P.2d 96, 100-01 (Utah 1986); Olson v. Olson, 704 P.2d 564, 566-67 (Utah 1985); Kelley v. Kelley, 2000 UT App 236, ¶ 26, 9 P.3d 171; Moon v. Moon, 1999 UT App 12, ¶ 29, 973 P.2d 431; Childs v. Childs, 967 P.2d 942, 946 (Utah Ct.App.1998); Breinholt v. Breinholt, 905 P.2d 877, 879-80 (Utah Ct.App.1995); Cox v. Cox, 877 P.2d 1262, 1267 (Utah Ct.App.1994); Rosendahl v. Rosendahl, 876 P.2d 870, 874 (Utah Ct.App.1994); Schaumberg v. Schaumberg, 875 P.2d 598, 602 (Utah Ct.App.1994); Willey v. Willey, 866 P.2d 547, 550 (Utah Ct.App.1993); Howell v. Howell, 806 P.2d 1209, 1212 (Utah Ct.App.1991); Bridenbaugh v. Bridenbaugh, 786 P.2d 241, 242 (Utah Ct.App.1990); Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct.App.1990); Haumont v. Haumont, 793 P.2d 421, 423 (Utah Ct.App.1990); Petersen v. Petersen, 737 P.2d 237, 242 (Utah Ct.App.1987).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538715/	351 S.W.3d 27 (2011) STATE of Missouri, Respondent, v. John L. LEMONS, Appellant. No. SD 30959. Missouri Court of Appeals, Southern District, Division Two. August 25, 2011. Motion for Rehearing and/or Transfer Denied September 16, 2011. Application for Transfer Denied October 25, 2011. 28 Craig A. Johnston, Columbia, MO, for Appellant. Chris Koster, Attorney General and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent. WILLIAM W. FRANCIS, JR., Presiding Judge. A jury convicted John L. Lemons ("Lemons") of driving while intoxicated ("DWI"). The trial court sentenced Lemons 29 to seven years' imprisonment as a chronic offender under section 577.023.[1] Lemons appeals his sentence as a chronic offender. Factual and Procedural History Lemons does not challenge the sufficiency of the evidence to prove he was guilty of DWI on March 13, 2010. Rather, Lemons challenges the sufficiency of the evidence offered to prove that he is a chronic DWI offender as defined in section 577.023.1(2). Therefore, we only discuss the facts dispositive to this appeal. The State charged Lemons as a chronic offender based on allegations of four prior convictions for intoxication-related traffic offenses: (1) an alleged 1991 conviction for DWI from the State of Arkansas; (2) a 2002 conviction for DWI in the Circuit Court of Dunklin County, Kennett Municipal Division, Kennett, Missouri; (3) a 2005 conviction for DWI in the Circuit Court of Dunklin County, Associate Division; and (4) a 2006 conviction for driving with an excessive blood alcohol content in the Circuit Court of Dunklin County, Kennett Municipal Division, Kennett, Missouri. Prior to the start of trial, the State submitted a certified copy of Lemons' "Missouri Driver Record" ("Driver Record") maintained by the Department of Revenue ("DOR") setting forth the above convictions. The Driver Record included the following entry from the alleged Arkansas conviction: DRIVING WHILE INTOXICATED assessed 08 points, ID# 06 Violation on 4-02-1991 in Non-Commercial Vehicle Convicted on 4-02-1991 in Arkansas by CIRCUIT court Missouri Offence Code is 3034, Microfilm/Court Report ID is 26493802 Ticket No. XXXXXXXXX, ACD is A20 Neither the Information, nor the Driver Record identified which Arkansas court convicted Lemons. Lemons objected to the admission of the Driver Record. The trial court overruled the objection and admitted the record. No other evidence of prior convictions was offered. At the instruction conference, Lemons again brought up the issue of the use of the convictions contained in the Driver Record for enhancement purposes. Lemons objected to the Driver Record being used to prove the Arkansas conviction because records from "another state need to be certified" and that the State never indicated the county of the conviction, which prevented Lemons from "check[ing] if that conviction even exists." The trial court overruled Lemons' objection and found Lemons to be a chronic offender. The jury found Lemons guilty of DWI. Lemons' motion for new trial appended an exhibit purporting to be a certified copy of a record of the "Office of Driver Control of the Arkansas Department of Finance and Administration" showing no driving record was found for the name "John L. Lemons" with Lemons' birth date. Lemons argued this exhibit showed there was "no indication from Arkansas . . . that [Lemons] was ever found guilty or pled guilty to DWI in Arkansas." Lemons further complained that neither the State's Information filed in this case, nor the Driver Record indicated an Arkansas county or municipality; thus, Lemons did not have adequate notice to rebut the allegation of a 30 prior DWI conviction in Arkansas. The trial court overruled Lemons' motion and sentenced him to seven years' incarceration. Lemons subsequently testified that he had asked his counsel to get the Arkansas record before going to trial. This appeal followed. Both Lemons' points relied on contend he was sentenced in excess of the maximum sentence authorized by law in that the record was insufficient to prove: (1) he was represented by or waived counsel in any of his prior convictions; or (2) his Arkansas conviction actually existed. The primary issues pertinent to resolution of this appeal are: 1. Was the State required to affirmatively prove that Lemons was represented or waived counsel in all of his prior convictions used for sentencing enhancement purposes? 2. Did Lemons' Driver Record, specifically in regard to an alleged Arkansas conviction, provide sufficient evidence to prove he was a chronic offender? Driver Record Insufficient to Show Arkansas Conviction For clarity purposes, we begin by addressing Lemons' second point relied on. The determinative issue on this point is whether Lemons' Driver Recordincluding a conviction from Arkansas that did not identify the circuit court which convicted Lemonswas sufficient evidence to prove beyond a reasonable doubt he was a chronic offender. Standard of Review "It is the State's burden to prove prior intoxication-related traffic offenses beyond a reasonable doubt." State v. Craig, 287 S.W.3d 676, 681 (Mo. banc 2009); § 577.023.7(2). This Court's review is to determine whether substantial evidence was adduced to support the trial court's finding. State v. Pike, 162 S.W.3d 464, 469 n. 4 (Mo. banc 2005). "`In determining whether there is sufficient evidence to support the conviction, this court accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the finding.'" Craig, 287 S.W.3d at 681 (quoting State v. McKinney, 253 S.W.3d 110, 113 (Mo.App. W.D.2008)). Analysis Here, Lemons acknowledges that the certified copy of the Driver Record is admissible in all courts of this state under section 302.312. See State v. Miller, 153 S.W.3d 333, 339-40 (Mo.App. S.D.2005). However, Lemons argues the Driver Record was insufficient to establish the alleged Arkansas conviction because it did not identify the convicting court.[2] We agree. Section 577.023.1(2)(a) permits a DWI charge, which for the first offense is a class B misdemeanor, to be enhanced to a class B felony DWI, giving the defendant 31 "chronic offender" status, when the defendant "has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses[.]" In pertinent part, an "`intoxication-related traffic offense' is driving while intoxicated, driving with excessive blood alcohol content, . . . or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance[.]" § 577.023.1(4). Under section 577.023, for a defendant to be convicted as a chronic offender (1) the information or indictment must plead all essential facts warranting such a finding, section 577.023.7(1); (2) evidence must establish `sufficient facts pleaded' to warrant a finding beyond a reasonable doubt that the defendant is a chronic offender, section 577.023.7(2); [and] (3) the court must make findings of fact that warrant such a finding beyond a reasonable doubt, section 577.023.7(3)[.] State v. Collins, 328 S.W.3d 705, 708 (Mo. banc 2011). Additionally, "[i]n a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside its hearing." § 577.023.8. Our supreme court recently found that a driving record that "plainly listed [. . .] prior convictions" established the defendant pleaded guilty to or was found guilty of those offenses. Collins, 328 S.W.3d at 708 n. 4. This opinion is silent as to what information must be contained in a driver record when relying solely on a driver record to prove a prior out-of-state conviction.[3] However, our review of the case law reveals some minimal information is necessary when an individual's driver record is the only evidence relied on to prove a defendant "pleaded guilty to or had been found guilty of" a prior intoxication-related offense in an out-of-state court. In West v. Dir. of Revenue, this Court held that a Missouri driver record that did not provide any information about which court in the State of Oregon a driver's alleged conviction occurred was insufficient evidence to sustain the Director's revocation of the driver's driving privileges. 184 S.W.3d 578, 582 (Mo.App. S.D.2006). This Court explained that this requirement of court identification for violations of foreign law was included by the Missouri General Assembly in the Driver License Compact ("the Compact"), section 302.600, Article III,[4] so that an aggrieved individual "would have only one county or one municipality to contact in order to explain or otherwise rebut the information given by the Director, i.e., to show he was not the person convicted, or he was charged but not convicted, or otherwise demonstrate informational error." Id. at 582. As such, this Court concluded the minimal information required includes at least an identification of the court in which the action was taken. Id. In West, this Court held "certain minimal information has to be provided to 32 the Director by foreign jurisdictions before alleged violations of foreign law can be used to impact a Missouri citizen's driving privileges." That is no less true here. A defendant who does not know "the court in which action was taken" may find it practically impossible to disprove an erroneous out-of-state conviction.[5]Id. (quoting § 302.600). "It is not a stretch to say" that the court-identification requirement "was included in the Compact by the General Assembly so that an aggrieved driver would have only one county or one municipality to contact in order to . . . show he was not the person convicted, or he was charged but not convicted, or otherwise demonstrate informational error." West, 184 S.W.3d at 582. Here, the entry of the conviction in Lemons' Driver Record was the only evidence set forth to establish the Arkansas conviction. The entry noted the conviction as being in "Arkansas by CIRCUIT court," but it did not identify which circuit court in Arkansas Lemons' alleged conviction occurred. As such, in order to conclusively rebut this proof, Lemons would be required to contact every circuit court in Arkansas. Because Lemons' Driver Record does not contain that minimal information, it does not provide sufficient evidence from which the trial court could find beyond a reasonable doubt that Lemons was a chronic offender. Point granted. Representation of Counsel Not Essential Fact Next, we address whether the State was required to prove that Lemons was represented or waived counsel in any of his prior convictions used for enhancement purposes. Standard of Review While Lemons objected to the admission of the Driver Record to be used as evidence of his prior convictions, he did not object at trial on the grounds presented on appealthat the State failed to prove he was represented by or waived the right to an attorney. As such, Lemons' claims are unpreserved and we review for plain error. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). Plain error review involves a two-step analysis. State v. Drudge, 296 S.W.3d 37, 40 (Mo.App. E.D.2009). "First, the court must determine whether the trial court committed an evident, obvious and clear error, which affected the substantial rights of the appellant." Id. at 40-41. Only if this Court identifies plain error do we proceed to the second step of determining whether manifest injustice or a miscarriage of justice resulted. Id. at 41. "Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Severe, 307 S.W.3d at 642. Analysis Lemons argues that because his Driver Record did not show whether he was represented by or waived the right to an attorney, the State failed to prove all essential facts showing Lemons was a chronic offender. In this analysis, we only consider the three Missouri convictions because, as discussed above, there was insufficient evidence for use of the Arkansas conviction. Significantly, the DWI enhancement statute was amended in 2009 to no longer 33 explicitly require proof that the defendant was represented or waived counsel for prior offenses. Compare § 577.023.1(3), RSMo Cum.Supp.2008 with § 577.023.1(4), RSMo Cum.Supp.2009. Furthermore, Missouri courts have found "[i]t would be redundant and would serve no further purpose in protecting a defendant's rights for the legislature to require the state to prove that the defendant was represented by or waived representation of counsel when prior convictions for state law offenses are used to enhance driving while [intoxicated][6] to a felony."[7]Moore v. State, 318 S.W.3d 726, 734-35 (Mo.App. E.D.2010). Additionally, our supreme court interpreted Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994),[8] as recognizing "that an otherwise constitutional conviction, whether municipal or state, may properly be used to enhance a later conviction." Pike, 162 S.W.3d at 472. In Nichols, the defendant objected to the enhancement of his federal drug conviction based, in part, on an uncounselled municipal DWI conviction. Citing to Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979), the United States Supreme Court recognized a defendant did not have the constitutional right to counsel in a misdemeanor case, unless incarceration was actually imposed as a sentence. Nichols, 511 U.S. at 743, 114 S. Ct. 1921. Under Scott, Nichols' municipal DWI conviction was constitutional because Nichols was not sentenced to prison. Id. The Court upheld enhancement of Nichols' sentence, based partly on the prior uncounselled municipal conviction. Id. Here, Lemons does not allege that any of his convictions were unconstitutional, nor is there any evidence to support this proposition. Rather, Lemons asserts only that the State did not prove he had counsel or waived that right in the prior offenses, and claims that this was an essential fact the State was required to prove. Lemons has not cited a case that truly imposes such a heavy burden on the use of prior convictions for purposes of sentence enhancement. Under Nichols, section 577.023 does not violate a defendant's due process rights by allowing a penalty enhancement based on a prior constitutional state or municipal conviction. See Pike, 162 S.W.3d at 470-72. Thus, we do not find section 577.023 requires the State to prove Lemons received representation or waived this right in prior offenses; any otherwise constitutional conviction, *34 municipal or state, may be used to enhance a later conviction. Here, Lemons' Driver Record, which plainly listed three intoxication-related traffic convictions, established that the defendant pleaded guilty to or was found guilty of those offenses. See Collins, 328 S.W.3d at 708 n. 4.[9] Again, Lemons' argument fails because he has not alleged, here or at trial, that his prior convictions were unconstitutional. Specifically, Lemons only alleged the State did not prove he received representation or waived his right to counsel in the underlying offenses; not that in those offenses he was unrepresented or waived his right to counsel. Because Lemons has made no allegation of any constitutional violation, we do not find an evident, obvious and clear error. As to the three Missouri convictions, there was sufficient evidence to establish Lemons had pleaded guilty to or had been found guilty of three intoxication-related traffic offenses. Point denied. Conclusion Because this Court finds the evidence failed to prove Lemons' alleged Arkansas conviction, Lemons' sentence as a chronic offender cannot stand. We remand for re-sentencing as an aggravated offender based on the three prior Missouri convictions. Collins, 328 S.W.3d at 710. BARNEY, and SCOTT, JJ., Concur. NOTES [1] The version of the statute effective on the date of the DWI offense is the applicable statute. State v. Coomer, 888 S.W.2d 356, 358-60 (Mo.App. S.D.1994). In this case, Lemons was arrested on March 13, 2010. Therefore, all statutory citations are to RSMo Cum.Supp.2009, unless otherwise indicated. [2] In support, Lemons also submitted the certified, notarized Arkansas record showing that Lemons had no driver history in Arkansas and argued that this established there was no such record of an Arkansas DWI conviction. We, however, are not persuaded by this record. In part, it is unclear what information that record would have revealed other than the fact that Lemons was not licensed in Arkansas; there is no indication it would have contained convictions for a driver never licensed in Arkansas. Additionally, Lemons has not demonstrated that the facts constituting the newly discovered evidence came to Lemons' knowledge after the end of the trial, as required to obtain a new trial on the basis of newly discovered evidence. See State v. Terry, 304 S.W.3d 105, 109 (Mo. banc 2010). In fact, during sentencing, Lemons admitted he had asked counsel to obtain the Arkansas record before going to trial. [3] No issue was raised in Collins about convictions from other states. [4] The Missouri General Assembly adopted the Compact, which requires the licensing authority of any state who is a party to the Compact to report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. West, 184 S.W.3d at 580-81. While generally the language of section 302.600 has been deemed "directory" and not "mandatory," the statute provides such reports shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or whether the conviction was a result of the forfeiture of bail, bond or other security; and shall include any special findings made in connection therewith. Id. at 582; § 302.600, Art. III. [5] The fact that Lemons' Arkansas record showing that Lemons has no driver history in Arkansas, even if admitted at trial, does not necessarily disprove the alleged conviction further exemplifies the challenges for disproving an alleged conviction where there is no indication of the conviction court. [6] This case involved the offense of driving while revoked; however, the analysis also applies to DWI enhancement provisions. [7] This is because Missouri law ensures that a defendant who faces imprisonment have the assistance of counsel if the defendant desires such assistance. See MO CONST. art. I, § 18(a); Missouri Court Rule 31.02(a) (2011). A written waiver of the right to counsel is required in all cases where the defendant chooses to waive such a right if a jail sentence or confinement is possible. § 600.051, RSMo 2000. Under state law, sentences for DWI offenses range in degree from a class B misdemeanor to a class D felony; all degrees permit a jail sentence. §§ 577.010, RSMo 2000 and 577.023, RSMo 2000. [8] Lemons primarily relies on this Court's 1984 decision in State v. Wilson, 684 S.W.2d 544, 545-46 (Mo.App. S.D.1984), which held a conviction in a proceeding in which a defendant did not have or waive counsel cannot be used to enhance punishment upon a subsequent conviction when imprisonment is to be imposed, and that the assistance of counsel or waiver of counsel cannot be presumed from a silent record. This holding, however, relied on the United States Supreme Court splintered decision in Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), which has subsequently been overruled by Nichols. [9] At the time of the defendant's conviction in Collins, section 577.023, RSMo Cum.Supp. 2006 explicitly required the State to prove the defendant was represented or waived representation during the proceedings for his prior convictions to find the defendant was a chronic offender, and this case was reversed because the State failed to meet that statutory requirement. Collins, 328 S.W.3d at 708.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538725/	342 S.W.3d 91 (2011) Mark David BARSHAW, Appellant, v. The STATE of Texas. No. PD-1615-10. Court of Criminal Appeals of Texas. June 29, 2011. 92 Scott K. Stevens, Harker Heights, for Appellant. Bob Odom, Asst. D.A., Belton, Lisa C. McMinn, State's Attorney, Austin, for State. OPINION JOHNSON, J., delivered the unanimous opinion of the Court. A jury found appellant, Mark Barshaw, guilty of sexual assault.[1] The trial court sentenced him to twelve years' imprisonment.[2] The Third Court of Appeals, with one dissenter,[3] reversed the conviction and remanded the case for a new trial because the trial court permitted an expert witness to testify that the class of persons to which the complainant belongs tends to be truthful.[4] Subsequently, this court granted the state's petition for discretionary review to determine whether the court of appeals erroneously reviewed only a portion of the record and substituted its judgment as to the credibility of the witnesses for that of the fact finder and thus tainted the harm 93 analysis. After examining the record, we reverse the judgment of the court of appeals and remand this case for a full harm analysis. Statement of Facts The complainant, K.B., was twenty-one years old at the time of the alleged incident and is mentally retarded, functioning at approximately a ten-year-old level. K.B. testified that she knew appellant as the person who fixed the air conditioner in her home. She remembered an incident, but not the exact date, when appellant came to her room and woke her. She testified that appellant took off her pajamas and underpants and then touched her breasts and legs as she laid in bed. He also spread her legs and "touched [her] pelvis." She indicated that appellant rubbed her breasts and her "pelvis." She did not know if appellant put his fingers in her "pelvis." K.B. further testified that appellant did not remove his clothes, and that he helped her put her pajamas back on after touching her. K.B. recalled telling her mother what had happened and going to see a doctor. During the trial, the state called Rebecca Barthlow, a mental-retardation psychologist who had worked with K.B. When asked by the prosecution about the ability of people with mental retardation to fabricate or make up elaborate stories, Barthlow responded, "It's been my experience that folks with mental retardation can be painfully honest, really."[5] Defense counsel objected that testimony that a class of people are truthful was inadmissible. The court overruled the objection, and Barthlow continued, "I'm not going to say that it would never happen. I mean, anybody is capable of making up something, but it's very simplistic in nature . . . it would be like a lie a child would tell."[6] Expert testimony that a particular class of persons to which the victim belongs is truthful is not expert testimony of the kind that will assist the jury, as is required by Texas Rule of Evidence 702, and is thus inadmissible.[7] In this case, the trial court erred by admitting Barthlow's testimony. The court of appeals properly found the trial court abused its discretion by overruling appellant's objection and admitting the testimony.[8] However, the court of appeals also held that the error was harmful. We reverse that holding and remand this cause to the court of appeals for a full harm analysis. Standard of Review On appellate review, and pursuant to Texas Rule of Appellate Procedure 44.2(b),[9] a non-constitutional error must be disregarded unless it affects the defendant's substantial rights. This court "will not overturn a criminal conviction for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or influenced the jury only slightly."[10] In considering the potential to harm, the focus is not on whether the outcome of the trial was proper despite the error, but whether the error had a substantial or injurious effect or influence on 94 the jury's verdict.[11] A conviction must be reversed for non-constitutional error if the reviewing court has grave doubt that the result of the trial was free from the substantial effect of the error.[12] "Grave doubt" means that "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error."[13] "[I]n cases of grave doubt as to harmlessness the petitioner must win."[14] The "danger posed by the erroneous admission of expert testimony that was a direct comment on the complainant's credibility was that the jury could have allowed that testimony to supplant its decision."[15] In assessing the likelihood that the jury's decision was improperly influenced, the appellate court must consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case.[16] The reviewing court may also consider the jury instruction given by the trial judge, the state's theory, defensive theories, closing arguments, voir dire, and whether the state emphasized the error.[17] Analysis The court of appeals concluded that this was a "she said, he said" case because, although there was physical evidence that the complainant, K.B., had been penetrated, the evidence did not link appellant to that penetration.[18] Therefore, "the outcome ultimately turned on the jury's assessment of the relative credibility of the two principal parties' testimony."[19] The court of appeals considered appellant "on the face of it, a credible witness" based upon his age, marital status, prior military service, college degree, lack of a criminal record, and the testimony of several witnesses to his good character.[20] The court acknowledged, however, that appellant had been dismissed from his job for approaching two females with mistletoe following a company Christmas party and that there were some inconsistencies between his trial testimony and the statement he made to the police following his arrest.[21] The court of appeals labeled K.B. an "impaired witness" because of her mental retardation and pointed out that there were inconsistencies and omissions in her testimony. The court of appeals concluded that Barthlow's challenged testimony must have significantly impacted the jury's determination 95 in assessing K.B.'s credibility, which led the court to have grave doubt as to the error's harmlessness. Although the court of appeals considered this a "she said, he said" case turning on the credibility of the principal parties' testimony, there was additional evidence and testimony for the jury to consider in reaching its verdict regarding the credibility of both K.B. and appellant. The court of appeals found that, because of inconsistencies and omissions in K.B.'s testimony, it would be understandable for the jury to be concerned that K.B.'s account was mistaken or even a fabrication. However, the omissionthat K.B. did not testify that she had been penetratedshould be considered in light of the testimony by Deborah Kleypas, the sexual-assault nurse who examined K.B. on the morning of the alleged incident. Kleypas testified that it is not unusual for a child, or even an adult, to describe an assault as a touching when the evidence indicates that there was a penetration because the victim may not understand his or her own anatomy.[22] K.B. testified that appellant touched her "pelvis," and Kleypas testified that she found an abrasion to the posterior fourchette,[23] approximately 1.75 centimeters long and 1 centimeter wide, that could have resulted only from penetration. The results of the exam, Kleypas testified, were consistent with the events K.B. had described.[24] While appellant's testimony contradicted K.B.'s testimony, it also contradicted the testimony of D.B., K.B.'s mother. According to appellant, on the day of the alleged incident, he stopped by the convenience store where D.B. worked and asked if he could go by and check on her heater after his recent repair.[25] Appellant testified that D.B. was busy at the time and did not respond, but that he drove to D.B.'s house, where he found K.B. Appellant also testified that he did not know at that time that K.B. was mentally retarded.[26] D.B., however, testified that, when she saw appellant that day, he asked her about the heater, she told him that it was working fine, and she did not give him permission to go to her house.[27] D.B. also testified that K.B.'s mental impairment was apparent when people met her for the first time and that it was common knowledge.[28] D.B.'s testimony was supported by Kleypas, who testified that K.B.'s mental impairment was apparent when Kleypas first met her and that K.B.'s writing and altered gait, among other signs, indicated developmental delay.[29] Additionally, appellant testified that he had been alone with K.B. at the time of the alleged incident and that he had grabbed her shoulders and kissed her on her left cheek.[30] He testified that this was in response to K.B. saying that it was her birthday, but D.B. testified that K.B.'s birthday was not until December 30.[31] These contradictions from appellant's own testimony, when viewed in the context of the record as a whole, provide a basis for a *96 jury to question appellant's credibility even without considering K.B.'s testimony. The state did not address the erroneously admitted testimony in closing arguments or pursue the matter further, thereby somewhat mitigating the effect of the error. Additionally, the jury was properly instructed that it was the exclusive judge of witness credibility. Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim's credibility.[32] Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals's harm analysis, as is required by Schutz.[33] We reverse the judgment of the court of appeals and remand this cause so that the court of appeals may conduct a full harm analysis based on the entirety of the record and address appellant's remaining issues. NOTES [1] TEX. PENAL CODE § 22.011. [2] I C.R. at 26. [3] Justice Henson would have found the error harmless and then address his remaining issues on appeal. [4] Barshaw v. State, 320 S.W.3d 625 (Tex.App.-Austin 2010). [5] V R.R. at 41. [6] V R.R. at 43. [7] Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim.App.1993). [8] Barshaw, 320 S.W.3d at 630. [9] Rule 44.2(b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. [10] Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.App.2001) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000)). [11] Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000). [12] Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim.App.2002). [13] Id. at 637-38. [14] Id. at 638 (citing O'Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995), and thereby adopting the federal standard ("When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had `substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win.")). [15] Schutz, 63 S.W.3d at 445. [16] Morales v. State, 32 S.W.3d at 867; Haley v. State, 173 S.W.3d 510, 518-19 (Tex.Crim. App.2005). [17] Id.; see also Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App.2002) (citing King v. State, 953 S.W.2d 266, 272 (Tex.Crim.App.1997). [18] Barshaw, 320 S.W.3d at 630. [19] Id. [20] Id. [21] Id. [22] V R.R. at 118. [23] The small area of tissue towards the back of the female genitals where the labia minor meet. [24] V R.R. at 122. [25] V R.R. at 258. [26] VI R.R. at 7. [27] IV R.R. at 59. [28] IV R.R. at 56-57. [29] V R.R. at 118. [30] V R.R. at 262. [31] Testimony indicated that K.B. functions at the level of a ten-year-old, an age at which children know when their birthday is. [32] Schutz, 63 S.W.3d 442. [33] See id.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538728/	80 P.3d 168 (2003) 150 Wash.2d 666 STATE of Washington, Respondent, v. Gregory Leon THOMAS, Petitioner. No. 73216-7. Supreme Court of Washington, En Banc. Argued October 16, 2003. Decided December 11, 2003. Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, for petitioner. Janice Ellis, Snohomish County Prosecutor, Seth Fine, Deputy, Everett, for respondent. OWENS, J. We granted review in this case to resolve a question regarding the proper sentencing for firearm enhancements when a defendant is convicted of multiple crimes, at least two of which carry a firearm enhancement. Contrary to the holding in State v. Harvey, 109 Wash.App. 157, 34 P.3d 850 (2001), the Court of Appeals held in the present case that former RCW 9.94A.310(3)(g) (1998)[1] does not limit an offender's total period of confinement for multiple offenses to the statutory maximum for the most serious offense. State v. Thomas, 113 Wash.App. 755, 54 P.3d 719 (2002). We affirm the Court of Appeals and hold that the trial court committed no sentencing error. FACTS For acts committed on June 29, 1998, Gregory Thomas was found guilty on July 26, 2001, of two counts of second degree robbery and one count of unlawful possession of a firearm in the second degree. Second degree robbery is a class B felony, for which the maximum sentence is 10 years. RCW 9A.56.210(2); RCW 9A.20.021(1)(b). Unlawful possession of a firearm in the second degree, a class C felony, carries a maximum sentence of five years. RCW 9.41.040(2)(b); RCW 9A.20.021(1)(c). Given his offender score and the seriousness level of the offenses, the standard range for each robbery count was 63-84 months, with the mandatory firearm enhancement of 36 169 months increasing the total standard range for each count to 99-120 months. The standard range for unlawful possession of a firearm was 51-60 months. On each of the three counts, Thomas received the maximum total standard range sentence: that is, on each robbery count, Thomas received 120 months (an 84-month base sentence and a 36-month firearm enhancement), while on the unlawful possession count, Thomas received a 60-month sentence. Consistent with former RCW 9.94A.400(1)(a) (1998) and former RCW 9.94A.360(1) (1998),[2] the base sentences of 84 months, 84 months, and 60 months were set to run concurrently. Because firearm enhancements are consecutive to the longest concurrent base sentence and to one another, former RCW 9.94A.310(3)(e), the trial court sentenced Thomas to a total period of confinement of 13 years: 7 years for the longest base sentence, plus 3 years for the count one enhancement and another 3 years for the count two enhancement. Thomas appealed, arguing that under Harvey his total enhanced sentence should not have exceeded 10 years. Rejecting that argument, the Court of Appeals concluded that the trial court had correctly calculated Thomas's total enhanced sentence as 13 years. Thomas, 113 Wash.App. 755, 54 P.3d 719. We granted Thomas's petition for review. State v. Thomas, 149 Wash.2d 1009, 69 P.3d 875 (2003). ISSUE Where a defendant is sentenced for multiple offenses, does former RCW 9.94A.310(3)(g), which limits the enhanced sentence for a single offense to the statutory maximum for the crime, also place a limit on the defendant's total period of confinement, capping it at the statutory maximum for the offender's highest level offense? ANALYSIS Standard of Review. At issue is the meaning of certain provisions of the Sentencing Reform Act of 1981, chapter 9.94A RCW. The meaning of a statute is a question of law reviewed de novo. State v. Ammons, 136 Wash.2d 453, 456, 963 P.2d 812 (1998). The appellate court's paramount duty is "to discern and implement the intent of the legislature." State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). Where the plain language of the statute is unambiguous, the legislature's intent is evident, and the statute may not be construed otherwise. Id. Statutory Limits on Sentences with Firearm Enhancements. Under RCW 9.94A.510(3) and (4), where a defendant is convicted of a single offense while armed with more than one firearm or other deadly weapon, "one enhancement must be applied for each firearm or other deadly weapon" that the offender or an accomplice is found to be carrying. State v. DeSantiago, 149 Wash.2d 402, 418, 68 P.3d 1065 (2003). Although multiple enhancements are to be applied for a single offense, the resulting sentence for the offense "would not [be] absurdly extend[ed]," because RCW 9.94A.510(3)(g) and (4)(g) provide that the total sentence for the crime cannot exceed the statutory maximum for the offense. Id. at 421, 68 P.3d 1065. Thomas argues that this statutory limitation likewise applies in cases such as his, where a single firearm enhancement is added to each of two or more offenses. In his view, former RCW 9.94A.310(3)(g) caps his total period of confinement at the statutory maximum for the most serious of his three offenses. Thomas's argument ignores the plain, unambiguous language of the statute. The sentencing grid in former RCW 9.94A.310(1) defines the standard sentence range for an offense based on the individual's offender score and the seriousness level of the offense. Subsection .310(3) provides that, where an offender or accomplice is armed with a firearm, the standard sentence range for the offense will be enhanced five years for class A felonies, three years for class B, and 18 months for class C. Former RCW 9.94A.310(3)(a)-(c). In the first of its two sentences, former RCW 9.94A.310(3)(g) ensures that, if the standard sentence range, as 170 defined in the subsection .310(1) grid, "exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender." For example, although the grid provides a standard sentence range for Thomas's third count (unlawful possession of a firearm) of 51-68 months (the intersection of seriousness level III and an offender score greater than 9), his standard range sentence for that count is 51-60 months, since the statutory maximum for a class C felony is five years. The second sentence in former RCW 9.94A.310(3)(g) likewise pertains to the standard sentence range for a single offense: "If the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced." (Emphasis added.) In each of his first two counts, Thomas's firearm enhancement of 36 months did not result in an enhanced standard range sentence that exceeded the statutory maximum for the offense of second degree robbery; his standard range of 63-84 months (the intersection of seriousness level IV and an offender score of 14) with the addition of 36 months resulted in a 120-month sentence, the statutory maximum for a class B felony. Had the firearm enhancement caused the standard range sentence to exceed 120 months, subsection .310(3)(g) would have required a reduction in the base sentence to accommodate the firearm enhancement of 36 months. In sum, nothing in the plain language of former RCW 9.94A.310(3)(g) suggests that an offender's total period of confinement for multiple offenses would be capped at the statutory maximum for the highest level offense. The provision does not refer to multiple offenses but to "the offense," and it makes no mention of the highest level offense. Subsection .310(3)(g) concerns only the calculation of the maximum standard sentence range for a single offense. Also unavailing is Thomas's reliance on the rule set forth in Harvey: When the base sentences are to be served concurrently, the total sentence, including enhancements, may not exceed the statutory maximum sentence of the highest level felony among the crimes for which the defendant is convicted. For example, if a defendant is ordered to serve two sentences for Class C felonies (maximum five years) and two sentences for Class B felonies (maximum 10 years), with all sentences to be served concurrently, the total sentence (including enhancements) may not exceed 10 years, the statutory maximum for the most serious (Class B) felonies. 109 Wash.App. at 166, 34 P.3d 850. In its opinion in the present case, the Court of Appeals sought to explain and distinguish the outcome in Harvey by asserting that the holding was "founded upon the principle of [In re Post Sentencing Review of Charles, 135 Wash.2d 239, 955 P.2d 798 (1998) (expressly overruled by statutory amendment) ], that when base sentences are concurrent, weapon enhancements must also be concurrent." Thomas, 113 Wash.App. at 761, 54 P.3d 719. However, the Harvey decision did not strictly apply that principle, nor does that principle explain the more far-reaching rule in Harvey. Harvey was sentenced on six counts, which were to run concurrently. The longest base sentence was 96 months, and three of the other five counts had firearm enhancements of 36, 36, and 18 months. The trial court, presumably sentencing Harvey under the statutes effective in June 1997, ordered the firearm enhancements to run consecutively to the 96-month base sentence but ordered the two 36-month enhancements to run concurrently with each other and consecutively to the 18-month enhancement. Consequently, although the principle of Charles (which made all enhancements run concurrently) would have produced a total sentence of 132 months (96 plus 36), the trial court's total sentence was 150 months (96 plus 36 and 18). Reviewing the 150-month sentence, the Court of Appeals reduced Harvey's sentence to 120 months by applying, not the principle of Charles, but the altogether new rule stated above that, no matter how many concurrent offenses have enhancements, the total sentence for all offenses cannot exceed the statutory maximum *171 for "the highest level felony among the crimes for which the defendant is convicted." Harvey, 109 Wash.App. at 166, 34 P.3d 850. The Harvey court provided no authority for the rule, nor did the court explain two of the rule's shortcomings. First, the requirement that Harvey's sentence be reduced from 150 months to 120 months necessarily required the sentencing court to reduce to 84 months the 96-month base sentence for a crime that had no weapon enhancement. We are aware of no statute permitting a firearm or deadly weapon enhancement on one offense to result in a reduction in the sentence for another unenhanced crime. Second, where a defendant is being sentenced concurrently for multiple offenses, at least one of which is a class B felony, the Harvey rule will invariably result in a maximum total period of confinement of 10 years. In the present case, whether Thomas was armed with one weapon in each robbery, one weapon in the first robbery and several in the second, or several weapons in each robbery, his maximum total period of confinement could not exceed 10 years. The sweeping Harvey rule, in effect, negates the statutory provisions mandating firearm enhancements for individual offenses. For the foregoing reasons, we reject the Harvey court's determination that former RCW 9.94A.310(3)(g) caps a defendant's total period of confinement for multiple offenses at the statutory maximum for the offender's highest level offense. CONCLUSION Former RCW 9.94A.310(3)(g) focuses steadfastly on limiting the sentence range for a single offense and cannot be read to place a limit on an offender's total period of confinement for multiple offenses. While the 10-year statutory maximum for second degree robbery provided a maximum sentence for each of Thomas's firearm-enhanced second degree robbery convictions, former RCW 9.94A .310(3)(g) did not cap at 10 years Thomas's total period of confinement. We conclude that the trial court committed no sentencing error. The Court of Appeals is affirmed. WE CONCUR: ALEXANDER, C.J., JOHNSON, MADSEN, SANDERS, IRELAND, BRIDGE, CHAMBERS and FAIRHURST, JJ. NOTES [1] Recodified as RCW 9.94A.510(3)(g) (Laws of 2001, ch. 10, § 6). [2] Recodified as RCW 9.94A.589(1)(a) and RCW 9.94A.525(1) (Laws of 2001, ch. 10, § 6).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538756/	349 S.W.3d 692 (2011) Nathan P. PHILIPELLO and Shari K. Philipello, Appellants, v. The NELSON FAMILY FARMING TRUST, Appellee. No. 14-10-00026-CV. Court of Appeals of Texas, Houston (14th Dist.). August 16, 2011. Jay B. Goss, Bryan, for appellants. Terrance D. Dill Jr., College Station, for appellee. Panel consists of Justices ANDERSON, FROST, and BROWN. OPINION KEM THOMPSON FROST, Justice. Landowners-grantees challenge a summary judgment in which the trial court construed a deed as reserving to the grantor for a period of ten years one-eighth of the royalty in oil, gas, or other 693 minerals in and under the land conveyed in the deed. We affirm. FACTUAL AND PROCEDURAL BACKGROUND This case involves a dispute over the construction of language in a deed regarding a reservation of a royalty interest. In the deed in question ("Deed"), appellee The Nelson Family Farming Trust ("the Nelson Trust") conveyed to appellants Nathan P. and Shari K. Philipello (collectively "the Philipellos") approximately 110.26 acres of land in Robertson County, Texas (the "Property"), subject to (1) all previous mineral and royalty reservations, (2) a reservation of royalty in favor of the Nelson Trust, and (3) various exceptions to the conveyance. In 1982, Bill W. and Velma Clements (the "Clementses") conveyed an undivided one-half mineral interest collectively in the Property to their two sons, Billy Clements and Larry Clements, with each son receiving an undivided one-fourth interest. In 1991, the Clementses conveyed land, including the Property, to the Nelson Trust. In July 2001, the Nelson Trust executed the Deed. In another lawsuit, the parties are litigating whether, under the Deed, the Nelson Trust conveyed to the Philipellos a one-fourth interest or a one-half interest in the minerals under the Property. It is undisputed that, when it executed the Deed, the Nelson Trust owned at least a one-fourth interest in the minerals under the Property and that the Nelson Trust did not own all of the minerals under the Property. In the trial court, the Nelson Trust, the Philipellos, and others were named as defendants in a declaratory-judgment action regarding the ownership of a disputed interest in the minerals under the Property and other land. The Nelson Trust filed a cross-petition against the Philipellos seeking a declaratory judgment regarding the proper construction of language in the Deed in which the Nelson Trust reserves a term royalty interest. The Nelson Trust asserted that, under the unambiguous language of the Deed, the Nelson Trust reserved for itself, for a period of ten years, one-eighth of the royalty in oil, gas, or other minerals in and under the Property. The trial court granted the Nelson Trust's motion for summary judgment and declared that under the Deed the Nelson Trust reserved to itself, for a period of ten years (from July 26, 2001 through July 26, 2011), one-eighth of the royalty in oil, gas, or other minerals in and under the Property. The trial court severed this partial summary judgment, making the judgment final. ANALYSIS In a single issue, the Philipellos assert that the trial court erred in ruling as a matter of law that the Nelson Trust reserved a royalty in the entire Property. Declaratory judgments that are decided by summary judgment are reviewed under the same standards that govern summary judgments generally. See Lidawi v. Progressive Cnty. Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). 694 The body of the Deed comprises less than two pages. Following recitations of the Deed's date and consideration and identification of the Grantor and Grantees, the Deed contains the following language: Property (including any improvements): BEING 110.26 acres of land, more or less, [the Deed then describes the Property in various ways including by metes and bounds]. This Deed is subject to all previous mineral and/or royalty reservations. Reservations from Conveyance: SAVE AND EXCEPT and there is hereby reserved for Grantor and Grantor's heirs, administrators, successors or assigns, for a period of ten (10) years from the date of this conveyance, one-eighth (1/8) of the royalty in oil, gas and other minerals in and under and that may be produced with the oil and gas. At the expiration of such ten (10) year period, the entire royalty estate reserved herein shall revert to and be owned by Grantees, their heirs and assigns. The Deed then (1) lists various exceptions to the conveyance and warranty, and (2) sets forth the warranty of title. The Deed states that the Nelson Trust is conveying the Property subject to prior reservations of mineral or royalty interests. The Deed does not contain any reference to the Nelson Trust's interest in the minerals under the Property, which the Nelson Trust conveyed to the Philipellos in the Deed. In this case, the sole issue on appeal is the construction of the reservation in the Deed. The Philipellos assert that, under the unambiguous language of the Deed, the Nelson Trust reserved, for a period of ten years, one-eighth of the royalty of the one quarter or one half "of the minerals that it owned prior to the conveyance to [the Philipellos]." The Nelson Trust argues the trial court correctly construed the unambiguous language of the Deed to reserve to the Nelson Trust, for a period of ten years, one-eighth of the royalty in oil, gas, or other minerals in and under the entire Property. The construction of an unambiguous deed is a question of law for the court. Luckel v. White, 819 S.W.2d 459, 461 (Tex.1991). In construing deeds, our primary objective is to ascertain the intent of the parties from all of the language in the deed. See id. To ascertain the parties' true intention, we examine all of the deed's language. Id. That intention, when ascertained, prevails over arbitrary rules of construction. Id. at 462. Two lines of cases potentially could apply to a reservation of a mineral interest or royalty in a deed in which the grantor owns an undivided, fractional mineral interest. In one line of cases, the deed contains language stating that the mineral interest or royalty applies to the oil and gas in and under the property conveyed in the deed. See Averyt v. Grande, Inc., 717 S.W.2d 891, 893 (Tex.1986); Hooks v. Neill, 21 S.W.2d 532, 538 (Tex.Civ.App.-Galveston 1929, writ ref'd). In these cases, courts hold that the fraction in the reservation modifies the undivided, fractional mineral interest conveyed by the grantor in the deed. See Averyt, 717 S.W.2d at 893; Hooks, 21 S.W.2d at 538-39. In the other line of cases, the deed contains language stating that the mineral interest or royalty applies to the oil and gas in and under the property described in the deed, and the property described in the deed is the entire tract of land. See Averyt, 717 S.W.2d at 893; King v. First Nat'l Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260, 262 (1946). In these cases, courts hold that the fraction in the reservation modifies the entire tract, even though a fractional mineral interest is being 695 conveyed in the deed. See Averyt, 717 S.W.2d at 893; King, 192 S.W.2d at 262-63. Neither of these lines of cases applies to the Deed in the case under review. In the pertinent part of the reservation, the Nelson Trust states that it reserves "one-eighth (1/8) of the royalty in oil, gas and other minerals in and under and that may be produced with the oil and gas." The reservation does not expressly state that the oil, gas and other minerals are in and under the property conveyed or the property described. The parties have not cited and research has not revealed any case in which the court construed a reservation with the same or similar language. We conclude that it is reasonable to construe the oil, gas, and other minerals as referring to the oil, gas, and other minerals in and under the Property. Shortly before the reservation paragraph, the Deed contains a paragraph with a detailed description of the Property. But, the Deed does not contain a statement or description of the fractional mineral interest that the Nelson Trust is conveying to the Philipellos.[1] In this context, we conclude that it is not reasonable to construe the oil, gas, and other minerals as referring to the oil, gas, and other minerals in and under the undivided, fractional mineral interest conveyed by the Nelson Trust in the Deed. Therefore, under the Deed's unambiguous language, the Nelson Trust reserved for itself, for a period of ten years, one-eighth of the royalty in oil, gas, or other minerals in and under the Property. The Philipellos assert that when the Nelson Trust executed the Deed, the Nelson Trust owned either an undivided one-quarter or an undivided one-half of the minerals under the Property. The Philipellos assert that, in either event, the Nelson Trust did not own the remainder of the minerals and therefore could not reserve to itself a royalty in oil, gas, or other minerals in and under mineral interests that the Nelson Trust did not own. The only authority the Philipellos cite that supports this argument is Justice Kilgarlin's dissenting opinion in the Averyt case. See Averyt, 717 S.W.2d at 895-901 (Kilgarlin, J., dissenting). The Philipellos' argument is contrary to the majority opinion in Averyt, which is binding on this court. See id. at 893-95. Therefore, we reject this argument.[2] Finally, the Philipellos argue that their construction of the Deed must be adopted under various canons of construction, including the canon that any doubts regarding the proper construction of a deed should be resolved against the grantor. But this court has determined that the Deed is unambiguous and that this court can determine the intent of the parties from the language used in the Deed. In this situation, there is no need to apply canons of construction. See Luckel, 819 S.W.2d at 461-62; Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798, 800 (1956); Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex.App.-Texarkana 2000, no pet.). Because there is no ambiguity in the language in question, there is no doubt 696 to resolve against the Nelson Trust as grantor. CONCLUSION Under the applicable standard of review, the trial court did not err in granting summary judgment in favor of the Nelson Trust. Accordingly, we overrule the Philipellos' sole appellate issue and affirm the trial court's judgment. NOTES [1] In the Deed, the Nelson Trust states that it is conveying the Property, subject to all previous mineral and royalty reservations and subject to several express exceptions to the conveyance. [2] The Philipellos also argue that the language in the Deed is materially different from the language at issue in the King line of cases discussed above. See Averyt, 717 S.W.2d at 893; King, 192 S.W.2d at 262-63. We agree with this argument, but the inapplicability of this line of cases does not speak to what the result should be in the case under review.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538943/	225 P.3d 597 (2010) Leonard A. RIENDEAU and H. Lorraine Riendeau, Plaintiffs/Appellants, v. WAL-MART STORES, INC., an Arizona Corporation, Defendant/Appellee. Nos. 1 CA-CV 09-0202, 1 CA-CV 09-0203. Court of Appeals of Arizona, Division 1, Department C. February 25, 2010. Leonard A. Riendeau, Yuma, In Propria Persona. H. Lorraine Riendeau, Yuma, In Propria Persona. Thomas, Thomas & Markson, P.C. By Benjamin C. Thomas, Esq., MoniQue A. Simpson, Esq., Phoenix, Attorneys for Defendant/Appellee Wal-Mart Stores, Inc. OPINION KESSLER, Judge. ¶ 1 Plaintiff Leonard Riendeau ("Husband") and Plaintiff H. Lorraine Riendeau ("Wife") separately appeal the superior court's judgment against them. We consolidate their appeals on our own motion pursuant to Arizona Rule of Civil Appellate Procedure ("ARCAP") 8(b).[1] This case presents the issue of whether the tardy filing of a cost bond on appeal from compulsory arbitration renders the appeal jurisdictionally defective. We hold that it does not. FACTUAL AND PROCEDURAL HISTORY ¶ 2 Husband and Wife filed a complaint in the superior court alleging that they each suffered damages as a result of Wife's slip and fall in the gardening section of a Wal-Mart store. The superior court certified the case for compulsory arbitration pursuant to Arizona Rules of Civil Procedure ("Rule") 72-76. The arbitrator awarded Wife $3000 general damages for pain and suffering but denied Husband's claims. The plaintiffs were also awarded $540 in costs. ¶ 3 Husband and Wife filed a notice of appeal requesting a de novo hearing of all issues after the arbitrator issued a final decision but before entry of a final arbitration award. See Ariz. R. Civ. P. 77(a). They filed the bond required by Rule 77(b) more than a month after the filing of the final arbitration award. The superior court denied Wal-Mart's motion to strike the notice 598 of appeal on the ground that the bond was untimely filed.[2] After the superior court later entered judgment against them, Husband and Wife appealed. ANALYSIS ¶ 4 We have an independent duty to examine our own jurisdiction. Abril v. Harris, 157 Ariz. 78, 80, 754 P.2d 1353, 1355 (App.1987). We cannot consider an appeal from the superior court on the merits unless the superior court has jurisdiction. See McHazlett v. Otis Engineering Corp., 133 Ariz. 530, 533, 652 P.2d 1377, 1380 (1982); Ronan v. First Nat'l Bank of Ariz., 90 Ariz. 341, 344, 367 P.2d 950, 952 (1962). We hold that the superior court had jurisdiction to consider the appeal from compulsory arbitration despite the plaintiffs' premature filing of their notice of appeal and untimely filing of their cost bond. ¶ 5 The premature appeal from compulsory arbitration on this record is not jurisdictionally defective and became effective upon entry of the final arbitration award. See Guinn v. Schweitzer, 190 Ariz. 116, 117-18, 945 P.2d 837, 838-39 (App.1997) (citing Barassi v. Matison, 130 Ariz. 418, 421-22, 636 P.2d 1200, 1203-04 (1981)). Plaintiffs filed their notice of appeal in compliance with Rule 77(a) after the arbitrator filed a notice of decision but before the arbitrator filed a final arbitration award. A final award was promptly entered and the notice of appeal vested jurisdiction in the superior court on that date. ¶ 6 Plaintiffs' untimely payment of their cost bond did not deprive the superior court of jurisdiction. Rule 77(b)[3] and Arizona Revised Statutes ("A.R.S.") section 12-133(I) (Supp.2009)[4] provide that filing a notice of appeal is conditioned on the filing of a bond. However, an untimely filing of the bond is not a jurisdictional defect because A.R.S. § 12-133(H) allows the perfection of an appeal "within the time limited by rule of court" and Rule 6(b) authorizes the superior court to extend times for all filings with several exceptions not applicable here. Harmonizing the above rules and statutes, the superior court had discretion to extend the time for perfecting an appeal from compulsory arbitration so the tardy payment of the cost bond is not a jurisdictional defect. ¶ 7 In so holding, we disagree with Varga v. Hebern, 116 Ariz. 539, 570 P.2d 226 (App. 1977). Varga held that a party's failure to timely pay a cost bond is a jurisdictional defect that prevents the party from having an appeal from compulsory arbitration. 116 Ariz. at 540, 570 P.2d at 227. In Varga, the plaintiff filed a notice of appeal from the arbitrator's denial of his claim for damages. Id. The notice of appeal was timely, but the cost bond was untimely. Id. at 540-41, 570 P.2d at 227-28. The plaintiff then learned of the error and moved for leave to make an untimely payment of the cost bond. Id. at 541, 570 P.2d at 228. The superior court denied the motion. Id. at 541, 570 P.2d at 228. The court of appeals held that the superior court could not rely on Rule 6(b) to extend the time to file a cost bond on an appeal from arbitration. Id. at 541, 570 P.2d at 228. The court of appeals reasoned that the plain language of Rule 6(b) does not apply to the requirement to timely file a cost bond to appeal from compulsory arbitration and that the situation was analogous to the then-existing rule that untimely cost bonds 599 for appeals from the superior court to the court of appeals were jurisdictionally defective. Id. at 541, 570 P.2d at 228 (citing Kiefer v. May, 22 Ariz.App. 567, 529 P.2d 721 (1974) superseded in part by ARCAP 8(a) as recognized in ARCAP 8(a) cmt.). ¶ 8 We decline to follow Varga for two reasons. First, Varga is based on an analogy to a rule of civil appellate procedure that has since been superseded. Id. at 541, 570 P.2d at 228 (citing Kiefer, 22 Ariz.App. 567, 529 P.2d 721). Varga relies predominately on an analogy to the rule announced in Kiefer, which held that the failure to timely pay a cost bond in a civil appeal is a jurisdictional defect. Id. at 541, 570 P.2d at 228; Kiefer, 22 Ariz.App. at 569, 529 P.2d at 723. Kiefer is no longer the law. ARCAP 8(a) cmt. Because Varga relies on analogy to outdated law, we decline to follow it. ¶ 9 Second, Varga's refusal to allow an extension of time to file a notice of appeal from arbitration pursuant to Rule 6(b) is at odds with the statutory provision that filing a notice within the time set by the rules of court is sufficient to perfect an appeal. A.R.S. § 12-133(H). Rule 6(b) governs time limits in the superior court and the language of Rule 6(b) is clear. Except for certain enumerated motions, the superior court may enlarge the time to perform any act required by the Rules of Civil Procedure. Ariz. R. Civ. P. 6(b). Thus, the superior court may enlarge the time to file a cost bond in an appeal from compulsory arbitration. CONCLUSION ¶ 10 For the foregoing reasons, we hold that the superior court had jurisdiction over the plaintiffs' appeals from the arbitration award. Thus, we have jurisdiction to review the judgment of the superior court. For the reasons stated in our separately filed memorandum decision in this appeal, we affirm that judgment. CONCURRING: PATRICK IRVINE, Presiding Judge, and MICHAEL J. BROWN, Judge. NOTES [1] The Clerk of this Court is directed to amend the caption of this matter. All future filings shall conform to the caption used in this opinion. [2] As explained more fully in our separate memorandum decision, the superior court later granted Wal-Mart's motion for summary judgment against Husband and dismissed Wife's complaint for failure to prosecute. See ARCAP 28(g) (permitting partial publication of decisions on appeal). [3] "At the time of filing the notice of appeal, and as a condition of filing, the appellant shall deposit with the Clerk of the Superior Court a sum equal to one hearing day's compensation of the arbitrator, but not exceeding ten percent of the amount in controversy. If the court finds that the appellant is unable to make such deposit by reason of lack of funds, the court shall allow the filing of the appeal without deposit." Ariz. R. Civ. P. 77(b). [4] "Upon appeal, at the time of filing the demand for trial de novo, and as a condition of filing, the appellant shall deposit a sum equal to the total compensation of the arbitrators, but not exceeding ten per cent of the amount in controversy, which sum shall be deposited with the county. If the court finds that the appellant is unable to make the deposit by reason of lack of funds, the court shall allow the filing of the appeal without the deposit. . . ." A.R.S. § 12-133(I).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2538960/	347 S.W.3d 66 (2011) STATE of Missouri, Respondent, v. Daniel M. PRIMM, Appellant. No. SC 91427. Supreme Court of Missouri, En Banc. June 28, 2011. As Modified on Denial of Rehearing August 30, 2011. 67 Jessica Hathaway, Public Defender's Office, St. Louis, MO, for Appellant. John W. Grantham, Attorney General's Office, Jefferson City, MO, for Respondent. WILLIAM RAY PRICE, JR., Judge. I. Introduction Appellant Daniel M. Primm appeals his conviction on ten counts of sexual abuse involving his grandniece, T.B. Evidence of uncharged crimes was properly admitted under an exception allowing for evidence of motive and to provide a coherent picture of the events that transpired, and there was sufficient evidence of penetration to support each count of statutory rape. While the judgment is affirmed in all other respects, the cause is remanded for the entry of a nunc pro tunc order correcting the written judgment. II. Facts and Procedural History Appellant was charged in the Circuit Court of St. Louis City on multiple counts of sexual offenses against his grandnieces, T.B. and R.C. T.B. was 14 years old at the time of the abuse, and R.C. was 15 years old. According to their testimony, the Appellant committed sexual acts against the girls at various locations in St. Louis City and St. Louis County. At trial, T.B. testified about four separate incidents of sexual abuse by her great uncle that occurred in the city of St. Louis. The first incident occurred at what T.B. referred to as "the fruit company." It is a parking lot with two warehouses on either side, commonly referred to as St. Louis Produce Row. T.B. testified as follows regarding this particular incident: Q: How did you end up near the fruit company with your uncle? 68 A: Because he was supposed to be taking me to my house, but he had went to the fruit company. Then he was like let's stop here first. Then that was when he went to see if anybody was looking and he parked his car. Q: So he parked his car in front of the fruit company? A: Uh-huh. Q: And what car was he driving that day? A: His moving truck. . . . Q: And what happened after he parked his car at the parking lot of the fruit company? A: He goes to the back and then told me to pull my pants down. Then he pulled his down. . . . Q: And then what happened? A: And then that's when he got on top of me and he started like touching my breasts and all that. Q: And was he touching your breasts with his hands or A: Mouth. . . . Q: And after he touched your breasts with his mouth, what happened? A: Then that's he told me to touch his penis. . . . Q: What happened after that? A: Then that's when he started doing it then. He had that's when he started doing like kissing me and stuff, and then after that he told me to pull my pants back up and then he I got back in the front and he took me to my house. Appellant abused T.B. a second time in the same parking lot at Produce Row, this time in his SUV. According to her testimony, he again told her to pull down her pants and then penetrated T.B.'s vagina with his finger and penis, touched her breasts, and instructed her to touch his penis. Appellant also abused T.B. at her home in the city of St. Louis on two separate occasions when her mother was gone. The first time the acts occurred in T.B.'s bedroom. Specifically, T.B. testified that Appellant came into her bedroom and said "do you want to do it" and then told her to pull down her pants. While T.B. lay on her bed Appellant lubricated his penis with Vaseline and then inserted his penis into her vagina. She testified that he also put his finger in her vagina. On another occasion, Appellant sexually abused T.B. on the dining room floor of her home. T.B. testified that the two of them were alone in the house and that he said "let's do it," had her lay down on the carpet, and got "some Vaseline, put it on his penis and then he had put his penis in my vagina." Appellant's other grandniece, R.C., then testified about two incidents in which Appellant sexually abused her in the city of St. Louis. On one occasion he took her to a hotel on Grand Avenue in St. Louis, where he got a room. According to R.C., in the hotel room Appellant took nude pictures of her and then performed oral sex on her while masturbating. R.C. also testified to a time when she and Appellant where alone at T.B.'s home and he laid her down on the couch, told her she owed him a favor, told her to take off her pants, and performed oral sex on her and had sexual intercourse with her. Appellant was only charged with the acts that occurred within the city limits (at Produce Row, at T.B.'s house, and at the hotel on Grand). However, T.B. and R.C. also testified about sexually abusive acts that occurred at Appellant's house in St. 69 Louis County. Specifically, T.B. testified that the first time Appellant abused her they were alone at his house, and he pulled down her pants, pulled down his own pants, and then "got on top" of her. She also mentioned that there were two other times when Appellant committed sexual acts with her at his home. R.C. also testified about two occasions when Appellant sexually abused her at his home. On one occasion she stated Appellant took her into one of the bedrooms and performed oral sex on her and then had sexual intercourse with her. On another occasion when R.C. was with Appellant in his basement, Appellant asked her if he could "do the same thing that he did before," but after she explained that she was menstruating he asked if he could just touch her butt instead. Both girls also testified that, around the time the abuse began, Appellant commented to them, separately, that they were "getting thick." Their testimony further revealed that after these abusive acts took place, Appellant would give the girls gifts. T.B. testified that Appellant would sometimes give her money after performing these sex acts with her and would instruct her not to tell her mother. R.C. similarly testified that he would give her some money after they had sex, and on one occasion he gave her a bag of marijuana. Pretrial, the defense moved to exclude testimony about uncharged sex offenses alleged to have taken place in St. Louis County as well as testimony that Appellant gave R.C. marijuana. The state opposed the motion, arguing that the evidence about uncharged allegations "goes to the common scheme or plan and the surrounding circumstances of everything" and demonstrated that Appellant "would give the girls things after he abused them." The trial judge overruled the motion, ruling "I will not bar the State . . . from presenting testimony of the entire coherent scheme, even if it slops over into certain events that may have occurred in another jurisdiction." Appellant was charged with 13 separate counts for the acts testified to that occurred within the city limits of St. Louis.[1] He was charged with second-degree statutory rape (Count I), second-degree statutory sodomy (Count II), and second-degree child molestation (Count III) for his actions against T.B. in the moving van while parked at Produce Row; second-degree statutory rape (Count IV) and second-degree statutory sodomy (Count V) for his actions against T.B. in her bedroom at her home; second-degree statutory rape (Count VI) and second-degree child molestation (Count VII) for his actions against T.B. on the dining room floor of her home; and second-degree statutory rape (Count VIII), second-degree statutory sodomy (Count IV), and second-degree child molestation (Count X) for his actions against T.B. in his SUV while parked at Produce Row. The State also charged Appellant with three separate counts for his actions against R.C., including second-degree statutory sodomy (Count XI) for his actions in the hotel room, as well as second-degree statutory rape (Count XII) and second-degree statutory sodomy (Count XIII) for his actions against R.C. on the couch at T.B.'s home. After trial, a jury convicted Appellant of all four counts of second-degree statutory rape, all three counts of second-degree statutory sodomy, and all three counts of 70 misdemeanor second-degree child molestation, relating to the acts Appellant committed against T.B. Appellant was acquitted on the three charges relating to his alleged abuse of R.C. The trial court sentenced Appellant to serve concurrent prison terms of 15 years for each of the statutory rape counts; one year terms for each count of child molestation, to be served concurrently with the rape sentences; and five-year terms for each sodomy count, to be served concurrently with each other and consecutive with the sentences for the rape and molestation counts, for a total of 20 years in prison. Appellant raises two points on appeal. III. Analysis A. Admissibility of Evidence of Uncharged Crimes Appellant first claims the trial court abused its discretion by admitting, over objection, evidence that Appellant had committed uncharged sex crimes against T.B. and R.C. in St. Louis County and that Appellant gave R.C. marijuana. The standard of review for the admission of evidence is abuse of discretion. State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). "This standard gives the trial court broad leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be disturbed unless it is clearly against the logic of the circumstances." Id. It is a well-established general rule that "proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial." State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). The rationale for the general rule of exclusion is to prevent such evidence from being admitted for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged. State v. Ellison, 239 S.W.3d 603, 606 (Mo. banc 2007). However, there are several exceptions under which otherwise inadmissible evidence may be admitted. Such evidence may be admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or (5) the identity of the person charged with commission of the crime on trial. Vorhees, 248 S.W.3d at 588. In addition, evidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged may be admissible "to present a complete and coherent picture of the events that transpired." State v. Thurman, 272 S.W.3d 489, 495 (Mo.App.2008) (quoting State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994)). 1. Evidence of uncharged sexual acts with T.B. Appellant specifically claims as error the admission of T.B.'s testimony about the first time that Appellant touched her inappropriately, which occurred at Appellant's house in St. Louis County. Although Appellant was not charged with any crimes relating to this particular incident, T.B. testified that Appellant pulled down her pants and then pulled down his pants and got on top of her. Numerous cases in Missouri involving sexual crimes against a child have held that "prior sexual conduct by a defendant toward the victim is admissible as it tends to establish a motive, that is satisfaction of defendant's sexual desire for the victim." Thurman, 272 S.W.3d at 495. See also State v. Schaal, 806 S.W.2d 659, 664 (Mo. 71 banc 1991); State v. Graham, 641 S.W.2d 102, 105 (Mo. banc 1982); State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972); State v. Magouirk, 890 S.W.2d 17, 17 (Mo.App.1994); and State v. Douglas, 797 S.W.2d 532, 533 (Mo.App.1990). The evidence of uncharged sexual abuse against T.B. that occurred in St. Louis County was properly admitted. 2. Evidence of uncharged sexual acts with R.C. Appellant similarly claims the trial court erred in allowing R.C. to testify about sexual acts committed against her by Appellant at his home in the county, for which Appellant was not charged. R.C. testified that Appellant took her to a bedroom in his home and performed oral sex on her and then had sexual intercourse with her. R.C. also testified about a time when she was with Appellant in his basement and Appellant said he wanted to have sex with her. When R.C. told him she was menstruating, he asked if he could touch her butt instead. The exception for same child victim testimony also applies to this evidence. See State v. Graham, 641 S.W.2d at 105. While some of the uncharged acts R.C. testified to occurred shortly after the acts for which Appellant was charged, the same rationale applies, as additional sexual misconduct with the victim is probative of Appellant's sexual desire for that individual and, thus, tends to establish a motive for the sexual offenses charged. 3. Evidence that Appellant gave R.C. marijuana Appellant further contends the evidence that he gave R.C. marijuana was inadmissible as evidence of an uncharged crime. However, evidence of uncharged crimes may be admissible to provide the trier-of-fact with a "complete and coherent picture of the events that transpired." State v. Harris, 870 S.W.2d at 810. Evidence that Appellant gave R.C. marijuana was introduced to show that Appellant would give R.C. gifts after committing sexual acts against her in order to dissuade her from disclosing the abuse. Because this evidence was used to explain why T.B. and R.C. did not immediately report the sexual misconduct to the authorities, it was admissible to show the circumstances surrounding the offenses charged and to provide a more complete picture of the crimes. The trial court did not abuse its discretion in admitting this evidence. B. Sufficiency of Evidence on Count I Appellant next contests the sufficiency of the evidence to support his conviction for Count I, charging him with the second-degree statutory rape of T.B. in violation of section 566.034,[2] which provides: A person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age. Count I (along with Counts II and III) related to acts that occurred in Appellant's moving truck. Appellant does not dispute that the State presented sufficient evidence of sexual contact with T.B. in the moving truck to support his convictions for Count II (second-degree statutory sodomy) and Count III (second-degree child molestation). Appellant also does not dispute that he was over the age of 21 and that T.B. was under the age of 17 at the time these events occurred. Appellant contests only the sufficiency of the evidence 72 to prove that he had sexual intercourse with T.B. in the moving truck. When the sufficiency of the evidence is challenged in a criminal case, this Court's review is limited to whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Pike, 162 S.W.3d 464, 473 (Mo. banc 2005). The evidence is viewed in the light most favorable to the verdict, considering all favorable inferences and disregarding all contrary inferences. Id. "Sexual intercourse" is defined as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." § 566.010(4). However, sexual intercourse may be proven by the uncorroborated testimony of the victim, and slight proof of penetration is sufficient. State v. Hill, 808 S.W.2d 882, 890 (Mo.App.1991). Appellant contends the State failed to present evidence of penetration constituting sexual intercourse in the moving truck, as charged in Count I. According to Appellant, T.B.'s testimony regarding the incident in the moving truck did not specify that there was penetration of her vagina by Appellant's penis, as necessary to meet the sexual intercourse element of second-degree statutory rape. Her testimony described the following acts by Appellant in his moving truck while parked at Produce Row: Q: So he parked his car in front of the fruit company? A: Uh-huh. Q: And what car was he driving that day? A: His moving truck. . . . Q: And what happened after he parked his car at the parking lot of the fruit company? A: He goes to the back and then told me to pull my pants down. Then he pulled his down. . . . Q: And then what happened? A: And then that's when he got on top of me and he started like touching my breasts and all that. Q: And was he touching your breasts with his hands or A: Mouth. . . . Q: And after he touched your breasts with his mouth, what happened? A: Then that's he told me to touch his penis. . . . Q: What happened after that? A: Then that's when he started doing it then. He had that's when he started doing like kissing me and stuff, and then after that he told me to pull my pants back up and then he I got back in the front and he took me to my house. The State counters that when T.B. testified that "he started doing it" she was referring to sexual intercourse. First, as the State points out, "doing it" is a commonly used slang for sexual intercourse. See MARK ROGET AND JOHN BARTLETT, BARTLETT'S ROGET'S THESAURUS (1st ed.1996). Second, T.B.'s testimony revealed that Appellant himself would refer to sexual intercourse in those same terms. For example, T.B. testified that when she and Appellant were alone in her bedroom he said "you want to do it," told her to pull her pants down, and then he lubricated his penis and "put it in my vagina." She similarly testified that when she was subsequently alone in her home with Appellant he said "let's do it" and then lubricated his penis and "put his penis in my vagina" while she lay on the dining room floor. In each of these *73 instances it appears clear that T.B. referred to sexual intercourse as "doing it." "There is no magic word necessary to describe penetration." State v. Elmore, 723 S.W.2d 418, 420 (Mo.App.1986). The victim's testimony, viewed as a whole, supports the inference that when T.B. used the term "doing it," she was referring to sexual intercourse. There was sufficient evidence, taken together with the reasonable inferences therefrom, to prove that Appellant had sexual intercourse with T.B. in the moving truck. C. Error in Trial Court's Written Judgment on Count X Appellant asserts that the trial court plainly erred in entering a written judgment that differed from its oral pronouncement. The trial court orally pronounced that: "Courts [I], [III], [IV], [VII], [VIII] and [X] will run concurrent with each other. Counts [II], [V], and [IX] will run concurrent with each other, but will run consecutive to the other counts." The written judgment, however, stated that Count X shall run consecutive to counts I, III, IV, VI, VII, VIII, and X. The State concedes this inconsistency and that the written judgment should be corrected with a nunc pro tunc order, pursuant to Rule 29.12(c).[3] IV. Conclusion While the judgment is affirmed in all other respects, the cause is remanded to the trial court for the entry of a nunc pro tunc order correcting the written judgment. TEITELMAN, C.J., RUSSELL, BRECKENRIDGE, FISCHER and STITH, JJ., concur. NOTES [1] The State entered a notice of nolle prosequi on four additional counts originally charged. One was dropped before trial, and the other three were dropped at the close of the State's case. [2] All statutory references are to RSMo 2000 unless otherwise indicated. [3] Rule 29.12. MISDEMEANORS OR FELONIES HARMLESS ERROR, PLAIN ERROR AND CLERICAL MISTAKES . . . (c) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time after such notice, if any, as the court orders.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540590/	349 S.W.3d 90 (2011) Gregg WILLIAMS, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee. No. 06-11-00012-CV. Court of Appeals of Texas, Texarkana. Submitted: July 27, 2011. Decided: September 1, 2011. 91 Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant. David C. Romness, Everett L. New, Lauren R. Godfrey, R. Kendall Yow, Selim H. Taherzadeh, Brice, Vander, Linden & Wernick, PC, Dallas, for appellee. Before MORRISS, C.J., CARTER and MOSELEY, JJ. OPINION Opinion by Justice CARTER. I. Facts and Procedural Background Gregg Williams, bidding $9,000, was the high bidder at a trustee's foreclosure sale. Unknown to him, the property was encumbered by an alleged first lien of $148,800 also held by the same mortgagee, Nationstar Mortgage, LLC. Litigation ensued. This saga began when Russell Bird and his wife, Shay Bird, purchased a .547-acre tract of real property with a house in Gregg County through a warranty deed with vendor's lien dated March 14, 2007. The deed retained a vendor's lien in favor of Nationstar Mortgage, LLC, securing the payment of two purchase money promissory notesone for $148,800 and another for $37,200both payable to Nationstar. The Birds also executed two deeds of trust, both dated March 14, 2007, each securing one of the notes. The warranty deed with vendor's lien and both deeds of trust were each recorded, apparently simultaneously, 92 in the records of Gregg County, Texas, on March 22, 2007, at 4:36:37 p.m. On March 11, 2008, a notice of trustee's sale was posted by a substitute trustee referencing the $37,200 lien. The notice did not reference the $148,800 note or its deed of trust. On April 1, 2008, the substitute trustee conducted a foreclosure sale, sold the property to Gregg Williams for $9,000, and conveyed the property without any reservation or mention of the other note or deed of trust. Williams later discovered the existence of the $148,800 note and deed of trust on the property. He demanded that Nationstar release the lien, but Nationstar refused and commenced nonjudicial foreclosure under the $148,800 deed of trust. Williams filed suit to quiet title, arguing that he purchased the property free of all other liens, while Nationstar contended that the $148,800 deed of trust had priority over the foreclosed note. After a bench trial, the trial court agreed with Nationstar, and found that the $148,800 lien had priority and remained on the property. Accordingly, the trial court entered a take-nothing judgment in favor of Nationstar. Williams argues that the trial court erred because: (1) the evidence supporting the trial court's finding of priority was legally and factually insufficient; (2) the trustee's deed to Williams conveyed all of Nationstar's rights to the property; and (3) Nationstar's nonjudicial foreclosure of one of the notes discharged the lien against the property on the second note.[1] We affirm the trial court's judgment. II. Legal and Factual Sufficiency of Lien Priority The trial court found that the $148,800 deed of trust was superior to the $37,200 deed of trust. In support of that finding, the trial court noted that: the deed of trust recorded ... at 200706505 securing a promissory note in the amount of $37,200.00 was a second lien and was inferior to the deed of trust recorded at 200706504 securing a promissory note in the amount of $148,000.00 [sic]. Though both deeds of trust were issued to secure the repayment of purchase money on the same subject real property, the deed of trust recorded at 200706505 was recorded second in time and was printed upon a Second Mortgage form. The court also pointed out that the warranty deed conveying the property to the Birds specifically referenced the $148,800 promissory note as the "First Note" and the $37,200 promissory note as the "Second Note." In his first two points of error, Williams contends that the evidence supporting the trial court's finding of priority was legally and factually insufficient. Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). In determining legal sufficiency, we analyze "whether the evidence at trial would enable reasonable and fair-minded people 93 to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); see also Walker & Assocs. Surveying, Inc. v. Austin, 301 S.W.3d 909, 916 n. 4 (Tex.App.-Texarkana 2009, no pet.). We credit favorable evidence if a reasonable jury could, and disregard contrary evidence unless a reasonable jury could not. Wilson, 168 S.W.3d at 827. As long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the jury. Id. at 822. In this case, the judge was the sole judge of witness credibility and the weight given to their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the verdict, indulging every reasonable inference that supports it, we may not disregard evidence that allows only one inference. Id. at 822. In our factual sufficiency review, we consider and weigh all the evidence, and will set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Walker, 301 S.W.3d at 916 n. 4. Generally, different liens upon the same property have priority according to the order in which they are created. World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 668 (Tex.App.-Fort Worth 1998, pet. denied). This rule is known as "first in time is first in right." See AMC Mortgage Servs., Inc. v. Watts, 260 S.W.3d 582, 585 (Tex.App.-Dallas 2008, no pet.); Windham v. Citizens Nat'l Bank, 105 S.W.2d 348, 351 (Tex.Civ.App.-Austin 1937, writ dism'd). In this case, we are faced with the unique fact that the two competing deeds of trust securing the two purchase money promissory notes, as well as the warranty deed retaining a vendor's lien, were recorded in the Gregg County clerk's office on the same day at exactly the same hour, minute, and second.[2] However, the three documents were filed in specific order and received different recording page numbers. The warranty deed was recorded at page number XXXXXXXXX, the $148,800 deed of trust was recorded at page number XXXXXXXXX, and the $37,200 deed of trust was recorded at page number XXXXXXXXX. The $37,200 deed of trust is printed on a "second mortgage" form, and the warranty deed specifically names the $148,800 promissory note the "First Note" and the $37,200 promissory note the "Second Note." Though there is no guiding caselaw regarding these unusual factual circumstances, after considering all the evidence, we find that the evidence supporting the trial court's judgment is within the zone of reasonable disagreement and is not so weak as to be manifestly wrong. Accordingly, we overrule this point of error. III. Williams Takes Title Subject to the Prior Lien In his second point of error, Williams contends that he owns the property free of any lien held by Nationstar because: (1) Nationstar's lien is invalid because the trustee's deed contains warranties of title, and therefore, the deed conveyed all of Nationstar's rights to the property, including its rights under the $148,800 lien; and (2) under Puntney v. Moseley,[3] foreclosing 94 one deed of trust without reserving interest in the other divests Nationstar of all title and interest in the property and vests it in Williams. The validity of a lien on real property is a question of law. Florey v. Estate of McConnell, 212 S.W.3d 439 (Tex.App.-Austin 2006, pet. denied). We review de novo questions of law. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994) ("[Q]uestions of law are always subject to de novo review."). On March 11, 2008, a notice of trustee's sale was posted by the substitute trustee referencing the $37,200 lien. The notice did not reference any other note, lien, or deed of trust related to the property. On April 1, 2008, the foreclosure sale was conducted, Williams was the winning bidder at $9,000, and the substitute trustee conveyed the property to Williams through a substitute trustee's deed. The deed states, in relevant part: hereby bargain, sell and convey unto the said Grantee the said hereinbefore described land and premises, together with all and singular the rights and appurtenances to the same in anywise belonging. TO HAVE AND TO HOLD the said property unto the said Grantee, its successors and assigns forever, in fee simple, and I, the said Substitute Trustee, acting in the capacity and manner aforesaid, by virtue of the power vested in me under the terms of said Deed of Trust, do hereby bind and obligate the said mortgagor, his/her heirs, assigns, executors and administrators to warrant and forever defend all and singular the right and title to said property unto the said Grantee.... The deed failed to reference any other note, lien, or deed of trust related to the property, and also failed to reserve any interest on Nationstar's behalf. A. The Warranty is From the Birds Rather than Nationstar Williams contends that because the deed contained warranty language, it conveyed all of Nationstar's interests in the property to Williams. While the trustee's deed contains warranty language, both the trustee's deed and the deed of trust make clear that the warranties are made by the Birds rather than Nationstar. The trustee's deed states that it binds and obligates the "mortgagor ... to warrant and forever defend ... the right and title to said property unto [Williams]...." The deed of trust states that in the event of foreclosure sale, the "[t]rustee shall deliver to the purchaser Trustee's deed . . . with convenants of general warranty from Borrower." When a borrower executes a deed of trust, the legal and equitable estates in the property are severed. Flag-Redfern Oil Co. v. Humble Exploration Co., 744 S.W.2d 6, 8 (Tex.1987). As the borrower, the Birds retained the property's legal title, and the lender, Nationstar, held two equitable title interests in the property, one for each deed of trust. Id. Because the warranty is from the Birds, who hold only legal title, the warranty language has no bearing on Nationstar's equitable title interests in the property. B. Puntney Is Distinguishable From the Present Case Williams also argues that because Nationstar held two deeds of trust on the property and only foreclosed one, without reserving interest in the other, the trustee's deed conveyed all of Nationstar's interest in the property to Williams, including its interest under the $148,800 deed of trust. A purchaser at a foreclosure sale obtains that title and interest which the trustee has authority to convey. First So. Props., Inc. v. Vallone, 533 S.W.2d 339, 95 341 (Tex.1976); Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex.App.-Corpus Christi 1996, no writ) (citing Durkay v. Madco Oil Co., 862 S.W.2d 14, 17 (Tex.App.-Corpus Christi 1993, writ denied)). A trustee's authority to sell the debtor's property interests is strictly limited to the powers and means enumerated in the deed of trust and those conveyed and required by statute. Winters v. Slover, 151 Tex. 485, 251 S.W.2d 726 (1952); Olivares v. Nix Trust, 126 S.W.3d 242 (Tex.App.-San Antonio 2003, pet. denied). In support of his argument, Williams relies on Puntney, 237 S.W. 1116, for the proposition that "a trustee's deed has the effect of divesting the title of the mortgagor and vesting it in the purchaser." In Puntney, when Bean failed to pay a lien against the property, Moseley, the holder of the note and deed of trust, foreclosed and sold the property through a trustee, Muse. Id. at 1117. The purchaser, Puntney, paid with a check, and received a trustee's deed. Id. However, the check was refused for insufficient funds, and the owner and trustee filed suit against Puntney, claiming that a vendor's lien arose at the time of sale and that they were entitled to foreclose on the original deed of trust lien as well as the amount of Puntney's check. Id. at 1118. In response to Puntney's claims on appeal that Bean was a "necessary party to a foreclosure of the lien to secure payment of the check," the trial court held that a vendor's lien arose at the foreclosure sale, that Moseley or Muse could foreclose on said vendor's lien, and that Bean was not a necessary party because the trustee's sale had the effect to "divest the title to the land out of Bean and vest it in Puntney, and to pay Bean's obligation" on the original debt because the trustee's sale was, in effect, a sale by Bean's agent. Id. Puntney does not support Williams' argument because the Puntney creditor only held one deed of trust securing one debt and another lien arose at the time of the foreclosure sale. Here, the mortgagee holds two separate notes and two deeds of trust and it foreclosed on only one of them. In Puntney, the remedies through the vendor's lien extinguished Bean's obligations under the original deed of trust because the vendor's lien arose from the foreclosure sale of the original deed of trust. See id. Foreclosure does not terminate interests in the foreclosed real estate that are senior to the mortgage being foreclosed. Conversion Props. v. Kessler, 994 S.W.2d 810, 813 (Tex.App.-Dallas 1999, pet. denied) (citing RESTATEMENT (THIRD) OF PROPERTY: Mortgages § 7.1 (1997)). In fact, the general rule is that the successful bidder at a junior lien foreclosure takes title subject to the prior liens. Id. (citing W. MIKE BAGGETT, TEXAS FORECLOSURE LAW & PRACTICE § 2.69 (1984); 59 C.J.S. Mortgages § 549 (1998); 59A C.J.S. Mortgages § 601 (1998)). The purchaser takes the property charged with the primary liability for the payment of the prior mortgage and must therefore service the prior liens to prevent loss of the property by foreclosure of the prior liens. Id. at 813. As per our rulings above, the $148,800 deed of trust is a superior lien. It is undisputed that the deed to the Birds, mentioning two liens, and the $148,800 deed of trust were both of record at the time of the foreclosure sale and that Williams failed to perform any title search whatsoever. Therefore, Williams placed his bid at the foreclosure sale with constructive notice of a superior lien. We overrule this point of error. IV. Foreclosure of Second Lien Did Not Extinguish the First Lien In his final point of error, Williams argues that the trial court erred 96 by failing to find that the nonjudicial foreclosure sale of one note discharged the second note's lien against the property. In support of this argument, Williams relies upon Vieno v. Gibson, and its progeny. That line of cases is distinguishable. In Vieno v. Gibson, Yoakam sold a tract of land to Gibson and Rose, who executed two promissory notes payable to Yoakam or the bearer, secured by a single vendor's lien retained in the deed. Vieno v. Gibson, 20 S.W. 717, 718 (Tex.Civ.App.1892). Yoakam transferred the notes to Vieno. Id. When the debtors failed to pay the first note, Vieno filed for, and received, a judgment, and he foreclosed his vendor's lien on the real property. By court order, the property was sold at a judicial foreclosure sale. Later, Vieno attempted to foreclose his vendor's lien on the second note. Id. The Texas Court of Civil Appeals held that where two notes are of "equal dignity" and held by the same party, there could be only one foreclosure sale because the creditor abandoned the lien on the second note by failing to take measures to reserve it. Id. In Brown v. Canterbury, the Texas Supreme Court cited and applied Vieno. Brown v. Canterbury, 101 Tex. 86, 104 S.W. 1055 (1907). A vendor's lien was foreclosed on and the property sold through a judicial sale, and the court held that the purchaser took the title of the original debtors as well as the legal title held by the creditor even though the original debtors had conveyed and encumbered part of the land prior thereto. In Alston v. Piper, 34 Tex. Civ. App. 589, 79 S.W. 357 (1904), the court cited Vieno, and expanded the ruling somewhat. Alston was the owner and holder of two notes, one note was secured by a deed of trust, and the other note was secured by a vendor's lien. Id. at 359. Alston brought separate suits on these notes in the district court, and prosecuted both to final judgment, together with a foreclosure of the respective liens given to secure the notes. A foreclosure sale was held "under the first or prior lien." Id. at 360. When Alston attempted to later foreclose on another lien he held on the same property, the court noted that "[i]n ascertaining the character of property and the interest therein to be sold, [the purchaser at the foreclosure sale] was not required to look beyond the judgment and order of sale under which he bought," and held that: when a person holds two claims secured by liens on the same land, and a foreclosure of one of said liens is obtained by him, and the property sold thereunder, the purchaser takes the land discharged of the other lien, and acquires the title of both plaintiff and defendant in the judgment. This is true, although the purchaser pays less than the actual value of the land, and has notice at the time of his purchase of the existence of such other outstanding lien in favor of the judgment creditor, at whose instance the sale is made. Id. at 358 (citations omitted). In Vieno and Brown, the debt or debts were secured by a single vendor's lien, and absent any reservation of other debt interests, foreclosure of the lien extinguished, or rendered unsecured, any remaining obligations. Here, each promissory note is secured by a separate, recorded deed of trust, and only one of them was foreclosed, leaving the $148,800 lien still secured by the remaining deed of trust. The creditor in Alston foreclosed on a prior, superior lien, thereby abandoning or extinguishing the secondary liens. This case is distinguishable from Alston because, as per our ruling in this case, Nationstar foreclosed on the inferior lien, leaving the superior lien intact. Further, the Vieno cases are all foreclosures through judicial sale, *97 where an election of remedies must occur, while in this case, the sale was via nonjudicial sale. Therefore, we overrule this point of error. We affirm the judgment of the trial court. NOTES [1] In his brief, Williams also argued that the trial court's prejudgment letter did not constitute findings of fact and conclusions of law. During oral argument, Williams explicitly abandoned that argument, and therefore, we do not address it. [2] Nothing in the record indicates exactly how this is possible. Similarly, there is nothing in the record indicating that the Gregg County clerk's office is equipped with a flux capacitor or other time-altering device. [3] 237 S.W. 1116 (Tex.Civ.App.-Amarillo 1922, writ dism'd).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/488329/	818 F.2d 871 Ortv.White 85-7059 United States Court of Appeals,Eleventh Circuit. 5/5/87 M.D.Ala., 813 F.2d 318	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2539205/	350 S.W.3d 434 (2011) James Demetrius MULLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. No. 2010-SC-000263-MR. Supreme Court of Kentucky. September 22, 2011. 436 Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant. Jack Conway, Attorney General, William Bryan Jones, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee. Opinion of the Court by Justice NOBLE. Appellant, James Demetrius Mullins, was convicted of murder, tampering with physical evidence and persistent felony offender in the first degree. Appellant was sentenced to 35 years in prison. Appellant's conviction for murder is affirmed and his conviction for tampering with physical evidence is reversed. I. Background On the day of Dominic Faulkner's death, he and T.J. Cayson were dropped off near Whitney Avenue in Lexington by Faulkner's girlfriend so they could buy marijuana. Afterwards, he and Cayson got a ride from an unknown man in a white van and pulled up to 742 Whitney Avenue. Several men were in the yard: Appellant, George Waide, Antwuan Clark, Quincino Wade, and Anderson Porter. Porter testified that Faulkner got out of the white van and walked over to him where the two talked. Shortly thereafter, Porter heard a gunshot and saw Faulkner's face freeze and his body jerk back. Porter realized Faulkner had been shot and ran to his car. As he got inside, Appellant jumped in the car with him and said "I'm sorry. Drive." Porter testified that Appellant had a shiny object in his hand, but he could not say for certain whether it was a gun. Porter drove to the corner where Appellant jumped out of the car. This version of events was corroborated by T.J. Cayson, who testified that he saw Appellant shoot Faulkner with a black revolver and then jump into a black Chevy Cobalt with Anderson "Ace" Porter, who drove away. Ashley White testified that, while smoking crack cocaine on Whitney Avenue, she saw Appellant shoot Faulkner in the back three times. She left the scene and did not call the police. White testified that, two days later, she saw Appellant and he told her that he shot Faulkner. White stated that Appellant had shot Faulkner because he had stolen $10,000 from Appellant. According to Shawn Ogden, he and Appellant had arranged to meet near Whitney Avenue in the early afternoon on the day of the shooting, but as Ogden was driving to meet Appellant, he heard sirens. He called Appellant and they agreed to meet at Jacobsen Park instead. There, Ogden purchased and smoked crack cocaine with Appellant. Appellant told him that he would be leaving town and might be gone for awhile. Appellant said, "I'm tired of niggers thinking they can get over on me. I'm not gonna let people eat for free." Ogden further testified that he saw Appellant at Jacobsen Park again a couple 437 of days later and asked him about Faulkner. Appellant allegedly responded, "I told you I'm not gonna let these people get over on me. I'm tired of `em. Fuck it. I would've put two more in him if I could've," Over Appellant's objections, Ogden was asked at trial if he had ever seen Appellant with a gun. Ogden claimed that he saw a large silver revolver, either a .357 or a .44, in the passenger seat of Appellant's car in the week prior to the shooting. Dr. Greg Davis, the medical examiner, confirmed that the cause of death was multiple gunshot wounds. The bullets he extracted were characterized as "medium caliber," meaning greater than .25 caliber, but less than .50 caliber. Lawrence Piltcher, a forensic science specialist with the Kentucky State Police, testified that all three bullets were fired from the same gun and that they were .44 caliber, hollow-point bullets. No gun was submitted for analysis in this case, because the police never found one. Piltcher testified the bullets could possibly have been fired from either Smith & Wesson or Taurus revolvers, but could not say conclusively. Detective Tim Ballinger of the Lexington Police Department Forensic Services testified that no shell casings or gun were noted at the scene. Kim Brown testified that, prior to the shooting, she saw Appellant pass by in a car and make a gesture with his hand and finger like a gun toward Faulkner, although there was a crowd of people around and she could not say the gesture was specifically at Faulkner. She testified that Faulkner and Appellant were both at her house days or weeks before the shooting and had words with each other. Appellant chose not to testify at trial, but the prosecution played a taped interrogation conducted on June 17, 2008. In his interview, Appellant admitted being on the porch of the house at 742 Whitney Avenue at the time of the shooting, but denied any involvement. He also denied there was any bad blood between him and Faulkner. According to Appellant, he was sitting on the porch, smoking marijuana when a white minivan pulled up and Faulkner hopped out. Faulkner was standing in the street talking when a maroon Lincoln pulled up and shots rang out. Appellant then ran from the scene. When told by detectives that eyewitnesses were implicating him as the shooter, Appellant replied, "That's not possible." During this same interview, Appellant stated that it was not his job to turn himself in and said "I don't know what happened. I was getting high." The jury convicted Appellant of murder and tampering with physical evidence. After the penalty phase, wherein the jury found Appellant to be a persistent felony offender in the first degree, the jury recommended a sentence of twenty-five years for the murder conviction, and five years enhanced to ten years for the tampering with physical evidence conviction. The jury further recommended that the sentences be served consecutively for a total of thirty-five years. Consistent with the jury's recommendation, Appellant was sentenced to thirty-five years. Appellant appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). II. Analysis Appellant James D. Mullins was convicted in the Fayette Circuit Court of murder and tampering with physical evidence. The jury found Appellant to be a persistent felony offender in the first degree. On appeal, Appellant raises four issues. First, he argues that the trial court denied him due process by improperly instructing the jury on the lesser included offense of first-degree manslaughter under the theory 438 of intent to cause serious physical injury rather than under the theory of extreme emotional disturbance. Second, he argues that the prosecutor committed misconduct by materially misquoting Appellant's statements to detectives in her closing arguments and by characterizing his behavior as "uncontrollable." Third, he argues that the trial court denied him due process by allowing testimony regarding a handgun seen in Appellant's car several days prior to the shooting. Last, he argues that the trial court denied him due process by failing to direct a verdict of acquittal on the charge of tampering with physical evidence. For the reasons set forth below, Appellant's conviction for murder is affirmed and his conviction for tampering with physical evidence is reversed. A. Absence of Extreme Emotional Disturbance Instruction The jury in this case was instructed on manslaughter in the first degree under a theory of intent to cause serious physical injury. Appellant argues that this instruction was not supported by the evidence and that the jury should have been instructed on manslaughter in the first degree under a theory of extreme emotional disturbance instead. Following the close of the Commonwealth's case, there was a lengthy discussion regarding jury instructions. When asked by the trial judge whether a first-degree manslaughter instruction was warranted, the Commonwealth responded that they wanted the instruction included. Appellant's counsel stated that Appellant did not want any lesser-included offenses in the instruction. Appellant's counsel stated that he disagreed with Appellant on this, but that because Appellant did not want them, he would not ask for any. Appellant's counsel further stated that, due to his position on the matter and to protect the record, he would not object to the Commonwealth's request for the first-degree manslaughter instruction. The trial judge then stated that there was sufficient proof for the manslaughter charge due to evidence that Appellant had been "ripped off by Faulkner. The trial judge acknowledged that Appellant did not want the instruction, but that it would be included at the Commonwealth's request. There was then discussion regarding what language the first-degree manslaughter instruction would include. At this point, Appellant's counsel stated, "There hasn't been any evidence of the EED." The trial judge then clarified everyone's understanding of the instructions and asked if anyone had comments. Neither the Commonwealth nor Appellant's counsel responded. The trial judge then discussed the definitions that would be included in the instructions. At this time, Appellant's counsel clearly stated, "EED is out." After discussing the remaining definitions, Appellant's counsel stated he had no objection to the instructions. This Court finds that this issue was not preserved by Appellant at trial. Appellant has requested review for palpable error under RCr 10.26. However, a review for palpable error is not appropriate because Appellant waived his claim to cite this particular issue as error. The circumstances surrounding the failure to give the EED instruction in this case are similar to those in the recently decided case, Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky.2011). Quisenberry contended that the evidence at his trial failed to support a conviction for facilitation. Id. at 37. However, Quisenberry himself had requested the facilitation instruction. Id. The Court found that Quisenberry had waived his claim for appeal on the basis of his express representation to the trial court that a 439 facilitation instruction was warranted based on the evidence. Id. at 38. In Appellant's case, his trial counsel not only failed to object to the given instruction, but, in fact, made several emphatic representations to the trial court that his client did not want any lesser-included offense instructions and, more importantly, that there was no evidence in the record to support an EED instruction. As stated in Quisenberry, "these alleged errors, therefore, were not merely unpreserved, they were invited." Id. at 37. The Court noted that other courts have distinguished "forfeited errors, which are subject to plain [or palpable] error review, and waived errors, which are not . . . [and] ha[ve] held that invited errors that amount to a waiver, i.e., invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review." Id. at 38 (citing United States v. Perez, 116 F.3d 840 (9th Cir.1997)). Therefore, "[g]enerally, a party is estopped from asserting an invited error on appeal." Id. at 37 (citing Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). Because Appellant specifically asked that no lesser included instruction be given and asserted multiple times that the evidence did not support an EED instruction, he "waived his right to claim on appeal" that he was entitled to the instruction. Id. B. Prosecutorial Misconduct Appellant alleges as error a statement made by the Commonwealth during closing arguments, which he claims was prosecutorial misconduct. Appellant argues that the Commonwealth materially misrepresented what Appellant had said in his interview with police and that this was prejudicial because it supported the Commonwealth's theory of the case. Appellant argues that this was a continuation of the Commonwealth's flagrant misconduct in her closing argument that began when she, in Appellant's view, commented on his refusal to testify. Counsel has wide latitude during closing arguments. Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky.2006). The longstanding rule is that counsel may comment and make all legitimate inferences that can reasonably be drawn from the evidence presented at trial. East v. Commonwealth, 249 Ky. 46, 60 S.W.2d 137, 139 (1933). This Court has explained the appropriate standard of review for prosecutorial misconduct during closing arguments as follows: "We reverse . . . only if the misconduct is `flagrant' or if each of the following are satisfied: (1) proof of defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with sufficient admonishment." Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky.2002). Additionally, this Court "must always consider these closing arguments as a whole and keep in mind the wide latitude we allow parties during closing arguments." Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky.2009) (quoting Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky.2000)) (other quotation marks omitted). With these general principles in mind, the Court turns to the statements themselves. Appellant alleges that the prosecutor committed an error by stating in her closing argument that Appellant claimed "Dominic took three times as much from me as that other guy, that Cameron Walsh guy." The prosecutor's actual statement was as follows: "We don't have to prove motive, but we can infer. We know that Dominic `ripped off Chief Egg. [Appellant] said `Dominic took three times as much from me as that other guy.'" At this point, Appellant objected and was overruled by the trial judge. The trial judge noted at 440 the bench that each side could argue as to their recollection of the case. There is nothing to indicate a "flagrant," deliberate, or calculated misstatement by the Commonwealth. While it does appear there could have been a misstatement of the evidence, the language toward the end of Appellant's taped statement to police is confusing. Appellant stated: Last September, last August or something, a little young man named Chase Downey ripped me off. I mean, he's still walking around. I mean, I'm not going to do nothing to nobody. I'm twenty-nine years old with kids, but this man ripped me off. And I know for a fact he ripped me off and he's still walking around, walk past me everyday. And for what they saying [Dominic Faulkner] did, that nigger took three times as much from me than whatever they saying that he took from whoever. It is difficult to follow who is being referred to in the latter part of the statement. From the entire context, it appears that Appellant was stating that Downey had taken three times the amount from him that Faulkner had and was still walking around, as an explanation for why he either had no motive to kill Faulkner or at least had a much greater motive to kill someone else. But taken by itself, the last sentence appears to say that Faulkner took three times as much money, as argued by the prosecutor. This is the less logical interpretation from the context, unless Appellant is assumed to have made a ridiculous statement (that is, trying to explain away his motive by demonstrating that he had a greater motive to kill the person who was actually shot). The Commonwealth even conceded that the statement is open to different interpretations and that it is not clear who is being referred to. This Court agrees that the evidence could have been construed either way. Such claims about the evidence, even though likely mistaken, were not flagrant and "are more accurately characterized as interpretations of the evidence." Tamme v. Commonwealth, 973 S.W.2d 13, 39 (Ky. 1998). The trial judge told the parties that each side could argue as to their recollection of the evidence and this Court finds no error in the Commonwealth's recollection. Appellant cited the Commonwealth's statement regarding his failure to testify not as error, but to bolster his argument of their flagrant misconduct. At the beginning of the Commonwealth's closing argument, the prosecutor stated: We are not going to be able to stand up here and answer all of your questions about what happened the morning Of the murder, during the homicide, or the days that followed after the murder, but you have to remember the reason we can't is because he took off, he is the one who holds all of those answers, no one else. Appellant's trial counsel immediately objected and the trial judge called both sides to the bench. Appellant's trial counsel asked for an admonition. The trial judge said he had already instructed the jury as to a non-testifying defendant, but also expressed great concern that the prosecutor's statements could be construed as referring to Appellant's decision not to testify. The trial judge then admonished the jury that the fact Appellant had not testified could not be held against him. The Commonwealth then clarified that they were referring to Appellant leaving the scene of the crime, not his failure to testify. This Court shares the concerns of the trial court with regard to the Commonwealth's statements. However, the Commonwealth's 441 statement was not flagrant, nor does it meet the alternative requirements for a reversal under Barnes. While Appellant's counsel made a timely objection, as required under Barnes, the trial court sufficiently admonished the jury. This alone would prevent reversal under Barnes, 91 S.W.3d at 568. That the evidence of Appellant's guilt was "overwhelming" also bars reversal under Barnes. Id. The jury heard testimony from eyewitnesses on the scene who saw Appellant shoot Faulkner, from witnesses who stated Appellant confessed to them; that Appellant was the only one on the scene with a gun; that the bullets extracted from Faulkner were approximately the caliber of the gun that Appellant had been seen with in the week prior to the murder; that Appellant ran from the scene with a shiny object in his hand; that all three bullets extracted from Faulkner were shot from a .44 caliber gun; that Appellant made threatening gestures to Faulkner prior to the murder; and that Appellant and Faulkner had words with one another prior to the shooting. This is more than sufficiently overwhelming evidence for the jury to have found Appellant guilty of murder. Accordingly, there was no error. C. Admissibility of Handgun Testimony Appellant also argues that the trial court improperly allowed testimony regarding a handgun seen in his car several days prior to the shooting. KRE 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." All relevant evidence is admissible provided it is not more prejudicial than probative under KRE 403. This Court has previously stated that the admissibility of testimony about a defendant's possession of a firearm was an issue of relevancy. Major v. Commonwealth, 275 S.W.3d 706, 713 (Ky.2009) (hereinafter Major II). Factors such as threats, the proximity of threats to the crime, the availability of weapons at the crime scene and the similarity of the crime to the threats were enumerated as factors to consider. There must be a "sufficient nexus, or relevancy, to the means and manner" of the death. Id. Specifically, this Court has upheld the admission of evidence of a gun based on testimony that it was "the same size and shape as the weapon used in the commission of the offense." Major v. Commonwealth, 177 S.W.3d 700, 710 (Ky.2005) (hereinafter Major I) (citing Sweatt v. Commonwealth, 550 S.W.2d 520 (Ky.1977)). As previously discussed, there was testimony at Appellant's trial that he exhibited threatening behavior toward Faulkner in the days prior to the shooting; specifically, he made a hand gesture meant to imitate a shooting gun and also had words with Faulkner prior to the shooting. There was testimony that .44 caliber bullets, which could have come from a revolver, killed Faulkner. The fact that no shell casings were found at the scene, coupled with the testimony that Appellant was seen with a gun of this type prior to the shooting, gives weight to the Commonwealth's assertion that Appellant shot Faulkner. Thus, the handgun testimony meets the test for relevancy under KRE 401 and there is a sufficient nexus under Major II for the trial court to have admitted the testimony. This was not the sort of evidence of a gun "with no relation to the crime" that was condemned in Major I. See Major I, 275 S.W.3d at 713; see also 442 Major II v. Commonwealth, 177 S.W.3d at 710. Therefore, there was no error. D. Directed Verdict of Acquittal Finally, Appellant claims that the evidence at trial was insufficient to support a conviction for tampering with physical evidence and that he should have been granted a directed verdict. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be unreasonable for a jury to find guilt . . . ." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). The test this Court must employ, therefore, is whether the jury was clearly unreasonable in convicting Appellant of tampering with physical evidence, given the evidence introduced at trial. KRS 524.100 provides: A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he: (a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; or (b) Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered. It is the Commonwealth's position that Appellant was guilty of tampering based on evidence he removed the murder weapon from the crime scene. The Commonwealth cites testimony by eyewitnesses who established that Appellant was the shooter; that Appellant got into Porter's car immediately thereafter and told him to "drive"; that Appellant had a shiny object in his hand when he got into Porter's car; that three bullets were removed from the victim, and that these bullets were possibly fired by a revolver; that the Appellant was seen with a revolver days before the murder; that no shell casings or gun were found at the scene; and that a police search at the scene several months after the shooting failed to turn up a gun. Appellant's trial counsel argued that there was no evidence Appellant had destroyed, mutilated, removed, or altered any evidence in the case and that the fact that the gun was never found was not enough to support the tampering charge. Appellant further argued that the only evidence linking Appellant to the crime came from Cayson and Porter, one describing the gun as black and the other as silver. Appellant noted that the detectives did not attempt to search for the gun until five months after the crime. In the present case, while the evidence concerning the gun was not conclusive, it was enough for a jury to infer that Appellant shot Faulkner with a gun and then carried that same gun with him to get into Porter's car. See Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky.1999). The gun used in the shooting was never found. The evidence presented indicates that the gun was on Appellant's person from the time Faulkner was shot until he entered Porter's car and told him to drive away, and nothing more. Appellant's walking away from the scene with the gun is not enough to support a tampering charge without evidence of some additional act demonstrating an intent to conceal. Cf. Commonwealth v. Henderson, 85 S.W.3d 618 (Ky.2002). In Henderson, the Court addressed the question of whether the defendant had tampered with evidence when, during a police chase, he removed money from the purse he had stolen and placed it in the 443 insole of his shoe before throwing the purse out the window. Id. at 619. Although it wasn't addressed in Henderson, this Court has stated that the "taking away" element of larceny is established "merely by showing the thief had control of the stolen property for a second." Smallwood v. Commonwealth, 438 S.W.2d 334, 336 (Ky.1969). Therefore, the defendant in Henderson was guilty of theft, but he would not have been guilty of tampering merely by leaving the scene with the purse. Additional evidence was required to establish that the defendant had tampered with evidence under KRS 524.100, aside from his merely leaving the scene with the purse. The evidence presented to support the charge was that the defendant had removed money from the purse while fleeing police and had put this money into the insole of his shoe. The Court of Appeals in Henderson held that the defendant did "not impair [the evidence's] verity or availability in an official proceeding because it was always on his person and the Commonwealth did not prove that there was any impairment of availability." 85 S.W.3d at 620 (quoting Court of Appeals' opinion) (citation omitted, alteration in original). This Court reversed, stating that while "some people do carry money in their shoes ..., they do not ordinarily carry it in the insole of their shoes." Id. The Court upheld the tampering charge because of the additional step of putting the evidence in an unconventional place, which manifested an intent to make it unavailable. Id. The fact that evidence remains on the "person" is relevant, but not dispositive. Where the evidence is ultimately located matters. Id. Specifically, Henderson held that whether the evidence is found in a conventional rather than an unconventional location is important in the determination of whether there was evidence of tampering. Id. Moreover, pursuit by the police may be required for a conventional placement of the evidence to become tampering. Id. Therefore, "removal" of evidence under KRS 524.100 must be construed differently for different defendants. If a defendant walks away from the scene in possession of evidence, this does not necessarily lead to a violation of the statute. When a crime takes place, it will almost always be the case that the perpetrator leaves the scene with evidence. If this amounted to a charge of tampering, the result would be an impermissible "piling on." Instead, intent to impair availability of evidence, believing that an official proceeding may be instituted, is the standard required under KRS 524.100. Where the person charged with tampering is not a defendant, it is easier to infer that by destroying, concealing, mutilating, removing, or altering evidence, there is intent to impair its availability. However, where the person charged is the defendant, it is reasonable to infer that the primary intent when a defendant leaves the scene of a crime is to get himself away from the scene and that carrying away evidence that is on his person is not necessarily an additional step, or an active attempt to impair the availability of evidence. Here, it can be inferred that Appellant was holding the gun when he shot Faulkner and then ran to Porter's car and got in. Clearly, Appellant was attempting to flee the scene. The fact he carried the gun away from the scene with him was merely tangential to the continuation of that crime. However, this Court must still determine the charge's veracity based on where the gun was ultimately found or based on evidence of an additional act. *444 Here, there was no evidence of an intentional act of concealment, or even of flight from the police. Admittedly, the gun was never found, but that does not mean it was placed in an unconventional location. There are many "conventional" locations where the gun could have been found, specifically, Porter's vehicle where Appellant was last seen with the gun, or Appellant's residence. But there is no evidence in the record to indicate that police searched either of these places. The Commonwealth states in its brief: "The recovery of the gun that was used to shoot Dominic Faulkner so it could be tested is of obvious significance to this case." This is precisely why it is troubling that the police only searched for the gun at and around the crime scene, and that this search took place five months after Faulkner's murder. There could have been no reasonable expectation that the gun would be found there at that late date, and Appellant clearly had nothing to do with that search. The Commonwealth cannot bootstrap a tampering charge onto another charge simply because a woefully inadequate effort to locate the evidence was made by the police. It is often the case that evidence will not be found. However, it is insufficient to bring a charge of tampering based solely on the fact evidence was not found when there were insufficient steps to locate that evidence, and there is no proof that the defendant acted with the intent to prevent evidence from being available at trial. This is not to say that failure to locate evidence means that a defendant cannot be charged and convicted of tampering when there is evidence of an active attempt by the defendant that demonstrates intent to impair the availability of the evidence. See Commonwealth v. Nourse, 177 S.W.3d 691 (Ky.2005) (throwing bullet casings down a drain); Williams v. Commonwealth, 336 S.W.3d 42 (Ky.2011) (swallowing a bag of cocaine). Because there is insufficient evidence of any intent to conceal, no reasonable jury could have found Appellant guilty of tampering with physical evidence. Appellant's conviction for tampering with physical evidence, therefore, is reversed. Conclusion For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed as to Appellant's conviction for murder, reversed as to Appellant's conviction for tampering with physical evidence, and remanded to the trial court for entry of an amended judgment in accordance with this opinion. All sitting. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539522/	719 F. Supp. 2d 328 (2010) Joseph MEJIA, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant. No. 09 Civ. 9656(AJP). United States District Court, S.D. New York. June 28, 2010. 329 Joseph Mejia, Bronx, NY, pro se. John E. Gura, Jr., U.S. Attorney's Office, New York, NY, for Defendant. OPINION AND ORDER ANDREW J. PECK, United States Magistrate Judge: Pro se plaintiff Joseph Mejia brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("the Commissioner") denying Mejia Disability Insurance Benefits and Supplemental Security Income Benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 13: Am. Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 6.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is GRANTED. FACTS Procedural Background On November 2, 2007, Mejia applied for both Social Security Disability Insurance Benefits and Supplemental Security Income Benefits, alleging that he was disabled since October 16, 2007. (See Dkt. No. 11: Administrative Record Filed by the Comm'r ("R") 74-78, 98.) In his application, Mejia claimed to suffer from "heart failure" and "high blood pressure." (R. 28, 98; Dkt. No. 2: Compl. ¶ 4.) On March 12, 2008, the Social Security Administration ("SSA") conducted an initial review of Mejia's claim and found that he was not disabled. (R. 40-43.) On May 13, 2008, Mejia requested an administrative hearing. (R. 45-46, 191-92.) Administrative Law Judge ("ALJ") Robin J. Arzt conducted a hearing on May 14, 2009. (R. 23-38.) Mejia appeared at the hearing without an attorney. (R. 23, 25-26.) On May 28, 2009, ALJ Arzt issued a written decision finding that Mejia was not disabled. (R. 6-22.) ALJ Arzt's decision became the Commissioner's final decision when the Appeals Council denied Mejia's request for review on September 2, 2009. (R. 1-3.) The issue before the Court is whether the Commissioner's decision, that Mejia was not disabled between October 16, 2007 and May 28, 2009, is supported by substantial evidence. The Court finds that it was. Non-Medical Evidence Mejia was born on March 18, 1960 and was forty-seven years old at the alleged onset of his disability. (R. 28.) Mejia attended high school until the eleventh grade; he does not have a GED. (R. 29, 118.) Between 1999 and 2007, Mejia held a number of jobs, including mail room clerk and radio dispatcher. (R. 29, 101-05, 114.) Mejia's longest running and most relevant position was as a supervisory shipping and receiving clerk for a production editing company. (R. 29-32, 101-02.) During his seven years with the company, Mejia engaged in semi-skilled, exertionally heavy labor, lifting and transferring boxes weighing 50 to 100 pounds each. (R. 29-31, 102, 114.) Mejia also had limited supervisory duties over two other clerks in his department. (R. 30, 102, 114.) The company terminated Mejia when it went out of business on August 13, 2007, and Mejia has been unemployed ever since. (R. 29, 32, 113.) In October 2007, Mejia's dentist took Mejia's blood pressure and discovered that it was elevated. (R. 32, 148.) After an electrocardiogram, the dentist referred 330 Mejia to Dr. Michael Huber for further testing. (R. 28, 32, 141, 148-49.) According to Mejia, Dr. Huber stated that despite "good" arteries, Mejia's heart was "messed up" because it was "bigger than it's supposed to be." (R. 35-36.) Mejia testified that Dr. Huber diagnosed him with "heart failure" resulting from his "ingrown heart." (R. 35.) In his November 2007 application for Social Security Disability Benefits, Mejia identified his daily activities as reading, watching television, attending doctors' appointments, caring for his personal hygiene, cleaning and ironing. (R. 91-94, 128.) Mejia spent thirty to sixty minutes cooking each day (R. 92), and spent forty-five minutes shopping at least once a month (R. 94). Mejia left his apartment daily and could walk up to thirty blocks. (R. 93-94, 96.) His social activities, which included playing cards, listening to music and attending church once a week, were unchanged. (R. 95, 174.) Indeed, the only activity Mejia stated that he was unable to do following his diagnosis was "work." (R. 91.) In January 2008, however, Mejia began experiencing shortness of breath, which prevented him from walking more than one and one half blocks, standing for more than twenty minutes and carrying a gallon of milk one block. (R. 27, 33, 36-37.) His shortness of breath also routinely interfered with his sleep. (R. 27, 33.) Mejia further testified that, although he experienced periodic chest pain prior to October 2007, the chest pains became more severe following his diagnosis, occurring at least once a week and lasting for up to 45 minutes. (R. 34-35.) Although Mejia experienced back pain when he bent over, he could sit, squat and use fine motor skills without incurring any symptoms. (R. 37.) Mejia testified that Dr. Huber prescribed Lipitor and other medication to "keep [Mejia's] arteries clean" and prevent him from "catching a stroke." (R. 36.) Mejia reported that the medications improved his condition and did not produce any adverse side effects. (R. 35.) His symptoms, however, did not abate. (R. 35.) Medical Evidence Treating Physicians Mejia's dentist conducted a physical examination in preparation for a tooth extraction and found that Mejia's blood pressure was elevated to 181/108. (R. 148.) The dentist referred Mejia to BronxCare Ogden Family Medical Center ("BronxCare"), where a physical examination performed on October 12, 2007 revealed that Mejia's blood pressure was 170/100. (R. 148.) The BronxCare examining physician diagnosed Mejia with "new onset hypertension" and prescribed a treatment regimen of hydrochlorothiazide and aspirin. (R. 148-49.) An EKG performed at Bronx Lebanon Hospital on October 12, 2007, the same day as Mejia's physical examination, showed normal sinus rhythm, possible left atrial enlargement, left ventricular hypertrophy and a possible inferior infarct of undetermined age.[1] (R. 118, 140, 149, 163-64.) During a follow-up appointment at BronxCare on October 17, 2007, Dr. Virginia Martinez noted that Mejia had responded to medication, because his blood pressure had dropped to 141/94. (R. 146.) Dr. Martinez also determined that Mejia's LDL cholesterol levels were elevated and prescribed Lipitor, exercise and dietary 331 changes. (R. 117, 127, 132-33, 138,1 46-47, 159.) After clearing him for the dental procedure, Dr. Martinez referred Mejia to Dr. Huber at Bronx Lebanon Hospital for further tests. (R. 141, 147.) On October 25, 2007, Mejia had an echocardiogram, which revealed a left atrium size of 3.8 cm, a septal wall thickness of 1.7 cm, a left ventricular end diastolic dimension of 5.6 cm and a ventricular posterior wall thickness of 1.7 cm. (R. 186.) Dr. Huber reviewed the results and determined that the echocardiogram showed a borderline dilated left ventricle with "eccentric left ventricular hypertrophy," moderate diffuse systolic dysfunction and an ejection fraction[2] of thirty-five to forty percent. (R. 186.) Although the echocardiogram also revealed "some evidence of abnormal diastolic relaxation," Dr. Huber deemed the results otherwise "unremarkable." (R. 186.) On November 20, 2007, Mejia underwent both a cardiac perfusion test[3] and a nuclear exercise stress test at Bronx Lebanon Hospital. (R. 187-90.) During the exercise stress test, Mejia exercised to a maximum of 13.5 METs[4] (R. 187-88), which was within normal or "[f]unctional [c]lass" I limits.[5]See American Medical Association, Guides to the Evaluation of Permanent Impairment at 171. The test also showed "[n]ormal" myocardial perfusion as well as a "[n]ormal" heart rate and blood pressure response. (R. 189.) Nevertheless, the doctor who performed the test characterized the results as "[a]bnormal" because the stress test revealed moderate left ventricular dysfunction and global hypokinesis. (R. 189.) In an April 28, 2008 letter concerning Mejia's diagnosis, Dr. Huber stated that Mejia had "congestive heart failure" and "severe LV [left ventricular] dysfunction." (R. 185.) Dr. Huber classified Mejia's symptoms as New York Heart Association ("NYHA") Class II, meaning that he had a slight, mild limitation of activity and was comfortable with rest or with mild exertion.[6] (R. 185.) Dr. Huber opined that Mejia's Class II symptoms would improve with medication. (R. 185.) In a May 6, 2009 follow-up letter, Dr. Huber re-classified Mejia's diagnosis as a "cardiomyopathy, which is idiopathic but 332 possibly hypertensive in origin."[7] (R. 194.) Dr. Huber noted that although Mejia's hypertension had responded favorably to the prescribed medications (Avalide, Carvedilol and Lipitor) (R. 117, 174), his Class II symptoms persisted (R. 194). Dr. Huber opined that Mejia would need medication for the "foreseeable future" and should refrain from work entailing "strenuous exertion." (R. 194.) Consultative Physicians On January 10, 2008, consulting physician Dr. David Guttman examined Mejia. (R. 174-77.) Dr. Guttman's report stated that Mejia did not exhibit any "acute distress" and could get on and off the exam table and rise from a chair without any assistance or difficulty. (R. 175.) Despite a slightly elevated blood pressure of 142/102, Dr. Guttman noted that Mejia's exam showed an otherwise "[r]egular" heart rhythm and a normal point of maximal impulse ("PMI") in the left fifth intercostal space at the midclavicular line. (R. 175.) The examination did not reveal any audible heart "murmur, gallop or rub." (R. 175.) Musculoskeletal tests confirmed that Mejia's ability to perform fine manual manipulation was normal. (R. 175-76.) Based on Mejia's medical history, Dr. Guttman diagnosed Mejia with hypertension and congestive heart failure, but concluded that his physical examination was otherwise within normal limits. (R. 176.) Dr. Guttman designated Mejia's prognosis as "[f]air." (R. 176.) On March 11, 2008, consultative Physician Dr. D. Zanni performed a Residual Functional Capacity Assessment of Mejia based on his medical records. (R. 178-83.) Dr. Zanni concluded that Mejia could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds. (R. 179.) Dr. Zanni also concluded that Mejia could stand or walk for 6 hours in an 8 hour workday and sit for 6 hours in an 8 hour workday. (R. 179.) The factual basis for Dr. Zanni's conclusions was that Mejia's blood pressure was 142/102, and Mejia has "increased left ventricular mass. Moderately reduced systolic function. Ejection fraction 35-40% . . . . [N]o chest pains. . . . He has no shortness of breath. He is able to walk six blocks or 1 flight of stairs." (R. 179.) Dr. Zanni concluded that based on the information in his file, Mejia "has a moderately determinable impairment [that] limits [Mejia] to light [work]." (R. 181.) The ALJ's Decision In a decision dated May 28, 2009, ALJ Arzt denied Mejia's application for Disability Insurance Benefits and Supplemental Security Income Benefits for the period from October 16, 2007 to May 28, 2009. (R. 6-22.) ALJ Arzt reviewed Mejia's claim of disability resulting from hypertension and heart failure, considering both Mejia's testimony and medical records. (R. 11-14.) ALJ Arzt concluded that Mejia suffered from both hypertension and "controlled congestive heart failure from idiopathic vs. hypertensive cardiomyopathy." (R. 11.) Although Mejia's "medically determinable impairments reasonably could be expected to produce some of the alleged symptoms and limitations," ALJ Arzt found that Mejia's testimony concerning the "intensity, persistence and limiting effects of these symptoms . . . [was] not entirely supported by the record." (R. 13.) With these considerations in mind, ALJ Arzt applied the appropriate five step legal analysis (R. 10-11) as follows: At the first 333 step, ALJ Arzt found that Mejia had not "engaged in substantial gainful activity since October 16, 2007, the alleged disability onset date." (R. 11.) At the second step, ALJ Arzt found that Mejia's congestive heart failure and hypertension "cause more than a minimal limitation [on his] ability to perform basic work related activities." (R. 11.) At the third step, ALJ Arzt found that Mejia's impairments do not "meet[] or medically equal[] one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1." (R. 11.) At the fourth step, ALJ Arzt determined that Mejia has the residual functional capacity to "occasionally lift and carry up to twenty pounds at a time, frequently lift and carry up to ten pounds at a time, walk and stand up to six hours out of an eight hour day, push and pull light weight objects, and occasionally bend and stoop." (R. 12.) Based on Dr. Huber's determination that Mejia has Class II symptoms and should avoid "strenuous exertion," ALJ Arzt found that Mejia can perform "sedentary" or "light" work.[8] (R. 12-13.) Because Mejia's "past relevant work" as a shipping and handling clerk required "exertionally heavy work," ALJ Arzt found that it exceeded Mejia's residual functional capacity. (R. 13-14.) At the fifth and final step, ALJ Arzt utilized the Grid and concluded that based on Mejia's "age, education, past relevant work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Mejia] can perform." (R. 14.) Accordingly, ALJ Arzt found that Mejia was "not disabled" from October 16, 2007 through May 28, 2009, and therefore was not entitled to receive disability benefits. (R. 14-15.) ANALYSIS I. THE APPLICABLE LAW A. Definition of Disability A person is considered disabled for Social Security benefits purposes 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), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379, 157 L. Ed. 2d 333 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268, 152 L. Ed. 2d 330 (2002); Salmini v. Comm'r of Soc. Sec., 371 Fed. Appx. 109, 111-12 (2d Cir.2010); Betances v. Comm'r of Soc. Sec., 206 Fed. Appx. 25, 26 (2d Cir.2006); Surgeon v. Comm'r of Soc. Sec., 190 Fed.Appx. 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 Fed. Appx. 15, 16 (2d Cir.2005); Malone v. Barnhart, 132 Fed.Appx. 940, 941 (2d Cir. 2005); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004), amended on other grounds, 416 F.3d 101 (2d Cir.2005).[9] 334 An individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are of such severity that he 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. §§ 423(d)(2)(A)(B), 1382c(a)(3)(B)(G); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S. Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270; Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 111-12; Betances v. Comm'r of Soc. Sec., 206 Fed.Appx. at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.[10] In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam).[11] B. Standard of Review A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 111-12 (2d Cir.2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981, 168 L. Ed. 2d 704 (2007); Halloran v. Barnhart 362 F.3d 28, 31 (2d Cir.2004), Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir.2003); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.2003); 42 U.S.C. § 405(g).[12] "`Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhardt, 02 Civ. 0377, 2002 WL 1733804 at 4 (S.D.N.Y. July 26, 2002).[13] 335 The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] 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, 1427, 28 L. Ed. 2d 842 (1971); accord, e.g., Comins v. Astrue, No. 09-2221-cv, 374 Fed.Appx. 147, 149, 2010 WL 1490067 at 1 (2d Cir. Apr. 15, 2010); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74.[14] "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983). The Court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991).[15] However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at 7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); see also, e.g., Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004), amended on other grounds, 416 F.3d 101 (2d Cir.2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases). The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80, 157 L. Ed. 2d 333 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987). The Supreme Court has articulated the five steps as follows: Acting pursuant to its statutory rulemaking authority, 42 U.S.C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 20 CFR § 404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. [1] At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." §§ 404.1520(b), 416.920(b). [2] At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." §§ 404.1520(c), 416.920(c). [3] At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 336 416.920(d). [4] If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. [5] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c). Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. omitted);[16]accord, e.g., Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 111-12; Williams v. Comm'r of Soc. Sec., 236 Fed.Appx. 641, 643 (2d Cir.2007); Betances v. Comm'r of Soc. Sec., 206 Fed.Appx. at 26; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774.[17] The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that she cannot return to her past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only her medical capacity but also her age, education and training. See, e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.[18] C. The Treating Physician Rule The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that: If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. 20 C.F.R. § 404.1527(d)(2); see, e.g., Meadors v. Astrue, 370 Fed.Appx. 179, 182 (2d 337 Cir.2010); Colling v. Barnhart, 254 Fed. Appx. 87, 89 (2d Cir.2007); Lamorey v. Barnhart, 158 Fed.Appx. 361, 362 (2d Cir. 2006).[19] Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see, e.g., Gunter v. Comm'r of Soc. Sec., 361 Fed.Appx. 197, 198-99 (2d Cir.2010); Foxman v. Barnhart, 157 Fed.Appx. at 346-47; Halloran v. Barnhart, 362 F.3d at 32; Shaw v. Chater, 221 F.3d at 134; Clark v. Comm'r, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503.[20] The Commissioner's "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993). II. APPLICATION OF THE FIVE STEP SEQUENCE TO MEJIA'S CLAIMS The Court must determine if the Commissioner's decision that Mejia was not disabled during the relevant period from October 16, 2007 (the alleged onset date) through May 28, 2009 (the date ALJ Arzt denied Mejia's claim), was supported by substantial evidence. The Commissioner's decision that Mejia was not disabled is affirmed since it is supported by substantial evidence. A. Mejia Was Not Engaged in Substantial Gainful Activity The first inquiry is whether Mejia was engaged in substantial gainful activity after his applications for Disability Insurance Benefits and Supplemental Security Income. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510. ALJ Arzt's conclusion that Mejia was not engaged in substantial gainful activity during the applicable time period (see page 9 above) benefits Mejia and is not disputed. 338 B. Mejia Demonstrated "Severe" Physical and Mental Impairments That Significantly Limited His Ability To Do Basic Work Activities The next step of the analysis is to determine whether Mejia proved that he had a severe impairment or combination of impairments that "significantly limit[ed his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include: . . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking. . . [u]nderstanding, carrying out, and remembering simple instructions. . . [u]se of judgment . . . [r]esponding appropriately to supervision, co-workers and usual work situations. 20 C.F.R. § 404.1521(b)(1)-(5). The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995). "A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at 5 (E.D.N.Y. Mar. 19, 1999) (citing). On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030. "A finding of `not severe' should be made if the medical evidence establishes only a `slight abnormality' which would have `no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, 1999 WL 294727 at 5 (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S. Ct. 2287, 2298 n. 12, 96 L. Ed. 2d 119 (1987)). ALJ Arzt determined that the medical evidence indicated that Mejia's impairments, hypertension and "controlled congestive heart failure resulting from idiopathic vs. hypertensive cardiomyopathy," were severe within the meaning of 20 C.F.R. § 404.1520(c). (See page 9 above). These findings benefit Mejia and are not disputed. The Court therefore proceeds to the third step of the five part analysis. C. Mejia Did Not Have A Disability Listed in Appendix 1 of the Regulations The third step of the five-part test requires a determination of whether Mejia had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). Based on the medical record, ALJ Arzt correctly determined that Mejia suffered from both hypertension and controlled congestive heart failure resulting from idiopathic cardiomyopathy. (See page 9 above.) ALJ Arzt found, however, that while Mejia's medically determinable impairments were "severe," he did "not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 11; see page 9 above.) The medical evidence supports that finding. 339 1. Cardiomyopathy Cardiomyopathy is evaluated under Section 4.00 of Appendix 1, as explained in the section entitled "Evaluating Other Cardiovascular Impairments": Cardiomyopathy is a disease of the heart muscle. The heart loses its ability to pump blood (heart failure), and in some instances, heart rhythm is disturbed, leading to irregular heartbeats (arrhythmias). Usually, the exact cause of the muscle damage is never found (idiopathic cardiomyopathy). . . . We will evaluate cardiomyopathy under [§§] 4.02, 4.04, 4.05 or 11.04, depending on its effects on you. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 4.00(H)(3). Because there is no evidence in the record that Mejia was diagnosed with or suffered from any of the conditions listed in sections 4.04 (ischemic heart disease), 4.05 (recurrent arryhthmias) or 11.04 (central nervous system vascular accident), for Mejia's cardiomyopathy to qualify as listed impairment, it must satisfy section 4.02 (chronic heart failure). Section 4.02 requires the following: 4.02 Chronic heart failure while on a regimen of prescribed treatment, with symptoms and signs described in 4.00D2 [easy fatigue, weakness and shortness of breath]. The required level of severity for this impairment is met when the requirements in both A and B are satisfied. A. Medically documented presence of one of the following: 1. Systolic failure (see 4.00D1a(i)), with left ventricular end diastolic dimensions greater than 6.0 cm or ejection fraction of 30 percent or less during a period of stability (not during an episode of acute heart failure); or 2. Diastolic failure (see 4.00D 1a(ii)), with left ventricular posterior wall plus septal thickness totaling 2.5 cm or greater on imaging, with an enlarged left atrium greater than or equal to 4.5 cm, with normal or elevated ejection fraction during a period of stability (not during an episode of acute heart failure); AND B. Resulting in one of the following: 1. Persistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living in an individual for whom an MC, preferably one experienced in the care of patients with cardiovascular disease, has concluded that the performance of an exercise test would present a significant risk to the individual; or 2. Three or more separate episodes of acute congestive heart failure within a consecutive 12-month period (see 4.00A3e), with evidence of fluid retention (see 4.00D2b(ii)) from clinical and imaging assessments at the time of the episodes, requiring acute extended physician intervention such as hospitalization or emergency room treatment for 12 hours or more, separated by periods of stabilization (see 4.00D4c); or 3. Inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or less due to: a. Dyspnea, fatigue, palpitations, or chest discomfort; or b. Three or more consecutive premature ventricular contractions (ventricular tachycardia), or increasing frequency of ventricular ectopy with at least 6 premature ventricular contractions per minute; or c. Decrease of 10 mm Hg or more in systolic pressure below the baseline systolic blood pressure or the preceding systolic pressure measured during 340 exercise (see 4.00D4d) due to left ventricular dysfunction, despite an increase in workload; or d. Signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental confusion. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 4.02. Even if the chronic shortness of breath and easy fatigue that Mejia claims to suffer (see page 4 above) satisfies § 4.00(D)(2)(i)'s list of signs and symptoms, Mejia's condition does not satisfy subsections 4.02(A) or (B), much less satisfy both of those subsections. As to subsection 4.02(A), the medical record does not support a finding of either systolic or diastolic failure.[21] With regard to § 4.02(A)(1), systolic failure, the medical record must evidence "left ventricular end diastolic dimensions greater than 6.0 cm or ejection fraction of 30 percent or less." 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 4.02(A)(1). Mejia's October 2007 echocardiogram, however, revealed a left ventricular end diastolic measurement of 5.6 cm (see page 5 above), which is less than § 4.02(A)(1)'s 6 cm threshold, and Mejia had an ejection fraction of 35 to 40 percent (see page 5 above), which is above § 4.02(A)(1)'s requisite 30 percent or less. As to § 4.02(A)(2), although Mejia's combined left ventricular posterior and septal wall thickness totals 3.4 cm (see page 5 above), placing him in § 4.02(A)(2)'s "2.5 cm or greater" range, his left atrium measurement of 3.8 cm (see page 5 above) is less than the "4.5 cm or greater" needed to qualify for diastolic failure under § 4.02(A)(2). Moreover, Mejia's 35 to 40 percent ejection fraction is below the requisite "normal" range.[22] Accordingly, Mejia does not satisfy subsection 4.02(A). In addition, Mejia does not meet subsection 4.02(B)'s requirements. With respect to § 4.02(B)(1), Mejia's NYHA Class II symptoms, which place only "mild limitation[s] on [his daily] activit[ies]" (see pages 6-7 above), do not rise to the level of "[p]ersistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living." 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 4.02(B)(1). Indeed, Mejia reported that he engaged in a range of daily activities, including shopping, household chores, cooking and socializing. (See page 3 above.) Also, § 4.02(B)(1) applies where a doctor concludes the patient cannot safely perform an "exercise test," and Mejia had such a stress exercise test. (See page 6 above.) As to subsection 4.02(B)(2)'s requirement that the patient have at least three documented occurrences of acute congestive heart failure requiring extensive hospitalization or treatment, Mejia's record is devoid of any such instances. (See pages 4-8 above.) Likewise, Mejia did not satisfy 341 subsection 4.02(B)(3)'s requirement that the patient have an "inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or less," because Mejia exercised to a maximum of 13.5 METs during his November 2007 stress test (see page 6 above). Accordingly, substantial evidence supports ALJ Arzt's determination that Mejia's controlled congestive heart failure resulting from an idiopathic cardiomyopathy does not meet the Listing requirements. 2. Hypertension With regard to Mejia's hypertension, ALJ Arzt found that although severe, it did not meet or medically equal one of the Listed impairments. (See page 9 above.) The medical evidence supports that finding. Hypertension is also evaluated under Section 4.00 of Appendix 1, as explained in a section entitled "Evaluating Other Cardiovascular Impairments": Because hypertension (high blood pressure) generally causes disability through its effects on other body systems, we will evaluate it by reference to the specific body system(s) affected (heart, brain, kidneys, or eyes) when we consider its effects under the listings. We will also consider any limitations imposed by your hypertension when we assess your residual functional capacity. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 4.00(H)(1). During the period in question, there is limited evidence that Mejia's hypertension restricted his lifestyle. Although Dr. Huber noted in his May 2009 letter that despite successful treatment of the hypertension, Mejia's NYHA Class II symptoms persisted (see page 7 above), ALJ Arzt expressed doubt that the "intensity, persistence and limiting effects" of the symptoms Mejia described at the hearing were consistent with the medical record. (See page 9 above.) Between October 2007 and May 2009, Mejia's blood pressure readings fluctuated but appeared to respond to treatment. (See pages 5-7 above.) Mejia testified that he could engage in a range of daily activities, including household chores, personal hygiene and socialization. (See page 3 above.) Because Mejia's hypertension responded favorably to treatment and he could participate in a variety of non-strenuous activities, ALJ Arzt correctly concluded that it was not disabling. See e.g., Garner v. Astrue, 08 Civ. 6367, 2009 WL 903742 at 17 (S.D.N.Y. Apr. 6, 2009) (Peck, M.J.) (hypertension did not satisfy Appendix 1 where there was no evidence that it "produce[d] any effects (primary or secondary) that severely impaired other bodily systems."), report & rec. adopted in part, 2009 WL 1911744 (S.D.N.Y. Jun. 30, 2009); Anderson v. Astrue, 07 Civ. 7195, 2008 WL 655605 at 14 (S.D.N.Y. Mar. 12, 2008) (Peck, M.J.), report & rec. adopted, 2008 WL 2463885 (S.D.N.Y. Jun. 18, 2008); Nunez v. Barnhart, 05 Civ. 9221, 2007 WL 313459 at 6-7 (S.D.N.Y. Feb. 1, 2007) (plaintiff's hypertension was asymptomatic, controlled by medication, and did not affect plaintiff's ability to perform basic work activities); Snipe v. Barnhart, 05 Civ. 10472, 2006 WL 2390277 at 15 (S.D.N.Y. Aug. 21, 2006) (Peck, M.J.) (plaintiff's hypertension not disabling where it was under control due to medication), report & rec. adopted, 2006 WL 2621093 (S.D.N.Y. Sept. 12, 2006); Lowe v. Barnhart, 04 Civ. 9012, 2006 WL 1911020 at 7-8 (S.D.N.Y. July 10, 2006) (plaintiff's hypertension not a severe impairment where controlled through medication and plaintiff could perform a variety of daily activities); Tillackdharry v. Barnhart, 05 Civ. 6639, 2006 WL 903191 at 5 (S.D.N.Y. Apr. 10, 2006) (plaintiff's hypertension not disabling where controlled by medication and he had the residual functional capacity 342 to perform a significant range of light work). Substantial evidence supports ALJ Arzt's determination that Mejia's hypertension and controlled cardiomyopathy did not meet the requirements of the listed impairments in Appendix 1. D. Mejia Did Not Have the Ability to Perform His Past Work The fourth prong of the five part analysis is whether Mejia had the residual functional capacity to perform his past relevant work. (See page 10 above.) After considering Dr. Huber's opinion that Mejia should refrain from any work involving "strenuous exertion," ALJ Arzt determined that Mejia was unable to resume his past work as a shipping and receiving clerk. (See page 10 above.) Since this finding favors Mejia, the Court proceeds to the fifth and final step of the analysis. E. Mejia Can Perform Other Work In The Economy In the fifth step, the burden shifts to the Commissioner, "who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); see, e.g., Arruda v. Comm'r of Soc. Sec., 363 Fed.Appx. 93, 95-96 (2d Cir.2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir.2004), amended on other grounds, 416 F.3d 101 (2d Cir.2005); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).[23] In meeting his burden under the fifth step, the Commissioner ordinarily will make use of the "Grid": In meeting [his] burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid." The Grid takes into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y.1996) (fns. omitted); see, e.g., Heckler v. Campbell, 461 U.S. 458, 461-62, 465-68, 103 S. Ct. 1952, 1954-55, 1956-58, 76 L. Ed. 2d 66 (1983) (upholding the promulgation of the Grid); Martin v. Astrue, 337 Fed.Appx. 87, 90 (2d Cir.2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986). "The Grid classifies work into five categories based on the exertional requirements 343 of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Zorilla v. Chater, 915 F.Supp. at 667 n. 2; see 20 C.F.R. § 404.1567(a); see also pages 9-10 n. 8 above. Taking account of the claimant's residual functional capacity, age, education, and prior work experience, the Grid yields a decision of "disabled" or "not disabled." 20 C.F.R. § 404.1569, § 404 Subpt. P, App. 2, 200.00(a). ALJ Arzt determined that Mejia had the residual functional capacity to occasionally lift and carry up to twenty pounds at a time, frequently lift and carry up to ten pounds at a time, walk and stand up to six hours out of an eight hour day, push and pull light weight objects, and occasionally bend and stoop, which is consistent with an ability to perform light work. (R. 19.) The ALJ noted that "light work" includes sedentary work and can require either "a good deal of walking or standing" or "sitting most of the time with some pushing and pulling of arm or leg controls." (R. 19; see page 9 above.) In making this determination, ALJ Arzt did not credit Mejia's subjective complaints. (See page 9 above.) Although Mejia testified at the hearing that he experienced shortness of breath after walking one and one-half blocks and was unable to stand for more than twenty minutes, Mejia initially stated in his application for disability benefits that he could walk up to thirty blocks and spent forty-five minutes shopping once a month. (See page 3 above.) Mejia also stated that he could sit, squat and use fine motor skills without any problem. (See page 4 above.) Indeed, Mejia noted in his application that the only activity he was incapable of performing was "work." (See page 3 above.) Because subjective symptoms like pain and shortness of breath only lessen a claimant's residual functional capacity, where the symptoms "`can reasonably be accepted as consistent with the objective medical evidence and other evidence,' the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL 3241397 at 7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted); see also, e.g., Brown v. Comm'r of Soc. Sec., 310 Fed.Appx. 450, 451 (2d Cir.2009) ("Where there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings."); Rivers v. Astrue, 280 Fed.Appx. 20, 22 (2d Cir.2008) (same); Thompson v. Barnhart, 75 Fed.Appx. 842, 845 (2d Cir.2003) (The ALJ properly found that plaintiff's "description of her symptoms was at odds with her treatment history, her medication regime and her daily routine."); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir.1999); Astolos v. Astrue, No. 06-CV-678, 2009 WL 3333234 at 12 (W.D.N.Y. Oct. 14, 2009) (The ALJ properly determined that plaintiff's subjective pain complaints were not supported by the medical record.); Speruggia v. Astrue, No. 05-CV-3532, 2008 WL 818004 at 11 (E.D.N.Y. Mar. 26, 2008) ("The ALJ `does not have to accept plaintiff's subjective testimony about her symptoms without question' and should determine a plaintiff's credibility `in light of all the evidence.'"); Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at 6 (S.D.N.Y. Dec. 4, 2002) ("The ALJ has the capacity and the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of pain alleged by the claimant."); Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y.1987) (same). 344 ALJ Arzt was justified by the medical evidence in discounting Mejia's subjective testimony. Mejia's treating physician Dr. Huber classified Mejia's symptoms as NYHA Class II, meaning that Mejia had a "slight, mild limitation of activity" and was "comfortable with rest or with mild exertion," but should refrain only from work involving "strenuous exertion." (See page 7 above.) In addition, consultative physician Dr. Zanni, based on the medical evidence in the file, concluded that Mejia was limited to light work. (See page 8 above.) Accordingly, ALJ Arzt's evaluation of Mejia's residual function capacity is supported by the record. Reference to the Grid demonstrates that a person of Mejia's age (forty-seven years old) (see page 2 above), education (eleventh grade, without a high school equivalency) (see page 2 above), and ability to perform light exertional work (see pages 8-9 above), is not disabled for purposes of Social Security Benefits. See 20 C.F.R. 404, Subpt. P, App. 2, §§ 201.18-19, 202.18-19. The ALJ's decision that Mejia was not disabled for purposes of Social Security Benefits is supported by substantial evidence. CONCLUSION For the reasons set forth above, the Commissioner's determination that Mejia was not disabled within the meaning of the Social Security Act during the period October 16, 2007 through May 28, 2009, is supported by substantial evidence. The Commissioner's motion for judgment on the pleadings (Dkt. No. 12) is GRANTED. The Clerk of Court shall enter judgment accordingly. SO ORDERED. NOTES [1] An "infarct" is an "area of coagulation necrosis in a tissue due to local ischemia resulting from obstruction of circulation to the area." Dorland's Illustrated Medical Dictionary at 894 (29th ed. 2000). [2] An "ejection fraction" is the "proportion of the volume of blood in the ventricles at the end of diastole that is ejected during systole; it is the stroke volume divided by the end-diastolic volume, often expressed as a percentage." Dorland's Illustrated Medical Dictionary at 708. [3] "[P]erfusion" refers to the flow of blood through the heart. See Dorland's Illustrated Medical Dictionary at 1350. [4] "MET" represents the "multiples of resting metabolic energy used for any given activity," and is used to measure the excess energy expended during cardiac exercise. American Medical Association, Guides to the Evaluation of Permanent Impairment at 170 (4th ed. 1999). [5] "Functional Class 1" describes a patient who, despite the presence of cardiac disease, does not exhibit any resulting physical limitations, because exertion does not cause abnormal fatigue, palpitations, anginal pain or shortness of breath. American Medical Association, Guides to the Evaluation of Permanent Impairment at 170. [6] Patients with NYHA Class I symptoms have "no symptoms and no physical activity limits." (R. 13.) Patients with NYHA Class II symptoms are "`patients with slight, mild limitation of activity; they are comfortable with rest or with mild exertion.'" (R. 13.) Patients with NYHA Class III symptoms, by contrast, exhibit "marked limitation" and are comfortable "`only at rest.'" (R. 13.) See generally American Medical Association, Guides to the Evaluation of Permanent Impairment at 170. [7] Cardiomyopathy is a disease of the heart muscle which limits the heart's ability to pump blood; a cardiomyopathy is "idiopathic" when the cause of the muscle damage is unknown. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.00(H)(3). [8] Work in the national economy is classified according to the following rubric: (1) sedentary, (2) light, (3) medium, (4) heavy, and (5) very heavy. 20 C.F.R. § 404.1567(b). "Light work" entails "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds" and requires either "a good deal of walking or standing" or pushing or pulling of "arm or leg controls." 20 C.F.R. § 404.1567(b). Plaintiffs in the "light" work classification must be able to perform "substantially all of [the listed] activities." 20 C.F.R. § 404.1567(b). Sedentary work involves sitting but also "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools." 20 C.F.R. §§ 404.1567(a). Sedentary work may involve "a certain amount of walking and standing." 20 C.F.R. §§ 404.1567(a). [9] See also, e.g., Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996). [10] See also, e.g., Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79. [11] See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at 1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62; Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.1983). [12] See also, e.g., Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Vapne v. Apfel, 36 Fed.Appx. 670, 672 (2d Cir.), cert. denied, 537 U.S. 961, 123 S. Ct. 394, 154 L. Ed. 2d 314 (2002); Horowitz v. Barnhart, 29 Fed.Appx. 749, 752 (2d Cir.2002); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir.1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983); Rodriguez v. Barnhart, 03 Civ. 7272, 2004 WL 1970141 at 8 (S.D.N.Y. Aug. 23, 2004), aff'd, 163 Fed.Appx. 15 (2d Cir.2005). [13] See also, e.g., Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at 9 (S.D.N.Y. Jan. 7, 2003); Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at 5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (quotations & alterations omitted). [14] See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184; Green-Younger v. Barnhart, 335 F.3d at 106; Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Perez v. Chater, 77 F.3d at 46. [15] See also, e.g., Colling v. Barnhart, 254 Fed. Appx. 87, 88 (2d Cir.2007); Veino v. Barnhart, 312 F.3d at 586; Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at 1 (2d Cir. Sept. 26, 1996). [16] Amendments to 20 C.F.R. 404.1520 became effective September 25, 2003. See 68 Fed. Reg. 51153, 2003 WL 22001943 (Aug. 26, 2003); see also Barnhart v. Thomas, 540 U.S. at 25 n. 2, 124 S. Ct. at 380 n. 2. The amendments, inter alia, added a new § 404.1520(e) and redesignated previous §§ 404.1520(e) and (f) as §§ 404.1520(f) and (g), respectively. 20 C.F.R. § 404.1520; see 68 Fed. Reg. 51156. The new § 404.1520(e) explains that if the claimant has an impairment that does not meet or equal a listed impairment, the SSA will assess the claimant's residual functional capacity. 20 C.F.R. § 404.1520(e). The SSA uses the residual functional capacity assessment at step four to determine whether the claimant can perform past relevant work and, if necessary, at step five to determine whether the claimant can do any work. See 68 Fed. Reg. 51156. [17] See also, e.g., Jasinski v. Barnhart, 341 F.3d at 183-84; Green-Younger v. Barnhart, 335 F.3d at 106; Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002); Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). [18] See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 112-13; Williams v. Comm'r of Soc. Sec., 236 Fed.Appx. at 643; Betances v. Comm'r of Soc. Sec., 206 Fed. Appx. at 26; Green-Younger v. Barnhart, 335 F.3d at 106; Draegert v. Barnhart, 311 F.3d at 472; Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). [19] See also, e.g., Foxman v. Barnhart, 157 Fed.Appx. 344, 346 (2d Cir.2005); Tavarez v. Barnhart, 124 Fed.Appx. 48, 49 (2d Cir.2005); Donnelly v. Barnhart, 105 Fed.Appx. 306, 308 (2d Cir.2004); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003); Kamerling v. Massanari, 295 F.3d 206, 209 n. 5 (2d Cir.2002); Jordan v. Barnhart, 29 Fed.Appx. 790, 792 (2d Cir.2002); Bond v. Soc. Sec. Admin., 20 Fed.Appx. 20, 21 (2d Cir.2001); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). [20] See also, e.g., Kugielska v. Astrue, 06 Civ. 10169, 2007 WL 3052204 at 8 (S.D.N.Y. Oct. 16, 2007); Hill v. Barnhart, 410 F. Supp. 2d 195, 217 (S.D.N.Y.2006); Klett v. Barnhart, 303 F. Supp. 2d 477, 484 (S.D.N.Y.2004); Rebull v. Massanari, 240 F. Supp. 2d 265, 268 (S.D.N.Y.2002). [21] Systolic failure, the "inability of the heart to contract normally and expel sufficient blood" is characterized by "a dilated, poorly contracting left ventricle and reduced ejection fraction." 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 4.00(D)(1)(i). Diastolic failure, by contrast, is the "inability of the heart to relax and fill normally" and is characterized by "a thickened ventricular muscle, poor ability of the left ventricle to distend, increased ventricular filling pressure, and a normal or increased EF [ejection fraction]." Id., § 4.00(D)(1)(ii). [22] A "normal" ejection fraction is greater than 55%. By contrast, an ejection fraction between 30% and 40% indicates moderate systolic dysfunction and an ejection fraction below 30% demonstrates severe systolic dysfunction. American Medical Association, Guides to the Evaluation of Permanent Impairment at 170; see also Sheehan v. Metro. Life Ins. Co., 368 F. Supp. 2d 228, 248 n. 12 (S.D.N.Y.2005). [23] See also, e.g., Rosado v. Astrue, 00 Civ. 4095, 713 F. Supp. 2d 347, 364-65 & n. 17, 2010 WL 2011615 at 16 & n. 17 (S.D.N.Y. May 20, 2010) (Peck, M.J.); de Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at 16-17 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at 11 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report & rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at 11 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Vega v. Comm'r, 97 Civ. 6438, 1998 WL 255411 at 10 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 425 (S.D.N.Y.1996) (Batts, D.J. & Peck, M.J.); DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at *6-7 (S.D.N.Y. June 14, 1995) (Peck, M.J.), report & rec. adopted, 899 F. Supp. 1171 (S.D.N.Y.1995).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539528/	712 F. Supp. 2d 1222 (2010) KMMENTOR, LLC et al., Plaintiffs, v. KNOWLEDGE MANAGEMENT PROFESSIONAL SOCIETY, INC. et al., Defendants. Case No. 06-2381-EFM. United States District Court, D. Kansas. May 13, 2010. 1227 Jonathan D. Frieden, Odin, Feldman & Pittleman, PC, Fairfax, VA, Thomas A. Hamill, Martin, Pringle, Oliver, Wallace & Bauer, LLP, Overland Park, KS, for Plaintiffs. Rhonda Smiley, Winchester, VA, for Defendants. MEMORANDUM AND ORDER ERIC F. MELGREN, District Judge. "Knowledge is a process of piling up facts; wisdom lies in their simplification."[1] This case involves several parties engaged in the knowledge management field, a field that creates and uses data and information to manage knowledge. The proceedings so far have been highly contentious, and the parties have compiled numerous facts but have not simplified the process. Before the Court in Case No. 06-2381 is KM Mentor's Motion for Judgment on the Pleadings (Doc. 87); Motion for Partial Summary Judgment as to Counterclaims (Doc. 90); and Second Motion to Strike Declarations in Support of Motion for Summary Judgment. (Doc. 111). Also before the Court is Defendants Kirsch's, Leitch's, and Hulehan's Motion for Summary Judgment (Doc. 96) and the KMPro parties' Motion for Partial Summary Judgment (Doc. 98). As described in detail below, the Court grants KM Mentor's Motion for Judgment on the Pleadings, grants in part and denies in part KM Mentor's Motion for Partial Summary Judgment, and denies KM Mentor's Second Motion to Strike Affidavit. In addition, the Court denies the KMPro parties' Partial Motion for Summary Judgment and denies Kirsch's, Leitch's, and Hulehan's Motion for Summary Judgment. I. General Background and Applicable Procedural Rules There are three cases that are related. These include Triple-I v. Hudson Associates Consulting, Inc. et al., No. 06-cv-2195-EFM-KMH (the "Triple-I Case");[2]KM Mentor, LLC et al. v. Knowledge Management Professional Society, Inc. et al., No. 06-cv-2381-EFM-KMH (the "KM Mentor Case");[3] and Hudson Associates 1228 Consulting, Inc. et al. v. Eric Weidner, et al., No. 06-cv-2461-EFM-KMH (the "Hudson Case").[4] With respect to the parties, the Court will generally refer to Knowledge Management Professional Society ("KMPro"), Hudson Associates Consulting, Inc. ("Hudson"), Dan Kirsch, John Leitch and Wayne Hulehan as the KMPro parties. KM Mentor, LLC and Douglas Weidner will be collectively referred to as KM Mentor. International Knowledge Management Institute, LLC ("IKMI"), Eric Weidner, Brandon Weidner, and Wendy Johnson Weidner will be collectively referred to as the Weidner parties. Generally, KM Mentor and the Weidner parties are aligned. The first case, Case No. 06-2195, was filed in the District of Kansas. The second case was filed in the Eastern District of Virginia but was later transferred to the District of Kansas on September 12, 2006. The third case was filed in the District of Kansas on October 24, 2006. These three cases are consolidated for purposes of discovery because they all involve similar claims and counterclaims regarding certain service marks. The order consolidating the three cases states that pleadings related to dispositive motions should be filed in the specific case. The Court is now considering numerous dispositive motions. In Case No. 06-2195, there are four pending motions for partial summary judgment. In Case No. 06-2381, there is one pending motion for judgment on the pleadings, three pending motions for partial summary judgment, and a motion to strike an affidavit attached to a summary judgment motion. In all, there are five motions pending in Case No. 06-2381. In Case No. 06-2461, there are seven pending motions for partial summary judgment or motion for judgment on pleadings. In total, the Court is considering sixteen motions related to these three cases. The required rules for summary judgment motions in the District of Kansas are set forth in D. Kan. Rule 56.1. Under that rule, "[a]ll material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted 1229 by the statement of the opposing party."[5] D. Kan. Rule 56.1(b) addresses opposing motions for summary judgment. It states: (b) Opposing Memorandum (1) A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed. (2) If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above. All material facts set forth in this statement of the nonmoving party shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party. There are numerous issues with the KMPro parties' responses.[6] First, as noted above, the District of Kansas has specific rules regarding motions for summary judgment. Facts not properly controverted are deemed admitted. In Case No. 06-2381, the KMPro parties do not properly controvert any of the eighty-three facts set forth by KM Mentor as there was no section containing a concise statement of material facts to which they objected. They merely state that "[t]here is ample record evidence to show that the parties controvert every material fact that could make a difference to the result in this litigation." In addition, the KMPro parties do not direct the Court to the portion of the record upon which they rely upon to oppose the facts as set forth by KM Mentor. Instead, they direct the Court to numerous documents contained in the two companion 1230 cases. Furthermore, the KMPro parties do not even direct the Court to the actual documents but instead direct the Court to their "responses" to certain motions.[7] "[I]t is the duty of the parties contesting a motion for summary judgment to direct the court to those places in the record where evidence exists to support their positions."[8] The Court will not sift through the record in an attempt to find a genuine issue of material fact or locate arguments for the parties.[9] It is the party's responsibility to tie the facts to its legal contention.[10] "Without a specific reference, `we will not search the record in an effort to determine whether there exists dormant evidence which might require submission of the case to a jury.'"[11] While the Court is aware that the claims in these three cases are all very similar, the responsibility is on the parties to demonstrate how they overlap or differ. It also is the parties' responsibility to present their arguments and authorities in an understandable fashion. A three page response incorporating seven briefs filed in three different cases is not understandable. If the parties are seeking a ruling on a discreet issue, they cannot incorporate by reference their arguments with regard to other issues and expect the Court to know which facts or arguments apply to their specific issue. While the Court recognizes that there may be evidence somewhere to support the KMPro parties' assertions and denials, it is not directed to it. The record in these three cases is voluminous, and the Court will not search for the KMPro parties' evidence. The Court will deem as admitted all facts not specifically controverted by the record. To the extent 1231 that the record does not support KM Mentor's factual contentions, the Court will disregard those facts. If the Court could easily ascertain to which document the KMPro parties directed the Court, the Court will consider that document. II. Choice of Law This case was originally filed in the United States District Court for the Eastern District of Virginia. It was then transferred to this Court pursuant to 28 U.S.C. § 1404(a). "[T]he transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms."[12] The parties appear to agree that Virginia law applies to the fraud claim in the KMPro parties' counterclaim. However, with respect to the eleven other claims in the counterclaim and the ten claims in KM Mentor's complaint, neither party specifically addresses choice of law issues. With respect to the parties' federal claims of trademark and copyright infringement, KM Mentor primarily relies on federal law from across the United States, including some Tenth Circuit law. As to several other claims, KM Mentor relies on the District of Kansas interpretation of federal law. The KMPro parties primarily rely on Tenth Circuit law, with some federal law from across the United States. With regard to the state law claims, both parties cite to Kansas and Virginia law for the KMPro parties' tortious interference with contract claim and civil conspiracy claim. Both parties bring a breach of contract claim against the other party. The contract has a specific provision that it will be governed by both Maryland and Virginia law. The Court will consider the case law the parties provided to the Court. With regard to the federal claims, it is presumed to be consistent. The Court, however, will first rely on Tenth Circuit or Fourth Circuit law, to the extent available on a specific issue, and then look to the other federal circuit courts of appeals.[13] III. KM Mentor's Motion for Judgment on the Pleadings in Case No. 06-2381 (Doc. 87) A. Standard of Review Responsive pleadings have already been filed, and this motion is brought pursuant to Fed.R.Civ.P. 12(c) rather than Fed. R.Civ.P. 12(b)(6). This is a distinction without a difference as the standard is the same under Rule 12(c) and Rule (12)(b)(6).[14] To survive a motion to dismiss 1232 for failure to state a claim upon which relief can be granted, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level," and must contain "enough facts to state a claim to relief that is plausible on its face."[15] Under this standard, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."[16] The allegations must be enough that, if assumed to be true, the plaintiff plausibly, not merely speculatively, has a claim for relief.[17] B. Analysis Count XIDeclaration of Copyright and Common Law Trademark Unenforceability The KMPro parties' eleventh claim is entitled "Declaration of Copyright and Common Law Trademark Unenforceability." They incorporate by reference the preceding 121 paragraphs of their Counterclaim and state that the "the conduct of KMMentor and Weidner, and their agents, affiliates, and co-conspirators, as alleged constitutes inequitable conduct such as to require a declaration by this Court that any copyright or unregistered trademark obtained by them relating to knowledge management is invalid and unenforceable." KM Mentor asserts that the KMPro parties have asserted a claim of inequitable conduct and have failed to allege it with particularity. Inequitable conduct is usually seen as an affirmative defense in patent litigation in which the defendant alleges that plaintiff's patent is invalid because plaintiff engaged in fraudulent conduct before the United States Patent and Trademark Board ("USPTO"). "[A]lthough patent misuse is an affirmative defense, it may also form the basis for a declaratory judgment counterclaim of uneforceability."[18] In this case, there are no patent claims. There are, however, trademark and copyright claims. Neither party addresses the distinction between a patent, trademark, or copyright claim or whether inequitable conduct is even applicable to a trademark or copyright claim. While the majority of the cases KM Mentor cites to are cases relating to the affirmative defense of inequitable conduct with regard to patent infringement, KM Mentor has cited to one case referencing inequitable conduct and trademark unenforceability.[19] They have cited to no cases referencing inequitable conduct and copyright unenforceability. Both parties have briefed the issue as if the patent inequitable conduct analysis is equally applicable to trademark and copyright claims. Accordingly, the Court will address whether the KMPro parties have adequately pled an inequitable conduct claim relying on the parties' briefing. "Inequitable conduct includes affirmative misrepresentation of a material 1233 fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive."[20] Federal Rules of Civil Procedure 9(b) requires that "a party must state with particularity the circumstances constituting fraud or mistake." Although on its face Fed. R.Civ.P. 9(b) only concerns "fraud or mistake" allegations, several courts, including the Eastern District of Virginia and the District of Kansas, have considered this rule and concluded that inequitable conduct must be pled with particularity.[21] Under Rule 9(b), a party must plead with particularity the time, place and contents of the false representation, the identity of the person making the false statements, and the consequences thereof.[22] Similarly, when determining whether the affirmative defense of inequitable conduct is adequately pled, the Eastern District of Virginia considers four pleading specifics.[23] These include: "(1) [t]he time of the inequitable conduct; (2)[t]he place of the inequitable conduct; (3)[t]he parties responsible for the inequitable conduct; and (4)[t]he contents of the inequitable conduct."[24] KMMentor contends that the KMPro parties have failed to state a claim because they have not alleged with particularity the elements of inequitable conduct. They state that the KMPro parties have failed to specify any statements, actions, or acts. In addition, they assert that the KMPro parties did not provide information as to which of the Plaintiffs committed such acts or when and where such acts occurred. The KMPro parties assert that their claim of inequitable conduct incorporates by reference all of the detailed factual allegations and causes of action in the preceding 121 paragraphs, and "[i]t is simply not true that they fail to specify any statements or actions of the Plaintiffs that could give rise to declaratory relief based on inequitable conduct." However, they fail to direct the Court to any of the previous 121 paragraphs that are relevant and specific to their claim and instead ask the Court to consider seven other documents contained in three separate cases as sufficient pleading and proof of inequitable conduct in this case. In looking at the pleading that is at issuethe Counterclaimthe Court finds that the KMPro parties have failed to plead inequitable conduct with particularity. The KMPro parties do not satisfy the specific pleading requirements. While the parties are generally identified, there are no specific allegations as to which party performed any acts. With regard to allegations of the place of the inequitable conduct, as noted above, a party alleging inequitable conduct generally alleges that inequitable conduct occurred before the USPTO when the party obtained the patent, and the party seeks the unenforceability of that patent. Here, the KMPRo parties are seeking unenforceability of trademarks that are not registered with the USPTO. Indeed, the allegations state that KM Mentor has tried to 1234 register a number of knowledge management-related trademarks with the USPTO but have abandoned most applications after initial negative action. There are no specifics as to what trademarks KM Mentor "tried to register" or when these attempts were made. As such, there does not appear to be allegations of inequitable conduct before the USPTO. The KMPRo parties are also seeking unenforceability of copyrights. The counterclaim merely states that KM Mentor and Weidner have applied for copyrights for materials that violate and infringe Hudson's and KMPro's marks. There is no further information or allegations relating to KM Mentor's or Douglas Weidner's copyrights. Accordingly, the Counterclaim is lacking in specifics as to the place of the inequitable conduct. In addition, the Court finds that the complaint is lacking in detail and particularity as to the time and content of the inequitable conduct. The KMPro parties have failed to state when KMMentor and Weidner made affirmative misrepresentations of material fact, failed to disclose material information, or submitted false information with the intent to deceive. The allegations in the Counterclaim are not specific as to what or to whom affirmative misrepresentations were made. There is no particularity as to the misrepresentation of the services. The Counterclaim also lacks specificity as to when the Counterclaim Defendants misrepresented material facts. Here, the Counterclaim is lacking in detail as to the specifics of the place, time, content of the alleged misrepresentations or omissions, and consequences of the misrepresentations. As such, the Court grants KM Mentor's motion for judgment on the pleadings as to Count XI.[25] Count XIIFraud The KMPro parties' thirteenth claim in Case No. 06-2381 is for fraud. They incorporate by reference the preceding 127 paragraphs of their Counterclaim and state that "Counterclaim Defendants and their agents . . . have knowingly, willfully, and materially misrepresented and concealed their identities and authority, and those of their agents . . . to a banking institution which misrepresentation allowed them to take funds belonging to KMPro." In addition, they state that KMPro's agent, the bank, was unaware of the falsity of the representations and the omissions and relied on them to KMPro's detriment. The parties agree that Virginia law applies to the fraud claim. Federal Rules of Civil Procedure 9(b) requires that "a party must state with particularity the circumstances constituting fraud or mistake." In Virginia, a cause of action for fraud requires: "(1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled."[26] "[T]he factors of a fraud claim that must be pled with particularity are `the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.'"[27] 1235 The Court finds that the KMPro parties' counterclaim is lacking in detail as to several elements. The allegations fail to specify the identity of the persons making the misrepresentations, as well as the time, place, and content of the false representations. Although the KMPro parties allege that misrepresentations were made, they do not allege with specificity anything about the misrepresentations. "Under Rule 9(b) and Virginia law, a fraud complaint must allege with particularity a false representation by defendant of a material fact with the intent to mislead, and that plaintiff reasonably relied on the representation to her detriment."[28] Here, the KMPro parties do not allege that false representations were made to the KMPro parties or that they relied on them. Instead, they allege that misrepresentations were made to a banking institution and the bank's reliance on the misrepresentations was to the KMPro parties' detriment. The KMPro parties conclusorily assert that they may maintain a fraud action because they have alleged that the bank, acting as their agent, justifiably relied on KM Mentor's misrepresentations to the KMPro parties' detriment. However, the KMPro parties do not direct the Court to any authority that stands for this proposition. "[U]nder Virginia law, only the party who actually relied on the alleged misrepresentation can maintain an action for actual fraud."[29] Here, there are no allegations that the KMPro parties relied on an alleged misrepresentation to their detriment. As such, it appears that the KMPro parties have not adequately pled fraud. KM Mentor has also filed a motion for partial summary judgment in which they assert that they are entitled to summary judgment on the KMPro parties' fraud claim because the KMPro parties have no evidence to support their claim.[30] In support of that motion, KM Mentor sets forth more specific facts than the Counterclaim does with regard to identity, time, place, and content of the false representations. The uncontroverted facts contain statements identifying the individuals who allegedly made the representations and the date on which the alleged representation was made.[31] As such, the Court is aware of some specifics with regard to the KMPro parties' fraud claim although the specifics are not set forth in the Counterclaim. However, one of the uncontroverted facts states that "KMPro did not rely upon the representations which form the basis of the fraud claim alleged in Count XIII of the Counterclaim." Two of the elements of a fraud claim require reliance by the party misled and resulting damage to the party misled. As stated above, only the party who relied on the misrepresentation has a fraud claim. As it is uncontroverted that KMPro did not rely upon misrepresentations, the KMPro parties cannot meet an essential element of a fraud claim in Virginia. Accordingly, the Court grants KM Mentor's motion for judgment on the pleadings as to Count XIII or in the alternative grants KM Mentor's motion for summary judgment as to Count XIII. 1236 KM Mentor's Motion for Judgment on the Pleadings (Doc. 87) is hereby granted in its entirety. IV. KM Mentor's Motion for Summary Judgment (Doc. 90) A. Legal Standard Summary judgment is appropriate if the moving party demonstrates that "there is no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law."[32] "An issue of fact is `genuine' if the evidence allows a reasonable jury to resolve the issue either way."[33] A fact is "material" when "it is essential to the proper disposition of the claim."[34] The court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party.[35] The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.[36] In attempting to meet this standard, the moving party need not disprove the nonmoving party's claim; rather, the movant must simply point out the lack of evidence on an essential element of the nonmoving party's claim.[37] If the moving party carries its initial burden, the party opposing summary judgment cannot rest on the pleadings but must bring forth "specific facts showing a genuine issue for trial."[38] The opposing party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."[39] Conclusory allegations alone cannot defeat a properly supported motion for summary judgment.[40] The nonmovant's "evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise."[41] The Court is also cognizant that it may not make credibility determinations or weigh the evidence when examining the underlying facts of the case.[42] B. Uncontroverted Facts[43] Preliminarily, the Court will address the trademarks at issue. In their statement of uncontroverted facts, KM Mentor sets forth approximately twenty-one registered and unregistered trademarks that they believe are at issue. For support, they rely on a statement of infringements filed by the KMPro parties on September 26, 2008. On September 18, 2008, in a Status Conference Order, Magistrate Judge 1237 O'Hara required the KMPro parties, as well as KM Mentor, to file a detailed statement about the marks at issue with respect to each count.[44] KM Mentor and the KMPro parties filed their statements on September 26, 2008.[45] The KMPro parties' statement of infringements include approximately six registered federal marks, thirty-five registered state marks, and thirteen unregistered, common law marks. Approximately nine months later, on June 15, 2009, the KMPro parties filed a motion to amend their complaint and counterclaims in each of the three consolidated cases.[46] They sought to add approximately forty-five additional marks. Although the KMPro parties only specifically referenced five marks in their motion, they also stated that they wanted to add all the marks stated in their Statement of Infringements filed on September 26, 2008. The consolidated cases were all filed in 2006, discovery deadlines had passed, and the dispositive motion deadline for all three cases was set for June 19, 2009. On August 14, 2009, the Court denied their motion for leave to amend the complaint noting that the KMPro parties' motion to amend was untimely.[47] The Court found that "the respective positions and strategies in the consolidated cases have been highly contentious, requiring numerous conferences, hearings, and rulings," and allowing the amendments "would require a new round of discovery and the refiling of numerous dispositive motions." The Court noted that discovery was closed and the dispositive motion deadline had passed. Accordingly, the Court did not allow the KMPro parties to amend their complaint to add additional marks. Generally, if a pretrial order has been entered, it governs the parties' claims.[48] Here, there is no pretrial order. Because there is no pretrial order and because the KMPro parties' motion to amend to add additional trademarks was denied, the Court will only address the trademarks included in the current complaints and counterclaims. The KMPro parties' current counterclaim in Case No. 06-2381 is Doc. 14, and their current complaint, the Second Amended Complaint, in Case No. 06-2461 is Doc. 49.[49] The trademarks included in this counterclaim and complaint are: (1) "CKM Instructor (CKMI)"-a federally registered mark and registered in Virginia; (2) "Certified Knowledge Leader (CKL)"-a federally registered mark; (3) "Certified Knowledge Manager (CKM)"-a mark registered 1238 in Kansas and Virginia; and (4) "Knowledge Management Certification Board (KMCB)"-a federally registered mark and a mark registered in Maryland and Virginia.[50] The marks are used in conjunction with providing knowledge management certification and training. "Knowledge management" describes "the technologies involved in creating, disseminating and utilizing knowledge data." "KM" is a commonly used abbreviation for "knowledge management." All of the parties are involved in the knowledge management field. KM Mentor, Douglas Weidner, Hudson Associates Consulting, Inc., and Dan Kirsch provide knowledge management training. A "knowledge manager" is generally a job title or role for a person working in the knowledge management field. A knowledge manager may be "responsible for coordinating the activities of other roles such as knowledge engineer and knowledge analyst." The term "knowledge manager" has been in use since at least 1995. John Leitch, KMPro's President, Dan Kirsch, Hudson's President, and Wayne Hulehan, KMPro's Treasurer, all state that knowledge managers are persons working in the knowledge management field and are involved in an organization's knowledge management efforts. Certified knowledge manager is a term for a "knowledge manager" who has been "certified," and the dictionary definition for "certified" indicates "one to whom a certificate or license has been issued." "CKM" is a commonly used acronym which may refer to "certified knowledge manager" or "certified knowledge management." "CKMI" is an acronym which refers to "Certified Knowledge Manager Instructor." "Certified Knowledge Leader" is a phrase that refers to one who is certified as a knowledge leader. "CKL" is an acronym that stands for "Certified Knowledge Leader." Douglas Weidner helped found KMCI, a knowledge management professional society, in 1998. He helped launch the first knowledge management training, called the "Certified Knowledge Manager (CKM) Program," in early 1999 for KMCI, and he was one of the program's first-time CKM instructors. From 1999 to 2001, on behalf of KMCI, Douglas Weidner provided KM training to individuals in association with the term "Certified Knowledge Manager (CKM)," "Certified Knowledge Manger," and "CKM." In early 2000, Douglas Weidner co-founded the Knowledge Management Certification Committee which held initial board meetings in February 2000. Subsequently, the other founder, Edward Swanstrom, moved to Tucson and incorporated it as Knowledge Management Certification Board Inc. (KMCB), affiliated with eKnowledgeCenter (eKC), Inc. In mid-2001, Douglas Weidner co-founded the Knowledge Management Professional Society (KMPro). The KMPro founders were Brandon Weidner, Eric Weidner, John Leitch, and one other individual. 1239 Douglas Weidner directed the KMPro Learning Center, and Leitch was President of KMPro. KMPro was to be a professional society with a focus on the CKM Program. From 2001 to 2004, through KM Mentor and on behalf of KMPro, Douglas Weidner provided KM training to individuals in association with the terms "Certified Knowledge Manager (CKM)," "Certified Knowledge Manager," and "CKM." Since 2001, Weidner has provided KM training and certification to more than 2,200 students from over forty countries. Since 2004, through the International Knowledge Management Institute, LLC ("IKMI"), Weidner has provided KM training in association with the terms "Certified Knowledge Manager (CKM)," "Certified Knowledge Manager," and "CKM." From 1999 through the present, there have been several organizations offering knowledge management training called "Certified Knowledge Manager (CKM)" training or a close variation thereof. Hudson is the registrant of a federally registered mark, "CKM Instructor (CKMI)." This mark was registered with the USPTO on December 27, 2005. In registering "CKM Instructor (CKMI)," the USPTO stated that Hudson "must disclaim the descriptive wording `CKM INSTRUCTOR' apart from the mark as shown because it merely describes the feature of the identified services."[51] The first use of the phrase "CKM Instructor (CKMI)," or any variation thereof, for business purposes was by Douglas Weidner in 2000.[52] Hudson is also the registrant of the federally registered mark, "Certified Knowledge Leader (CKL)." This mark was registered with the USPTO on March 21, 2006.[53] KMPro is the registrant of the federally registered mark, "Knowledge Management Certification Board (KMCB)." This mark was registered on April 11, 2006. In registering "Knowledge Management Certification Board (KMCB)," the USPTO stated that KMPro "must disclaim the descriptive wording `KNOWLEDGE MANAGEMENT CERTIFICATION BOARD' apart from the mark as shown because it merely describes the nature and type of services offered."[54] 1240 The first use of the phrase Knowledge Management Certification Board was by Edward Swanstrom in 2000 as a successor to the "Knowledge Management Certification Committee." No federal registration has been issued, but a Kansas and Virginia registration has been issued for the mark "Certified Knowledge Manager (CKM)."[55] All of the trademarks are used in conjunction with providing knowledge management certification and training. Douglas Weidner filed a trademark application for "CERTIFIED KNOWLEDGE MANAGER (CKM)" on June 30, 2004. He abandoned the application about a year later, after the USPTO advised him that "CERTIFIED KNOWLEDGE MANAGER (CKM)" is merely descriptive of the subject matter of the applicant's service. . . [and] CKM is a commonly recognized acronym for "CERTIFIED KNOWLEDGE MANAGER." Neither Douglas Weidner, Eric Weidner, Brandon Weidner, Wendy Johnson Weidner, IKMI, nor KM Mentor were aware of any business relationship between KMPro or Hudson and the U.S. Army or Cubic Defense Applications, Inc. before KMPro filed its lawsuit.[56] C. Analysis KM Mentor seeks summary judgment as to Counts I, II, III, IV, V, VI, VII, X, and XIII. The Court will address each claim. 1. Count I (Trademark Infringement under 15 U.S.C. § 1114)-Federally Registered Marks of CKM Instructor (CKMI), Certified Knowledge Leader (CKL), and Knowledge Management Certification Board (KMCB) "A trademark is a distinctive mark, symbol, or emblem used by a producer or manufacturer to identify and distinguish his goods from those of others."[57] "To be protectable, `a mark must be capable of distinguishing the products [or services] it marks from those of others.'"[58] To determine the degree of protection, there are five ascending categories: generic, descriptive, suggestive, arbitrary, and fanciful.[59] A mark is generic if it is a common description of products [or services] and refers to the genus of which the particular product [or service] is a species. A mark is descriptive if it describes the product's [or service's] features, qualities, or ingredients in ordinary language or describes the use to which the product [or service] is put. A mark is suggestive if it merely suggests the features of the product [or service], requiring the purchaser to use imagination, thought, and perception to reach a conclusion as to the nature of the goods [or services]. 1241 An arbitrary mark applies a common word in an unfamiliar way. A fanciful mark is not a real word at all, but is invented for its use as a mark.[60] If a term is generic, it is not eligible for protection because "the public has an inherent right to call a product or service by its generic name."[61] Suggestive, arbitrary and fanciful terms are entitled to the most protection.[62] Certain descriptive terms fall in the middle. Trademark protection is only available to marks that are distinctive.[63] "A mark that is merely descriptive of the characteristics, qualities, use or functions of the goods cannot be registered."[64] "A descriptive mark may be eligible for protection, but only if it has acquired a `secondary meaning' in the minds of the public."[65] "Saying that a trademark has acquired `secondary meaning' is shorthand for saying that a descriptive mark has become sufficiently distinctive to establish `a mental association in buyers' minds between the alleged mark and a single source of the product.'"[66] "The categorization of a mark is a factual question."[67] To establish a trademark infringement claim, a plaintiff must prove that: (1) the mark is valid and protectable; (2) defendant used the mark in commerce without consent; and (3) defendant's use of the mark is likely to cause confusion.[68] Under the Lanham Act, [a] certificate of registration of a mark upon the principal register provided by this chapter shall be prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner's ownership of the mark, and of the owner's exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate, subject to any conditions or limitations stated in the certificate.[69] The USPTO will not register a mark that is generic so "the fact that a mark is registered is strong evidence that the mark satisfies the statutory requirements for the distinctiveness necessary for trademark protection."[70] A registered mark creates a rebuttable presumption that the trademark is valid.[71] The way in which the trademark is registered with the USPTO may determine what type of presumption the registrant is entitled. If the USPTO "registers a mark without first requiring 1242 the applicant to prove secondary meaning, the holder of the mark is entitled to a presumption that its registered trademark is inherently distinctive, as opposed to merely descriptive."[72] The alleged infringer "may defend a suit on the ground that the mark does not merit protection because it is not inherently distinctive (i.e., not suggestive, arbitrary, or fanciful) but, rather, is merely descriptive of the product."[73] If the USPTO required the registrant to provide proof of secondary meaning and registered the mark under Section 2(f),[74] the registrant of the mark is entitled to a presumption that the mark has acquired distinctiveness, rather than inherent distinctiveness.[75] This is also a rebuttable presumption.[76] "In a case involving a registered trademark where acquired distinctiveness (i.e., secondary meaning) is an issue, the timing of the effectiveness of that presumption is crucial."[77] In any event, once the mark is registered, there is a presumption of validity that requires the party challenging the trademark to produce sufficient evidence to rebut the presumption. This presumption of validity "has a burden-shifting effect, requiring the party challenging a registered mark to produce sufficient evidence to establish that the mark is generic by a preponderance of the evidence."[78] "If sufficient evidence of genericness is produced to rebut the presumption, the presumption is neutralized and essentially drops from the case, although the evidence giving rise to the presumption remains."[79] Similarly, a party may rebut the presumption of inherent descriptiveness or acquired distinctiveness by producing sufficient evidence that the mark is merely descriptive or that the mark does not have secondary meaning.[80] If a mark has not been registered with the USPTO, the plaintiff is not entitled 1243 to a presumption of validity but instead bears the burden of establishing the validity of the mark.[81] a. Generic KM Mentor asserts that the KMPro parties' marks are generic. A term is generic if it is used to describe the relevant product or service. If a term is generic because it refers to a general class of goods and does not indicate the particular source of an item, it does not receive trademark protection.[82] To determine whether a term is generic, some courts have relied upon the "Who are you? What are you? test."[83] "A mark answers the buyer's questions `Who are you?' `Where do you come from?' `Who vouches for you?' But the name of a product answers the question `What are you?'"[84] Because a term may answer both questions simultaneously, "[t]he primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used."[85] "The generic name of a productwhat it iscan never serve as a trademark."[86] "When the relevant public ceases to identify a trademark with a particular source of a product or service but instead identifies the mark with a class of products or services regardless of source, that mark has become generic and is lost as an enforceable trademark."[87] To rebut the presumption that a mark is not generic, the alleged infringer "must offer sufficient proof that `the primary significance of the mark [is] its indication of the nature or class of the product or service, rather than an indication of source.'"[88] In addition, "the evidence must demonstrate the generic understanding of the mark from the viewpoint of the relevant public."[89] "Evidence offered to rebut the presumption of validity may come from any number of sources, including purchaser testimony, consumer surveys, listings and dictionaries, trade journals, newspapers, and other publications."[90] Additionally, evidence of genericness may come from "generic use by competitors, generic use of the term by the mark's owners, and use of the term by third parties in trademark registrations."[91] In this case, the marks are compound and also involve an abbreviation or acronym. 1244 The Court must determine their validity by looking at the mark as a whole because "[c]ertain terms may connote more than the sum of their parts."[92] However, some composite terms "are nothing more than the sum of their parts."[93] "[I]f the components of a trade name are common descriptive terms, a combination of such terms retains that quality."[94] "Abbreviations for generic or common descriptive phrases must be treated similarly."[95] It is KM Mentor's burden to demonstrate that CKM Instructor (CKMI), Certified Knowledge Leader (CKL), and Knowledge Management Certification Board (KMCB) are generic because these marks are registered with the USPTO. The question with regard to whether these three marks are generic is whether the primary significance to the relevant public is an indication of the general class of product. Neither party specifically defines who the "relevant public" is, but the Court concludes that it is individuals interested in obtaining or purchasing knowledge management training. Here, KM Mentor offers evidence of dictionary definitions, testimony from several individuals in the knowledge management field regarding certain knowledge management terms, and excerpts from knowledge management articles and books. In addition, KM Mentor has provided copies of the KMPro parties' registrations with the USPTO as to several of their registered trademarks.[96] KM Mentor contends that this evidence demonstrates that these marks are generic. All of the marks at issue are composite marks that also involve an abbreviation or acronym. With regard to the evidence provided by KM Mentor, it appears to be more specific with respect to Certified Knowledge Manager (CKM) and not the three federally registered marks. In addition, while KM Mentor has provided the Court with copies of the KMPro parties' registrations, these are not helpful. The USPTO required the KMPro parties to disclaim the phrases apart from the entire mark because they were merely descriptive as they merely describe the feature of the identified services.[97] This would make it appear that the acronym is at issue, but the Court must look at the mark as a whole rather than examining its parts individually.[98] The fact that the USPTO registered the mark, with the disclaimer of the phrase, makes it appear to the Court that the USPTO was also aware of the acronym but nevertheless allowed registration of the marks. As noted above, the 1245 USPTO will not register generic marks and there is strong presumption that a mark is not generic if it is registered. Although the Court finds that KM Mentor has produced some evidence suggesting the mark is generic, it finds that it is insufficient to overcome the presumption of validity. b. Merely Descriptive & Secondary Meaning KM Mentor also asserts that if these marks are not generic, they are merely descriptive and lack secondary meaning. As stated above, the way in which a mark is registered may affect the presumption of validity. If the USPTO registered the mark without proof of secondary meaning, the registrant is entitled to the presumption that the mark is inherently distinctive. The alleged infringer may rebut the presumption by providing sufficient evidence that the mark is merely descriptive. If the USPTO required the applicant to provide proof of secondary meaning, the registrant is entitled to the presumption that the mark has acquired distinctiveness. In any event, if a mark is registered with the USPTO, there is a presumption that it is not merely descriptive because it must either be inherently distinctive or have acquired distinctiveness.[99] In this case, it is not clear how the USPTO registered these three marks. KM Mentor provides argument as to both inherent distinctiveness and acquired distinctiveness. The KMPro parties merely state that the marks are § 1(a) Registered Marks. The USPTO required the KMPro parties to disclaim the phrase in the marks as merely descriptive, leaving only the abbreviation at issue. This makes it appear that the marks may have been registered on the basis of secondary meaning, but this is not clear.[100] Because the record is unclear as to how the three marks at issue were registered and therefore what presumption the KMPro parties are entitled to, the Court will not engage in a detailed analysis with respect to descriptiveness and secondary meaning.[101] Suffice to say, the KMPro parties are entitled to a presumption of validity and the Court concludes that KM Mentor has not produced sufficient probative evidence at this time to overcome the presumption of validity.[102] Furthermore, if the issue comes down to secondary meaning, the question of whether a trademark has acquired secondary meaning is generally a question of fact and should not be decided in a summary fashion.[103] As such, KM Mentor's motion for summary judgment as to Count I is denied. 1246 2. Count III (Kansas Trademark Act)-Certified Knowledge Manager (CKM) Certified Knowledge Manager (CKM) is not federally registered, but it is registered in Kansas. "The Kansas Trademark Act is the state counterpart of the Lanham Act."[104] K.S.A. § 81-220(b) states: The intent of this act is to provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the trademark act of 1946, as amended. To that end, the construction given the federal act should be examined as persuasive authority for interpreting and construing this act. The elements of proof under both the Kansas Trademark Act and the federal Lanham Act "are identicalin order to claim a protected interest, the party must establish ownership of, or a protectable interest in, the trademark."[105] Although the Kansas Trademark Act is a counterpart to the Lanham Act and construction of the federal act should be examined as persuasive authority, the mark registered in Kansas is not entitled to a presumption of validity.[106] Under the Lanham Act, there is a statutory presumption of validity with respect to registered marks. 15 U.S.C. § 1115(a) provides that "a mark registered on the principal register. . . shall be admissible in evidence and shall be prima facie evidence of the validity of the registered mark. . . ." This presumption is not provided by the Kansas Trademark Act.[107] In addition, it appears that the requirements for registering a mark in Kansas do not involve the same requirements as registering a mark with the USPTO. There are no provisions in the Kansas Trademark Act similar to the Lanham Act which provide for a detailed application process, publication of the application, and an examination by an examiner.[108] Indeed, it appears that the KMPro parties filed their application for registration of this mark in early February 2006, and the registration was granted within days.[109] Because Kansas does not have the detailed and structured requirements for registering marks 1247 as the Lanham Act and does not specifically provide for a statutory presumption of validity upon registration, there is no presumption of validity with respect to the mark registered in Kansas. Accordingly, the KMPro parties have the burden in demonstrating that they have a valid and protectable mark and that it is not generic. KM Mentor contends that this mark is generic.[110] Here, KM Mentor sets forth evidence of testimony from several individuals in the knowledge management field, including key individuals from KMPro, that the term "knowledge manager" generally refers to a job title or person working the knowledge management field. The dictionary definition for "certified" indicates "one to whom a certificate or license has been issued." In addition, KM Mentor has provided excerpts of several knowledge management books and articles reflecting the use of certified knowledge manager, as well as a job posting for a Certified Knowledge Manager. There is also evidence that CKM is a commonly used acronym for certified knowledge manager. Furthermore, KM Mentor has provided a copy of Weidner's USPTO application in which the examining attorney found that the proposed mark merely describes the goods/services. The USPTO's examining attorney stated that it was merely descriptive of the subject matter of the applicant's services and that Certified Knowledge Manager and CKM were common industry terms. Because of the widespread use of these terms, the USPTO's examining attorney refused Weidner's application. Although it is the KMPro parties' burden to demonstrate that they have a protectable mark, they have failed to come forward with evidence. The KMPro parties have not provided the Court with any evidence, such as consumer surveys or the use of the term in media publications indicating that the term Certified Knowledge Manager (CKM) is not generic or merely descriptive. As noted, the KMPro parties do not specifically respond to the motion in Case No. 06-2381 and with respect to the response filed in Case No. 06-2461, they provide no evidence for support of their contentions and denials as they do not attach any exhibits and frequently fail to cite to the record.[111] Here, the mark Certified Knowledge Manager (CKM) is a combination of three words, all individually disclaimed, followed by an acronym that is the first letter of these three words. The combination of these three component words does not change the genericness or descriptiveness of the three component words. The words simply indicate that an individual is a certified knowledge manager. The acronym CKM, as recognized by the USPTO examining attorney and numerous individuals involved in the knowledge management field, simply stands for certified knowledge manager. Here, the term indicates a general class of goods and merely describes the type of product. KM Mentor has put forth evidence as to the genericness of this term and the KMPro parties have simply not directed the Court to any relevant evidence that 1248 this term is not generic. As such, KM Mentor is granted summary judgment as to Count III. 3. Count II (Unfair Competition under 15 U.S.C. § 1125(a)); Count IV (Common Law Unfair Competition); Count VI (Contributory Trademark Infringement); and Count VI (Cybersquatting) As to Counts II, IV, VI, and VII, ownership of a distinctive and protectable mark is also an essential prerequisite of each of these claims.[112] Relying on their previous argument that the marks are neither distinctive nor protectable, KM Mentor contends that they are entitled to summary judgment as to these four claims. For the reasons stated above that the Court cannot conclude as a matter of law that the three federally registered marks are not distinctive and protectable, the Court denies KM Mentor's motion for summary judgment as to these four counts with respect to the three federally registered marks. With respect to the mark registered in Kansas, because the Court has concluded that there is no protectable interest in this mark, the Court grants KM Mentor's motion for summary judgment on these four counts with respect to the mark registered in Kansas. 4. Count VTortious Interference with Business Expectancies The parties cite to both Virginia and Kansas law. Under Virginia law, the elements required for a prima facie showing of tortious interference are: (I) the existence of a valid contractual relationship or business expectancy; (ii) knowledge of the relationship or expectancy on the part of the interferor; (iii) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (iv) resultant damage to the party whose relationship or expectancy has been disrupted.[113] Under Kansas law, the required elements are: (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate cause of defendant's misconduct.[114] 1249 Under either Virginia or Kansas law, knowledge of the relationship or expectancy on the part of the interferor is required. Here, Douglas Weidner asserts that he and KM Mentor were not aware of any business relationship between KMPro or Hudson and the U.S. Army or Cubic Defense Applications. The KMPro parties have not directed the Court to any evidence showing that there is a genuine issue of material fact as to whether Douglas Weidner or KM Mentor had knowledge of the KMPro parties' business relationship or expectancy with the U.S. Army and its contractor, Cubic. Furthermore, the KMPro parties have not directed the Court to any evidence as to the existence of a business relationship or expectancy with respect to the U.S. Army or its contractor, Cubic. Finally, the KMPro parties have not directed the Court to any evidence as to the other elements of a tortious interference claim. As such, KM Mentor is entitled to summary judgment on the KMPro parties' tortious interference claim. 5. Count XCivil Conspiracy to Tortiously Interfere, Infringe Marks, and Unfairly Compete "A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means."[115] KM Mentor contends that there is no evidence that they entered into an agreement to perform an illegal act or perform a legal act in an improper manner. Douglas Weidner asserts that neither he nor KM Mentor "ever agreed with any other person to tortiously interfere with any contract or business relationship of KMPro or Hudson to infringe any trademark rights belonging to KMPro or Hudson, or to unfairly compete with them in any way." In response, the KMPro parties do not direct the Court or provide the Court with any evidence indicating a genuine issue with respect to whether a conspiracy existed. Accordingly, KM Mentor is granted summary judgment on this claim. 6. Count XIIFraud This claim was addressed above, and the Court granted KM Mentor's motion for judgment on the pleadings as to this claim or in the alternative its motion for summary judgment. As such, the Court will not address it here. Accordingly, KM Mentor is denied summary judgment as to Count I and granted summary judgment as to Counts III, V, X, and XIII. With respect to Counts II, IV, VI, and VII, KM Mentor is granted summary judgment in part with respect to the Kansas mark and denied summary judgment in part with respect to the three federally registered marks. V. The KMPro Parties' Motions for Summary Judgment The standards for summary judgment and the local rule requirements for summary judgment briefing were set forth above.[116] 1250 A. KM Mentor's Motion to Strike (Doc. 111) Before addressing the substance of the KMPro parties' motions for summary judgment and the uncontroverted facts, the Court will address KM Mentor's objections to two declarations filed in support of the KMPro parties' motion for summary judgment. KM Mentor filed a Second Motion to Strike Declarations Filed in Support of Motion for Partial Summary Judgment (Doc. 111).[117] They argue that the declarations of John Leitch and Dan Kirsch should be stricken as lacking personal knowledge and for offering inadmissible legal and expert opinion, hearsay, irrelevant information, and conclusory statements based upon an insufficient foundation. Specifically, KM Mentor references two of the seven paragraphs contained in Kirsch's affidavit and twenty-two of the forty-nine paragraphs contained in Leitch's affidavit. In response, it appears that the KMPro parties assert that rather than strike the affidavits, the Court should instead disregard any portion that does not contain admissible evidence. In addition, they contend that the declarations contain admissible evidence based on the declarant's personal knowledge gained from knowledge of the Weidner parties. Fed.R.Civ.P. 56(e)(1) provides: A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. D. Kan. Rule 56.1(d) also provides: All facts on which a motion or opposition is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answer to interrogatories and responses to requests for admissions. Affidavits or declarations shall be made on personal knowledge and by a person competent to testify to the facts stated which shall be admissible in evidence. Where facts referred to in an affidavit or declaration are contained in another document, such as a deposition, interrogatory answer, or admission, a copy of the relevant excerpt from the document shall be attached. "Under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to."[118] "[S]tatements of mere belief in an affidavit must be disregarded."[119] The court should also disregard legal conclusions.[120]1251 In addition, the substance of the evidence contained in an affidavit must be admissible at trial, and the court "should disregard inadmissible hearsay statements contained in affidavits."[121] "[C]onclusory and self-serving affidavits are not sufficient."[122] To enforce Fed.R.Civ.P. 56(e), "the court ordinarily does not strike affidavits, but simply disregards those portions that are not shown to be based upon personal knowledge or otherwise do not comply with Rule 56(e)."[123] Leitch's Declaration The Court will not strike the affidavit in its entirety but will instead disregard the paragraphs that do not comply with Fed. R.Civ.P. 56(e) and D. Kan. Rule 56.1(d). KM Mentor objects to 22 of the 49 paragraphs contained in Leitch's declaration. With regard to Paragraphs 3, 8, 25, and 29, these specific paragraphs are not cited to in the KMPro parties' fact section in their summary judgment motion. As such, the Court will not address the admissibility of these paragraphs. As to Paragraphs 22, 30-37, 39, 44, and 48, these are not based on personal knowledge. These paragraphs, therefore, are stricken. As to Paragraphs 33, 37, 38, 40, and 43, these are conclusory and attempt to state a legal conclusion. These paragraphs, therefore, are stricken. Paragraph 42 is unintelligible and the Court therefore did not rely upon it. As to Paragraphs 24 and 44, these statements appear to rely on facts outside Leitch's personal knowledge, and there is no supporting document attached or referenced.[124] As such, these paragraphs are stricken. The other paragraphs not specifically mentioned remain in the affidavit. Kirsch's Declaration The Court notes that it cannot accurately read paragraphs 5 through 7 of Kirsch's declaration.[125] Nevertheless, KM Mentor asserts that paragraphs 6 and 7 should be stricken because they are not based on personal knowledge. However, these specific paragraphs are not cited to in the KMPro parties' fact section in their summary judgment motion, and the Court cannot read these factual contentions in the declaration. As such, the Court will not address the admissibility of these paragraphs. Accordingly, KM Mentor's Second Motion to Strike Affidavit (Doc. 111) is hereby denied, but the Court has stricken the paragraphs within Leitch's affidavit not based on personal knowledge or merely stating legal conclusions. B. Defendants Kirsch's, Leitch's, and Hulehan's Motion for Summary Judgment (Doc. 96) Defendants Kirsch, Leitch, and Hulehan assert that KMPro is a nonprofit corporation incorporated under the laws of Maryland, which is organized and conducted for public benefit and operated primarily for charitable, civic and/or educational purposes. They assert that they, as individual defendants, are immune from liability because they were working as volunteers 1252 for a nonprofit corporation. The Court finds that there is a genuine issue of fact as to the fact of primary importance. The first premise of Defendants' argument is based on the alleged undisputed fact that KMPro is a non-profit corporation. This fact, however, is not supported by the record and is in dispute.[126] Defendants Kirsch, Leitch, and Hulehan have not demonstrated that there is no genuine issue as to this material fact. Accordingly, the Court denies Defendants Kirsch's, Leitch's, and Hulehan's motion for summary judgment (Doc. 96). C. The KMPro Parties' Motion for Summary Judgment (Doc. 98) 1. Analysis The KMPro parties seek summary judgment as to Counts I, II, III, and IX.[127] The Court will address each claim.[128] a. Count I (Copyright Infringement) and Count II (Contributory Copyright Infringement) KM Mentor asserts claims of copyright infringement and contributory copyright infringement against the KMPro parties. In the Complaint, KM Mentor asserts that it has complied with the Copyright Act and has filed for and received a copyright registration for the course content for the award of a Certified Knowledge Manager certification and derivative materials, a part of the Certified Knowledge Manager (CKM ) Program. These registrations are designated TX 6-109-725 and TX 6-109-726,[129] and copies of these registrations are attached to the Complaint. The Complaint also alleges that KM Mentor has filed for and received a copyright registration for material presented in its website and other advertising materials. This registration is issued TXu X-XXX-XXX, and a copy is attached to the Complaint. In addition, KM Mentor states that it has filed an application for copyright registration for an electronic version of materials and that a true and correct copy of this registration will be forwarded to the Court upon receipt from the Copyright Office. Plaintiffs attached to the Complaint their registration application, but there was no registration number 1253 as one had not been given by the United States Copyright Office.[130] Since the development of the Training Products and the Certified Knowledge Manager (CKM ) Program and Advertising Material, KM Mentor alleges that it has been and still is the sole proprietor of all of its rights in the copyrights in the Certified Knowledge Manager (CKM) Program and Advertising Material, and Defendants have violated and infringed its copyrights. The four registrations indicate that the name of the author and the copyright claimant is Douglas Thom Weidner. "To establish copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) unauthorized copying of constituent elements of the work that are original."[131] A certificate of registration from the United States Copyright Office is usually "prima facie evidence of a valid copyright and of the facts stated in the certificate."[132] The defendant will then bear the burden of overcoming the presumption of validity.[133] "To rebut the presumption, however, a defendant sued for infringement must simply offer some evidence or proof to dispute or deny the plaintiff's prima facie case of infringement."[134] The KMPro parties assert that KM Mentor has failed to meet the threshold requirement of copyright ownership because of the inadequacy of their pleadings. They assert that KM Mentor has pled that it is the owner of the copyrights at issue and that it is the party bringing the claim, but the evidence demonstrates that Douglas Weidner is the registrant and owner of the copyrights. They claim that the certificate of registration is not entitled to a presumption of validity because of the inconsistent assertions in the complaint. Because Weidner is named as the author and copyright claimant in the certificate registration and it appears from the complaint that KM Mentor is making the copyright claim, the KMPro parties contend that KM Mentor has not established ownership of a valid copyright. In sum, the KMPro parties assert that KM Mentor has no valid copyright claim because KM Mentor has failed to establish that it is the owner of a valid copyright. KM Mentor states that the copyright infringement and contributory copyright infringement claims were intended to be brought by both KM Mentor and Douglas Weidner. In addition, they state that they have provided evidence to demonstrate that KM Mentor is the exclusive licensee, 1254 beneficial owner, or assignee of the copyrighted material at issue. Accordingly, KM Mentor contends that it is a proper party and has standing to pursue the copyright infringement claims. In response to the KMPro parties' motion for summary judgment, Weidner provides an affidavit in which he states that in 2001, he created written training materials for the Certified Knowledge Manager (CKM) workshop and subsequently obtained several copyright registrations for the Certified Knowledge Manager (CKM) Program Workshop Materials. Weidner is the President of KM Mentor. When KM Mentor became a limited liability company in 2002, Weidner granted KM Mentor an exclusive license to these training materials. On August 6, 2009, Weidner and KM Mentor executed a "Memorandum of Exclusive License" in which it states that it is to memorialize an exclusive license granted and effective between Weidner and KM Mentor as of March 19, 2002. In addition, in this written document, Weidner assigns to KM Mentor all causes of action and all rights to sue for infringement. The copyright owner, or the owner of the exclusive right to the copyright, may bring a claim for copyright infringement so long as the infringement occurred during the time the party owned the copyright rights.[135] 17 U.S.C. § 501(b) provides in part that "[t]he legal or beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it." The transfer of a copyright must be in writing to be valid.[136] Under 17 U.S.C. § 204(a), "[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." Several circuits have determined that an alleged third-party infringer does not have standing to invoke § 204(a).[137] "[T]he chief purpose of section 204(a), (like the Statute of Frauds), is to resolve disputes between copyright owners and transferees and to protect copyright holders from persons mistakenly or fraudulently claiming oral licenses or copyright ownership."[138] "[W]here there is no dispute between the copyright owner and the transferee about the status of the copyright, it would be unusual and unwarranted to permit a third-party infringer to invoke section 204(a) to avoid suit for copyright infringement."[139] In this case, there was no written transfer of ownership or rights between Weidner, author and registrant of the copyrights, and KM Mentor until August 6, 2009.[140] Weidner and KM Mentor agree as to the status of the copyrights and license, and the KMPro parties, as alleged third-party infringers, do not have standing to challenge the lack of a writing evidencing 1255 the transfer of the copyrights between Weidner and KM Mentor. In addition, numerous courts have determined that an oral assignment of copyright rights later reduced to writing satisfies the writing requirement of § 204(a).[141] "Courts have also enforced oral assignments which were not reduced to writing until after trial commenced."[142] While the assignment and exclusive license from Weidner to KM Mentor was not reduced to writing until after litigation commenced, this does not preclude KM Mentor from pursuing the copyright claims. KM Mentor has demonstrated there is a genuine issue of material fact as to ownership because KM Mentor has produced sufficient evidence demonstrating that it may assert a copyright infringement claim if it is the exclusive licensee of the copyrights. Accordingly, the KMPro parties' motion for summary judgment as to Counts I and II of the Complaint is denied. b. Count III (Infringement of Trademark Acts) The KMPro parties assert that KM Mentor should be required to come forward with facts showing that there is a genuine issue of fact as to which KM Mentor carries the burden at trial. Yet, the KMPro parties have failed at their initial burden. They have the burden in demonstrating to the Court the absence of a genuine issue of material fact with regard to an essential element of the nonmoving party's claim. The KMPro parties have not even identified to the Court the trademarks at issue. As such, the KMPro parties' motion for summary judgment on Count III is denied. c. Count IXBreach of Contract There are numerous disputes as to material facts. As noted above, the KMPro parties frequently state that these facts are subject to proof at trial. Accordingly, the KMPro parties' motion for summary judgment as to Count IX is denied.[143] The KMPro parties' motion for partial summary judgment (Doc. 98) is denied in its entirety. IT IS ACCORDINGLY ORDERED this 13th day of May, 2010 that KM Mentor's Motion for Judgment on the Pleadings (Doc. 87) is hereby granted. IT IS FURTHER ORDERED that KM Mentor's Motion for Partial Summary Judgment (Doc. 90) is hereby granted in part and denied in part. KM Mentor is denied summary judgment as to Count I and granted summary judgment as to Counts III, V, X, and XIII. With respect to Counts II, IV, VI, and VII, KM Mentor is granted summary judgment in part with respect to the Kansas mark and denied summary judgment in part with respect to the three federally registered marks. IT IS FURTHER ORDERED that KM Mentor's Second Motion to Strike Declarations in Support of Motion for Summary Judgment (Doc. 111) is hereby denied. 1256 The Court disregarded any statements not based on personal knowledge or stating legal conclusions. IT IS FURTHER ORDERED that Defendants Kirsch's, Leitch's, and Hulehan's Motion for Summary Judgment (Doc. 96) is hereby denied. IT IS FURTHER ORDERED that the KMPro Parties' Motion for Partial Summary Judgment (Doc. 98) is hereby denied. IT IS SO ORDERED. NOTES [1] Martin H. Fischer, Encore: A Continuing Anthology, "Fischerisms" p. 309 (Dent Smith ed., 1945); also available at http://km.nasa.gov/whatis/KMQuotes.html. [2] In Case No. 06-2195, the plaintiff is Triple-I. The defendants and counter-plaintiffs are Hudson Associates Consulting, Inc. and Knowledge Management Professional Society. The remaining Triple-I claims are: (1) cancellation of trademark under K.S.A. § 81-210; (2) tortious interference with business advantage; (3) cancellation of the mark "Certified Knowledge Leader (CKL)" under the Lanham Act; and (4) cancellation of the mark "CKM Instructor (CKMI)" under the Lanham Act. Two claims, fraudulent representation under K.S.A. § 81-212 and cancellation of the Kansas and Virginia marks under the Lanham Act, were previously dismissed. The KMPro parties' counterclaims are: (1) trademark infringement under 15 U.S.C. § 1114; (2) unfair competition under 15 U.S.C. § 1125; (3) state trademark acts; (4) common law unfair competition; (5) tortious interference with business expectancies; (6) contributory trademark infringement; and (7) civil conspiracy to tortiously interfere, infringe marks, and unfairly compete. [3] In Case No. 06-2381, the plaintiffs are KM Mentor and Douglas Weidner ("KM Mentor"). The defendants and counter-plaintiffs are Hudson Associates Consulting, Inc., Knowledge Management Professional Society, Dan Kirsch, John Leitch, and Wayne Hulehan ("the KMPro parties"). None of the parties in Case No. 06-2381 reside in Kansas. KM Mentor's remaining claims are: (1) copyright infringement; (2) contributory copyright infringement; (3) infringement of trademark acts; (4) cybersquatting; (5) fraud; (6) conversion; (7) unfair competition; (8) false advertising under Virginia law; (9) breach of contract; (10) unjust enrichment; (11) misappropriation of trade secrets; and (12) conspiracy to injure trade or business. KM Mentor's defamation claim was previously dismissed. The KMPro parties' counterclaims are: (1) trademark infringement under 15 U.S.C. § 1114; (2) unfair competition under 15 U.S.C. § 1125; (3) revised Kansas Trademark Act; (4) common law unfair competition; (5) tortious interference with business expectancies; (6) contributory trademark infringement; (7) cybersquatting; (8) breach of contract; (9) Virginia Computer Crimes Act violations; (10) civil conspiracy to tortiously interfere, infringe marks, and unfairly compete; (11) declaration of copyright and common law trademark unenforceability; (12) conversion; and (13) fraud. [4] In Case No. 06-2461, the plaintiffs are Hudson Associates Consulting, Inc., Knowledge Management Professional Society, and Dan Kirsch ("the KMPro parties"). The defendants are Eric Weidner, Wendy Weidner, Brandon Weidner, International Knowledge Management Institute (IKMI), Ronald Dysvick, Robert Spachman, and Knowledge Central Corporation. None of the parties in Case No. 06-2461 reside in Kansas. The KMPro parties' claims are: (1) trademark infringement under 15 U.S.C. § 1114 (against all named defendants); (2) unfair competition under 15 U.S.C. § 1125 (against all named defendants); (3) revised Kansas Trademark Act (against all named defendants); (4) common law unfair competition (against all named defendants); (5) tortious interference with business expectancies (against all named defendants); (6) contributory trademark infringement (against all named defendants); (7) cybersquatting (against IKMI and Weidners); (8) Virginia Computer Crimes Act violations (against IKMI and Weidners); (9) defamation (against Knowledge Central and Dysvick); (10) civil conspiracy to tortiously interfere, infringe marks, and unfairly compete (against all named defendants); and (11) declaration of copyright and common law trademark unenforceability (against IKMI and Weidners). [5] D. Kan. Rule 56.1(a). [6] One example is as follows: In Case No. 06-2381, KM Mentor filed their motion for partial summary judgment (Doc. 90). In response, the KMPro parties filed a two-page opposing memorandum stating that the facts in KM Mentor's memorandum do not differ materially from those facts set forth in Doc. 64 in Case No. 06-2461 and that the denials of those facts in their response to Doc. 64 are "equally relevant." Notably, the KMPro parties do not direct the Court to their specific document. In addition, the KMPro parties assert that they "further incorporate by this reference their factual response, arguments and authorities set forth in opposition to the very similar memoranda in support of Triple-I's two motions for partial summary judgment on behalf of Triple-I, Doc. 409/412, and on behalf of Spachman, Dysvick and Knowledge Central Corporation, Doc. 410/415." The KMPro parties state that their factual responses to these memorandums are "equally pertinent," but again, they do not direct the Court to their specific documents. In Case No. 06-2461, the Court can determine that the responsive document is Doc. 83. In Doc. 83, the KMPro parties frequently deny facts but fail to cite to the record or provide evidence to the Court for support of their denial. Responding to a fact by stating "denied, objection" and then making generalized and/or specific statements with no citation to any evidence for support of the denial does not appropriately controvert a fact for summary judgment. For example, fact number 73 is "denied," and there is an almost two page listing of certain documents that appear to reference Bates stamped documents. Yet, the KMPro parties do not list these documents as exhibits to this responsive document or inform the Court that these documents are provided as exhibits. Indeed, no exhibits were attached or filed with Doc. 83 in Case No. 06-2461. It does not appear that the briefs filed with the Court were even proofread. As such, the KMPro parties do not appropriately controvert most facts that they contend are in dispute. [7] This is problematic because in Case No. 06-2381, the KMPro parties reference Case No. 06-2195 and state that they incorporate by reference their response to Doc. 409/412. However, Doc. 409 and Doc. 412 do not go together. Doc. 409 is Triple-I's Motion for Summary Judgment on Unfair Competition Counterclaims and the supporting memorandum for this motion is contained in Doc. 414. Doc. 408 is a Motion for Partial Summary Judgment on Counts I and III and the supporting memorandum for this motion is contained in Doc. 412. As such, the Court is not even sure to which response the KMPro parties are directing the Court. The problem is further compounded because even if the Court considers the documents to which it believes it may be directed, it does not appear that these documents are responsive. For example, the KMPro parties incorporate by reference and direct the Court to their response to Doc. 409/412 in Case No. 06-2195. As noted above, these documents do not go together. However, assuming the KMPro parties meant to reference their response to Doc. 409/414, their response is Doc. 442. This is a two-page document, and it states that the KMPro parties incorporate by reference all of their responses to Triple-I's facts in Doc. 439. In addition, the KMPro parties incorporate by reference all the legal authorities contained in their Opposition to Triple-I Corporation's Motion for Judgment on the Pleadings (Doc. 338). The KMPro parties have now directed the Court to numerous documents in multiple cases, and it is entirely unclear to the Court how these documents address the eighty-three specific facts set forth in Case No. 06-2381. [8] Boldridge v. Tyson Foods, Inc., 2007 WL 1299197, at 2 (D.Kan. May 2, 2007) (citing Caffree v. Lundahl, 143 Fed.Appx. 102, 106 (10th Cir.2005) and SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1513-14 (10th Cir.1990) (stating that not only will the court not sift through the record to find support for an argument, the court will not manufacture arguments for the party)). [9] Boldridge, 2007 WL 1299197, at 2; see also Cross v. The Home Depot, 390 F.3d 1283, 1291 (10th Cir.2004). [10] Boldridge, 2007 WL 1299197, at 2 (citation omitted). [11] Gross v. Burggraf Const. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (citations omitted). See also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). [12] Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964); see also Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.1996). [13] Neither party has briefed the issue as to whether the transferee or transferor circuit's law would be binding precedent on this Court with regard to the parties' federal claims. At least one district court has found that when a case is transferred pursuant to 28 U.S.C. § 1404(a) and jurisdiction was founded on the basis of federal question jurisdiction, the district court must apply the transferee circuit's law as binding precedent. See Hartline v. Sheet Metal Workers' Nat'l Pension Fund, 201 F. Supp. 2d 1, 2-4 (D.D.C.1999); see also Center Cadillac, Inc. v. Bank Leumi Trust Co., 808 F. Supp. 213, 222-24 (S.D.N.Y.1992). Without deciding this issue, the Court will first consider Tenth Circuit opinions as the case is now located in the District of Kansas and then Fourth Circuit opinions because this case was first filed in the Eastern District of Virginia. The Court does not discern any noticeable conflicts. [14] Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir.2003); see also Cappetta v. GC Services Ltd. P'ship, 654 F. Supp. 2d 453, 456 (E.D.Va. 2009) (citing Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). [15] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). [16] Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). [17] Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.2008). [18] Adams Respiratory Therapeutics, Inc. v. Perrigo Co., 255 F.R.D. 443, 447 (W.D.Mich. 2009); see also Thermal Solutions, Inc. v. Imura Int'l U.S.A., Inc., 2008 WL 4499967, at 1 (D.Kan. Oct. 2, 2008). [19] That case is Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc., 2008 WL 2817106, at 5 (E.D.Mo. July 21, 2008). [20] Applied Interact, LLC v. Continental Airlines, Inc., 2008 WL 177740, at 6 (E.D.Va. Jan. 17, 2008) (citing Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995)). [21] Id. at 3-6 (compiling cases); see also Thermal Solutions, 2008 WL 4499967, at 2. [22] See Koch v. Koch Indus. Inc., 203 F.3d 1202, 1236 (10th Cir.2000); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). [23] Applied Interact, 2008 WL 177740, at 7 (citations omitted). [24] Id. [25] Both parties assert that should the Court determine that their complaint is lacking in specifics or is inconsistent, they seek leave to amend the pleadings. The Court denies these requests. [26] Richmond Metro. Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553, 507 S.E.2d 344, 346 (1998) (citations omitted). [27] Frank Brunckhorst CO., L.L.C. v. Coastal Atl., Inc., 542 F. Supp. 2d 452, 460 (E.D.Va. 2008) (quoting Harrison, 176 F.3d at 784). See also Koch, 203 F.3d at 1236. [28] Kline v. Nationsbank of Virginia, N.A., 886 F. Supp. 1285, 1295 (E.D.Va.1995). [29] RBA Capital, LP v. Anonick, 2009 WL 960090, at 4 (E.D.Va. Apr. 8, 2009) (citations omitted). [30] KM Mentor's argument as to summary judgment on the fraud claim is in Doc. 91 in Case No. 06-2381. [31] The Court notes that these individualsEric Weidner and Brandon Weidnerare not parties to this particular lawsuit but are instead parties in Case No. 06-2461. [32] Fed.R.Civ.P. 56(c). [33] Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir.2006). [34] Id. [35] LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). [36] Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). [37] Id. (citing Celotex, 477 U.S. at 325, 106 S. Ct. 2548.) [38] Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005). [39] Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir.2000)(citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). [40] White v. York Int'l Corp., 45 F.3d 357, 363 (10th Cir. 1995). [41] Bones v. Honeywell Intern., Inc., 366 F.3d 869, 875 (10th Cir.2004). [42] Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). [43] The same facts will be set forth in this case and in Case No. 06-2461 with minor additions to the facts in Case No. 06-2461. [44] Doc. 301 in Case No. 06-2195. At that time, Judge O'Hara was the magistrate judge assigned, but the case was subsequently transferred to Magistrate Judge Humphreys. Doc. 348. Specifically, Judge O'Hara required the parties to "file a detailed statement with the following information with respect to each count: a. A complete and precise description of the marks at issue. b. Which adverse party (or parties) allegedly used each mark, and exactly how and on what dates(s) that occurred. c. If a word or phrase contained within the mark, or an abbreviation or acronym is associated with the mark, and allegedly was used in a manner likely to cause confusion, how and on what date(s) that occurred." Doc. 301, p. 4. Judge O'Hara required this "[i]n order to facilitate evaluation of the trademark and copyright infringement claims which the court believes will drive the ultimate settlement or adjudication of these cases." Id. [45] Docs. 305, 307 in Case No. 06-2195. [46] Doc. 407 in Case No. 06-2195. This was four days before the dispositive motion deadline of June 19, 2009. [47] Doc. 445 in Case No. 06-2195. [48] Wilson v. Muckala, 303 F.3d 1207, 1215 (10th. Cir.2002). [49] The KMPro parties' current counterclaim in Case No. 06-2195 is Doc. 68. [50] Two of the federally registered marks are registered to Hudson, while the third one is registered to Knowledge Management Professional Society. All four of these marks are included in each complaint in the three cases but there are slight differences with respect to registrations in Virginia and Maryland. The KMPro parties sometimes include the fact that a mark is registered in Virginia and Maryland and sometimes do not include this fact. This does not appear to make a difference as there appears to only be a state law trademark infringement claim with respect to Kansas. In addition, neither side is consistent in how they refer to these alleged trademarks. For example, the Court has seen "CKM Instructor (CKMI)" and "CKM INSTRUCTOR (CKMI)." [51] KM Mentor provides USPTO documents and states that it obtained these documents from the USPTO website. The KMPro parties do not dispute the authenticity of these documents as they do not respond to the facts, and they do not provide any additional USPTO documents to the Court with their response with one exception. In the KMPro parties' response to the motion for summary judgment filed in Case No. 06-2461, they direct the Court to their USPTO application/registration for the mark "CKM" located at Doc. 424 in Case No. 06-2195. In addition, they also include an excerpt of the CKM application as one of their responsive facts in Case No. 06-2461. CKM is not included in the Complaint or Counterclaims in these cases. [52] While Weidner states in his affidavit that he only used the term from 2000 through 2005 and that KM Mentor and Weidner no longer use the term, KM Mentor filed its complaint against the KMPro parties in 2006. In KM Mentor's complaint filed in Case No. 06-2381, KM Mentor contends that it owns common law trademarks, including CKMInstructor (CKMI). The Court, therefore, cannot conclude that Weidner stopped using the mark in 2005 as undisputed. [53] Although KM Mentor references USPTO documents regarding "Certified Knowledge Leader (CKL)," only one page of that exhibit relates to the mark "Certified Knowledge Leader (CKL)," and the rest of the cited exhibit relates to Knowledge Management Certification Board Etc. Accordingly, although KM Mentor states that the USPTO required the applicant to disclaim the descriptive wording CERTIFIED KNOWLEDGE LEADER apart from the mark because it merely describes services, the Court cannot verify this fact. [54] The USPTO documents are not entirely clear as the document describes the mark as "Knowledge Management Certification Board Etc." and as "Knowledge Management Certification Board (KMCB)." [55] Neither KM Mentor nor the KMPro parties set forth facts with respect to the Kansas registration of "Certified Knowledge Manager (CKM)." In the KMPro parties' counterclaim, they state that they filed their application for registration of this mark in Kansas on February 9, 2006 and it was registered on February 13, 2006. [56] As noted above, the Court has set forth facts applicable to both Case No. 06-2381 and Case No. 06-2461. [57] Educ. Dev. Corp. v. Economy Co., 562 F.2d 26, 28 (10th Cir.1977). [58] Donchez v. Coors Brewing Co., 392 F.3d 1211, 1216 (10th Cir.2004) (citing Lane Capital Mgmt., Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 344 (2d Cir.1999)). [59] Id. [60] Id. [61] Id. (citing U.S. Search, LLC v. U.S. Search. com, Inc., 300 F.3d 517, 523 (4th Cir.2002)). [62] Id. [63] Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992). [64] Educational Development, 562 F.2d at 28. [65] Donchez, 392 F.3d at 1216 (citing U.S. Search, 300 F.3d at 523). [66] Retail Services Inc. v. Freebies Publ'g, 364 F.3d 535, 539 (4th Cir.2004) (citing 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 15.5 (4th ed. 2003)). [67] Donchez, 392 F.3d at 1216 (affirming district court's grant of summary judgment on the basis of undisputed facts). [68] Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir.2008); Universal Money Ctrs., Inc. v. AT & T Co., 22 F.3d 1527, 1529 (10th Cir. 1994). [69] 15 U.S.C. § 1057(b). [70] Retail Services, 364 F.3d at 542 (citing 15 U.S.C. §§ 1052(e), 1057(b); 15 U.S.C. § 1064(3)). [71] Educational Development, 562 F.2d at 28. [72] Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112, 117 (1st Cir.2006) (citation omitted); see also Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 976 (10th Cir.2002). [73] Borinquen, 443 F.3d at 117. [74] Section 2(f) of the Lanham Act, 15 U.S.C. § 1052(f), allows the registration of "a mark used by the applicant which has become distinctive of the applicant's goods in commerce" upon "proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made." [75] Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 869-70 (8th Cir.1994); see also Arrow Fastener Co., Inc. v. Stanley Works, 59 F.3d 384, 393 (2d Cir. 1995). [76] See Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 514 (6th Cir.2007) (stating that the "[t]he effect of the statutory presumption contained in § 1115(a) is to shift the burden of proof to the alleged infringer. . . to prove the absence of secondary meaning."); Aromatique, 28 F.3d at 873 (finding that alleged infringer "successfully rebutted any presumption of distinctiveness by showing that the evidence submitted to the PTO was inadequate to support a finding of distinctiveness."); Arrow, 59 F.3d at 393 (finding that the USPTO's decision to register the mark after registrant submitted evidence of secondary meaning created a rebuttable presumption that mark enjoys secondary meaning.) [77] Aromatique, 28 F.3d at 870. [78] Retail Services, 364 F.3d at 542. [79] Id. at 543 (internal quotation and citations omitted). [80] See Borinquen, 443 F.3d at 117-18 (finding that when mark registered without the USPTO requiring registrant to prove secondary meaning, the alleged infringer "must offer significantly probative evidence to show that the mark is merely descriptive."); see Arrow, 59 F.3d at 393 (finding that alleged infringer did not direct the court to evidence sufficient to rebut the presumption that the mark enjoyed secondary meaning.) [81] See Utah Lighthouse, 527 F.3d at 1050. [82] The Golf Warehouse, L.L.C. v. Golfers' Warehouse, Inc., 142 F. Supp. 2d 1307, 1309 (D.Kan.2001). [83] Id. at 1310. [84] Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1391 (9th Cir.1993) (quoting 1 J. McCarthy, Trademarks and Unfair Competition § 12.01 (3d ed. 1992)); see also Golf Warehouse, 142 F.Supp.2d at 1310. [85] 15 U.S.C. § 1064(3). [86] Official Airline, 6 F.3d at 1391. [87] Creative Gifts, Inc. v. UFO, 235 F.3d 540, 544 (10th Cir.2000) (citing Glover v. Ampak, Inc., 74 F.3d 57, 59 (4th Cir. 1996)). [88] Retail Services, 364 F.3d at 544 (citing Glover, 74 F.3d at 59); see also Creative Gifts, 235 F.3d at 544. [89] Retail Services, 364 F.3d at 544 (internal quotation and citations omitted); see also Creative Gifts, 235 F.3d at 544 (citation omitted) and 15 U.S.C. § 1064(3). [90] Retail Services, 364 F.3d at 544 (quotation and citations omitted); see also Creative Gifts, 235 F.3d at 545 (citation omitted). [91] Retail Services, 364 F.3d at 544 (quoting Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 406 (6th Cir.2002)). [92] Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 938 (7th Cir. 1986). [93] Id. [94] Nat'l Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d 478, 488 (7th Cir. 1982). [95] Id. (citation omitted). See also Blinded Veterans Ass'n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1041 n. 12 (D.C.Cir. 1989) ("[I]If the full name is generic, an abbreviation is treated similarly."). [96] KM Mentor also provided excerpts from the KMPro parties' trademark applications for CKMI and CKM. As noted above, those trademarks were not included in the Counterclaim and are not specifically at issue in this proceeding because the Court denied the KMPro parties' motion to amend complaint. [97] As noted above, the Court was not provided with a complete copy of the registration for Certified Knowledge Leader (CKL). [98] Retail Services, 364 F.3d at 544 (quotation and citations omitted); see also Creative Gifts, 235 F.3d at 545 (citation omitted). Although the Court recognizes that the abbreviation or acronym appears to be the first letter of each of the composite words, presumably, the USPTO also had this information. [99] See Two Pesos, 505 U.S. at 769, 112 S. Ct. 2753. [100] This is further complicated by the fact that the abbreviations "CKL," "CKMI," and "CKM" now appear to be federally registered. The parties disagree as to whether they were registered on the basis of secondary meaning in part or in whole. As noted above, they are not included in the KMPro parties' complaint and were registered two years after the KMPro parties' complaint was filed. As such, these marks are not at issue. [101] While there may not be any additional evidence as to how the USPTO registered these marks, this was not pointed out to the Court. If there is not this information, the Court will address this issue at trial. [102] The same type of evidence required to rebut the presumption that the marks are not generic is required to rebut the presumption that the marks are inherently descriptive. At trial, it will ultimately be the KMPro parties' burden to establish trademark infringement. [103] Marker Int'l v. DeBruler, 844 F.2d 763, 764 (10th Cir. 1988). [104] Am. Plastic Equip., Inc. v. Toytrackerz, LLC, 2008 WL 917635, at 8 (D.Kan. Mar. 31, 2008). [105] Id. at 12. [106] Neither party addresses the presumption of validity in Case No. 06-2381 nor in Case No. 06-2461. KM Mentor simply addresses the mark as an unregistered mark not entitled to a presumption of validity presumably because it is not registered with the USPTO. The KMPro parties do not provide a response. However, in Case No. 06-2195, the KMPro parties assert that the Kansas mark is entitled to a presumption of validity. Whether the Kansas mark is entitled to a presumption of validity is a question of law that the Court must answer when determining whether the mark is protectable. [107] The Kansas Court of Appeals recognizes that there may be provisions in the Kansas Trademark Act that differ from the federal Lanham Act. See, e.g., Harp v. Appliance Mart, Inc., 16 Kan. App. 2d 696, 699, 827 P.2d 1209, 1212 (1992) (interpreting Kansas' previous Trademark Act and stating that "[w]hen Kansas enacted its law, it chose not to include that portion of the federal law granting protection to a mark that has become distinctive based on continuous use for five years."). [108] See, e.g., 15 U.S.C. § 1051 (application for registration; verification). [109] The KMPro parties' complaint and counterclaims allege that they filed their registration for the mark, Certified Knowledge Manager (CKM), on February 9, 2006 and were granted the registration on February 13, 2006. Documents provided in Case No. 06-2195 demonstrate that the mark was registered on February 9, 2006, and it is unclear whether it was filed on February 9, 2006 or February 1, 2006. In any event, at the most, a time period of eight days elapsed between application and registration of this mark in Kansas. In the KMPro parties' response to Triple-I's motion for summary judgment in Case No. 06-2195, they contend that eight days is more than sufficient for a state employee to conclude that the mark is not generic. They, however, do not direct the Court to any evidence for support. There is no case law regarding the presumption of validity with respect to a mark registered in Kansas. [110] The law set forth with respect to whether a mark is generic is applicable here as well. [111] With respect to the KMPro parties' response in Case No. 06-2195, they simply do not direct the Court to any relevant evidence that demonstrates that there is a question of fact with respect to whether this term is not generic. [112] See Univ. of Kansas v. Sinks, 565 F. Supp. 2d 1216, 1256-57 (D.Kan.2008) (citing (Donchez; 392 F.3d at 1215)) (as to Count II); Health Care & Ret. Corp. of Am. v. Heartland Home Care, Inc., 396 F. Supp. 2d 1262, 1268 (D.Kan.2005) (as to Count IV); The Golf Warehouse, 142 F.Supp.2d at 1312 (as to Count VII). With respect to Count VI (the KMPro parties' contributory trademark infringement claim), the Court notes that "if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit." Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 854, 102 S. Ct. 2182, 72 L. Ed. 2d 606 (1982). "The elements of a contributory liability claim are thus (1) supply of a product and (2) knowledge of direct infringement." Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1128 (10th Cir.2003). While a protectable mark is not stated as an essential element, it stands to reason that there cannot be contributory trademark infringement without an underlying protectable trademark. [113] DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140, 670 S.E.2d 704, 706 (2009). [114] Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106, 1115 (1986). [115] See Ross v. Peck Iron & Metal Co., 264 F.2d 262, 268 (4th Cir. 1959); see also Stoldt v. City of Toronto, 234 Kan. 957, 966-67, 678 P.2d 153, 161 (1984). [116] A majority of the facts cited by the KMPro parties in briefing these motions are unsupported by the record. For example, in Case No. 06-2381 in Doc. 99, the KMPro parties' fact number 15 states that "KMMentor, thus, was not in existence when the material registered under these copyrights is claimed to have first been created in 2001. Complaint, Exhibit ______; Smiley Dec., ¶ 2, Weidner deposition, Vol. 1, ____." When KM Mentor objected to this fact because it was not supported by the record, the KMPro parties provide no logical response. Instead of addressing the fact that there was no record cite and it had been left blank, the KMPro parties inexplicably state that KM Mentor's response to Facts 5 through 7 and 14 demonstrate that this fact is true. Furthermore, there are numerous times in the KMPro parties' reply that they state that this fact is subject to proof at trial. If this is so, the Court is at a loss as to why a summary judgment motion was filed indicating that there were no genuine issues of material fact with regard to these issues. The Court will only set forth facts that are uncontroverted and properly supported. [117] It is entitled a "second" motion because KM Mentor previously filed a motion to strike declarations (Doc. 82 in Case No. 06-2381) that the Court denied as moot. [118] Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir.2006) (internal quotation and citations omitted). [119] Id. (internal quotation and citation omitted). [120] See Summit Fin. Res., L.P. v. Kathy's Gen. Store, Inc., 2009 WL 2106102, at 2 (D.Kan. Jul. 16, 2009) (citation omitted); see also Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir.2003) (finding that district court did not abuse its discretion in relying on the declarations to the extent they contained relevant and admissible evidence and disregarding inadmissible hearsay and legal conclusions). [121] Argo, 452 F.3d at 1199 (citation omitted). [122] Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (citation omitted). [123] Stevens v. Water Dist. One of Johnson County, 561 F. Supp. 2d 1224, 1231 (D.Kan. 2008). [124] There is only one document attached to the affidavit which is unrelated to these facts. [125] It appears that when the document was scanned in, the page was folded. [126] In an effort to establish that KMPro is a non-profit corporation, the KMPro parties rely on pleadings. Although the KMPro parties have stated that KMPro is a non-profit corporation in several pleadings, KM Mentor's responsive pleadings do not support this fact. KM Mentor once stated that it lacked sufficient information as to the "non-profit" status of KMPro and therefore denied this aspect of the allegation and once stated that the fact was not "material" to the issue and requested that if the Court find the fact to be material, the opportunity to file supplemental material in opposition. In addition, KM Mentor directs the Court to an affidavit previously filed by John Leitch, in which he states that KM Mentor "improperly intangled KMPro and kept it from timely obtaining its IRS tax exemption as a non-profit entity." [127] The Complaint has thirteen claims, but KM Mentor included two IV's. This makes the breach of contract claim IX instead of VIII. The Court will refer to the breach of service agreement or breach of contract claim as Count IX because that is the actual number of the claim. [128] Ordinarily, the Court would include an uncontroverted fact section with respect to a summary judgment motion as it did above. In this case, however, there are numerous disputed facts as to many issues, and the Court will only include the undisputed facts with regard to each specific claim. In addition, both parties rely heavily on the allegations in the complaint as support for their facts with regard to the KMPro parties' motion for summary judgment. Accordingly, the Court will rely on the complaint as well. [129] The Complaint states TX 6-109-725 twice, but the attached materials indicate copyright registrations of TX 6-109-725 and TX 6-109-726. [130] With regard to the fourth registration application, Plaintiffs have now provided the Court with the certificate of registration from the United States Copyright Office. The copyright registration number is designated as TXu1-309-316. The Certificate of Registration states that the application was received and registered on June 19, 2006. Plaintiffs filed suit on June 20, 2006. [131] Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.2005) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991)); see also Thomas M. Gilbert Architects, P.C. v. Accent Builders & Developers, LLC, 629 F. Supp. 2d 526, 530 (E.D.Va.2008) (citing Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 353 (4th Cir. 2001)). [132] Palladium Music, 398 F.3d at 1196 (citing 17 U.S.C. § 410(c)). 17 U.S.C. § 410(c) provides: "In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court." [133] Palladium Music, 398 F.3d at 1196. [134] Id. (quotation and citations omitted). [135] See Am. Plastic Equip., Inc. v. Toytrackerz, LLC, 2009 WL 902422, at 5 (D.Kan. Mar. 31, 2009); X-IT Products, L.L.C. v. Walter Kidde Portable Equip., Inc., 155 F. Supp. 2d 577, 602 (E.D.Va.2001). [136] 17 U.S.C. § 204(a); see also Toytrackerz, 2009 WL 902422, at *5; X-IT Products, 155 F.Supp.2d at 603. [137] Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 592-93 (7th Cir.2003); Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995). See also X-IT Products, 155 F.Supp.2d at 603-04. [138] Imperial Residential, 70 F.3d at 99. [139] Id. [140] The August 6, 2009 "Memorandum of Exclusive License" provides that it is a memorialization of an exclusive license granted and effective as of March 19, 2002. [141] See X-IT Products, 155 F.Supp.2d at 603-04 (collecting several cases that "support the proposition that an oral assignment of copyright rights is an effective assignment if the oral assignment is subsequently memorialized in a written document."); see also Huebbe v. Okla. Casting Co., 663 F. Supp. 2d 1196, 1206 (W.D.Okla.2009) (collecting cases). [142] Huebbe, 663 F.Supp.2d at 1206 (collecting cases). [143] KM Mentor did not file a motion for summary judgment as to the breach of contract claim but contends that the Court may grant such summary judgment in its favor sua sponte based upon the evidence presented in support of and opposition to the KMPro parties' motion for partial summary judgment filed by KMPro. The Court declines to do so.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539825/	363 S.W.3d 216 (2011) TEXAS PARKS AND WILDLIFE DEPARTMENT, Appellant, v. Teodora VILLARREAL, Appellee. No. 04-11-00380-CV. Court of Appeals of Texas, San Antonio. December 30, 2011. Rehearing Overruled March 6, 2012. 217 Elsa Giron Nava, Assistant Attorney General, Austin, TX, for appellant. Cary Toland, Sweetman & Toland, L.L.P., Brownsville, TX, for appellee. Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice. OPINION Opinion by: STEVEN C. HILBIG, Justice. This is an interlocutory appeal from the denial of Texas Parks and Wildlife Department's ("TPWD") motion to dismiss Teodora Villarreal's lawsuit pursuant to section 101.106(b) of the Texas Civil Practices and Remedies Code. We affirm the trial court's order. BACKGROUND This case arises out of a car accident involving Villarreal and Don Hudson, an employee of TPWD. Villarreal sued TPWD and Hudson, and in the opening paragraph of her petition Villarreal stated: NOW COMES, Teodora Villarreal, Plaintiff herein, complaining of Defendants Texas Parks and Wildlife Department and Don C. Hudson, In His Official Capacity Only, and for such cause of action would respectfully show the Court and Jury as follows: (emphasis in original). Each time Don C. Hudson is named in the original petition he is referred to as "Don C. Hudson, In His Official Capacity Only." In the prayer, Villarreal sought judgment against TPWD only. On December 13, 2010, TPWD filed its original answer. On December 22, 2010, Hudson filed his original answer and a motion to dismiss pursuant to section 101.106(a) & (e) of the Texas Civil Practice and Remedies Code. The hearing on the motion was set for February 9, 2011, but before the hearing date and within fifteen days from the date the motion was filed, Villarreal amended her petition and stated: NOW COMES, Teodora Villarreal, Plaintiff herein, complaining of Defendant Texas Parks and Wildlife Department, via Respondeat Superior, for the 218 conduct of its Employee, Don C. Hudson. . . . In April 2011, TPWD filed a motion to dismiss pursuant to section 101.106(b) of the Texas Civil Practice and Remedies Code. The trial court denied the motion. DISCUSSION The Texas Tort Claims Act provides a limited waiver of immunity. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). The Act waives governmental immunity to the extent that liability arises from the "operation or use of a motor-driven vehicle or motor-driven equipment," or from "a condition or use of tangible personal or real property." Id. After the enactment of the TTCA, plaintiffs attempted to avoid the Act's damage caps and other requirements by suing government employees because claims against the employees individually were not subject to the same limitations. Mission Consol. Indep. Sch. Distr. v. Garcia, 253 S.W.3d 653, 656 (Tex.2008). To prevent these suits, the Legislature enacted an election-of-remedies requirement, which provides: A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim. Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE § 101.106); see also Mission Consol., 253 S.W.3d at 656. Although the original provision protected employees from being sued when claims against the governmental unit were settled or reduced to judgment, nothing prevented a plaintiff from pursuing alternative theories against both the employees and the governmental unit through trial or other final resolution. Id. In 2003, the Legislature enacted the current version of the election-of-remedies provision, which states: (a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter. (b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents. (c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit or recovery from any employee of the same governmental unit regarding the same subject matter. (d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit. (e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit. (f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless 219 the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed. TEX. CIV. PRAC. & REM.CODE ANN. § 101.106 (West 2011). TPWD appears to assert that section 101.106 requires the dismissal of the governmental unit pursuant to section 101.106(b) & (e) of the Texas Civil Practice and Remedies Code whenever the entity is sued along with an individual employee. TPWD argues Villarreal's entire suit is barred because she simultaneously filed suit against both the government employee and the governmental entity. In its brief, TPWD contends that "the Supreme Court held that a plaintiff must decide to sue either the governmental unit or the employee, but not both, and that the irrevocable decision must be made before suit is filed." Mission Consol., 253 S.W.3d 653, 656 (emphasis in TPWD brief). TPWD contends that under subsection (e), if a suit is filed against the employee and the entity, the employee is dismissed upon the entity's motion. TPWD concludes that by suing both TPWD and Hudson, Villarreal made an irrevocable election, and under subsection (b) the suit against the governmental entity must be dismissed. In construing a statute, our primary objective is to determine and give effect to the Legislature's intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); see also TEX. GOV'T CODE ANN. § 312.005 (West 2005). We first look to the plain language of the statute. Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 865 (Tex.1999). We may also consider the object the Legislature sought to attain, the circumstances under which it enacted the statute, legislative history, former statutory provisions, and the consequences of a particular construction. See TEX. GOV'T CODE ANN. § 311.023(1)-(5) (West 2005). "We `read the statute as a whole and interpret it to give effect to every part.'" Gonzalez, 82 S.W.3d at 327 (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998)). This court presumes that the Legislature intended for the entire statute to be effective. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). This court "may not adopt a construction that will render any part of the statute inoperative, superfluous, or without legal effect." Tex. Prop. & Cas. Ins. Guar. Ass'n v. Johnson, 4 S.W.3d 328, 333 n. 5 (Tex. App.-Austin 1999, pet. denied). We disagree with TPWD's interpretation because it ignores the purpose of the election-of-remedies provision as recognized by the Texas Supreme Court. In Mission Consol., the court stated the "apparent purpose" of the revised election-of-remedies provision was to force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery. Mission Consol., 253 S.W.3d at 657. The court further explained that "by forcing plaintiffs to make an irrevocable election at the time suit is filed, the Legislature intended to reduce the delay and expense associated with allowing plaintiffs to plead alternatively that the governmental unit is liable because its employee acted within the scope of his or her authority but, if not, that the employee acted independently and is individually liable." Id. (emphasis added). The court revisited section 101.106 of the Texas Civil Practice and Remedies 220 Code in Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011). In Franka, the court construed subsection (f) of section 101.106, which addresses situations where the plaintiff sues only the government employee based on conduct within the employee's general scope of employment. The court stated: Properly construed, section 101.106(f)'s two conditions are met in almost every negligence suit against a government employee: he acted within the general scope of his employment and suit could have been brought under the Actthat is, his claim is in tort and not under another statute that independently waives immunity. In such cases, the suit "is considered to be against the employee in the employee's official capacity only", and the plaintiff must promptly dismiss the employee and sue the government instead. No party is forced into awkward or conflicting positions. The immunity issue need not be determined until the governmental unit is in the suit and the issue can be fully addressed. Id. at 381. In both Franka and Mission Consol., the supreme court acknowledged that section 101.106 recognizes the difference between a suit against the employee in his official capacity and one in his individual capacity. Id. at 381; Garcia, 253 S.W.3d at 656. This becomes even clearer in the supreme court's decision in University of Texas Health Science Center at San Antonio v. Bailey, 332 S.W.3d 395 (Tex.2011). In Bailey, the supreme court addressed subsection (f) of section 101.106. Id. at 401. Although subsection (f) is not directly relevant to this case, the court's interpretation of subsection (f) in Bailey demonstrates the effect of suing an employee in their official capacity. Id. In Bailey, the plaintiffs sued Dr. Sanders on a health care liability claim without specifying whether they sued him in his official capacity or individually. Id. at 397. The Baileys did not initially sue Dr. Sanders's employer, the University of Texas Health Science Center at San Antonio ("Center"). Id. After the statute of limitations ran, Dr. Sanders filed a motion under section 101.106(f) to have the Center substituted for him. Id. The supreme court first recognized that "[s]ection 101.106(f) of the Texas Tort Claims Act allows a plaintiff who has sued a government employee in what is considered to be his official capacity to avoid dismissal of the action by substituting the governmental employer as a defendant." Id. at 396. The issue for the court was whether action against the substituted defendant is barred after limitations has run. Id. The supreme court held that under subsection 101.106(f) when a government employee is sued for conduct within the general scope of employment, as Dr. Sanders was, and the employer could have been sued under the TTCA, the suit is considered to be against the employee in his official capacity only. The court noted: So while the Baileys may have intended to sue Sanders in his individual capacity, as the court of appeals concluded they did, section 101.106(f) did not allow them that choice. Under the statute, it matters not that the Baileys may not have been aware of Sanders' government employment when they sued him; only the fact of his employment, eventually established, is important. Substitution of the Center as the defendant was not automatic; Sanders was required to file a motion. But the statute does not require a motion for a government employee to be considered to have been sued in his official capacity. *221 Id. at 401 (Tex.2011). The supreme court further explained: It is fundamental that a suit against a state official is merely "another way of pleading an action against the entity of which [the official] is an agent." A suit against a state official in his official capacity "is not a suit against the official personally, for the real party in interest is the entity." Such a suit actually seeks to impose liability against the governmental unit rather than on the individual specifically named and "is, in all respects other than name, ... a suit against the entity." Id. at 401 (quoting Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007)). The court held the Baileys' suit against Sanders for acts occurring within the scope of his duties for the Center "was, in all respects other than name, a suit against the Center." Id. Therefore, the Baileys had the right to proceed against the Center. From the onset, Villarreal's suit was against TPWD because it was a suit against TPWD and Hudson in his official capacity only. As demonstrated by the supreme court's analysis in Bailey, suit against a government employee in his official capacity is not a suit against the employee individually for personal liability. See id. Villarreal named Hudson as a defendant in his official capacity only; she did not plead alternatively that Hudson acted independently and is individually liable. Because Villarreal only sued Hudson in his official capacity, she made her irrevocable election to sue TPWD. Accordingly, the trial court did not err by denying TPWD's motion to dismiss.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539831/	363 S.W.3d 30 (2012) H. Michael OGHIA, M.D., Appellant, v. Edwin Scott HOLLAN, Appellee. No. 2011-CA-000779-MR. Court of Appeals of Kentucky. March 16, 2012. 31 Scott P. Whonsetler, Robert A. Ott, Louisville, KY, for appellant. Scott E. Karem, Edmund P. Karem, Louisville, KY, for appellee. 32 Before COMBS, KELLER, and STUMBO, Judges. OPINION KELLER, Judge: Michael Oghia, M.D. (Dr. Oghia) appeals from a jury verdict and judgment in favor of Edwin Scott Hollan (Hollan). On appeal, Dr. Oghia argues that the trial court committed four reversible errors when it: (1) instructed the jury regarding the duty to inform; (2) failed to instruct the jury regarding comparative negligence; (3) improperly inserted itself into the proceedings by sua sponte stopping counsel for Dr. Oghia several times during his opening statement and cross-examination of Hollan; and (4) failed to declare a mistrial when counsel for Hollan allegedly referred to evidence outside the record in closing argument. Having reviewed the record and the arguments of counsel, we affirm. FACTS At the outset, we note that the video record of the first day of trial has no audio. Therefore, as we discuss below, there is no audio of voir dire, the parties' opening statements, and Hollan's direct and cross-examinations. That being noted, it appears from the record we have that the following facts are not in dispute. In the early morning of January 16, 2007, Hollan sought treatment at Kentucky River Medical Center for a kidney stone that had lodged in his ureter below his left kidney. Dr. Oghia attempted to remove the stone by inserting a ureteroscope through Hollan's urethra and into his ureter. The ureteroscope had a basket-like device on the end which Dr. Oghia used to capture the stone. When Dr. Oghia attempted to remove the ureteroscope and stone, he encountered difficulties and ultimately had to perform open surgery to remove the ureteroscope. During that surgery, Dr. Oghia discovered that Hollan's ureter had been damaged. Recognizing that he was not equipped to repair the damage, Dr. Oghia had Hollan transported to the University of Kentucky Medical Center (UK) for additional surgery. At UK, Dr. Strupe advised Hollan that the ureter could not be repaired. That being the case, Dr. Strupe advised Hollan that he could attempt to use a portion of Hollan's intestine to construct a ureter, a procedure with limited success and likely permanent incontinence, or he could remove Hollan's left kidney. Hollan elected to undergo kidney removal surgery. Following his recovery, Hollan filed a medical malpractice suit against Dr. Oghia, alleging that Dr. Oghia did not adequately inform him of alternative treatment modalities. Hollan also alleged that Dr. Oghia should have removed the kidney stone using a less invasive and less risky procedure. At the conclusion of a three-day trial, the jury found in favor of Dr. Oghia with regard to the surgical procedure, but in favor of Hollan with regard to the adequacy of the information provided by Dr. Oghia. Based on its finding that Dr. Oghia had not adequately disclosed the risks of the surgery to Hollan, the jury awarded him $596,819.00 in compensatory damages. We set forth additional facts as necessary below to address the issues raised by Dr. Oghia on appeal. STANDARDS OF REVIEW Dr. Oghia raises two issues regarding the jury instructions which, as questions of law, we review de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky.App.2006). We review the judge's denial of Dr. Oghia's motion for a mistrial for abuse of discretion because the trial judge is "the person best situated to properly evaluate . . . 33 when a mistrial is required." Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001); Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky.2004). With regard to the issue of the trial judge's conduct, we note that a trial judge is vested with significant discretion in the conduct of a trial, and we "will not interpose to control the exercise of such discretion . . . unless there has been an abuse or a most unwise exercise thereof." Transit Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky.1992). With the appropriate standards in mind, we separately address the issues raised by Dr. Oghia below. ANALYSIS 1. Jury Instruction Regarding Duty to Inform In 1999, Hollan sought treatment from Dr. Oghia for a kidney stone. At that time, Dr. Oghia performed a shock wave lithotripsy, which the expert witnesses described as breaking up the stone, inserting a stent, and letting the remnants of the stone pass naturally. Hollan's wife testified at trial that, in 2007, Dr. Oghia advised her that he would be using the same procedure as he had in 1999; he did not mention ureteroscopy. As previously noted, we have no audio record of Hollan's direct and cross-examination testimony at trial. However, in his deposition, which is part of the record, Hollan testified that Dr. Oghia only discussed shock wave lithotripsy with him. Furthermore, Hollan testified in his deposition that he would not have agreed to the ureteroscopy procedure. We presume that his testimony at trial was consistent with the preceding. Dr. Oghia testified that he remembered talking with the Hollans; however, he could not remember specifically what was discussed. The expert witnesses testified that a physician has the duty to explain all of the treatment options and their attendant risks to a patient so that the patient can make an informed decision regarding how to proceed. At the conclusion of his case, Dr. Oghia offered a single standard-of-care jury instruction "It was the duty of Defendant, H. Michael Oghia, M.D., in the care and treatment of Edwin S. Hollan, to exercise the degree of care and skill ordinarily expected of a reasonably competent urologist acting under similar circumstances." Dr. Oghia argues that this instruction "accurately and adequately" set forth the applicable law and is consistent with Kentucky's fondness for "bare bones" jury instructions. According to Dr. Oghia, the court should not have issued a separate jury instruction regarding his duty to inform Hollan of the risks of the procedure performed because doing so resulted in inconsistent verdicts. On the other hand, Hollan argues that the facts in this case necessitated a separate jury instruction. We agree with Dr. Oghia that Kentucky jury instructions should be bare bones. However, we do not agree with Dr. Oghia that this overriding principle limits a judge's ability to instruct on separate duties of care, if appropriate. As noted by Hollan, the evidence indicated that Dr. Oghia had two duties of careto treat Hollan with the care and skill of a reasonably competent surgeon and to disclose to Hollan the risks associated with surgery as a reasonably competent surgeon would. Because the evidence supported the issuance of two separate duty-of-care jury instructions, we discern no error therein. Finally, on this issue, we note and disagree with Dr. Oghia's argument that the separate instructions resulted in inconsistent verdicts. As noted above, Dr. Oghia had two dutiesthe duty to disclose and the duty to reasonably and competently treat. 34 The expert witnesses who testified herein indicated that the ultimate choice of treatment, in circumstances such as these, is the patient's. If the physician does not adequately disclose the risks of treatment, as the jury herein found, the physician has violated his duty to inform, regardless of the adequacy of the ultimate treatment rendered. Therefore, the jury verdicts were not inconsistent. 2. Comparative Negligence As previously noted, the Hollans testified that Dr. Oghia advised them that he was going to perform shock wave lithotripsy and that he did not mention ureteroscopy. Dr. Oghia introduced at trial a consent form signed by Hollan. The form indicates, to the extent it is legible, that Hollan understood that Dr. Oghia was going to perform ureteroscopy to remove the kidney stone. Hollan admitted, on recross-examination (this portion of his testimony is recorded), that he did sign the form. He believes that the portion of the form setting forth the procedure to be performed was blank when he signed it; however, he admitted he did not read the form. Mrs. Hollan testified that the form was not blank and that she could not remember exactly what was written on the form. However, she also testified that the writing on the form introduced into evidence was different from what she remembers. Furthermore, Mrs. Hollan testified that they had asked to speak with Dr. Oghia again before the surgery but that Dr. Oghia had not spoken with them. Dr. Oghia could not remember completing the form and testified that the nurse usually presents the form to a patient for signature. However, Dr. Oghia signed the form indicating that he had "explained the nature, purpose, benefits, risks and alternatives to the proposed procedure(s);" that he had answered any questions; and that Hollan understood what he had explained. Based on this evidence, Dr. Oghia argues that, when presented with the informed consent form, Hollan should have read it before signing it. Furthermore, Dr. Oghia argues that Hollan should not have signed a blank form and should not have submitted to surgery before speaking with him. According to Dr. Oghia, these actions and/or failures to act by Hollan justified the following comparative negligence jury instruction he offered: It was the duty of Edwin Hollan to exercise ordinary care for his own health, safety, and welfare. If you find for Edwin Hollan . . . but are also satisfied from the evidence that Edwin Hollan failed to comply with this duty and that such failure on his part was a substantial factor in causing some injuries and/or damages, you will determine from the evidence and indicate what percentage of the total fault was attributable to Edwin Hollan. Initially, we note, as did Hollan, that Dr. Oghia has not offered any statutory or caselaw to support his contention that a patient has the duties he outlined. Dr. Oghia has cited to Mackey v. Greenview Hospital, Inc., 587 S.W.2d 249 (Ky.App. 1979), a case that imposes on a patient the duty to exercise ordinary care when providing a medical history; however, that is not the breach of duty Dr. Oghia complains of here. On the other hand, Hollan has offered a case from Wisconsin, Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999), to support his argument that the duties Dr. Oghia wants to impose do not exist in this case.[1] In Dibbell, the plaintiff chose to 35 undergo a preventive bilateral mastectomy. After undergoing the procedure, she had significant post-surgery difficulties, and she sued her surgeon, among others. In her suit, the plaintiff alleged that the surgeon had not adequately advised her of the alternative treatment modalities or of the risks involved in the treatment she underwent. The trial court issued a contributory negligence[2] instruction to the jury and the jury found the plaintiff equally at fault with the physician. On appeal, the plaintiff argued that the trial court erred in issuing the contributory negligence instruction. The Wisconsin Supreme Court held, in pertinent part, that contributory negligence may apply in informed consent cases, but only in certain extraordinary circumstances. As to a patient's duty to seek information from a physician, the Court stated that: ¶ 50 The rationale underlying the doctrine of informed consent and a doctor's duty to inform a patient is that a patient has a right to decide whether to consent to or refuse a proposed course of treatment. A patient cannot make an informed decision unless a doctor discloses information material to the patient's decision. Thus we conclude that generally in an informed consent action, a patient's duty to exercise ordinary care does not impose on the patient an affirmative duty to ascertain the truth or completeness of the information presented by the doctor; nor does a patient have an affirmative duty to ask questions or independently seek information. ¶ 51 We agree with the plaintiffs and the court of appeals that in most cases it is illogical and contrary to the concept of informed consent to place on patients the burden of asking questions of their doctors or engaging in their own independent research. It is the doctor who possesses medical knowledge and skills and who has the affirmative duty under Wis. Stat. § 448.30 both to determine what a reasonable patient in the position of Ms. Brown would want to know and to provide that material information. The informed consent statute speaks solely in terms of the doctor's duty to disclose and discuss information related to treatment options and risks. The informed consent statute recognizes that a patient is not in a position to know treatment options and risks and, if unaided, is unable to make an informed decision. ¶ 52 For these reasons, we conclude that as a general rule a jury should not be instructed that a patient can be found contributorily negligent for failing to ask questions or for failing to undertake independent research. A patient's duty to exercise ordinary care generally does not encompass a duty to ascertain the truth or the completeness of the information presented by a doctor. Requiring patients either to ask questions or to independently seek information would erode a doctor's duty to obtain informed consent. ¶ 53 We do not conclude, however, that a patient may never be contributorily negligent for failing to seek information. It would, however, require a very extraordinary fact situation to render a patient contributorily negligent when the patient 36 accepts and trusts the information a doctor provides, because ordinarily a patient may rely on the knowledge and skills of a doctor. Id. at 369-70 (footnotes omitted). We recognize that Dibbell is based on a specific Wisconsin statute imposing a duty on physicians to provide informed consent. Furthermore, we recognize that we are not bound to follow the dictates of the Wisconsin Supreme Court. However, we find the analysis conducted by the Court to be persuasive. Applying that analysis to the facts herein, we conclude that a comparative negligence jury instruction may be appropriate in a medical malpractice case based on lack of informed consent. However, because of the unique relationship between a patient and physician, the case must be extraordinary, which this case is not. In reaching this conclusion, we note that, in Dibbell, the physicians testified that they met with the plaintiff and her husband numerous times and discussed all options with her. The plaintiff and her husband testified that the physicians did not discuss other options with her nor did they adequately explain the potential risks of bilateral mastectomies. In this case, the Hollans testified that Dr. Oghia indicated he was going to perform sonic wave lithotripsy and did not mention ureteroscopy or any other alternatives. Dr. Oghia testified that he believes he spoke with the Hollans, but he could not remember what he said. Thus, the facts herein are less favorable to Dr. Oghia than they were to the physicians in Dibbell, Based on the preceding, we hold that the trial court, in this case, did not err by refusing to issue the comparative negligence instruction proffered by Dr. Oghia. 3. Conduct of the Trial Judge Dr. Oghia argues that the trial judge's conduct during the first day of trial resulted in undue prejudice to him. In support of his argument, Dr. Oghia states that the trial judge, sua sponte, disrupted his opening statement and cross-examination of Hollan numerous times. According to Dr. Oghia, these disruptions "might have" caused the jury to believe that "the judge disfavored" him, or "that the judge believed [Hollan] should prevail." The problem with Dr. Oghia's argument is that the video during the portions of the trial in question has no audio. Kentucky Rules of Civil Procedure (CR) 75.13 provides for such mishaps by permitting the appellant to prepare and serve on the appellee a narrative statement setting forth his recollection of what occurred. The appellee then may file objections or proposed amendments to the appellant's narrative. Thereafter, the proposed narrative and any objections/amendments are to be served on the trial court for "settlement and approval." Once settled and approved, the narrative statement "shall be included in the record on appeal." Dr. Oghia did not avail himself of this procedure with regard to the first day of trial. We have reviewed the video in question and it appears that the judge called the parties to the bench eight times during Dr. Oghia's opening statement and six times during his cross-examination of Hollan. The second time the judge called the parties to the bench, he dismissed the jury and conducted an approximately eight-minute long conference with the parties in chambers, an indication that some serious issue had arisen. However, as noted above, Dr. Oghia has not filed a narrative statement nor has he otherwise indicated what the parties and the judge discussed during the bench conferences or during the in-chambers conference. Therefore, 37 we cannot determine if the judge properly called the parties to the bench/chambers in response to inappropriate statements/questions by Dr. Oghia, or if the judge was improperly injecting himself into the proceedings. Dr. Oghia has the burden of presenting a complete record on appeal. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky.2007). Because Dr. Oghia did not offer any narrative statement regarding what the parties and the judge discussed, we presume that the record supports the trial judge's actions and discern no error. See Graves v. Commonwealth, 283 S.W.3d 252, 255 (Ky.App.2009). 4. Failure to Declare a Mistrial During the course of the trial, counsel for both parties and their expert witnesses referred to and cited to an American Urological Association treatise regarding the treatment of kidney stones. While making his closing argument, Hollan's counsel quoted a passage from that treatise indicating that the first line of treatment for a kidney stone such as Hollan's is shock wave lithotripsy, not ureteroscopy. Counsel for Dr. Oghia objected and moved for a mistrial, arguing that the passage had not been cited or read to the jury during trial. Counsel for Hollan argued that the passage had been read and/or cited to the jury during trial, and the judge overruled Dr. Oghia's motion. Dr. Oghia argues that the trial court erred by not declaring a mistrial when counsel quoted the above-referenced passage. Additionally, Dr. Oghia argues that the trial court erred by not reprimanding counsel and admonishing the jury. We address Dr. Oghia's arguments in that order. In support of his first argument, Dr. Oghia cites primarily to Risen v. Pierce, 807 S.W.2d 945 (Ky.1991), for the proposition that he is not required to show that he was prejudiced by improper statements made during closing argument. We agree with this general proposition; however, Risen is distinguishable and the general proposition does not apply to the specifics of this case. In Risen, counsel referred to photographs in closing argument after the trial court had specifically excluded the photographs from evidence. Counsel also commented about the motives his opponent had for seeking to exclude those photographs. The Supreme Court of Kentucky found that such argument by counsel was egregious, negating any need to demonstrate prejudice.[3] This case differs from Risen for four reasons. First, the court herein had not ruled that the passage read by Hollan's counsel was inadmissible. In fact, taking Dr. Oghia's argument at face value, neither party had cited or discussed the passage. Thus, counsel was not referring to inadmissible evidence, but to a portion of a document that had not previously been introduced. Second, the parties and their witnesses had cited to the American Urological Association treatise throughout the trial. Therefore, the jury was familiar with the treatise, unlike the jury in Risen which had not previously seen the contested 38 photographs. Third, the passage Hollan's counsel read was consistent with testimony from expert witnesses regarding use of shock wave lithotripsy and, thus, not something foreign or new to the jury. Fourth, counsel for Hollan did not make any improper statements before the jury regarding Dr. Oghia's attempt to prevent him from reading that passage from the treatise. Thus, the statements by Hollan's counsel during closing argument simply do not rise to the level of egregiousness of counsel's statements in Risen; and, the trial court did not abuse its discretion by denying Dr. Oghia's motion for a mistrial. In support of his second argument, Dr. Oghia cites Horton v. Herndon, 254 Ky. 86, 70 S.W.2d 975 (1934), for the proposition that a court should reprimand an attorney who, during closing argument, makes a statement of fact unsupported by the evidence, and then instruct the jury to disregard the statement. Id. at 977. Horton is distinguishable for three reasons. First, in Horton, there was no dispute that the statement by counsel was not supported by the evidence. Here, the parties admitted that a number of passages from the American Urological Association treatise had been read or cited to the jury. However, they disputed whether the passage in question had been one of those read or cited. Second, in Horton there was apparently no evidence introduced at trial to support the statement. As noted above, there was testimony that shock wave lithotripsy is an appropriate choice for initial treatment of kidney stones. Therefore, unlike the statements in Horton, the concepts put forth in the disputed passage herein had been discussed by witnesses. Third, counsel in Horton apparently asked the court to reprimand opposing counsel and to admonish the jury. Counsel for Dr. Oghia did neither. We recognize and sympathize with Dr. Oghia's argument that counsel's statement in closing argument could have amounted to palpable error. However, as noted above, we do not agree that the error, if it was error, rose to that level. Finally, we note that "[a] mistrial should be granted only when no other remedy will provide relief to the moving party. In most instances the prejudicial event can be rectified by a curative admonition." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 740 (Ky.1996). If Dr. Oghia believed counsel's statement was overly prejudicial, he should have asked the court to admonish the jury, a curative step that would have been sufficient to address any harm. CONCLUSION For the foregoing reasons, we affirm the jury verdict and judgment in favor of Hollan. ALL CONCUR. NOTES [1] We have reviewed numerous cases from throughout the country that mention informed consent and comparative negligence. However, the majority of those cases are not useful because they address whether the individual states will treat informed consent cases as arising in negligence or battery. Based on our research, the Wisconsin case is one of the few, if not the only, cases that directly address the issue raised herein, and Dr. Oghia did not cite to any cases to the contrary in his reply brief. [2] It appears that Wisconsin's contributory negligence is the equivalent of our comparative negligence. [3] In a footnote, Dr. Oghia also cites to Big Rivers Elec. Corp. v. Barnes, 147 S.W.3d 753 (Ky.App.2004) and Smith v. McMillan, 841 S.W.2d 172 (Ky.1992), as supportive of his argument. These cases are also distinguishable. In Big Rivers, as in Risen, the objectedto statement in closing argument referenced evidence that the trial court had specifically excluded. In Smith, the objectedto statements in closing argument impugned the integrity of opposing counsel and his client, made reference to photographs that had been excluded from evidence, and, with no evidentiary support, impugned the honesty of the plaintiff's expert witness.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2430015/	326 S.W.2d 767 (1959) BAR ASSOCIATION OF TENNESSEE, INC., et al., Complainants, v. UNION PLANTERS TITLE GUARANTY COMPANY et al., Defendants. No. 3, Shelby Equity Court of Appeals of Tennessee, Western Section. February 25, 1959. Certiorari Denied June 5, 1959. Petition to Rehear Petition for Certiorari Denied July 27, 1959. 768 Vincent Beal and Ramsay Wall, Memphis, Shepherd, Heiskell, Williams, Beal & Wall, Memphis, of counsel, for Mid-South Title Co., Inc. Walter P. Armstrong, Jr., and J.E. McCadden, Memphis, Armstrong, McCadden, Allen, Braden & Goodman, Memphis, of counsel, for Commerce Title Guaranty Co. Jack Petree and Charles C. Crabtree, Memphis, amici curiae. John S. Porter, Leo J. Buchignani, and Thomas F. Turley, Jr., Memphis, for appellees. Certiorari Denied by Supreme Court June 5, 1959. 769 BEJACH, Judge. This cause involves a suit by the Bar Association of Tennessee, Inc., The Memphis and Shelby County Bar Association, Inc., and Leo J. Buchignani, Ferber S. Floyd, David N. Harsh, David Keeble, and Thomas F. Turley, Jr., individual lawyers and members of committees of said Bar Associations, against the Union Planters Title Guaranty Company, the Commerce Title Guaranty Company, and the Mid-South Title Company, seeking an injunction against said defendants to restrain them from the unlawful practice of law, which is alleged to consist of advertising for business, of drawing various papers and documents, such as deeds of conveyance, mortgages and trust deeds, and other papers not necessary for the functioning of said defendants in their authorized field, namely that of guaranteeing titles to real estate. Pending the hearing of this cause in the lower court, the Union Planters Title Guaranty Company disposed of its assets to the Commerce Title Guaranty Company, and discontinued its former activities. The bill was thereupon, by consent, dismissed as to said Union Planters Title Guaranty Company, and no appeal has been taken from that action of the Chancellor. The cause proceeded to a final adjudication by the Chancellor as to the other defendants. The cause was tried on proof taken by depositions and heard according to the forms of Chancery. The Chancellor dismissed the bill as to the defendant Commerce Title Guaranty Company, but sustained it, in part, as to the defendant Mid-South Title Company and enjoined it from, "Preparation of conveyancing or related instruments, and/or giving of legal advice relative thereto, when such acts are performed for, or on behalf of, parties to a real estate transaction, by any person, lawyer or other, in the salaried employment of the defendant, and/or when performed in its office or place of business, whether such acts are compensated for by defendant corporation, by the parties to the transaction or are uncompensated." The Mid-South Title Company was further enjoined from, "Knowingly issuing commitments to insure the title to real property where such commitments are procured or sought for the purpose of obtaining an opinion as to the validity or state of the title to said real property and without a present intention on behalf of the applicant to procure title insurance; and from imposing any restrictions or conditions upon the manner or place of performing any acts required of a lawyer representing a party to a real estate transaction." Both the complainants and the defendant Mid-South Title Company prayed appeals and have perfected their appeals to this court, where they have filed assignments of error. The parties will be referred to, as in the lower courts, as complainants and defendants, or called by their respective names. It will not be necessary to copy into this opinion either the assignments of error of the complainants, or those of the defendant Mid-South Title Company. Both are somewhat lengthy. Suffice it to say, the respective assignments of error present adequately all questions which this court is called on to adjudicate. The complainants complain of the refusal by the Chancellor to sustain all of the allegations and prayers of their bill, but especially of his dismissal of the bill as to the defendant Commerce Title Guaranty Company. The defendant Mid-South Title Company complains of the action of the Chancellor in sustaining any of the allegations of the bill against it; and, in addition, it contends that even if some or all of the allegations of the bill should be sustained, no injunction should issue. On January 15, 1958, after the Chancellor had on November 22, 1957, filed his opinion in this cause, and on January 6, 1958, a supplemental opinion disposing of a petition to rehear, five staff attorneys of the defendant Mid-South Title Company filed a petition for leave to intervene in the cause. Said petition was filed prior to the entry 770 of the final decree on January 31, 1958. On January 30, 1958, the Chancellor filed an opinion denying the right of intervention, but, by consent of all parties, Jack Petree, Esq., solicitor for those who sought thus to intervene, was appointed amicus curiae. In addition, Mr. Petree has been granted leave by an order entered in this court to appear as amicus curiae. Also, a petition for leave to file a brief as amicus curiae has been filed in this court by the Mortgage Bankers Association of Memphis and the Home Builders of Memphis, through their solicitor, Charles C. Crabtree, Esq. Such permission was granted, and the brief filed along with said petition has been considered. Although the record before us is quite lengthy, consisting of 541 pages, in addition to numerous exhibits filed in the cause, there is little or no dispute as to the facts of the case. These facts are fully set out in the opinion of the learned Chancellor filed November 22, 1957, together with his reasoning and ruling on the issues presented. From that opinion we quote, as follows: "The suit was filed on September 30, 1955. Subsequently, Union Planters Title Guaranty Company sold its physical assets, including its abstract plant, to Mid-South Title Company and is not now engaged in any manner in the title insurance business. Upon motion of complainants, the action as to Union Planters has been dismissed. Two defendants therefore remainMid-South and Commerce Title Guaranty Company. "Complainants admit that defendants are entitled to engage in the title insurance business, but they allege that in doing so, some of defendant's acts constitute the unlawful practice of law, which complainants want enjoined. Defendants deny that any of their acts are unlawful or that an injunction should issue. "The respective positions of the parties will be treated more carefully hereinafter. "I. The Position of Commerce Title Guaranty Company "In 1954, prior to the filing of the bill, Mid-South and Commerce Title entered into a contract for a period of twenty-five years whereby Mid-South became the exclusive agent for Commerce Title in the issuance of title policies. By this agreement, Commerce Title assumed the status of an insurer of all of the business written by its agent, Mid-South, although Mid-South retains some liability under the policies written. None of the activities of which the bill complains are directly engaged in by Commerce Title or its employees. As a matter of fact, the proof shows that the only full-time employee of Commerce Title is its president and general counsel, the Honorable Samuel O. Bates. There is no proof to the effect Judge Bates examines titles, prepares instruments, closes trades, or in any manner performs any act which might be construed as the unlawful practice of law. "Nevertheless, complainants say that any relief to which they are entitled should be directed toward both defendants because of their relationship to each other. Commerce Title takes the position that because of its contract with Mid-South, it is `irrevocably wedded' to Mid-South for a period of twenty-five years and, therefore, any action of the Court detrimental to Mid-South would indirectly affect it. "The Court is impressed with the attitude of Commerce Title and considers it a noble gesture to offer to stand by the side of its bride, for better or for worse. The suit, however, seems to be complicated enough without involving an unnecessary party. Not one act of which the Bar Associations complain can be attributed to Commerce Title, and the Court doesn't feel obligated to permit a party to remain in the lawsuit just for the ride. The suit as to Commerce Title is therefore dismissed and Mid-South remains as the only defendant. 771 "II. Background and History "For many years Commerce Title and Union Planters have operated title insurance business in Memphis. About 1946 Mid-South was chartered and became a competitor of these two corporations. There is no doubt that the popularity of title insurance has greatly increased in recent years with the public. Some of this has been brought about by the advertising and solicitation for business of which the Bar complains. Regardless of how defendant obtains its business, it is apparent that many purchasers of realty, and practically all lenders who furnish the funds for financing, insist that the title to the property be adequately insured. It is interesting, then, to follow the procedure when application for title insurance is made. "Defendant says that the customer is first advised that it is necessary for him to obtain legal assistance in consummating the real estate transaction so that the title policy may issue. Further, that whenever the customer requests any particular attorney, it honors this request; that the customer is therefore given a choice as to who will handle the legal aspects of the transaction for him; that if no choice is made, defendant will, upon the customer's request, recommend a lawyer. "Defendant employs, on a salary, several licensed attorneys who are referred to as its staff attorneys. In addition, there are a total of about 106 lawyers engaged in private practice here who are approved by defendant to examine titles. These are referred to as outside attorneys. Defendant says that it relies upon the title examination of these outside attorneys in about fifty percent of the titles which it insures. "Lawyers who examine titles for defendant are compensated for this services as follows. In the case of the staff attorneys, they are paid a fixed salary. Outside attorneys are paid a percentage of the title premium, generally one-third of the charge made. "Prior to 1946, the title companies made no charge to its customers for preparing the conveyancing instruments where title policies were requested. The Bar Association complained of this practice and thereafter an `attorney' or `instrument' fee was charged for this work. When instruments were prepared by staff attorneys, the fees were collected by defendant and paid to their attorneys as funds were disbursed. When an outside attorney handled the transaction, he was paid a fee by his client. Subsequently, staff attorneys requested that instrument fees not be paid to them following each closing, but that the fees be held and pooled and distributed to the staff attorneys as requested by them, generally weekly or monthly. The proof shows that the title companies do not share in the instrument fees which their staff attorneys receive and that the fees are in addition to the salaries paid to these attorneys. "Complainants say that defendant engages in the unlawful practice of law by the preparation of instruments and giving advice relative thereto; by holding itself out as performing legal services, and by serving as a conduit for channeling legal business both to its staff and its outside lawyers. "Defendant contends: That it does not draft legal instruments nor hold itself out to the public as doing so nor furnish legal advice; that the instruments are prepared and advice given by independent attorneys, who do not act as representatives of defendant, but who act on their own behalf, in an independent attorney-client relationship with defendant's customers; that defendant does not control in any manner the activities of its staff or outside attorneys; that all fees paid for advice and preparation of instruments are retained by these attorneys; that should its customers not have attorneys of their own choice, defendant, acting as agent for its customers, 772 employs attorneys for them, which they are entitled to do. "In the alternative, defendant says: That if there is anything improper in the procedure which it now follows, it nevertheless should be permitted to have instruments prepared at no charge to its customers because it has an interest in the correctness of the instruments; that this is incidental to its business and that it is the `real party in interest' to the document prepared, since it must insure the risk; further, that the public interest is best served by permitting the same attorney who examined the title to prepare the instruments. "III. The Procedure in Issuing the Title Policy "In order to thoroughly consider the charge of unlawful practice, the Court feels it proper to outline in detail the procedure followed in issuing a title policy. The steps are: "A. Examination. When the order is placed for title insurance the matter is referred to an attorney who proceeds to: "(1) order an abstract of title; "(2) examine the abstract and other pertinent records; "(3) issue his opinion or specification of requirements to perfect the title so that instruments may be drawn, the sale closed and the policy written. "B. Preparation for Closing. "(1) Any instruments necessary to meet the requirements are prepared, such as affidavits of heirship. If the title examination reveals any tax or other lien against the property, the attorney will either insist that the lien be immediately satisfied or that funds be held out of the settlement for this purpose. "(2) The attorney then prepares the necessary instrument to convey title, that is, the warranty deed to be executed by the seller. It is customary to prepare an affidavit against mechanic's liens upon the property, which is also executed by the seller. If a loan is involved, the same attorney usually prepares the trust deed or notes to be executed by the purchaser. Other legal documents, as required, are drafted. "(3) Any advice requested by either the seller or purchaser relative to the status of the parties or to the legal effect of the instruments is given by the attorney who prepares them. "C. Closing. "(1) Upon the preparation of all necessary instruments, the parties are generally called together to execute them. "(2) At this time, they are presented with a settlement sheet which reflects the financial status of the parties, that is, the amount of money required by the buyer to complete the purchase, the sum which the seller will receive, and other pertinent information. "(3) The attorney, or closer, either individually or through the title company, proceeds to disburse the funds as reflected by the settlement sheet. "D. Issuance of Policy. "(1) All instruments requiring recording are thereupon filed. "(2) All instruments are examined to determine whether they conform to requirements and that they are correct in description and otherwise. "(3) Upon being satisfied of these facts, the company then issues its policy of title insurance, either to the purchaser, as an owner's policy, to the lender, as a mortgagee's policy, and in some cases, to both. "The position of the parties relative to each of these steps is as follows: "Step A. Title Examination. Of the many features of this suit, this is the simplest to adjudicate because the contention 773 of the parties is not in conflict. Complainants admit that defendant has every right to make the title examination. Defendant's charter permits this as does the Title Insurance Law, section 56-3401 et seq. T.C.A. Furthermore, all authorities considered hold that title companies may perform this step. The Court, therefore, holds that this does not constitute the unlawful practice of law. "Step B. Preparation for Closing. This is the most difficult question raised in the suit, and will be treated in detail hereinafter. "Step C. Closing. The execution of the deeds by the parties may be performed before any notary public, and does not involve the practice of law. The preparation of the settlement sheets, in the Court's opinion, is entirely a clerical procedure which does not require the services of a lawyer and, therefore, cannot be considered as the unlawful practice of law, and the Court so holds. "Disbursements of funds, of course, may be done by any lawyer, layman, or corporation, so empowered, such as defendant. There is proof to the effect that many lenders of funds for the building and purchase of homes in this area are located away from here. It is a most natural requirement of these lenders that a financially sound institution handle disbursements of funds furnished. "The chief objection which complainants raise to defendant engaging in Step C is that the parties to the transaction at this point seek legal advice as to the effect of their action. This is not necessarily so, the Court being of the opinion that the proper time to so advise the parties is upon the preparation of the instruments, covered in Step B. The Court, therefore, holds that nothing in Step C constitutes the unlawful practice of law. "Step D. Issuance of Policy. It is the Court's opinion that the title company has as much right to examine the conveyancing instruments, after they are prepared and executed, as it does to examine the title in the first place. These instruments must be correct, just as the title must be perfected, in order for the title policy to issue. The matter of recording the deeds is a mechanical act, as is the writing of the policies. The Court, therefore, holds that there is nothing to Step D which may be considered to be the unlawful practice of law. "The subject of the litigation is therefore narrowed to defendant's activities involved in performing Step B. Each of the defenses previously set forth will be thoroughly considered. "IV. Defenses: The Defendant Doesn't Prepare Instruments or Give Legal Advice "The title company says: (1) That it does not draft instruments; (2) That they are prepared by independent lawyers, not acting as representatives or agents of defendant; (3) That a relationship of independent attorney-client exists between said lawyers and defendant's customers; (4) That defendant is entitled on behalf of its customers to employ lawyers for them, if so requested. "A consideration of this proposition necessarily requires a separate analysis of work performed by staff attorneys and by outside attorneys. "A. The Position of the Staff Attorney. "(1) The first proposition is that defendant doesn't prepare the instruments. If it doesn't who does? Certainly, from the mechanical standpoint, defendant does. All stationery and supplies are furnished by defendant. The typewriter which the stenographer uses and the stenographer herself are furnished by defendant. The office space, telephone, furniture and equipment which the stenographer and which the staff attorneys use are furnished by defendant. No doubt defendant would say that the mechanical preparation of instruments is not contemplated in this discussion and is unimportant and trivial. If so, perhaps a 774 practicing lawyer who pays his own expenses should be consulted. "Who prepares the instruments from the legal aspect? Defendant's salaried staff attorney directs defendant's stenographer in the typing of the instruments and checks them for accuracy upon completion. It is evident that defendant does handle the legal phase of preparing instruments, through staff attorneys, on defendant's time, in defendant's office and with the aid of defendant's employees and equipment. There is no difference between this operation and as it existed prior to 1946 except that now staff attorneys receive a fee for work they formerly performed under salary arrangements with the title companies. "The controlling factor, then, as to whether or not defendant prepares instruments is the receipt of fees by staff attorneys. Yet, defendant treats this so lightly that it now offers to waive fees and revert to the previous `no charge' practice. By its inconsistent position, it has lost a sound basis on which to stand. The Court, therefore, reaches the inescapable conclusion that defendant does prepare the instruments, and as an incident, furnishes advice to its customers relative thereto. "(2) The next proposition is that the instruments are drawn by independent lawyers, not acting for defendant. This calls for a consideration of the word `independent'. "The simplest definition for `independent' comes from Webster's Elementary Dictionary. In part, this definition is: `Not under another's control or rule; not having connections with any other or each other; separate'; "The Supreme Court of Tennessee has declared, in Rule 38, that `the ethical standards relating to the practice of law * * shall be the Canons of Professional and Judicial Ethics of the American Bar Association'. Complainants point out that Canon 35 provides that the `professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer.' "Complainants say, further, that when staff lawyers represent the parties to a real estate transaction, as well as defendant, a situation arises where the interests of the parties could be `adverse', which violates Canon 6; that in such circumstances, the interests of defendant would be paramount and that defendant thereby `controls' the services of its lawyers in violation of Canon 35. Actually, there isn't much possibility of adverse interest appearing in these transactions, but if they did, defendant would no doubt insist that the parties obtain separate counsel. "But in considering the use of the word `control', it is evident that both the employment and the income of staff attorneys is controlled by defendant corporation and to this extent these lawyers just can't be said to be entirely independent. Salaried persons generally can't afford to be. "As for the rest of Webster's definition, the `connections' between staff attorneys and defendant are self-evident. And to say that defendant and its staff attorneys are `separate' is unrealistic. Therefore, under any reasonable interpretation of an `independent' relationship with defendant, staff attorneys just won't qualify. "(3) This brings on the third phase of this defense, that the `independent lawyer-client' relationship exists between defendant's lawyers and its customers. The first requisite of this relationship is a client. There are not many requirements for being a client. He'd just be a person who needs legal aid and presumably can pay for it. He is entitled, however, to choose his own attorney, and to expect that he will be represented capably. The right by the client, then, to choose or select his own lawyer is the very essence of the relationship. When defendant's customers make application for a title policy, defendant says that a choice as to attorney is allowed. But if the customer has no choice, an attorney is assigned 775 to him and he takes what he gets. This is no reflection upon staff attorneys because they are all capable or they couldn't hold their jobs. But this doesn't alter the fact that the element of voluntary selection is often missing. "For a true relationship to exist there must also be a lawyer not just a person who owns a license but one who fulfills the exacting demands of the profession as well as the requirements of the public's conception. Since staff attorneys occupy a unique position in the law business, it might be well to compare them with private practitioners. "(a) The method of which staff attorneys obtain their fee business is subject to question. When the customer has no lawyer he is introduced to a staff attorney. This is an indirect, but inescapable, result of the defendant's advertising and solicitation. Defendant says it doesn't advertise legal services but, even so, the effect is to keep its staff attorneys well supplied with legal business. It is far fetched for defendant to assert as a comparison that many lawyers who represent liability insurance carriers obtain their business as a result of the advertising which the insurance carrier has done in an effort to obtain new policly holders. The facts of the case at bar prove a far more direct effect realized from advertising and solicitation. Many a private practitioner would consider himself in paradise to have his business brought to him daily on a platter. The only conclusion is that defendant does `channel' business to its staff attorneys. "(b) As previously stated, staff attorneys pay no overhead expense in the handling of their fee business. The result is that they are either able to charge less fees for their services or they show more profit for time spent than the practicing attorney, which is a very unfair advantage and results in unfair competition. The fees charged by staff attorneys, although based upon the Bar's Minimum Fee Schedule, frequently represent the maximum fees which may be charged by other lawyers. Thus the matter of instrument fees for the whole Bar is controlled to some extent by a handful of staff attorneys, and indirectly by defendant, because it makes the lower fees possible. "One of the excuses advanced by defendant for the preparation of instruments by its staff attorneys is that this is more economical and, therefore, the public is better served. This thought has also been expressed by certain of defendant's witnesses, prominent local realtors and builders. The Court finds fault with this attitude because the profits and commissions made by the realtors and builders are not based upon the economy to the public, but are based upon what will fairly compensate these people for their services. This should be the basis for payment of services of attorneys, but the court knows that the instrument fees charged by staff attorneys `control the market' to some extent, regardless of the value of the services rendered. "(c) Defendant urges that the interest of the public and the public welfare require that title policies should be issued with efficiency, expediency and economy which is accomplished where staff attorneys are used; that when the public welfare conflicts with that of the Bar, the interest of the bar should give way. Since the public welfare has been made such an issue, it is well to consider the subject from all angles. "The Court is of the opinion that the dignity of the legal profession is also a matter of public interest and that it is in the public interest that this be upheld; that the concept which the public has of a lawyer is important; that his surroundings and environment mean something to the public; that the public interest is not best served by having the title company present to its customers a staff lawyer, practicing his profession in the middle of a business office, surrounded by every indicia of commercialism, with a law library, trademark of the profession prominent by its absence. It is quite one thing for a lawyer, in the full-time salaried employ of a corporation, 776 to be located in such surroundings. It is quite another to have him held out to the public as an independent, private practitioner. "There are many people who fortunately and happily have no occasion to come in contract with lawyers except in the purchase or sale of a home. The Court doesn't think it is in the interest of the public to gauge the whole legal profession by the situation in which it finds these staff attorneys. Clothes don't make the man. Neither do dignified professional surroundings make a lawyer. But this is what the public expects. "(d) One of the important services undertaken by the legal profession is the representation of indigent clients. Every practicing attorney, in the course of his career, is expected to and does employ some part of his time which might be used profitably otherwise, in representing people who can't pay a fee. There is really no occasion for staff attorneys to perform free legal services because, obviously, people who can trade in property can afford the incidental expense. But the fact remains that they don't make this important contribution to the public welfare. "The Court wishes to emphasize the fact that this is not a personal attack upon the staff attorneys. It is, however, a challenge to the system which employs them. The Court recognizes that these are able men in their line and holds them in the highest personal regard. They have chosen, however, to use their licenses differently from the practicing attorney. "For the many reasons stated, some more relevant that others, the Court just can't accept defendant's theory that an independent lawyer-client relationship exists between its lawyers and its customers. "(4) The last proposition raised in this defense is that defendant, as agent, is entitled, upon request, to employ an attorney for its customers, which employment would create the relation of attorney and client between the principal and the attorney so employed. The Court acknowledges this to be a correct legal position as pronounced by our Supreme Court in the case of State [ex rel. District Attorney] v. Lytton, 172 Tenn. 91, 110 S.W.2d 313. But this Court doubts that the Supreme Court contemplated any such situation as is found here, the `independent' lawyer feature being absent. "Upon a consideration of all these matters, reason requires that the Court reject defendant's theory that it does not prepare the conveyancing instruments where same are prepared by a lawyer in the salaried employ of defendant. "B. The Position of Outside Attorneys. "The Court accepts defendant's theory that it does not draft instruments, when this work is performed by outside attorneys, that is, private practitioners on defendant's approved list. "But the Bar finds some fault with the activities of these lawyers, which requires comment upon the subject. "(1) Complainants say that defendant serves as a conduit for business which comes to outside lawyers just as in the case of the business which comes to the staff attorneys. This may be, but under the authority of the Lytton case, defendant has the right to employ counsel for its customers upon their request. The relationship between defendant and its outside attorneys is the situation which this Court believes our Supreme Court had in mind in its holdingnot one where the attorney is in the salaried employment of the agent. "But in asserting this contention, the Court thinks complainants overlooked one important point. While it is true that about one-half of its legal business is performed by these outside lawyers, it is not true that this is all handed to them by defendant as in the case of staff attorneys. Many entirely capable lawyers who, twenty years ago, would have closed real estate trades, 777 using their own opinions as a basis, now recognize the fact that title insurance gives more security to their clients, considering the imminence of death and the possibility of insolvency. As a result, many attorneys, in their clients' best interest, do recommend title insurance and proceed to take all steps required to obtain it. Their position, then, is not that of having this business handed to them, but, rather, of bringing the business to the title companies who refer it back to them for processing. "(2) Complainants also say that to some extent the outside attorneys are guilty of splitting fees in that they take a percentage of the title premiums as their fee for examining the title. Defendants say this is not the case at all; that the matter of splitting fees is not involved because the outside lawyers take a percentage of the premium charged, which is not a legal fee. "(3) The Court considers that the serious question of unlawful practice involved is not the `splitting' but rather the `control' of fees paid these lawyers for title examination, that is, a flat one-third of the title premium regardless of the amount of work performed. For instance, if the sale involved a vacant lot with a value of $1,000.00, the title premium is $25.00, of which the fee is one-third, or $8.33, which is too small to really justify a lawyer's time. Actually, the premium charged would need to be $75.00 in order to pay the lawyer the long recognized minimum of $25.00 for title examination. The Court realizes, of course, that where a title premium of only $25.00 is being charged, defendant can't pay a $25.00 fee. "The fault which the Court finds with the present system is that the fee is fixed and controlled entirely by the defendant, with no consideration given to the value of services by the examining attorney. This, the Court thinks is improper. The Minimum Fee Schedule recommended by the local Bar Association does not set a minimum fee for this work, but this statement is made: "`The price to be charged for examination of title shall be based solely upon the contractual relation of the individual with his client, taking into consideration the various factors of work and responsibility involved.' "The Court does believe that a fee, which would more reasonably compensate, could be paid outside attorneys for examining titles. To this end, the parties to this action might cooperate. Outside Shelby County, defendant apparently charges a premium of $3.50 per thousand for the insurance risk, to which is added the charge made by the examining attorney. This appears to the Court to be reasonable. "V. Defenses: Defendant Is the `Real Party in Interest' and is Therefore Entitled to Prepare the Instruments. "Defendant's alternative defense is that if the Court finds anything improper in its present method of operation, nevertheless, defendant should be permitted to prepare instruments at no charge to its customers, because defendant is the real party in interest to said documents. "From a practical standpoint, the first apparent objection to this procedure is that the inherent right of the outside attorney to prepare instruments for a fee may be eliminated. Granted, that defendant could adjust the salaries of its staff attorneys to compensate for a loss of instrument fee income. But where does this leave those outside lawyers who perform one-half of the legal services required by defendant. There would be no fees from clients. Defendant could pay them flat fees. This would probably require an increase in title premiums but whether or not it does, it is `kidding the public' to say that no charge is made for drafting instruments. This fact is astutely pointed out in the Hexter case, quoted hereinafter. "But aside from this question, the legal position taken by defendant has been tried many times before and the Court has 778 sound authorities on which to rely in reaching a decision. "Title companies occupy a relationship to law unlike that of any other commercial enterprise known to the Court. The basis for a title policy is an opinion rendered by a qualified lawyer, and supported by legal instruments which fulfill the requirements. The title business is absolutely dependent upon and can't operate without this close association with the legal profession. "In considering this question, therefore, the Court feels that only those authorities which deal with the title business are important and controlling, rather than those involved with other commercial endeavors. Unfortunately, there is no reported Tennessee case relating directly to this subject. The Court has therefore carefully considered decisions rendered elsewhere, and especially those relied upon by both parties to this action." It is apparent from a consideration of the Chancellor's opinion, and especially from that portion of same quoted above, that his decision was influenced or motivated by a desire to protect the lawyers of general practice from what he considered unfair competition. In our opinion, this is not the proper test to be applied in determining whether or not defendants, or either of them, are guilty of unlawful practice of law and whether or not an injunction should issue. All the defendants are, or were, operating under the provisions of Chapter 1734, Public Acts of 1955, carried forward into Tennessee Code Annotated as Sections 56-3401 to 56-3427, entitled "Title Insurance Law"; and there is no claim that they or either of them have failed to comply with the provisions of that law. The "practice of law" and what constitutes "law business" in Tennessee are defined by statute, as set out in Section 29-302, T.C.A., which is as follows: "29-302. Definition of practice and business.The `practice of law' is defined to be and is the appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies. The `law business' is defined to be and is the advising or counseling for a valuable consideration of any person, firm, association, or corporation, as to any secular law, or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights, or the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to secure for any person, firm, association or corporation any property or property rights whatsoever." Tennessee cases dealing with the subject of unlawful practice of law are Grocers & Merchants' Bureau v. Gray, 6 Tenn. Civ. App. 87; Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694; State ex rel. District Attorney v. Lytton, 172 Tenn. 91, 110 S.W.2d 313; and Union City & Obion County Bar Ass'n. v. Waddell, 30 Tenn.App. 263, 205 S.W.2d 573. None of these cases, however, throws any real light on the issues to be determined in the instant case, and we, therefore, feel constrained, as did the learned Chancellor, to consider the case before us as one of first impression in Tennessee. In disposing of this question, it is our idea that, in fixing the public policy of this State, we should consider of primary importance the effect which it will have in protecting the rights and interests of the public, rather than the benefits which may accrue to lawyers of this State, represented by the Bar Association complainants. As was stated by the Committee on Unauthorized Practice of Law of the American Bar Association, 779 in 56 American Bar Association Reports, pages 470-477: "The practice of law by unauthorized persons is an evil because it endangers the personal and property rights of the public and interferes with the proper administration of justice. It is not an evil because it takes away business from the lawyers." To the same effect, we quote the language of the Supreme Judicial Court of Massachusetts, as follows: "The justification for excluding from the practice of law persons not admitted to the bar is to be found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department could exercise little control." Lowell Bar Ass'n. v. Loeb, 315 Mass. 176, 52 N.E.2d 27, 31. Apparently entertaining this same point of view, the Supreme Court of Tennessee, in a disbarment case, said: "This power of disbarment is not exercised by the courts for the purpose of enforcing remedies between the parties, but to protect the court and the public against the official administration of an attorney guilty of unworthy practices in his profession." Davis v. State, 1893, 92 Tenn. 634, 640, 23 S.W. 59, 61. In the case of Conway-Bogue Realty Investment Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P. (2d) 998, 1007, in denying injunctive relief prohibiting real estate brokers from preparing contracts, deeds, deeds of trust and releases, and giving advice to the parties relative to the legal effect of such instruments, the Supreme Court of Colorado said: "We feel that to grant the injunctive relief requested, thereby denying to the public the right to conduct real estate transactions in the manner in which they have been transacted for over half a century, with apparent satisfaction, and requiring all such transactions to be conducted through lawyers, would not be in the public interest; that the advantages, if any, to be derived by such limitations are outweighed by the convenience now enjoyed by the public in being permitted to choose either their broker or their lawyer to do the acts or render the services which the plaintiffs seek to enjoin." In Tennessee, the right of real estate brokers to draw documents appertaining to the business of real estate brokers is expressly preserved by statute, which, to some extent, in our opinion, indicates what the public policy of Tennessee should be in the instant case. The statute which prohibits the drawing, by real estate brokers, of legal documents not connected with the real estate business, but preserves that right to them, if such document pertains to real property, is set out in Section 62-1325, T.C.A., as follows: "Any person licensed hereunder that engages in drawing any legal document other than contracts to option, buy, sell, or lease real property, may have his or her license revoked or suspended as provided in this chapter." Although no similar provision is contained in the "Title Insurance Law", Sections 56-3401 to 56-3427, T.C.A., we think the principle is the same, and that title insurance companies should not, by narrow or strained construction, be prohibited by court decisions from drafting legal documents which are intimately connected with the business for which they are chartered. The public policy of this State, established by court decisions, should be kept in harmony with public policy established by statute. This conclusion is fortified by the reasoning of the Supreme Court in the case of Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694. 780 It is conceded on behalf of complainants in the instant case, that the defendants may properly ascertain as a condition precedent to the issuance of a title guaranty policy or a commitment for such policy, that the title to be guaranteed is good, and that for such purpose they may properly have the investigation made by staff attorneys or other lawyers employed for that purpose. On the other hand, it is contended that the drafting of a deed, or trust deed, to convey the title can only be done properly by an attorney employed by the grantor or borrower, as the case may be, and that it is improper for such work to be done by either the staff lawyers or outside lawyers employed by defendants. Likewise, it is contended that it is improper for defendants' lawyers to draft or procure the execution of instruments necessary for the correction of defects in titles, or the making of such titles insurable. Also, it is contended that defendants should not be permitted, through their attorneys, to prepare and participate in escrow agreements where the issuance of a title guaranty policy is not contemplated. It is asserted that participation in or performance of any or all of these functions by defendants, constitutes unlawful practice of law. Many cases are cited by counsel for complainants as authorities to sustain this contention. Among the cases which most strongly support the contentions of counsel for complainants are Hexter Title & Abstract Co., Inc. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268; Title Guaranty Co. v. Denver Bar Ass'n., 135 Colo. 423, 312 P.2d 1011; and Pioneer Title Insurance & Trust Co. v. State Bar of Nevada, Nev., 326 P.2d 408. The cases supporting the contentions of complaint are, in our opinion, more than offset by cases sustaining, or tending to sustain, the position of defendants, such as LaBrum v. Commonwealth Title Co. of Philadelphia, 358 Pa. 239, 56 A. (2d) 246; Cooperman v. West Coast Title Guaranty Co., Fla., 75 So. 2d 818; People v. Title Guarantee & Trust Co., 191 A.D. 165, 181 N.Y.S. 52, affirmed in 230 N.Y. 578, 130 N.E. 901; Ingham County Bar Ass'n v. Walter Neller Co., 342 Mich. 214, 69 N.W. (2d) 713, 53 A.L.R. 2d 777; Cowern v. Nelson, 207 Minn. 642, 290 N.W. 795; Lowell Bar Ass'n v. Loeb, Mass., 315 Mass. 176, 52 N.E.2d 27; and Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 125 A.L.R. 1149. A careful investigation of all of the cases cited by counsel for the respective parties and by the amici curiae, indicates that the weight of authority is with the defendants. In LaBrum v. Commonwealth Title Co., 358 Pa. 239, 56 A.2d 246, 248, the Supreme Court of Pennsylvania said: "All the acts in question have to do with the transfer of title, that is, with conveyances and conveyancing. In order to decide whether defendant shall insure a title, defendant must first examine and pass upon the instrument or instruments evidencing the transfer. Its charter authorizes all steps necessary for the enjoyment of its corporate franchise. If examination of the instrument discloses defects the insurer thinks must be corrected before the title can be insured, it must of course be redrawn in the interest of both insurer and insured. Drawing the instrument correctly in the first place is no more unauthorized practice of law than examining or approving it after it has been drawn, or returning it for correction after it has been found to have been erroneously drawn." Likewise, in Cooperman v. West Coast Title Company, Fla., 75 So. (2d) 818, 821, the Supreme Court of Florida, said: "So we decide that what the companies do to inform themselves about the advisability of issuing a commitment and what they do to accomplish a transfer of title or interest of such kind that a policy of title insurance is warranted are not the services the performance of which amount to unauthorized practice of law." 781 In State Bar Association of Connecticut v. Connecticut Bank & Trust Co., 20 Conn. Super. Ct. 248, 131 A.2d 646, 648, the Supreme Court of Connecticut said: "It should be borne in mind through this discussion that the choice of a criterion as to what constitutes the practice of law must be made from the standpoint of public protection, not from that of private advantage for either banks or lawyers. Merrick v. American Security & Trust Co., 71 App. D.C. 72, 107 F. (2d) 271, 282." In Cowern v. Nelson, 207 Minn. 642, 290 N.W. 795, 797, the Supreme Court of Minnesota, said: "It is the duty of this court so to regulate the practice of law and to restrain such practice by laymen in a commonsense way in order to protect primarily the interest of the public and not to hamper and burden such interest with impractical technical restraints no matter how well supported such restraints may be from the standpoint of pure logic." In Auerbacher v. Wood, 139 N.J.Eq. 599, 53 A.2d 800, 802, the Supreme Court of New Jersey, said: "The court should be very cautious about declaring that a widespread, well-established method of conducting business is unlawful, or that the considerable class of men who customarily perform a certain function have no right to do so, or that the technical education given by our schools cannot be used by graduates in their business." Fully sensible of the great responsibility that rests on us in the instant case, and bearing in mind the wisdom embodied in the precedents and decisions of other jurisdictions, we have reached the conclusion that while some of the activities of the defendants constitute "practice of law" or the doing of "law business", they are all legitimately incidental to the main or principle business of defendants, which is title insurance; and, consequently they should not be adjudged to constitute unlawful practice of law, nor enjoined as such. The view of the case which we have taken makes it unnecessary for us to consider or discuss whether the Chancellor was right or wrong in excluding the defendant Commerce Title Guaranty Company from the injunction granted by him against the Mid-South Title Company, its agent, and in dismissing the bill against the Commerce Title Guaranty Company. It results that the action of the Chancellor in dismissing the bill against the Commerce Title Guaranty Company must be affirmed, but the decree granting injunctive relief against the Mid-South Title Company must be reversed and the bill filed in this cause dismissed. The costs of the cause will be adjudged against the complainants and their sureties on the cost and appeal bonds filed by complainants. CARNEY, J., concurs. AVERY, Presiding Judge, W.S. (dissenting). I am constrained to disagree with my learned colleagues in their final conclusions to their very excellent Majority Opinion filed in this cause, but I do agree with many of the statements made in the Opinion. Some of these with which I do agree in connection with the facts of this cause are as follows: (1) "These facts are fully set out in the Opinion of the learned Chancellor filed November 22, 1957, together with his reasoning and ruling on the issues presented"; (2) That, the defendants, Commerce Title Company and the Mid-South Title Company, "are, or were, operating under the provisions of Chapter 34, Public Acts of 1935, carried forward into Tennessee Code Annotated 782 as Sections 56-3401 to 56-3427, inclusive, entitled `Title Insurance Law'"; (3) That Section 29-302 of T.C.A. defines the "Practice of Law" and it also defines the term "Law Business"; (4) Proper reference is made to the published Opinions of the Courts of Tennessee relative to the "subject of unlawful practice of law", and that "none of these cases, however, throws any real light on the issues to be determined in the instant case, and we, therefore, feel constrained, as did the learned Chancellor, to consider the case before us as one of first impression in Tennessee"; (5) That in the consideration of this cause, "it is our idea that, in fixing the public policy of this State, we should consider of primary importance the effect which it will have in protecting the rights and interests of the public rather than the benefits which may accrue to lawyers of this State"; (6) "That the public policy of this State, established by court decisions, should be kept in harmony with public policy established by statute"; (7) "We have reached the conclusion that * * * some of the activities of the defendants constitute `practice of law' or the doing of `law business'". I disagree with my distinguished colleagues in their following conclusions: (1) That notwithstanding the fact that some of the activities of the defendant constitute "practice of law" and the doing of "law business" * * "they should not be adjudged to constitute unlawful practice of law, nor enjoined as such". It is my conception of the law in Tennessee, as defined by statute, that every person, association or corporation is prohibited from doing that which is defined as "practice of law" and that which is defined as "law business" unless he shall have been duly licensed therefor and while his license therefor is in full force and effect. (2) It is my further conviction that when a valid statute defines a profession, whether it be law, medicine, teaching, engineering and others too numerous to mention, and forbids the practice of such profession without being duly licensed by the duly licensing authority and declares, as provided by the Constitution of this State, that the "Public Welfare Requires It", that Act must be accepted as fixing the public policy or the policy of the public until it is validly overthrown or repealed. (3) I do not agree with the learned Chancellor in his determination that the bill must be dismissed as to the Commerce Title Company, for it is the title insurer as authorized by Sections 56-3401 to 56-3426, inclusive, of T.C.A. entitled "Title Insurance Law", and having delegated every authority it has to the Mid-South Title Company, as its agent, with no restrictions thrown about the agency over the way and manner it shall engage in the business of insuring titles, that when such agency has engaged in the practice of law its principal is not bound by such acts and not restricted by the same rules as the legal agency is subject to. (4) I disagree with that statement in the Majority Opinion that: "It is apparent from a consideration of the Chancellor's opinion, * * * that his decision was influenced or motivated by a desire to protect the lawyers of general practice from what he considered unfair competition." Therefore, to me it is not a question for this Court to determine, nor was it a question for the Lower Court to determine, that the interest of the public is such that can be decreed by a court to overthrow the declaration of the legislative body of the State declaring that the public welfare demanded the passage of a constitutional 783 Act, if the doing of those things are prohibited by such a valid Act, for in so doing we bring about legislation by judicial act rather than legislative act. The question which was for determination by the learned Chancellor and is now for determination by this Court, as I view the cause, is simply whether or not some of the acts of the Commerce Title Company and its agent, Mid-South Title Company, as carried into effect by the agent, in the process of insuring titles, violates the provisions of said Section 29-302 and its accompanying prohibiting law, which is Section 29-303. It seems very clear to me that no one but a licensed attorney is permitted to do that which is defined as "practice of law" or that which is defined as "law business", either or both, as set forth in said Section 29-302 as follows: "Definition of practice and business. "The `practice of law' is defined to be and is the appearance of an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies. The `law business' is defined to be and is the advising or counseling for a valuable consideration of any person, firm, association, or corporation, as to any secular law, or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights, or the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to secure for any person, firm, association or corporation any property or property rights whatsoever." That part of Section 29-303 which reinforces the provisions of Section 29-302 is embraced in its first sentence, and the remaining portions of that Section simply provide punishment for the violation of the business of "practice of law" and the "law business". The first sentence thereof is as follows: "No person shall engage in the `practice of law' or do `law business,' or both, as defined in Sec. 29-302, unless he shall have been duly licensed therefor, and while his license therefor is in full force and effect, nor shall any association or corporation engage in the `practice of the law' or do `law business,' or both, as defined in Sec. 29-302." Looking for a moment at the last clause in the paragraph immediately above quoted, let us see what some of our sister states have put in their statutes of a similar nature. We first look at the State of Alabama. In its Code under Title 46, Section 42, the Legislature, under the heading "Who may practice as attorneys", describes the practice of law under four heads (a) (b) (c) and (d), but it is not necessary to quote them in full, for it concludes with this provision: " * * but any such person, firm or corporation engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles to real or personal property are prohibited from preparing or drawing or procuring or assisting in the drawing or preparation of deeds, conveyances, mortgages and any paper, document or instrument affecting or relating to secular rights, which acts are hereby defined to be an act of practicing law, unless such person, firm or corporation shall have a proprietary interest in such property, however, any such person, firm or corporation so engaged * * * guaranteeing or insuring titles shall be permitted 784 to prepare or draw or procure or assist in the drawing or preparation of simple affidavits or statements of fact to be used by such person, firm or corporation in support of its title policies, to be retained in its files and not to be recorded." The Act then declares violations to be a misdemeanor, and provides punishment. In the State of Mississippi by Section 8682 of the Mississippi Code, recompiled in Volume 6A, under the heading "Unlawful to practice law without licensecertain abstract companies may certify titles", in its first sentence makes it a misdemeanor and fixes the punishment for the practice of law in violation of the same, and in defining what that criminal offense shall be, it is said: "Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, * * or who shall write or dictate any bill of sale, deed of conveyance, deed of trust, mortgage, contract, or last will and testament, or shall make or certify to any abstract of title to real estate other than his own or in which he may own an interest, shall be held to be engaged in the practice of law." That Section then provides: "* * * shall not, however, prevent title or abstract of title guaranty companies incorporated under the laws of this state from making abstract or certifying titles to real estate where it acts through some person as agent, authorized under the laws of the state of Mississippi to practice law; * * ". In the State of Kentucky by Chapter 30, Sec. 30.170 of the Kentucky Revised Statutes, under the general heading "Court rules governing practice of law and State Bar", the Court of Appeals is authorized and directed to adopt and promulgate rules: "(a) Defining the practice of law;" and under the 2nd Section thereof, it is provided: "The rules of court adopted and promulgated under this section shall supersede all laws or parts of law in conflict therewith, to the extent of the conflict." Under the 3rd Section thereof, it is provided: "No rule adopted and promulgated under this section shall prevent a person not holding himself out as a practicing attorney from writing a deed, mortgage or will, or prevent a person from drawing any instrument to which he is a party." In the State of Arkansas, under the general heading "Attorneys at Law", Title 25, there are many provisions with respect to the practice of law, but the whole purport of what is meant is set forth in subsec. 25-211 and 25-213. The first paragraph of subsec. 25-211 is as follows: "Unauthorized practicePractice of law defined. "No person other than a natural person duly licensed and admitted to practice law under the laws of this state and rules and regulations prescribed by the Supreme Court of this State shall do any act or thing which constitutes the practice of law, and the doing of any of the following acts by any person, firm, or corporation, whether with or without compensation therefor is hereby defined as an act constituting the practice of law;" Then subsec. 25-213 is as follows: "Intent of act.Subordinate to Supreme Court regulations. "It is hereby declared to be the intent of this act (§§ 25-21125-214) to be in aid of and subordinate to the 785 right of the Supreme Court of Arkansas to regulate and define the practice of law and prevent and prohibit the unauthorized or unlawful practice thereof by appropriate rules, orders and penalties." It is, therefore, obvious that the Legislature in the State of Arkansas has set down a public policy by which it has declared that the rules and regulations set forth by the Supreme Court "to regulate and define the practice of law and prevent and prohibit the unauthorized or unlawful practice thereof by appropriate rules" do and will constitute that which protects the public interest. In the Majority Opinion is cited LaBrum v. Commonwealth Title Co. of Philadelphia, 358 Pa. 239, 56 A.2d 246, as authority for the conclusions expressed. We think the Majority Opinion overlooks the fact that in the State of Pennsylvania there is a specific Act, Act April 29, 1874, same being Public Law 73, and in Sec. 29 thereof, which Act provides: "Companies incorporated under provisions of this act for the insurance of owners of real estate, mortgages, and others interested in real estate, from loss by reason of defective titles, liens and incumbrances, shall have the power and right to make insurances of every kind pertaining to or connected with titles to real estate, and shall have the power and right to make, execute and perfect such and so many contracts, agreements, policies and other instruments as may be required therefor." (Emphasis supplied.) In that case the Supreme Court referred to the Act defining the practice of law and prohibiting any person to practice except a licensed attorney, and then it said, as shown in that part of the Majority Opinion quoted, relating to what the charter of the corporate defendant authorized it to do: "Its charter authorizes all steps necessary for the enjoyment of its corporate franchise." Of course that provision in its charter is reinforced by the above-quoted Public Law 73, Sec. 29, which in my opinion justified the Opinion of the Supreme Court of Pennsylvania in that case, but it is no authority for what constitutes matters in the public interest under our Tennessee statutes. In the case of Cooperman v. West Coast Title Guaranty Co., Fla., 75 So. (2d) 818, 819, which is another one of the purported cases from the State of Florida relied upon in the Majority Opinion, we think that the Majority Opinion overlooks the fact that the judgment of the Lower Court under consideration by the Supreme Court, is as follows: "After much pleading and intervening and taking of depositions, the chancellor decreed that these appellees could with impunity fill out standard forms of conveyancing instruments and alter them to suit the occasion, so long as they were acting as agents for their principals, the title insurance companies. He also held that these appellees could decide from the examination of abstracts and public and other records whether as agents they would grant commitments for policies of insurance eventually to be issued by their principals. He ruled that the companies could complete forms requisite to guaranty or insurance of loans by the Federal Housing Administration and the Veterans' Administration. `Real estate brokers,' he decided, could complete standard conveyancing forms such as preliminary contracts, deeds, mortgages, notes, assignments and satisfactions where in the instruments, subsequent to the contract, only names, dates, descriptions, amounts and `latest tax year liability' were to be inserted." In addition to the one sentence quoted in the Majority Opinion, in the Cooperman v. 786 West Coast Title Guaranty Company case, the Supreme Court further said: "But what we have written applies only to the performance of those acts which are indispensable to the determination of insurability and must not be construed as sanctioning a charge of any sort, in addition to the premium for the issuance of title insurance, or approving charges for services rendered in connection with the guaranty or insurance of loans by the Federal Housing Authority or the Veterans' Administration, whether the loans be connected with title insurance transactions or not." (Emphasis supplied.) And the Opinion was completed with this statement: "In the main the decree is affirmed, but those parts of the decree inharmonious with the views we have expressed or with the case just cited are reversed. "Reversed in part; affirmed in part." In addition to the above, I think the Majority Opinion overlooks the fact that in that case there is not one single reference to a statute which defines "the practice of law" in the State of Florida. Certainly they had no such statute as we have in Tennessee. In the case of State Bar Association of Connecticut v. Connecticut Bank & Trust Co., 20 Conn. Super. Ct. 248, 131 A.2d 646, the Supreme Court of the State of Connecticut had under consideration Sections 7638-7641 of the General Statutes of the State of Connecticut, 1949. The suit was filed by the State Bar Association and undertook to restrain certain banks and trust companies from performing the functions which the Bar Association alleged to be "the practice of law", and in construing the provisions of the General Statutes of that State with respect to the practice of law, it said that to constitute "the practice of law", service must be rendered for others. In the construction of the statutes which it had under consideration, the Supreme Court quoted with approval from Merrick v. American Security & Trust Company, 71 App. D.C. 72, 107 F.2d 271, just as stated in the Majority Opinion, but it nowhere had under consideration, if indeed it had such a statute in that State, where an insurance company was authorized to insure titles under a law which permits such. We must not overlook the fact that the defendant in the instant case is operating under a statute which authorizes it to do a particular business. Neither can we overlook the fact that the general banking business, such as was carried on by the defendants in this case of State Bar Association of Connecticut v. Connecticut Bank & Trust Co., is a much broader business in every scope of its activity than the business of insuring titles. Our general knowledge of the banking business everywhere in this country reveals the truth of the foregoing statement without elaborating at all upon any particular service that banks throughout the country render to the public. In the case of Cowern v. Nelson, 207 Minn. 642, 290 N.W. 795, 797, the defendant was a real estate broker who was doing in great part just what the Mid-South Title Company was doing in this case. However, he had no license to practice law, but he was drawing instruments such as deeds, leases, transfers, and the like in connection with his real estate brokerage business, making charges therefor. The Lower Court, by its injunctive relief, enjoined defendant from doing any of those acts on the theory that he was engaged in unauthorized practice of law, as contained in "Laws 1931, c. 114 [M.S.A. § 481.02]". The Supreme Court of Minnesota only modified that injunction so as to prevent the defendant from making a charge for such action. In so doing, the Supreme Court of Minnesota said: "By comity we accept the legislative declaration of policy relating to brokers contained in L. 1931, c. 114, and remand the case to the trial court with 787 instructions to eliminate from the injunction any restraint on the defendant, when acting as a broker for the parties, or as agent for one of them, to a sale or trade or lease of property or to a loan, from drawing or assisting in drawing without charge therefor such papers as may be incident to such transaction." It is very true that the Court in effect said that in rare cases in connection with the brokerage business where it becomes necessary to draft such instruments and where it was done without charge, the harm which would come therefrom would be less than the inconvenience the public might suffer, if it was necessary in such rare cases to call in a lawer for that purpose. In that case also the Legislature of Minnesota had undertaken to authorize such brokers to make a charge for that type of service, and in that connection the Supreme Court said: "We do not accept the legislature's declaration that in such matters he may charge for such services." In the case of Auerbacher v. Wood, 139 N.J.Eq. 599, 53 A.2d 800, 802, the Majority Opinion properly quotes a section thereof, but I think it overlooks the fact that this suit was filed by the Bar Association for the avowed and express purpose as set out in the bill in Chancery to enjoin Charles A. Wood, who was not licensed to practice law in the State of New Jersey, from representing parties before the National Labor Relations Board, he not being an attorney. The Court refused the injunction upon the theory that the rule of the National Labor Relations Board gives to a party the right "to appear in person, or by counsel, or by other representative, or industrial relations consultant." I think the Majority Opinion overlooks the analysis of the work being done by defendant as determined from the facts of that case in that regard, for the Supreme Court of New Jersey said: "In determining whether a man is practicing law, we should consider his work for any particular client or customer as a whole. I can imagine defendant being engaged primarily to advise as to the law defining his client's obligations to his employees, to guide his client along the path charted by law. This, of course, would be the practice of law. But such is not the fact in the case before me. Defendant's primary efforts are along economic and psychological lines. The law only provides the frame within which he must work, just as the zoning code limits the kind of building the architect may plan. The incidental legal advice or information defendant may give does not transform his activities into the practice of law. Let me add that if, even as a minor feature of his work, he performed services which are customarily reserved to members of the bar, he would be practicing law." (Emphasis supplied.) Our statutes defining the "practice of law" and "law business" clearly indicate to me that the defendants are engaged in the "performance of services which are customarily reserved to members of the bar". I am further of the opinion that the analogy which the Majority Opinion makes of the case before us to the activities of a real estate broker in Tennessee, as regulated and set out in Section 62-1325, T.C.A., is inconsistent wherein the Majority Opinion states, in drawing the analogy, that: "The statute which prohibits the drawing, by real estate brokers, of legal documents not connected with the real estate business, but preserves that right to them, if such document pertains to real property, is set out in Section 62-1325, T.C.A." And then it quotes that Section as follows: "Any person licensed hereunder that engages in drawing any legal document 788 other than contracts to option, buy, sell, or lease, real property, may have his or her license revoked or suspended as provided in this chapter." The Majority Opinion concludes from that provision that such a broker is authorized to write deeds, trust deeds, and the like, in connection with his business as a licensed real estate broker. I do not construe the above quote to mean that which the Majority Opinion specifically declares. I think that provision means just what it says, and that it only gives the real estate broker the right to prepare contracts, giving him the right to bind his client "to option, buy, sell, or lease, real property", but the preparation of the deeds and other documents necessary to a compliance with the executed contract which he draws are matters which the client must personally do for himself or obtain the services of a lawyer to do. I think the Majority Opinion gives no effect to the preposition "to" immediately following the word "contracts". Certainly the Majority Opinion is correct in stating that no such provision is contained in the "Title Insurance Law", Secs. 56-3401 to 56-3427, T.C.A., by which the defendants operate their business. To me the principle and policy enunciated in the above quote, not being incorporated in the "Title Insurance Law", distinctly restricts the activity of a title insurer much more than the act licensing a real estate broker as it relates to activities referred to in our Statute as "practice of law" or that of "law business". In subsection (b) of Section 56-3402, T.C.A., we find the definition of the phrase "Title Insurance Business", in the following words: "`Title insurance business' is defined to be the insuring or guaranteeing of titles to real property, or interests therein, or the validity, accuracy or sufficiency of liens or encumbrances thereon, provided that nothing contained in this chapter shall make it necessary for any corporation making abstracts of title; certifying to the correctness thereof; issuing certificates as to the record title to real estate, or furnishing information regarding title thereto, to comply with this chapter, when such information does not take the form of, and is not, in fact, an insurance of the title to real estate, or interest therein, or of such liens or other encumbrances." Under Section 56-3403, T.C.A., the powers and authority of title companies are specifically set out under two headings as follows: "(a) To own, lease or construct abstract or title plants, and to operate and maintain the same, and to make, certify, guarantee and issue abstracts of title. "(b) To act as escrow agent in connection with any transaction relating to the purchase, sale, exchange, lease, mortgage, or other acquisition, disposition, or encumbrance of property, real or personal, or any interest therein." There is nothing in the Act which authorizes the title companies to employ lawyers to act for others, nor to maintain Staff Lawyers who act for others brought into defendants' tunnel of operation as a title insurer. When it designates a salary for an employed lawyer, furnishes him with stationery, postage, office equipment, office, secretary, and everything necessary to the ordinary practice of law, screened by the title insurer's advertising, free of any rent insofar as actual payment is concerned, it cannot be said that such overhead being furnished him without charge and permitting him to use all of such facilities to engage, as the Majority Opinion has said, in "law practice" or "law business", and he does so for others, making a charge therefor, such as writing deeds of correction, warranty deeds, trust deeds, and other documents commonly known to be within the definition of our Statute defining "law business", puts the employer in the business of practicing law or doing law business illegally. 789 I think that counsel for the Bar Association of Tennessee and the Bar Association of Memphis, both incorporated, have aptly quoted from the case of San Antonio Bar Association v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 703, which Opinion indicates to be parallel issues in that case with these in the instant cause, and which supports my position as stated in this Opinion relative to the facts of this cause as related and governed by our statutes defining "law practice" and "law business" hereinbefore quoted. It further supports the injunctive relief granted by the learned Chancellor and will further support my Opinion to the effect that this injunctive relief should extend to the Commerce Title Company. In that case the Supreme Court of Texas said: "To declare in rather general terms, as did the Court of Civil Appeals, that the injunction shall be inoperative whenever the third parties in question `request' these lawyers to perform the services, would open the door to easy evasion of the order. At least for all practical purposes, such a modification might well protect the respondents where the `request' is not genuine, but actually responds to the suggestion of a title insurance salesman or is otherwise influenced by the corporation. A whole system of operation built up over the years is hardly to be varied in its true consequences by some overnight change of this or that single feature or formality of it. If the intimate association now existing between the lawyers and the business corporation be continued in substantially its present form, it would be not at all unlikely for nongenuine `requests' to be made, and this would probably happen in such a way that the vice in the request would be difficult of both detection and proof. * * * * * * "These latter risks we do not feel disposed to take after weighing them in the balance with other factors, including the claimed rights of the respondents that are urged as requiring a modification. The interests of the public are involved and are safeguarded by the decree. The respondents are in default to the public and have evidently profited by that default over the years. Two of them are lawyers and must, or should, have known that they were `skating on thin ice' since the beginning. As indicated, we see good reason to doubt that any proper modification of the decree which might be devised could be of much practical value to them. No injunction decree will ever be perfectly just to both sides. In this case we consider it best to leave it as the trial court entered it, so that, if the respondents wish to pursue in future a somewhat similar course to what they have followed in the past, they will have the burden of justifying alleged new situations as they arise, rather than, by a purported modification, forcing the petitioners to carry all over again the burden they have carried for the public and the profession up to this point." Now, as to the question of agency on the part of the Mid-South Title Company as the exclusive agent for the Commerce Title Company, it seems to me that it cannot be legally maintained that when it does the work outlined by the proof in this cause, and then writes the title insurance in the name of the principal or have an officer of its own to sign the title insurance contract, which is nothing more than an administrative act, there is no escape from the conclusion that the principal is engaged in the same business that its agent is performing, and particularly is this true where they are each authorized to engage in title insurance business. Furthermore, when a principal relegates itself to the position of permitting its agent to conduct its business, only reserving unto itself a monetary consideration for the use of its name upon a title policy as insurer *790 thereof, does no less than assume an easy chair position and acquiesces in the conduct of its agent so as to make the agent's activity the same as if it were doing the same thing in the same way, and cannot escape the same legal restraints properly applied to its agent. I do not conclude that the Chancellor's injunction is broad enough to restrain the defendants from all of the acts which I consider to be illegal practice of law as defined and made a public policy by T.C.A. Sections 29-302 and 29-303; but suffice it to say that I concur in his very able Opinion and the judgment that he has rendered in this cause which will in all probability remedy what I consider presently necessary. In conclusion I might say that there is no other profession known to our American society and way of life that has given as much protection to the liberty, freedom and rights of the individual under our constitutional guarantees than the Legal Profession, and it is my conscientious conviction that it has been more concerned with that which is in the interest of the public, made up of every profession, vocation and avocation than any other group, and that which attempts to invade the rights guaranteed to the legal profession in this State by the Statute defining the "practice of law" and "law business", as is now under consideration in this cause, vitally and adversely affects the interest of the public. Without quoting from the evidence which the Chancellor found preponderates in favor of the decree he entered, in which I concur, and with all due respect to the very high type and excellent staff attorneys, for whom I have the profoundest esteem, it seems to me that the proof clearly preponderates to the effect that the defendants through their advertising, their employees, and these salaried staff attorneys, whose every facility is furnished them free of charge, are operating a sort of mass production line of "law business" in such a fashion as that when an applicant for title insurance or an applicant for an examination of his title so as to determine whether it is an insurable title, whether he actually desires title insurance or not, has entered the corridor leading to the production line and passes through the door thereof, his chances of selecting a lawyer of his choice, other than one of the Staff Lawyers, may be embarrassing, and at most is very slim.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2539856/	366 S.W.3d 456 (2012) GAINES GENTRY THOROUGHBREDS/FAYETTE FARMS, Appellant, v. Adan MANDUJANO; Honorable Edward Hays, Administrative Law Judge; and Workers' Compensation Board, Appellees. No. 2011-SC-000298-WC. Supreme Court of Kentucky. May 24, 2012. 458 James Gordon Fogle, Ferreri & Fogle, PLLC, Louisville, KY, Counsel for Appellant, Gaines Gentry Thoroughbreds/Fayette Farms. Kevin Beiting, Beiting Law Office, LLC, Lexington, KY, Counsel for Appellee, Adan Mandujano. OPINION OF THE COURT An Administrative Law Judge (ALJ) determined that injuries the claimant sustained in an automobile accident while returning to Kentucky from yearling sales held at Saratoga Springs, New York came within the course and scope of his employment with the defendant, Gaines Gentry Thoroughbreds, LLC (Gaines Gentry). The Workers' Compensation Board and the Court of Appeals affirmed. Appealing, Gaines Gentry argues that the ALJ erred by awarding benefits because the claimant's injury is not work-related under the dual purpose, positional risk, or traveling employee doctrine. We affirm. The ALJ found reasonably that Gaines Gentry "instructed" the claimant to travel to Saratoga in a van with its yearlings in order to attend to them, travel that the farm manager admitted someone else would have undertaken if the claimant had not. Gaines Gentry paid the claimant to do so and left him on his own to find return transportation. The ALJ concluded properly under the circumstances that an accident that occurred while the claimant was returning to Kentucky to resume his usual duties for Gaines Gentry was work-related. I. BACKGROUND. The claimant was born in 1982 and completed the ninth grade with no vocational or specialized training. He began working for Gaines Gentry's thoroughbred horse farm as a groom in 2005, for which he earned $412.00 per week at the time of his injury. The farm was located near Lexington, Kentucky. The claimant also showed horses for Eaton Sales, a business that sold horses on consignment. Gaines Gentry was owned by Olin Gentry and Thomas Gaines. Olin Gentry was associated with Eaton Sales (Eaton) and may have had an ownership interest in the business. On August 2, 2007, Eaton, acting as Gaines Gentry's agent, had five or six of the farm's yearlings transported in vans operated by Sallee Horse Vans to the Saratoga Selected Yearlings Sale, which would 459 occur at Saratoga Springs, New York on August 6-7, 2007. The claimant accompanied the yearlings to Saratoga in the back of the van. Eaton sold the last of the yearlings on August 7, 2007 and returned to Kentucky when the sale ended, but the claimant stayed at Saratoga to work for another seller during the sales of lesser quality yearlings that took place thereafter. On August 12, 2007 he sustained skull fractures, cervical and lumbar spine injuries, and extensive dental injuries in a motor vehicle accident that occurred during his return to Kentucky. Having recovered from his injuries, the claimant resumed his duties at Gaines Gentry in October 2007 and continued to be so employed when his workers' compensation claim was heard. He retained a 10% permanent impairment rating based on the spine. Gaines Gentry asserted that the accident was non-work-related because any possible duties he performed for the farm ended when its yearlings were sold. II. THE EVIDENCE. The claimant testified at two depositions and again at the hearing, doing so with the aid of an interpreter. He stated that he requested permission from the farm's assistant manager to take time off in order to work at horse sales being held at Saratoga and in Florida, explaining that showing horses at the sales paid substantially more than his work at the farm. He received permission to work only at the Saratoga sales. The parties set no specific date for him to return. The claimant stated that he planned to travel to Saratoga in his truck, but John Hayes, the farm manager, asked him to ride in the back of the van with the farm's yearlings in order to look after them. He agreed to do so. Gaines Gentry paid him $200.00 for the trip and Eaton paid him an additional $250.00. After arriving at Saratoga, he worked for Eaton for an additional three to four days, for which he received $200.00 per day; extra for working at night; and food and lodging. His work for Eaton ended on August 7, 2007. The claimant testified that he stayed at Saratoga after the Selected Yearlings Sale in order to work during the sales of lesser quality yearlings that followed. During that time, he worked three to four days showing horses for Paramount Sales and was paid $200.00 per day. When the work ended, he obtained a ride back to Kentucky with a friend. He explained that neither Gaines Gentry nor Eaton offered to provide or pay for return transportation to Kentucky, leaving him to make his own arrangements. He acknowledged, however, that he could have returned to Lexington in one of the Sallee vans that brought yearlings to the sale. John Hayes, Gaines Gentry's farm manager, was deposed and testified at the hearing. He stated that the claimant requested time off to go to the Saratoga Sales, a situation that he equated to a request for a leave of absence. Hayes stated that Gaines Gentry made a practice of having an employee accompany its horses in the van, even if the van company also had its own employee do so, because they were very valuable. Knowing the claimant needed a ride to Saratoga, Hayes told him that he would like him to ride in the van with the farm's yearlings. He stated that he gave the claimant $200.00 for expenses. Hayes testified that the claimant's duties for Gaines Gentry ended when the van reached Saratoga and that he could have traveled at no expense on any of the Sallee vans that returned to Kentucky throughout the sales. He did not know how the claimant planned to travel back to Kentucky because he did not know how long he would work at the sales. 460 J. Reiley McDonald, Eaton's managing member, testified when deposed that Eaton sold Gaines Gentry's yearlings at the Saratoga sale held in August 2007. He stated that Eaton hired contract laborers to handle and show yearlings after they arrived at Saratoga. Eaton did not view the laborers as being employees but considered them to be independent contractors, hired for short-term work. The claimant, like other such laborers, was a skilled horseman and did not require instructions concerning how to show the yearlings. He worked for Eaton from August 3 through August 7, 2007, for which Eaton paid him $1,200.00. The claimant argued that the accident and resulting injuries were work-related for several reasons: the travel that produced them was a regular incident of the employment; travel to and from Saratoga involved an exception to the going and coming rule; and his employment exposed him to the risk of being sent to a horse sale without being offered return transportation. Gaines Gentry maintained that the claimant was not performing any duty in relation to his employment when he was injured; that he had worked for two other businesses during an unpaid leave from the employment; and that no legal doctrine extended coverage to what was a non-work-related accident. III. THE ALJ'S DECISION. After summarizing and making specific findings from the evidence, the ALJ determined that the claimant was Gaines Gentry's employee and was acting within the course and scope of his employment when he traveled to Saratoga to accompany the farm's yearlings. He was also doing so during the return travel that resulted in the accident and injuries on August 12, 2007. The ALJ found specifically that Gaines Gentry had business interests at Saratoga; "instructed" the claimant to travel to Saratoga; "instructed" him to do so "in the horse van in order to be close to the horses and to attend to their care;" and paid him $200.00 for doing so. Moreover, both parties contemplated that he would be assisting Eaton as a showman during the Selected Yearlings sale; be paid by Eaton; and return to his duties at the farm at an unspecified date. The ALJ found that the claimant's work for Paramount "was not inconsistent with and did not conflict with the expectations, instructions, or interests of Gaines Gentry" and that Gaines Gentry left him on his own to find return transportation to Kentucky. Rejecting Gaines Gentry's argument that the claimant ceased to act within the course and scope of his employment upon his arrival at Saratoga, the ALJ noted that the injury did not occur while he was working for Eaton or Paramount but during the "necessary and inevitable" act of completing a journey that Gaines Gentry initiated. Noting that the claimant was "on his own" with respect to finding a ride back to Kentucky, which the witnesses stated was consistent with industry practice, the ALJ determined that his return travel to Kentucky was a customary part of the employment and compensable.[1] The ALJ determined that the accident and resulting injuries were work-related under the traveling employee exception to the going and coming rule and the positional risk doctrine. Addressing the traveling employee exception, the ALJ noted that the accident occurred during the claimant's return to Kentucky rather than during a deviation from the employment. 461 Addressing the positional risk doctrine, the ALJ determined that the claimant's employment with Gaines Gentry exposed him to the risk of injury by placing him in the position of having to find a means of transportation back to Kentucky. IV. STANDARD OF REVIEW. An injured worker bears the burden of proof and risk of non-persuasion before the ALJ with regard to every element of the claim.[2] KRS 342.285 designates the ALJ as the finder of fact in workers' compensation cases. It permits an appeal to the Board but provides that the ALJ's decision is "conclusive and binding as to all questions of fact" and, together with KRS 342.290, prohibits the Board or a reviewing court from substituting its judgment for the ALJ's "as to the weight of evidence on questions of fact." Thus, KRS 342.285 gives the ALJ the sole discretion to determine the quality, character, and substance of evidence.[3] As fact-finder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof.[4] KRS 342.285(2) and KRS 342.290 limit administrative and judicial review of an ALJ's decision to determining whether the ALJ "acted without or in excess of his powers;"[5] whether the decision "was procured by fraud;"[6] or whether the decision was erroneous as a matter of law.[7] Legal errors would include whether the ALJ misapplied Chapter 342 to the facts; made a clearly erroneous finding of fact; rendered an arbitrary or capricious decision; or committed an abuse of discretion. The courts have construed KRS 342.285 to require a party who appeals a finding that favors the party with the burden of proof to show that no substantial evidence supported the finding, i.e., that the finding was unreasonable under the evidence.[8] A party who fails to meet its burden of proof before the ALJ must show that the unfavorable finding was clearly erroneous because overwhelming favorable evidence compelled a favorable finding, i.e., no reasonable person could have failed to be persuaded by the favorable evidence.[9] Evidence that would have supported but not compelled a different decision is an inadequate basis for reversal on appeal.[10] V. ANALYSIS. Craddock v. Imperial Casualty and Indemnity Co.[11] set forth the test for determining whether a trip that serves both a business and personal purpose is work-related. A trip is personal under the test if it would have been made without regard to the business purpose and would have 462 been dropped in the event of the failure of the private purpose. The trip is work-related "if it would have been made regardless of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee's personal journey."[12] Gaines Gentry argues that the Board and Court of Appeals engaged in fact-finding when attributing to the ALJ an implicit finding that the claimant would have made the trip to Saratoga in spite of the failure or the absence of a private purpose. Moreover, it characterizes such a finding as speculative because the ALJ failed to address the issue and asserts that extending the dual purpose doctrine to include the accident in which the claimant was injured is an "unprecedented" and "unwarranted expansion" of the doctrine. Gaines Gentry continues to maintain that the claimant's purpose in traveling to Saratoga was "entirely personal;" that he departed from his employment duties as early as when he began traveling to Saratoga but no later than when he stopped showing the farm's horses for Eaton; and that no substantial evidence showed he was acting on behalf of or benefiting Gaines Gentry at the time of his injury. We disagree. The ALJ made no reference to the dual purpose doctrine, but the factual findings support a conclusion under the doctrine that the travel that produced the claimant's injury came within the course and scope of his employment with Gaines Gentry. Contrary to what Gaines Gentry would have us believe, the ALJ found reasonably from the conflicting evidence that Hayes "instructed" the claimant to travel to Saratoga in the van with the farm's yearlings "in order to be close to the horses and to attend to their care" and paid him to do so. The ALJ also found reasonably that having an employee travel in the van with the horses served Gaines Gentry's interests, and Hayes admitted that he would have sent another employee to accompany them had the claimant not done so. Although the claimant may have planned initially to travel to Saratoga for purely personal reasons and although he conducted personal business with Gaines Gentry's permission during at least part of his time at Saratoga, the purpose of his travel to Saratoga became work-related before he embarked on the journey. Kentucky applies the traveling employee doctrine in instances where a worker's employment requires travel.[13] Grounded in the positional risk doctrine,[14] the traveling employee doctrine considers an injury that occurs while the employee is in travel status to be work-related unless the worker was engaged in a significant departure from the purpose of the trip. The ALJ did not err by concluding that the traveling employee and positional doctrines permitted compensation in this case. The claimant's accident did not occur while he was working for Eaton or Paramount but while he was traveling from Saratoga back to Lexington. As found by the ALJ, the parties contemplated that he would work at the sales and return to his 463 duties at the farm when the sales ended. The accident in which he was injured occurred during the "necessary and inevitable" act of completing the journey he undertook for Gaines Gentry. In other words, travel necessitated by the claimant's employment placed him in what turned out to be a place of danger and he was injured as a consequence. Having neither provided nor specified a means of return transportation to Kentucky, Gaines Gentry cannot complain that it had no control over the means the claimant selected. The ALJ found nothing unreasonable in his choice of transportation and Gaines Gentry points to nothing that would have compelled a finding to the contrary. The decision of the Court of Appeals is affirmed. All sitting. All concur. NOTES [1] McCracken County Health Spa v. Henson, 568 S.W.2d 240 (Ky.App.1977). [2] See Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky.1963); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.1984); Snawder v. Stice, 576 S.W.2d 276 (Ky.App.1979). [3] Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985). [4] Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.1977). [5] KRS 342.285(2)(a). [6] KRS 342.285(2)(b). [7] KRS 342.285(2)(c), (d), and (e). See also American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450, 457 (Ky.1964). [8] Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986); Mosely v. Ford Motor Co., 968 S.W.2d 675 (Ky.App.1998); REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App.1985). [9] Id. [10] McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.1974). [11] 451 S.W.2d 658, 661 (Ky.1970). [12] Id. See also, Arthur Larson and Lex K. Larson, LARSON'S WORKERS' COMPENSATION LAW § 16.02 (2009). [13] See Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157 (Ky.1998); see also Arthur Larson and Lex K. Larson, LARSON'S WORKERS' COMPENSATION LAW § 14 (2009). [14] See Corken v. Corken Steel Products, Inc., 385 S.W.2d 949 (Ky.1964) (when employment places a worker in what turns out to be a dangerous place, an injury that results is work-related).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540211/	721 F. Supp. 2d 447 (2010) MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA, Plaintiff, v. AMERICAN CASUALTY COMPANY OF READING, PA., Defendant/Counter-Plaintiffs. No. 5:08-CV-510-F. United States District Court, E.D. North Carolina, Western Division. June 14, 2010. 449 Walter Brock, Jr., Young, Moore & Henderson, Raleigh, NC, for Plaintiff. Susan K. Burkhart, Cranfill Sumner & Hartzog, LLP, Raleigh, NC, for Defendant. ORDER JAMES C. FOX, Senior District Judge. Plaintiff Medical Mutual Insurance Company of North Carolina ("Medical Mutual") initiated this civil action for declaratory relief on October 7, 2008, pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure, seeking a declaration that it has no duty to defend or obligation to indemnify Mechelle Smith ("Smith") for the professional liability claims asserted against her in the underlying action entitled Linda R. Cox, Marie R. Miller, Ellen R. Riddick, Co-Executrixes of the Estate of Elizabeth Rountree, Deceased v. Victor G. Sonnino, M.D. (aka Vittorio Guy Sonnino, M.D.), Mechell Smith, N.P.-C, Northeast Neuroscience, P.S., et al., 06 CVS 224 (the "Rountree Action"). Defendant American Casualty Company of Reading, PA ("American Casualty") has asserted a Counterclaim against Medical Mutual seeking to recover all amounts that American Casualty paid in the defense and indemnification of Smith. The matter is now before the court on cross-motions for summary judgment. The parties' respective motions have been fully briefed and are now ripe for disposition. I. FACTUAL BACKGROUND The undisputed facts, as set forth by the parties, and the record, are as follows: A. The Medical Mutual Policy On August 13, 2003, Medical Mutual added Smith, a nurse, as a named insured to the claims-based professional liability insurance policy no. PG112673 it had issued to Northeast Neuroscience PC ("the Medical Mutual policy"). American Casualty Mot. for Summ. J., Ex. C [DE-23-5]. The Medical Mutual policy was effective from December 1, 2002 to December 1, 2003. Id., Ex. D [DE-23-6]. Renewal policies were subsequently issued for the policy periods of December 1, 2003 to December 1, 2004, and December 1, 2004 to December 1, 2005. Id., Ex. A [DE-23-3], Ex. E [DE-23-7]. The Medical Mutual policy is subject to liability limits in the amount of $1,000,000.00 per claim and $3,000,000.00 in the aggregate. Med. Mut. Mem. in Support of Mot. for Summ. J. [DE-22-2], Ex. 1 ("Med. Mut. Policy"). Smith was listed as an insured under Coverage A of the policy, and her premium was $938.00. Id. The Medical Mutual policy provides in its insuring agreement, in pertinent part, the following: I. INSURING AGREEMENT 450 In consideration of the payment of the premium due for this policy, the information provided by an Insured including that for obtaining or continuing this policy, the statements contained in the Declarations Page made a part hereof, and subject to the Limits of Liability, Exclusions, Conditions, and other terms of this policy, Medical Mutual Insurance Company of North Carolina ("the Company") agrees with the Insured that: A. For Individual Personal Liability The Company shall pay on behalf of each Insured listed under "Coverage A" of the Declarations all damages which the Insured shall become legally obligated to pay because of an incident arising out of the rendering of or failure to render professional services on or after the Retroactive Date stated in the Declarations and for which claim is made during the policy period. Med. Mut. Policy [DE-22-2] at p. 2 (emphasis in original). The "Exclusions" section of the Medical Mutual policy provides the following: IV. EXCLUSIONS This Insurance does not apply to: * * * (g) damages arising out of or in connection with any injury resulting from rendering of or failure to render professional services by an Insured prior to the policy period if such damages are covered wholly or in part, by any other insurance or a self-insured, retained risk or risk sharing plan or program; Med. Mut. Policy [DE-22-2] at pp. 3-4 (emphasis in original). The "Policy Conditions" section also provides: E. Other Coverage Except as provided in Exclusion "g", this insurance is excess over any other valid and collectable coverage applicable to a claim against any Insured. All other insurance whether stated to be primary, pro rata, contributory, excess, or contingent will first apply, as will any provision under a self-insured retained risk or risk sharing plan or program. Id. at p. 8 (emphasis in original). B. The American Casualty Policy In exchange for a premium of $89.00, American Casualty issued an occurrence-based "Healthcare Providers Professional Liability Insurance" policy, policy number XXXXXXXXXX ("the American Casualty policy"), to Smith, effective from March 13, 2003 to March 13, 2004. Med. Mut. Mem. in Support of Mot. for Summ. J., Ex. 2 [DE-22-3] ("The American Cas. Policy"). The American Casualty policy is subject to liability limits of $1,000,000.00 for each claim and $6,000,000.00 in the aggregate. Id. The American Casualty policy provides, in pertinent part, the following: I. COVERAGE AGREEMENTS Coverage under any of the following agreements apply only to acts, errors, or omissions, including medical incidents... which occurred on or after the effective date of coverage, and before the expiration of the policy period stated on the certificate of insurance. * * * A. PROFESSIONAL LIABILITY We will pay all amounts, up to the Professional Liability limit of liability stated on the certificate of insurance, that you become legally obligated to pay as a result of a 451 professional liability claim arising out of a medical incident by you. . . . Id. at p. 15 (emphasis in original). The American Casualty policy, like the Medical Mutual policy, also includes an "other insurance" provision. Located in the "Common Conditions" section, the provision provides: VIII. OTHER INSURANCE AND RISK TRANSFER AGREEMENTS If there is any other insurance policy or risk transfer instrument, including but no limited to, self-insured retentions, deductibles or other alternative arrangements ("other insurance") that applies to any amount payable under this Policy, such other insurance must pay first. It is the intent of this policy to apply only to the amounts covered under the Policy which exceed the available limit of all deductibles, limits of liability or self-insured amounts of the other insurance, whether primary, contributory, excess, contingent, or otherwise. This insurance will not contribute with any other insurance. In no event will we pay more than our limit of liability. These provisions do not apply to other insurance written as specific excess insurance over the limits of liability of this policy. Id. at p. 5 (emphasis in original). C. The Rountree Action. On March 9, 2006, the Rountree Action was commenced in the General Court of Justice, Superior Court Division, Pasquotank County, North Carolina. The complaint in the Rountree Action alleges that (a) Elizabeth Rountree ("Rountree") was admitted to Albemarle Hospital in Elizabeth City, North Carolina, on or about February 23, 2004, for decompressive laminectomies and excision of herniated discs to be performed by Dr. Victor Sonnino; (b) was discharged on February 25, 2004; (c) presented at the emergency room at Albemarle Hospital with certain symptoms on March 3, 2004; (d) was transferred to Sentara Norfolk General Hospital on March 5, 2004 and (e) died from complications of sepsis on March 20, 2004. Answer, Ex. C [DE-10-4]. The complaint further alleged that Smith was negligent in that she failed to adequately monitor, diagnose, treat, and respond to Rountree's condition during her admission to Albemarle Hospital between March 3, 2004 and March 5, 2004. Dr. Sonnino first provided notice of what would become the Rountree Action to Medical Mutual on April 1, 2005. Pursuant to Medical Mutual's practice and procedure, each named insured on a claims-made policy issued to a medical practice receives the benefits of the original claim report date. Therefore, Smith is considered by Medical Mutual to have provided notice of the Rountree Action on April 1, 2005. It is undisputed that after Smith advised American Casualty of the Rountree Action, the company began defending her. American Casualty asked Medical Mutual to participate in the defense and indemnification of Smith, but Medical Mutual declined, stating the operation of Exclusion (g) of the Medical Mutual policy precluded coverage for Smith. Specifically, Medical Mutual contended its policy precluded coverage for Smith because the claims were for damages for the rendering of or failure to render professional services by Smith prior to the Medical Mutual policy period, and because such damages were covered in whole or in part by the American Casualty policy. Medical Mutual did defend Dr. Sonnino and the practice in the Rountree Action. 452 A court-ordered mediation in the Rountree Action took place on September 30, 2008, and all claims were settled on December 11, 2008. American Casualty requested that Medical Mutual indemnify Smith in connection with the settlement, and Medical Mutual refused, again stating that Exclusion (g) precludes coverage. Medical Mutual thereafter initiated the instant action seeking a declaration that it has no duty to defend or obligation to indemnify Smith for the professional liability claims asserted against her in the Rountree Action. American Casualty asserted a Counterclaim against Medical Mutual seeking to recover all amounts that American Casualty paid in the defense and indemnification of Smith. Both parties have filed motions for summary judgment, which have been fully briefed and are now ripe for disposition. II. STANDARD OF REVIEW Summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The party seeking summary judgment bears the burden initially of coming forward and demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the non-moving party then must come forward and demonstrate that such a fact issue does indeed exist. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "[T]he interpretation and construction of insurance policies is a matter of law, and, therefore, such cases are particularly amenable to summary judgment." John Deere Ins. Co. v. Shamrock Industries, Inc., 929 F.2d 413, 417 (8th Cir.1991). III. DISCUSSION In this action, it is clear that either policy would provide coverage to Smith had the other policy not been in existence. Both policies do exist, however, and both Medical Mutual and American Casualty vigorously dispute the effect of their policies' coexistence. Medical Mutual contends that the American Casualty policy triggers the operation of the Medical Mutual policy's Exclusion (g) and therefore excludes coverage for Smith. American Casualty contends, however, that its policy does not set into operation Exclusion (g) of the Medical Mutual policy. Moreover, American Casualty argues that the specific language of its "other insurance" clause must be given effect over the "other insurance" clause in the Medical Mutual policy. With this background in mind, the court turns to North Carolina law[1] to help examine the heart of the parties' dispute. A. North Carolina Law With insurance contracts, as with all other contracts, "the goal of construction is to arrive at the intent of the parties when the policy is issued." Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978). The intent of the parties is determined by the plain language of the policy. Id. The various terms of the policy are to be harmoniously construed, and if possible, every word and every provision is to be given effect. If, however, the meaning of the words or the effect of provisions is uncertain or capable of several reasonable interpretations, the doubts will be 453 resolved against the insurance company and in favor of the policyholder. Whereas, if the meaning of the policy is clear and only one reasonable interpretation exists, the courts must enforce the contract as written; they may not, under the guise of construing an ambiguous term, rewrite the contract or impose liabilities on the parties not bargained for and found therein. Gaston County Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 293, 299-300, 524 S.E.2d 558 (2000) (citations omitted). Where, as here, multiple policies appear to provide coverage for the same loss, the North Carolina Supreme Court has counseled: The terms of another contract between different parties cannot affect the proper construction of the provisions of an insurance policy. The existence of the second contract, whether an insurance policy or otherwise, may or may not be an event which sets in operation or shuts off the liability of the insurance company under its own policy. Whether it does or does not have such effect, first[,] requires the construction of the policy to determine what event will set in operation or shut off the company's liability and, second, requires a construction of the other contract, or policy, to determine whether it constitutes such an event. Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341, 346, 152 S.E.2d 436, 440 (1967). In undertaking this exercise, a court should keep in mind that ambiguous provisions are construed in the manner most favorable to the insured, and "[e]xclusions from and exceptions to undertakings by the company are not favored." Id. B. Applying North Carolina's rule of construction to the policies Under Shelby Mutual, the court first must examine the Medical Mutual policy to determine what events set in operation or shut off Medical Mutual's liability. Here, there is no question that Dr. Sonnino's report to Medical Mutual of the impending Rountree Action triggered the applicability of Medical Mutual's claims-based policy. As this court already has noted, however, Medical Mutual contends that Exclusion (g) operates to preclude coverage for the claim against Smith. That exclusion provides: This Insurance does not apply to: . . . (g) Damages arising out of or in connection with any injury resulting from rendering of or failure to render professional services by an Insured prior to the policy period if such damages are covered wholly or in part, by any other insurance or self-insured, retained risk or risk sharing plan or program. Med. Mut. Policy [DE-22-2] at pp. 3-4. Pursuant to Shelby Mutual, this court has to examine whether Exclusion (g) is triggered. Under the terms of Exclusion (g), insurance will not be provided if (1) the damages arose of an injury resulting from the rendering of professional services prior to the policy period; and if (2) such damages are covered wholly or in part by any other insurance. The first part of Exclusion (g) is satisfiedthe damages asserted in the claim arose from an injury resulting from the rendering of Smith's professional services on March 3-5, 2004, which are dates prior to the Medical Mutual policy. Thus, the question is whether the damages are covered wholly or in part by other insurancenamely, the American Casualty policy. The court must now examine the American Casualty policy to determine whether 454 it constitutes "other insurance" within the meaning of Exclusion (g). The American Casualty policy provides coverage for injuries which are the result of medical incidents that occurred on or after the effective date of coverage, and before the expiration date stated on the certificate of insurance. In this case, the effective dates of coverage were from March 13, 2004 to March 13, 2004. The claim at issue in this case, therefore, appears to come within the coverage of the American Casualty policy. As this court already has noted, however, the American Casualty policy also has an "other insurance" provision within it, which provides: If there is any other insurance policy or risk transfer instrument, including but not limited to, self-insured retentions, deductibles, or other alternative arrangements ("other insurance"), that applies to any amount payable under this Policy, such other insurance must pay first. It is the intent of this policy to apply only to the amounts covered under this Policy which exceed the available limit of all deductibles, limits of liability or self-insured amounts of the other insurance, whether primary, contributory, excess, contingent, or otherwise. This insurance will not contribute with any other insurance. In no event will we pay more than our limit of liability. The American Cas. Policy [DE-22-3] at p. 5. Because of the existence of the Medical Mutual policy, American Casualty contends its "other insurance" provision is triggered, and its policy only provides "excess coverage." Relying on Shelby Mutual and the North Carolina Court of Appeals' decision in Horace Mann Insurance Company v. Continental Casualty Company, 54 N.C.App. 551, 284 S.E.2d 211 (1981), American Casualty argues that an "excess" policy cannot constitute "other insurance" within the meaning Exclusion (g). In response, Medical Mutual offers two main arguments as to why the American Casualty policy constitutes "other insurance" within the meaning of Exclusion (g): (1) the American Casualty policy was the only policy in effect at the time of the actual occurrence giving rise to the Rountree Action, and therefore the American Casualty policy's "other insurance" clause is not triggered, and (2) Exclusion (g) constitutes a valid "super-escape" clause which should be given effect.[2] The court 455 will examine each of these contentions in turn. 1. Timing of policies In examining whether the American Casualty policy constitutes "other insurance" within the meaning Exclusion (g), Medical Mutual contends that this court "is required" to evaluate the American Casualty policy "as of the date of the occurrence that triggered coverage." Med. Mutual Mem. in Opp. to Def.'s Mot. for Summ. J. [DE-26] at p. 5. Because the alleged acts giving rise to the Rountree Action occurred on March 3-5, 2004, and because the applicable Medical Mutual claims-based policy did not take effect until December 1, 2004, Medical Mutual argues that its policy was not "in effect" on the date of the occurrence. Consequently, according to Medical Mutual, the "other insurance" clause in the American Casualty policy is not set into operation, and American Casualty provides primary coverage for the Rountree Action. The court disagrees. The court has not found any support for Medical Mutual's assertion that the "other insurance" clause in the American Casualty policy must be evaluated "as of the date of the occurrence that triggered coverage." Notably, Medical Mutual did not provide any citation for the assertion in its memorandum in opposition to American Casualty's motion for summary judgment. In its reply in support of its own motion for summary judgment, Medical Mutual cites to Gaston County as support for this proposition. Med. Mutual Reply [DE-28] at p. 3. In Gaston County, the North Carolina Supreme Court did rule, that "where the date of the injury-in-fact can be known with certainty, the insurance policy or policies on the risk on that date are triggered." 351 N.C. at 303, 524 S.E.2d at 564. However, that ruling was with regard to which policy year of consecutive policies from the same companies were applicable to a claim. When the Gaston court went on to examine which of the policies from separate companies provided primary coverage, it did not restrict its analysis of the policies in question, including their respective "other insurance" clauses, to the exact moment when the coverage was triggered under the various policies. Instead, the Gaston court examined the plain language of the policies, and their "other insurance" clauses, and made no mention of their respective "trigger" dates. See id. at 305-308, 524 S.E.2d at 566-68. Moreover, as American Casualty notes, under the method of analysis advocated by Medical Mutual, an "other insurance" clause in an occurrence-based policy would never be given effect where a subsequently-issued claims-based policy covers the same occurrence. Indeed, taking Medical Mutual's proposition to the end of the logical envelope, an examination of whether the subsequently issued claims-based policy implicated the "other insurance" clause of an occurrence-based policy would be unnecessary, whether or not the claims-based policy was in existence at the time of the occurrence. This is because, by definition, an occurrence-based policy always would be triggered before a claims-based policy, whether the claims-based policy was in existence at the time of the occurrence or not. This court has not found support for such a proposition in North 456 Carolina cases, and will not create such a rule here. Consequently, the court will not restrict its analysis of the "other insurance" clause in the American Casualty policy to the exact moment coverage was triggered under the policy. 2. Is Exclusion (g) a "super-escape" clause? Even if this court does not restrict its analysis of the "other insurance" clause to the exact moment coverage was triggered under the American Casualty policy, Medical Mutual still contends the American Casualty policy is "other insurance" within meaning of Exclusion (g). Specifically, Medical Mutual contends that Exclusion (g) may be read as a "super-escape" clause which bars coverage where there is occurrence-based coverage for an event that occurred before the Medical Mutual policy period. This argument necessitates a review of the various terms used by courts to describe common "other insurance" clauses in insurance policies. An "excess clause" in an insurance policy" `generally provides that if other valid and collectible insurance covers the occurrence in question, the "excess" policy will provide coverage only for liability above the maximum coverage of the primary policy or policies.'" Horace Mann Ins. Co., 54 N.C.App. at 555, 284 S.E.2d at 213 (quoting 8A APPLEMAN, INSURANCE LAW & PRACTICE § 4910 (1981)). See also 15 COUCH ON INSURANCE § 219:5 (3d ed.1999)(explaining that an "excess clause" provides that an insurer will pay a loss only after other available primary insurance is exhausted). An "escape clause," in contrast, typically" `provides that there shall be no coverage where there is other valid and collectible insurance.'" Id. (quoting 8A APPLEMAN, INSURANCE LAW & PRACTICE § 4910). See also 15 COUCH ON INSURANCE § 219:5 (describing an "escape clause" as providing "that an insurer is absolved of all liability where other coverage is available"). North Carolina courts have described a specific type of escape clausethe "super escape" clauseas being "one which expressly provides `that the insurance does not apply to any loss covered by other specified types of insurance, including the excess insurance type . . . .'" Aetna Cas. & Surety Co. v. Cont'l Ins. Co., 110 N.C.App. 278, 282, 429 S.E.2d 406, 409 (1993) (quoting Horace Mann Insurance, 54 N.C.App. at 555, 284 S.E.2d at 213). See also 15 COUCH ON INSURANCE § 219:36 (explaining that a "super escape clause" is "a more far-reaching version of the escape clause" and "states that the insurance will not apply to any liability for a loss that is covered on a primary, contributory, excess, or any other basis by insurance in another insurance company"). Using these labels, various decisions from the North Carolina Court of Appeals have articulated the following principles for resolving conflicts between multiple policies with "other insurance" clauses: When a standard escape clause in one policy competes with an excess clause in another policy, the policy with the standard escape clause is considered primary, and the policy with the excess clause is considered secondary, or excess. However, when a super escape clause in one policy competes with an excess clause in another policy, the super escape clause is given effect and the insurer whose policy contains the super escape clause is absolved from liability. When two policies contain identical excess clauses, or excess clauses which are worded in such a way that it is impossible to distinguish them or to determine which policy is primary, the clauses are deemed to be mutually repugnant and neither excess clause will be given effect. 457 Aetna Casualty, 110 N.C.App. at 282, 429 S.E.2d at 409 (internal citations and quotes omitted). Based on these labels and principles discussed above, the parties spend much time discussing whether Exclusion (g) in the Medical Mutual policy constitutes a "standard escape clause" or a "super escape clause." Although this court recognizes that the North Carolina Court of Appeals has used the labels and principles described above in reaching conclusions on which policies should be deemed primary, those opinions relied on the North Carolina Supreme Court's decision in Shelby Mutual Insurance, which, at bottom, focuses on the principles of insurance contract construction. a. Shelby Mutual In Shelby Mutual, the North Carolina Supreme Court addressed whether the existence of a liability policy with an "excess" clause issued by the Allstate Insurance Company was an event which cut off the liability of Shelby Mutual under its own policy. The Shelby Mutual policy defined "Persons Insured," in pertinent part, as follows: Each of the following is an insured under Part 1, except as provided below: (3) . . . any of the following persons while using such automobile with the permission of the named insured, provided such person's actual operation . . . is within the scope of such permission: . . . (b) any other person, but only if no other valid and collectable automobile liability insurance, Either primary or excess. . . is available to such person. 269 N.C. 341, 344, 152 S.E.2d 436, 439. The Allstate Insurance policy provided that its coverage would be "excess insurance over any other valid and collectible insurance." Id. In examining the issue, the Shelby Mutual court noted "the leading case" of Zurich General Accident & Liability Insurance Company v. Clamor, 124 F.2d 717 (7th Cir.1941), which held that an insurance policy with the "escape clause" was deemed primary over a policy with an "excess clause." 269 N.C. at 349-50, 152 S.E.2d at 442-43. The Shelby Mutual court examined Zurich in detail. In Zurich, a policy was issued by Zurich to the owner of a car "insuring him against liability for personal injuries arising out of the operation of an named automobile," and included an "omnibus" clause "which extended the coverage to any person `while using the automobile . . . with the permission of the named insured.'" Zurich, 124 F.2d at 718. The omnibus clause, however, "was not applicable to `any person . . . with respect to any loss against which he has other valid and collectible insurance.'" Id. The owner of the car allowed another man to drive the vehicle, and accident occurred. The driver himself had an insurance policy from Car & General which included an endorsement that stated the insurance "shall be excess over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with the respect to the automobile or otherwise, against a loss covered hereunder." Id. The Zurich court explained that "[a] decision must rest upon a construction of the language employed by the respective insurers . . . . It will be noted that the language employed by Zurich in this respect is general in nature, while that employed by Car & General is specific, or at any rate, more specific than Zurich." Id. at 720. The Zurich court went on to say: There are cases which have held or indicated, under somewhat similar circumstances, that the specific language is controlling over the general. We think 458 that construction should be applied in the instant situation. Any other construction would ignore the specific language employed by Car & General. The "excess insurance" provided by the latter is not "other insurance" required by Zurich. Id. After noting the holding in Zurich, the Shelby Mutual court observed: "It is apparent that the Zurich case did not hold there is an inherent quality in an `excess' clause which makes it impossible for a company to provide in its own policy that its liability shall be excluded by the existence of another policy containing an `excess' clause." 269 N.C. at 350, 152 S.E.2d at 443. Turning to the case before it, the Shelby Mutual court stated: Here, the Shelby Mutual policy is not ambiguous with reference to the intent of the parties to exclude coverage under it where the other policy contains an "excess" clause. The Shelby Mutual policy expressly makes the existence of such "excess" policy an event which sets the Shelby Mutual's exclusionary clause into operation. It states that a person in the category [of the driver] is an insured thereunder, "but only if no other valid and collectible automobile liability insurance, Either primary or excess . . . is available to such person." Id. at 351, 152 S.E.2d at 443. Thus, Shelby Mutual appears to teach not that the label "super escape" or "escape" controls the outcome of a battle of "other insurance" clauses, but rather, if a policy's "other insurance" clause is ambiguous, it must be construed in the manner most favorable to the insured, and that "[e]xclusions from and exceptions to undertakings by the company are not favored." Id. at 346, 152 S.E.2d at 440. Because the Shelby Mutual policy was not ambiguous, and under its express terms, an "excess" insurance policy precluded coverage, the terms were enforced. b. Application of Shelby Mutual to this case Here, Medical Mutual contends Exclusion (g) is not ambiguous. As a reminder, Exclusion (g) states that coverage is not provided for: Damages arising out of or in connection with any injury resulting from rendering of or failure to render professional services by an Insured prior to the policy period if such damages are covered wholly or in part, by any other insurance or self-insured, retained risk or risk sharing plan or program. Med. Mut. Policy [DE-22-2] at p. 4. According to Medical Mutual, Exclusion (g) "clearly makes the applicability of an `occurrence' policy, in effect prior to the inception of any potentially applicable Medical Mutual `claims-made' policy, the event that sets the clause into operation." Med. Mutual Mem. in Support of Mot. for Summ. J. [DE-22] at p. 14. There is no question that insurance in effect prior to Medical Mutual's policy period has the potential to set into operation Exclusion (g), whether that insurance be occurrence-based or claims-based. As this court already has noted, the real question is what insurance constitutes "any other insurance" within the meaning of Exclusion (g). In other words, does "any other insurance" include insurance with an "excess clause"? Based on this court's review of North Carolina law, the court predicts the North Carolina Supreme Court would rule that "any other insurance" does not include insurance with an excess clause. In Horace Mann Insurance, the North Carolina Court of Appeals, relying on Shelby Mutual, ruled that an "other insurance" clause providing that the "insurer shall not 459 be liable [for] . . . any claim . . . which is insured by another valid policy or policies" was not triggered by another policy containing an "excess" clause. 54 N.C.App. at 555-56, 284 S.E.2d at 213-14. It appears to the court that there is no real difference between specifying "any other insurance" and "another valid policy or policies." Both phrases leave open the question of whether "excess" insurance can constitute "other insurance." Both are therefore ambiguous, and must be interpreted against the insurer, and in favor of coverage.[3] Therefore, Exclusion (g) is not triggered by the existence of an occurrence-based policy with an "excess" clause in effect prior to the Medical Mutual policy. Even where, as here, an insurance company includes a pre-policy acts requirement as part of its "other insurance" escape clause, a court still faces the issue of what constitutes the "other insurance." Decisions from North Carolina courts indicate that under North Carolina law, "other insurance" does not include another policy with an "excess" clause, unless the escape clause so expressly provides. See Shelby Mutual, 269 N.C. at 351, 152 S.E.2d at 443; Horace Mann, 54 N.C.App. at 555-56, 284 S.E.2d at 213-14.[4] Because Medical Mutual did not expressly provide in Exclusion (g) that an excess policy would exclude coverage, the existence of the 460 American Casualty policy is not an event that sets into operation Exclusion (g). 3. Comparison of Excess Clauses Having concluded that Exclusion (g) is not triggered by the existence of the American Casualty policy, the court must now determine whether the "excess" clauses in both policies are mutually repugnant, and therefore the costs are shared pro rata between Medical Mutual and Accidental Casualty, or whether one policy is deemed "excess" to the other. The North Carolina Court of Appeals has explained that under North Carolina law, where two "excess" policies are worded in such a way that it is impossible to distinguish between them or to determine which policy is primary, `the clauses are deemed mutually repugnant and neither excess clause will be given effect.'" Aetna Casualty, 110 N.C.App. at 282, 429 S.E.2d at 409 (quoting North Carolina Farm Bureau Mut. Ins. Co. v. Hilliard, 90 N.C.App. 507, 511, 369 S.E.2d 386, 388 (1988)). The "excess" clause in the Medical Mutual policy provides: Except as provided in Exclusion "g", this insurance is excess over any other valid and collectable coverage applicable to a claim against any other Insured. All other insurance whether stated to be primary, pro rata, contributory, excess, or contingent will first apply, as will any other provision under a self-insured retained risk or risk sharing plan or program. Med. Mut. Policy [DE-22-2] at p. 8. American Casualty's excess provision, for its part, provides in pertinent part: If there is any other insurance policy or risk transfer instrument, including but not limited to self-insured retentions, deductibles or other alternative arrangements ("other insurance"), that applies to any amount payable under this Policy, such other insurance must pay first. It is the intent of this policy to apply only to the amounts covered under this Policy which exceed the available limit of all deductibles, limits of liability or self-insured amounts of the other insurance, whether primary, contributory, excess, contingent, or otherwise. This insurance will not contribute with any other insurance. In no event will we pay more than our limit of liability. The America Cas. Policy [DE-22-3] at p. 5. The "excess provisions" of both the Medical Mutual and American Casualty policies appear to state the same intent: in the event there is "other insurance" applicable to a claim, such "other insurance" provides primary coverage. Where the intent of "other insurance" clauses in two different policies are indistinguishable, they are deemed to be mutually repugnant and liability is prorated between the two companies. Aetna Casualty, 110 N.C.App. at 282, 429 S.E.2d at 409. American Casualty, however, argues it has what amounts to a "super excess" clause because it expressly provides "[t]his insurance will not contribute with any other insurance." The America Cas. Policy [DE-22-3] at p. 5. This court predicts, however, that the North Carolina Supreme Court would agree with the ruling in Horace Mann Insurance Company v. United International Insurance Company, 762 F. Supp. 1470 (M.D.Ala.1990), and find that the "will not contribute" language in the context of a co-primary insurance policy to be ambiguous, and as such, must be interpreted in favor of coverage. In United International Insurance, a high school student suffered a paralyzing injury during cheerleading practice, and sued the school board, the board of school commissioners, the individual school commissioners, and the 461 high school principal, the school athletic director and the cheerleading sponsor. Id. at 1471. Horace Mann provided liability insurance coverage for the principal and cheerleading sponsor through a contract with the National Education Association. United International provided liability insurance coverage for all of the defendants in the lawsuit for "catastrophic injuries" arising out of athletic events. Id. Both the Horace Mann and United International policies contained "excess clauses," but United International argued that its policy contained a "super-excess" clause that precluded proration. The United International clause provided that "[b]enefits will be paid which are in excess of, but not contribute with, total benefits payable for the same loss under any other liability insurance." Id. at 1474. United International specifically relied on the holding in Independent Fire Insurance Company v. Mutual Assurance, 553 So. 2d 115 (Ala.1989). Independent Fire was a declaratory judgment action concerning two companies' coverage of and duty to defend a personal injury action. The plaintiff, Independent Fire, was the insurer for the driver of a boat involved in the underlying accident, and the defendant, Mutual Assurance, had written an umbrella insurance policy for the boat's owner. As the court in United International Insurance summarized: The [Alabama Supreme] [C]ourt stated that an umbrella policy "is generally considered `true excess' insurance and the last to provide coverage, after a primary policy or excess policy." [553 So.2d at] 116. The court rejected Independent Fire's argument that, because both policies contained excess insurance clauses, both companies should contribute pro rata to provide coverage. It found that the language of the umbrella policy's excess clause-benefits "shall be in excess of, and not contribute with, such other insurance"clearly expressed the intent of Mutual Assurance that its umbrella coverage would not be subject to proration. United International Insurance, 762 F.Supp. at 1474. United International argued that its position was equivalent to Mutual Assurance because its own excess clause specifically stated that it would "not contribute with" other insurers. The United International Insurance disagreed, explaining: [T]he decision in Independent Fire was specifically premised on the fact that Mutual Assurance's excess clause was part of an umbrella, or true excess policy. In denying proration the Court stated, "The `other insurance' clauses of a primary policy with an excess clause and an umbrella policy are not equivalent and are not mutually repugnant so that they cancel each other." This court does not believe that under Alabama law a company should be able to alter its status as an excess insurer simply by including the phrase "not contribute with" in its excess clause, outside of the special context of an umbrella policy. Such a fundamental redefinition of an insurer's status should be more explicit, not only for the benefit of other insurers but more importantly for the insured. The court finds the phrase "not contribute with" in a context outside an umbrella policy would be ambiguous and, therefore, must be construed in favor of coverage and against United International. 762 F.Supp. at 1474-75 (internal citations and footnote omitted). This court agrees with the reasoning set forth in United International Insurance and finds it equally applicable to North Carolina law. At bottom, under North 462 Carolina law, the court's task is to ascertain the intent of parties to a contract. Gaston County, 351 N.C. at 299, 524 S.E.2d at 563. The intent of both "excess" clauses, in the end, is to declare that the respective policy will be excess to any other insurance. Where, as here, both policies provide excess coverage by virtue of an "other insurance" clause, the court cannot discern any real difference between Medical Mutual's statement that any other insurance must first be applied, and American Casualty's additional statement that it "will not contribute." To hold otherwise would result in insurance companies attempting to state, in an increasingly more wordy and awkward manner, that they really will not contribute and "other insurance" will apply first. Moreover, the court agrees with the United International court that in the context of umbrella policies, such anti-contribution language will take on a different gloss. But in the context of an "other insurance" "excess" clause, itself, the meaning and effect of such language is much less clear, and indeed, repetitive and ambiguous. Where the effect of a provision is ambiguous, the court has a duty to construe the policy in favor of coverage for the insured. Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. at 346, 152 S.E.2d 436 at 440. In this case, the court cannot construe the language in American Casualty's "other insurance" clause as elevating it to a "super-excess" umbrella liability carrier. To the extent the Second Circuit reached a different conclusion, under Connecticut law, see RLI Insurance Company v. Hartford Accident and Indemnity Company, 980 F.2d 120 (2d Cir.1992), this court respectfully disagrees. The court, therefore, finds the two "excess" clauses to be mutually repugnant. The parties agree that if the "excess" clauses are mutually repugnant, then the coverage for indemnity payments should be prorated equally between Medical Mutual and American Casualty. 4. Responsibility for Defense Costs Although the parties agree that the costs of indemnifying Smith should be prorated equally between them, they dispute whether the costs of defense also should be prorated. Medical Mutual argues that it never had a duty to defend Smith because she never explicitly demanded a defense from the company, and consequently, pursuant to the North Carolina Supreme Court's decision in Fireman's Fund Insurance Company v. North Carolina Farm Bureau Mutual Insurance Company, 269 N.C. 358, 152 S.E.2d 513 (1967), American Casualty is precluded from seeking contribution of the defense costs. Medical Mutual's argument raises two separate issues for the court: (1) Was Smith required to explicitly demand that Medical Mutual provide a defense, and (2) if not, does the North Carolina Supreme Court's decision in Fireman's Fund prevent American Casualty from seeking contribution for the defense costs? a. Duty to Defend Smith The first question for the court is whether Smith was required, under the policy, to explicitly demand a defense from Medical Mutual in order to trigger Medical Mutual's duty to defend. "An insurer's duty to defend suits against its insured is determined by the language in the insurance contract." Brown v. Lumbermens Mut. Cas. Co., 326 N.C. 387, 392, 390 S.E.2d 150, 153 (1990). The record shows that the Medical Mutual policy includes a section detailing the rights and duties of Medical Mutual, and specifically provides: "The Company shall have the right and the duty to defend any 463 suit against the Insured under Insuring Agreements A and B above, even if any of the allegations of the suit are groundless, false or fraudulent, subject to the Exclusions and Conditions and other terms of the policy." Medical Mutual Policy [DE-22-2] at p. 6. The Medical Mutual policy also provides that coverage under the policy applies only "if the Company is provided written notice during the policy period of a claim for damages." Id. at p. 1. Written notice may include either a copy of a filed suit against the insured or a copy of a written notification of a demand for money or services. Id. at p. 2. Consequently, reading the policy as a whole, once an insured provides written notice of a suit against him for damages arising out the rendering of, or failure to render, professional services, Medical Mutual's duty to defend is implicated. The court has not located, nor has Medical Mutual identified, a provision within the Medical Mutual policy requiring the insured to explicitly demand a defense. The record also shows that Smith, on March 15, 2006, sent a letter to Medical Mutual with a copy of the summons and complaint in the Rountree Action attached thereto. This alone would seem to trigger Medical Mutual's duty to defend Smith in the Rountree Action. Moreover, as Medical Mutual itself notes, its "practice and procedure permit[s] each named insured on a Medical Mutual claims-made policy issued to a medical practice . . . to receive the benefit of the original report date." Medical Mutual's Resp. to Second Interrogatories and Req. for Prod. of Docs. [DE-22-5] ¶ 4. It is undisputed that Medical Mutual considered Smith "to have provided notice of Ms. Rountree's claim against her on April 1, 2005, the date that Dr. Sonnino first provided notice of the claim to Medical Mutual." Id. Under the plain terms of the Medical Mutual policy, there was nothing else for Smith to do to receive the benefit of a defense from Medical Mutual. See St. Paul Fire & Marine Ins. Co. v. Hanover Ins. Co., No. 5:99-CV-164-BR-3, 2000 WL 34594777 (E.D.N.C. Sept. 19, 2000) ("[A]s a legal matter, the court agrees . . . that [the insured] was not required to tender the defense to [the insurance company] directly under the terms of the . . . policy . . . . [T]here is no requirement in the . . . policy, or in any reported North Carolina case, that an insurer's defense obligation is contingent upon an insured's explicit request, made directly to the insurer, that the insurer provide a defense."). Accordingly, the court finds that Medical Mutual had a duty to defend Smith. b. Fireman's Fund Despite Medical Mutual's arguments to the contrary, the court also does not find that the North Carolina Supreme Court's decision in Fireman's Fund precludes American Casualty from seeking contribution for Medical Mutual's share of defense costs. The facts underlying Fireman's Fund are as follows: an injured party brought suit against the named insured in an automobile liability policy and against the driver of the truck owned by the named insured. 269 N.C. at 359, 152 S.E.2d at 515. The insurer of the owner refused to defend on behalf of the driver, and the driver then called on his liability insurers, whose policies covered only liability in excess of other insurance, to defend the action. Id. The driver's insurers hired attorneys to defend him, but then subsequently withdrew their defense of the driver based upon evidence developed in the case which excluded coverage under their policies. Id. at 360, 152 S.E.2d at 516. The owner's insurer then settled the claim and secured a release of the claims against owner and the driver. Id. The driver's insurers then instituted an 464 action against the owner's insurer to recover the attorney's fees they paid while defending the driver, under the theory of subrogation. Id. The Fireman's Fund court upheld the trial court's order denying recovery to the plaintiff excess insurers. In so doing, the court explained that the driver never had an obligation to pay the attorney's fees for the counsel hired by the plaintiffs, and consequently, the driver never had a right to recovery against anyone for the fees paid to counsel. As a result, the subrogation clauses in the plaintiffs' policies had no application to the case. Id. at 361, 152 S.E.2d at 516. The court also concluded that the plaintiffs had no subrogation rights as an "operation of law." The court reasoned that injured party in the underlying suit claimed in excess of the limit of the owner's policy so that plaintiffs had their own interests to protect, and each insurer had a distinct and separate obligation to provide a defense for the driver. The court also noted that the defendant, the owner's insurer, was the one that actually brought the underlying suit to a conclusion and secured the release of the driver"without any loss or liability" to the driver. Under those circumstances, the Fireman's Fund court said the driver himself had no right of recovery against the owner's insurance, and therefore, plaintiffs had no right of recovery under subrogation. Id. at 361-62, 152 S.E.2d at 516-17. The Fireman's Fund court went on to say that the plaintiffs also were "not entitled to recover upon any theory of benefits derived by the defendant from such services," because the record was devoid of any evidence that the defendant actually "received the benefit of any legal research or of any investigation made by the attorneys, or that the defendant's settlement and disposition of the [underlying] suit was facilitated in any way by the services of the attorneys so employed by the plaintiffs." Id. at 362-363, 152 S.E.2d at 517. Indeed, the record only showed that the attorneys hired by plaintiff "appeared" on behalf of the driver, took a deposition of the injured party, and then withdrew from representation of the case. Id. Thus, Fireman's Fund stands for the proposition that "[a]n insurer who has a duty to defend its insured may not recover its defense costs, under a theory of equitable subrogation, from another insurer who also has a duty to defend the insured." Nationwide Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 122 N.C.App. 449, 453, 470 S.E.2d 556, 559 (1996). It does not stand for the proposition that an insurer, who had a duty to defend its insured, may not recover a portion of its defense costs, pursuant to another equitable theory, from another insurer who also had a duty to defend the insured. Id. at 454, 470 S.E.2d at 559 (explaining that the insurer, who had a duty to defend, could not recover any portion of its defense costs or settlement payments under a subrogation theory, but could "proceed by way of contribution" to recover the "defendant's share of defense costs incurred and settlement payments made to settle the tort suit"). Indeed, the North Carolina Court of Appeals has recognized that where two insurers both have a duty to defend, "equity dictates that the defense costs be shared among the two insurers." Ames, 340 S.E.2d at 486. See also St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 919 F.2d 235, 241 (4th Cir.1990) (relying on Ames and ruling that once an insurer is shown to have breached its duty to defend, the remedy of the breach is that it should share equally in the costs of defending the insured). As discussed above, Medical Mutual had a duty to defend Smith in the *465 Rountree Action. It chose not to do so. Medical Mutual cannot argue that, like the defendant in Fireman's Fund, it did not receive any benefit from the representation of Smith funded by American Casualty. Consequently, Medical Mutual must share equally in the defense costs. C. Affidavit of Dana Beal In support of its Motion for Summary Judgment, American Casualty filed the affidavit of Dana Beal [DE-25], purportedly under seal. Under the Local Rules, however, a party seeking to file material under seal must first file a motion seeking leave to do so. Local Civil Rule 79.2. Moreover, for any such motion to be allowed, a party must make a showing in compliance with Stone v. University of Maryland, 855 F.2d 178 (4th Cir.1988) and In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984). Accordingly, American Casualty is DIRECTED to file a motion for leave to file the affidavit of Dana Beal under seal within fourteen (14) days of the filing date of this order. The affidavit [DE-25] shall remain under seal pending the court's ruling on any motion to seal filed by American Casualty. Should American Casualty choose not to file a motion to seal within ten (10) days of the filing date of this order, the affidavit will be unsealed. IV. CONCLUSION For the foregoing reasons, the parties' cross-Motions for Summary Judgment [DE-21; DE-23] are both ALLOWED in part and DENIED in part. It is hereby ORDERED, ADJUDGED and DECREED that (1) Exclusion (g) in the Medical Mutual policy does not apply; (2) the excess "other insurance" clauses in the Medical Mutual and American Casualty policies are mutually repugnant, and (3) Medical Mutual Policy number PG112673 and American Casualty Policy policy number XXXXXXXXXX provide Mechelle Smith with co-primary insurance. It is further ORDERED that Medical Mutual to pay American Casualty one-half (1/2) the cost of Mechelle Smith's defense and indemnification in the Rountree Action, plus prejudgment interest at the applicable legal rate from the date of American Casualty's payment of those amounts through the date of this order. The parties are DIRECTED to confer and file a proposed final judgment within fourteen (14) days of the filing date of this order. Should the parties deem it necessary, they may file a motion for leave to submit the proposed final judgment under seal. Furthermore, American Casualty is DIRECTED to file, within fourteen (14) days of this order, a motion to seal the affidavit of Dana Beal [DE-25]. If American Casualty fails to file a motion within fourteen (14) days, the affidavit will be unsealed. SO ORDERED. NOTES [1] Both parties agree that North Carolina law governs this dispute. [2] Medical Mutual also appears to contend that as a general matter, North Carolina courts give effect to exclusions in claims-made policies where occurrence-based coverage applies. Medical Mutual is correct that in two separate cases, Ames v. Continental Casualty Company, 79 N.C.App. 530, 340 S.E.2d 479 (1986), and Gaston County Dyeing Machine Company v. Northfield Insurance Company, 351 N.C. 293, 524 S.E.2d 558 (2000), North Carolina courts ruled that occurrence-based policies, as opposed to other claims-based policies, provided primary coverage to the insured. The courts' rulings in Ames and Gaston County, however, were not based simply on the fact that there were competing "claims-based" and "occurrence-based" policies, with the "occurrence-based" policies being deemed the primary coverage by default. Rather, the courts in both cases adhered to the rules of construction the North Carolina Supreme Court set forth in Shelby Mutual Insurance. See 269 N.C. at 346, 152 S.E.2d at 440 (explaining that a court must first examine a policy "to determine what event will set in operation or shut off the company's liability and, second, [examine] the other contract, or policy, to determine whether it constitutes such an event"). Moreover, both Ames and Gaston County are distinguishable from the circumstances in this case. The opinion in Ames contains no indication that the "occurrence-based" policy had any "other insurance" clause that was applicable. See 79 N.C.App. at 533-35, 340 S.E.2d at 482-83. In Gaston County, the North Carolina Supreme Court examined the "occurrence-based" policy and determined that the specific language in policy's "other insurance" clause was not triggered by the other "claims-made" policy. 351 N.C. at 306, 524 S.E.2d at 566-67. All the parties concede that the actual language in the policies at issue in Gaston County differ significantly from the polices in this case. In any event, there is no indication in either decision that North Carolina adheres to an overarching rule which dictates that occurrence-based policies always will be deemed to provide primary coverage. [3] The North Carolina Court of Appeals decision in Horace Mann also undercuts Medical Mutual's reliance on two cases from outside North Carolina in which courts gave effect to exclusions in claims-based policies for prior insurance even in the face of an "other insurance" clause in an occurrence-based policy. See Evanston Ins. Co. v. Affiliated FM Ins. Co., 556 F. Supp. 135 (D.Conn. 1983); Chamberlin v. Milo Whitney Smith, 72 Cal. App. 3d 835, 140 Cal. Rptr. 493 (1977). Both those decisions turned on the placement of the respective "other insurance" clauses in the claims-based policies. Specifically, because the "other insurance" clauses were located in either the "Insuring Agreements" or "Exclusions" section of the relevant policies, rather than the "Conditions" section, they trumped the "other insurance" clauses in the occurrence-based policies. See Evanston, 556 F.Supp. at 138-39; Chamberlin, 72 Cal. App.3d at 850, 140 Cal. Rptr. at 501-02. Because Exclusion (g) is found within the Exclusions section its claims-based policy, Medical Mutual argues that the same result is dictated in this case. As the North Carolina Court of Appeals' decision in Horace Mann indicates, however, North Carolina courts do not appear to rest upon the placement of an "other insurance" clause in a particular section of an insurance policy, but rather upon the specific language of the "other insurance" clauses in the respective policies. See, e.g., Horace Mann, 54 N.C.App. at 555-56, 284 S.E.2d at 213-14 (concluding that an "other insurance" clause, located within the exclusions section of a policy and providing that the "insurer shall not be liable [for] . . . any claim . . . which is insured by another valid policy or policies" was not triggered by another policy containing an "excess" clause). See also Shelby Mutual Insurance, 269 N.C. at 348-53, 152 S.E.2d at 442-444 (examining the "other insurance" language in an "exclusionary clause" in a policy's definition of an insured and concluding that a second policy was an event that set the exclusionary clause into operation; the court did not base its opinion on the placement of the "other insurance" clause in an "exclusionary clause"). Cf. Home Ins. Co. v. St. Paul Fire & Marine Ins. Co., 229 F.3d 56, 62-63 (1st Cir.2000) (rejecting, under Maine law, reasoning that one policy's "other insurance" clause in "coverage" section trumps another policy's "other insurance" clause located in another section because the reasoning depended on "semantic microscopy" and would encourage "draftsmanship battles and wasteful litigation"). [4] Were this court writing on a clean slate, it would be inclined to be of the opinion that the phrase "any other insurance" means just thatany other insurance, whether the insurance be excess or primary. This court, however, is not writing on a clean slate, and is instead bound to follow the law of North Carolina as stated by the North Carolina Supreme Court and, when appropriate, as predicted by the North Carolina Court of Appeals.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540249/	712 F. Supp. 2d 1271 (2010) Deborah HUNLEY, Plaintiff, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant. Case No. 8:08-cv-2008-T-17AEP. United States District Court, M.D. Florida, Tampa Division. April 26, 2010. 1273 John V. Tucker, Tucker & Ludin, PA, Clearwater, FL, for Plaintiff. Keersten Heskin Martinez, Fisher, Rushmer, Werrenrath, Dickson, Tally & Dunlap, PA, Orlando, FL, for Defendant. 1274 ORDER ON DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT ELIZABETH A. KOVACHEVICH, District Judge. This cause comes before the Court on Defendant's Motion for Final Summary Judgment and Plaintiff's Response thereto (Doc. 21 and 27). For the reasons set forth below, Defendant's Motion for Final Summary Judgment is GRANTED. PROCEDURAL HISTORY This action is a claim for relief under the Employee Retirement Income Security Act (hereinafter "ERISA"), 29 U.S.C. § 1001 et. seq. This dispute arises from an employee benefit plan (hereinafter "the Plan") sponsored by Sara Lee Corporation (hereinafter "Sara Lee"). On October 7, 2008, Plaintiff, Deborah Hunley (hereinafter "Hunley"), filed a Complaint against the Defendant, Hartford Life and Accident Insurance Company (hereinafter "Hartford"), alleging failure and refusal to pay Long-Term Disability (hereinafter "LTD") benefits under her employee benefit plan. (Dkt. 1). In the Complaint, Hunley contends that she qualifies for LTD benefits, and that Hartford has failed to pay these benefits since May 11, 2007. (Dkt. 1). The Complaint also argues that CNAGLA Group Life Assurance Company (hereinafter "CNAGLA") is the previous owner of the Plan, and following Hartford's purchase of CNAGLA, there was no amendment to the Plan granting Hartford discretionary authority to administer claims under the Plan. (Dkt. 1). Hunley's Complaint requested this court grant LTD benefits from May 11, 2007 through the filing of this lawsuit. (Dkt. 1). In response to the Complaint, Hartford filed its Answer and Affirmative Defenses on December 1, 2008. (Dkt. 8). Hartford asserts it had discretionary authority to administer the Plan. (Dkt. 8). Hartford also admits that Hunley was approved for benefits and was paid benefits until May 11, 2007. (Dkt. 8). However, Hartford contends Hunley is not entitled to LTD benefits under the plan because she is not "Disabled" as defined in the plan. (Dkt. 8). Hartford argues that Hunley is able to perform the essential duties of "any occupation" as defined in the Plan, and therefore, she is not entitled to LTD under the Plan. (Dkt. 8). Hartford then petitioned the Court to Amend its Answer and Affirmative Defenses and for Leave to Assert Counterclaim. (Dkt. 14). The Court granted this motion. (Dkt. 15). In its Amended Answer and Affirmative Defenses, Hartford again renewed its claim that it had discretionary authority to administer the Plan. (Dkt. 16). It also renewed its assertion that Hunley is not disabled as defined in the plan, and she is not entitled to LTD since she is able to perform essential duties of "any occupation" for which she was qualified. (Dkt. 16). Furthermore, Hartford filed a Counterclaim alleging recovery for overpayment of benefits. (Dkt. 16). Hartford argued that Hunley received Social Security benefits while also receiving benefits under her Hartford plan. (Dkt. 16). However, Hunley never responded to Hartford's counterclaim, and this Court entered a default judgment against Hunley on March 25, 2010. (Dkt. 34). On November 10, 2009, Hartford filed its Motion for Final Summary Judgment. (Dkt. 21). In the motion, Hartford argues that there are no genuine issues of material fact in the Administrative Record, and it is entitled to Summary Judgment as a matter of law because Hunley is not disabled under the Plan since she can perform "any occupation." (Dkt. 21). In addition, Hartford asserts its determination under the Plan is subject to a deferential 1275 arbitrary and capricious standard of review because it had discretionary authority to administer the Plan. (Dkt. 21) Although Hunley's plan was originally with CNAGLA, Hartford contends that it purchased 100% of CNAGLA stock and the purchase included all rights and obligations of CNAGLA policies, including the Hunley policy. (Dkt. 21, Exhibit B). Thus, Hartford argues it acquired discretionary authority to administer the Plan. (Dkt. 21, Exhibit B). Alternatively, Hartford argues that even if this Court were to hold it did not have discretionary authority to administer the Plan, it acted as a "plan fiduciary" and, therefore, the discretionary authority to determine Hunley's benefits under the Plan flowed from its fiduciary capacity. (Dkt. 21). In applying the arbitrary and capricious standard of review, Hartford asserts that there was a reasonable basis for its determination to deny Hunley LTD benefits under the "Occupational Qualifier" definition of the Plan. Hartford asserts that the evidence in the Administrative Record shows Hunley was capable of performing "any occupation" as defined by the Plan because she qualified for several jobs that accommodated her medical restrictions. (Dkt. 21). Hartford also argues that its decision to deny Hunley benefits was not tainted by self-interest since it promptly approved Hunley for benefits under the "Occupational Qualifier" definition of the Plan; it continued to pay benefits until its review was complete; and it granted Hunley's counsel numerous extensions to submit evidence in support of her appeal. (Dkt. 21) Hartford also renewed its motion for judgment on the overpayment of benefits; however, as stated supra, a default judgment was entered on this issue, and therefore, it will not be addressed any further. (Dkt. 34). In sum, Hartford's Motion for Final Summary Judgement requests this court apply the arbitrary and capricious standard of review and affirm Hartford's decision to deny Hunley LTD benefits. (Dkt. 21). Hunley filed a response to Hartford's Motion for Final Summary Judgment on December 15, 2009. (Dkt. 27). In her Memorandum in Opposition to Defendant's Motion for Final Summary Judgment, Hunley argues that Hartford is not entitled to Final Summary Judgment because Hartford's rejection of her LTD benefits was "wrong" and unreasonable in light of the fact that her medical condition prevents her from performing "any type of work." (Dkt. 27). Additionally, Hunley contends that Hartford did not have discretionary authority to administer the plan, and therefore, a de novo standard of review applies. (Dkt. 27). Hunley argues that Hartford's purchase of CNAGLA only proves that they were a successor-in-interest of the Plan not that it has express discretionary authority to administer the Plan. (Dkt. 27). Hunley asserts that under a de novo standard Hartford's decision to deny Hunley LTD benefits was "wrong." (Dkt. 27). Hunley argues that the Administrative Record is replete with evidence showing her medical condition impairs her presently and on a permanent basis. (Dkt. 27). Alternatively, Hunley argues that even if this Court finds Hartford had discretionary authority to determine LTD benefits under the Plan, its decision to deny Hunley LTD benefits was arbitrary and capricious because no reasonable basis existed for denying the decision. (Dkt. 27). Hunley asserts there are several doctors' reports in the Administrative Record showing that her medical condition prevents her from performing "any occupation." (Dkt. 27). Furthermore, Hunley contends this Court should consider Hartford's conflict of interest as a factor in making its decision. (Dkt. 27). Hunley argues that Hartford's position as a professional insurance company offers it incentive to deny claims and, therefore, presents 1276 a conflict of interest. (Dkt. 27). In sum, Hunley requests this Court reverse Hartford's decision to deny LTD benefits under an ERISA de novo standard of review because Hartford's decision was "wrong" since the Administrative Record indicates Hunley is disabled. (Dkt. 27). STATEMENT OF FACTS Hunley began working for Sara Lee as a Sales Associate. (Dkt. 21, Exhibit 1, AR-0001-0004). Hunley began in this capacity on June 1, 1990. (Dkt. 21, Exhibit 1, AR-0001). As part of her employment with Sara Lee, Hunley was eligible and participated in a LTD PlanGroup Policy No. SR-83141256. (Dkt. 21). The Plan was originally administered by CNAGLA. (Dkt. 21, Exhibit 2). However, Hartford purchased 100% of the issued and outstanding stock of CNAGLA on November 30, 2003. (Dkt. 21, Exhibit B). According to the terms and conditions of the Stock Purchase Agreement and other related transaction documents, Hartford acquired rights and obligations of policies underwritten by CNAGLA, including Hunley's policy. (Dkt. 21, Exhibit B). The specific language of the Plan states in part: The plan administrator and other plan fiduciaries have discretionary authority to determine Your eligibility for and entitlement to benefits under the policy. The plan administrator has delegated sole discretionary authority to CNA Group Life Assurance Company to determine Your eligibility for benefits and to interpret the terms and provisions of the plan and any policy issued in connection with it. (Dkt. 21, Exhibit 2, P-029). On October 25, 2004, Hunley ceased employment with Sara Lee due to limitations caused by lumbar degenerative disc disease and osteoarthiritis of the hands. (Dkt. 21, Exhibit 1, AR-0001). Hunley began suffering from pain in her lower back around October 19, 2004, due to an unknown cause. (Dkt. 21, Exhibit 1, AR-0349). The osteoarthiritis in her hands was a secondary diagnosis. (Dkt. 21, Exhibit 1, AR-0011). Hunley's position as a Service Associate required frequent standing, walking, bending, reaching, pushing, pulling and driving. (Dkt. 21, Exhibit 1, AR-0013-0014). Hunley's back and hand condition caused her to file an initial claim for LTD benefits in January of 2005. (Dkt. 21, Exhibit 1, AR-0001-0004). Hunley's doctor, Dr. Raphael Orenstein, submitted a Medical Assessment Tool as part of Hunley's claim. (Dkt. 21, Exhibit 1, AR-0004). Dr. Orenstein stated that Hunley's working restrictions began on October 28, 2004. Id. As a result of Dr. Orenstein's restrictions, Hunley could not perform her "Regular Occupation,"[1] as defined by the Plan. (Dkt. 21, Exhibit 1, AR-0012). After satisfying the "Elimination Period" under the Plan, Hartford approved Hunley for benefits effective April 28, 2005. (Dkt. 21, Exhibit 1, AR-0022-0023). Prior to Hunley's approval, Hunley underwent surgery to help improve her back condition. (Dkt. 21, Exhibit 1, AR-0486). On February 21, 2005, Hunley had a posterolateral lumbar fusion. Id. Following the surgery, Hunley reported feeling "very little back pain," but she complained of feeling leg pain, and a warm "burning" sensation in her left foot. (Dkt. 21, Exhibit 1, AR-0359). In September 2005, Dr. Orenstein stated that Hunley was recovering from her lumbar fusion and could not perform full-time work that involved frequent standing, 1277 walking, bending, reaching, pushing and pulling, and moderate driving. (Dkt. 21, Exhibit 1, AR-0006). Over the next year, Hunley's back condition continued to improve. (Dkt. 21, Exhibit 1, AR-0348-0499). On April 12, 2006, Hunley had surgery on her left thumb. (Dkt. 21, Exhibit 1, AR-0491). On April 25, 2006, Dr. Barrie noted that the paresthesias in Hunley's fingers had resolved, and she was able to control the pain with Oxycodone. (Dkt. 21, Exhibit 1, AR-0411). On May 23, 2006, Dr. Barrie noted that the numbness and tingling in Hunley's fingers had completely resolved. (Dkt. 21, Exhibit 1, AR-0415). On August 25, 2006, Dr. Orenstein noted that Dr. Barrie had performed surgery on Hunley's hand, and his impression was that it was going well. (Dkt. 21, Exhibit 1, AR-0500). In August 25, 2006, Hunley again visited Dr. Orenstein and complained of back pain. (Dkt. 21, Exhibit 1, AR-0500). However, on her visit of September 29, 2006, she indicated that her back pain was less, and she had done a lot of walking when she was on a trip in Las Vegas. (Dkt. 21, Exhibit 1, AR-0503). In November 2006, Hartford notified Hunley that it was investigating whether she would qualify for LTD benefits under the "Occupational Qualifier" definition. (Dkt. 21, Exhibit 1, AR-0040-0041). Hunley's eligibility for benefits under the "Regular Occupation" definition of "disability" was set to expire on April 28, 2007. (Dkt. 21, Exhibit 1, AR-0041, 0047, Exhibit 2, P-14). The Plan defines Long Term "disability" as: Disability or Disabled means that You satisfy the Occupation Qualifier or the Earnings Qualifier[2] as defined below: Occupation Qualifier: Disability means that during the Elimination Period and the following 24 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: 1) continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and 2) not Gainfully Employed. After LTD Monthly Benefits has been payable for 24 months, Disability means that Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: 1) continuously unable to perform any occupation for which You are or become qualified by education, training or experience; and 2) not Gainfully Employed. (Dkt. 21, Exhibit 2, P014) (emphasis in original) After April 28, 2007, Hartford continued to pay benefits to Hunley while it evaluated her eligibility for LTD benefits under the "Occupational Qualifier" definition. (Dkt. 21, Exhibit 1, AR-0046-0049). On May 11, 2007, Hartford informed Hunley that as of April 28, 2007, she was no longer eligible for benefits under the Plan because she did not meet the "Occupational Qualifier" definition of "disabled." Id. Hartford stated its decision was based on: (a) medical records and statements from Dr. Orenstein (Orthopedist); (b) an MRI performed by Dr. Robert J. Wilson (Orthopedic Surgeon); (c) Operative Reports from Drs. Dimming (Orthopedic Surgeon) and Wilson; (d) physical therapy reports from Dr. Thomas Dimming; and (e) Hunley's work and educational history provided by Hunley and Sara Lee. Id. Specifically, Hartford referenced Dr. Orenstein's 1278 April 11, 2007, letter indicating that Hunley's permanent restrictions included: a) sitting for thirty (30) minutes with frequency of breaks every 15-20 minutes; (b) walking for thirty (30) minutes; (c) standing for thirty (30) minutes; (d) lifting and carrying up to ten (10) pounds occasionally; (e) engaging in fingering/handling occasionally; and (f) occasionally reaching at her waist. (Dkt. 21, Exhibit 1, AR-0046-0049). Hartford submitted Dr. Orenstein's restrictions to a Vocational Specialist who performed an Employability Assessment. (Dkt. 21, Exhibit 1, AR-0059-064). The Employability Assessment found that Hunley's capabilities, limitations and vocational background qualified her for positions as: Customer-Complaint Clerk Median Hourly Wage$13.10 Reader Median Hourly Wage$10.81 Information Clerk Median Hourly Wage$10.19 (Dkt. 21, Exhibit 1, AR-0050-0064). Hartford also informed Hunley of her right to an administrative appeal. (Dkt. 21, Exhibit 1, AR-0049). On June 7, 2007, Hunley's attorney advised Hartford that Dr. Orenstein would be modifying his April 11, 2007, report. (Dkt. 21, Exhibit 1, AR-0070). However, the Administrative Record contains no report modifying Dr. Orenstein's April 11, 2007, findings. (Dkt. 21, Exhibit 1, AR-0505) (AR-0505 is the last page of the AR record, and there are no modified reports found in the AR or after AR-0505). On January 7, 2008, Hunley filed her appeal. (Dkt. 21, Exhibit 1, AR-0082-0085). As support for her appeal, Hunley filed additional medical records from Dr. Sara Ringle, Dr. Dimming, Dr. Orenstein, and an EKG. (Dkt. 21, Exhibit 1, AR-0086-0145). In addition to medical records, Hunley made three primary arguments on appeal: 1) She claimed Dr. Orenstein was not called to ascertain whether his restrictions would permit full-time work over a full-time work week, or to determine what effects Hunley's medication would have on her ability to work; 2) She claimed there was no consideration to the vocational impact of her medications; and 3) She used the "Earnings Qualifier" definition to argue that that the jobs cited in the Employability Assessment were insufficient because they did not pay 80% of her monthly earnings. (Dkt. 21, Exhibit 1, AR-0082-0085). On appeal, Hartford submitted Hunley's medical records to Dr. Kenneth J. Kopacz, an Independent Medical Consultant who is Board Certified in Orthopedic Surgery, for a comprehensive case review. (Dkt. 1, Exhibit 1, AR-0150, AR-0345-0347). Hartford requested that Dr. Kopacz contact Hunley's treating physicians to discuss her medical condition. (Dkt. 21, Exhibit 1, AR-0148-0149, AR-0347). Dr. Kopacz made several attempts to contact Hunley's treating physicians, but they never returned his phone calls. (Dkt. 21, Exhibit 1, AR-0345). Dr. Kopacz concluded that as of May 11, 2007[3] Hunley presented with functional impairments that included pain with activity and some limitation in her lower extremity strength, restrictions from pushing, pulling or lifting more than ten (10) pounds, and restrictions from bending and twisting. (Dkt. 21, Exhibit 1, AR-0346). In addition, Dr. Kopacz concluded that Hunley would need to get out of her sitting position for breaks to stretch and change positions. Id. Based on his review of Hunley's medical records, Dr. Kopacz found that Hunley should be able to perform a "sedentary position" for eight (8) hours a day, forty (40) hours a week with breaks to stretch and get out of 1279 her sitting position, as needed. (Dkt. 21, Exhibit 1, AR-0347). On March 13, 2008, Hartford denied Hunley's appeal based on the additional medical information submitted by Hunley, the report from Dr. Kopacz, and the Vocational Employability Assessment. (Dkt. 21, Exhibit 1, AR-0152-0154). Hartford also concluded that the "Earnings Qualifier" would not apply because Hunley was not "Gainfully Employed" at the time her disability determination was made. (Dkt. 21, Exhibit 1, AR-0340-0342). ERISA STANDARD OF REVIEW This Court and other courts in this district have recognized that the typical standard of review for summary judgment motions does not apply in ERISA actions. Phillips v. Metro. Life Ins. Co., 2008 WL 899222 at 2, 2008 U.S. Dist. LEXIS 31167 at 5 (M.D.Fla. March 31, 2008); Providence v. Hartford Life Ins. Co., 357 F. Supp. 2d 1341, 1342 n. 1 (M.D.Fla.2005); (citing Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999). This is because the district court sits in more of an appellate capacity when reviewing ERISA claims. Providence, 357 F. Supp. 2d 1341, 1342 n. 1. The court's task in reviewing ERISA claims is limited to the administrative record that was available to the decision-maker. Id. Since no additional evidence is reviewed, the usual summary judgment standard, whether no genuine issue of material fact exists, does not apply. Id. Therefore, the Motion for Summary Judgment in an ERISA action acts as more of a final judgment. Id. ERISA does not explicitly establish a standard of review applicable to a plan administrator's determination. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). Instead, the Supreme Court in Firestone established a spectrum of standards ranging from de novo review when a plan administrator does not have discretionary authority to administer the plan, to arbitrary and capricious when a plan administrator does have discretionary authority. Id. at 114-15; Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 705 (11th Cir. 1995). Following Firestone, the Eleventh Circuit crafted an additional heightened arbitrary and capricious standard for plan administrators who suffered from a conflict of interest. Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1566. Thus, the Eleventh Circuit had adopted three different standards of review for ERISA claims: (1) de novo, applicable where a plan administrator had no discretion in deciding claims; (2) arbitrary and capricious, applicable where the plan administrator had discretion in deciding claims and did not suffer from a conflict of interest; and (3) heightened arbitrary and capricious, applicable where the plan administrator had discretion but suffered from a conflict of interest. HCA Health Servs. of Ga., Inc. v. E'ers Health Ins. Co., 240 F.3d 982, 993-94 (11th Cir.2001); Gilley v. Monsanto Co., Inc., 490 F.3d 848, 856 (11th Cir.2007). In HCA, the Eleventh Circuit modified the analysis under these three standards of review by using multiple steps to review plan administrator's claims. 240 F.3d at 993-94. The courts first review the Plan documents to determine whether the claims administrator has discretionary authority to administer the Plan. HCA, 240 F.3d at 993. If the court finds that the documents grant the claims administrator discretionary authority, the court applies the arbitrary and capricious standard of review. Id. This is because trust law applies a deferential standard when an administrator has discretionary authority to administer the Plan. Firestone, 489 U.S. at 111, 109 S. Ct. 948. If the Plan administrator is not given discretionary 1280 authority, then the Court follows a six step analysis. HCA, 240 F.3d at 993-94. For simplicity, the Eleventh Circuit condensed the HCA six step analysis: (1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is "wrong" (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator's decision in fact is "de novo wrong," then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator's decision is "de novo wrong" and he was vested with discretion in reviewing claims, then determine whether "reasonable" grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict of interest, then apply heightened arbitrary and capricious review to the decision to affirm or deny it. Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132, 1137-38 (11th Cir.2004). Although there are some Eleventh Circuit cases which seem to indicate the six step analysis applies to all Plans, whether they have discretionary authority or not[4], this analysis conflicts with Firestone's mandate that a denial of benefits is "reviewed under a de novo standard unless the benefit gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone, 489 U.S. at 115, 109 S. Ct. 948. After HCA and Williams, the Supreme Court decided Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008). In Glenn, the Supreme Court clarified its position regarding an administrator or fiduciary operating under a conflict of interest. Id. at 2350. The Court found that a conflict "should be weighed as a `factor in determining whether there is an abuse of discretion.'" Id. at 2350 (quoting Firestone, 489 U.S. at 115, 109 S. Ct. 948). The Court went on to state that Firestone's statement does not imply a change in the standard of review. Id. at 2350. Trust law still applies a deferential standard of review to the discretionary decision making of conflicted trustees, but the reviewing judge should take the conflict into account when determining substantive or procedural abuses of discretion. Id. at 2348. In determining the weight of the conflict of interest, the Glenn Court suggested that a conflict of interest is less important when an administrator takes active steps to reduce potential bias and to promote accuracy. Id. at 2351. Following Glenn, the Eleventh Circuit has continued to uphold the six-step methodology for reviewing ERISA claims. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1196 (11th Cir.2010) (citing White v. Coca-Cola Co., 542 F.3d 848, 854 (11th Cir.2008) which stated that although Glenn affects the sixth step of Williams, Glenn does not alter our six step analysis). However, the Glenn Court states that trust law still applies a deferential standard when an administrator has discretionary authority 1281 to administer the Plan. Glenn, 128 S.Ct. at 2350. DISCUSSION I. Hartford Had Discretionary Authority to Administer Hunley's Plan The first question before this court is whether Hartford had discretionary authority to administer Hunley's claim. The court first reviews the Plan documents to determine whether the claim's administrator has discretionary authority to administer the Plan. HCA, 240 F.3d at 993. Hartford's acquisition of CNAGLA gave it discretionary authority to administer the plan. (Dkt. 21, Exhibit B). In the ERISA context, a successor corporation that administers a Plan, "steps into the shoes" of its predecessor, and acquires the powers conferred by the Plan including the discretionary authority to administer the Plan. Preite v. Charles of the Ritz Group, Ltd., 471 F. Supp. 2d 1271, 1282 (M.D.Fla.2006). Proof of who is the Plan administrator may come from the Plan document, but may also come from the facts surrounding the Plan, even if the factual circumstances contradict the designation in the Plan. Rosen v. TRW, Inc., 979 F.2d 191, 193 (11th Cir.1992). Hunley argues that the Plan must expressly grant the administrator discretionary authority. Sullivan v. Continental Casualty Co., 2006 WL 2054085 (M.D.Fla. July 21, 2006). Furthermore, Hunley argues that a successor in interest must make an evidentiary showing sufficient to prove it has discretion to administer the plan and pay the claim. Id. at 12. However, Hunley's reliance on Sullivan is misplaced. The facts in the Sullivan case were markedly different from the ones before this Court. In Sullivan, the court found that there was an ambiguous relationship between Continental Insurance Company and Hartford. Id. at 12. The court found that: 1) an undated notice sent to the Plaintiff informing him that Hartford was responsible for communicating with plaintiff and paying his claim, and 2) an unidentified note at the top of plaintiff's claim were insufficient to show that Hartford had "stepped into the shoes" of Continental. Id. The court also found there were no affidavits showing Hartford purchased assets and liabilities of Continental's policies. Id. As such, the court found that Hartford did not provide enough evidence to demonstrate it had discretionary authority to administer the Plan. Id. at 13. In this case, Hartford provided an affidavit from Leslie Stoler, In-House Counsel for Hartford. (Dkt. 21, Exhibit B). Ms. Stoler's affidavit states Hartford purchased 100% of the CNAGLA stock on November 30,2003. (Dkt. 21, Exhibit B). Although the language of the Plan originally granted discretionary authority to CNAGLA, Hartford purchased the Plan and all of the rights and obligations to administer the Plan when it purchased all of CNAGLA's stock. (Dkt. 21, Exhibit B). Hartford "stepped into the shoes" of CNAGLA when it purchased 100% of its stock. (Dkt. 21, Exhibit B). Because Hartford purchased all of the rights and obligations of the Plan in the Stock Agreement, it acquired discretionary authority to administer the Plan. II. Applicable ERISA Standard of ReviewArbitrary and Capricious The second question before this court is which ERISA standard of review to apply. Trust law applies a deferential standard when an administrator has discretionary authority to administer the Plan. Firestone, 489 U.S. at 111, 109 S. Ct. 948. This Court has determined that Hartford has discretionary authority to administer the Plan. See supra. Trust law applies a deferential standard when an 1282 administrator has discretionary authority to administer the Plan. Firestone, 489 U.S. at 111, 109 S. Ct. 948. Where a trustee has discretion with respect to the exercise of power, the exercise of this power is not subject to control by the court except to prevent an abuse of discretion.[5]Id. A trustee's interpretation will not be disturbed if reasonable. Id. Since Hartford has discretionary authority to administer Hunley's Plan, this Court must apply the deferential arbitrary and capricious standard of review. HCA, 240 F.3d at 993. III. Hartford's Decisions to Deny Hunley Benefits was Reasonable This Court must apply a deferential standard of review to Hartford's decision to deny Hunley LTD benefits, however, this Court must still determine if Hartford's decision was reasonable. Cagle v. Bruner, 112 F.3d 1510, 1518-19 (11th Cir.1997). When reviewing an administrator's decision under the arbitrary and capricious standard, the principles of trust law states that a trustee's interpretation should not be disturbed if it is reasonable. HCA, 240 F.3d at 994 (citing Firestone, 489 U.S. at 110-11, 109 S. Ct. 948). The court's review for reasonableness is limited to the facts that were before the administrator at the time the decision was made. Jett, 890 F.2d at 1139. The administrator's decision must be upheld under the arbitrary and capricious standard even if there is evidence that supports a contrary conclusion. White v. Coca-Cola Co., 542 F.3d 848, 856 (11th Cir.2008). If the court finds the administrator's interpretation is reasonable, then the court must uphold this interpretation even though the beneficiary's interpretation is also reasonable. HCA, 240 F.3d at 994. Hartford argues that its decision was reasonable because the evidence shows that Hunley's medical condition did provide some restrictions and limitations, but those limitations did not continuously preclude Hunley from performing "any occupation" under the Plan. (Dkt. 21). Hartford specifically points to Dr. Orenstein's letter from April 11, 2007 which shows that Hunley's restrictions include: a) sitting for thirty (30) minutes with frequency of breaks every 15-20 minutes; (b) walking for thirty (30) minutes; (c) standing for thirty (30) minutes; (d) lifting and carrying up to ten (10) pounds occasionally; (e) engaging in fingering/handling occasionally; and (f) occasionally reaching at her waist. (Dkt. 21, Exhibit 1, AR-0046-0049). Hartford also points to the inclusion of an Employability Assessment, which used the restrictions and limitations given by Hunley's own physicians. (Dkt. 21, Exhibit 1, AR-0179-0181). Hartford argues that the Employability Assessment indicated that Hunley could perform positions consistent with her medical restrictions. (Dkt. 21, Exhibit 1, AR-0050-0060). Furthermore, Hartford argues that it conducted a thorough appeal and even hired an independent Orthopedic doctor, Dr. Kopacz, to review Hunley's file. (Dkt. 21) Hartford asserts that Dr. Kopacz reviewed the totality of Hunley's medical record and determined that Hunley's restrictions were in line with Dr. Orenstein's April 11, 2007 restrictions. (Dkt. 21, Exhibit 1, AR-0345-0347). Hartford contends that its appeal review was reasonable and its original determination was correct. (Dkt. 21). Hunley argues that she is not capable of performing "any occupation," let alone the occupations set forth by Hartford's Employability 1283 Assessment. (Dkt. 27). Hunley also argues that Dr. Orenstein, Dr. Barrie, and Dr. Dimming's all submitted documents that either expressly or implicitly indicate Hunley is permanently and indefinitely disabled-AR-0015, AR-0093-0094, AR-0182. (Dkt. 27). In addition, Hunley argues that Hartford did not even address the fact that her hand functionality restricts her from keyboard or repetitive hand use. (Dkt. 27). Hunley's arguments do not persuade this Court. The three documents Hunley uses as evidence of her permanent disability do not indicate a permanent disability. (Dkt. 21, Exhibit 1, AR-0015, AR-0093-0094, AR-0182). 1) AR-0015 is the April 11, 2007 letter from Dr. Orenstein. Dr. Orenstein states that the restrictions in the letter are permanent. (Dkt. 21, Exhibit 1, AR-0015) (emphasis added). Hartford included these restrictions in its determination to deny Hunley LTD benefits. (Dkt. 21, Exhibit 1, AR-0046-0049). 2) AR-0093-0094 is a documented visit with Dr. Sara Ringle. The document indicates that Hunley "has not been able to work," but it does not indicate that the doctor finds Hunley permanently disabled. (Dkt. 21, Exhibit 1, AR-0093-0094). 3) AR-00182 references Dr. Orenstein's permanent restrictions. (emphasis added). In addition, Hartford's decision indicates that it took account of Hunley's hand condition when its review stated, "do no keyboarding or repetitive hand." (Dkt. 21, Exhibit 1, AR-0183). Furthermore, even if this Court found there was evidence to the contrary, it would still be obligated to uphold Hartford's decision under the arbitrary and capricious standard of review. White, 542 F.3d 848, 856 (11th Cir.2008). Hartford's determination to deny Hunley LTD benefits is reasonable. The evidence indicates that Hartford denied Hunley benefits because she was not continuously unable to perform "any occupation." (Dkt. 21, Exhibit 1, AR-0046-0049). Hartford stated that its decision was based on: (a) medical records and statements from Dr. Orenstein (Orthopedist); (b) an MRI performed by Dr. Robert J. Wilson (Orthopedic Surgeon); (c) Operative Reports from Drs. Dimming (Orthopedic Surgeon) and Wilson; (d) physical therapy reports from Dr. Thomas Dimming; and (e) Hunley's work and educational history provided by Hunley and Sara Lee. (Dkt. 21, Exhibit 1, AR-0046-0049). In addition, Hartford's denial took Dr. Orenstein's April 11, 2007, permanent restrictions into account. (Dkt. 21, Exhibit 1, AR-0015). Moreover, Hartford submitted Dr. Orenstein's restrictions to a Vocational Specialist who determined that Hunley's capabilities, limitations and vocational background qualified her for positions as: Customer-Complaint Clerk Median Hourly Wage-$13.10 Reader Median Hourly Wage-$10.81 Information Clerk Median Hourly Wage-$10.19 (Dkt. 21, Exhibit 1, AR-0050-0064). Hartford also submitted Hunley's appeal claim to an Orthopedic doctor for peer review. (Dkt. 21, Exhibit 1, AR-0150, AR-0345-0347). Dr. Kopacz performed a comprehensive review of Hunley's medical file. (Dkt. 21, Exhibit 1, AR-0345-0347). Hunley argues that a peer review is unreasonable when a peer physician ignores information about the beneficiary's ability to sit for only thirty (30) minutes at a time. Lee v. BellSouth Telecommunications, 318 Fed.Appx. 829, 839 (11th Cir.2009). However, the peer review in this case did not ignore information about Hunley's restrictions. (Dkt. 21, Exhibit 1, AR-0346). In fact, Dr. Kopacz specifically mentions Orenstein's letter in his comprehensive review. (Dkt. 21, Exhibit 1, AR-0347). Dr. Kopacz also mentions Dr. Dimming's restrictions in his review. (Dkt. 21, Exhibit 1, AR-0346). Furthermore, Dr. Kopacz states, "claimant would need to be able to 1284 get out of her sitting position as needed for breaks to stretch and change position." (Dkt. 21, Exhibit 1, AR-0346). This statement indicates that Dr. Kopacz recognized Dr. Orenstein's restrictions and included them in his review. Id. This Court must defer to Hartford's decision under the arbitrary and capricious standard of review. HCA, 240 F.3d at 994 (citing Firestone, 489 U.S. at 110-11, 109 S. Ct. 948). Hartford's decision to deny Hunley LTD benefits was based on the fact that Hunley was not continuously unable to perform "Occupational Qualifier." (Dkt. 21, Exhibit 1, AR-0046-0049). This decision was reasonable because it took into account Hunley's medical restrictions, an Employability Assessment, a peer review and countless other medical documents. (Dkt. 21, Exhibit 1, AR-0046-0049, 0152-0154). IV. Hartford Did Not Abuse Its Discretion In determining whether a decision is arbitrary and capricious, a court must weigh an administrator's conflict of interest "as a factor." Glenn, 128 S.Ct. at 2350 (quoting Firestone, 489 U.S. at 115, 109 S. Ct. 948). A conflict exists if the administrator of an ERISA plan is both evaluating claims and paying for benefits. Firestone, 489 U.S. at 105, 109 S. Ct. 948. Trust law still applies a deferential standard of review to the discretionary decision making of conflicted trustees, but the reviewing judge should take the conflict into account when determining substantive or procedural abuses of discretion. Id. at 2348. In determining the weight of the conflict of interest, the Glenn Court suggested that a conflict of interest is less important when an administrator takes active steps to reduce potential bias and to promote accuracy. Id. at 2351. Hunley argues that Hartford has a conflict of interest because it is a professional insurance company. (Dkt. 27). Moreover, Hunley asserts Hartford's conflict of interest led to procedural irregularities in the administrative process including emphasizing certain medical reports, relying on non-treating physicians opinions over the opinions of the treating physician, and failing to adequately investigate Hunley's claim. (Dkt. 27). Hartford was both the administrator of Hunley's plan and paying benefits under the Plan. (Dkt. 21, Exhibit 2, P-001-037). Those circumstances present a conflict of interest. See Firestone, 489 U.S. at 105, 109 S. Ct. 948. Therefore, this Court must evaluate Hartford's conflict as a factor in determining whether or not its decision was arbitrary and capricious. Glenn, 128 S.Ct. at 2350 (quoting Firestone, 489 U.S. at 115, 109 S. Ct. 948). Hartford took several steps to reduce potential bias and promote accuracy. Hartford immediately began paying Hunley benefits under the "Regular Occupation" portion of the Plan. (Dkt. 21, Exhibit 1, AR-0022-0023). Hartford continued to pay those benefits while it reviewed Hunley's file for LTD benefits. (Dkt. 21, Exhibit 1, AR-0047). Although Hunley argues that Hartford emphasized certain medical records and did not adequately investigate Hunley's claim, Hartford used the restrictions from Hunley's own physician when it conducted its Employability Assessment. (Dkt. 21, Exhibit 1, AR-0179-0181). Hartford also conducted a comprehensive peer review by an Orthopedic Surgeon, using records from all of Hunley's treating physicians. (Dkt. 21, Exhibit 1, AR-0345-0347). Furthermore, Hartford offered Hunley's counsel numerous extensions to submit evidence in support of Hunley's appeal. (Dkt. 21, Exhibit 1, AR-0078-0079, AR-0081). After weighing Hartford's conflict of interest, this Court finds Hartford did not 1285 abuse its discretion. Even though Hartford suffers from a structural conflict of interest, it took active steps to reduce potential bias during the procedural review of Hunley's file. It paid benefits during its review of Hunley's file, it considered restrictions submitted by Hunley's treating physician, and it conducted a comprehensive peer review. (Dkt. 21, Exhibit 1, AR-0047, 0179-0181, 0345-0347). Accordingly, it is ORDERED that Defendant's Motion for Final Summary Judgment is GRANTED. The Clerk of the Court is directed to enter judgment for the Defendant and against the Plaintiff on the Plaintiff's action. NOTES [1] Regular Occupation as defined by the Plan means the occupation that "You are performing for income or wages on Your Date of Disability. It is not limited to the specific position You held with Your Employer." (Dkt. 21, Exhibit 2, P-028). [2] Hunley was not evaluated under the "Earnings Qualifier" portion of the Disability definition in the Plan because she was not "Gainfully Employed" at the time of the evaluation. (Dkt. 21) [3] Hartford contends that Hunley was required to establish her disability as of April 28, 2007, but Dr. Kopacz assessed her as of May 11, 2007. [4] Williams, 373 F.3d at 1137; Ruple v. Hartford Life & Accident Ins. Co., 340 Fed.Appx. 604, 611 (11th Cir.2009). [5] The arbitrary and capricious standard is used interchangeably with abuse of discretion in the Eleventh Circuit. Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir.1989).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540262/	706 F. Supp. 2d 401 (2010) Florence TINNIN, Plaintiff, v. SECTION 8 PROGRAM OF the CITY OF WHITE PLAINS, White Plains Community Development Office/Urban Renewal Agency, Defendants. Case No. 08-CV-9537 (KMK). United States District Court, S.D. New York. January 6, 2010. Karen Beth Tenenbaum, Esq., Legal Services of the Hudson Valley, White Plains, NY, for Plaintiff. Arthur George Gutekunst, Esq., Doreen Rich, Esq., City of White Plains, White Plains, NY, for Defendants. OPINION AND ORDER KENNETH M. KARAS, District Judge: Plaintiff Florence Tinnin ("Plaintiff" or "Ms. Tinnin") brings this suit seeking reinstatement of her Section 8 rental subsidy benefits and reimbursement of her benefits since September 2008 from Defendants Section 8 Program of the City of White Plains ("Section 8") and the White Plains Community Development Office/Urban Renewal Agency ("CDO/URA") (collectively, 402 "Defendants"). Ms. Tinnin alleges that Defendants violated her due process rights by depriving her of Section 8 benefits. Defendants have moved for summary judgment, and Plaintiff has cross-moved for summary judgment. The following reasons, the Court grants Defendants' motion, and denies Plaintiffs motion. I. Background A. Factual Background Plaintiff is a single, disabled 67-year old woman, who has lived at 90 North Kensico Avenue in White Plains for twenty years. (Compl. ¶¶ 7, 9.) Beginning in 2003, Plaintiff participated in Defendants' Section 8 program, receiving $519 toward her $609 monthly rent. (Id. ¶¶ 8, 10.) Defendants operate and manage the federally subsidized residential tenant Section 8 program as a designated public housing agency ("PHA"). (Id. ¶ 11.)[1] On November 18, 2005, Ms. Tinnin was arrested in her Section 8 home with 18.8 grams of cocaine and money in the presence of her two-year-old granddaughter. (Id. ¶ 27; Defs.' Rule 56.1 Statement Ex. ("Defs.' Ex.") D at 4; Defs Ex. J at 1.) She was charged with criminal sale of a controlled substance, but subsequently plead guilty to a lesser charge of illegal possession of a controlled substance in the seventh degree. (Compl. ¶ 27; Defs.' Ex. D at 4.) As a member of the Section 8 program, Ms. Tinnin held a spot coveted by many needy and law-abiding White Plains residents. There are currently 232 individuals or families on the waiting list for the benefits that Ms. Tinnin enjoyed. (Defs.' Ex. C ¶ 30.) This list includes fifty-five people who are disabled, thirty-four who are elderly, and families living with a combined total of 1080 children. (Id. ¶¶ 21-29.) To make room for these deserving residents, PHA seeks to evict Section 8 participants who deal drugs. (Id. ¶ 31.) On June 23, 2008, Ms. Tinnin received a letter from Section 8 Administrator Louis DeFrancesco, informing her that Defendants proposed terminating her Section 8 benefits for violation of 24 C.F.R. § 982.551(l), based on her drug conviction. (Compl. ¶ 26.) Defendants have explained that the lapse of time between Ms. Tinnin's conviction and the proposed denial of Section 8 benefits was because the certificate of conviction did not issue until December 11, 2007, and Defendants waited for the certificate before proceeding against Ms. Tinnin. (Defs.' Ex. D. at 7.) Ms. Tinnin requested an informal grievance hearing, pursuant to 24 C.F.R. § 982.555(a), and Patricia Barnes, Esq. ("Hearing Officer Barnes") was appointed as the hearing officer to conduct the informal grievance hearing in accordance with 24 C.F.R. § 982.555(e)(4). (Compl. ¶¶ 29-31.) The hearing took place on July 23, 2008, with Plaintiff, Hearing Officer Barnes, Mr. DeFrancesco, and Dionne Lewin, a Section 8 Coordinator, in attendance. (Id. ¶ 31.) At the hearing, Ms. Tinnin admitted that she sold cocaine from her Section 8 Apartment, allowing her customers access to the apartment complex where she lived. (Defs.' Ex. J at 4.) Ms. Tinnin stated that she understood that her criminal activity was wrong and that it constituted a violation of the Section 8 Program. (Id.) Ms. Tinnin presented letters from family members, neighbors, and friends, attesting to her good character, regret for her illegal behavior, and to the fact that she was no longer engaging in any criminal activities. (Id.) 403 On August 5, 2008, Hearing Officer Barnes issued her Findings of Fact and Decision. She concluded that: There is no question that termination is justified under [24 C.F.R. § 982.551(l)]. The City was correct in indicating that none of the mitigating factors mentioned in § 981.551 are present in this case.... .... ... [W]hile the City of White Plains was correct in terminating Ms. Tinnin from the Section 8 Program under 24 C.F.R. § 982.551, she should be reinstated to the program based on the specifics of 24 C.F.R. § 982.553. (Defs.' Ex. J at 3-4.)[2] Hearing Officer Barnes further noted that "[w]ithout this Section 982.533 ... there would be no question about termination." (Id.) On August 14, 2008, Ms. Tinnin received a letter entitled "Notice of Determination" from Defendants, informing her that her Section 8 benefits would be terminated. (Compl. ¶ 36; Defs.' Ex. G.) Specifically, Defendants stated: The Hearing Officer found termination justified and further recommended reinstatement to the program upon certification that you are not "currently engaged in criminal activity." However, the Hearing Officer's recommendation for re-admission was premature, at best, as the purpose of the hearing was to determine if termination is warranted.... As to the current matter, I concur with the Hearing Officer's determination that termination is justified. (Compl., Ex. G.) Defendants justified their decision to ignore Hearing Officer Barnes' recommendation that they reinstate Plaintiff by pointing to 24 C.F.R. § 982.555(f). (Mem. of Law in Support of Defs.' Mot. For Summ. J. ("Defs.' Mem.") 5.) That provision states that a PHA "is not bound by a hearing decision" that "exceeds the authority of the person conducting the hearing under PHA hearing procedures," or is "[c]ontrary to HUD regulations, or requirements, or otherwise contrary to federal, State, or local law." 24 C.F.R. § 982.555(f). Defendants explained that Hearing Officer Barnes only had authority to determine whether or not termination was appropriate; she had no authority to recommend reinstatement. (Defs.' Mem. 5.) B. Procedural History Ms. Tinnin filed her Complaint on November 6, 2008, seeking declaratory and injunctive relief. On the same day, the Court denied Plaintiff's application for a temporary restraining order but signed an Order to Show Cause why a preliminary injunction, ordering Defendants to pay Plaintiff housing benefits until the resolution of this suit, should not issue. (Dkt. No. 4.) The Court scheduled a preliminary injunction hearing for November 19, 2008. On November 24, 2008, the Court denied Plaintiffs motion for a preliminary injunction because Plaintiff failed to show a likelihood of success on the merits. (Dkt. No. 17.) Specifically, the Court agreed with Defendants that Hearing Officer Barnes did not have the authority to recommend reinstatement. (Defs.' Ex. O at 18 ("[Barnes'] ruling not only decided that termination was appropriate, but that 404 plaintiff should in fact be readmitted to the Program. This is authority that she did not have.").) In so holding, the Court rejected Plaintiff's argument that "the Hearing Officer's ruling was that Plaintiff's termination by [D]efendants was wrongly done and [the Hearing Officer] merely expressed that ruling as a reinstatement of her Section 8 benefits." (Id. 16-17.) On April 13, 2009, Defendants moved for summary judgment. (Dkt. No. 25.) In opposing Defendants' motion for summary judgment (and in cross-moving for summary judgment), Plaintiff makes a new argument. She now maintains that, because Hearing Officer Barnes exceeded her authority by ruling on whether Plaintiff should be readmitted, the Court must remand so that a hearing officer can determine anew whether Plaintiff should have been terminated.[3] The Court held oral argument on these motions on December 22, 2009. II. Discussion A. Standard of Review Summary judgment may be granted where it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir.2005). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008) (internal citations omitted). A fact is material when "it might affect the outcome of the suit under governing law." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotation marks omitted). At summary judgment, a court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y.1990). A court's goal should be to "isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S. Ct. 2548. B. Analysis The United States Housing Act, 42 U.S.C. § 1437 et seq. ("The Housing Act"), was enacted to provide housing assistance for low-income families. The Housing Choice Voucher Program (the "Section 8 Program") allows low-income families to apply to a local PHA and, if approved, the local housing authority will 405 issue a Section 8 voucher to the family. See 24 C.F.R. § 982.302(a). With this voucher, the family may then locate a suitable apartment in the private market and enter into a lease that is in accordance with the applicable housing authority guidelines. See id. § 982.302(b)-(d). In accordance with the Housing Act, the U.S. Department of Housing and Urban Development ("HUD") published regulations to implement and administer the Section 8 Program at 24 C.F.R. Part 982. The pertinent regulations provide a right to an informal hearing to applicants who are terminated from the Section 8 Program. See 24 C.F.R. §§ 982.551-.553, .555. Section 982.551(l) states that "members of the household may not engage in drug-related criminal activity ... that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises." Public Housing Authorities "must establish standards that allow the PHA to terminate assistance for a family if the PHA determines that any family member has violated the family's obligation under § 982.551 not to engage in any drug-related criminal activity." 24 C.F.R. § 982.553(b)(1)(iii). Section 982.553(c) states that benefits may be terminated if "based on a preponderance of the evidence, ... the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity." Prior to termination, a participant is entitled to an informal grievance hearing conducted by a hearing officer. See 24 C.F.R. § 982.555(a)(v), (e)(4). At a hearing to determine whether termination of Section 8 benefits is appropriate, the hearing officer may consider "all relevant circumstances, such as the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denials or terminations of assistance on other family members." 24 C.F.R. § 982.552(c)(2)(i). Section 982.555(f) allows the public housing authorities to ignore hearing decisions that are contrary to HUD regulations or requirements, or otherwise contrary to federal, State, or local law. In her decision, Hearing Officer Barnes found that "[t]here is no question that termination is justified under" § 982.552, and that "[t]he City was correct in indicating that none of the mitigating factors mentioned in § 981.55[2] are present in this case." (Defs.' Ex. J at 4.) But, she went on to rule that "while the City of White Plains was correct in terminating Ms. Tinnin ... she should be reinstated to the program based on the specifics of 24 C.F.R. § 982.553." (Id.) Hearing Officer Barnes further stressed the importance of § 553, noting that "[w]ithout this Section 982.533 ... there would be no question about termination." (Id.) Specifically, Hearing Officer Barnes referred to the portion of § 553(a) that provides: The PHA may establish a period before the admission decision during which an applicant must not to have engaged in the activities [sexual misconduct] specified in paragraph (a)(2)(i) of this section ("reasonable time"). If the PHA previously denied admission to an applicant because a member of the household engaged in criminal activity, the PHA may reconsider the applicant if the PHA has sufficient evidence that the members of the household are not currently engaged in, and have not engaged in, such criminal activity during a reasonable period ... before the admission decision. 24 C.F.R. § 982.553(a)(2)(ii)(B)-(C). Section 982.553(a) is entitled "Denial of Admission," whereas § 982.553(b) is named 406 "Terminating Assistance." Unlike the approach in § 553(a) to admission, § 553(b) does not contain a provision that allows a PHA (or a hearing officer) to reconsider a termination decision after a period of good behavior. Thus, because Hearing Officer Barnes stated that Ms. Tinnin was properly terminated but should be "reinstated," and because she relied solely on a provision (§ 982.553(a)(2)(ii)(B)-(C)) that applies to admission but not to termination, this Court, in denying Plaintiff's preliminary injunction, found that her decision was "in effect" a readmission decision, and was therefore "ultra vires." (Defs.' Ex. 0 at 21.) Plaintiff does not question this ruling. Instead, she embraces it, arguing that because Hearing Officer Barnes exceeded her authority in ruling that Ms. Tinnin should be readmitted, the entire decision is a nullityeven the ruling on whether termination is proper. (Mem. of Law in Supp. of Pl.'s Cross-Mot. for Summ. J. and in Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Mem.") 4-5.) Thus, Plaintiff asks the Court to remand so that Hearing Officer Barnes may determine anew whether termination is appropriate. (Id. 5.) The Second Circuit has consistently held that a court need not remand to an administrative agency if remand would be futile. See Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 338 (2d Cir.2006) (noting that "the general principle of futility" holds that "an error does not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error"); Li v. I.N.S., 453 F.3d 129, 136-37 (2d Cir.2006) ("It is a long-standing principle of administrative law that agency errors do not justify a remand when remand[ing] would be an idle and useless formality.") (citations and internal quotations marks omitted); NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir.1982) ("[R]eversal and remand are [not] required each and every time an administrative agency assigns a wrong reason for its action; rather, remand [is required] only where there is a significant chance that but for the error, the agency might have reached a different result.") (emphasis in original); cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S. Ct. 1426, 22 L. Ed. 2d 709 (1969) (warning courts not to "convert judicial review of agency action into a ping-pong game"). Plaintiff points to three alleged errors that she claims justify remand. First, Hearing Officer Barnes "meant to refer to 24 C.F.R. § 982.552 when she in fact referred to 24 C.F.R. § 551." (Id. 4.) While the Court agrees with the premise, the error does not justify a remand because it is inconceivable that, but for this mistake, Hearing Officer Barnes would have found termination inappropriate, particularly given her unequivocal finding that termination was appropriate because of Plaintiff's drug-related conviction. Second, Plaintiff notes the Court's finding that "the reason ultimately why the Hearing Officer decided ... that Plaintiff should be allowed to continue to receive Section 8 benefits was because of" 24 C.F.R. § 982.553(a)(2)(ii)(B) and (C). (Pl.'s Mem. 4.) But, as noted above, the Court has already ruled that these provisions apply only to admission, and there is no similar provision that applies to termination. Plaintiff contends that "[i]t is impossible to excise" the portion of Hearing Officer Barnes' decision that relies on § 553(a)(2)(ii)(B) and (C) "without frustrating [her] apparent intention that Ms. Tinnin remain in the program." (Pl.'s Mem. 5.) Plaintiff's argument appears to be that, had Hearing Officer Barnes been aware that 553(a)(2)(ii)(B) and (C) did not apply to termination, she might have found a different basis for thwarting Plaintiffs termination. But such an argument is flatly 407 contradicted by the decision itself, which states that "[w]ithout this section of 982.533 or no reference to it in 981.551, there would be no question about termination." (Defs.' Ex. J at 4.) Therefore, Hearing Officer Barnes would had to have reached the same decision regarding termination had she not erred in believing she could recommend readmission under § 553(a)(2)(ii)(B) and (C).[4] Third, Plaintiff cites the Court's prior ruling that Hearing Officer Barnes did not have the authority to recommend that Plaintiff be readmitted. (Pl.'s Mem. 5.) This error, Plaintiff contends, requires remand so that Hearing Officer Barnes can reconsider her decision regarding termination. But, again, Hearing Officer Barnes was unequivocal about her termination decision: "There is no question that termination is justified.... [T]he City of White Plains was correct in indicating that none of the mitigating factors mentioned in § 981.55[2] are present in this case." (Defs' Ex. J at 4.) Indeed, as the Court has already determined, "[c]learly, Hearing Officer [Barnes] agreed that under the termination regulations [Ms. Tinnin] should have been" terminated. (Defs.' Ex. O at 20-21.) Accordingly, a remand to reconsider the termination question would be futile. Indeed, remand would be particularly inappropriate here in light of the administrative scheme that contemplates PHAs ignoring ultra vires decisions, rather than sending them back to Administrative Law Judges (ALJs) for reformulation. See 24 C.F.R. § 982.555(f) ("The PHA is not bound by a hearing decision ... that... exceeds the authority of the person conducting the hearing under PHA hearing procedures [or is] [c]ontrary to HUD regulations, or requirements, or otherwise contrary to federal, State, or local law."). That Hearing Officer Barnes acted ultra vires in trying to keep Plaintiff in her apartment does not mean she should be given a second attempt to do the same. It bears noting that Hearing Officer Barnes herself acknowledged that the question before her was whether Defendants properly terminated Plaintiff under § 982.551(l). (Defs.' Ex. J at 3.) Having answered that question in the affirmative, Hearing Officer Barnes' task was at an end. There was no basis, and there would be none on remand, to consider the separate question of Plaintiff's readmission to the program. That decision, in the first instance, belongs to Defendants, but only after Plaintiff applies for readmission. Having not taken that step, Plaintiff may not ask Hearing Officer Barnes to consider that question. The cases cited by Plaintiff are not to the contrary. None involve an agency decision that correctly decided an issue within its authority, but then went on to reach a matter outside its authority. Instead, each case presents the unremarkable situation in which a court found that an ALJ committed legal error regarding an issue properly before the ALJ, and, accordingly, remanded for reconsideration, having been asked to do so by the party that lost in the administrative hearing. For instance, Plaintiff cites Yancey v. N.Y. City Hous. Auth., 23 Misc. 3d 740, 879 N.Y.S.2d 661 (Sup.Ct.2009). There, the court found that "the Hearing Officer mistakenly believed 408... that the only possible determination was termination," while, in fact, the hearing officer had "discretion on the issue of termination." Id. at 671 (emphasis added). Thus, in Yancey, remand was a useful exercise because it was unclear how the hearing officer might exercise his newfound discretion not to terminate. The other cases cited by Plaintiff are similarly unilluminating. See, e.g., Davis v. Hernandez-Pinero, 21 H.C.R. 449A (N.Y.Sup. Ct.1993) (attached to Pl.'s Mem.) (remanding where an ALJ committed legal error and, consequently, did not reach a factual question); Boston Hous. Auth. v. Grant, (Boston Hous. Ct.2005) (attached to Pl.'s Mem.) (holding that a hearing officer improperly found that he did not have discretion on whether to terminate petitioner's benefits, and remanding to allow the officer to exercise that discretion). Again, in none of these cases did the ALJ make a correct decision, let alone a correct decision that was excisable from the erroneous one outside the ALJ's authority. In the end, Plaintiff really does not complaint about the Hearing Officer's decision; to the contrary, she cites it in arguing that Defendants improperly ignored its conclusion that she be reinstated. Indeed, this core claim is the basis of Plaintiffs lawsuit. But, because the Court finds that Hearing Officer Barnes's decision regarding termination was correct, and that that was the only question properly before her, the Court finds no legal or constitutional foul in Defendants terminating Plaintiff from the Section 8 program. Therefore, there is no cause to remand this case.[5] III. Conclusion For the reasons stated herein, the Court grants Defendants' motion for summary judgment and denies Plaintiffs cross-motion for summary judgment. The Clerk is respectfully directed to remove the pending motion (Dkt. No. 25.), enter judgment for Defendants, and close this case. SO ORDERED. NOTES [1] The "Section 8 Program of the City of White Plains" is not a legal entity. (Mem. of Law in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") 1 n. 1.) Nonetheless, the Court will adopt Defendants' willingness to be collectively referred to as "Defendants" in this Opinion. (Id.) [2] Although Hearing Officer Barnes cited 24 C.F.R. § 982.551, it is 24 C.F.R. § 982.552(c)(2)(i), that provides a non-exhaustive list of mitigating factors that a PHA may consider. These factors are: "the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure." 24 C.F.R. § 982.552(c)(2)(i). [3] The Court notes that Plaintiff cross-moved for summary judgment without going through the Court's Individual Practices. The Court therefore denied Plaintiff's motion without prejudice. (Dkt. No. 34.) Because it is now apparent that Plaintiff's arguments in opposition to Defendants' summary judgment motion also support her motion for summary judgment, the Court advised the Parties at oral argument that it would construe Plaintiff's opposition also as a cross-motion for summary judgment. [4] If any portion of § 982.553(a) could apply to Ms. Tinnin, it would be 553(a)(1)(i)(a) which requires the PHA to "prohibit admission to the program of an applicant for three years from the date of eviction if a household member has been evicted from federally assisted housing for drug-related criminal activity," unless that person has "completed a supervised drug rehabilitation program approved by the PHA." There is no evidence that Ms. Tinnin has completed such a program. Thus, because Plaintiff was evicted for a drug-related crime, under 553(a)(1)(i)(a) she would be required to wait three years to apply for readmission. [5] Plaintiff appears to abandon her procedural due process claim. Defendants' moving papers demonstrate that Plaintiff was given notice and an opportunity to be heard in accordance with Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Plaintiff did not respond to this argument in her brief or otherwise support her due process claim. Accordingly, the Court grants Defendants' motion for summary judgment on this claim. See Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 312 (S.D.N.Y.1998) (deeming claim "abandoned" and granting summary judgment where it was alleged in the complaint but "not raised elsewhere in the record"); Nat'l Commc'ns Ass'n, Inc. v. Am. Tel. & Tel. Co., No. 92-CV-1735, 1998 WL 118174, at 28 (S.D.N.Y. March 16, 1998) (deeming claim "abandoned" and granting summary judgment where plaintiff did not address claim in response to defendant's summary judgment motion); Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 907 n. 11 (S.D.N.Y.) ("[T]he failure to provide argument on a point at issue constitutes abandonment of the issue."), aff'd, 130 F.3d 1101 (2d Cir. 1997).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540341/	341 S.W.3d 119 (2011) Roger P. ELLIOTT, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent. No. 2011-SC-000205-KB. Supreme Court of Kentucky. June 16, 2011. 120 OPINION AND ORDER Roger P. Elliott was admitted to the practice of law in the Commonwealth of Kentucky in 1975. His KBA Member No. is 20767 and his bar roster address is 351 Lawless Road, Jamestown, Kentucky 42629. Pursuant to SCR 3.480(2), he moves this Court to enter an Order suspending his license to practice law in Kentucky for two years with one year probated and one year to serve subject to the conditions set out herein. In 1984, Elliott was appointed as the District Court Judge for Adair and Casey counties. He was reelected on a number of occasions, and continued to serve until his retirement in 2007. Thereafter he entered the Senior Status Judge Program. On May 6, 2009, a Pulaski County Grand Jury indicted Elliott on one count of theft of labor already rendered (KRS 514.090). The indictment alleged that on or about June 5, 2008, Elliott intentionally issued or passed a check to John Gillum in payment for legal services already rendered in the amount of $8,194.25 knowing that the check would not be honored by the drawee bank.[1] On July 28, 2009, Elliott entered an Alford plea to the charge, a Class D felony. Pursuant to the Alford plea, Elliott re-affirmed his innocence of the allegations of the indictment, but acknowledged that a trier of fact could find him guilty. On October 6, 2009, the Pulaski Circuit Court entered an Order granting Elliott pretrial diversion. The Order provided for two years of unsupervised diversion and the payment of restitution, which was paid on that day. The circuit court, at the time of the entry of the pretrial diversion order, added additional terms beyond that recommended by the Commonwealth, including an increase in the length of the period of diversion and the inclusion of a thirty-day period of home incarceration. Elliott successfully and uneventfully completed the home incarceration, which began on October 12, 2009. On October 29, 2009, this Court entered an Opinion and Order (2009-SC-000549-KB) pursuant to SCR 3.166. This rule provides for the automatic temporary suspension of an attorney's license following the entry of a guilty plea to a felony. On June 23, 2010, the Judicial Conduct Commission issued an Order of Public Reprimand, which had been agreed to by Elliott. As a condition of the public reprimand, Elliott agreed to resign from the Senior Status Judge Program and not to seek to re-enter the program. As a follow-up to resolve the temporary suspension of his bar license, Elliott and the Office of Bar Counsel have agreed to a negotiated sanction pursuant to SCR 3.480(2). Elliott acknowledges that the entry of his Alford plea is proof that he engaged in conduct that violated SCR 3.130-8.3(b) (now SCR 3.130-8.4(b)), and requests this Court enter an opinion and order suspending him from the practice of law for a period of two years with one year probated, and one year to serve, effective from the date of the order, on conditions that he continue compliance with the terms and provisions of his pretrial diversion contract in Pulaski Circuit Court file no. 09-CR-00121 and that he incur no new disciplinary charges during the probationary period. The Motion for Consensual 121 Discipline, along with the relevant case law, was reviewed and approved by the Chair of the Inquiry Commission and a Past President of the Kentucky Bar Association before submission to the Court, pursuant to the Office of Bar Counsel's standard procedure in consensual discipline cases. Having reviewed previous sanctions for violations of SCR 3.130-8.4(b) (previously SCR 3.130-8.3(b)), especially, the case of Troutman v. Kentucky Bar Association, 275 S.W.3d 175 (Ky.2008), we are of the opinion that the proposed sanctions are appropriate. In Troutman, this Court suspended Troutman for two years, retroactive to the date of his temporary suspension. Troutman entered an Alford plea to two counts of wanton endangerment in the first degree (a Class D felony), one count of criminal mischief in the first degree (a Class D felony), and one count of criminal littering (a Class A misdemeanor). He was placed on pretrial diversion, with supervised probation for a period of two years. He completed the diversion and the charges were dismissed prior to the entry of the Court's order, but he conceded that the plea is proof that he engaged in conduct that violated SCR 3.130-8.3(b) (now SCR 3.130-8.4(b)). Accordingly, it is hereby ORDERED that: 1. Roger P. Elliott be and is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of two years, with one year probated and one year to serve, on these conditions: a. Continued compliance with the terms and provisions of the pretrial diversion in 09-CR-00121 set out in the October 6, 2009 Order Granting Pretrial Diversion. b. No new attorney disciplinary charges during the probation period. c. The period of suspension begins on the date of this Order. d. In the event that during the probationary period Elliott violates the conditions set out above, the Kentucky Bar Association, through the Office of Bar Counsel, may file a Motion for the imposition of the probated period of suspension. 2. Pursuant to SCR 3.450, Elliott is ordered to pay the cost associated with these disciplinary proceedings, certified in the amount of $35.82, for which execution may issue from this Court upon finality of this Order. MINTON, C.J., ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and SCOTT, JJ., concur. VENTERS, J., not sitting. ENTERED: June 16, 2011. /s/ John D. Minton, Jr. Chief Justice NOTES [1] Gillum had represented Elliott in a civil suit concerning the sale of certain real estate.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540279/	712 F. Supp. 2d 1038 (2010) De'Veron J. RATLIFF, aka Deveron Jacques Ratliff, aka Christopher Hooper, aka Deveron Rattliff, Petitioner, v. Tony HEDGEPETH, Warden, Respondent. Case No. ED CV 07-627-RSWL(RC). United States District Court, C.D. California. May 4, 2010. 1044 Deveron J. Ratliff, San Luis Obispo, CA, pro se. Kevin R. Vienna, CAAG Office of Attorney General of California, San Diego, CA, for Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY RONALD S.W. LEW, Senior District Judge. Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination. IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice. This Court finds an appeal would not be taken in good faith, and petitioner has not made a substantial showing that he has been denied a constitutional right, for the reasons set forth in the Report and Recommendation; thus, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R.App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000); Mayfield v. Calderon, 229 F.3d 895, 900 (9th Cir.2000). IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner. JUDGMENT Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman, IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice. REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE ROSALYN M. CHAPMAN, United States Magistrate Judge. This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, Senior United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. BACKGROUND I On February 1, 2002, in Riverside County Superior Court case no. RIF091977, a jury convicted petitioner De'Veron J. Ratliff, aka Deveron Jacques Ratliff, aka Christopher Hooper, aka Deveron Rattliff, of one count of assault with a deadly weapon other than a firearm (knife) in violation of California Penal Code ("P.C.") § 245(a)(1) (count 2) and one count of being a felon in possession of a firearm in violation of P.C. § 12021(a)(1) (count 4); as to both counts, the jury found petitioner 1045 committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with specific intent to promote, further and assist in criminal conduct by gang members within the meaning of P.C. § 186.22(b)(1); and, as to count 2, the jury found petitioner personally used a firearm within the meaning of P.C. §§ 12022.5(a) and 1192.7(c)(8); however, the jury found petitioner not guilty of attempted willful and premeditated murder in violation of P.C. §§ 664/87 (count 1). Clerk's Transcript ("CT") 107-11, 154-55, 159-64.[1] In a bifurcated proceeding, the trial court found petitioner had suffered two prior strikes under California's Three Strikes law, within the meaning of P.C. §§ 667(c) and (e) and 1170.12(c). CT 301-02. The petitioner was sentenced under the Three Strikes law to the total term of 49 years to life in state prison. CT 380-81, 383. The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 384-86, which in an unpublished opinion filed August 24, 2004, "modif[ied] the judgment ... by striking the two [P.C.] section 667.5, subdivision (b) enhancements imposed on count 2 and by amending the [P.C.] section 186.22 enhancement from a 10-year prison term under subdivision (b)(1) to a minimum 15-year parole term under subdivision (b)(5) [,]" and affirmed the judgment as modified. Lodgment nos. 1-4. On October 6, 2004, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court,[2] which denied review on November 10, 2004. Lodgment nos. 5-6. On June 27, 2005,[3] petitioner, proceeding pro se, filed a habeas corpus petition in the Riverside County Superior Court, which denied the petition on July 6, 2005. Lodgment nos. 7-8. On July 27, 2005, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on August 12, 2005. Lodgment nos. 9-10. Finally, on August 17, 2005, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on June 28, 2006.[4] Lodgment nos. 11-12. 1046 On April 3, 2006, while his habeas corpus petition was pending in the California Supreme Court, petitioner filed a second habeas corpus petition in the Riverside County Superior Court, which denied the petition on May 1, 2006. Lodgment nos. 13-14. On May 17, 2006, petitioner filed a second habeas corpus petition in the California Court of Appeal, which denied the petition on May 26, 2006. Lodgment nos. 15-16. On July 14, 2006, petitioner filed a second habeas corpus petition in the California Supreme Court,[5] which denied the petition on February 7, 2007, with citations to: In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (1993); In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953); In re Swain, 34 Cal. 2d 300, 304, 209 P.2d 793 (1949); People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 (1995); and In re Lindley, 29 Cal. 2d 709, 177 P.2d 918 (1947). Lodgment nos. 17-18. II The California Court of Appeal, in affirming petitioner's convictions, made the following findings of facts underlying the offenses:[6] The charges in this case stem from three fights that occurred on May 25, 2000. The first fight occurred at Mel's Liquor store where petitioner pushed Vincent Thomas's friend in the head after the two had exchanged words about the Raymond Street Crips, a gang in which petitioner was a member. Vincent Thomas then hit petitioner in the back of the head and a fight between petitioner's friends and Thomas's friends broke out in the liquor store parking lot. Co-defendant Vanpool and her friends were also at the liquor store and she participated in the 1047 parking lot fight. That fight ended and the two groups went their separate ways. Vincent Thomas and his friends went to Thomas's house and petitioner and Vanpool went to a house on Victor Street. The second fight took place at the house on Victor Street when Vincent Thomas and his friends arrived and confronted petitioner. A brawl broke out when Vincent Thomas's brother and one of his friends punched petitioner and one of his companions. That fight ended when the woman who owned the Victor Street house threatened to call the police. The third and final fight occurred in a park where the two groups met again. There, Vincent Thomas saw petitioner holding what appeared to be a gun. When Vincent ran, he was chased and knocked to the ground where he was beaten and stabbed by several people, one of whom Vincent identified as petitioner. Another witness saw Vanpool stab Vincent several times. After stabbing Vincent, Vanpool drove off in the truck that Vincent's brother, along with Vincent and two others, had driven to the park. The truck belonged to Vincent Thomas's father. Vincent Thomas had five stab woundsone on the upper left bicep, two on the buttocks, one of which was deep and considered serious, and three on his legs and thighs. The wounds required sutures. According to various witnesses, petitioner was a member of the Raymond Street Crips and while at the Victor Street house had been heard to say, "All you niggas out here in Moreno Valley claimin' Raymond who never been in the hood are gonna get put on the hood or get smoked." A witness also heard petitioner refer to Vincent Thomas and his friends as "busters," a derogatory term that refers to a person who falsely claims to be in a gang. During the fight in the park, petitioner also was heard to say to Vincent, while the latter was on the ground being beaten and stabbed, not to "claim" petitioner's hood anymore. Witnesses also testified that while Vanpool was stabbing Vincent Thomas, she was heard to say, "Raymond Crip, whew, whew" and "Don't ever claim Raymond again." III Effective April 17, 2007, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254, and on July 30, 2007, respondent filed a motion to dismiss the petition, arguing it is both untimely and a "mixed" petition. On November 13, 2007, the Court denied respondent's motion to dismiss, and on March 4, 2008, respondent filed his answer. The petitioner filed his reply on June 11, 2008. The petition raises the following numerous grounds for habeas corpus relief: Ground OnePetitioner "was denied his right[] to a fair trial due to the court[']s error in denying petitioner's motion to strike the testimony of ... Eric Thomas as to the plea[] bargain he entered into with the prosecutor[,] which left the prosecutor as sole mediater [sic] in determining whether [Eric's] testimony was truthful... an[d] unduly pressured ... [Eric] to provide testimony which the prosecutor desired"; Ground Two"The prosecutor committed prejudicial misconduct by expressing his personal opinion as to who he believed... during closing arguments"; Ground Three"The trial court erred [in violation of the Sixth Amendment] in admitting testimony of threats received by virtually all of the prosecution's witnesses"; Ground Four(a) "The evidence is not sufficient to establish any of the offenses were committed by petitioner for purposes of furthering a criminal street gang within the meaning of Penal Code § 186.22 nor that petitioner was even apart [sic] of [an] 1048 allege[d] gang[;]" and (b) "the trial court erred by admitting extensive evidence of [petitioner's] allege[d] membership in a gang[,]" violating petitioner's due process right to a fair trial; Ground Five"Petitioner's conviction was obtained as a result of the prosecution's misstatement of fact" when the prosecutor misled prosecution witness LaJoyce Mack into believing petitioner had a gun, whereas it was Eric Thomas; Ground SixDefense counsel was ineffective in that he: (a) failed "to properly investigate and put on an adequate defense [on] petitioner's behalf," (b) "failed to file a motion for severance on the grounds of conflict of interest," (c) failed "to subpoena any of the eye witnesses, or character witnesses who favored petitioner," (d) failed to interview and subpoena a gang expert, (e) "failed to present critical exculpatory evidence that was favorable to petitioner," specifically (i) "letters and notes that ... Eric Thomas wrote petitioner stating he [Eric Thomas] knew petitioner was [not] guilty of [the] offense, but he needed to do what he had to do in order to get out of jail," (ii) "L.A. Times news paper [sic] clipping of petitioner involved in Straight Talk Program speaking out against gangs to jr high and high school kids," and (iii) "[a] surveillance video tape [sic] of footage depicting petitioner with a very low hair cut without a beard, whereas the prosecution witnesses described the individual with [the] allege[d] gun as having either corn rolls, puff ball or an afro in his hair with a beard," (f) failed "to object to prosecution witness LaJoyce Mack[s] testimony or file for a mistrial," (g) failed "to object to prosecutor Ryan Markson parading ... Eric Thomas into the courtroom" while "witness LaJoyce Mack was being questioned under re-direct in order to further intimidate witness LaJoyce Mack into changing her testimony," (h) failed "to object to incompetent prejudicial hearsay testimony from witness Eric Thomas where he placed petitioner as being apart [sic] of a killing squad called the 5Rs," (i) failed "to properly cross examine prosecution witness Eric Thomas as to his incompetent hearsay gang testimony," (j) failed "to subpeona [sic] critical witness Rashima Ward a.k.a. Tamara Hunt to have her at hearing for a new trial on newly discovered evidence," and (k) "misled petitioner and [left] petitioner confused as to the purpose of a[] bifurcation hearing ... which ultimately led to petitioner admitting to priors instead of having a trial on the priors"; Ground SevenAppellate counsel was ineffective for: (a) "fail[ing] to raise numerous claims of ... ineffective assistance of trial counsel[,]" (b) failing to claim insufficiency of evidence, (c) failing to "claim that the court misled the jurors with instructions," (d) failing to claim "a violation of the Rules of Court standard on expert witnesses['] qualification to testify," and (e) failing to claim that "the prosecutor withheld exculpatory evidence"; Ground Eight"The court caused a miscarriage of justice when it misled the jury in instructions doing [sic] deliberations"; Ground NineThe "[p]rosecutor blantantly [sic] failed to disclose favorable substantial material to petitioner"; and Ground Ten"Insufficient ... evidence to justify a guilty verdict beyond a reasonable doubt[.]" DISCUSSION IV The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir.2007), as follows: 1049 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; * * * (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). The California Supreme Court denied petitioner's request for review on November 10, 2004. After the California Supreme Court denied review, petitioner had the option of seeking a writ of certiorari from the United States Supreme Court. 28 U.S.C. § 1257. A writ of certiorari must be sought within ninety days after the California Supreme Court denies review. 28 U.S.C. § 2101(d); Rules of the Supreme Court of the United States, Rule 13. If the petitioner does not seek certiorari in the Supreme Court, the direct review process is over at the end of the ninety-day period. Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en banc); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Thus, for petitioner, AEPA's statute of limitations began to run on February 9, 2005, and expired on February 8, 2006, one year from when his state court decision became final. Ibid. Here, the instant action was not filed until April 17, 2007more than one year after the statute of limitations expired. However, this Court must consider whether the statute of limitations was tolled while petitioner's applications for collateral relief were pending before the California courts. Generally, "the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge[,]" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (footnotes omitted), cert. denied, 529 U.S. 1104, 120 S. Ct. 1846, 146 L. Ed. 2d 787 (2000), so long as the petitioner did not unreasonably delay in seeking collateral relief. Carey v. Saffold, 536 U.S. 214, 225, 122 S. Ct. 2134, 2141, 153 L. Ed. 2d 260 (2002). Here, petitioner filed a habeas corpus petition in the Los Angeles County Superior Court on June 27, 2005. At that time, petitioner had "used" 138 days of his allotted 365 days, and had 227 days left on the limitations period. Nino, 183 F.3d at 1006. The statute of limitations was tolled from June 27, 2005, until June 28, 2006,[7] when the California Supreme Court denied petitioner's habeas corpus petition. Id. The pending petition would not be timely except for the statutory tolling of the limitations period while petitioner's second habeas corpus petition was pending before the California Supreme Court.[8] However, respondent contends the second 1050 habeas petition to the California Supreme Court did not statutorily toll the limitations period because it was not "properly filed" within the meaning of Section 2244(d)(2), due to the California Supreme Court's citation to In re Clark when it denied the petition. The respondent contends the citation to In re Clark means the California Supreme Court found the petition to be untimely. See, e.g., In re Clark, 5 Cal. 4th 750, 775, 21 Cal. Rptr. 2d 509, 525, 855 P.2d 729 (1993) ("A petitioner will be expected to demonstrate due diligence in pursuing potential claims. If a petitioner had reason to suspect that a basis for habeas relief was available, but did nothing to promptly confirm those suspicions, that failure must be justified."). There is no merit to this contention. Although a citation to Clark may mean the petition is untimely, that is not the only proposition for which Clark stands. Rather, Clark also stands for the proposition that "absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected... [as well as] newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment." Id. at 767-68, 21 Cal.Rptr.2d at 520, 855 P.2d 729. Moreover, Clark also stands for "the general rule that issues resolved on appeal will not be reconsidered on habeas corpus[,]" id. at 765, 21 Cal.Rptr.2d at 518, 855 P.2d 729 (citing In re Waltreus, 62 Cal. 2d 218, 225, 42 Cal. Rptr. 9, 397 P.2d 1001 (1965), cert. denied, 382 U.S. 853, 86 S. Ct. 103, 15 L. Ed. 2d 92 (1965)), and its companion rule that "in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." Clark, 5 Cal.4th at 765, 21 Cal.Rptr.2d at 518, 855 P.2d 729 (citing In re Dixon, 41 Cal. 2d 756, 759, 264 P.2d 513 (1953); internal quotation marks omitted). Under AEDPA, respondent "bears the burden of proving that the AEDPA limitations period has expired." Fleming v. Evans, 481 F.3d 1249, 1257 (10th Cir. 2007); see also Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir.2004) ("Since the period of limitations is an affirmative defense, the state has the burden of showing that the petition is untimely."), cert. denied, 543 U.S. 1168, 125 S. Ct. 1348, 161 L. Ed. 2d 144 (2005); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.2002) ("[T]he party asserting statute of limitations as an affirmative defense has the burden of demonstrating that the statute has run."). Given the variety of procedural rules set forth in Clark,[9] and since the California Supreme 1051 Court's citation to Clark was without reference to any specific page within the Clark opinion, respondent has not met his burden of demonstrating the California Supreme Court denied petitioner's second habeas corpus petition on the ground it was untimely. See Gipson v. Schwartz, 2007 WL 1411607, 2 (N.D.Cal.) ("The problem with respondent's argument is that the citation to Clark is ambiguous because the California Supreme Court did not cite to any particular page in the Clark opinion when it denied [petitioner's] second habeas petition [and] Clark discusses more than just the untimeliness procedural bar...."). Thus, petitioner is entitled to statutory tolling for the time his second habeas petition was pending before the California Supreme Court, and affording petitioner such statutory tolling, petitioner's current federal habeas corpus petition is timely. V Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553, 115 L. Ed. 2d 640 (1991); Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820 (2002); King v. LaMarque, 464 F.3d 963, 965 (9th Cir.2006). "The procedural default doctrine, which is a specific application of the general adequate and independent state grounds doctrine[,]" Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994); Fields v. Calderon, 125 F.3d 757, 761-62 (9th Cir.1997), cert. denied, 523 U.S. 1132, 118 S. Ct. 1826, 140 L. Ed. 2d 962 (1998), "bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman, 501 U.S. at 729-30, 111 S.Ct. at 2554; Hanson v. Mahoney, 433 F.3d 1107, 1113 (9th Cir.), cert. denied, 547 U.S. 1180, 126 S. Ct. 2354, 165 L. Ed. 2d 282 (2006). "To constitute a procedural bar, the state's rule had to be independent and adequate at the time [petitioner] purportedly failed to comply with it." Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir.) (citing Fields, 125 F.3d at 760), cert. denied, ___ U.S. ___, 130 S. Ct. 193, 175 L. Ed. 2d 121 (2009). A state procedural rule is considered an independent bar if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 1092, 84 L. Ed. 2d 53 (1985); Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201 (1983); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001). "To be adequate, a state procedural rule must be `well-established and consistently applied.'" Townsend, 562 F.3d at 1207 (citing Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir.), cert. denied, 540 U.S. 938, 124 S. Ct. 105, 157 L. Ed. 2d 251 (2003)); Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 857, 112 L. Ed. 2d 935 (1991); King, 464 F.3d at 965. "A procedural rule can be neither wellestablished nor consistently applied if it is not `clear and certain.'" Townsend, 562 F.3d at 1207 (quoting King, 464 F.3d at 965). Procedural default is an affirmative defense, Gray v. Netherland, 518 U.S. 152, 165-66, 116 S. Ct. 2074, 2082, 135 L. Ed. 2d 457 (1996); Franklin v. Johnson, 290 F.3d 1223, 1229-33 (9th Cir.2002), "and the state has the burden of showing that the 1052 default constitutes an adequate and independent ground." Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir.2005); Bennett, 322 F.3d at 585. Here, respondent raises the affirmative defense that Grounds Two, Three, Four, Five, and Eight are procedurally defaulted, and federal habeas review of those claims is barred, because the California Supreme Court denied petitioner's second habeas corpus petition raising these claims with citations to In re Clark, In re Dixon, In re Swain, People v. Duvall and In re Lindley.[10] Answer at 5:24-6:16, 16:7-18:6, 21:7-14, 25:20-26:13, 30:4-10, 34:5-7. However, since the California Supreme Court's order is based, at least in part, on Swain and Duvall, which generally bar federal habeas corpus review, see, e.g., Gaston v. Palmer, 417 F.3d 1030, 1038-39 (9th Cir.2005) (emphasis added), amended on other grounds by, 447 F.3d 1165 (9th Cir.2006), cert. denied, 549 U.S. 1134, 127 S. Ct. 979, 166 L. Ed. 2d 742 (2007); Howard v. Campbell, 305 Fed.Appx. 442, 445 (9th Cir.2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2064, 173 L. Ed. 2d 1142 (2009), and because the California Supreme Court's order does not identify the claims to which each citation is intended to apply, the California Supreme Court did not clearly and expressly rely on an adequate and independent state law ground to deny Grounds Three, Four, Five, and Eight, and those claims are not procedurally defaulted. Valerio v. Crawford, 306 F.3d 742, 774-75 (9th Cir.2002) (en banc), cert. denied, 538 U.S. 994, 123 S. Ct. 1788, 155 L. Ed. 2d 695 (2003); see also Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir.1996) ("`[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review.'" (citations omitted)), cert. denied, 520 U.S. 1204, 117 S. Ct. 1569, 137 L. Ed. 2d 714 (1997). Respondent also asserts that Ground Two is procedurally barred because the California Court of Appeal, in its reasoned opinion affirming petitioner's judgment as modified, "note[d] that neither [petitioner nor Vanpool] objected to the prosecutor's argument[,]" and then ruled that petitioner's "failure to object precludes [him] from raising the prosecutorial misconduct claim [Ground Two] on appeal."[11] Lodgment no. 4 at 11 (citation 1053 omitted); see also People v. Valencia, 43 Cal. 4th 268, 281, 74 Cal. Rptr. 3d 605, 623, 180 P.3d 351 (2008) (Under California law, "`[a]s a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.'" (citation omitted)), cert. denied, ___ U.S. ___, 129 S. Ct. 198, 172 L. Ed. 2d 158 (2008); People v. Huggins, 38 Cal. 4th 175, 205, 41 Cal. Rptr. 3d 593, 620, 131 P.3d 995 (2006) (same), cert. denied, 549 U.S. 998, 127 S. Ct. 501, 166 L. Ed. 2d 374 (2006). This California rule is not interwoven with or dependent on federal law and was "firmly established and regularly followed state practice" prior to petitioner's trial. Rich v. Calderon, 187 F.3d 1064, 1070 (9th Cir.1999), cert. denied, 528 U.S. 1092, 120 S. Ct. 827, 145 L. Ed. 2d 696 (2000); see also Howard, 305 Fed.Appx. at 444 ("We have held that failure to comply with California's contemporaneous objection rule results in a procedural default of a prosecutorial misconduct claim."); Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.1981) ("California courts adhere to the contemporaneous objection rule barring appellate review of alleged errors that are not raised at trial by timely objection."). Since respondent has raised the affirmative defense of procedural bar to Ground Two, the burden now shifts to petitioner to place the affirmative defense in issue. King, 464 F.3d at 966-67; Bennett, 322 F.3d at 586. "In most circumstances, the best method for petitioners to place the defense in issue is to assert `specific factual allegations that demonstrate the inadequacy of the state procedure' by citing relevant cases." King, 464 F.3d at 967 (quoting Bennett, 322 F.3d at 586). However, petitioner has not done this; rather, petitioner's reply fails to address whether Ground Two is procedurally barred under California's contemporaneous objection rule.[12]See Reply at 2, 16-19. Thus, petitioner has not met his burden, Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir.1998), cert. denied, 526 U.S. 1123, 119 S. Ct. 1777, 143 L. Ed. 2d 806 (1999), and he has procedurally defaulted Ground Two. Rich, 187 F.3d at 1070. When a habeas petitioner "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 1054 of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Medley v. Runnels, 506 F.3d 857, 869 (9th Cir.2007) (en banc), cert. denied, 552 U.S. 1316, 128 S. Ct. 1878, 170 L. Ed. 2d 754 (2008). The "cause" prong requires petitioner to demonstrate some "objective factor" that precluded him from raising his claims in state court. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991); High v. Ignacio, 408 F.3d 585, 589 (9th Cir.2005). Ignorance or inadvertence does not constitute cause for a state procedural default. Murray v. Carrier, 477 U.S. 478, 486-87, 106 S. Ct. 2639, 2644-45, 91 L. Ed. 2d 397 (1986); Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir.2005), cert. denied, 548 U.S. 927, 126 S. Ct. 2984, 165 L. Ed. 2d 990 (2006). To show prejudice, petitioner must demonstrate "not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596, 71 L. Ed. 2d 816 (1982); Carrier, 477 U.S. at 494, 106 S.Ct. at 2648. The petitioner has the burden of proving both cause and prejudice. Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828 (1998); Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Here, petitioner claims he "has shown cause and prejudice" because his "appellate counsel is required to raise any issue of merit" and any procedural "bar must be overcome for counsels [sic] failure to recognize the issue and raise it in the direct appeal." Reply at 19. However, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Carrier, 477 U.S. at 486, 106 S.Ct. at 2644; Cockett v. Ray, 333 F.3d 938, 943 (9th Cir.2003). Rather, attorney ignorance or inadvertence does not constitute "cause" unless it rises to the level of constitutionally ineffective assistance of counsel. Coleman, 501 U.S. at 753-54, 111 S.Ct. at 2567; Carrier, 477 U.S. at 488, 106 S.Ct. at 2645; Cockett, 333 F.3d at 944. Here, since petitioner "failed to raise an ineffective assistance of appellate counsel claim on this issue, ... he cannot show cause to excuse his defaults." Cook v. Schriro, 538 F.3d 1000, 1029 (9th Cir.2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1033, 173 L. Ed. 2d 301 (2009); Carrier, 477 U.S. at 489, 106 S.Ct. at 2646; see also Cockett, 333 F.3d at 943 ("To constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim."). Moreover, although petitioner conclusorily asserts "it would be a miscarriage of justice" not to consider Ground Two on the merits, Reply at 19, the miscarriage of justice exception only applies if petitioner can show that a "a constitutional violation has probably resulted in the conviction of one who is actually innocent[,]" Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808 (1995); Carrier, 477 U.S. at 496, 106 S.Ct. at 2649, and petitioner's conclusory assertion is clearly insufficient to meet this standard. See Casey v. Moore, 386 F.3d 896, 921 n. 27 (9th Cir.2004) ("[T]he fundamental miscarriage of justice exception applies only when a constitutional violation probably has resulted in the conviction of one actually innocent of a crime and petitioner supplements his constitutional claim with a colorable showing of factual innocence, which [petitioner] has not done."), cert. denied, 545 U.S. 1146, 125 S. Ct. 2975, 162 L. Ed. 2d 899 (2005). Therefore, Ground Two is procedurally barred, and the Court will not consider it. 1055 VI The AEDPA "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534, 156 L. Ed. 2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides: 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 proceeding. 28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The California Supreme Court reached the merits of Grounds One, Seven, Nine and Ten and portions of Ground Six when it denied petitioner's request for review and his first habeas corpus petition without comment or citation to authority. Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002), amended by, 311 F.3d 928 (9th Cir.2002); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S. Ct. 240, 126 L. Ed. 2d 194 (1993). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991); Medley, 506 F.3d at 862. Here, the California Court of Appeal issued a reasoned decision addressing Ground One, and this Court will consider that opinion. However, as to Grounds Seven, Nine and Ten and portions of Ground Six, since no state court has provided a reasoned decision addressing the merits of petitioner's claims, this Court must conduct "an independent review of the record" to determine whether the California Supreme Court's ultimate decision denying those claims was contrary to, or an unreasonable application of, clearly established federal law. Libberton v. Ryan, 583 F.3d 1147, 1161 (9th Cir.2009); Matylinsky v. Budge, 577 F.3d 1083, 1090 (9th Cir.2009), cert. denied, ___ U.S. ___, 130 S. Ct. 1154, ___ L.Ed.2d ___ (2009). Furthermore, as to Grounds Three, Four, Five and Eight, and portions of Ground Six, "[b]ecause the [California] courts did not reach the merits of [these] claim[s], federal habeas review is not subject to the deferential standard that applies under AEDPA to `any claim that was adjudicated on the merits in State court proceedings.' Instead, the claim is reviewed de novo." Cone v. Bell, ___ U.S. ___, 129 S. Ct. 1769, 1784, 173 L. Ed. 2d 701 (2009) (citations omitted); Tanner v. McDaniel, 493 F.3d 1135, 1139 (9th Cir.), cert. denied, 552 U.S. 1068, 128 S. Ct. 722, 169 L. Ed. 2d 565 (2007). VII In Ground One, petitioner claims he was denied his Sixth and Fourteenth Amendment rights to a fair trial when the trial court refused to strike the testimony of Eric Thomas, who entered into a plea bargain with the prosecution that required him to testify consistently with an interview he gave the prosecutor and granted the prosecutor authority to determine 1056 whether the testimony was truthful. The California Court of Appeal set forth the following facts underlying this claim: . . . Eric Thomas (no relation to the victim Vincent Thomas) testified at trial after having entered into a plea agreement with the prosecutor that provided that Eric[FN5] would plead guilty to one count of assault and admit a gang allegation. The agreement, as recounted by the prosecutor, was that Eric would be released from custody before sentencing and, in exchange, would provide "truthful testimony in the trial against [petitioner and his codefendant]. He has represented that a statement that he gave at the bureau of investigation on a videotape was a truthful statement, and he will testify truthfully." If Eric testifies truthfully, the prosecutor stated that he would get "three years of formal probation and he will be sentenced to credit for time served." When the trial court asked who would decide whether Eric's testimony was truthful, the prosecutor answered, "Well, that will have to be the district attorney's office. That will have to be me." Eric's attorney added his understanding that "when we are talking about truthful testimony, I would believe that to mean testimony Mr. Thomas has already given in [sic] videotape, so if it's consistent with those statements." [FN5] We refer to the witness by his first name in order to distinguish him from others involved in this case who also have the surname Thomas. After Eric Thomas testified at trial, counsel for both [petitioner and Vanpool] moved to strike his testimony, asserting that the plea bargain was improper because it required him to testify in accordance with a prior statement and also because the prosecutor was the sole arbiter of whether his testimony was truthful.... The trial court denied [petitioner's and Vanpool's] motion to strike Eric Thomas's testimony. Lodgment no. 4 at 6-7. The Court of Appeal then proceeded to deny petitioner's claim, holding: In People v. Allen (1986) 42 Cal. 3d 1222, 232 Cal. Rptr. 849, 729 P.2d 115, the Supreme Court explained that, "`[A] defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.' Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police, or that his testimony result in the defendant's conviction, the accomplice's testimony is `tainted beyond redemption' and its admission denies the defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid." [¶] The plea bargain with Eric Thomas required him to testify truthfully and therefore comports with People v. Allen. The reference to Eric's earlier statement to the police does not render the plea agreement coercive. A plea agreement that requires a witness to testify completely and truthfully, "even if it is clear the prosecutor believes the witness's prior statement to the police is the truth, and deviation from that statement in testimony may result in the withdrawal of the plea offer, does not place such compulsion upon the witness as to violate the defendant's right to a fair trial." As set out above, both the prosecutor and Eric Thomas's attorney stated that Eric had represented that his earlier, videotaped statement was the truth. That statement became the standard or 1057 benchmark for determining whether Eric's trial testimony was truthful but reference to that statement in the plea agreement did not violate [petitioner's] right to a fair trial. [¶] The fact that the prosecutor would determine whether Eric testified truthfully does not render the plea agreement coercive. In claiming otherwise, [petitioner] rel[ies] on People v. Bittaker, a case that involved a plea agreement that specified the prosecutor "`shall have authority and discretion to determine whether or not [the witness] testified truthfully and completely'" and, if requested by the witness, a superior court judge "`shall determine whether or not there has been an abuse of such authority and discretion.' " In reviewing the quoted provision to determine whether the plea agreement compelled the witness to testify in a particular manner and thus violated the defendant's right to a fair trial, the Supreme Court found the language regarding judicial review "troubling." In particular, the court noted that the controlling legal principles "are clear: if [the witness] testified fully and truthfully, he is entitled to the benefit of his bargain; if not, the district attorney has discretion to revoke the bargain. We do not believe they can be altered by contract so as to limit the court to reviewing the district attorney's discretionary finding as to whether [the witness] told the truth." Although the court counseled against including "language in a plea bargain which purports to give the district attorney, and not the court, discretion to determine whether the witness testified truthfully" it nevertheless found that the language did not result in reversible error because the language did not "present[ ] any significant risk of inducing [the witness] to give false or incomplete testimony." [¶] The same result pertains here. To the extent the district attorney rather than the court was empowered in this case to determine whether Eric's testimony was truthful, nothing in the record suggests that provision posed any significant risk of inducing him to testify falsely or incompletely. The prosecution and defense questioned Eric thoroughly about the events at issue in this case and about the plea agreement. In doing so, they exposed Eric's impetus to testify and also revealed any inconsistencies in his testimony and the earlier statement. Consequently, we must conclude here, as the Supreme Court did in People v. Bittaker, that although "troubling" the provision of the agreement that empowered the district attorney to determine whether Eric was telling the truth, if error, did not violate [petitioner's] right to a fair trial. Lodgment no. 4 at 7-9 (some citations omitted). There is no merit to petitioner's claim since "there is no Supreme Court case law establishing that consistency clauses [in plea agreements] violate due process or any other constitutional provision."[13]Cook, 538 F.3d at 1017. Thus, the California Supreme Court's denial of Ground One 1058 is neither contrary to, nor an unreasonable application of, clearly established federal law. Id.; Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654, 166 L. Ed. 2d 482 (2006); see also Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.2004) ("If there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law."), cert. denied, 543 U.S. 1191, 125 S. Ct. 1408, 161 L. Ed. 2d 197 (2005). VIII A federal court, in conducting habeas review, is limited to deciding whether a conviction violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991); Engle v. Isaac, 456 U.S. 107, 119, 102 S. Ct. 1558, 1567, 71 L. Ed. 2d 783 (1982). Federal habeas corpus relief "does not lie for errors of state law[,]" Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990); McGuire, 502 U.S. at 67, 112 S.Ct. at 480; see also Dugger v. Adams, 489 U.S. 401, 409, 109 S. Ct. 1211, 1216-17, 103 L. Ed. 2d 435 (1989) ("[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution."), and the petitioner "may not transform a state-law issue into a federal one merely by asserting a [constitutional] violation." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881, 118 S. Ct. 208, 139 L. Ed. 2d 144 (1997). Here, Ground Three, in which petitioner claims the trial court erroneously admitted testimony of threats witnesses received in violation of his constitutional right to a fair trial, is not a cognizable claim. Although petitioner cursorily refers to the Sixth Amendment or right to a fair trial, the gravamen of his claim is that the trial court abused its discretion and improperly applied California Evidence Code § 352, and petitioner cites only state law cases to support his claim. Petition at 6-6b; Reply at 20-21. Thus, Ground Three is not cognizable since federal habeas relief is available "only for constitutional violation, not for abuse of discretion." Williams v. Borg, 139 F.3d 737, 740 (9th Cir.), cert. denied, 525 U.S. 937, 119 S. Ct. 353, 142 L. Ed. 2d 292 (1998). IX To review the sufficiency of evidence in a habeas corpus proceeding, the Court must determine whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jeffers, 497 U.S. at 781, 110 S.Ct. at 3102-03 (citation omitted); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). All evidence must be considered in the light most favorable to the prosecution, Lewis, 497 U.S. at 782, 110 S.Ct. at 3103; Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, and if the facts support conflicting inferences, reviewing courts "must presumeeven if it does not affirmatively appear in the recordthat the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir.2004) (per curiam); Turner v. Calderon, 281 F.3d 851, 881-82 (9th Cir.2002). Furthermore, under AEDPA, federal courts must "apply the standards of Jackson with an additional layer of deference."[14]Juan H. v. Allen, 408 F.3d 1262, 1059 1274 (9th Cir.2005), cert. denied, 546 U.S. 1137, 126 S. Ct. 1142, 1145, 163 L. Ed. 2d 1000 (2006); Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir.2009). These standards are applied to the substantive elements of the criminal offenses under state law. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.) (en banc), cert. denied, 543 U.S. 956, 125 S. Ct. 415, 160 L. Ed. 2d 318 (2004). A. Ground Four (a)Gang Enhancement (P.C. § 186.22(b)(1)): The California Street Terrorism Enforcement and Prevention Act ("STEP Act"), P.C. §§ 186.20 et seq., is a statutory scheme enacted to further the "eradication of criminal activity by street gangs." P.C. § 186.21 (2000). "To warrant a gang enhancement, California law requires the prosecutor to prove two things. First, the prosecutor must demonstrate that the defendant committed a felony `for the benefit of, at the direction of, or in association with [a] criminal street gang.'[[15]] Cal.Penal Code § 186.22(b)(1). Second, the prosecutor must show that the defendant committed the crime `with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" Briceno, 555 F.3d at 1078 (footnote added); P.C. § 186.22(b)(1) (2000).[16] "[T]he second step is not satisfied by evidence of mere membership in a criminal street gang alone." Id.; see also People v. Morales, 112 Cal. App. 4th 1176, 1198, 5 Cal. Rptr. 3d 615 (2003) ("[S]pecific intent to benefit the gang is not required. What is required is the `specific intent to promote, further, or assist in any criminal conduct by gang members . . . .'" (emphasis in 1060 original)). "[T]o prove the elements of the criminal street gang enhancement, the prosecution may ... present expert testimony on criminal street gangs." Hernandez, 33 Cal.4th at 1047-48, 16 Cal.Rptr.3d at 885-86, 94 P.3d 1080; Gardeley, 14 Cal.4th at 617-20, 59 Cal.Rptr.2d at 363-66, 927 P.2d 713. First, petitioner claims there was no evidence he was a member of the Raymond Street Crips. However, as discussed herein, this is not true and, in any event, "gang membership is not an element [of the gang enhancement]; nor does one need to be a gang member or associate to commit an act for the benefit of, in association with, or at the direction of a street gang." People v. Valdez, 58 Cal. App. 4th 494, 505, 68 Cal. Rptr. 2d 135 (1997). Second, petitioner claims there was no evidence his actions were in furtherance of gang activity.[17] The Court disagrees. Eric Thomas, a long-standing member of the Raymond Street Crips gang testified as a quasi-expert witness, as well as a percipient witness. See, e.g., RT 576:13-14 ("Within the gang culture, [Eric's] more than capable of rendering an opinion."); RT 1448:20-22 ("You heard from Eric Thomas. He was basically a gang expert...."). Eric testified he had been a gang member for eight or nine years, RT 506:9-507:11, as was petitioner, who was known as "Crazy D." RT 494:7-19, 507:12-510:3. The gang, which is known universally as "Raymond Street Crips" or simply as "Raymond," RT 504:17-28, 506:1-8, is well known in Los Angeles, RT 537:16-17, its turf is located on several blocks around 120th Street in Inglewood, California, RT 537:4-538:4, and, as a Crips gang, its identifying color is blue. RT 538:26-27. Eric described the gang's activities as including robbery, shootings, selling drugs and assaults aimed at bolstering the gang reputation or in retaliation for some wrong. RT 515:22-517:19, 529:1-533:25. Eric further testified that the gang has as many as 100 or more members, RT 536:12-23, including himself, Vanpool and petitioner, who was an O.G. or "original gangster."[18] RT 494:7-19, 506:9-507:11, 507:12-510:3, 533:4-8, 533:26-534:6, 543:26-546:7. Eric stated the assault on Vincent was a Raymond Street Crips gang activity, with gang members, including petitioner, Vanpool and others intentionally confronting and fighting Vincent, in retaliation or because petitioner or "Crazy D got his butt kicked over at Mel's and possibly over at Victor Street." RT 574:6-577:10. This evidence is more than sufficient to demonstrate petitioner "committed the crime `with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" Briceno, 555 F.3d at 1078; People v. Romero, 140 Cal. App. 4th 15, 20, 43 Cal. Rptr. 3d 862 (2006). Third, to the extent petitioner claims there is insufficient evidence that the Raymond 1061 Street Crips is a "criminal street gang," as defined in P.C. § 186.22, his claim is without merit. As set forth above, California law defines a "criminal street gang" as an ongoing association of at least three people with a common name or identifying sign or symbol, which "has as one of its primary activities the commission of one or more of the criminal acts" enumerated in P.C. § 186.22(e), and whose members, individually or collectively, "have engaged in a `pattern of criminal gang activity' by committing, attempting to commit, or soliciting" at least two predicate offenses within the statutory period.[19]Hernandez, 33 Cal.4th at 1047, 16 Cal. Rptr.3d at 885, 94 P.3d 1080 (citation and some internal quotation marks omitted); Gardeley, 14 Cal.4th at 616-17, 59 Cal. Rptr.2d at 363, 927 P.2d 713. Thus, under P.C. § 186.22(e), "[t]he term `pattern of criminal gang activity' only requires: the attempted or completed commission or a conspiracy to commit two or more of the... offenses [enumerated in P.C. § 186.22(e)]; one of the offenses must have occurred after September 26, 1988, the effective date of [the statute]; the last of the two requisite offenses must have occurred within three years after the first crime; [and] the predicate crimes must have either been committed on separate occasions or by at least two different persons." People v. Augborne, 104 Cal. App. 4th 362, 374-75, 128 Cal. Rptr. 2d 258 (2002); People v. Loeun, 17 Cal. 4th 1, 8-10, 69 Cal. Rptr. 2d 776, 780-81, 947 P.2d 1313 (1998), cert. denied, 523 U.S. 1129, 118 S. Ct. 1820, 140 L. Ed. 2d 957 (1998). For the purpose of establishing a "pattern of criminal gang activity," the predicate offenses need not be "gang related," and the charged offense may serve as a predicate offense. Gardeley, 14 Cal.4th at 621-25, 59 Cal.Rptr.2d at 366-69, 927 P.2d 713; see also Loeun, 17 Cal.4th at 11, 69 Cal. Rptr.2d at 781, 947 P.2d 1313 ("[T]he prosecution can establish the requisite `pattern' exclusively through evidence of crimes committed contemporaneously with the charged incident."). Here, Eric Thomas testified he pled guilty to assault with a deadly weapon with a gang enhancement for his role in the stabbing of Vincent. RT 494:27-497:22. Moreover, the trial court took judicial notice that: (1) on November 18, 1996, Donny Ray McKinley was convicted of firstdegree murder, four counts of attempted robbery, and assault with a deadly weapon, all of which occurred on January 16, 1995, he personally used a handgun in the commission of the offenses, and the murder occurred during the commission of a robbery and commercial burglary; (2) on December 23, 1997, Donald Leon Hammond was convicted of two counts of robbery, both crimes occurring on December 6, 1997, with both crimes occurring at the direction of, or for the benefit of a criminal street gang with the specific intent to promote, further or assist in any criminal conduct of the gang members; (3) on April 8, 1993, Wilfred Clyde Smith was convicted of attempted robbery for a crime occurring on January 23, 1993; (4) on March 1, 1994, Wilfred Clyde Smith was convicted of robbery for a crime occurring on January 19, 1994; and (5) on March 31, 1994, Eric Thomas was convicted of attempted robbery for a crime occurring on January 22, 1994. RT 1299:16-1302:23; see also RT 540:12-541:27, 717:11-20 (Eric Thomas admitted he was convicted of armed robbery on March 31, 1994). Eric Thomas also testified: (1) he "believe[d]" Donny Ray 1062 McKinley was a Raymond Street Crips gang member in 1995, RT 714:20-28; (2) Donald Leon Hammond was a Raymond Street Crips gang member when he committed the robberies in 1997, RT 716:16-717:10; and (3) Wilfred Smith was a Raymond Street Crips gang member who had been in the gang longer than Thomas. RT 548:23-549:24. Based on this evidence, "the prosecution established the requisite `pattern of criminal gang activity' consisting of `two or more' statutorily enumerated offenses that were `committed on separate occasions, or by two or more persons.'" Gardeley, 14 Cal.4th at 625, 59 Cal.Rptr.2d at 368-69, 927 P.2d 713. Therefore, there was sufficient evidence to show the assault and stabbing of Vincent Thomas was associated with, at the direction of and to benefit the Raymond Street Crips gang, and was committed with the specific intent to retaliate against Vincent Thomas for the earlier beating of petitioner, and to bolster the Raymond Street Crips gang's reputation after the earlier fights; thus, promoting the interests of the gang and its advancement. Fellows v. Dexter, 551 F. Supp. 2d 969, 981-82 (C.D.Cal.2008). B. Ground Ten 1. Assault With A Deadly Weapon (P.C. § 245(a)(1)): P.C. § 245(a)(1) "punishes assault `with a deadly weapon [or instrument] other than a firearm or by any means of force likely to produce great bodily injury.'" People v. Miles, 43 Cal. 4th 1074, 1084, 77 Cal. Rptr. 3d 270, 278, 183 P.3d 1236 (2008) (quoting P.C. § 245(a)(1)). A deadly weapon within the meaning of P.C. § 245(a)(1) "is `any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury[,]'" People v. Aguilar, 16 Cal. 4th 1023, 1028-29, 68 Cal. Rptr. 2d 655, 658, 945 P.2d 1204 (1997) (citation omitted); In re R.P., 176 Cal. App. 4th 562, 567, 97 Cal. Rptr. 3d 822 (2009), which obviously can include a knife. See, e.g., People v. Pruett, 57 Cal. App. 4th 77, 86, 66 Cal. Rptr. 2d 750 (1997) ("Nearly all knives have sharp edges and points which are designed to cut things, and knives can beand all too often are employed to cut-and kill-people."); People v. Herd, 220 Cal. App. 2d 847, 850, 34 Cal. Rptr. 141 (1963) ("Although not an inherently deadly weapon, a knife becomes such when used in such a manner as to cause severe bodily injury."). Under California law an "aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." People v. Jurado, 38 Cal. 4th 72, 136, 41 Cal. Rptr. 3d 319, 371, 131 P.3d 400 (2006) (citations and internal quotation marks omitted), cert. denied, 549 U.S. 956, 127 S. Ct. 383, 166 L. Ed. 2d 276 (2006); People v. Prettyman, 14 Cal. 4th 248, 259, 58 Cal. Rptr. 2d 827, 832-33, 926 P.2d 1013 (1996); see also P.C. § 31.[20] The requisite intent to render such aid must be formed prior to or during the commission of the crime. People v. Cooper, 53 Cal. 3d 1158, 1164, 282 Cal. Rptr. 450, 455, 811 P.2d 742 (1991); People v. Beeman, 35 Cal. 3d 547, 558, 199 Cal. Rptr. 60, 66-67, 674 P.2d 1318 (1984). Whether an individual is an aider and abettor depends on whether the crime committed by the perpetrator was reasonably 1063 foreseeable. People v. Hayes, 21 Cal. 4th 1211, 1271 n. 20, 91 Cal. Rptr. 2d 211, 253 n. 20, 989 P.2d 645 (2000), cert. denied, 531 U.S. 980, 121 S. Ct. 431, 148 L. Ed. 2d 438 (2000); see also People v. Karapetyan, 140 Cal. App. 4th 1172, 1177, 45 Cal. Rptr. 3d 245 (2006) ("[T]he question is not whether the aider and abettor actually foresaw the ... crime, but whether, judged objectively, it was reasonably foreseeable." (citation and internal quotation marks omitted; emphasis in original)). Here, petitioner was convicted of violating P.C. § 245(a)(1) on an aiding and abetting theory. At trial, Vincent Thomas identified the group that pursued and attacked him in the park as being the same group involved in the fights at Mel's Liquor and at Victor Street, RT 91:18-94:10, and Tracylin Crump testified that both petitioner and Vanpool were in this group. RT 995:12-1000:14, 1003:14-17. Eric Thomas testified that the assault on Vincent Thomas was a Raymond Street Crips gang activity, with gang members, including petitioner, Vanpool, and others intentionally confronting and fighting Vincent in retaliation or because petitioner or "Crazy D got his butt kicked over at Mel's and possibly over at Victor Street."[21] RT 574:6-577:10. Indeed, prior to the stabbing of Vincent Thomas, while petitioner was still on Victor Street, petitioner stated, "`All you Niggas out here in Moreno Valley claimin' Raymond who never been in the hood are gonna get put on the hood or get smoked[,]'" and petitioner referred to Vincent and his friends as "busters," RT 314:18-315:11, 325:16-327:6, a derogatory term meaning a "low-class wanna-be thug[,]" someone claiming to be something he's not, or "`[s]omeone who does not follow the rules of gang-bangin,'" RT 144:3-8, 590:25-591:9, while Crump heard petitioner say "it wasn't over, that they were gonna get them."[22] RT 1015:21-28. Vincent Thomas testified a female stabbed him multiple times with a knife, RT 47:26-52:23, 93:12-94:16, 104:1-105:9; see also RT 764:19-775:19 (testimony of emergency room physician who treated Vincent describing the nature and extent of Vincent's injuries), and told investigator Carl Smith it was Vanpool who stabbed him, RT 864:9-865:2, and both Eric and Crump testified that Vanpool had a knife and stabbed Vincent. RT 572:17-573:22. Mack stated, however, that petitioner had an "ice pick knife thing" and "pok[ed]" Vincent before handing it to Vanpool, who "did the rest." RT 341:24-28. Eric stated that while Vincent was being attacked, he heard people saying "Raymond" and "Raymond Crip, whew, whew[,]" RT 574:15-23, while Crump said Vanpool told Vincent "[d]on't ever claim Raymond again[,]" RT 1036:22-1037:2, and Mack testified petitioner told Vincent not to claim his hood anymore and kicked Vincent. RT 348:26-349:6. Crump also testified that while Vincent was being stabbed, she saw petitioner in the park pointing a gun toward the park's "play area," RT 1033:23-1035:23, 1038:22-1040:3, 1286:22-1287:13, which was close to where Vincent was knocked to the ground and being beaten and stabbed. RT 94:12-16, 568:24-569:23. Eric Thomas testified that when he initially saw petitioner, petitioner had his arm extended, was holding what Eric believed was a gun, and was yelling while people were running away from him, RT 566:17-568:9, and Vincent stated that 1064 while he was on the ground being beaten and stabbed, petitioner had his back to the attack and was pointing his gun in an effort to keep Vincent's brother and friends from helping Vincent.[23] RT 108:26-110:8. Furthermore, Mack testified that petitioner stuck a gun in Vincent Thomas's face, but the clip dropped out.[24] RT 455:7-458:7. Additionally, Vincent told Smith that after the fight at Mel's Liquor, "Big Crazy D" told Vincent and his friends that he was going to get a gun, and, later, at the park, "Big Crazy D" pulled up in a car, chased Vincent with a gun until Vincent was cornered, beaten and stabbed. RT 865:3-866:17, 867:22-869:17. Eric Thomas testified that petitioner was known as "Crazy D." RT 494:12-17. After the incident, Vanpool stole the truck Vincent's brother, a member of the Grape Street Wattsa rival gang to the Raymond Street Cripswas driving, and the truck was later found with the car stereo missing, the motor no longer working, and covered in spray paint, including "RA", standing for "Raymond Avenue Crips," "Fucc [sic] Simpin Sam, rest in pain, Buster[,]" which is "disrespect[ing]" a dead Grape Street Watts gang member, and "GSW" which was crossed out with a "187" next to it, which is a sign of disrespect to the Grape Streets Watts. RT 115:24-117:3, 206:12-208:19, 583:21-584:16, 589:14-592:4, 593:7-594:3. Since the testimony of a single witness is sufficient to uphold a conviction, Bruce, 376 F.3d at 957-58; United States v. Larios, 640 F.2d 938, 940 (9th Cir.1982), and a federal court in a habeas corpus proceeding cannot redetermine the credibility of witnesses when the federal court did not observe those witnesses' demeanor, Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843, 851, 74 L. Ed. 2d 646 (1983), the evidence discussed herein is more than sufficient to support petitioner's conviction for assault with a deadly weapon. See, e.g., People v. Hoang, 145 Cal. App. 4th 264, 275-76, 51 Cal. Rptr. 3d 509 (2006) (Sufficient evidence supported defendant's conviction for assault with a deadly weapon on an aiding and abetting theory when "the evidence showed defendant responded to a verbal slight against his girlfriend by bringing two carloads of gang members to confront [the victim] .... As the standoff intensified, defendant made no move either to defuse the situation or to leave. To the contrary, defendant approached [the victim], then followed him after he was stabbed. The evidence was sufficient to show defendant had knowledge of the criminal purpose of the individual who actually stabbed [the victim], and acted with the intent or purpose to commit assault with a deadly weapon or to encourage or facilitate that crime."). 2. Felon In Possession Of A Firearm (P.C. § 12021(a) (1)):[25] A violation of P.C. § 12021(a)(1) requires proof of a "conviction of a felony 1065 and ownership, possession, custody or control of a firearm. Knowledge is also an element of the offense." People v. Jeffers, 41 Cal. App. 4th 917, 922, 49 Cal. Rptr. 2d 86 (1996) (citations omitted). Here, petitioner admitted he had previously been convicted of a felony, RT 22:6-23:27, and Vincent Thomas, Crump, and Mack all testified petitioner possessed a gun during the attack on Vincent. RT 108:26-110:8, 455:7-458:7, 865:3-866:17, 867:22-869:17, 1033:23-1035:23, 1038:22-1040:3, 1286:22-1287:13. This is more than sufficient evidence to support petitioner's conviction of being a felon in possession of a firearm. People v. Williams, 170 Cal. App. 4th 587, 624-25, 88 Cal. Rptr. 3d 401 (2009). Since there is no merit to petitioner's claims of insufficient evidence, the California Supreme Court's denial of Grounds Four (a) and Ten is neither contrary to, nor an unreasonable application of, federal law. X In Ground Four (b), petitioner claims the trial court "erred" in admitting extensive evidence of his gang membership, which violated his due process right to a fair trial. However, since evidence of petitioner's gang membership was clearly relevant to the gang enhancement charge against petitioner, as well as petitioner's motive in committing the crime, petitioner was not denied due process of law when evidence regarding his gang membership was admitted into evidence. Windham v. Merkle, 163 F.3d 1092, 1104 (9th Cir.1998); see also People v. Hernandez, 33 Cal. 4th 1040, 1049, 16 Cal. Rptr. 3d 880, 887, 94 P.3d 1080 (2009) ("[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliationincluding evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the likecan help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime."); People v. Funes, 23 Cal. App. 4th 1506, 1518, 28 Cal. Rptr. 2d 758 (1994) ("Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent. Here, the evidence of gang membership and activity was clearly relevant to defendant's motive for attacking Sanchez and his intent in doing so." (citations omitted)); Lopez v. Clark, 2009 WL 3417784, 7 (C.D.Cal.) ("Evidence of Petitioner's gang membership was highly relevant at trial because Petitioner was charged with active participation in a criminal street gang ..., as well as with a criminal street gang enhancement on the underlying first degree murder charge.... It is difficult to conceive how the prosecution would have been able to prove the charge of active participation in a street gang and the gang enhancement without introducing evidence of Petitioner's membership in the Pacoima Flats criminal street gang."). Thus, there is no merit to Ground Four (b), and the California Supreme Court's denial of this claim is neither contrary to, nor an unreasonable application of, federal law. XI Prosecutorial misconduct rises to the level of a constitutional violation only where it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974)); Comer v. Schriro, 480 F.3d 960, 988 (9th Cir.), cert. denied, 550 U.S. 966, 127 S. Ct. 2455, 167 L. Ed. 2d 1147 (2007); 1066 Drayden v. White, 232 F.3d 704, 713 (9th Cir.2000), cert. denied, 532 U.S. 984, 121 S. Ct. 1630, 149 L. Ed. 2d 491 (2001). The petitioner claims in Ground Five that the prosecutor either misled or coerced witness LaJoyce Mack into recanting her prior testimony and testifying instead that she saw petitioner, who was known as "Crazy D," with a gun. There is no merit to this claim. Mack initially testified Eric Thomas was the person who had the gun at Adrienne Mitchell Park. RT 340:4-347:24. However, she later realized she had made a mistake, and changed her testimony, as follows: [DA]: Do you recall yesterday, after testifying and leaving this courtroom, going back to the district attorney's office with Melissa Hernandez, a woman from my office who has been giving you a ride to court everyday? A: Yes. [DA]: After you went back to the office, did you come out of the office and approach me on the street corner with me talking to some judge with a beard? A: Yes. [DA]: Do you recall what you said to me? A: Yes. [DA]: What did you say to me? A: I asked you the name ofI asked you who was the name of Crazy D. [DA]: You asked me who Crazy D was? A: Yes. [DA]: What did I tell you? A: He was the gentlemen [sic] sitting in court. [DA]: Why did you ask me that question? A: Because it dawned on me, ... that I didn't know what Eric Thomas' nickname was. And as far as I knew, his name was Crazy D. That's all I know. [DA]: What are you saying? A: I pretty much made a mistake. [DA]: In what respect? A: As far as what I said Eric Thomas had the gun. [DA]: So you're saying Eric Thomas didn't have the gun? A: No. As far as I knew, his name was Crazy D. As far as I knew, he was the one who had the gun. RT 455:2-456:3 (emphasis added). The prosecutor then had Eric Thomas enter the courtroom, RT 460:4-28, and Mack clearly stated Eric Thomas was not the person she had previously identified to the police as having the gun. RT 461:15-25. Instead, she picked out petitioner from a photographic lineup as the person with the gun. RT 461:20-22. "The fact that a witness may have made an earlier inconsistent statement ... does not establish that the testimony offered at trial was false." United States v. Croft, 124 F.3d 1109, 1119 (9th Cir.1997); see also Allen, 395 F.3d at 995 (9th Cir.) (inconsistencies in testimony do not establish witness' untruthfulness or that prosecutor had any basis to believe testimony was false). Here, petitioner has presented absolutely no evidence demonstrating the prosecutor presented false testimony to the jury or that he induced Mack to change her testimony. Therefore, there is no merit to this prosecutorial misconduct claim. Allen, 395 F.3d at 995; Croft, 124 F.3d at 1119; see also United States v. Geston, 299 F.3d 1130, 1135 (9th Cir.2002) ("At most, two conflicting versions of the incident were presented to the jury. It was within the province of the jury to resolve the disputed testimony."); United States v. Baker, 850 F.2d 1365, 1371-72 (9th Cir.1988) ("[T]he record here at most shows only a prior inconsistent statement by Hanson.... We cannot presume the prosecutor knew that the prior statement was true, but used it anyway. Given [the 1067 defendant's] failure to produce any evidence of knowing use of perjured testimony, we must reject his argument."). Since Ground Five is without merit, the California Supreme Court's denial of this claim is neither contrary to, nor an unreasonable application of, federal law. XII A faulty jury instruction will constitute a violation of due process only where the instruction by itself so infected the entire trial that the resulting conviction violates due process. Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830, 1832, 158 L. Ed. 2d 701 (2004); McGuire, 502 U.S. at 71-72, 112 S.Ct. at 482. The instruction must be more than merely erroneous; rather, petitioner must show there was a "`reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution.'" McNeil, 541 U.S. at 437, 124 S.Ct. at 1832 (citations omitted); Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990); see also Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973) ("Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly faulty] instruction was used, it must be established not merely that the instruction is undesirable, erroneous or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment."). Further, "[i]t 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." McGuire, 502 U.S. at 72, 112 S.Ct. at 482 (citation omitted); Naughten, 414 U.S. at 147, 94 S.Ct. at 400. In Ground Eight, petitioner claims the court misled the jury during deliberations by the manner in which it answered a question from the jury. This claim is without merit. The facts underlying this claim are, as follows: On January 30, 2002, the jury sent a note to the court during deliberations, asking: Did Mollika [sic] Jernigan, during her testimony, ever identify the Defendent [sic] or Ratliff as the one hanging out the car window with the gun[?] CT 309. The prosecutor wanted the witness's testimony read back to the jury, RT 1600:9-13, but after reviewing the transcript and discussing the matter with defense counsel, the court[26] called the jury into the courtroom, RT 1601:2-1603:11, and stated: [T]he answer I am going to give you is that the witness, Mollieka Jernigan, when she was testifying during the course of the trial, never identified the individual who was hanging out the car window with the gun, whether it be by using the term the "defendant" or "Ratliff," or anything else for that matter. RT 1602:17-22. The court further stated: I am saying the court reporter has gone back through her notes during the course of Miss Jernigan's testimony during the trial, and that at no point did she specifically identify in her testimony who the person was hanging out the car window with the gun. [¶] All right. Now that doesn't meanYou're supposed to look at the evidence in its entirety and not look at one witness' testimony in a vacuum, all right? All of the evidence is to be viewed in conjunction with the rest of it. So, with respect to Miss Jernigan's testimony, or with any witness' 1068 testimony, that testimony should be viewed in conjunction with all the other evidence, all the other witnesses' testimony. [¶] You can't just look at a portion of one person's testimony or simply one person's testimony. You have to evaluate it all in the big picture, in the whole context of the case, and see how it fits in and if it relates or it doesn't, see if it supports an issue or it doesn't, or contradicts it. Those are all the things that you have to work through. You as jurors are independent judges of the facts. And once you determine what the facts are, or what the evidence is, then you apply the law that the judge instructed you on. And by doing that, hopefully, arrive at a verdict, okay? RT 1604:19-1605:14. Defense counsel objected to this statement, and requested the court reread CALJIC no. 2.27[27] to the jury; however, the court overruled the objection, noting the jury had all the jury instructions, including CALJIC no. 2.27. RT 1606:15-1608:4. Petitioner's motion for a new trial was based on the foregoing. CT 303-26; RT 1658:11-1661:12. However, the trial court denied the motion, stating: Now let me address [the substitute judge's] comments. I would characterize them as unfortunate. And [at] the risk of sounding like I am second-guessing a colleague, had I been in town that day, I would not haveIn fact, I would have simply directed the court reporter to go into the deliberation room and read the entire testimony of Miss Jernigan. But that was not done here, so I'm left with the statements made to the jury by [ the Judge]. [¶] And I have to agree with [the prosecutor] that while it sounds like he's telling them to disregard CALJIC 2.27, that he isn't really. [¶] CALJIC 2.27 was given to the jury by me, and I will quote that instruction in full. [¶] "You should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness, which you believe, concerning any fact is sufficient for the proof of that fact." [¶] And I emphasize the last sentence, "You should carefully review all the evidence upon which the proof of that fact depends." [¶] CALJIC 2.90, the Reasonable Doubt instruction. The second paragraph and the definition of reasonable doubt: [¶] "Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition which they cannot say they feel an abiding conviction of the truth of the charge." [¶] And perhaps in an awkward phrasing, that is, in essence, what [the substitute judge] is telling the jury in the [response]. [¶] Finally, in CALJIC 1.01 telling or directing the jury how to approach the instructions. And that instruction reads, in pertinent part, "Do not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in light of all the others." [¶] So, we have instructions that were given to the jury. Not only were they given orally, but they had copies of these instructions to refer to in the deliberation 1069 room. [¶] We have instructions that they are to consider all the evidence. We have instructions that they are to consider all the instructions. And I cannot conclude that [the substitute judge's] comments, however inartfully phrased, tell the jury to do anything other than that. [¶] And so, for those reasons, I cannot conclude that a miscarriage of justice was occasioned by those comments by [ the substitute judge]. [¶] The motion for new trial, based on his dialogue to the jury, is denied. RT 1678:6-1680:2. As the trial court found, the court did not misstate California law, which requires the jury to "consider all the evidence on which the proof of any fact depends." CT 202 (CALJIC no. 2.27); see also CT 210 (CALJIC no. 2.90, which defines reasonable doubt as "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition which they cannot say they feel an abiding conviction of the truth of the charge." (emphasis added)). Moreover, the trial court instructed the jury to consider the jury instructions "as a whole and each in light of the others" without "singl[ing] out any particular sentence or any individual point or instruction[,]" CT 184 (CALJIC no. 1.01), and "[the] jury is presumed to follow its instructions," Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 733, 145 L. Ed. 2d 727 (2000); Zafiro v. United States, 506 U.S. 534, 540-41, 113 S. Ct. 933, 939, 122 L. Ed. 2d 317 (1993); Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1707, 95 L. Ed. 2d 176 (1987), and to attend to the particular language of an instruction. United States v. Olano, 507 U.S. 725, 740, 113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993); Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S. Ct. 1965, 1976 n. 9, 85 L. Ed. 2d 344 (1985). Petitioner has not shown this presumption is unwarranted here. Thus, the California Supreme Court's denial of Ground Eight was neither contrary to, nor an unreasonable application of, clearly established federal law. XIII The prosecution's willful or inadvertent suppression of evidence favorable to the accused violates due process when the evidence is material to guilt or punishment, Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272, 157 L. Ed. 2d 1166 (2004); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963), whether the evidence is exculpatory or impeaching. Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S. Ct. 2188, 2190, 165 L. Ed. 2d 269 (2006) (per curiam) (citations and internal quotation marks omitted); Strickler, 527 U.S. at 280, 119 S.Ct. at 1948. The petitioner has the "burden of showing that withheld evidence is material[,]" United States v. Si, 343 F.3d 1116, 1122 (9th Cir.2003); United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir.), cert. denied, 516 U.S. 945, 116 S. Ct. 383, 133 L. Ed. 2d 306 (1995), and this Court must assess whether the withheld evidence is material "in the context of the entire record."[28]United States v. Agurs, 427 1070 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342 (1976); United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir.2007) (en banc). The Brady rule applies when "the prosecution's case includes perjured testimony and . . . the prosecution knew, or should have known, of the perjury." Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. Thus, "a conviction obtained by the [prosecutor's] knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U.S. at 103, 96 S.Ct. at 2397 (footnotes omitted); Hayes v. Brown, 399 F.3d 972, 978 (9th Cir.2005) (en banc); see also Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) ("[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `rudimentary demands of justice.'"); Miller v. Pate, 386 U.S. 1, 7, 87 S. Ct. 785, 788, 17 L. Ed. 2d 690 (1967) ("[T]he Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.").[29] "To prevail on a claim based on [the prosecutor's knowing use of false testimony], the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material." United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.2003); Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959). In Ground Nine, petitioner claims the prosecutor "suppressed" or withheld exculpatory information about a potentially helpful witness named Rashima Ward. There is no merit to this claim. The facts underlying this claim are set forth in the motion for a new trial petitioner filed after the jury verdict. CT 303-08, 352-60. Initially, the hearing on the motion was set for April 17, 2002; however, petitioner requested a continuance, and the hearing was continued to May 10, 2002. CT 347. On May 10, 2002, petitioner requested another continuance, and the hearing was continued to June 14, 2002. CT 351. On June 12, 2002, petitioner filed a legal memorandum, his defense attorney's declaration,[30] his investigator's declaration[31] and Ward's declaration.[32] CT 352-60. 1071 On June 14, 2002, the trial court stated it would like to see Ward and hear her testimony, and continued the hearing on the motion for a new trial to July 19, 2002, so defense counsel could produce Ward. CT 364; RT 1655:23-25. However, Ward was not at the hearing on July 19, 2002, and, after hearing oral argument, RT 1661:13-1670:9, 1670:27-1677:5, the trial court found petitioner had not shown a Brady violation, stating: Well, I don't feel there's a Brady violation here. And the only way I could reach the conclusion that there was is if I believed what she [Ward] says in the declaration. And I have been attempting to avoid basing a theory or basing my ruling on the contents of that declaration, but at this point I don't see any way around it. * * * Let me approach this from two different angles: One, let's assume everything in there [the Ward declaration] is true. Then I have to look at the overall picture, the big picture, so to speak. Assuming I would accept everything she says as true, does the substantial evidence produced at the trial justify the jury's verdict? In other words, put another way, would there likely be a verdict more favorable to the defendant? [¶] And I conclude that there would not be. [¶] There is substantial evidence to support the jury's verdict, even assuming that I were to accept Miss Ward's statements. But that's assuming I would accept them as being true. I don't. I find her statements to be unbelievable, and that's even without any cross-examination of her. Her conduct all along, in attempting to avoid process and not cooperating with either side, suggests to me that she is someone who is not to be believed or someone who at least is a question of character and credibility. [¶] So, the information contained in her declaration I find to be lacking in credibility, and certainly lacking in the kind of credibility that would be required for me to conclude there was justification for granting of a new trial. 1072 [¶] So, on that basis, motion for new trial is denied. RT 1672:15-21, 1677:10-1678:4; CT 379. Here, even if this Court were to overlook the Superior Court's negative credibility determination, petitioner has failed to demonstrate the prosecution withheld material evidence. Ward merely stated in her declaration that although she saw petitioner at the park while Vincent Thomas was being attacked, she "did not see [petitioner]... with a gun...." CT 360:8-12; 359:12-14. On the other hand, several other witnesses testified at trial that they did see petitioner with a gun. See, e.g., RT 108:26-110:8, 455:7-458:7, 865:3-866:17, 867:22-869:17, 1033:23-1035:23, 1038:22-1040:3, 1286:22-1287:13. Because "there is [no] reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," the prosecutor's failure to inform defense counsel of Ward's real name before trial is not material. Youngblood, 547 U.S. at 870, 126 S.Ct. at 2190 (internal citation and quotations omitted); Hovey v. Ayers, 458 F.3d 892, 921 (9th Cir.2006). Since Ground Nine is without merit, the California Supreme Court's denial of this claim is neither contrary to, nor an unreasonable application of, federal law. XIV To succeed on a claim of an ineffective assistance of trial counsel, a habeas petitioner must demonstrate his attorney's performance was deficient and that the deficient performance prejudiced the defense. Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360 (2005); Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 1511, 146 L. Ed. 2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The petitioner bears the burden of establishing both components. Williams, 529 U.S. at 390-91, 120 S.Ct. at 1511-12; Smith v. Robbins, 528 U.S. 259, 285-86, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756 (2000). "Deficient performance is performance which is objectively unreasonable under prevailing professional norms." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.1990) (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2064). Prejudice "focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993); Williams, 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17. To establish deficient performance, the petitioner must show his counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Williams, 529 U.S. at 391, 120 S.Ct. at 1511. In reviewing trial counsel's performance, the court will "strongly presume[] [that counsel] rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 5, 157 L. Ed. 2d 1 (2003); Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305 (1986). Only if counsel's acts or omissions, examined within the context of all the surrounding circumstances, were outside the "wide range" of professionally competent assistance, will the petitioner meet this initial burden. Morrison, 477 U.S. at 386, 106 S.Ct. at 2588; Strickland, 466 U.S. at 690, 104 S.Ct. at 2068. If the petitioner makes this showing, he must then establish there is a "reasonable probability that, but for counsel's unprofessional errors, the result of 1073 the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Rompilla, 545 U.S. at 390, 125 S.Ct. at 2467; Williams, 529 U.S. at 391, 120 S.Ct. at 1511-12. The errors must not merely undermine confidence in the outcome of the trial, but must result in a fundamentally unfair proceeding. Williams, 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17; Lockhart, 506 U.S. at 369, 113 S.Ct. at 842-43. However, a court need not determine whether counsel's performance was deficient before examining the prejudice the alleged deficiencies caused the defendant. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed."); Smith, 528 U.S. at 286 n. 14, 120 S.Ct. at 764 n. 14 (same). a. Properly Investigate and Put On Adequate Defense: Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Turner v. Duncan, 158 F.3d 449, 456 (9th Cir.1998). This includes a duty to investigate the prosecution's case and to follow up on any exculpatory evidence. Morrison, 477 U.S. at 385, 106 S.Ct. at 2588; Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir.2003), cert. denied, 543 U.S. 917, 125 S. Ct. 39, 160 L. Ed. 2d 200 (2004). Even so, "`the duty to investigate and prepare a defense is not limitless: it does not necessarily require that every conceivable witness be interviewed....'" Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir.1995) (quoting United States v. Tucker, 716 F.2d 576, 584 (9th Cir.1983)), cert. denied, 517 U.S. 1111, 116 S. Ct. 1335, 134 L. Ed. 2d 485 (1996); Lord v. Wood, 184 F.3d 1083, 1095 n. 8 (9th Cir.1999), cert. denied, 528 U.S. 1198, 120 S. Ct. 1262, 146 L. Ed. 2d 118 (2000). An attorney's performance is deficient if evidence exists that might show a defendant's innocence or raise sufficient doubt to undermine confidence in a guilty verdict, and the attorney did not investigate the evidence. Riley, 352 F.3d at 1318; Lord, 184 F.3d at 1093. To show prejudice, the petitioner must demonstrate that further investigation would have revealed favorable evidence. Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir.1996), cert. denied, 522 U.S. 971, 118 S. Ct. 422, 139 L. Ed. 2d 324 (1997); Hendricks, 70 F.3d at 1042. Moreover, "`ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.'" Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.2001) (citation omitted), as amended, 253 F.3d 1150 (9th Cir.2001); Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986). In Ground Six (a) petitioner conclusorily claims defense counsel failed "to properly investigate and put on an adequate defense." However, to the extent this is meant to be a separate claim, rather than an overview of the claims petitioner raises herein, petitioner's "conclusory suggestion[] that his trial ... counsel provided ineffective assistance fall[s] far short of stating a valid claim of constitutional violation." Jones v. Gomez, 66 F.3d 199, 205 (9th Cir.1995), cert. denied, 517 U.S. 1143, 116 S. Ct. 1437, 134 L. Ed. 2d 559 (1996); Villafuerte v. Stewart, 111 F.3d 616, 630-31 (9th Cir.1997), cert. denied, 522 U.S. 1079, 118 S. Ct. 860, 139 L. Ed. 2d 759 (1998). b. Severance Motion: In Ground Six (b), petitioner claims defense counsel was ineffective in failing to file a motion to sever his case from codefendant Vanpool's case. The facts underlying this claim are, as follows: On December 18, 2000, the prosecutor filed 1074 a motion to consolidate the trials of petitioner and Vanpool, Vanpool's Clerk's Transcript ("VCT") 165-71, and defense counsel opposed the motion. CT 89; VCT 175. However, the trial court granted the prosecutor's motion to consolidate the proceedings. Ibid. California Penal Code § 1098 requires that "[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials." P.C. § 1098 (2000). Under this section, "a trial court must order a joint trial as the `rule' and may order separate trials only as an `exception.'" People v. Alvarez, 14 Cal. 4th 155, 190, 58 Cal. Rptr. 2d 385, 405, 926 P.2d 365 (1996) (emphasis in original), cert. denied, 522 U.S. 829, 118 S. Ct. 94, 139 L. Ed. 2d 50 (1997); People v. Cleveland, 32 Cal. 4th 704, 726, 11 Cal. Rptr. 3d 236, 253, 86 P.3d 302 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 867, 160 L. Ed. 2d 784 (2005). "Defendants charged with common crimes involving common events and victims present a classic case for a joint trial." People v. Tafoya, 42 Cal. 4th 147, 162, 64 Cal. Rptr. 3d 163, 180, 164 P.3d 590 (2007) (citation and internal quotation marks omitted), cert. denied, 552 U.S. 1321, 128 S. Ct. 1895, 170 L. Ed. 2d 764 (2008); Cleveland, 32 Cal.4th at 726, 11 Cal.Rptr.3d at 253, 86 P.3d 302.[33] Here, the charges against petitioner and co-defendant Vanpool presented the "classic case" for a joint trial, Tafoya, 42 Cal.4th at 162, 64 Cal.Rptr.3d at 180, 164 P.3d 590; Cleveland, 32 Cal.4th at 726, 11 Cal.Rptr.3d at 253, 86 P.3d 302, and petitioner has not shown there was any basis for ordering separate trials. Thus, defense counsel was not ineffective for not making a futile motion to sever petitioner's and Vanpool's cases. See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir.1996) ("[T]he failure to take a futile action can never be deficient performance."), cert. denied, 519 U.S. 1142, 117 S. Ct. 1017, 136 L. Ed. 2d 894 (1997); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.) (counsel is not obligated to raise frivolous motions, and failure to do so cannot constitute ineffective assistance of counsel), cert. denied, 513 U.S. 1001, 115 S. Ct. 513, 130 L. Ed. 2d 420 (1994). c. Witnesses: In Ground Six (c), petitioner claims defense counsel was ineffective in failing "to subpoena any eyewitnesses, or character witnesses who favored petitioner." The petitioner identifies these witnesses as: (1) Gary Bryant, who "would have not only impeached ... Eric Thomas, but could have spoke [sic] to petitioner's character [and] where petitioner is in life"; (2) Darryl Bellfield, who would have impeached Eric Thomas and "testified to the fact that petitioner had changed his lifestyle when his kids [were] born and was no longer a part of [a] gang nor any type of clicks [sic]"; (3) Chris Rogers, who "would have testified to the fact that after being jumped and beaten with a steering column lock at Mel[']s Liquor[,] petitioner came to [Roger's] house[,] where his girlfriend gave petitioner some ice for [petitioner's] split lip and cleaned petitioner[']s head wound and while [petitioner was] getting his wounds cleaned prosecution witnesses LaJoyce Mack and Tracilyn Crump came to the house asking many questions then left only to return [approximately] 5 to 10 1075 [minutes] later with victim Vincent Thomas and numerous friends of Mr. Thomas where another fight broke out and Chris Rogers [had] his leg broken by victim Vincent Thomas with the steering column lock [and Rogers's] mother called the police in regards to the assault, however[,] police failed to make a report"; (4) Celeste Williams, who "would testify to the fact that she made [a] 911 call to [the] police indicating that victim Vincent Thomas and friends came to her house and again assaulted petitioner and her son Chris Rogers[,] breaking his leg with a metal steering column lock"; and (5) Paulette P., who "would testify to the fact that she and prosecution witness Ranika Ransom had been with petitioner all day and not only was petitioner not near victim Vincent Thomas when he was beaten, but also that petitioner never possessed [the] allege[d] gun nor any other type of weapon." Reply at 34-35. Although petitioner has identified the witnesses he claims his defense counsel should have called, he has not provided any competent evidence from these witnesses, as he must, showing what these "potential" witnesses would have testified to at his trial, Dows v. Wood, 211 F.3d 480, 486 (9th Cir.), cert. denied, 531 U.S. 908, 121 S. Ct. 254, 148 L. Ed. 2d 183 (2000), and that these witnesses were actually available and willing to testify. United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 264, 102 L. Ed. 2d 252 (1988); White v. Ollison, 592 F. Supp. 2d 1227, 1250 (C.D.Cal. 2008). Therefore, this claim is without merit. See Sandgathe v. Maass, 314 F.3d 371, 379 (9th Cir.2002) (affirming denial of ineffective assistance of counsel claim when petitioner presented no evidence supporting claim); Thomas v. McGrath, 329 Fed.Appx. 85, 86 (9th Cir.) (petitioner did not demonstrate he received ineffective assistance of counsel when petitioner's "offer of proof, unsupported by any affidavits, provides insufficient evidence as to each witness's potential testimony[,]" and petitioner "never stated whether [one witness] would have been available and willing to testify"), cert. denied, ___ U.S. ___, 130 S. Ct. 505, 175 L. Ed. 2d 359 (2009). d. Expert Witness: In Ground Six (d), petitioner claims defense counsel was ineffective in failing to interview and subpoena an expert witness on gang activity. However, petitioner has presented absolutely no evidence setting forth what an expert would have said at trial and how such testimony would have benefitted him; thus, there is no merit to this claim. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.2001) (Petitioner did not show defense counsel was ineffective in failing to call expert when petitioner "offered no evidence that an arson expert would have testified on his behalf at trial. He merely speculates that such an expert could be found. Such speculation, however, is insufficient to establish prejudice."); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir.1997) ("Speculation about what an expert could have said is not enough to establish prejudice."). e. Excuplatory Evidence: In Ground Six (e), petitioner claims defense counsel was deficient for failing to present the following exculpatory evidence: (i) "letters and notes ... Eric Thomas wrote petitioner," (ii) an "L.A. Times news paper [sic] clipping of petitioner involved in Straight Talk Program speaking out against gangs to jr high and high school kids," and (iii) "[a] surveillance video tape [sic] of footage depicting petitioner with a very low hair cut without a beard, whereas the prosecution witnesses described the individual with [the] allege[d] gun as having either corn rolls, puff ball or an afro in his hair with a beard." However, petitioner has provided 1076 no factual support for this claim since he has not presented any of the evidence he claims exists or any declarations by persons with knowledge of this purported evidence. Sandgathe, 314 F.3d at 379; Dows, 211 F.3d at 487. f. & g. LaJoyce Mack's Testimony/Motion for Mistrial and "Parading" Eric Thomas into the Courtroom: In Ground Six (f), petitioner claims defense counsel was ineffective for failing to object when Mack corrected her testimony and he did not move for a mistrial at that time. In Ground Six (g), petitioner claims defense counsel was ineffective in failing to object when the prosecutor brought Eric Thomas into the courtroom while Mack was testifying so Mack could observe Eric. The facts underlying these claims are set forth above. Although this Court has found petitioner's prosecutorial misconduct claim to be without merit, petitioner again conclusorily claims the prosecutor coerced Mack to change her testimony and brought Thomas into court to intimidate Mack. Moreover, petitioner has not shown any basis for defense counsel to object to Mack's changed testimony or to request a mistrial due to Mack changing her testimony or Thomas's appearance in court during Mack's testimony, and petitioner's "conclusory suggestions that his trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation." Jones, 66 F.3d at 205; Villafuerte, 111 F.3d at 630-31. h. & i. Eric Thomas's Testimony and Cross-Examination of Eric Thomas: In Ground Six (h), petitioner claims defense counsel was ineffective in failing to object to "incompetent prejudicial hearsay testimony" from Eric Thomas regarding whether petitioner was a part of the "Five R's." In Ground Six (i), petitioner claims defense counsel was ineffective in failing to properly cross-examine Eric Thomas about the basis for his "Five R's" testimony. See also Reply at 39-40. During the trial, the prosecutor asked Eric whether there were "any specialized groups within the Raymond Crips that have certain functions" or, as he put it, "[a]ny clicks [sic]?" RT 534:13-16. In response, Eric Thomas stated "there's clicks [sic] within Raymond[,]" and identified one such clique as the "Five R's," which was "just a group of older homies." RT 534:17-28. The prosecutor then asked whether the Five R's was an "enforcement arm," and whether the Raymond Street Crips had a "killing click [sic]" and Eric ultimately responded that "We don't have anything like that from Raymond[,]" but "the closest you would get is the Five R's." RT 535:5-536:11. Petitioner was identified as a member of the Five R's. RT 535:10-11. Here, petitioner identifies hearsay as the ground for objecting to this testimony by Eric. But the statements are not hearsay, see Cal. Evid.Code § 1200(a) ("`Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated."), and defense counsel could not have objected on that ground. See Matylinsky, 577 F.3d at 1094 (Trial counsel's "failure to object to ... testimony as hearsay was not in error.... Had [counsel] made a hearsay objection, it would have been properly overruled."). Even assuming arguendo the testimony was objectionable, petitioner has not shown he was prejudiced by the testimony,[34] since the jury 1077 acquitted petitioner of the attempted murder charge. CT 159; Smith, 528 U.S. at 286 n. 14, 120 S.Ct. at 764 n. 14; Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir.2008). j. Subpoena Ward: In Ground Six (j), petitioner claims defense counsel was ineffective in failing to subpoena Ward to appear at the hearing on his motion for a new trial when he had the opportunity to do so during his investigator's meetings with her on May 31 and June 3, 2002. Reply at 40; see CT 358. As discussed above, defense counsel made numerous attempts to subpoena Ward to testify at the motion for a new trial, but was unable to find her. RT 1655:26-1656:23. Yet, even assuming arguendo defense counsel was deficient in failing to subpoena Ward when he had the opportunity,[35] petitioner has not shown he suffered any prejudice from Ward's failure to appear at the hearing. To the contrary, the trial court fully considered Ward's declaration before denying petitioner's motion for a new trial, CT 379; RT 1672:15-21, 1677:10-1678:4, and petitioner has not shown any additional evidence Ward would have provided if she had appeared at the hearing on the motion for a new trial. Smith, 528 U.S. at 286 n. 14, 120 S.Ct. at 764 n. 14; Delgadillo, 527 F.3d at 930. k. Bifurcation: In Ground Six (k), petitioner claims defense counsel was ineffective because he "misled" petitioner and left petitioner "confused as to the purpose of a[] bifurcation hearing ... which ultimately led to petitioner admitting to priors instead of having a trial on the priors." There is no factual basis for this claim because petitioner did not admit the prior convictions, but had a trial on them. CT 301-02; RT 1635:6-1652:4. Nevertheless, it appears what petitioner is really complaining about is defense counsel's decision that petitioner should admit (outside the presence of the jury) that he had a prior felony conviction for purposes of the felon in possession of a firearm charge. RT 22:10-23:22. During the trial court's colloquy with petitioner, the trial court clearly explained petitioner's options to him, stating: THE COURT: All right. Mr. Ratliff, you're charged here in Court IV with ex-felon in possession of a firearm. When you heard me read the charge, I didn't tell the prospective jurors what your prior conviction was for, only that you had been previously convicted of a felony. [¶] Your attorney has made a request, and I have granted that request, that we bifurcate or separate that trial on all your priors. And you have two strike priors alleged here. One of which is the offense set forth in Court IV.[¶] Now, the district attorney has the burden of proving the truth of all of these allegations. He has the burden of proving it beyond a reasonable doubt. Your attorney in requesting that we separate the trial on your priors ... 1078 has done so because he thinks, and correctly so, that it would be prejudicial to your case if the jury heard about the nature and extent of your prior convictions. [¶] That puts you kind of between the proverbial rock and a hard place. The district attorney is required to prove that you were convicted of a felony. And one that you were convicted of was the robbery that you were allegedly convicted of in L.A. County in `91. Obviously, if that comes before the jury, what the D.A. would have to do to meet his burden of proof, then, the jury would hear about your prior conviction. [¶] Now, typically what happens is defendants charged with this type of offense will admit they were convicted of a prior felony. Waiving that particular element, if they do so, the nature of the case, this being felony, the robbery is not before the jury in the case in chief. I'll ask you to take a minute with your attorney, Mr. Morreale, and perhaps he can explain that a little clearer. [¶] Your options are as follows: You can demand that the D.A. prove each and every element of that charge, in which case he would bring evidence of your prior robbery conviction to the jury; or, you can admit to the Court that you were in fact convicted of a prior felony in 1991.[¶] And by doing that, all the jury would know is that that part of the element, or that element of the offense they are not to be concerned with, only whether or not you were in possession of a firearm. They would not hear of your robbery conviction in your case in chief. [¶] So if you would take a minute to speak to Mr. Morreale, he can explain your options a little better. [DEFENSE]: Your Honor, we're ready on that. THE COURT: How do you want to proceed? [DEFENSE]: He's going to admit the prior felony conviction. THE COURT: Mr. Ratliff, in Count IV you're charged with a violation of Penal Code Section 12021 Subdivision (a) Subsection (1), a felony. And it is alleged that on or about May 25th of year 2000, in the County of Riverside, State of California, you did willfully and unlawfully possess a handgun after having been previously convicted of a crime of robbery, in violation of Penal Code Section 211, on or about August 16, 1991, in Los Angeles County Superior Court. [¶] Now, as I explained to you just a moment ago, you have a right to compel the district attorney to prove each and every element of that offense. One of the elements being you were convicted of the crime of robbery in 1991. By admitting that part of the charge, that is, that you were convicted of that crime in 1991 in Los Angeles Superior Court, that will not come before the jury. The only thing the jury will be asked to decide is whether or not you possessed a firearm. [¶] Do you understand that, sir? [PETITIONER]: Yes. THE COURT: Do you understand by admitting that particular element of the defense you will be giving up you right to a jury trial on that particular issue, as well as the right to see, hear or question any witnesses who would testify with respect to that particular element. [¶] You'd also be giving up the right to call witnesses on your own behalf as to that particular element. [¶] Do you understand that, sir? [PETITIONER]: Yes. THE COURT: And with those rights and consequences in mind, do you 1079 waive or give up your right to have a jury trial on that particular element so you can admit the prior conviction in 1991? [PETITIONER]: Yes. THE COURT: And do you admit that on August 19(sic), 1991, in Los Angeles Superior Court, you were convicted of a felony violation of Section 211 of the Penal Code? [PETITIONER]: Yes. THE COURT: The Court accepts that admission. I find it's freely and voluntarily entered. RT 20:18-23:22. Here, petitioner's "[s]olemn declarations in open court[, which] carry a strong presumption of verity[,]" and constitute a "formidable barrier" to collateral attack, Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977), demonstrate petitioner's claim of confusion is specious. In any event, petitioner has not shown defense counsel's sound tactical decision was ineffective performance. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."); Raley v. Ylst, 470 F.3d 792, 799 (9th Cir.2006) ("A disagreement with counsel's tactical decision does not provide the basis for declaring that the representation was constitutionally deficient."), cert. denied, 552 U.S. 833, 128 S. Ct. 59, 169 L. Ed. 2d 50 (2007). Nor can petitioner demonstrate he was in any manner prejudiced by this decision, since the prosecutor clearly could prove he was a felon. Smith, 528 U.S. at 286 n. 14, 120 S.Ct. at 764 n. 14; Delgadillo, 527 F.3d at 930. Thus, the California Supreme Court's denial of petitioner's claims of ineffective assistance of counsel was neither contrary to, nor an unreasonable application of, federal law. XV The standards for determining whether trial counsel was ineffective also apply to determining whether appellate counsel was ineffective, Smith, 528 U.S. at 285, 120 S.Ct. at 764; Cockett, 333 F.3d at 944, and petitioner bears the burden of establishing both components of the Strickland standard, i.e., "that counsel's advice fell below an objective standard of reasonableness, ... and that there is a reasonable probability that, but for counsel's unprofessional errors, [the petitioner] would have prevailed on appeal." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989); Cockett, 333 F.3d at 944. Appellate counsel has no constitutional duty to raise every issue, where, in the attorney's judgment, the issue has little or no likelihood of success. Jones v. Barnes, 463 U.S. 745, 751-53, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987 (1983) (limited on other grounds in Smith, 528 U.S. at 287, 120 S.Ct. at 765); Turner, 281 F.3d at 872. Indeed, as an officer of the court, appellate counsel is under an ethical obligation to refrain from wasting the court's time on meritless arguments. McCoy v. Wisconsin, 486 U.S. 429, 436, 108 S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). Thus, in reviewing appellate counsel's performance, this court will presume appellate counsel used reasonable tactics; otherwise, it "could dampen the ardor and impair [counsel's] independence ..., discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Pollard v. White, 119 F.3d 1430, 1435 (9th Cir.1997) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2065). In Ground Seven, petitioner claims appellate counsel was ineffective for: (a) 1080 "fail[ing] to raise numerous claims of ... ineffective assistance of trial counsel"; (b) failing to claim insufficiency of evidence; (c) failing to "claim that the court misled the jurors with instructions"; (d) failing to claim "a violation of the Rules of Court standard on expert witnesses['] qualification to testify"; and (e) failing to claim "the prosecutor withheld exculpatory evidence[.]" Since the Court has determined subclaims (a), (b), (c) and (e) are without merit, appellate counsel was under no duty to raise those claims. Robbins, 528 U.S. at 285-86, 120 S.Ct. at 764; Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985); see also Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.2001) ("[B]y definition, appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit[.]"), cert. denied, 535 U.S. 940, 122 S. Ct. 1323, 152 L. Ed. 2d 231 (2002). Similarly, petitioner's conclusory assertion in subclaim (d) cannot support a viable claim of ineffective assistance of appellate counsel. Villafuerte, 111 F.3d at 630-31; Jones, 66 F.3d at 205. Thus, the California Supreme Court's denial of petitioner's claims of ineffective assistance of appellate counsel is neither contrary to, nor an unreasonable application of, federal law. RECOMMENDATION IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) adopting the Report and Recommendation as the findings of fact and conclusions of law herein; and (3) directing that Judgment be entered denying the petition and dismissing the action with prejudice. NOTES [1] Petitioner was tried with co-defendant Star Monique Vanpool. CT 107-11. [2] In his petition for review, petitioner raised the sole claim that he was denied his constitutional right to a fair trial "due to the admission of the testimony of a witness [Eric Thomas] who reached a conditional plea agreement with the prosecution that provided that truthful testimony meant testimony that was consistent with a prior statement, and that gave the prosecutor ... the discretion to determine whether the witness testified truthfully[.]" Lodgment no. 5. [3] "Under the `prison mailbox rule' ... a prisoner's... habeas petition is deemed filed when he hands it over to prison authorities for mailing in the district court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.2001) (citation omitted); Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385, 101 L. Ed. 2d 245 (1988). The "[mailbox] rule applies to prisoners filing habeas petitions in both federal and state courts." Huizar, 273 F.3d at 1223; Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir.2000), cert. denied, 533 U.S. 941, 121 S. Ct. 2576, 150 L. Ed. 2d 739 (2001). [4] In his habeas corpus petition to the California Supreme Court, petitioner raises the following claims: (1) ineffective assistance of appellate counsel in violation of the Sixth and Fourteen Amendments for failing to: (a) raise "a claim of ineffective assistance of trial counsel for failure to hold the prosecution to it's [sic] burden on reasonable doubt based on conflicting testimony," (b) "file a claim of insufficient evidence," (c) "raise the claim that the court misled the jurors with instruc[tions]," (d) claim "that violation of the rules of court standards on expert witnesses [sic] qualifications to testify," and (e) claim "prosecutorial misconduct [in that] the prosecution withheld exculpatory evidence that could have changed the outcome of trial"; (2) "the prosecution [suppressed] ... evidence favorable to [petitioner] [in] viola[tion] [of] due process of law"; (3) "insufficient evidence to justify a guilty verdict"; and (4) "ineffective assistance of trial counsel for[: (a)] violation of due process on the burden of proof standard[] on all charges to the elements of proof beyond [a] reasonable doubt," (b) not filing "a motion for severance on the grounds of conflict of interest" regarding codefendant, (c) not "hold[ing] the state['s] case to the burden of proof standard on the [charges] by failing to file for a dismissal for insufficient evidence ... after the State rested[,]" (d) "fail[ing] to effectively cross-examine the state['s] witness LaJoyce Mack," (e) "fail[ing] to object to the use of evidence of other crimes that [petitioner] had no involvement with to support [petitioner's] gang, in-Volvement charge," (f) "fail[ing] to subpoena other eyewitnesses," and (g) "fail[ing] to object to instructions that violate[] [petitioner's] right to have every element proved beyond a reasonable [doubt]." Lodgment no. 11. [5] The petitioner raised the following claims in this second petition: (1) "The Court caused a miscarriage of justice when it misled the jury in instructions doing [sic] deliberations"; (2) "[i]neffectiveness of trial counsel" in that trial counsel failed to: (a) "present critical evidence... favorable to petitioner," (b) "object to prosecution witness LaJoyce Mack['s] testimony or file for a mistrial" after "Mack completely changed her testimony after being coerced by prosecutor outside the presence of the court," (c) "have still photos from the surveillance video of Mel's Liquor blown up to bring to jury's attention that petitioner had a low cut hairstyle/bald head on the date allege[d] crime to[ok] place," (d) "present the letters [from Eric Thomas] to the court in order to impeach prosecution witness Eric Thomas," (e) "to present any evidence, character witnesses, expert witness or eyewitnesses... in order to give petitioner an adequate defense," (f) "present into evidence an L.A. Times newspaper article" showing petitioner "speaking out against gangs," and (g) "to introduce known critical evidence"; (3) "petitioner's conviction was obtained as a result of the prosecutor's misstatements of fact" in the presentation of LaJoyce Mack's recanting testimony; (4) "the evidence is not sufficient to establish any of the offenses were committed by [petitioner] for purposes of furthering a criminal street gang or that petitioner was even apart [sic] of a gang"; (5) "the trial court erred in admitting testimony of threats received by virtually all of the prosecution's witnesses" to petitioner's prejudice; and (6) "the prosecutor committed prejudicial misconduct in closing arguments[.]" Lodgment no. 17. [6] Lodgment no. 4 at 3-4. [7] Former Rule 29.4 of the California Rules of Court provided that the "the denial of a petition for a writ within the court's original jurisdiction without issuance of an alternative writ or order to show cause" is "final on filing." Cal.Rules of Court, Rule 29.4(b)(2)(C) (2006). Former Rule 29.4 was renumbered Rule 8.532 and amended effective January 1, 2007. [8] Since petitioner's second habeas corpus petitions to the Superior Court and Court of Appeal were filed and denied while petitioner's first habeas corpus petition to the California Supreme Court was pending, these petitions did not statutorily toll the limitations period. Delhomme v. Ramirez, 340 F.3d 817, 820 (9th Cir.2003) (per curiam). "Rather, each time a petitioner files a new habeas petition at the same or a lower level, as [petitioner] did here, the subsequent petition has no effect on the already pending application, but triggers an entirely separate round of review." Id. This raises the question of whether petitioner is entitled to "gap tolling" for the period between the denial of his first habeas corpus petition by the California Supreme Court and the filing of his second habeas corpus petition in the California Supreme Court since, at that time, he had commenced a second round of review by filing his habeas corpus petition in the Superior Court. The Court need not resolve the issue here, however, since even if petitioner is not entitled to this "gap tolling" his petition is nevertheless timely. Therefore, for purposes of this opinion only, the Court assumes arguendo "gap tolling" does not apply in these circumstances. [9] For instance, if the California Supreme Court's citation to Clark means the habeas corpus petition is a successive petition or piecemeal litigation, Clark, 5 Cal.4th at 767-68, 21 Cal.Rptr.2d at 520, 855 P.2d 729, the Clark citation would not render the second habeas corpus petition improperly filed unless California imposed a filing conditionrather than a procedural baron successive or piecemeal petitions. See, e.g., Smith v. Walls, 276 F.3d 340, 344 (7th Cir.2002) ("Because Illinois does not impose any filing preconditions for successive petitions, a successive petition that is later dismissed as procedurally barred is `properly filed' as long as it conforms to Illinois' formal filing requirements."); Tate v. Pierson, 177 F. Supp. 2d 792, 798-99 (N.D.Ill.2001) (same), affirmed by, 52 Fed.Appx. 302 (7th Cir.2002), cert. denied, 538 U.S. 965, 123 S. Ct. 1757, 155 L. Ed. 2d 519 (2003). [10] Specifically, respondent claims the citation to: (1) In re Clark means "unexplained successive and untimely filing [of a habeas corpus petition] bars consideration of the merits of habeas corpus petition," Answer at 5:25-27; (2) In re Dixon means a habeas corpus "will not lie where the claimed errors could have been, but were not, raised upon a timely appeal," id. at 5:27-6:1, 264 P.2d 513; (3) In re Swain means a "habeas petition must state in particularity the facts supporting the claim; vague, conclusionary allegations are insufficient," id. at 6:1-3, 209 P.2d 793; (4) Duvall means a habeas "petition must state fully and with particularity the facts on which relief is sought and must include copies of all reasonably available documentary evidence; if no prima facie case is pled, the state court will summarily deny the petition," id. at 6:4-7, 37 Cal. Rptr. 2d 259, 886 P.2d 1252; and (5) In re Lindley means "habeas corpus ordinarily is not competent to retry issues of fact or the merits of a defense; the sufficiency of the evidence to warrant the conviction of the petitioner is not a proper issue for consideration; habeas corpus is not an available remedy to review the rulings of the trial court with respect to the admission or exclusion of evidence, or to correct other errors of procedure occurring on the trial; and in a habeas corpus proceeding, one who establishes by a preponderance of substantial, credible evidence that he was convicted by perjured testimony knowingly presented by representatives of the State, but evidence which is uncertain, questionable or directly in conflict with other testimony does not afford a ground for relief upon habeas corpus." Id. at 6:7-16, 177 P.2d 918. [11] The California Court of Appeal also denied this claim on the merits, see Lodgment no. 4 at 11-12, which does not prevent petitioner's claim from being procedurally barred in this district court. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038, 1044 n. 10, 103 L. Ed. 2d 308 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternate holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Bargas v. Burns, 179 F.3d 1207, 1214 (9th Cir. 1999) ("The state court concluded that petitioner procedurally defaulteda state groundand alternatively rejected petitioner's claim on the meritsa constitutional ground. The alternative federal law holding of the court in no way disturbs the independent state law ground for dismissal."), cert. denied, 529 U.S. 1073, 120 S. Ct. 1686, 146 L. Ed. 2d 493 (2000). [12] Since the Ninth Circuit has found California's contemporaneous objection rule to be an adequate and independent state law ground, see, e.g., Paulino v. Castro, 371 F.3d 1083, 1093 (9th Cir.2004); Rich, 187 F.3d at 1070, petitioner's conclusory assertion that any procedural bars are not "independent" or "adequate" (Reply at 2) is insufficient to place the procedural default defense at issue. [13] Moreover, "[a]n agreement that requires a witness to testify truthfully in exchange for a plea is proper so long as `the jury is informed of the exact nature of the agreement, defense counsel is permitted to cross-examine the accomplice about the agreement, and the jury is instructed to weigh the accomplice's testimony with care.'" Allen v. Woodford, 395 F.3d 979, 995-96 (9th Cir.) (quoting United States v. Yarbrough, 852 F.2d 1522, 1537 (9th Cir.), cert. denied, 488 U.S. 866, 109 S. Ct. 171, 102 L. Ed. 2d 140 (1988)), cert. denied, 546 U.S. 858, 126 S. Ct. 134, 163 L. Ed. 2d 137 (2005). Here, the jury was thoroughly informed of the plea agreement, and the jury was specifically instructed that Eric Thomas was an accomplice as a matter of law and an accomplice's testimony should be viewed with caution. See CT 221-22; Reporter's Transcript ("RT") 492:21-755:5. [14] As discussed above, the AEDPA standard of review does not apply to Ground 4(a), but does apply to Ground 10. [15] A "criminal street gang" is defined in P.C. § 186.22(f) as: any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. P.C. § 186.22(f) (2000); People v. Gardeley, 14 Cal. 4th 605, 616, 59 Cal. Rptr. 2d 356, 363, 927 P.2d 713, cert. denied, 522 U.S. 854, 118 S. Ct. 148, 139 L. Ed. 2d 94 (1997). The enumerated criminal acts consist of: assault with a deadly weapon or by means of force likely to produce great bodily injury; robbery; unlawful homicide or manslaughter; the sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances; shooting at an inhabited dwelling or occupied motor vehicle; discharging or permitting the discharge of a firearm from a motor vehicle; arson; the intimidation of witnesses and victims; grand theft; grand theft of any firearm, vehicle, trailer, or vessel; burglary; rape; looting; money laundering; kidnapping; mayhem; aggravated mayhem; torture; felony extortion; felony vandalism; carjacking; the sale, delivery, or transfer of a firearm; possession of a pistol, revolver, or other firearm capable of being concealed upon the person; threats to commit crimes resulting in death or great bodily injury; and theft and unlawful taking or driving of a vehicle. P.C. § 186.22(e) (1-25) (2000). [16] The version of P.C. § 186.22(b)(1) in effect when the crime occurred and at petitioner's trial provided, in pertinent part: Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: * * (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. P.C. § 186.22(b)(1) (2000). [17] The petitioner did not raise this claim on appeal; however, co-defendant Vanpool did, see Lodgment no. 4 at 17-18 & n. 9, and in denying Vanpool's claim, the California Court of Appeal found: Eric Thomas testified, in pertinent part, that defendant Vanpool participated in the stabbing of Vincent Thomas and while doing so was heard to say that Vincent should never claim "Raymond" again. From that testimony the jury could reasonably infer that Vanpool committed that crime [the stabbing of Vincent Thomas] in order to promote the reputation of "Raymond." That inference is sufficient to support the jury's implied finding that Vanpool committed the stabbing "for the benefit" of the Raymond Street Crips. Lodgment no. 4 at 17-18. Given the evidence discussed herein, this rationale also applies to petitioner since he was convicted of violating P.C. § 245(a)(1) as an aider and abettor of Vanpool's stabbing of Vincent Thomas. [18] Crump also testified petitioner and Vanpool were Raymond Street gang members. RT 997:4-998:13, 1005:11-18. [19] To fall within the statutorily defined period, at least one of the predicate offenses must have occurred "after the effective date" of the STEP Act, September 26, 1988, and the last of the predicate offenses must have occurred "within three years after a prior offense." P.C. § 186.22(e) (2000); Gardeley, 14 Cal.4th at 616, 59 Cal.Rptr.2d at 363, 927 P.2d 713. [20] P.C. § 31 provides: All persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed. P.C. § 31. [21] Crump and LaJoyce Mack testified petitioner had a bloody swollen lip following the fight at Mel's Liquor, RT 312:27-313:7, 1015:2-10, while Renika Ransom testified petitioner's head was bleeding and "busted" following the Mel's Liquor fight. RT 1224:17-1225:6. [22] Eric also testified that, at some point, petitioner told him "I would kill them little Niggas, or something, `cause they fucked up my lip, or somthin'. He was mad." RT 701:20-27. [23] Crump testified Ransom told her that the gun petitioner used was Ransom's, and petitioner took it without permission. RT 1286:22-1287:16. [24] Mack initially testified Eric Thomas was the individual who had the gun, RT 340:4-347:24, but later claimed she made a mistake and it was petitioner who had the gun. RT 455:2-458:7. [25] The offense of being a felon in possession of a firearm provides: Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. P.C. § 12021(a)(1)(2000). [26] The trial judge was unavailable when this issue arose, so another Superior Court judge addressed the matter. RT 1595:5-11. [27] CALJIC no. 2.27 provides: You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony by one witness, which you believe, concerning any fact [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends. CT 202. [28] There is no separate "harmless error" analysis for Brady violations since "`a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,' necessarily entails the conclusion that the suppression must have had `substantial and injurious effect or influence in determining the jury's verdict.'" Kyles v. Whitley, 514 U.S. 419, 435-36, 115 S. Ct. 1555, 1566-67, 131 L. Ed. 2d 490 (1995) (citations and internal quotation marks omitted); Singh v. Prunty, 142 F.3d 1157, 1159 n. 5 (9th Cir.), cert. denied, 525 U.S. 956, 119 S. Ct. 388, 142 L. Ed. 2d 321 (1998). [29] Furthermore, "[a] prosecutor ... has a constitutional duty to correct evidence he or she knows is false, even if it was not intentionally submitted." Mancuso, 292 F.3d at 957; Hayes, 399 F.3d at 978. [30] According to defense counsel, "[o]n or about the first week of May, 2002, [he] received information that a witness by the name of Rashima [sic] Ward, A.K.A. Tamara Hunt, was willing to talk with defense investigators about the events of May 15, 2000." CT 353:6-9. "Prior to trial, defense investigator Thomas Crompton made numerous attempts to contact Tamara Hunt[,] which was the name supplied to both defense counsel prior to trial." CT 353:10-12. "During the course of trial, [the prosecutor] informed defense counsels [sic] ... that the name of Tamara Hunt was an alias for Rashima [sic] Ward. Prior to that notice defense counsels [sic] were lead to believe Tamara Hunt was her true and correct name." CT 353:14-18. "No mention was made nor were any reports supplied to either defense counsel referencing the Rashima [sic] Ward, A.K.A. Tamara Hunt, contact." CT 353:20-24. [31] Thomas R. Crompton, petitioner's investigator, averred he identified a witness named "Tamara Nicole Hunt" from a police report, and he began looking for her as early as March 15, 2001. CT 357. Over the next couple of months, on three separate dates, Crompton stated he went to the City of Moreno Valley to the address for Hunt listed on the police report, but eventually he was told she did not live there. Id. He also attempted to conduct a computer data base search of public records for Tamara Hunt, but found no listings with her name or date of birth. Id. Similarly, he was unable to find any civil or criminal filings with her name. Id. After he learned from defense counsel that Tamara Hunt's true name was Rashima Ward, he located and contacted Ward on May 31 and June 3, 2002, and obtained her declaration. CT 358. [32] In her declaration, Ward stated: On May 25, 2000, I was present at Mel's Liquor, Victor Street and Adrian Mitchell Park. I was with Joyce Mack, Tracylin Crump and Ashawanta Lnu at all three places. At Mel' s[L]iquor I saw a black male with a club in his hand hit this other guy on the head and later when I spoke to the police and they showed me a photograph[,]... I pointed out the guy that got hit in the head. I later learned it was [petitioner]. I also saw a fight at Victor Street between the people in a U-Haul truck and guys in a white pick-up. After that fight, I followed the cars to Adrian Mitchell park. When we got to the park, we stopped our car and I saw some of the same people in a fight. I did not see [petitioner], the guy who got hit in the head with the club, with a gun, but I did see him there. I did not see anyone, on that day, at the park with a gun. CT 359:26-360:12. Ward further stated that she spoke with the prosecutor "probably in March of 2001." CT 359:13-15. After the incident, Ward "moved from [her] address in the police reports but [the prosecutor] found [her]...." CT 359:16-18. Finally, Ward stated she told the prosecutor she "did not want to testify and [she] didn't care what he did. The [prosecutor] sent people to [her] house 3 or 4 times, but [she] would not answer the door." CT 359:21-23. The prosecutor "knew where [she] lived and had [her] telephone number during this entire time." CT 359:24-25. [33] "Nonetheless, a trial court, in its discretion, may order separate trials in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." Tafoya, 42 Cal.4th at 162, 64 Cal.Rptr.3d at 180, 164 P.3d 590 (citation, internal quotation marks, and emphasis omitted); Cleveland, 32 Cal.4th at 726, 11 Cal.Rptr.3d at 253, 86 P.3d 302. [34] The record shows defense counsel extensively cross-examined Eric Thomas about this testimony. See RT 599-621, 637-644, 723-41. [35] Trial counsel explained: [T]here was no reason [Ward was not subpoenaed when she completed her declaration].... Certainly, I could have subpoenaed her on the second visit when we actually had her sign the affidavit under penalty of perjury.... Now, certainly, had I known [Ward] was going to be avoiding[,] at[] least apparently avoiding, us for the next three weeks or so, whatever the period was, we would have subpoenaed her back then. I didn't know she was a noncooperative witness, too, given the fact she had volunteered the information and met with our investigator. Certainly, in looking back on it[,] I wish to heck we would have ... served a subpoena on her. RT 1664:10-1666:14.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/596677/	981 F.2d 1248 Sweeney (Nancy J.), Parent of Sweeney (Tina Marie)v.National Presto Industries, Inc. v. Sweeney (William A., III) NO. 92-1333 United States Court of Appeals,Third Circuit. Nov 23, 1992 Appeal From: E.D.Pa., Kelly, J. 1 AFFIRMED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2540294/	362 S.W.3d 382 (2012) Esley Dee CORNELIUS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. No. 2009-CA-001624-MR. Court of Appeals of Kentucky. March 9, 2012. Gene Lewter, Department of Public Advocacy, Frankfort, KY, for appellant. Jack Conway, Attorney General of Kentucky, Christian K.R. Miller, Assistant Attorney General, Frankfort, KY, for appellee. Before TAYLOR, Chief Judge; LAMBERT and THOMPSON, Judges. OPINION THOMPSON, Judge: This case is on remand from the Kentucky Supreme Court, which vacated our prior opinion for reconsideration in light of Mullins v. Commonwealth, 350 S.W.3d 434 (Ky.2011). Upon reconsideration, we reverse Esley Dee Cornelius, Jr.'s convictions for tampering with physical evidence and first-degree persistent felony offender. The facts leading to Cornelius's convictions began with his involvement in a drug buy arranged by the McCracken County Sheriff's Department. 383 McCracken County Deputy Sheriff Jesse Riddle received a call from a confidential informant informing him that the informant had been contacted by an individual, later identified as Michael L. Williams, who indicated he would sell cocaine. The informant arranged to meet Williams to purchase $1,500 of crack cocaine. Williams designated the meeting place and told the informant that he would be in a large tan Dodge pickup truck. After the informant was wired with a recording device and his car searched, he departed to the designated buy location and the officers stationed themselves near the location. Williams arrived at the location as a passenger in the described pickup truck operated by Cornelius. The informant and Williams agreed to meet in a nearby parking lot to complete the drug sale. After the vehicles parked, Williams exited the passenger door and entered the informant's vehicle. The informant exchanged the $1,500 for a bag appearing to contain crack cocaine and Williams was arrested. Later analysis determined that the substance was not cocaine. During the transaction between the informant and Williams, Cornelius drove the vehicle from the parking lot to the next block. Detective Tom Crabtree was nearby in a marked cruiser and stopped the pickup truck. Detective Crabtree ordered Cornelius to "show his hands." Cornelius did not comply, was removed from the truck, and was ultimately handcuffed. A passenger in the truck was also removed. During a pat down search, Detective Crabtree felt a baggie in Cornelius's front pocket. Cornelius was arrested and interviewed by the sheriff's department. During the interview, he was asked if he placed the marijuana in his pocket to hide it from officers. Cornelius replied that if concealment was his intent, he would have placed it in his underwear. In addition to possession of marijuana, a Class A misdemeanor, Cornelius was convicted of tampering with physical evidence, a Class D felony, and first-degree persistent felony offender. He was sentenced to eleven-years' imprisonment. Cornelius argues that the trial court erred when it denied his motion for a directed verdict on the tampering charge. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). In conformity with our Supreme Court's decision in Mullins, we conclude that it was clearly unreasonable for the jury to convict Cornelius of tampering with physical evidence and reverse. The elements of the crime are set forth in KRS 524.100: (1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he: (a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; or (b) Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered. In Mullins, the Court examined the statutory elements and expanded on its discussion in Commonwealth v. Henderson, 85 S.W.3d 618 (Ky.2002). Therefore, we begin our analysis with a review of the Henderson decision. 384 Henderson and another person snatched a purse and were being chased by police when Henderson placed the money from the purse in the insole of his shoe and the purse was thrown from the vehicle. The Court stated the issue as follows: "[W]hether Appellee's act of placing the money in his shoe is sufficient to sustain the tampering with physical evidence conviction." Id. at 619. The Court rejected the notion that a tampering crime has not occurred simply because the incriminating evidence remains on one's person. It stated: To the extent the Court of Appeals regarded physical separation as a bright line requirement, we disagree. The investigatory process, which includes police chases, can be disrupted by hiding evidence on one's person in an unconventional place such as the insole of a shoe or perhaps within the inner lining of a jacket or other item of clothing or by swallowing it. The Court of Appeals reasoned that concealment in the shoe is the equivalent of placing money in a pocket. We believe there is a difference. When money is placed in a pocket there likely will be no evidence of intent to conceal. On the other hand, when stolen money is placed in a shoe, a jury may properly find the necessary intent. Id. at 619-20. The Court added that in regard to conventional versus unconventional locations, "[t]he type of evidence and the place where it is hidden is relevant." Id. at 620. The Court concluded that although some people do carry money in their shoes, the placement of money in the insole of a shoe while being pursued by police was an unconventional location sufficient to support a tampering conviction. Id. In Mullins, the Court reaffirmed its decision in Henderson. In that case, a handgun used to commit a murder was removed from the crime scene when Mullins fled. Mullins was convicted of murder and tampering with physical evidence. The Court reversed the tampering charge. The Court stressed that the Commonwealth cannot bootstrap a tampering charge onto another charge when there is no evidence of an active intent by the defendant to impair the availability of evidence. Mullins, 350 S.W.3d at 444. The Court explained: [I]ntent to impair availability of evidence, believing that an official proceeding may be instituted, is the standard required under KRS 524.100. Where the person charged with tampering is not a defendant, it is easier to infer that by destroying, concealing, mutilating, removing, or altering evidence, there is intent to impair its availability. However, where the person charged is the defendant, it is reasonable to infer that the primary intent when a defendant leaves the scene of a crime is to get himself away from the scene and that carrying away evidence that is on his person is not necessarily an additional step, or an active attempt to impair the availability of evidence. Here, it can be inferred that Appellant was holding the gun when he shot Faulkner and then ran to Porter's car and got in. Clearly, Appellant was attempting to flee the scene. The fact he carried the gun away from the scene with him was merely tangential to the continuation of that crime. Id. at 443. Although the facts in this case are not identical to those in Henderson and Mullins, the law pronounced is determinative. Cornelius was charged with possession. Although he placed the marijuana in his pocket, it was not an unconventional location even when being approached by police. Cornelius did not attempt to distance *385 himself from the marijuana and, in fact, remained in possession of the marijuana by placing it in a location where it could be easily discovered by a permissible pat down search. It was not an additional step or active attempt to impair the availability of evidence but was "tangential to the continuation" of the possession offense. Id. We conclude that placing marijuana in an outer clothing pocket is analogous to a shoplifter who hides property on his person to avoid detection. In Henderson, the Court observed that concealment is directly incidental to the underlying offense and stated: "The statute requires more. The concealment must be to prevent the evidence from being used in an official proceeding, a fact that is lacking in the typical shoplifting situation." Henderson, 85 S.W.3d at 620. Similarly, concealment of illegal drugs in a conventional location such as a pocket is directly incident to a possessory offense. Were it otherwise, a defendant would be required to have had the illegal drugs in plain view to avoid the offense of tampering with physical evidence. "Piling on" an additional charge to an underlying charge is precisely the situation forbidden by our Supreme Court. Mullins, 350 S.W.3d at 443. Under the facts presented, we hold that the trial court erred when it denied Cornelius's motion for a directed verdict on the tampering with physical evidence charge and reverse. Because we reverse his conviction for tampering, his conviction for first-degree persistent felony offender is also reversed. ALL CONCUR.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1150402/	531 So. 2d 615 (1988) M & M PIPE AND PRESSURE VESSEL FABRICATORS, INC. v. Steven M. ROBERTS, et al., etc. No. 57944. Supreme Court of Mississippi. September 14, 1988. 617 Fred Mannino, Ronald S. Cochran, Page, Minnino & Peresich, Biloxi, for appellant. James H. Heidelberg, Bryant, Stennis & Colingo, Pascagoula, for appellees. Before ROY NOBLE LEE, C.J., and SULLIVAN and ANDERSON, JJ. ANDERSON, Justice, for the Court: This is an appeal of the verdict and judgment of the Circuit Court of Jackson County. Appellant, M & M Pipe and Pressure Vessel Fabricators, was found liable for damages resulting from a four-car accident that claimed the life of Karl Roberts, Jr., the appellees' father. For the reasons discussed below, we remand for a new hearing on the issue of damages only. I. On the morning of May 22, 1984, David Buckler, an employee of M & M Pipe, was performing an errand for the company. He was driving the company owned 1978 pickup truck. It was undisputed that at the time of the accident, the brake lights on the truck were not working. Although the tail lights were functional, the red lenses covering the bulbs were broken out on both sides, causing their light to be very dim. During the course of his errand, it became necessary for Buckler to make a left turn off Industrial Road in Pascagoula. Because there was traffic in the oncoming lane, he came to a full stop before making his turn. Travelling in the same direction as the M & M truck was a 1980 Plymouth driven by Lindsey Dufek. Dufek's car was already dangerously close to the M & M truck when Dufek suddenly realized that the truck had stopped in order to make a left turn. Dufek applied her brakes, but the pavement was wet from a drizzle and the car went into a skid and began fishtailing. Dufek panicked and clamped her foot tight on the brake with the result that her car continued to skid into the adjacent right-hand lane where Michael O'Connor and his passenger Karl Roberts, Jr. had been driving parallel to her. There was a collision between the O'Connor car and the Dufek car. After impact the O'Connor car spun around into the oncoming lane, where it was struck on the passenger side by a southbound car driven by Wayne Kaminski. As a result of the second collision O'Connor's passenger, Karl Roberts, was apparently killed instantly. The plaintiffs, minor children of Karl Roberts, sued under the wrongful death statute through their mother and grandfather. Named as defendants were M & M, Buckler, Dufek, Kaminski and O'Connor. O'Connor settled before the trial. The jury returned verdicts for the defendants Wayne Kaminski and David Buckler, but found for the plaintiffs as against Lindsey Dufek and M & M Pipe. Dufek did not appeal, and M & M Pipe is the only defendant involved in this appeal. 618 LIABILITY II. A. M & M Pipe offers three reasons why the trial court erred on the issue of liability. First, M & M argues that the trial court erred in refusing to direct the verdict or grant its motion for judgment notwithstanding the verdict, because any negligence attributable to M & M Pipe was not the proximate cause of the accident. Mississippi has many cases outlining its doctrine of proximate cause, and the doctrine they embody has been consistently applied over the years. A case cited in the appellant's brief, Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So. 2d 34 (1943), is representative: Although one may be negligent, yet if another, acting independently and voluntarily, puts in motion another and intervening cause which efficiently thence leads in unbroken sequence to the injury, the latter is the proximate cause and the original negligence is relegated to the position of a remote and, therefore, a nonactionable cause. Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof. The question is, did the facts constitute a succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the alleged wrong and the injury? 38 Am.Jur. p. 702; Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 554, 166 So. 353. And so say all the authorities, among which, as a striking illustration, is Bufkin v. Louisville & N.R. Co., 161 Miss. 594, 137 So. 517. 194 Miss. at 639, 640; 13 So.2d at 36. Accord, Touche Ross & Co. v. Commercial Union Ins. Co., 514 So. 2d 315, 323-34 (Miss. 1987); Blackmon v. Payne, 510 So. 2d 483, 487 (Miss. 1987); and Saucier v. Walker, 203 So. 2d 299, 304 (Miss. 1967). In cases involving the issue of an intervening cause, this Court has laid particular stress on the concept of "putting in motion". That is, the original actor will not be absolved of liability because of a supervening cause if his negligence put in motion the agency by or through which injuries were inflicted. Capitol Tobacco & Specialty Co. v. Runnels, 221 So. 2d 703, 705 (Miss. 1969). See also, e.g., Blackmon v. Payne, supra, 510 So.2d at 487; Robison v. McDowell, 247 So. 2d 686, 688 (Miss. 1971); Simmons v. Amerada Hess Corp., 619 F.2d 440, 441 (5th Cir.1980). And "if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and injury." Ross v. Louisville and Nashville RR., 178 Miss. 69, 84, 172 So. 752, 755 (1937). See also, e.g., Touche Ross v. Commercial Union, supra, 514 So.2d at 323; Blackmon v. Payne, supra, 510 So.2d at 487; McCorkle v. United Gas Pipe Line Co., 253 Miss. 169, 188, 175 So. 2d 480, 489 (1965). In determining whether the actor's negligence was the proximate cause of the injury, it is not necessary that the actor should have foreseen the particular injury that happened; it is enough that he could have foreseen that his conduct could cause some injury. See, e.g., Nobles v. Unruh, 198 So. 2d 245, 248 (Miss. 1967); Cumberland Telephone & Telegraph Co. v. Woodham, 99 Miss. 318, 332, 54 So. 890, 891 (1911). Dufek's negligence, driving at too high a speed on a wet road, with worn tires and paying insufficient attention to traffic ahead, is certainly a foreseeable act of negligence. Indeed, it is precisely the type of negligence careful drivers of other vehicles must guard against. Under our existing case law Dufek's negligence was therefore not an intervening cause sufficient to cut off M & M's liability. This assignment of error is denied. B. M & M Pipe next argues that the trial court erred in granting to the appellees what amounted to a peremptory instruction. Jury Instruction P-13A reads: The Court instructs the jury that it is undisputed that on May 22, 1984, the 619 1978 Dodge Pick-Up Truck owned by the Defendant, M & M Pipe and Pressure Vessel Fabricators, and operated by the Defendant, David Buckler, was equipped with defective and broken rear red tail lights and defective and non-working brake lights. Therefore, the Court instructs the jury that the defendant, M & M Pipe and Pressure Vessel Fabricators, was negligent as a matter of law. The Court instructs the jury that if you find from a preponderance of the evidence in this case that such negligence of the Defendant, M & M Pipe and Pressure Vessel Fabricators, was a proximate contributing cause or the sole proximate cause of the death of Karl Louis Roberts, Jr., then your verdict shall be for the Plaintiffs against the Defendant, M & M Pipe and Pressure Vessel Fabricators. The appellant argues that by pronouncing him negligent per se, the court was in effect giving a peremptory instruction to the jury to find for the plaintiffs as to M & M's liability. However, this characterization fails to take into consideration the second half of the instruction, which informs the jury that they must also find that M & M's negligence was the proximate cause of the injuries. Had the jury not found that M & M's negligence was a proximate cause, it could, of course, have excused M & M from liability in spite of its negligence. In the alternative the appellant argues that the instruction was an incorrect statement of the law, in that there was no statutory basis for holding M & M negligent per se. The two pertinent statutes provide: § 63-7-25. Visibility of clearance, side-marker, and tail lamps. Clearance, side-marker, and tail lamps shall, when lighted, be capable of being seen at a distance of five hundred feet under normal atmospheric conditions during the time when lights are required. The light from front clearance lamps shall be visible to the front, from sidemarker lamps to the side, and from rear clearance and tail lamps to the rear, of the motor vehicle. § 63-7-27. Performance and visibility of stop lights; incorporation with tail lamps. Stop lights shall be actuated upon application of the service (foot) brake and shall be capable of being seen and distinguished from a distance of one hundred feet to the rear of the vehicle in normal daylight. Stop lights shall not project a glaring or dazzling light. A stop light may be incorporated with a tail lamp. Mississippi Code Annotated (1972). Everyone admitted that the brake lights on the M & M truck were not working. Therefore, M & M was in fact, negligent per se as to those brake lights, and the instruction correctly informed the jury as to that fact. The difficulty arises as to the broken tail lights. The evidence indicated that the red plastic covering both tail lights was broken, although it was undisputed that both bulbs were burning. The quality and character of the light from these tail lights, the distance from which they were visible, were matters in controversy. Therefore, whether or not M & M was negligent as to the broken tail lights should have been a matter for the jury and the trial court erred by taking this issue from the jury through this instruction. Such errors, however, are not necessarily reversible. Since the appeal in this trial was perfected before January 1, 1988, when the new Mississippi Supreme Court Rules came into effect, the issue is controlled by Rule 11 of the old Rules which states: No judgment shall be reversed on the ground of misdirection to the jury ... unless it shall affirmatively appear, from the whole record, such judgment has resulted in a miscarriage of justice. On this record it does not appear that the error resulted in a miscarriage of justice. It must be remembered that the accident occurred at 8:00 in the morning a morning on which visibility was good. Since the 620 accident occurred under circumstances in which an automobile would not normally have its tail lights turned on at all, there is no basis for entertaining the idea that a reasonable jury could find the broken tail lights contributed materially to the accident. The error in the instruction was harmless. C. Last on the issue of liability, M & M Pipe asserts that the trial court erred by allowing Officer Sheila Jenkins to render expert opinion testimony. Pursuant to Rule 26 (b)(4)(A)(i) of the Mississippi Rules of Civil Procedure, the defendants asked the plaintiffs to supply the identity of any expert witnesses they were to call, and the substance of their testimony. The plaintiff's initial response was that they did not plan to call any experts, but would notify the defendants if there were any change. In August 1985, having heard a report that they planned to call an economist, the defendants filed a motion to compel discovery and for sanctions. The plaintiffs' supplemental response on the 29th of August named Dr. Pike, an economist, as the expert witness who was to testify about Roberts' earning capacity. They enclosed his report. On February 13, 1986, the court entered a pre-trial order requiring the parties to disclose the names of witnesses, their status, whether fact or expert, and the subject matter of their anticipated testimony. On February 21, the defendants received notice that Officer Jenkins of the Pascagoula police department would testify as an expert witness and give her opinion regarding the cause of Roberts' death and the specific acts of negligence of the defendants. The trial began on Monday, February 24, 1986. Much earlier, on November 7, 1984, Officer Jenkins was included in a list of fact or occurrence witnesses as part of the plaintiffs' Answers to Interrogatories. On November 29, 1984, the defendants deposed Officer Jenkins. During that deposition, Jenkins testified generally about the accident scene and particularly about her investigation which uncovered, among other things, the fact that the M & M Pipe truck's brake lights were not working. She also gave her opinion as to the initial point of impact. Prior to accepting Jenkins' testimony at trial, the court ruled that she could testify as a fact witness and that whether she could testify as an expert would depend on proper qualification. Officer Jenkins was never qualified or tendered as an expert witness. When, during direct examination, the issue of fault arose, the jury was excused and Jenkins was voir dired. The trial court ruled that Officer Jenkins would not be allowed to voice her opinion concerning who was at fault in the accident. However, the court did determine that, if an adequate factual basis was established, Jenkins could give her opinion concerning contributing factors. Over objection, Jenkins testified that, in her opinion, the defective brake lights contributed to the accident. When discovery rules are violated, Rule 37(b)(2)(B), M.R.C.P., authorizes the trial court to issue "an order ... prohibiting [the defaulting party] from introducing designated matters in evidence." Whether such a sanction should be imposed is committed to the sound discretion of the trial court. See, Conservatorship of Stevens v. Patrick, 523 So. 2d 319, 321 (Miss. 1988). While the plaintiffs may have violated Rule 26(b)(4)(A)(i), M.R.C.P., due to their failure to timely supplement their answers to interrogatories concerning expert witnesses, the violation amounted to nothing. In spite of the trial court's ruling that Officer Jenkins might be allowed to testify as an expert, she did not. She was well known by the defendants as a fact witness; therefore, there was no surprise. As a lay witness, and based on her personal observations, Jenkins opined that the broken brake lights contributed to the accident. Rule 701 of the Mississippi Rules of Evidence authorizes such opinion testimony by lay witnesses. It does not take an expert to know that if brake lights are not functioning, an accident may occur. Who among us has not been forced to react quickly after belatedly discovering that the brake lights on the car in front of us do not work? Based on the fact that the defendants 621 knew through discovery that Officer Jenkins was a fact witness and based on the type of opinion testimony she gave, the trial court committed no error. DAMAGES III. M & M Pipe alleges that the trial court erred in instructing the jury on the elements of "loss of society and companionship" and "pain and suffering". M & M Pipe also contends that the court erred in prohibiting evidence, comments or arguments regarding the fact that at the time of his death, Karl Roberts was not supporting his children, the plaintiffs. Over defense objections, the court granted Jury Instruction P-21. This instruction states in part: In determining the amount of such damages, you may consider such of the following elements of damages as are shown by a preponderance of the evidence: (1) The loss of society and companionship of Karl Louis Roberts, Jr. to his two children Steven M. Roberts and Chisolm C. Roberts; ..... (3) Pain and suffering endured by Karl Louis Roberts prior to his death. The well-established rule in Mississippi is that a jury instruction will not be granted unless there is some basis for it in the evidence. E.g., Detroit Marine Engineering v. McRee, 510 So. 2d 462, 465 (Miss. 1987); Lewis Grocer Co. v. Williamson, 436 So. 2d 1378, 1380 (Miss. 1983); Johnson v. Foster, 202 So. 2d 520, 526 (Miss. 1967). Where death in an accident is instantaneous, there can be no recovery for pain and suffering in a wrongful death action. E.g., Yazoo and Miss. Valley RR Co. v. Lee, 148 Miss. 809, 823, 114 So. 866, 869 (1928). The plaintiff has the burden of proving survival and consciousness after the accident. Avery v. Collins, 171 Miss. 636, 647, 157 So. 695, 698 (1934), and this burden is not sustained unless there is "substantial proof" of consciousness after the impact. Standard Oil Co. v. Crane, 199 Miss. 69, 82, 23 So. 2d 297, 300 (1945). In the present case, no one testified that Karl Roberts was alive or conscious at any time after the collision. David Buckler went to the O'Connor car immediately after the wreck, removed Roberts from the car and testified "I thought he was dead at that point, but I wasn't sure." O'Connor, the driver of the car in which Roberts rode, was asked if he heard Roberts say anything and he answered, A. Uh, at one point when Miss Dufek tapped us there and he realized we were getting ready to go into . .. some problem, ... he did, he cussed a little bit. He knew we had a problem coming here. At most, this shows that there was a moment when Roberts anticipated the accident. However, the appellee cites no case standing for the proposition that momentary anxiety caused by an anticipated accident can support damages for pain and suffering under the wrongful death statute. In short, there was no "substantial proof" that Karl Roberts survived the moment of impact and therefore the trial court erred in instructing the jury on the point. Jury Instruction P-21 also informed the jury that it could consider the loss of society and companionship of Roberts to his two children in computing the amount of damages, if any. In his five-year marriage to the present Marjorie Jean Leimbach, the decedent Karl Roberts fathered two children, the plaintiffs in the present action. The marriage was dissolved in 1981; the two children now reside in East Ridge, TN, with their mother and step-father Dean Leimbach. Their stepfather supports them. In answers to interrogatories from Kaminski and Buckler, the plaintiffs' attorneys admitted that Roberts did not substantially support his children, and "did not contribute to the support of his children on a regular basis" although they did tell Kaminski that he did on occasions provide money and other gifts for his children. Plaintiffs admitted to Buckler that at one point contempt proceedings were filed against Roberts because of his failure to 622 pay the child support mandated by the court. At trial, the only testimony before the jury on the matter was from O'Connor, the driver of the car in which Roberts died. O'Connor stated that his sister, Cindy Williams, and Roberts had been living together for three or four years. O'Connor also told the jury that Karl Roberts was supporting Cindy's two children by a previous marriage, even though he had never seen these children. As to Roberts' own children, O'Connor testified that he knew of no visits to or from the children, "I do know he spoke about them a lot and cared for them very much." There was no evidence of any kind in the record concerning written communications between parent and child. The basis for this assignment of error is that even after Roberts' closeness to his children became an issue, the trial court refused to allow M & M Pipe to introduce any evidence tending to show what the plaintiffs had already admitted in discovery the fact that even though Karl Roberts was supporting Cindy Williams' two children, he was not supporting his own children. The trial judge excluded this evidence because he considered it in the context of its impact on the present cash value of Roberts' life. He reasoned that Roberts had a legal obligation to support his children and the children should not be deprived of their entitlement even if Roberts had failed to discharge that duty in the past. This reasoning was well taken as to the present cash value issue, but such evidence has a bearing on the issue of Roberts' affection for and relations with his children. Had the jury been allowed to hear that Roberts had chosen to support two other children instead of his own natural children, it undoubtedly would have affected their evaluation of O'Connor's testimony that "he cared very deeply" for the children. In McGowan v. Est. of Wright, 524 So. 2d 308 (Miss. 1988), a widow filed a wrongful death action against the estate of her husband's mistress, who was driving the car when both of them were killed in an accident. The court noted that McGowan and his wife, though never divorced, had been separated since 1946. Husband and wife saw each other only four times during that long period; each of these times, it was the wife who visited the husband. Except for a single Christmas card, there was no written communication between the two during this entire period. This Court took note of the fact that such evidence mitigated strongly against any finding of damages for the loss of society and companionship. It laid great stress on the fact that "the jury had all the facts before it [and] obviously concluded that appellant had no loss of society and companionship and therefore suffered no damage." Similarly, in the present case, there is reason to believe that if the jury "had all the facts before it," as to the relationship or lack thereof, between Karl Roberts and his children, they might have made a similar finding. The trial judge's ruling, disallowing evidence of the lack of child support removed a significant body of highly relevant evidence from the jury's consideration. The trial judge erred in excluding this evidence. Any problem concerning its relevance to particular issues such as present cash value should have been handled through appropriately drafted instructions, rather than a total exclusion of the evidence. These two trial errors require that we reverse and remand for a new hearing only on the issue of damages. Because of our disposition of the case we need not address M & M Pipe's last assignment of error. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A NEW HEARING ON THE ISSUE OF DAMAGES. ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, GRIFFIN and ZUCCARO, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540426/	361 S.W.3d 417 (2011) Phong TRAN, Appellant, Emily Tran, Plaintiff, v. DAVE'S ELECTRIC COMPANY INC., Respondent, Laura Hale, Defendant. No. WD 71183. Missouri Court of Appeals, Western District. November 15, 2011. 418 Edward D. Robertson, Jr. and Mary D. Winter, Jefferson City, MO, and Brendan C. Buckley and James T. Thompson, Kansas City, MO, for appellant. William J. Foland, Jr. and Cory L. Atkins, Kansas City, MO, for respondent. Before: MARK D. PFEIFFER, P.J., and THOMAS H. NEWTON and ALOK AHUJA, JJ. ALOK AHUJA, Judge. Phong Tran, the plaintiff below, appeals the trial court's denial of his motion for judgment notwithstanding the verdict ("JNOV") against defendant Dave's Electric Company ("the Company"), after a jury found for the Company on Tran's claim that the Company was vicariously liable for the negligence of its then-President. Because the undisputed facts establish as a matter of law that the Company's President was acting in the course and scope of her employment for the Company at the time of the automobile accident in which Tran was injured, we reverse and remand for entry of JNOV in Tran's favor. Factual Background Tran was driving on Missouri Highway 291 in Cass County on January 27, 2004, when Laura Hale crossed onto his side of the road and struck his vehicle. Tran was injured in the accident. He filed suit against both Ms. Hale and the Company. At the time, Ms. Hale was the President and sole Director of the Company. The other officer of the Company was Ms. Hale's then-husband, David Hale.[1] At trial, it was undisputed that at the time of the accident Ms. Hale was driving into the office from her home to meet with an auditor from the Company's workers compensation insurance carrier. It was also undisputed that, but for the workers compensation audit appointment, Ms. Hale would normally have worked from home on that day due to the inclement weather. Finally, the undisputed evidence establishes that Ms. Hale was unable to reschedule or cancel the auditor appointment on the morning of January 27, 2004, that she was the only Company employee in a position to meet with the auditor, and that she made the trip into the office because it was important to the Company's interests that the auditor not be abandoned at the Company's office. 419 The Company and Tran both moved for summary judgment on the vicarious liability issue prior to trial. Both the Company and Tran also moved for a directed verdict on the issue at the close of Tran's evidence at trial, and at the close of all of the evidence. The circuit court denied all of these motions. The court found that reasonable minds could differ as to whether Ms. Hale was acting within the course and scope of her employment at the time of the accident, and submitted the issue to the jury. The jury returned a verdict finding Ms. Hale personally liable, and awarding Tran $1.4 million in compensatory damages for his injuries. The jury found in the Company's favor, however, on Tran's vicarious liability claim. Tran filed a timely JNOV motion, claiming that the trial court had erred in submitting the respondeat superior issue to the jury. The trial court denied Tran's JNOV motion. This appeal follows. Standard of Review "The standard of review for the denial of a judgment notwithstanding the verdict (JNOV) is essentially the same as review of the denial of a motion for directed verdict." All Am. Painting, LLC v. Fin. Solutions and Assocs., Inc., 315 S.W.3d 719, 723 (Mo. banc 2010) (citation omitted). In other words, "[a]s to denials of motions for judgment notwithstanding the verdict based on a conclusion of law, our review is de novo." Horner v. FedEx Ground Package Sys. Inc., 258 S.W.3d 532, 535 (Mo. App. W.D.2008). Parties bearing the burden of proof generally are not entitled to a directed verdict. However, the plaintiff is entitled to a directed verdict in the unusual situation where the defendant has admitted in its pleadings, by counsel, or through the defendant's individual testimony the basic facts of the plaintiff's case. In such instances, the plaintiff is entitled to a directed verdict because there is no question of fact remaining for the jury to decide. All Am. Painting, 315 S.W.3d at 723 (emphasis added) (citing Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993)). For the reasons explained below, we conclude that this case, like All American Painting, presents the "unusual situation" in which a JNOV in favor of plaintiff Tran was justified. Analysis Tran asserts a single Point Relied On, contending that the trial court erred in denying his JNOV motion on the issue of the Company's respondeat superior liability. Tran maintains that the material, undisputed facts are that Ms. Hale was required under her duty to the corporation to go into work for an unavoidable task on a day on which she would not normally have done so. Tran asserts that the only interpretation of these facts is that Ms. Hale was on a "special errand" for the Company, meaning that she was acting in the course and scope of her employment for the Company at the time of the accident, even though she was traveling from her home to the Company's office at the time. "Generally, an employer is not liable for damages under the doctrine of respondeat superior for injuries caused by an employee's negligent operation of a vehicle which occurred while that employee is going to or coming from work." Tuttle v. Muenks, 964 S.W.2d 514, 517 (Mo.App. W.D.1998) (citation omitted). The rationale for the "going and coming" rule appears to be that, in an everyday commute to and from work, the employee is fulfilling the employee's own personal purposes of preserving employment and earning compensation 420 by being available for work; in addition, the nature and extent of an employee's commute, and the risks the employee faces during that commute, are dictated by the employee's personal decisions as to where to reside and how and when to travel, and are unrelated to any particular feature of the work they perform at the employer's direction.[2] There are several exceptions to this "going and coming" rule, however. Tran relies on one such exceptionthe "special errand" doctrine. The "special errand" rule states that when an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. Thus, while the general rule is that accidents incurred while an employee is going to or coming from work are not compensable because they do not arise out of and in the course of employment, that rule is not applicable where the employee during that period performs a special task, service or errand in connection with his or her employment. Such circumstance might be better characterized as causing a trip made in performing such a special task to be a part of the employment. Custer v. Hartford Ins. Co., 174 S.W.3d 602, 614 (Mo.App. W.D.2005) (en banc) (citations and internal quotation marks omitted).[3] Tran argues on appeal that "the special inconvenience ... of making [the journey] in the particular circumstances" justifies invocation of the "special errand" doctrine in this case. Prior Missouri cases addressing the "special errand" exception provide guiding principles. Thus, in Custer, an employee was injured on his drive home after participating in a golf tournament at the direction (if not the order) of his employer. 174 S.W.3d at 607, 614. Because 421 of the inconvenience of making an irregular trip solely for the sake of his employer, the trouble and time due to the distance of the golf course from the employee's home, and the hazard presented by the drive home "on a dark, rainy night," we found that the Labor and Industrial Commission had sufficient evidence to find that the employee was on a special errand at the time of his injury, and therefore entitled to workers compensation benefits. Id. at 614. In contrast, we affirmed the Commission's finding that an employee was not on a "special errand" in Hilton v. Pizza Hut, 892 S.W.2d 625 (Mo.App. W.D.1994).[4] In that case, the employer told the employee on a Monday that she had to produce her original Social Security card by the coming Friday to confirm her eligibility for employment, or she would be terminated. Id. at 634. In response, the plaintiff drove in the middle of the night to another town in order to retrieve her card, and was injured in an accident en route. Id. However, while the plaintiff was undeniably travelling to retrieve the card in order to satisfy her supervisor's demand, we nonetheless found that she was not on a special errand because she had "made a personal choice to drive that evening when there were other options available." Id. We explained that, while the employer had given the employee an unequivocal directive, the employee retained the flexibility as to how, and when, to comply, including by taking the trip at another time, asking someone else to look for and mail her the card, or ordering a new card; the employee did not have to travel in the middle of the night in order to accomplish the employer's objective. Id. We stressed that "[t]here must be continuity of cause combined with continuity in time and space" between the employment and the injury in order for the "special errand" exception to apply. Id. Similarly, we found the "special errand" exception to be inapplicable in Logan v. Phillips, 891 S.W.2d 542 (Mo.App. E.D. 1995), a personal-injury action. In Logan, the plaintiffs argued that a police officer was engaged in a "special errand" when traveling from home to court in the evening, after his regular day shift, in order to testify under subpoena. Id. at 544-45. In rejecting the application of the "special errand" doctrine, Logan emphasized that "[p]roviding testimony in court was a routine duty of City police officers. A duty-related trip made regularly in the course of duty is not a `special errand.'" Id. at 545 (citation and internal quotation marks omitted). Under these decisions, to qualify as a "special errand" a trip which would otherwise fall within the "going and coming" rule must be undertaken to serve the employer's purposes, at a time and in a manner dictated by those purposes; the trip must not be a routine portion of the employee's duties, and must subject the employee to special inconvenience, hazard, or urgency. "Whether the factual circumstances warrant an imposition of vicarious liability is a question of law for the court when the material facts from which the issue is to be decided are undisputed and lead to only one reasonable conclusion." Horner, 258 S.W.3d at 537. Here, it is undisputed that Ms. Hale was not making the injury-causing trip as part of a regular commute to her workplace. To the contrary, both Laura and David Hale testified that Ms. Hale would not have made this trip to the 422 office in regular circumstances, but would instead have worked from home but for the special need to meet the auditor at the Company's offices. Indeed, in denying both parties' motions for directed verdict at the close of Tran's evidence, the trial court recognized that "Mrs. Hale didn't normally go into the office during inclement or bad weather," and "that both parties agreed that Mrs. Hale wouldn't have gone into the business office but for the audit." Both Laura and David Hale testified that she was the only Company representative capable of providing the auditor with the information necessary for the audit, and that it was important to the Company's business interests that the auditor be met by a Company representative at the appointed time. Ms. Hale testified that canceling the meeting and rescheduling was not an available option, because the auditor's phone number was at the office and unavailable to her; David Hale agreed in his testimony that Ms. Hale had no alternative means of advancing the Company's interests. Further, the Hales' testimony indicates that while the roads were driveable on the morning of the accident, they were slick and required drivers to exercise heightened caution (circumstances which would normally have led Ms. Hale to remain at home).[5] It is also clear from the evidence that working from home was an entirely satisfactory method for Ms. Hale to discharge her (other) employment-related responsibilities when the weather was inclement, and that she would have suffered no adverse employment consequences by working from home on that day. Therefore, her personal interest in maintaining her employment and earning compensation did not require the trip. Thus, the evidence from the Company's own representatives establishes that Ms. Hale was required to make a specific journey, at a specific time and to a specific place, under potentially dangerous conditions, based solely on the needs of the Company, and as the sole available means of furthering the Company's interests.[6]423 Undertaking the trip was contrary to Ms. Hale's own personal concerns regarding the weather and the condition of the roads, and was unnecessary to her personal interest in maintaining her employment. These undisputed facts are sufficient to invoke the "special errand" exception.[7] Although all of the material facts described above are undisputed, and derived from the testimony of the Company's principals, the Company argues that a JNOV is inappropriate because those facts, even if undisputed, are subject to more than one reasonable interpretation. We disagree. Here, the undisputed facts establish that Ms. Hale made an irregular, non-routine trip which was necessitated solely by the Company's interest, at a time and place dictated solely by those interests. Only one reasonable conclusion can be derived from these facts. We recognize that, in other circumstances, Ms. Hale may have frequently and regularly driven from her home to the Company's office as a normal commute. That is not the reason she was driving there at the time of the accident, however; instead, she was traveling on that day, and at that time, due to a specific need of her employer. While Missouri decisions may not have addressed this precise situation, the leading workers compensation treatise, to which Missouri courts have frequently referred concerning such questions, provides a relevant example: [I]n Kyle v. Green High Sch[ool], [208 Iowa 1037, 226 N.W. 71 (Iowa 1929),] the deceased janitor usually worked from 5 A.M. until about 3:30 P.M., although his 424 hours of work were not definitely fixed. On the evening of the fatal accident, he received a call at his home asking him to come to the school to turn on the lights for a basketball game, since something seemed to be wrong with them. On his way he was struck in the street by an automobile. Compensation was awarded. Note that in this case the duty performed was, in one sense, a normal one for the janitor; yet the essence of the service performed in the special journey was the making of the trip itself at a time when the janitor usually remained home. 1 Arthur Larson & Lex Larson, LARSON'S WORKERS' COMPENSATION § 14.05[1], at 14-6 (2001) (footnotes omitted). Numerous cases from other jurisdictions hold that, despite the "going and coming" rule, a trip taken to the workplace outside of regular work hours, in order to satisfy a particular, time-sensitive interest of the employer, constitutes a "special errand" falling within the course and scope of employment.[8] More specifically, courts have found the "special errand" exception to be applicable when an employee travels to work on a regularly scheduled workday, but when the employee would not normally have traveled to work on that day due to weather conditions. In this regard, Junium v. A.L. Bazzini Co., 86 A.D.2d 690, 446 N.Y.S.2d 520 (1982), bears striking similarities to the present case. In Junium, an employee, a corporation's secretary, was informed on a weekday morning that he had to attend an Internal Revenue Service audit at the corporation's offices, because the corporation's vice president would be unable to attend due to "an unusually severe blizzard." Id. at 521. Attendance at the audit of either the vice president or corporate secretary was required. Id. The employee attempted to shovel the deep snow on his driveway to make the trip, but suffered a heart attack while doing so, and died. The court found that the employee's survivors were entitled to workers compensation benefits, because the circumstances justified application of the "special errand" exception to the "going and coming" rule. The court justified application of the "special errand" exception based on circumstances which also exist here: Here, decedent attempted to comply with the special direction of his superior to attend a crucial audit appointment, 425 despite hazardous weather conditions. Although this was a regular work day and decedent would routinely drive to work or to the train station, the record supports an inference that decedent would have remained at home on this particular day absent this direction. Id. See also Walsh v. Indus. Comm'n, 34 Colo. App. 371, 527 P.2d 1180, 1181 (1974) ("special errand" exception applied where employee was instructed to report for work "by any means available to her" after she initially attempted to make commute and got stuck in the snow, and reported to employer that she was unable to attend). Because on the date of the accident Ms. Hale would normally have been able to work from home with impunity due to the inclement weather, the fact that she was traveling to the Company's office on a regularly scheduled work day does not defeat the application of the "special errand" exception. Conclusion The undisputed facts, derived from the testimony of the Company's principals, establish that Laura Hale was engaged in a "special errand" on behalf of the Company at the time she negligently caused the accident in which Tran was injured. Because Ms. Hale was acting in the course and scope of her employment at the time of the injury-causing accident, the Company was vicariously liable for the damages which the jury found to have been proximately caused by Ms. Hale's negligence. We accordingly reverse the circuit court's judgment as to Dave's Electric Company, and remand for the circuit court to enter a judgment notwithstanding the verdict in favor of Tran and against the Company. All concur. NOTES [1] Laura and David Hale had divorced prior to trial; Ms. Hale's employment with the Company terminated at the same time. David Hale was Vice President of the Company at the time of the accident, and its President at the time of trial. [2] See Custer v. Hartford Ins. Co., 174 S.W.3d 602, 611 (Mo.App. W.D.2005) (en banc) ("in most circumstances, a trip to or from one's place of work is merely an inevitable circumstance with which every employee is confronted and which ordinarily bears no immediate relation to the actual services to be performed") (citation and internal quotation marks omitted); Logan v. Phillips, 891 S.W.2d 542, 544 (Mo.App. E.D.1995) ("Ordinarily, getting to the place of work is a personal problem of the employee and not part of his services to his employer.") (citation omitted); Davis v. McDonnell Douglas, 868 S.W.2d 170, 171 (Mo.App. E.D.1994) ("The rationale behind this principle is that the employee going to and from work is subject only to the common risks shared by the general public and not to any risk causally related to employment.") (citation omitted). [3] Several of the cases cited in this opinion involve workers compensation claims asserted by an injured employee against his or her employer. Our Supreme Court has held that "[t]he conceptual bases of workers' compensation programs and vicarious liability ... appear to be identical: compensation of the injured party at the expense of the party in the best position to distribute the loss. Workers' compensation laws thus accomplish for employees what the common law, through respondeat superior, accomplishes for plaintiffs generally." Zueck v. Oppenheimer Gateway Props., Inc., 809 S.W.2d 384, 389 (Mo. banc 1991) (citation and internal quotation marks omitted). See also Tuttle, 964 S.W.2d at 518 (finding workers compensation cases "instructive" in applying an exception to the "going and coming" rule in a personal-injury case brought by a non-employee plaintiff); Logan v. Phillips, 891 S.W.2d 542, 544 (Mo. App. E.D.1995) (wrongful death case; relying on workers compensation cases applying "special errand" exception). [4] Overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). [5] The Company argues that a JNOV was inappropriate because the evidence indicates that the audit had previously been rescheduled and could have been rescheduled again, and that, following Ms. Hale's accident, no audit was ultimately performed for the year in question, without any adverse effect on the Company's workers compensation insurance coverage. Ms. Hale testified, however, that on the morning in question she had no access to the phone numbers which would have permitted her to contact the auditor and cancel the audit. Further, both Laura and David Hale testified that, at the time, they believed it was important to the Company that Ms. Hale physically appear at the Company's offices on the morning of January 27, 2004. Thus, Ms. Hale testified that it "wouldn't be very responsible as a business owner" to fail to meet the auditor, and that, "I just knew I had to be there." For his part, David Hale testified that he did not dispute Ms. Hale's conclusion "that it was extremely important for Dave's Electric not to leave an insurance company's auditor out in the cold," and agreed that Ms. Hale's "only option for the interest of the business of Dave's Electric was to meet that auditor." Given this testimony, it is irrelevant whether, in hindsight, Ms. Hale's trip was actually necessary. The business necessity of a journey, and the availability of other options to meet the employer's needs, must be determined from the perspective of the employer and employee at the time the trip was undertaken. [6] We recognize that, because she was no longer affiliated with the Company at the time of trial, Laura Hale's testimony may not constitute admissions of the Company. See, e.g., Brenneke v. Dep't of Mo., Veterans of Foreign Wars, 984 S.W.2d 134, 144-45 (Mo.App. W.D. 1998). The same cannot be said of David Hale, however. David Hale was the Company's Vice President at the time of the accident, and its President at the time of trial; his testimony on the relevant points therefore constituted admissions binding on the Company. Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 124 (Mo. banc 1995) ("a person with executive capacity is generally an agent for the entity he or she serves and has broad authority to bind the principal by his or her statements"); German v. Kansas City, 512 S.W.2d 135, 145-46 (Mo. banc 1974). David Hale's testimony was, therefore, "the defendant's individual testimony" for purposes of determining whether a directed verdict or JNOV was proper. All Am. Painting, 315 S.W.3d at 723. As explained in the text, his testimony establishes "the basic facts of the plaintiff's case" on the vicarious liability issue, id., justifying the entry of a directed verdict and, after trial, a JNOV. [7] We note that Hilton also states that, for the "special errand" exception to apply, "the employer must direct the employee to do a specific task at a particular time and the accident or injury must occur while the employee is on that `special errand' for the employer." 892 S.W.2d at 634 (emphasis added). Here, Ms. Hale was the Company's President and sole director, and was in charge of her own schedule. The undisputed evidence does not establish that anyone else, such as her then-husband, directed her to travel to the office to meet the workers compensation auditor on January 27, 2004. To the extent an employer direction is otherwise required to invoke the "special errand" exception, that requirement is inapplicable where, as here, the employee at issue is the employing entity's chief executive, with no superiors within the entity, and has been given discretion as to the manner in which she discharges her responsibilities to the entity. See, e.g., Hickey v. Union Pac. R.R. Co., 104 Or.App. 724, 803 P.2d 275, 277 (1990) ("special errand" exception applied where, in the absence of supervisor, employee "had the authority to decide when it was necessary to work outside his regular hours"); Johnson v. Fairbanks Clinic, 647 P.2d 592, 595 (Alaska 1982) (physician, who traveled to hospital on weekend for pre-surgery consultation with patient, was acting at the "implied request" of employer where, in physician's professional judgment, "it was necessary for him to visit the patient that day so that the surgery could be performed on Monday"); In re Papanastassiou's Case, 362 Mass. 91, 284 N.E.2d 598, 600-01 (1972) ("special errand" exception applied where research chemist determined, in the exercise of professional judgment, that an evening trip to monitor ongoing experiment was necessary). As explained in the text, the fact that Ms. Hale was on a "special errand" is established here by the fact that her personal purposes would have been satisfied by working from home on the date in question, and that she traveled into the office at a specific time based solely on her assessment that the business needs of the Company necessitated the trip. [8] See, e.g., Barnes v. Children's Hosp., 109 Md.App. 543, 675 A.2d 558, 566 (1996) (employee injured while traveling to work on a Saturday, which was not a regularly scheduled workday, in response to employer page concerning computer difficulties); Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 345 (Del. 1993) (employee injured during travel to work at 2:00 a.m., five hours before start of scheduled work shift, to respond to equipment breakdown which had halted plant operations); Hickey v. Union Pac. R.R. Co., 104 Or.App. 724, 803 P.2d 275, 278 (1990) (employee on special errand when he returned to work after regular shift to load truck which was scheduled to leave early the next morning, and truck could not be loaded during regular shift because of its late arrival at warehouse); Johnson v. Fairbanks Clinic, 647 P.2d 592, 595 (Alaska 1982) (physician traveled to hospital for pre-surgery consultation with patient in the middle of a long weekend, where evidence indicated that physician "was rarely called to perform work during a long weekend"); Briggs v. Am. Biltrite, 74 N.J. 185, 376 A.2d 1231, 1234 (1977) (employee traveled to work on Sunday, outside of regularly scheduled workdays, for overtime work); Heinz v. Concord Union Sch. Dist., 117 N.H. 214, 371 A.2d 1161, 1163 (1977) (high school teacher killed in motorcycle accident during travel to student dance he had agreed to chaperone, after normal working hours, as non-routine work-related responsibility); In re Papanastassiou's Case, 362 Mass. 91, 284 N.E.2d 598, 600-01 (1972) (research chemist made evening trip to workplace to monitor ongoing experiment); Jonas v. Lillyblad, 272 Minn. 299, 137 N.W.2d 370, 371 (1965) (hotel maintenance worker made evening trip to hotel to adjust furnace and boiler).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540500/	338 S.W.3d 823 (2011) Yusuf ABDUR-RAHMAN[1], Appellant, v. Nicole R. PETERSON, Appellee. No. 2010-CA-001366-ME. Court of Appeals of Kentucky. April 29, 2011. 824 Briana Geissler Abbott, Louisville, KY, for appellant. R. Dale Warren, Louisville, KY, for appellee. Before CAPERTON, COMBS, and KELLER, Judges. OPINION CAPERTON, Judge: Yusuf Abdur-Rahman appeals from the trial court's order amending a domestic violence order to include Yusuf and Nicole Peterson's minor child. After a thorough review of the parties' arguments, the record, and the applicable law, we find reversible error and, accordingly, reverse and remand this matter to the trial court for further proceedings. The parties have never been married but have a minor child together. The parties have been before the family court several times based on Nicole's alleging domestic violence. On November 12, 2009, the court entered a domestic violence order ("DVO") on behalf of Nicole. Thereafter, on May 11, 2010, Nicole filed a motion to include the parties' minor child in the DVO. The court held a hearing on May 20, 2010. At the hearing Nicole testified that the minor child was returned to her from Yusuf's care with a rash, two burns on her leg, and a bump on her head. Nicole also stated that on Sunday, May 9, 2010, Yusuf brought the minor child to Nicole's mother's house for Mother's Day. While there, Nicole noticed a rash on the minor child and requested that Yusuf take the child to the pediatrician the next day. Nicole testified that Yusuf acted suspiciously and that he would not allow anyone to be alone with the child that day. When Yusuf returned the child to Nicole on May 11, 2010, Nicole noticed two burns on the child's leg and Yusuf could not provide a plausible explanation for the burns. Nicole took the child to the hospital. Yusuf testified that he did not know where the burns came from but that he thought they occurred at Nicole's mother's house, since after their visit he noticed the burns. Yusuf added that there 825 were curling irons at Nicole's mother's house and that he heard the child cry while she was with Nicole's sisters. Yusuf treated the burns with aloe vera, Neosporin, and a bandage. When he took the child to the pediatrician, the doctor treated the rash and not the burns. Yusuf introduced numerous handwritten notes and e-mails from Nicole to Yusuf that expressed her gratitude for his being a good father. After hearing this evidence, the court concluded that the child's burns were worrisome and severe, and that Yusuf's indifferent attitude toward the cause of the child's burns and obtaining treatment for her injuries was sufficient for the court to extend the DVO to the child. In its order amending the DVO, the trial court found that Nicole had established by a preponderance of the evidence that Yusuf had committed an act of domestic violence or abuse and that it may occur again, that the DVO was extended to the minor child, and for Yusuf to have supervised visitation for three hours each Saturday. Yusuf filed a motion to alter, amend, or vacate the court's DVO, which the court denied. It is from this amended DVO that Yusuf now appeals. On appeal, Yusuf presents four arguments, namely, (1) the trial court erred when it denied Yusuf a full evidentiary hearing by refusing to hear the testimony of two witnesses, one of whom would have testified that the burns to the minor child had to have happened at the home of Nicole's mother while both parents were present; (2) the trial court refused to allow testimony regarding Nicole's mental health history into evidence when Nicole had attempted to commit suicide while pregnant less than nineteen months prior to the hearing, and custody was at issue in the hearing; (3) the trial court erred when the court made medical findings regarding the degree of the burns and the appropriate treatment of said burns when there was no medical proof presented by testimony or through documents; and (4) the court erred by entering a DVO because the facts do not support a DVO for the minor child. At the outset, we note that Kentucky Revised Statute(s)(KRS) 403.750 provides for the issuance, reissuance, and amendment of DVOs.[2] The procedures a court must undertake to issue, reissue, or amend a DVO differ significantly. In order to issue a DVO, the court must conduct a hearing as provided for in KRS 403.745 and may only enter a DVO if the petitioner shows that by "a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur." KRS 403.750(1); Bissell v. Baumgardner, 236 S.W.3d 24, 29 (Ky.App. 2007). The preponderance of the evidence standard is met when the evidence establishes that the petitioner "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.1996); Baird v. Baird, 234 S.W.3d 385, 387 (Ky.App.2007). The definition of domestic violence and abuse, found in KRS 403.720(1), includes "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members." As to amending a DVO, as in the case sub judice, KRS 403.750(3) simply states that "[u]pon proper filing of a motion, either party may seek to amend a domestic violence order." The statute does not state if or when a hearing must be held or what evidence the court may or should 826 consider before amending a DVO.[3] Moreover, KRS 403.750 permits the trial court to extend the protection of a DVO to a minor child of the petitioner if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur. See KRS 403.750(1)(d). However, when the minor child is the child of the respondent, the court must look to KRS 403.320[4] which states in part: "(2) If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health." KRS 403.320(2). Thus, pursuant to KRS 403.320(2), if a DVO concerns a parent's visitation with a minor, then a hearing shall be conducted and a finding made whether the visitation would seriously endanger either the child's or custodial parent's physical, mental or emotional health. We bear in mind that in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial court were clearly erroneous or that it abused its discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982); Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003). Substantial evidence is evidence of sufficient probative value that permits a reasonable mind to accept as adequate the factual determinations of the trial court. Id. A reviewing court must give due regard to the trial court's judgment on the credibility of the witnesses. Id. "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994) (citations omitted). 827 As pointed out in Rankin v. Criswell, 277 S.W.3d 621, 624 (Ky.App.2008), domestic violence proceedings are not criminal matters, but the consequence for both parties are very significant. And, as quoted in Wright v. Wright, 181 S.W.3d 49 (Ky. App.2005): The filing of a DVO petition has enormous significance to the parties involved. If granted, it may afford the victim protection from physical, emotional, and psychological injury, as well as from sexual abuse or even death. It may further provide the victim an opportunity to move forward in establishing a new life away from an abusive relationship. In many cases, it provides a victim with a court order determining custody, visitation and child support, which he or she might not otherwise be able to obtain. The full impact of EPOs and DVOs are not always immediately seen, but the protection and hope they provide can have lasting effects on the victim and his or her family. On the other hand, the impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator. To have the legal system manipulated in order to "win" the first battle of a divorce, custody, or criminal proceeding, or in order to get "one-up" on the other party is just as offensive as domestic violence itself. From the prospect of an individual improperly accused of such behavior, the fairness, justice, impartiality, and equality promised by our judicial system is [sic] destroyed. In addition, there are severe consequences, such as the immediate loss of one's children, home, financial resources, employment, and dignity. Further, one becomes subject to immediate arrest, imprisonment, and incarceration for up to one year for the violation of a court order, no matter what the situation or circumstances might be. Id. at 52. The Wright Court sympathized with the family courts and the heavy dockets under which they must perform their duties and the need to operate with speed and efficiency. Nevertheless, it cautioned that courts are required to provide each party with a full evidentiary hearing. Rankin, 277 S.W.3d at 625 (citing Wright, 181 S.W.3d at 53). With this jurisprudence in mind we turn to Yusuf's arguments. Yusuf first argues that the trial court erred when it denied Yusuf a full evidentiary hearing by refusing to hear testimony of two witnesses, one of whom would have testified that the burns to the minor child had to have happened at the home of Nicole's mother while both parents were present. Yusuf requested that he be permitted to call his instructor at Batterer's Intervention, Maurice Williamson, because Williamson would testify that Yusuf was a model student with a consistent attendance record. The trial court determined that such testimony would not be relevant to the issue before the court, namely whether to amend the DVO in light of the injuries received by the minor child. Yusuf also requested that he be permitted to call Desiree Crank, Yusuf's partner, who had changed the minor child prior to the child's going to the home of Nicole's mother and did not notice the burns until the minor child returned from the home. The trial court determined that it did not need Crank to testify based on the evidence before it. Kentucky Rules of Evidence (KRE) 402 provides that, with some exceptions, all relevant evidence is admissible. That all evidence must be relevant in order to be admissible is perhaps the most fundamental rule of evidence. See KRE 402; see also Robert G. Lawson, The Kentucky Evidence 828 Law Handbook, § 2.00 (4th ed. 2003) ("The first critical determination to be made concerning the admissibility of any item of evidence is its relevance; no other principle or concept is of any significance in the absence of a positive determination on this issue."). KRE 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence may, nevertheless, be inadmissible "if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." KRE 403. In both respects, we review a trial court's determination for an abuse of discretion. See Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky.2001) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999); Barnett v. Commonwealth, 979 S.W.2d 98 (Ky.1998)). In the case sub judice, the trial court determined that testimony from Williamson, Yusuf's instructor at Batterer's Intervention, concerning his attendance at class and his model behavior in class, was not relevant. As noted we review this determination for an abuse of discretion. Based on the issue before the court as to whether to amend the DVO to include the minor child, we do not find an abuse of discretion in the court's exclusion of Williamson's testimony because Yusuf's class attendance and conduct while in class have little relevance to his conduct out of class. In regard to the testimony of Crank, we agree with Yusuf that the trial court exceeded its discretion in denying Yusuf's request that he be permitted to call Crank, given that she had changed the minor child prior to the child's going to Nicole's mother's house and did not notice the burns until the minor child returned from there. Certainly her testimony would have been instrumental in Yusuf's attempt to establish the time of the injury to the minor child. The trial court should have considered her testimony prior to determining whether Yusuf had committed an act of domestic violence which warranted the issuance of a DVO concerning the minor child. This error was not harmless error. Accordingly, we reverse the trial court's decision for failure to include Crank's testimony. Yusuf next argues that the trial court refused to allow testimony regarding Nicole's mental health history into evidence when Nicole had attempted to commit suicide while pregnant less than nineteen months prior to the hearing, and custody was at issue in the hearing. The trial court determined that Nicole's mental health history prior to the birth of the child was not relevant to the issue at hand. We do not find abuse of discretion in the trial court's determination, given the length of time that had passed since the child had been born and that there were no allegations of mental health issues concerning Nicole's unfitness to parent after the birth of the child. As such, we find no error. We now turn to Yusuf's third claimed error, namely, that the trial court erred when the court made medical findings regarding the degree of the burns and the appropriate treatment of said burns when there was no medical proof presented by testimony or through documents. Upon hearing the testimony presented, and after viewing the picture of the burns on the minor child, the court issued its ruling from the bench. The trial court discussed the severity of the burns and opined that such burns were third-degree 829 burns and required treatment from a medical provider. At the crux of the trial court's ruling was not the degree of the burns but the lack of concern expressed by Yusuf over the origin of the burns and the lack of consideration he gave for the need of medical treatment. Accordingly, we find any error by the court regarding the medical findings of the burns to be harmless error. While it is true that a trial court could not determine the degree of the burns without medical proof, and to the extent it did so was error, its ruling focused on Yusuf's lack of concern for the origin of the burns and Yusuf's failure to seek medical treatment for what appeared to be severe burns. Thus, we find no reversible error on this issue. See CR 61.01. Yusuf last argues that the court erred by entering a DVO because the facts do not support a DVO for the minor child. We decline to address this argument because it is moot in light of our decision to remand for the failure of the trial court to hear the testimony of Desiree Crank, discussed infra. Upon remand, the trial court shall again conduct a hearing and include all testimony that is relevant and properly admissible. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion. COMBS, Judge, concurs. KELLER, Judge, concurs in part, dissents in part, and files separate opinion. KELLER, Judge, concurring in part and dissenting in part: Respectfully, I dissent in part and concur in part. Having reviewed the entire proceeding, it is my opinion that the court had sufficient evidence of substance to support its ruling. Therefore, I disagree with the majority's holding that the trial court abused its discretion when it denied Yusuf's request to call Crank to testify. The court had reserved fifteen minutes for a hearing, which it extended to forty-eight minutes. During that hearing, the court heard direct and cross-examination testimony from Nicole and Yusuf and examined exhibits which included e-mail between the parties and pictures of the minor child's burn injury. In addition to the aforementioned, the court directly questioned both parties. Based on the evidence, the court noted it could not be completely certain who perpetrated the injury upon the eleven-month-old child. However, the court also noted that Yusuf's testimony regarding the timing of the injury and his response to it raised doubts as to his credibility, and that Nicole's testimony on those issues was more credible. Thus, there was nothing in the trial court's decision that was unreasonable, unfair, arbitrary, or capricious. Furthermore, because there was a significant amount of evidence of substance, it was within the court's discretion to rule that testimony from Crank was not relevant. I agree with the majority's sound analysis and holdings on the other issues raised by Yusuf. However, for the reasons outlined above, I disagree with their holding regarding the issue of Crank's testimony. Therefore, I would completely affirm the findings of the trial court and the entry of the amended DVO. NOTES [1] Appellant's name is "Yusuf Abdur-Rahman" in the Notice of Appeal caption and "Yusuf Abdur" in the body of the Notice of Appeal. We will use the former in this opinion. [2] See also KRS 403.725 for who may file a petition for a DVO. [3] Amending the terms of a DVO by motion is fundamentally different from amending the parties that are to be affected by a DVO. We do not believe it is proper to use KRS 403.750(3) to add a party to a DVO and, thereby, avoid the requirements of KRS 403.725, KRS 403.730, KRS 403.735, KRS 403.740, KRS 403.745, KRS 403.750 and any other relevant statute. No issue was raised by either party concerning the procedure used to amend the DVO to include the minor child. We assume for purposes of our opinion that at least the procedures set forth in the following statutes were utilized: KRS 403.725 concerning a petition; KRS 403.730 for the contents of a petition; KRS 403.735 concerning review of the petition, EPO orders, and local protocol; KRS 403.740 concerning an emergency protective order; KRS 403.745 concerning the conduct of a proper hearing; and KRS 403.750 for the issuance of a court order based on a proper petition. Yusuf complains only of evidentiary matters at the hearing. [4] KRS 403.320 states: (1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child. (2) If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health. (3) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540501/	355 S.W.3d 538 (2011) Shawn ASHFORD, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent. No. WD 73162. Missouri Court of Appeals, Western District. December 20, 2011. 539 Leah B. Williamson, Jefferson City, MO, for appellant. Michael R. Rinard, II, St. Joseph, MO, for respondent. Before: ALOK AHUJA, P.J., and THOMAS H. NEWTON and JAMES E. WELSH, JJ. ALOK AHUJA, Judge. Shawn Ashford was an employee of Triumph Foods. He was terminated in May 2009, and applied for unemployment compensation benefits. The Labor and Industrial Relations Commission denied Ashford's claim, finding that he had been discharged for misconduct. Ashford appeals. Because we conclude that the Commission's finding of misconduct is unsupported by sufficient competent evidence in the record, we reverse and remand. Factual Background Ashford worked as a forklift operator for Triumph Foods from September 16, 2008, until May 22, 2009. On approximately April 22, 2009, Ashford violated Triumph's substance abuse policy and was offered two choices: resign or participate in an alcohol rehabilitation program. He chose the latter, and signed a rehabilitation agreement with Triumph. On May 22, 2009, Ashford was scheduled to work from 10:30 p.m. to 6:00 a.m. Soon after reporting to work, he argued with co-workers. Based on a suspicion that Ashford's behavior was caused by substance abuse, he was taken to the health services department, and given a breathalyzer test. The breathalyzer revealed that Ashford's blood-alcohol concentration was .06. As a result, Triumph discharged him. Ashford filed a claimed for unemployment benefits. Triumph protested, arguing that Ashford was discharged for violating the company's substance abuse policy. A deputy within the Division of Employment Security determined that Ashford was entitled to benefits, because Triumph had failed to establish that he was discharged for misconduct connected with his work. 540 Triumph appealed to the Division's Appeals Tribunal. A referee held a telephone hearing on Ashford's claim on July 30, 2010, at which Ashford and an assistant human resource manager from Triumph testified. The Appeals Tribunal reversed the deputy's determination, and concluded that Ashford had been terminated for misconduct connected with work, and was therefore disqualified from receiving benefits under § 288.050.2, RSMo. The referee found that, when Ashford agreed to enter an alcohol rehabilitation program in April 2009, "[h]e promised to come to work without any alcohol in his system." The referee found that Ashford drank alcoholic beverages, off Triumph's premises, between a work shift ending at 6:00 a.m. on May 22, 2009, and the second commencing at 10:30 p.m. The referee noted Ashford's testimony that he had not consumed any alcoholic beverages in the eight hours preceding his 10:30 p.m. shift, and that he was "completely sober" at the beginning of that shift. (Ashford testified that he and some co-workers had consumed alcoholic beverages after his earlier shift ended at 6:00 a.m., but that he returned home thereafter and slept.) The referee made no credibility determination as to Ashford's testimony concerning his sobriety and the time of his alcohol consumption, however. Instead, the referee found that Ashford had violated his rehabilitation agreement with Triumph by having a detectable amount of alcohol in his system: The employer had a reasonable expectation under the rehab agreement that the claimant abide a promise to come to work without alcohol in his system. Sobriety was not the touchstone, the presence of alcohol was. These actions constitute statutorily defined misconduct connected with work. As the employer has met its burden the Appeals Tribunal concludes discharge for misconduct connected with work. Ashford applied for review by the Labor and Industrial Relations Commission. The Commission affirmed the Appeals Tribunal's decision, and adopted that decision as its own. Ashford appeals. Standard of Review The appellate court's review of the Commission's decision in an unemployment compensation case is governed by section 288.210, RSMo 2000. Section 288.210 provides: The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award. An appellate court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. In reviewing the Commission's decision, an appellate court must view the evidence objectively, not in the light most favorable to the decision of the Commission. 541 However, on matters of witness credibility and resolution of conflicting evidence, the appellate court defers to the Commission's determinations. Harris v. Div. of Emp't Sec., 350 S.W.3d 35, 39 (Mo.App. W.D.2011) (citations and internal quotation marks omitted). When, as here, the Commission adopts the decision of the Appeals Tribunal, we consider the Tribunal's decision to be the Commission's for purposes of our review. Walker v. Div. of Emp't Sec., 333 S.W.3d 517, 519 (Mo.App. W.D.2011). Analysis To resolve this appeal we need only address Ashford's second Point Relied On. It argues that the Commission's finding that Ashford promised "to come to work without alcohol in his system" was unsupported by the evidence. We agree. Under § 288.050.2, RSMo, a claimant is disqualified from receiving unemployment benefits "[i]f a deputy finds that a claimant has been discharged for misconduct connected with the claimant's work." "Misconduct" is defined in § 288.030.1(23), RSMo as: an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer[.] Generally, a claimant has the burden of showing that he or she is entitled to unemployment benefits. However, when the employer claims that the claimant was discharged for misconduct, the burden shifts to the employer to prove misconduct connected with work. Schilb v. Duke Mfg. Co., 338 S.W.3d 392, 395 (Mo.App. W.D. 2011); Walker, 333 S.W.3d at 520. The Commission's conclusion that Ashford had committed misconduct was based on its determination that he had agreed, at the time of entering an alcohol rehabilitation program in April 2009, not to show up at work with any detectable level of alcohol in his system. Our review of the record reveals, however, that there was no evidence to support the Commission's finding that Ashford had agreed to a zero-tolerance alcohol policy. Triumph failed to submit a written copy of its rehabilitation agreement with Ashford. The only evidence of the terms of the agreement comes, therefore, from the testimony of Ashford and Triumph's representative at the telephone hearing. Neither of these witnesses testified that the rehabilitation agreement required Ashford to come to work without any detectable alcohol in his system. When Ashford was asked by the referee whether he had promised as part of the agreement not to consume alcohol at all, or instead simply not to consume alcohol at work, he answered: "Just not at work." Similarly, when asked whether there was anything in the agreement to go "cold turkey," Ashford responded in the negative. The testimony of Triumph's representative similarly fails to support the Commission's finding that the rehabilitation agreement adopted a zero-tolerance standard. The referee asked Triumph's representative whether Ashford was obligated by the rehabilitation agreement to go "cold turkey"; she answered that "[i]t does not indicate that." When the referee sought clarification as to whether Ashford had agreed in connection with his rehabilitation that he could be terminated "if there's any alcohol in his system at all ... or only a certain level," she answered that "I believe 542 it's a certain level, but I cannot tell you what that is." In light of this testimony, there is simply no basis in the record for the Commission's finding that Ashford entered an agreement in which he "promised to come to work without alcohol in his system." To the contrary, Ashford testified that the agreement merely required him to refrain from consuming alcoholic beverages at work, while Triumph's representative testified that the agreement prohibited him from being at work with a particular (although unspecified) blood-alcohol concentration. Triumph's protest of Ashford's claim also contended that he was terminated for violating the generally-applicable substance abuse policy contained in its employee handbook. The substance abuse policy is also absent from the record. In her testimony at the telephone hearing, Triumph's representative testified that the policy prohibited workers from "coming to work under the influence," a phrase which would normally connote some level of mental and/or physical impairment.[1] The Commission did not rely upon Triumph's substance abuse policy in its ruling, and made no finding as to whether Ashford was impaired at work, based on its view that, under the rehabilitation agreement, "[s]obriety was not the touchstone, the presence of alcohol was."[2] We recognize that it is possible for employers to mandate a zero-tolerance policy for drugs and alcohol in the workplace, and terminate employees for misconduct when they violate such a policy. Section § 288.045.1 provides that, "[i]f a claimant is at work with a detectible amount of alcohol or a controlled substance as defined in section 195.010, RSMo, in the claimant's system, in violation of the employer's alcohol and controlled substance workplace policy, the claimant shall have committed misconduct connected with the claimant's work." (Emphasis added.) As we have explained above, however, the evidence fails to establish that Triumph in fact had an "alcohol and controlled substance workplace policy" in place under which Ashford was prohibited from being "at work with a detectible amount of alcohol or a controlled substance ... in [his] system." Section 288.045 is therefore inapplicable here. See Gaylord v. Wal-Mart Assocs., Inc., 193 S.W.3d 807, 808-09 (Mo.App. W.D.2006) (§ 288.045 inapplicable where evidence failed to establish that employer had a policy meeting the requirements of section, and had provided employee with notice of policy as statute requires). *543 The evidence in the record would support a finding that Ashford was prohibited from arriving at work with a certain (although unspecified) level of alcohol in his body, and from arriving at work "under the influence." The evidence failed to establish, however, that simply arriving at work with any detectable blood-alcohol level violated Triumph's substance abuse policy, or Ashford's rehabilitation agreement with the company. Given that the Commission's finding of misconduct was not based on substantial evidence, we must reverse the denial of benefits. The Commission did not address Triumph's alternative contention that Ashford violated its generally-applicable substance abuse policy. The case must accordingly be remanded for a determination, on the existing record, as to whether Ashford violated Triumph's substance abuse policy, and thereby committed misconduct, by appearing at work "under the influence" of alcohol. See Munson v. Div. of Emp't Sec., 323 S.W.3d 112, 115 (Mo.App. W.D.2010). Conclusion The Order of the Labor and Industrial Relations Commission is reversed, and the case remanded. All concur. NOTES [1] See, e.g., State v. Cox, 478 S.W.2d 339, 342 (Mo. 1972) (holding that "`under the influence of alcohol' is synonymous with ... `while in an intoxicated condition,'" and refers to "`the impaired condition of thought and action and the loss of the normal control of one's faculties', or a condition `that in any manner impairs the ability of a person to operate an automobile'" (citations omitted)); Crollard v. N. Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375, 381 (1947) (no error in jury instruction that "while intoxicated or under the influence of intoxicants" meant a condition where one "must have taken enough intoxicants to have produced ... an undue and abnormal condition disturbing the normal action of his physical or mental faculties"). Our Supreme Court has observed that "ordinary persons understand what is meant by the term[ ] ... `under the influence.'" State v. Schroeder, 330 S.W.3d 468, 475 (Mo. banc 2011). [2] The Department of Labor and Industrial Relations contends in its Brief that the Commission found that Ashford committed misconduct because he "was clearly in an `impaired condition' at work," and that "[t]he Commission ... determined that Claimant was under the influence of alcohol at work." That is not what the Commission's decision says, however.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540569/	718 F. Supp. 2d 1167 (2010) Quiller BARNES, Plaintiff, v. AT & T PENSION BENEFIT PLAN-NONBARGAINED PROGRAM, Defendant(s). No. C 08-04058 MHP. United States District Court, N.D. California. June 22, 2010. 1168 R. Joseph Barton, Bruce Frank Rinaldi, Robyn Swanson, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Michelle Lee Roberts, Claire Kennedy-Wilkins, Cassie Springer-Sullivan, Springer-Sullivan & Roberts LLP, Oakland, CA, for Plaintiff. Gary T. Lafayette, Rebecca Kim Kimura, Susan Tayeko Kumagai, Lafayette & Kumagai LLP, San Francisco, CA, for Defendant(s). MEMORANDUM & ORDER MARILYN HALL PATEL, District Judge. Re: Plaintiff Barnes' Motion to Strike Affirmative Defenses In this action, plaintiff Quiller Barnes ("Barnes"), on behalf of himself and all others similarly situated, alleges that defendant AT & T Pension Benefit Plan-Nonbargained 1169 Program ("AT & T") wrongfully denied him pension benefits to which he was entitled. Barnes' amended complaint asserts three causes of action under the Employee Retirement and Income Security Act ("ERISA") for: (1) failing to provide adequate notice of the reasons for benefit denial, 29 U.S.C. § 1133(1); (2) failing to pay benefits due, 29 U.S.C. § 1132(a)(1)(B); and (3) violating ERISA's anti-cutback provision, 29 U.S.C. § 1054(g). Before the court is Barnes' motion to strike the affirmative defenses in AT & T's answer to Barnes' amended complaint. Having considered the parties' arguments and submissions and for the reasons stated below, the court enters the following memorandum and order. BACKGROUND[1] Barnes originally filed this action in Contra Costa County Superior Court on January 20, 2008. The twenty-paragraph complaint contained a single cause of action to recover benefits due under the pension plan pursuant to 29 U.S.C. § 1132(a)(1)(B). Barnes worked for the Pacific Bell Telephone Company ("Pacific Bell") and Pacific Bell's successors-in-interest from 1979 until October 29, 1996, and then again from May 1, 1997 until June 17, 2003. During both periods of employment, Barnes was enrolled in the Pacific Telesis Group Cash Balance Pension Plan for Salaried Employees ("the Plan"). Upon Barnes' first exit from Pacific Bell's employment in 1996, Barnes elected to take a discounted lump sum pension benefit payment, known as an Accelerated Transition Benefit ("ATB"). Barnes' ATB was discounted because he had not worked for the company for 30 years or more and had not yet reached the age of 55. Six months later, however, Barnes was rehired by Pacific Ball in the same position. He stayed with Pacific Bell until he terminated his employment again on June 17, 2003. At the end of his second period of employment, Barnes received his second retirement pension package; this benefit, however, was much lower than Barnes expected it to be. Barnes contends that his second term of employment at Pacific Bell "bridged" his service at the company such that had he worked one, continuous period, he would have been entitled to a non-discounted ATB. Accordingly, Barnes asserts that he is entitled to a "redetermined ATB" to adequately compensate him for his terms of service with Pacific Bell. Thereafter, Barnes submitted a claim with the pension plan, contending that he was entitled to additional benefits. The pension plan denied Barnes' claim, whereupon Barnes appealed the denial through the pension plan's internal appeal process. After Barnes' appeal was denied he filed this action. On August 25, 2008, AT & T removed the case to this court. Docket No. 1 (Notice of Removal). The action languished on this court's calendar during Barnes' first counsel's representation of him and until new counsel entered the case. For all intents and purposes Barnes was essentially pro se for most of the time, from the filing of the action until new counsel's appearance. On January 26, 2010, Barnes moved the court to file an amended complaint. Docket No. 39 (Mot. to Amend Compl.). Ten days later, AT & T filed a motion for summary judgment. Docket No. 47 (Mot. Summ. J.). On April 5, 2010, 2010 WL 1340543, the court granted Barnes' motion to amend the complaint and terminated AT & T's motion for summary judgment. Docket 1170 No. 132 (Order Granting Mot. to Amend Compl.). After AT & T filed its answer to the First Amended Complaint ("FAC"), Barnes filed the instant motion to strike all of AT & T's twenty-four affirmative defenses, and admit certain allegations which Barnes argues were not answered by AT & T. See Docket No. 138 (Mot.) at 3, 14-16. On June 7, 2010, AT & T filed its opposition to Barnes' motion to strike. See Docket No. 142 (Opp.). LEGAL STANDARD I. Motion to Strike A Court may strike affirmative defenses under Federal Rule of Civil Procedure 12(f) if they present an "insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Fed. R.Civ.P. 12(f). The purposes of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on other grounds, 510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994). A defense is insufficiently pled if it fails to give the plaintiff fair notice of the nature of the defense. See Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir.1979). A matter is immaterial if it has no essential or important relationship to the claim for relief pleaded. See Fogerty, 984 F.2d at 1527. A matter is impertinent if it does not pertain and is not necessary to the issues in question in the case. See id. While a Rule 12(f) motion provides the means to excise improper materials from pleadings, such motions are generally disfavored because the motions may be used as delaying tactics and because of the strong policy favoring resolution on the merits. See Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir.2000). Accordingly, once an affirmative defense has been properly pled, a motion to strike which alleges the legal insufficiency of an affirmative defense will not be granted "unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." See William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir.1984) (citing Durham Indus., Inc. v. North River Insur. Co., 482 F. Supp. 910, 913 (S.D.N.Y. 1979)); see also McArdle v. AT&T Mobility LLC, 657 F. Supp. 2d 1140, 1149-50 (N.D.Cal.2009) (Wilken, J.). If a claim is stricken, leave to amend should be freely given when doing so would not cause prejudice to the opposing party. Wyshak, 607 F.2d at 826. II. Motion to Deem Allegations Admitted Federal Rule of Civil Procedure 8(b) requires that "[i]n responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party." Fed.R.Civ.P. 8(b)(1). Rule 8(b)(6) states that: "An allegationother than one relating to the amount of damagesis admitted if a responsive pleading is required and the allegation is not denied." Fed.R.Civ.P. 8(b)(6). DISCUSSION Barnes suggests two primary arguments for why all of AT & T's affirmative defenses should be stricken from the answer. First, Barnes contends that most of the affirmative defenses are "insufficient" because, under the federal pleading standard, they lack sufficient supporting factual allegations. Second, Barnes seeks to strike other affirmative defenses because they are negative defenses as opposed to affirmative defenses. Finally, Barnes also requests that this court deem AT & T to have admitted certain allegations in the amended complaint due to AT & T's purported failure to adequately admit or deny 1171 those allegations. The court addresses each argument in turn. I. Striking of "Insufficient" Affirmative Defense Barnes asserts that all twenty four of the affirmative defenses that AT & T has pled in its answer to the complaint are insufficient because they fail to provide adequate notice to Barnes. Mot. at 5-9. Barnes argues that in order for an affirmative defense to be properly pled, it must give the plaintiff fair notice of the defense being advanced. Mot. at 3. He submits that the pleading standard applied to complaints in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and clarified in Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), applies to the pleading of affirmative defenses. In response AT & T argues that each of its affirmative defenses has been properly pleaded and provides fair notice to Barnes. Opp. at 4. In particular, AT & T contends that the heightened pleading standard in Twombly and Iqbal does not apply to the pleading of affirmative defenses and that merely naming the defense provides adequate notice to Barnes. Id. at 5. Further, AT & T argues that because Barnes has broadened his complaint to include a putative class of other allegedly similarly situated individuals, he cannot demonstrate that the affirmative defenses lack the requisite specificity in regard to the unknown members of the putative class. Id. at 6. Federal Rule of Civil Procedure 8 governs pleading whether by complaint or answer. Rule 8(c) specifically addresses affirmative defenses and requires that a party "affirmatively state any avoidance or affirmative defense" in the responsive pleading. Fed.R.Civ.P. 8(c)(1). In pleading an affirmative defense, a defendant must comply with Rule 8's requirement of a "short and plain" statement to give the opposing party fair notice of the defense and the grounds upon which it rests. Wyshak, 607 F.2d at 827 ("The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense."); see also Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649 (D.Kan.2009) (holding that Rule 8 requires a "short and plain" statement so as to give the opposing party fair notice). Before 2007, the fair notice pleading standard was set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Under Conley, the court was only permitted to dismiss claims for relief when "it appeared beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief." Id. However, in 2007, the Supreme Court, in Twombly, departed from the Conley standard, requiring that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. While a plaintiff need not provide detailed factual allegations, he does need to allege the grounds for entitlement to relief beyond mere labels and conclusions. Id. at 555, 127 S. Ct. 1955. In 2009, the Supreme Court, in Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009), clarified Twombly holding that Twombly was based on its interpretation and application of Federal Rule of Civil Procedure 8, thereby extending Twombly's pleading standard to all civil cases. Since 2009, courts have been left to decide whether Twombly and Iqbal apply to the pleading of affirmative defenses. While neither the Ninth Circuit nor any other Circuit Courts of Appeals has ruled on this issue, the vast majority of courts presented with the issue have extended Twombly's heightened pleading standard to affirmative defenses. See CTF Dev., 1172 Inc. v. Penta Hospitality, LLC, No. C 09-02429, 2009 WL 3517617, at 7-8 (N.D.Cal. Oct. 26, 2009) (Alsup, J.) ("Under the Iqbal standard, the burden is on the defendant to proffer sufficient facts and law to support an affirmative defense"); see also Hayne, 263 F.R.D. at 650 n. 15 (citing nine cases applying Twombly and Iqbal to the pleading of affirmative defenses). Only a few district courts have reached the contrary conclusion. See, e.g., First Nat'l Ins. Co. of Am. v. Camps Servs., Ltd, No. 08-cv-12805, 2009 WL 22861, at 2 (E.D.Mich. Jan. 5, 2009) (finding Twombly's analysis of the "short and plain statement" requirement inapplicable to affirmative defenses); Romantine v. CH2M Hill Eng'rs, Inc., No. 09-973, 2009 WL 3417469, at 1 (W.D.Pa. Oct. 23, 2009) (declining to apply Twombly to either affirmative or negative defenses). The court finds the reasoning of the courts that have applied the heightened pleading standard persuasive. Iqbal's extension of the Twombly pleading standard beyond claims arising under the Sherman Act was premised on Twombly's holding that the purpose of Rule 8 was to give the opposing party notice of the basis for the claim sought. See Iqbal, 129 S.Ct. at 1950-51. Rule 8's requirements with respect to pleading defenses in an answer parallels the Rule's requirements for pleading claims in a complaint. Compare (a)(2) "a short and plain statement of the claim showing that the pleader is entitled to relief", with (b)(1) "state in short and plain terms its defenses to each claim asserted against it". Rule 8(b)(2) further provides with respect to "denials" that they "must fairly respond to the substance of the allegations." The court can see no reason why the same principles applied to pleading claims should not apply to the pleading of affirmative defenses which are also governed by Rule 8. "Applying the standard for heightened pleading to affirmative defenses serves a valid purpose in requiring at least some valid factual basis for pleading an affirmative defense and not adding it to the case simply upon some conjecture that it may somehow apply." Hayne, 263 F.R.D. at 650; see also CTF Dev., Inc., 2009 WL 3517617, at 7-8. Applying the same standard will also serve to weed out the boilerplate listing of affirmative defenses which is commonplace in most defendants' pleadings where many of the defenses alleged are irrelevant to the claims asserted. Here, AT & T has not alleged sufficient facts to provide notice to Barnes as to the nature of any of its affirmative defenses. In each of its twenty-four affirmative defenses, AT & T alleges that Barnes and the class members which he represents are either completely or partially bared from recovery because of the existence of an affirmative defense. However, in none of its twenty-four affirmative defenses does AT & T point to the existence of some identifiable fact that if applicable to Barnes or another class member would make the affirmative defense plausible on its face. Instead, AT & T simply lists a series of conclusory statements asserting the existence of an affirmative defense without stating a reason why that affirmative defense might exist. In particular, in the fourth (statute of limitations), fifth (failure to comply with internal deadlines), sixth (laches), seventh (estoppel), eighth (waiver), ninth (unclean hands), tenth (mootness), eleventh (lack of standing), twelfth (damages reduced by earning, benefits, and/or income), fifteenth (performance was excused due to conduct of plaintiff), twentieth (exhaustion), twenty-first (waiver of right to future benefits), and twenty-fourth (unjust enrichment) affirmatives defenses, AT & T fails to provide any facts, instead, just alleging that the affirmative defense exists. Ans. ¶¶ 149-153, 155-56, 165, 169. 1173 AT & T suggests that insufficiently pled affirmative defenses should only be stricken if the party against whom they are asserted can demonstrate that the defenses' continued presence in the case causes the party prejudice. In so arguing, AT & T relies upon a number of decisions in which courts have held that a motion to strike "should only be granted if the matter... may prejudice one or more of the parties to the suit." N.Y. City Emps.' Ret. Sys. v. Berry, 667 F. Supp. 2d 1121 (N.D.Cal.2009) (Ware, J.). What AT & T fails to recognize, however, is that in all of those cases, the party seeking to strike a portion of a pleading was attempting to do so pursuant to the "redundant, immaterial, impertinent, or scandalous matter," as opposed to the "insufficient," portion of Rule 12(f). Further, even if the court were to require a showing of prejudice, Barnes has met that burden. If the court were to permit legally unsustainable affirmative defenses to survive, Barnes would be required to conduct expensive and potentially unnecessary and irrelevant discovery. Thus, AT & T's arguments regarding prejudice cannot rescue its otherwise legally insufficient affirmative defenses. Accordingly, this court strikes the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, fifteenth, twentieth, twenty-first and twenty-fourth affirmative defenses. The court will permit defendant to amend its answer to cure the pleading defects pursuant to Federal Rule of Civil Procedure 15(a)(2) and in accordance with the remainder of this order. To the extent that this order prevents the defendant from alleging affirmative defenses as to the unknown putative class members because there are no facts that could show that an affirmative defense is plausibly applicable to Barnes, the court will grant leave to the defendant to amend its answer at such time as the defendant becomes aware of facts tending to show the plausibility of additional affirmative defenses pertaining to class members, provided that defendant exercises diligence in determining such facts. II. Striking of Negative Defenses Pled as Affirmative Defenses Barnes also argues that certain affirmative defenses raised by AT & T should be struck with prejudice because they are actually negative defenses and not affirmative defenses. Mot. at 9. In particular, Barnes argues that the second (not eligible for redetermination), third (all eligible benefits paid), fourteenth (AT & T acted reasonably, with good cause and in good faith), seventeenth (AT & T acted prudently), eighteenth (all persons conducted themselves in accordance with the plan), nineteenth (AT & T acted in the interest of the Plan's participants) and twenty-second (not entitled to injunctive relief) and twenty-third (a class cannot be certified under Federal Rule of Civil Procedure 23) affirmative defenses are restatements of the denials present in the answer to the complaint and not actually affirmative defenses. Id. at 9-10. In response, AT & T argues that Barnes has failed to demonstrate any prejudice he would suffer by the inclusion of these affirmative defenses. Opp. at 6. "A defense which demonstrates that plaintiff has not met its burden of proof as to an element plaintiff is required to prove is not an affirmative defense." Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002). Such a defense is merely rebuttal against the evidence presented by the plaintiff. On the other hand, "[a]n affirmative defense, under the meaning of Federal Rule of Civil Procedure 8(c), is a defense that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all of the elements of the plaintiff's claim are proven." Roberge v. Hannah 1174 Marine Corp., No. 96-1691, 1997 WL 468330, at 3 (6th Cir.1997). It is a defense on which the defendant has the burden of proof. See, e.g., Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 n. 4 (9th Cir.1988). Thus, it is curious that defendant asserts as affirmative defenses that which it need not prove. To the extent that the AT & T restates negative defenses that exist in other parts of the complaint, those defenses are redundant pursuant to Rule 12(f) and should be struck so as to simplify and streamline the litigation. Federal Trade Comm'n v. Think All Pub. L.L.C., 564 F. Supp. 2d 663, 665 (E.D.Tex.2008). Here, AT & T's second, third, fourteenth, seventeenth, eighteenth, nineteenth, twenty-second and twenty-third affirmative defenses simply provide a basis to negate an element of Barnes' prima facie case for relief and are restatements of denials present in earlier parts of the complaint. Accordingly, these affirmative defenses, which, in fact, are merely rebuttal to plaintiff's claims are stricken. III. Striking of Non-Affirmative Defenses Barnes also argues that AT & T has inappropriately plead certain items as affirmative defenses despite the fact that such arguments cannot be categorized as affirmative defenses. Mot. at 12. In particular, Barnes cites to AT & T's first affirmative defense (failure to state a claim), Ans. ¶ 146, and its affirmative defenses pertaining to attorneys' fees (the thirteenth and sixteenth affirmative defenses), Ans. ¶¶ 158-59, 161-62. Mot. at 11-12. AT & T responds that because failure to state a claim is set out as an affirmative defense in Form 30 in the appendix to the Federal Rules of Civil Procedure, it is specifically authorized as an affirmative defense under Rule 84. Opp. at 13. AT & T's first affirmative defense alleging Barnes' failure to state a claim should be stricken. Failure to state a claim is not a proper affirmative defense but, rather, asserts a defect in Barnes' prima facie case. See Boldstar Tech., LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1291 (S.D.Fla.2007) ("Failure to state a claim is a defect in the plaintiff's claim; it is not an additional set of facts that bars recovery notwithstanding the plaintiff's valid prima facie case. Therefore, it is not properly asserted as an affirmative defense."); Lemery v. Duroso, No. 4:09CV00167 JCH, 2009 WL 1684692, at 3 (E.D.Mo. Jun. 16, 2009). Accordingly, despite its inclusion in Civil Form 30, failure to state a claim under Rule 12(b)(6) is more properly brought as a motion and not an affirmative defense. Additionally, to the extent any of AT & T's affirmative defenses are set forth in order to seek or limit the award of attorney's fees or to preclude class certification, those defenses should be stricken. The award of attorney's fees does not act to preclude a defendant's liability even if a plaintiff proves all of the required elements of the cause of action. Typically, attorneys' fees are collateral to the merits of a cause of action and are awarded after judgment pursuant to Federal Rule of Civil Procedure 54(d)(2). See Rural Tel. Serv. Co., Inc. v. Feist Publ'ns, Inc., No. 83-4086-R, 1992 WL 160890, at 1 (D.Kan. 1992) (holding that a party need not plead a request for attorneys' fees because Federal Rule of Civil Procedure 54(d)(2) permits the party to seek them by motion). Accordingly, AT & T's thirteenth, and sixteenth affirmative defenses are stricken to the extent that they present a defense against the awarding of attorney's fees. To the extent that these defenses are accurately pled as affirmative defenses to Barnes' cause of action, they also fail to 1175 meet the pleading standard set forth above in Part I, supra at 4, as they appear to be solely conclusory restatements of legal standards. Accordingly, AT & T's first, thirteenth and sixteenth affirmative defense are stricken. IV Motion to Deem Allegations Admitted Lastly, Barnes argues that AT & T has failed to properly respond to various allegations in Barnes' complaint and therefore those allegations should be deemed admitted. Mot. 15. Specifically, Barnes argues that AT & T inappropriately answered allegations in the complaint by asserting that documents referenced by Barnes "speak for themselves" instead of admitting or denying such allegations, and that AT & T's refusal to respond to Barnes' alleged legal conclusions was improper. Mot. at 15. Accordingly, Barnes asks that these allegations be admitted. In response, AT & T argues that Barnes has failed to meet his burden to show why these allegations should be admitted. Ans. at 14. In this case, AT & T's statements that the documents referenced in the complaint speak for themselves are within the bounds of Rule 8(b)(1). While it would have been inappropriate for AT & T to simply state that the "document speaks for itself" without either providing an admission or denial, that is not what AT & T did. In each of the paragraphs identified by Barnes, AT & T either admits or denies the factual allegations presented in the complaint after stating that the document speaks for itself. See Ans. ¶¶ 27, 33, 34, 36, 38, 39, 40, 41, 43, 45, 46, 50, 54, 56, 59, 66, 67, 68, 69, 72, 73, 75, 81, 84, 88, 100, 117, 118. In many of these paragraphs, AT & T is simply admitting the factual allegations pertaining to the referenced documents to the extent that the documents actually says what Barnes alleges they says, and denying the factual allegations to the extent that they are contradicted by the actual documents. Ans. ¶¶ 27, 33, 34, 36, 39, 40, 41, 43, 45, 46, 50, 66, 72, 73, 75, 81, 100, 117, 118, 127. In such instances, AT & T's conditional denial is the functional equivalent of a general denial, allowing the parties to dispute the contents of the referenced document as the litigation progresses. Accordingly, these conditional denials satisfy Rule 8(b)(1). In others instances, AT & T provides for specific admissions or denials of certain allegations concerning referenced documents, and then after stating that the document speaks for itself denies all matters which it has not admitted or are not contained in the document. Ans. ¶ 38, 59, 67, 68, 69. In these instances, AT & T clearly satisfies its burden under Rule 8(b)(1) by providing partial admission or denial and then a more generalized denial. Further, Barnes' contention that AT & T has failed to answer the legal conclusions alleged by Barnes in the complaint misconstrues AT & T's answer when read in its entirety. While AT & T has refused to either admit or deny the ultimate legal conclusions alleged by Barnes, AT & T has denied all of the factual allegations on which those legal conclusions rest. To read AT & T's answer to admit Barnes' legal conclusions would misconstrue AT & T's answer so as to also admit the factual conclusions which it has expressly denied. To do this would not construe the pleadings in the interests of justice as required by Rule 8(e). Accordingly, Barnes' motion to deem certain allegations in the complaint because they were not answered is DENIED. * * * * * On a final note, the court reminds the parties that the court's time is valuable and motions to strike are disfavored. *1176 While it appears that the defendant made an attempt to resolve this dispute by proposing to stipulate to an amended answer, the court is disappointed that the parties were unable to come to an agreement. It is the court's opinion that while plaintiff partially succeeded on the merits of his motion, the issues raised would not have been difficult to address solely between the parties. The parties should be reminded that the filing of a second motion to strike would be extraordinary and the parties might be well served by rereading Federal Rule of Civil Procedure 11 before making such a motion. CONCLUSION For the reasons stated above, plaintiff's motion to strike Defendant's fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first and twenty-fourth affirmative defenses is GRANTED. The defendant may file an amended answer in accordance with this order within thirty (30) days of the date of the filing of this order. Plaintiff's motion to strike defendant's first, second, third, thirteenth, sixteenth, twenty-second and twenty-third affirmative defenses is GRANTED. Plaintiff's motion to deem allegations in the complaint admitted is DENIED. IT IS SO ORDERED. NOTES [1] Unless otherwise indicated, all facts are taken from the allegations in Barnes' amended complaint. Docket No. 133 (Am. Compl.).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540613/	714 F. Supp. 2d 462 (2010) William and Margaret CUFF, on behalf of their minor son, B.C., Plaintiffs, v. VALLEY CENTRAL SCHOOL DISTRICT and Barbara Knecht, sued in her individual capacity, Defendants. No. 07 Civ. 10996 (JSR). United States District Court, S.D. New York. May 26, 2010. 463 Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Plaintiffs. Adam I. Kleinberg, Sokoloff Stern LLP, Westbury, NY, for Defendants. OPINION AND ORDER JED S. RAKOFF, District Judge. Plaintiffs William and Margaret Cuff bring this § 1983 action on behalf of their son, "B.C.," to challenge disciplinary measures taken by school administrators after B.C., in connection with a class assignment, made a drawing perceived to be threatening and violent. Plaintiffs allege that by suspending B.C. and thereafter refusing to expunge his disciplinary record, defendants Valley Central School District and Barbara Knecht, the principal of B.C.'s elementary school, violated B.C.'s First Amendment right to free expression. By Opinion and Order dated May 5, 2008, my late colleague, the Honorable William C. Conner, U.S.D.J., to whom the case was then assigned, granted defendants' motion to dismiss the complaint for failure to state a claim. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist. ("Cuff I"), 559 F. Supp. 2d 415 (S.D.N.Y.2008). Plaintiffs appealed, and the Second Circuit vacated that ruling, holding that the facts alleged in the complaint did not compel the conclusion that B.C.'s speech was unprotected by the First Amendment. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist. ("Cuff II"), 341 Fed.Appx. 692 (2d Cir.2009) (summary order). After remand, and upon Judge Conner's untimely demise, the case was transferred to the undersigned. Following completion of discovery, defendants moved for summary judgment. The Court received briefing and held oral argument on February 4, 2010. Having carefully considered the parties' submissions, the Court now grants defendants' motion and awards summary judgment in defendants' favor. The pertinent facts, undisputed or, where disputed, taken most favorably to the plaintiffs, are as follow: At the time of the incident resulting in his suspension, B.C. was ten years old and in the fifth grade at Berea Elementary School in Montgomery, New York. Pls' Reply to Defs' Rule 56.1 Statement ("Pls' 56.1") ¶¶ 13-14.[1] Prior to the incident in 464 question, B.C. had been disciplined by teachers and school administrators on a number of occasions for misbehavior on the school bus, during recess, in the hallway, and in the cafeteria. Id. ¶¶ 17-18. In connection with a March 2007 incident in which B.C. was believed to have shoved another student and given his bus driver the "middle finger," Assistant Principal Janet Malley gave B.C. four days of lunch recess detention and advised Mr. and Mrs. Cuff that further misbehavior could result in suspension of B.C.'s bus privileges. Id. ¶¶ 20-21. In connection with these and other incidents, B.C. had also been sent to the principal's and assistant principal's offices on several occasions. Id. ¶¶ 84, 86. Furthermore, prior to making the drawing from which this litigation arises, B.C. had drawn a picture that was perceived by school staff as disturbing. This drawing, made by B.C. in January 2006 in response to a third-grade class assignment, depicted a person shooting bullets at a group of four people. Above this drawing, B.C. wrote: "One day I shot someone 4 people each of them got fo[u]r blows + they were dead. I wasted 20 bulits [sic] on them." Declaration of Adam I. Kleinberg dated 12/9/09 ("Kleinberg Decl.") Ex. J, at 2. B.C.'s teacher reported this incident to the school psychologist, Delaine Charette, and school officials called B.C.'s parents about the drawing. Pls' 56.1 ¶¶ 26, 31. At his deposition in this lawsuit, B.C. testified that this drawing was intended to depict a paintball game and that he thought he probably explained this to Charette, although Charette denies that B.C. ever informed her that he was portraying a game of paintball. Id. ¶¶ 29-30; Kleinberg Decl. Ex. D (Deposition of B.C., 11/11/09), at 62-63. Mrs. Cuff testified at her deposition that B.C. had played paintball "since he was a little boy," and Mr. Cuff testified that the Cuffs had a paintball course on their property. Kleinberg Decl. Ex. E (Deposition of Margaret Cuff, 11/2/09), at 33; id. Ex. F (Deposition of William Cuff, 11/2/09), at 17-18. The record also includes evidence of still other writings involving themes of violence and death. B.C.'s authorship of some of these writings is disputed (and therefore cannot play a part in the determination of this matter except as it informs the context of defendants' response to the drawing here in issue), but in other cases the authorship is conceded. Among the disputed writings is one that surfaced in the spring of 2007, while B.C. was in fourth grade, and which led to psychologist Charette's being notified by B.C.'s teacher that B.C. had written a disturbing story about squirrels. Pls' 56.1 ¶ 36. This story, which defendants assert but plaintiffs dispute was written by B.C., is believed by defendants to have been part of a classroom assignment in which students rotated from computer to computer to complete each others' stories. (While B.C. denies writing this story, he admits to receiving this general sort of assignment involving switching computers. Id. ¶¶ 36, 39.) The story reads as follows: Once upon time there was a squirrel named Fatbastard B['s name] he was really fat and everyone thought he was simple minded he got all the squralles in the world to kill humans. Then a week later they killed everyone except me I fought back and I killed a lot of squrels in the world but they know I'm stalking them then when the time is ready I'm gona kill al of them at once because I am killing each squle slow really slow. 465 Soon there was one squirrel left, B['s name]! Kleinberg Decl. Ex. J, at 3. Among the writings that B.C. does not dispute were written by him was a story he wrote as part of a fourth grade classroom assignment that reads as follows: All of a sudden a big wind blew my brother to Japan and I never saw him again. Then the big wind destroyed every school in America. Than every body ran for there life and than all adults died and all the kids were alive. Then all the kids died. Kleinberg Decl. Ex. J, at 4. This story was also reported to Charette, although she did not speak with B.C. about it, and B.C. was not punished for it, although B.C. did attend a peer discussion group at a student assistance counselor's behest. M. Cuff Dep. at 39-40; W. Cuff Dep. at 53-55; Pls' 56.1 ¶¶ 40-42. The incident that launched this litigation took place on September 12, 2007. B.C.'s teacher, Tara DeBold, gave each member of B.C.'s fifth grade class a paper copy of an astronaut figure and told each student to write various things in corresponding sections of the astronaut figure: among other things, they were instructed to write a "wish" in the left leg of the astronaut. Pls' 56.1 ¶¶ 46, 49. In his astronaut's left legthe spot designated for him to indicate his "wish"B.C. wrote in pencil, "Blow up the school with the teachers in it." Id. ¶¶ 53-54; Kleinberg Decl. Ex. O (astronaut drawing). As B.C. admits he knew, these drawings were intended to be posted in the school's hallways in time for an open school night for parents. Pls' 56.1 ¶¶ 57-58. B.C. testified, however, that he did not intend to submit his drawing because his handwriting was "crap" and because the drawing was not for a grade although he also admits that he never informed DeBold of this intention. Id. ¶¶ 59-60; B.C. Dep. at 13, 16. DeBold learned of B.C.'s drawing after another student, C.P., brought it to her attention. Pls' 56.1 ¶ 73. Although students worked on the drawings individually, B.C. was seated at a block of six desks pushed together, and B.C. told his neighbors about what he was going to write in his picture. Id. ¶¶ 62-64. These students laughed in response. Id. ¶ 64. C.P., a female student who was sitting in a neighboring group of desks, heard from another student about what B.C. drew, and went over to B.C.'s desk to look at his picture. Id. ¶ 66-68. C.P. then approached DeBold about the incident. Id. ¶ 73.[2] DeBold came to B.C.'s desk to look at the picture. Id. ¶¶ 73-74, 78. DeBold testified that she asked B.C. if he meant what he had written, but B.C. did not respond to her question. Kleinberg Decl. Ex. N (Deposition of Tara DeBold, 11/4/09), at 10. At his deposition, B.C. testified that he was joking and denied that DeBold asked him if he meant what he had written, but admitted that he did not tell DeBold that he meant the drawing as a joke. B.C. Dep. at 17, 24-25. In any event, DeBold then filled out a referral form and sent B.C. and the astronaut picture to the principal's office. Pls' 56.1 ¶ 82. When B.C. came to her office, Principal Knecht reviewed his drawing and asked him to explain what he meant. Id. ¶ 99. B.C. testified that he told Knecht that he did not mean what he wrote in the drawing and was just joking, id. ¶ 102, and 466 this must therefore be taken as true for purposes of this motion, although Knecht denies that anything of the sort happened and instead attests that B.C. told her he wanted to write the threat and meant it, id. ¶ 101. Assistant Principal Malley then joined the meeting. Id. ¶ 105. At this point, B.C. told them he wrote his "wish" because his teacher told him he could write anything he wanted. Id. ¶ 109.[3] Knecht took notes of this meeting and B.C. signed a copy, but B.C. testified at his deposition that he cannot read handwriting, like Knecht's, that is in script. Id. ¶¶ 111-13. Knecht then asked B.C. to leave her office and called the district's superintendent, Dr. Richard Hooley, to advise him of the situation. Id. ¶ 119. Knecht and Malley told Dr. Hooley that they believed the drawing had frightened another child, alarmed the teacher, and could have been displayed at the parents' night, and that B.C. could have acted on his threat. Id. ¶ 123. At the end of the call, Knecht decided that B.C.'s punishment would consist of a five-day out-of-school suspension, followed by a one-day in-school suspension. Id. ¶ 124. Dr. Hooley agreed with this decision. Id. ¶ 127. Mr. and Mrs. Cuff, who had been called to the school, then arrived and were informed of the punishment. Id. ¶¶ 128-29. At this time, Knecht prepared a letter formalizing the punishment and concluding that B.C. had made a "written violent threat against Berea Elementary School and its occupants." Id. ¶ 132; Kleinberg Decl. Ex. U (letter dated 9/12/07). The school district's Code of Conduct designates an out-of-school suspension, like that imposed here, as the tenth most severe punishment on a list of twelve possible punishments for students making threats of violence. Kleinberg Decl. Ex. T (Code of Conduct), at 9. The Cuffs themselves punished B.C. for the incident by grounding him for two to three weeks and not letting him play video games during that time. Pls' 56.1 ¶ 134. On September 25, 2007, after B.C. had completed the term of his suspension, plaintiffs' counsel wrote a letter to Dr. Hooley appealing the decision and requesting that the portion of B.C.'s disciplinary record relating to this incident be expunged. Kleinberg Decl. Ex. V. In preparation for a meeting with the school district's Board of Education regarding the appeal, Dr. Hooley reviewed the materials in B.C.'s file, including the aforementioned writings and disciplinary incidents, as well as memos about these incidents that were prepared after the punishment was imposed. Pls' 56.1 ¶¶ 139-40. On October 10, 2007, the Board notified plaintiffs that it had "affirmed and upheld the decision of the Principal in its entirety." Kleinberg Decl. Ex. Y. Against this background, the Court now turns to plaintiffs' claim that punishing B.C. for his drawing violated his First Amendment rights. As the Second Circuit noted in Cuff II, under the First Amendment "student expression may not be suppressed unless school officials reasonably conclude that it will `materially and substantially disrupt the work and discipline of the school.'" 341 Fed.Appx. at 693 (quoting Morse v. Frederick, 551 U.S. 393, 403, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007)) (internal quotation marks omitted). Moreover, in applying this standard, schools may not prohibit speech merely based on "undifferentiated fear or apprehension of disturbance." Morse, 551 U.S. 467 at 408, 127 S. Ct. 2618 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969)) (internal quotation marks omitted). Summary judgment in favor of defendants on this First Amendment claim is therefore proper only if "`no reasonable jury could disagree,' based on the summary judgment record," taken most favorably to plaintiffs, "that the student's speech `would foreseeably create a risk of substantial disruption within the school environment.'" Cuff II, 341 Fed.Appx. at 693 (quoting Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 40 (2d Cir.2007), cert. denied, 552 U.S. 1296, 128 S. Ct. 1741, 170 L. Ed. 2d 540 (2008)). The Court's application of this "substantial disruption" test to the events surrounding the instant case is considerably aided by the Second Circuit's decision in Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2d Cir.2007). Wisniewski, like this case, involved punishment for a drawing claimed by a student to be a joke but interpreted by school authorities to be a threat. The student in Wisniewski, an eighth-grader named Aaron, generated a so-called "buddy icon" visible to those with whom he communicated via instant messaging software from his parents' computer. Aaron's icon depicted a gun shooting bullets at a person's head, from which blood spattered. The icon bore the legend "Kill Mr. VanderMolen"Mr. VanderMolen being Aaron's English teacher. The icon was visible to members of Aaron's instant messaging "buddy list," some of whom were his classmates, for a period of three weeks. Mr. VanderMolen learned of this icon after another student brought it to his attention, and he reported the matter to the school principal and the police. Both the police investigator and a psychologist ultimately determined that Aaron had meant the drawing as a joke, but the school officials nonetheless suspended him for five days as a temporary measure, and then for a semester following a superintendent's hearing. Id. at 35-37. The Court of Appeals in Wisniewski rejected Aaron's First Amendment challenge to his suspension. The Court assumed arguendo that Aaron's icon was protected speech, but held that "the risk of substantial disruption" arising from the icon's transmission was "not only reasonable, but clear," and that there could be "no doubt that the icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment." Id. at 40. In Cuff II, the Second Circuit, in holding that the instant case could not be dismissed on the pleadings, thought that a developed record might reveal facts distinguishing this case from Wisniewski, such as that "B.C. had no other disciplinary history that would suggest a violent tendency." Cuff II, 341 Fed.Appx. at 693. But the now developed record entirely contradicts this conjecture. Indeed, it is now uncontested that, even on B.C.'s account, B.C. had a substantial disciplinary history, all of it tied to suggestions of violent tendencies, and that this was known to the individual defendant here, Barbara Knecht, as well as to the school district generally. Similarly, the speculation in Cuff II that B.C. might not have shown his drawing to other students, see 341 Fed. Appx. at 693, has now been definitively contradicted by undisputed evidence that establishes that not only did B.C. show his assignment to other students, but also it was only after his drawing prompted a classroom commotion that another student learned of the drawing and informed the teacher of what had occurred.[4] 468 As to those distinctions mentioned in Cuff II that still remainthat B.C. was a few years younger than the eighth-grader plaintiff in Wisniewski, and that B.C.'s threat was made "in direct response to a school assignment," 341 Fed.Appx. at 693the Court finds them immaterial as a matter of law in the context of the undisputed facts that have now emerged. Indeed, while the incident here took place in an elementary rather than middle school, B.C.'s relative youth arguably augments rather than constricts the scope of the school administrators' discretion. See, e.g., S.G. ex rel. A.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (3d Cir.2003) (noting, in upholding the suspension of a kindergartner for statements made during a game of cops and robbers at recess, that "a school's authority to control student speech in an elementary school setting is undoubtedly greater than in a high school setting"). And although B.C.'s wish to "blow up the school with the teachers in it" was expressed in response to a classroom assignment instead of in a private communication between B.C. and his friends, this fact only reinforces the reasonableness of defendants' belief that this writing should be treated as a threat rather than a joke. In response, plaintiffs point to testimony that, although disputed by defendants, must be taken as true for purposes of this motion: (1) during her meeting with Mr. and Mrs. Cuff, Knecht referred to the punishment as arising from a "zero tolerance policy" triggered by the "threat" written in the astronaut drawing alone, and stated that she did not presently have access to B.C.'s records (M. Cuff Dep. at 47-49; W. Cuff. Dep. at 71); (2) Knecht did not mention B.C.'s disciplinary history during that meeting (Kleinberg Decl. Ex. M (Deposition of Barbara Knecht, 11/4/09), at 57); (3) Knecht did not specifically know of the paintball drawing or the squirrel story at the time she imposed the suspension (Kleinberg Decl. Ex. K (Deposition of Delaine Charette, 11/20/09), at 11-12); and (4) Knecht did not speak to DeBold about the astronaut incident, or to Charette about any previous violent writings, until after she decided to suspend B.C. (DeBold Dep. at 19). This is hardly sufficient to create a material issue, however, given that it is undisputed that Knecht and Malley knew of B.C.'s prior disciplinary incidents at the time of his suspension, and that Knecht had previously discussed B.C.'s prior writings with Charette in general terms. Pls' 56.1 ¶¶ 84, 86-87, 89; Charette Dep. at 12. Moreover, plaintiffs' arguments in this regard ignore the standard for resolving conflicts between student speech and discipline set out in the seminal Supreme Court case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Whether otherwise protected speech can support student discipline turns, under Tinker, on the presence or absence of facts that "might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities." 393 U.S. at 514, 89 S. Ct. 733. Under this standard, defendants need not prove that school administrators' initially-stated justifications for punishment fully incorporate all the objective facts that could support a likelihood of substantial disruption, and they need not demonstrate that substantial disruption was inevitable. See, e.g., Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir.2008) ("The question [under Tinker] is not whether there has been actual disruption, but whether school officials `might reasonably 469 portend disruption' from the student expression at issue."); DeFabio v. E. Hampton Union Free Sch. Dist., 658 F. Supp. 2d 461, 481 (E.D.N.Y.2009) ("Not only are school officials free to act before the actual disruption occurs, they are not required to predict disruption with absolute certainty to satisfy the Tinker standard. Although plaintiffs seek to second-guess with hindsight the judgment of school administrators, that is not the role of the courts."). Indeed, an actual disruption standard would be absurd; as the Sixth Circuit has noted, such a theory would place school officials "between the proverbial rock and hard place: either they allow disruption to occur, or they are guilty of a constitutional violation." Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir.2007). "Such a rule is not required by Tinker, and would be disastrous public policy: requiring school officials to wait until disruption actually occurred before investigating would cripple the officials' ability to maintain order." Id. Given what B.C. wrote in his astronaut drawing, which on its face threatened violence and the destruction of property, coupled with the school administrators' general knowledge of his prior disciplinary history and similar past writings, no reasonable fact-finder could find that a prediction of a likelihood of substantial disruption was unreasonable. Plaintiffs' remaining arguments similarly fail to create a genuine fact issue that defendants acted unreasonably. They stress that B.C. told his teacher and the administrators that the drawing was a joke, that he never intended to have it posted in the hallway, and that in any event, he clearly lacked the capacity to carry out the supposed threat. Although the Court accepts these contentions as true for purposes of summary judgment, they do not undermine the reasonableness of defendants' response. First, even if B.C. meant the drawing to be a joke, the fact remains that he showed it to other students and knew that the assignment was intended for public display. Under Tinker, it is the objective reasonableness of the school administrators' response, rather than the student's private intentions, that are relevant. Thus, the Wisniewski court, in affirming summary judgment in favor of the school administrators despite the student's protestation that his icon was meant as a joke, concluded that "the risk of substantial disruption is not only reasonable, but clear." 494 F.3d at 40; cf. Morse, 551 U.S. at 401, 127 S. Ct. 2618 (holding, for purposes of summary judgment, that the principal was reasonable in interpreting a student's banner reading "BONG HiTS 4 JESUS" as promoting illegal drug use, despite the student's claim that "the words were just nonsense"). And because Wisniewski held that a student's generation and transmission of a buddy icon to his friends from his parents' home computer can support a reasonable probability of substantial disruption, surely a drawing made in response to a classroom assignment intended to be displayed publiclyand in fact shown to other studentswould also qualify. Finally, whether or not B.C. had the capacity to "blow up the school," or was at all likely to do so, is not dispositive, and indeed has only minimal relevance. As Judge Conner reasoned, and as the undisputed facts now substantiate, the defendants "could reasonably have viewed B.C.'s writing as a general indication of violent intention or propensity, notwithstanding the fact that he might have been unable to perform the specific violent act he threatened.... [E]ven an unsuccessful attempt at violence has significant disruptive potential, as does the making of the threat itself." Cuff I, 559 F.Supp.2d at 470 422. For this Court to hold otherwise, and thereby in effect to require school administrators to conduct a detailed capacity assessment before reacting to students' threats of violence, would place educators in an untenable position, and place students and teachers at an unreasonable risk of danger. See, e.g., Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 772 (5th Cir.2007) ("School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance."). Having determined that no reasonable fact-finder could fail to conclude that B.C.'s drawing was not shielded from punishment by the First Amendment, the Court turns to plaintiffs' fallback claim that the extent of B.C.'s punishment independently violated his constitutional rights. Judge Conner rejected this claim Cuff I, 559 F.Supp.2d at 422-24, and the Second Circuit did not reach the issue in Cuff II. But this Court essentially agrees with Judge Conner's analysis. Quite aside from the fact that plaintiffs are unable to cite any case where school discipline has been held unconstitutionally excessive, defendants' calibration of the extent of B.C.'s punishment is "exactly the sort of discretionary decision making that is entitled to deference from this Court." Cuff I, 559 F.Supp.2d at 424. "It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion." Wood v. Strickland, 420 U.S. 308, 326, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). Here, in light of what school administrators reasonably perceived to be a violent threat and B.C.'s prior disciplinary history, B.C.'s six-day suspension comes nowhere close to the sort of irrational, draconian punishment that might theoretically warrant constitutional limitation. For the foregoing reasons, defendants' motion for summary judgment is hereby granted in its entirety, and there is thus no need for the Court to reach defendant Knecht's assertion of qualified immunity. The Clerk of the Court is directed to enter final judgment in favor of defendants and to close document number 24 on the Court's docket. SO ORDERED. NOTES [1] The citations to the plaintiffs' reply to the defendants' statement of undisputed facts under Rule 56.1 of the Local Civil Rules of the Southern District of New York incorporate by reference the corresponding paragraphs of the defendants' Rule 56.1 statement. [2] At her deposition, DeBold stated that she was concerned that C.P. got out of her seat to report the incident and recalled that C.P. looked very worried. B.C., however, testified that C.P., like the other students, laughed when she saw B.C.'s picture, and that C.P. was a "tattletale" who had gotten him in trouble for earlier incidents. Pls' 56.1 ¶¶ 71, 75-76. [3] B.C. testified that DeBold, after being pestered by students about what sorts of things they could write, told them that they could write about "anything," and gave as an example "missiles." Pls' 56.1 ¶ 51. [4] Cuff II also deemed it relevant that B.C.'s drawing was allegedly made in crayon. See 341 Fed.Appx. at 693. It is now uncontested that the drawing was made in pencil, though the relevance of the medium eludes this Court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540583/	721 F. Supp. 2d 653 (2010) Shayne W. BAILEY, Plaintiff, v. CITY OF BROADVIEW HEIGHTS, OHIO, et al., Defendant. Case No. 1:09 CV 1096. United States District Court, N.D. Ohio, Eastern Division. June 14, 2010. Melissa A. Graham-Hurd, Augustin F. O'Neil, Akron, OH, for Plaintiff. Aimee Weiss Lane, Jonathan D. Greenberg, R. Todd Hunt, Walter & Haverfield, Cleveland, OH, Vincenzo Ruffa, Oakar & Ruffa, Broadview Heights, OH, for Defendant. Memorandum of Opinion and Order PATRICIA A. GAUGHAN, District Judge. Introduction This matter is before the Court upon plaintiff's Motion for Summary Judgment (Doc. 28) and Joint Motion for Summary Judgment of Defendants City of Broadview Heights and Samuel J. Alai (Doc. 29). For the following reasons, plaintiff's motion is DENIED and defendants' motion is GRANTED. Facts Plaintiff, Shayne W. Bailey, Individually and on behalf of all others similarly situated, filed this Complaint against defendants, City of Broadview Heights, Ohio (hereafter, the City) and Samuel J. Alai, in his official capacity as Mayor of the City of Broadview Heights, Ohio (hereafter, Mayor Alai) and in his individual capacity. The facts are not in dispute.[1] The City operates a Mayor's Court as provided for in Ohio Revised Code § 1905.01, et seq[2]. 654 Mayor Alai presides over the Mayor's Court pursuant to the City's Charter which states, "The Mayor shall have all the judicial powers granted by the general laws of Ohio to mayors of cities...." (Doc. 29 Ex. A) Under the City Charter, Mayor Alai has the executive powers of "chief executive officer" of the City and is one of the City officials responsible for the City's budget and its operation. (Id. Ex. B; Am. Answer ¶¶ 6, 20) Mayor Alai is also the "chief conservator of the peace" under the City Charter and is required by it to see that all laws and ordinances are enforced within the City. (Doc. 29 Ex. B) On November 12, 2008, plaintiff was served by a law enforcement officer for the City with a minor misdemeanor traffic citation for failure to maintain his vehicle at an assured clear distance which caused a rear end collision. Plaintiff was served with a summons to appear in the Mayor's Court on November 20, 2008. Plaintiff was present for some period of time at the Mayor's Court on November 20, 2008. Defendant Mayor Alai presided over the Mayor's Court on this date. Mayor Alai accepted a voluntary plea of "no contest" from plaintiff, entered a finding of guilty, and issued a fine of $100.00 plus court costs of $80.00. (pltf. depo. and Exs. thereto) Plaintiff left the Mayor's Court on November 20, 2008, prior to paying his fine and court costs and without notifying the Court or its Clerk that he was leaving. As a result, the Mayor's Court Clerk signed a criminal complaint against plaintiff for contempt of court for failure to appear and summoned him to appear on December 4, 2008. Plaintiff did appear in Mayor's Court on December 4, 2008. Mayor Alai presided over the Mayor's Court on this date and accepted a voluntary plea of guilty from plaintiff on the contempt of court charge and issued a fine of $100.00 and no court costs. (Id. Ex. D) Plaintiff thereafter filed this Complaint wherein he asserts a violation of due process pursuant to 42 U.S.C. § 1983. The Complaint asserts that in DePiero v. City of Macedonia, 180 F.3d 770 (6th Cir.1999), the Sixth Circuit held that a Mayor of an Ohio municipality who is its Chief Executive Officer with widespread executive powers and administrative responsibilities lacks authority to preside over the Mayor's Court because the powers vested to him put him in inconsistent positions and result in the denial of due process to those appearing before him as defendants. Because DePiero was decided more than nine years before Mayor Alai presided over plaintiff's two cases in Mayor's Court, the law was clearly established that Alai would deny plaintiff due process of law. For the same reason, Alai acted in the clear absence of jurisdiction in plaintiff's cases. Additionally, the City of Broadview Heights is liable for the unconstitutional actions of Mayor Alai. (Verified Compl.) This matter is now before the Court upon the cross motions for summary judgment filed by the parties. The motions will be addressed simultaneously. Standard of Review Summary Judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 655 91 L. Ed. 2d 265 (1986) (citing Fed.R.Civ.P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir.1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party: [A] party seeking summary judgment always 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 affidavits," if any, which it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S. Ct. 2548 (citing Fed.R.Civ.P. 56(c)). A fact is "material only if its resolution will affect the outcome of the lawsuit." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party. Federal Rule of Civil Procedure 56(e) provides: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of [his] pleadings, but [his response], by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is genuine issue for trial. If he does not respond, summary judgment, if appropriate, shall be entered against him. The court must afford all reasonable inferences and construe the evidence in the light most favorable to the nonmoving party. Cox v. Kentucky Dep't. of Transp., 53 F.3d 146, 150 (6th Cir.1995) (citation omitted); see also United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985). However, the nonmoving party may not simply rely on its pleading, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox, 53 F.3d at 150. Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322, 106 S. Ct. 2548). Accordingly, "the mere existence of a scintilla of evidence in support of plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995) (quoting Anderson, 477 U.S. at 252, 106 S. Ct. 2505 (1986)). Moreover, if the evidence is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (citation omitted). Discussion (1) Section 1983 Due Process Claim To prevail on his § 1983 claim, plaintiff "must establish that a person acting under color of state law deprived [him] of a right secured by the Constitution or laws of the United States." Smoak v. Hall, 460 F.3d 768, 777 (6th Cir.2006). It is undisputed that defendants acted under color of state law. The issue is whether plaintiff's due process rights were violated. Plaintiff argues that he is entitled to summary judgment on his due process claim because Mayor Alai, under the holding of DePiero, supra, is constitutionally disqualified, per se, from presiding over a mayor's court in that he is the Chief Executive Officer of the City. While agreeing that Mayor Alai has broad executive powers and administrative responsibilities, defendants contend that they are entitled to summary judgment because DePiero is inapplicable to uncontested cases such as the one here where the mayor merely performed 656 a ministerial function. For the following reasons, the Court agrees with defendants. Citing Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), Dugan v. Ohio, 277 U.S. 61, 48 S. Ct. 439, 72 L. Ed. 784 (1928), and Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), the DePiero court recognized that constitutional facial challenges to O.R.C. § 1905.01 authorizing Ohio mayor's courts have been rejected by the United States Supreme Court which "found no fatal defect in the overarching system that permits a mayor simultaneously to exercise some combination of executive and judicial functions." DePiero, 180 F.3d at 777. Nonetheless, "the structure of the courts in practice must be such that the particular combination of executive powers vested in the mayor does not impair his ability to serve also as a neutral arbiter." DePiero, 180 F.3d at 777. The test has been stated as whether "the mayor's situation is one `which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused...'" Ward, 409 U.S. at 60, 93 S. Ct. 80, (quoting Tumey, 273 U.S. at 532, 47 S. Ct. 437). Thus, in Tumey, due process was compromised where the mayor had a "direct, personal, substantial pecuniary interest" in convicting the defendant who came before him for trial. In Dugan, by contrast, there was no due process violation where the mayor who presided over contested cases was not the chief executive and had no pecuniary interest in cases tried in mayor's court. In Ward, defendant, who was convicted of two traffic offenses in the mayor's court, was deprived of a neutral and detached magistrate, and therefore due process, where the mayor had wide executive powers and his executive responsibilities for village finances may have made him partisan to maintaining the high level of contribution from the mayor's court. Rose v. Village of Peninsula, 875 F. Supp. 442 (N.D.Ohio 1995), considered these Supreme Court cases in determining whether, after Ward, the "substantiality" of mayor's court revenues as a percentage of overall revenues was determinative in addressing the constitutionality of convictions in mayor's court and concluded that although substantiality of revenues is an important factor to consider, it is not determinative and the absence of evidence of substantiality does not necessitate a finding of impartiality. DePiero applied these cases in addressing plaintiff's claim that he was deprived of due process when the mayor presided over his contested case given that the mayor had broad executive powers which would preclude his ability to act as a neutral arbiter. In DePiero, plaintiff was issued a parking ticket by a police officer in Macedonia, Ohio. A hearing on the citation was docketed in Macedonia Mayor's Court. Plaintiff failed to pay the ticket or appear in court. A summons was mailed to his home address ordering him to appear in court and warned that if he failed to appear he could be arrested. After he failed to pay the fine for the violation or appear to contest the ticket in Mayor's Court, the mayor issued a bench warrant for plaintiff's arrest and set a bond. A criminal contempt charge was also brought against him. Subsequently, plaintiff was stopped by a police officer in another city for an unrelated traffic offense. The officer informed plaintiff of the Macedonia bench warrant and ultimately plaintiff was transported to the police station in Macedonia. He was released from custody after posting bond. After pleading not guilty to the traffic and contempt charges, plaintiff was tried in Mayor's Court. The mayor found him guilty of both the misdemeanor parking violation and the criminal contempt 657 charge, and he was fined for both. Plaintiff appealed his convictions to the Cuyahoga Falls Municipal Court, which dismissed both charges against him. Plaintiff then sued in the district court under 42 U.S.C. § 1983 alleging, inter alia, that the Ohio statute authorizing mayor's courts is unconstitutional and that he was deprived of due process. The Sixth Circuit rejected plaintiff's challenge to the statute based on the United States Supreme Court precedent discussed above. The court, however, agreed that there was a due process violation. The court recognized that the issue before it was "whether the level of executive authority vested in the [mayor] is broad so that it becomes reasonable to question his impartiality even if he collects a fairly small amount of general fund revenue through the mayor's court." DePiero, 180 F.3d at 780 (citing Rose v. Village of Peninsula, 875 F. Supp. 442 (N.D.Ohio 1995)). The court assessed the mayor's powers and concluded that he was vested with broad executive powers and a degree of administrative powers comparable to mayors whose courts were found unconstitutional in prior cases. Accordingly, the court found that plaintiff was deprived of due process when the mayor tried his contested traffic and criminal contempt charges given that the "broad reach" of the mayor's "executive powers and his sweeping administrative responsibilities necessarily puts him in two practically and seriously inconsistent positions, one partisan and the other judicial." Id. at 782 (citing Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972) and Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)). The court noted that the "mere possibility to ignore the burden of proof is all that is required." Id. The court further found that because of his wide executive powers and administrative responsibilities, the mayor lacked authority to preside over the Mayor's Court and so plaintiff was also deprived of due process when the mayor issued the bench warrant for his arrest. As pointed out by defendants herein, the cited rationale applies to contested cases decided by a mayor in mayor's court. In fact, all the cases discussed heretofore involved contested cases, i.e., Tumey (after pleading not guilty, the defendant was tried by the mayor and convicted), Dugan (the defendant was convicted by the mayor in the mayor's court), and Ward (the defendant was convicted by the mayor in the mayor's court). The Ward court specifically noted, The question presented on this record is the constitutionality of the Mayor's participation in the adjudication and punishment of a defendant in a litigated case where he elects to contest the charges against him. We intimate no view that it would be unconstitutional to permit a mayor or similar official to serve in essentially a ministerial capacity in a traffic or ordinance violation case to accept a free and voluntary plea of guilty or nolo contendere, a forfeiture of collateral, or the like. Ward, 409 U.S. at fn. 2, 93 S. Ct. 80. Rose, too, stated that "whether a defendant convicted in a contested case in an Ohio village mayor's court has been denied due process of law does not simply depend on whether the fee revenue produced by that mayor's court is `substantial' ... [rather] the thrust of the inquiry is whether the mayor `occupies two practically and seriously inconsistent positions, one partisan and the other judicial.'" Rose, 875 F.Supp. at 452 (emphasis added). Finally, DePiero recognized that it was the possibility of a mayor presiding over a contested case to give undue credence to the police officer and ignore the burden of proof that would deprive a defendant of due process. The case herein concerns an uncontested case wherein the mayor accepted the plea 658 of no contest,[3] entered a finding of guilty, and issued fines and court costs. Defendant contends that Mayor Alai's action was ministerial in nature and, therefore, De-Piero does not apply. This Court agrees. In Micale v. Village of Boston Heights, 1997 WL 225512 (6th Cir. May 1, 1997), decided about two years prior to DePiero, the Sixth Circuit "decline[d] to extend the holding of Ward that is applicable to not guilty pleas to encompass no contest pleas." Id. at 4. The plaintiff in Micale appeared in the mayor's court and entered a no contest plea to the offense of speeding before the mayor who was the financial and administrative officer of the village. The mayor entered a finding of guilt and imposed a fine and court costs. The plaintiff then filed a § 1983 action arguing that due process was violated by the mayor taking the no contest plea. The court disagreed. In doing so, the court rejected plaintiff's argument that a no contest plea is not a ministerial function that can be carried out by a mayor acting in both an executive and judicial function. The Court recognized Ward's limitation of its holding to litigated cases where a defendant elects to contest the charges against him and distinguished the case before it: [Plaintiff] argues that the taking of a plea of no contest is not a ministerial function, but instead, is a discretionary function that entails a determination of guilt. [Plaintiff] therefore contends, pursuant to Ward, that a plea of no contest is entitled to the same procedural safeguards as a litigated matter. Under Ohio law, a plea of no contest is not an admission of guilt, but is an admission of the truth of the facts alleged in the complaint. Ohio R.Crim.P. 11(B)(6); Ohio Traf.R. 10(B)(2). Further, pursuant to Ohio law, courts must conduct the following inquiry before accepting a no contest plea: If the plea be "no contest" ... in pleading to a misdemeanor, it shall constitute a stipulation that the judge... may make a finding of guilty or not guilty from the explanation of the circumstances, and if guilt be found, impose or continue for sentence accordingly. Ohio Rev.Code § 2937.07. [Plaintiff] therefore contends that the mayor cannot act as a "neutral and detached" judge because the mayor-who also is responsible for law enforcement and the financial condition of Boston Heights-ultimately determines a defendant's guilt after a no contest plea. We disagree. The fact that the mayor makes a finding of guilty or not guilty after an explanation of the circumstances of the case does not elevate the taking of a no contest plea to the level of an adjudication of guilt after a not guilty plea, in which a defendant is contesting the charges brought against him. In a no contest plea, a defendant admits the truth of the facts alleged in the complaint; the mayor then can refuse to accept the plea by determining that the uncontested facts do not rise to the level of a violation of the law. This procedure simply does not require the same safeguards as the complete discretion involved in an adjudication of a plea of not guilty, in which the facts alleged in the complaint are very likely in dispute. Thus, Chapter 1905 of the Ohio Revised Code and Ohio Traffic Rule 9[4] fully 659 comply with the dictates of Ward: a defendant who contests the charges against him is entitled to adjudication by a judge who does not have a pecuniary interest in the case. A guilty plea or a no contest plea, on the other hand, are ministerial functions which a mayor-even one with a pecuniary interest-may carry out. We therefore decline to extend the holding of Ward that is applicable to not guilty pleas to encompass no contest pleas. We find that the mayor acted in a ministerial role when taking [plaintiff's] plea of no contest. [Plaintiff's] due process rights were not violated; accordingly, defendants are entitled to summary judgment as to this issue. Micale, 1997 WL 225512 at 4. Micale is on point and compels the same conclusion here, i.e., Mayor Alai's ministerial action in taking the no contest plea did not violate plaintiff's due process. Plaintiff, however, disagrees. But none of the arguments put forth by plaintiff require the Court to reach a different conclusion. First, plaintiff argues DePiero is applicable because although DePiero did involve a case where a not guilty plea had been entered, the court also determined that plaintiff had been deprived of due process when the mayor issued a bench warrant for plaintiff's arrest due to his failure to appear. The court stated: By virtue of the breadth of his executive powers and administrative responsibilities, Mayor Migliorini lacked authority to preside over the Mayor's Court. Therefore we are also compelled to find that plaintiff was deprived of due process when the Mayor issued a bench warrant for plaintiff's arrest on account of his failure to appear in Mayor's Court. DePiero, 180 F.3d at 783. Plaintiff contends that since the DePiero court determined that the mayor lacked authority to preside over the Mayor's Court at all, that holding means that Mayor Alai lacked authority to preside over the Broadview Heights Mayor's Court at all times, i.e., from the day he took office until his last day as mayor given his wide executive power and administrative responsibilities. Second, plaintiff posits that because Micale, supra, is an unpublished Sixth Circuit decision, it is not controlling precedent and not binding and, therefore, should not be followed by this Court. Rather, plaintiff asserts, the Court is bound by the published decision of DePiero. Third, plaintiff asserts that Micale was wrongly decided. Plaintiff's first argument fails for a couple of reasons. Initially, as stated above, DePiero, based on United States Supreme Court precedent, upheld the constitutionality of O.R.C. § 1905.01, the state statute granting jurisdiction to Ohio mayors to preside over prosecutions in mayor's courts for violations of municipal ordinances and state traffic laws. Thus, plaintiff's assertion that Mayor Alai lacks any authority to preside over the Mayor's Court at all is unavailing. Rather, DePiero concluded that the mayor's broad executive powers and administrative responsibilities may have impaired his ability to serve as a neutral arbiter in presiding over the contested traffic and criminal contempt charge as well as the issuance of the arrest warrant which requires a "neutral and detached" judicial officer. The court recognized that the issuance of the bench warrant required a determination of probable cause. For the same reason that the mayor could not preside over the contested case, he lacked authority to issue the warrant. Plaintiff herein was served with a 660 failure to appear citation issued by the Mayor's Court Clerk, not Mayor Alai. A bench warrant for arrest was not issued.[5] Citing to Shadwick v. City of Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972), DePiero recognized that municipal court clerks are "neutral and detached, and therefore able to issue warrants for persons charged with breach of municipal ordinances . . ." Additionally, as discussed above, plaintiff voluntarily entered a plea of guilty to the failure to appear charge. He had also entered a plea of no contest on the misdemeanor traffic citation. Thus, as well as not being a contested case being heard and decided by a mayor presiding over a mayor's court, this case does not involve a bench warrant issued by a mayor with respect to a contested case. DePiero does not apply. Nor is this Court required to ignore Micale as proposed by plaintiff. "Unpublished opinions of this court are not precedentially binding under the doctrine of stare decisis, but may be considered for their persuasive value." Hamilton v. General Elec. Co., 556 F.3d 428 (6th Cir.2009) (citing United States v. Sanford, 476 F.3d 391, 396 (6th Cir.2007)). As discussed above, the published opinion of DePiero is distinguishable from the case herein and from Micale. The latter appears to be the only Sixth Circuit opinion speaking to those particular facts, which apply in this case. The Court finds Micale to be persuasive regarding the issue herein. Finally, plaintiff contends that defendants' assertion that Mayor Alai was acting in a ministerial capacity and Micale's conclusion that the mayor acted in a ministerial capacity in accepting the no contest plea are contrary to Ohio law. This Court disagrees. In State v. Bird, 81 Ohio St. 3d 582, 692 N.E.2d 1013 (1998), the Ohio Supreme Court stated, "According to Crim.R. 11(B)(2), a no contest plea is `not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment * .' Therefore, we have held that where the indictment . . . contains sufficient allegations to state a felony offense and the defendant pleads no contest, the court must find the defendant guilty of the charged offense." Further, "If there had been a trial, the state would have had to prove beyond a reasonable doubt all elements of the indictment . . . However, with a no contest plea, the state was relieved of these obligations. The state only had to allege sufficient facts to charge a violation [of the statute]." Micale's reasoning and conclusion, set forth above, is not to the contrary. Not only is Micale consistent with Ohio law, but the Ohio Supreme Court cases to which plaintiff refers do not stand for the proposition, as plaintiff asserts, that in accepting a no contest plea a judge does not act in a ministerial capacity but has absolute discretion to find a defendant guilty or not guilty. Rather, those cases only acknowledge that when accepting a no contest plea, a judge enters a finding of guilty or not guilty after an explanation of circumstances. Plaintiff points to the Ohio Supreme Court decision of City of Cuyahoga Falls v. Bowers, 9 Ohio St. 3d 148, 459 N.E.2d 532 (1984). There, the Ohio Supreme Court had certified the question of "whether the provision in R.C. 2937.07[6] for an 661 explanation of circumstances following a plea of no contest has been superseded by the enactment of Crim.R. 11" which states, "The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information or complaint." The court concluded that § 2937.07 did confer a substantive right and, therefore, a no contest plea may not be the basis for a finding of guilty without an explanation of circumstances. On that basis, the court found that the statute was not superceded by Criminal Rule 11. The court, quoting Springdale v. Hubbard, 52 Ohio App. 2d 255, 369 N.E.2d 808 (1977), interpreting O.R.C. § 2937.07 stated: In our opinion, the * * * language of [O.R.C. § 2937.07] contains a substantive right. In other words, we believe that a defendant has a substantive right to be discharged by a finding of not guilty where the statement of facts reveals a failure to establish all of the elements of the offense. If this were not so, assuming the complaint or indictment to be properly worded, the trial court would be bound to ignore a failure of the facts to establish a necessary element of a case and simply make the finding of guilty in a perfunctory fashion. We do not believe that is what the rule intends, and it is difficult for us to conceive a more substantive right than to be found not guilty under proper circumstances. We find the Springdale court's reasoning to be persuasive and hereby adopt its conclusion that R.C. 2937.07 confers a substantive right. Therefore, a no contest plea may not be the basis for a finding of guilty without an explanation of circumstances. Consequently, we reject appellee's contention and the holding of the court below that R.C. 2937.07 is purely procedural and hence susceptible to supersession by the Criminal Rules. Plaintiff asserts that the meaning of City of Cuyahoga Falls is that a judge does not act in a ministerial capacity but rather has absolute discretion to find a defendant guilty or not guilty following a plea of no contest and a defendant has a substantive right to be found not guilty following a no contest plea. The court, however, did not state that a judge has absolute discretion in entering a finding on a no contest plea or that a defendant has a substantive right to be found not guilty on a no contest plea. Rather, a judge has a duty to take an explanation of circumstances on a plea of no contest before entering a finding of guilty or not guilty. In that case, the judge had failed to take an explanation of circumstances and the plea was vacated. Plaintiff also points to State ex rel. Sawyer v. O'Connor, 54 Ohio St. 2d 380, 377 N.E.2d 494 (1978). There, the defendant entered a no contest plea and, after an explanation of circumstances, the municipal judge found the defendant guilty of a lesser charge. The prosecutors filed a mandamus action in the appellate court 662 seeking to vacate the reduction of the charge. The Ohio Supreme Court reversed that court's issuance of the writ on the basis that defendant could be placed in double jeopardy. It was not disputed that the trial court had the power to consider whether the facts alleged in the complaint, which are admitted by the plea of no contest, constituted the basis for a finding of guilty or not guilty. The court stated, "In the event of a finding of not guilty as to the principal charge, the court may find defendant guilty of a lesser-included offense. If the court, in so exercising its power, erred to the prejudice of defendant, the defendant's remedy is to appeal to the Court of Appeals. The state, however, has no right to appeal a judgment in a criminal case ..." Plaintiff herein seizes on the language that the judge had the discretion to find the defendant guilty or not guilty. But, as recognized by Micale, and with which this Court agrees, the fact that the judge makes a finding of guilty or not guilty after an explanation of the circumstances "does not elevate the taking of a no contest plea to the level of an adjudication of guilt after a not guilty plea." The court's conclusion in Sawyer does not shake this reasoning. Likewise, State ex rel. Leis v. Gusweiler, 65 Ohio St. 2d 60, 418 N.E.2d 397 (1981), rejected a mandamus request after the trial court found the defendant guilty of a lesser offense upon hearing the admitted facts on the no contest plea. Again, although it was recognized that the trial court had the discretion to accept the no contest plea and resolve the factual elements of the charged offense against the state, the court did not state, nor does it mean, that a judge does not make a ministerial finding of guilty in taking a no contest plea. Finally, State ex rel. Butler v. Demis, 66 Ohio St. 2d 123, 420 N.E.2d 116 (1981), involved a judge's authority to appoint counsel of its own choosing for indigent defendants and the court only cited Sawyer for the holding that where a court has discretion to act, mandamus will not lie to control the exercise of that discretion, even if abused. Plaintiff asserts, as evidenced by Village of Brookville v. Scheuman, 50 Ohio Misc.2d 19, 553 N.E.2d 1098 (1988), that Ohio's state courts have followed Cuyahoga Falls without exception to hold that a defendant does not admit his guilt with a no contest plea but that the issue of guilt is determined by the judge who exercises discretion in doing so. In Scheuman, defendant entered a plea of no contest to an open liquor container violation. The common pleas court construed the statute at issue to not prohibit defendant's particular conduct and found the defendant not guilty. Once again, merely because a judge can make a finding of not guilty after a no contest plea does not equate to the "complete discretion involved in an adjudication of a plea of not guilty, in which the facts alleged ... are very likely in dispute." Micale at 4. Lastly, plaintiff points to two United States Supreme Court decisions which address what is not considered a ministerial action taken by a judge. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983) and In Re Summers, 325 U.S. 561, 65 S. Ct. 1307, 89 L. Ed. 1795 (1945). Plaintiff contends these cases apply because they conclude that a "judicial inquiry" is not ministerial. Plaintiff asserts that in the herein case, Mayor Alai was required to make a judicial inquiry once the no contest plea was entered. To the contrary, the mayor's task was only to determine whether the uncontested facts stated the elements of the offense charged. Micale addressed precisely the facts under consideration in this case and the 663 Court accepts the reasoning and conclusion of the Sixth Circuit which is consistent with Ohio law. Furthermore, the United States Supreme Court in Ward did not extend its holding to uncontested cases, "We intimate no view that it would be unconstitutional to permit a mayor . . . to serve in essentially a ministerial capacity in a traffic or ordinance violation case to accept a free and voluntary plea of guilty or nolo contendere . . ." For the foregoing reasons, there was no due process violation.[7] (2) Immunity Having found no constitutional violation, the Court need not address whether the mayor is entitled to immunity. (3) Municipal Liability The City is entitled to judgment as a matter of law for the same reasons stated herein. Conclusion For the foregoing reasons, plaintiff's Motion for Summary Judgment is denied and the Joint Motion for Summary Judgment of Defendants City of Broadview Heights and Samuel J. Alai is granted. IT IS SO ORDERED. NOTES [1] Plaintiff presents no statement of facts. Additionally, this Court has addressed the facts in its earlier Opinions regarding class certification. [2] § 1905.01(A) states in part, "In ... all other municipal corporations having a population of more than one hundred . . . not being the site of a municipal court . . . the mayor of the municipal corporation has jurisdiction ... to hear and determine any prosecution for the violation of an ordinance of the municipal corporation, to hear and determine any case involving a violation of a vehicle parking or standing ordinance of the municipal corporation . . . and to hear and determine all criminal causes involving any moving traffic violation occurring on a state highway located within the boundaries of the municipal corporation. . . [3] The Court has previously limited the class to include those entering pleas of no contest and, therefore, plaintiff's voluntary plea of guilty on the contempt of court charge is not addressed. [4] Micale noted that the Ohio Traffic Rules set forth the procedural aspects of mayors' courts hearing traffic violations. As set forth below at footnote 7, Ohio Traffic Rule 9 provides that guilty and no contest pleas may be taken by any mayor regardless of whether his compensation is dependent upon criminal case convictions or he is chief executive and administrative officer of the municipality. [5] The citation stated that plaintiff violated "Local Ordinance 290.02 Contempt of Court to Wit Failure to Appear." Plaintiff was summoned to appear in the Broadview Heights Mayors Court on December 4, 2008. The citation also stated, "If you fail to appear at the time and place stated below you may be arrested." (pltf. depo. Ex. D) [6] The court recognized that O.R.C. § 2937.07 stated in part, "If the plea be `no contest' or words of similar import in pleading to a misdemeanor, it shall constitute a stipulation that the judge * * may make a finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly. * * *" Later amendments do not change the substance of the statute: "A plea to a misdemeanor offense of `no contest' or words of similar import shall constitute a stipulation that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense. If a finding of guilty is made, the judge or magistrate shall impose the sentence or continue the case for sentencing accordingly. A plea of `no contest' or words of similar import shall not be construed as an admission of any fact at issue in the criminal charge in any subsequent civil or criminal action or proceeding." [7] Furthermore, undisputed by plaintiff is that Ohio Traffic Rule 9 states, "Guilty and no contest pleas may be taken by any mayor including ... mayors who as chief executive and administrative officer of the municipality are responsible for the financial condition of the municipality." Notes to the rule state the reasoning as "guilt is not being contested and the essential problem raised by the conflict of interest is not present in the guilty and no contest pleas."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540667/	709 F. Supp. 2d 789 (2010) ZL TECHNOLOGIES, INC., Plaintiff, v. GARTNER, INC. and Carolyn DiCenzo, Defendants. Case No. CV 09-02393 JF(PVT). United States District Court, N.D. California, San Jose Division. May 3, 2010. 790 Michael Kai Ng, James Matthew Wagstaffe, Kerr & Wagstaffe LLP, San Francisco, CA, for Plaintiff. Robert P. Feldman, Justin B. Barnard, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, for Defendants. ORDER GRANTING MOTION TO DISMISS JEREMY FOGEL, District Judge. I. BACKGROUND 1. Procedural Background Plaintiff ZL Technologies, Inc. ("ZL") filed its original complaint against Defendants Gartner, Inc. and Carolyn DiCenzo (collectively, "Gartner") on May 29, 2009, alleging seven claims for relief: (1) defamation of character; (2) trade libel; (3) false statements under § 43(a) of the Lanham Act concerning Gartner's products and services; (4) false statements under § 43(a) of the Lanham Act concerning products of Symantec Corporation ("Symantec"); (5) false or misleading advertising under California Business and Professions Code § 17500; (6) unfair competition under California Business and Professions Code § 17200; and (7) negligent interference with prospective economic advantage. Gartner moved to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). On October 23, 2009, the Court granted Gartner's motion in its entirety, with leave to amend except as to ZL's claims under the California Business and Professions Code and for negligent interference with prospective business advantage. On December 4, 2009, ZL filed its first amended complaint ("FAC") alleging claims for defamation of character and trade libel. Gartner again moves to dismiss. The Court has considered the moving 791 and responding papers and the oral arguments of counsel presented at the hearing on February 12, 2010. For the reasons discussed below, the motion will be granted, this time without leave to amend. 2. Factual Allegations of the FAC ZL alleges the following facts, which are presumed to be true for the purposes of a motion to dismiss. A. The Parties ZL "makes and sells enterprise software, including cutting-edge systems that allow large enterprises to store, index, search, and extract electronic data, primarily email and files." FAC ¶ 8. ZL is primarily self-funded and has avoided seeking large amounts of venture capital funding in order to retain its independence and make business decisions for the long-term benefit of its enterprise customers. Id. ¶ 11. ZL "offers the strongest products with the broadest capabilities in the email archiving market," id. ¶ 12, and its superior products and service earned the company a core of customers that include some of the world's largest enterprises. Id. ¶ 15. However, ZL's sales trail significantly those of its larger competitors, including Symantec. Id. ¶ 16. Gartner, which identifies itself as "the world's leading information technology research and advisory company," provides analysis of the information technology industry to paying corporate and executive customers. Id. ¶ 17. According to ZL, the large enterprises and governmental bodies that tend to purchase emailing archive software "rely heavily on outside advice," and "Gartner dominates the market for providing such advice." Id. ¶ 18. Gartner's market position gives it the ability to exercise "make-or-break power over the technology providers whose products are aimed at such purchasers." Id. ¶ 19. Gartner touts its own influence, asserting in marketing materials that "Gartner is not just bigger, more networked, or more influential than the competition. We are in a league of our own ... We can show you how to buy, what to buy, and how to get the best return on your technology investment." Id. ¶ 20. Others in the industry recognize Gartner's dominance as well. An unspecified published article asserted that "[f]ailure to get a favorable mention in an analyst report could undermine years of product development. Acceptance, on the other hand, boosts a company's exposure and is essential for buyers drawing up shortlists." Id. ¶ 22. DiCenzo is Gartner's lead analyst for the email active archiving market. Id. ¶ 4. B. Allegations of Wrongdoing ZL's claims of defamation and trade libel are based entirely upon its ranking as a "Niche" player in Gartner's Magic Quadrant ("MQ") Report, id. ¶¶ 81-91, and a statement by DiCenzo that ZL's products and Symantec's Enterprise Vault software were "the same" (collectively, "Alleged Defamatory Statements"). Id. ¶¶ 97-102. The annual MQ Report provides research analysis of particular market segments annually. Id. ¶ 23. The target audience for the MQ Report is the potential customer base for vendors analyzed in the report. Id. ¶ 24. Email archiving software has been analyzed in the MQ Report since 2002. The MQ Report "for email archiving states that the report covers product vendors who were `able to prove, through strong references, their ability to address the needs of an organization looking to support thousands of users.'" Id. ¶ 25. The MQ Report places IT vendors on a proprietary map called "the Magic Quadrant" that divides vendors into four quadrants in declining order of desirability: "Leader," "Challenger," "Visionary," and 792 "Niche." Id. ¶ 26. The axes of the four quadrants measure a vendor's "ability to execute" and "completeness of vision." Id. ¶ 30. The "ability to execute" variable is based upon Gartner's assessment of the vendor's quality of goods and services, overall viability, sales execution, market responsiveness and track record, marketing execution, customer experience, and operations. Id. ¶ 31. The "completeness of vision" axis reflects an evaluation of a vendor's market understanding, market strategy, sales strategy, product strategy, business model, industry strategy, innovation, and geographic strategy. Id. ¶ 32. Each component is comprised of subcomponents; for example, "`Quality of Goods and Services' is ... broken out into such factors as `capabilities, quality, feature sets.'" Id. ¶ 33. The components upon which placement along the axis is based are assigned weightsheavy, standard or low. Id. ZL amended its original complaint by adding allegations that collectively assert the following: (1) Gartner's placement of ZL on the Magic Quadrant is a "statement of fact"; (2) Gartner's MQ Reports are based on unpublished data and facts; and (3) Gartner's opinions are affected by an inherent bias because Gartner has an economic interest in selling its services to the companies it rates. 1. Allegations that Magic Quadrant designation is a statement of fact ZL claims that "placement of a vendor, both within one of the four quadrants of a Magic Quadrant and relative to the vendor's competitors in the Magic Quadrant, is a statement of fact." Id. ¶ 35. It asserts that Gartner intends placement within the MQ Report to be understood as a statement of fact and that readers understand it to be the same. Id. ¶ 36. The FAC contains several specific allegations in support of this assertion. First, it alleges that a Gartner vice president and analyst wrote on Gartner's website that placement in the Magic Quadrant is based on a "rigorous mathematical model." Id. ¶ 38 (asserting that a Gartner vice president told a former employee that, "in your day, [MQ Reports] were developed by smart analysts placing dots. Today, we have a much more rigorous mathematical model we don't just place dots"). Second, it claims that Gartner "implicitly characterizes" the MQ Report designations as factual by allowing rated vendors to "respond to `factual errors.'" Id. ¶ 39. Third, it points out that Gartner describes its research and analysis as "highly discerning research that is objective, defensible, and credible to help [customers] do [their] job better." Id. ¶ 41. Fourth, it alleges that a Gartner research guide claims that "Gartner Research is built on objectivity" and that its research methodology promises the "ultimate objectivity." Id. ¶ 42. Finally, it cites a statement in Gartner's 2008 SEC 10-K that "Gartner consultants provide fact-based consulting services to help our clients use and manage IT to enable business performance," id. ¶ 43, and that the Gartner website asserts "[w]e are fact-based and knowledge-centric." Id. ¶ 44. At the same time, ZL alleges that "[i]n portions of Gartner's reports, it attempts to disclaim certain of its statements as opinion." Id. ¶ 58; see also Request for Judicial Notice In Support of Defendants' Motion to Dismiss Plaintiff's Complaint ("RJN"),[1] Ex. C (Magic Quadrant Report for 2009) at 1 (noting that "[t]he opinions expressed herein are subject to change without notice."), 3 (stating that placement of vendors on the Magic Quadrant "is 793 based on Gartner's view of the vendor's performance"). 2. Allegations of unpublished data underlying the Magic Quadrant Reports ZL alleges that the MQ Report is based on undisclosed data and facts. FAC ¶¶ 45-67. The 2009 MQ Report states: Shaping Gartner's view regarding proper vendor placement are more than 1,000 conversations over the past year with Gartner customers, as part of our inquiry service, survey responses and updates from the vendors in the March/April 2009 time frame, and over 70 conversations with vendor-supplied references in March and April 2009. We learn from these conversations not only why a client is choosing or has chosen a specific vendor, but why it did not choose other vendors that were on its shortlist. We also learn about experiences running the product in production environments, and how effective the vendors are in responding to client issues. Increasingly, we are learning about why a company is choosing to replace an existing vendor with a new vendor solution. Id. ¶ 46. The following statement attributed to of Gartner's research director is found in a section of the company's website entitled, "How not to use a Magic Quadrant": Also, an MQ ... reflects only a tiny percentage of what an analyst actually knows about the vendor. Its beauty is that it reduces a ton of quantified specific ratings (nearly 5 dozen, in the case of my upcoming MQ) to a point on a graph, and a pile of qualitative data to somewhere between six and ten one-or-two-sentence bullet points about a vendor. Id. ¶ 47. ZL asserts that while Gartner refers to the data underlying the MQ Report, it does not publish the data, and that Gartner's business model depends on the non-publication of this data. Id. ¶¶ 49-57 (explaining that while Gartner sells the MQ Reports, the more lucrative part of its business is the sale of the additional information and analysis, such as customized analyst reports, consulting time, inquires and other related services). In addition, ZL insists that while Gartner "attempts to disclaim certain of its statements as opinion," id. ¶ 58, it "in fact create[s] the understanding that its opinions are to be construed as being based on undisclosed facts." Id. ¶ 59. ZL cites an example in a brochure published on Gartner's website entitled, "the Gartner Research Process and Methodologies." Id. ¶ 60. The brochure states that "Our opinions are grounded in a solid base of facts verified by our own experienced analysts and others in business and academia." Id. ZL provides several other examples of statements by Gartner to the effect that Gartner's insights and opinions are "grounded in a consistent methodology and fact-based analysis," "drawn from a critical fact base not available anywhere else," "based on facts as our analysts see them, without unfair or undue influence," "qualitative research is reinforced by quantitative research ... no stone is left unturned," and "fact-based ... and created by well-timed and delivered vendor briefings and other analyst interactions." Id. ¶¶ 61-66. ZL alleges that these and other statements create an understanding that Gartner's research and analysis"even that characterized as `opinion,' `insight' or `qualitative' in natureis based on verifiable fact." Id. ¶ 67. 3. Allegations of Gartner's inherent bias ZL also alleges that Gartner's placement of vendors within the Magic Quadrant is inherently biased. Id. ¶ 80. It claims that purchasing time with a Gartner analyst allows a vendor to obtain information that 794 will help it to improve its rating. Id. ¶¶ 69-73, 77. Vendors that fail to pay for time with a Gartner analyst are limited to providing information to Gartner in a "Vendor Briefing", "receiv[ing] no indication of the analyst's perspectives." Id. ¶ 73. A vendor that chooses to pay for analyst time "is better able to understand the views of an analyst covering that vendor, and better able to tailor its presentation to obtain a favorable review." Id. ¶ 77. To obtain the information necessary to improve their rating, vendors, including ZL, have entered into contracts with Gartner for analyst time. Id. ¶ 70-71 ("Vendors, for example, pay $25,000 or more for a basic annual Gartner subscription in order to obtain time with analysts covering the vendor's market."). Gartner states explicitly that its Completeness of Vision standard is based on whether the "vendor's view of how the market will develop matches Gartner's perspective." Id. ¶ 69. ZL alleges further that Gartner has a direct economic interest in rating favorably vendors that pay for Gartner's consulting and analyst services. Id. ¶¶ 74-80. It claims that "[w]hen Gartner expresses a favorable opinion of a particular vendor that has paid the company substantial fees (or from which it hopes to obtain such fees) Gartner is not performing an independent analysis, but making a self-interested statement about a business partner." Id. ¶ 80. C. The Alleged Defamatory Statements 1. Placement in the Magic Quadrant Since 2005, Gartner has identified ZL annually as a "Niche Player." Id. ¶ 81. ZL alleges that this is the lowest possible placement and that a reader would understand such placement to indicate that ZL "is unfocused and does not outinnovate or outperform others." Id. ¶¶ 81, 83. Gartner allegedly "defines a `Niche Player' as either having that meaning or indicating that the vendor `operates successfully in a small segment.' Readers of the [MQ Report], especially ZL's potential customers, would understand that Gartner's placement of ZL in the `Niche Player' quadrant did not indicate that ZL `operates successfully in a small segment ... Therefore, Gartner's placement of ZL in the `Niche Players' quadrant is defamatory because it was intended to be, and in fact was, understood by the readers of the [MQ Reports] to indicate that ZL `is unfocused and does not outperform others.'" Id. ¶¶ 84-85. ZL also claims that its placement in the "Niche Players" category is defamatory because a reader would interpret such designation as indicating that ZL does not "[e]xecute[] well today," is not "well-positioned for tomorrow," and "may be a risky choice." Id. ¶¶ 86-89. ZL alleges that it was placed in a "significantly inferior position, both with respect to the Ability to Execute axis and the Completeness of Vision axis, with respect to Symantec, which is one of its chief competitors. In each of those MQ Reports, Symantec was placed in the `Leaders' quadrant; in all but one year, Symantec was the only `Leader.'" Id. ¶ 82. ZL claims that all of these statements are false because ZL's products and service objectively are superior to those of its competitors. Id. ¶ 94 (indicating that ZL outperforms Symantec specifically in the following verifiable categories: search accuracy, search speed, and completeness of search). ZL alleges that because its own product is verifiably superior, Gartner's ranking of ZL as a Niche Player in its MQ Report implies falsely that Symantec's products, service, and future products are superior. Id. ¶ 90. 2. "The Same" DiCenzo allegedly said to a group of potential ZL customers and business partners 795 that ZL's products were "the same" as Symantec's Enterprise Vault. Id. ¶ 98. ZL claims that this statement was defamatory because it was "meant [to be and was] understood by those who heard the statements to mean that ZL's products and Symantec's Enterprise Vault were identical with respect to features, performance, value and quality." Id. ¶ 99. ZL also claims that DiCenzo knew of the superiority of ZL's products when she made the statement and knew that such a statement would "cripple ZL's chances of winning since the enterprise buyer would likely choose a large versus small vendor of the `same' product." Id. ¶ 102. D. Alleged impact of Gartner's statements ZL alleges that Gartner's statements directly and proximately harmed both its business and its reputation. Id. ¶ 103. ZL claims that some potential customers have refused to consider its products at all, while others have begun discussions with ZL only to terminate negotiations when they became aware of Gartner's statements. Id. ¶ 104. ZL alleges that the impact of the MQ Report is so well known that the refusal of customers to consider any vendor not deemed a `Leader' sometimes is referred to as being "Gartnered." Id. ¶ 105. II. LEGAL STANDARD A complaint may be dismissed for failure to state a claim upon which relief may be granted if a plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Allegations of material fact must be taken as true and construed in the light most favorable to the nonmoving party. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.1998), see also Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). However, the Court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); see also Twombly, 550 U.S. at 561, 127 S. Ct. 1955 ("a wholly conclusory statement of [a] claim" will not survive motion to dismiss). Leave to amend should be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). When amendment would be futile, dismissal may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir.1996). III. DISCUSSION The determinative question in this case is whether the Alleged Defamatory Statements are "reasonably capable of sustaining a defamatory meaning." Knievel v. ESPN, 393 F.3d 1068, 1073-74 (9th Cir. 2005), quoting Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1121 (C.D.Cal. 1998), aff'd and reasoning adopted, 210 F.3d 1036, 1038 (9th Cir.2000). ZL's claims for defamation of character and trade libel are dependent upon a conclusion that the Alleged Defamatory Statements properly may be characterized as false or misleading statements of fact. An expression of pure opinion is protected by the First Amendment and may not form the basis for a civil lawsuit. Jensen v. Hewlett-Packard Co., 14 Cal. App. 4th 958, 970, 18 Cal. Rptr. 2d 83 (Cal.Ct.App.1993) (holding that an opinion cannot form the basis of a defamation claim); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1010-11, 113 Cal. Rptr. 2d 625 (Cal.Ct.App. 2001) (determining that an opinion cannot form the basis of a trade libel claim). This Court concluded previously that the Alleged Defamatory Statements asserted in ZL's original complaint were non-actionable 796 opinions. The Court now concludes that the additional facts alleged in the FAC are insufficient to transform these opinions into assertions of fact. A. The Alleged Defamatory Statements Even on a motion to dismiss, the Court need not accept as true Plaintiff's allegation that placement within the Niche Player quadrant of the MQ Report is a statement of fact. Whether a statement constitutes a defamatory assertion of fact or a protected statement of opinion is a question of law for the Court to decide. Knievel, 393 F.3d at 1073-74. The Ninth Circuit employs a three-part test in determining whether alleged defamatory statements are opinions or assertions of fact: "(1) whether the general tenor of the entire work negates the impression that the defendant [is] asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false." Partington v. Bugliosi, 56 F.3d 1147, 1153-60 (9th Cir.1995), citing Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir.1990), cert. denied, 499 U.S. 961, 111 S. Ct. 1586, 113 L. Ed. 2d 650 (1991); see also Gardner v. Martino, 563 F.3d 981, 987 (9th Cir.2009), citing Knievel v. ESPN, 393 F.3d 1068, 1075 (9th Cir. 2005) ("noting the three parts for the `totality of the circumstances' test as (1) the broad context; (2) the specific context and the content of the statement; and (3) whether the statement is sufficiently factual to be susceptible of being proved true or false.") 1. DiCenzo's Statement ZL contends that DiCenzo's statement that ZL and Symantec's products are "the same" is defamatory because it implies that ZL's features, performance, value and quality are no better than the objectively inferior products of Symantec. Applying the Partington factors, ZL argues that: (1) the context of the statements was a session with potential ZL customers, the type of "fact-based consulting," in which Gartner says its analysts report what they "actually know about the vendor" and "explain the most recent findings specific to your business," id. ¶ 53; (2) nothing in the statement suggests hyperbole or figurative speech; and (3) the statement is susceptible to being proved true or falseeither the products are the same or they are not. The Court concludes that the statement is too general to support such a conclusion. Even assuming that the products are not identical in performance, DiCenzo could have intended to imply that the products serve the same function, share compatibility with the same hardware, or are equally user-friendly. As the Court concluded in its previous order, it is unclear how DiCenzo's assertion that the products "were the same" could be anything other than nonactionable opinion.[2] 2. The Magic Quadrant Ratings The Court concluded previously that ZL's ranking in the "Niche Player" category of the Magic Quadrant was a non-actionable opinion. In reaching this conclusion, the Court considered the MQ Reports themselves, which properly were the subject of judicial notice. Although the FAC 797 introduces a number of new factual allegations, these newly asserted facts do not change the essential nature of the Reports. The cover page of the email archiving review states specifically that, "The opinions expressed herein are subject to change without notice." Gartner's Request for Judicial Notice ("RJN"), Exs. A (2007 MQ Report) at 1, B (2008 MQ Report) at 1, C (2009 MQ Report) at 1 (emphasis supplied). ZL contends that the "presence of alleged disclaimers" does not compel dismissal, as any defamatory claim conceivably could be negated by the presence of a "footnote." Opp. Mot. at 18, citing Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 651 F. Supp. 2d 155, 176 (S.D.N.Y.2009) (citation omitted) (holding that defendant rating agency's ratings were non-actionable opinions because an opinion still may be actionable if the speaker does not genuinely and reasonably believe it or if it is without basis in fact). In the present case, however, it is evident that the disclaimer does contribute to a "general tenor of the entire work [that] negates the impression that [Gartner] was asserting an objective fact." See Partington, 56 F.3d at 1153, see also id. at 1155 (advising in the context of a defamation suit that "authors ... must attempt to avoid creating the impression that they are asserting objective facts rather than merely stating subjective opinions"). In addition, the MQ Report explicitly reflects Gartner's "view" with respect to "proper vendor placement," and states specifically that it is based on "more than 1,000 conversations over the past year with Gartner customers, as part of [its] inquiry service, survey responses and updates from the vendors in the March/April 2009 time frame, and over 70 conversations with vendor-supplied references in March and April 2009." RJN, Ex. C at 2-3. Gartner unambiguously presents the MQ results as a reflection of its subjective "views" or "opinions," not as objective fact. Gartner also identifies the bases of its opinion: not product performance testing, but conversations with customers and vendor-supplied references, as well as surveys completed by vendors. The "views" Gartner develops from its conversations and surveys are presented in the MQ Report along two axes. The criteria upon which vendors are rated"ability to execute" and "completeness of vision" "contribute[] to the general tenor of the ranking being subjective." Browne v. Avvo Inc., 525 F. Supp. 2d 1249, 1252 (W.D.Wash.2007) (noting that defendant's use of "fuzzy descriptive phrases like `superb,' `good,' and `strong'" in ranking attorneys on its website contributed to the general tenor of the rankings being subjective and concluding that "a reasonable reader would understand that these phrases and their application to a particular attorney are subjective.") Gartner defines these criteria in the text of the MQ Report. See FAC ¶ 31 (identifying the "Ability to Execute" criteria as quality of goods and services, overall viability, sales execution, market responsiveness and track record, marketing execution, customer experience, and operations); id. ¶ 32 (identifying the "Completeness of Vision" criteria as market understanding, market strategy, sales strategy, product strategy, business model, industry strategy, innovation, and geographic strategy). Each of these assessments is attributed explicitly to conversations with customers, vendor surveys, and conversations with vendor-supplied references. ZL makes much of the statement of Gartner's vice president that placement of vendors on the Magic Quadrant is based on a "rigorous mathematical model," id. ¶ 38, and Gartner's broader statements about the nature of its analysis being "fact-based and knowledge-centric," "built on 798 objectivity," and founded on a methodology it says ensures the "ultimate objectivity." Id. ¶¶ 41-42, 44. However, these statements are insufficient to transform the tenor of the rankings in the MQ Report from opinion to fact. Most opinions are based at least in part on facts. That Gartner considered facts in forming its opinions does not mean that the opinions are objectively verifiable. Based upon the relative value that it assigns to different criteria, Gartner weighs the importance of certain facts differently. The weight it applies to these facts is not verifiable, as it is reflective of Gartner's subjective assessment of what is important in achieving an ability to execute and a completeness of vision. In Aviation Charter, Inc. v. Aviation Research Group/US, 416 F.3d 864, 870 (8th Cir.2005), the Eighth Circuit noted that although the defendant's critique of the plaintiff "relies in part on objectively verifiable data, the interpretation of those data was ultimately a subjective assessment, not an objectively verifiable fact." Similarly, in Avvo, the court held that while the rating produced was based upon a mathematical model's synthesis of objective facts (in that instance a lawyer's years of experience), "a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and what is important." Avvo, 525 F.Supp.2d at 1252 (emphasis added) (holding that the court determination that the rating was protected opinion was "bolstered by the fact that the Avvo rating system is an abstraction"). The same is true with respect to Gartner's assertion that its placement of vendors on the Magic Quadrant is determined by a "rigorous mathematical model." Gartner points out in its reply papers that it uses a model to produce a ranking of a vendor's "Ability to Execute" and "Completeness of Vision" by combining assessments of the vendor across fifteen different subjective criteria. "The assessments of a vendor as to each criteria [sic] are, in turn, based on subjective responses from vendors and their references, not verifiable testing." Reply at 4, fn. 2. The use of a rigorous mathematical model to generate a ranking of software companies based upon this subjective data does not transform Gartner's opinion into a statement of fact that can be proved or disproved. Rather, the mathematical model reflects subjective assessments by Gartner that are not verifiable, provable facts. Phrases such as "built on objectivity" or "ultimate objectivity" do not imply that ZL's ranking as a Niche Player can be proved true or false. Instead, the use of such terms reasonably represents Gartner's assertion that its rankings are arrived at by "independent and unprejudiced" methods. Addressing Partington's second factor, ZL notes that the MQ Report lacks hyperbolic or figurative language. This observation is true as far as it goes, but it does not end the inquiry with respect to the second part of the Partington test. Partington, 56 F.3d at 1155-56 (examining the specific context of the alleged defamatory statements beyond whether it is hyperbolic or jocular in nature). The actual context of the ratings in the MQ Report is found in the axes upon which a given vendor is rated. As discussed above, the axes are subjective on their face, and a given vendor's placement explicitly reflects Gartner's interpretation and opinion. RJN Ex. C at 18-19. ZL also contends that the reports themselves state that they contain factual statements as vendors are permitted to "respond to any factual errors prior to publication of the MQ Report." FAC ¶ 41. However, the fact that vendors can respond to "factual errors" does not mean 799 that everything in the MQ Report is factual. The reports contain both assertions of fact and pure opinion. For example, the 2009 MQ Report states that "ZL's product supports `Exchange, Lotus Notes, Sun Java Message Server and Internet mail systems, and is being sold directly and through channel partners, including Oracle, which sells it under the name Oracle E-mail Service.'" MTD at 8, citing MQ Report for 2009 at 17. This type of statement, if erroneous, could be subject to correction. In contrast, ZL's ultimate designation as a Niche Player reflects Gartner's opinion and is not the proper subject of a complaint of factual error. Finally, ZL alleges that "the placement of ZL in the lowest quadrant, together with Gartner's description of `Niche Players' can be interpreted only as a statement that ZL `is unfocused and does not outinnovate or outperform others.'" Opp. Mot. at 18. ZL argues that such a statement is "an objective, factual standardand furthermore [is] susceptible of being proved true or false" pursuant to the third Partington factor. Id. However, this interpretation cannot be found anywhere in the MQ Reports. Rather, Gartner's description of the Niche Player rating indicates unambiguously that the designation may reflect any one of the following: Niche players are narrowly focused on an application, market or product mix, or they offer broad capabilities without the relative success of competitors in other quadrants. Niche players may focus on a segment of the market and do it well, or they may simply have modest horizons and lower overall capabilities compared with competitors. Others are simply too new to the market or have fallen behind and, although worth watching, they have not yet developed complete functionality or the ability to execute. The niche quadrant is the most interesting this year, as there are both emerging vendors in this quadrant that truly address market niches and also vendors that should be leaders, but are still struggling to get the right mix of product and go-to-market activities. MQ Report for 2009 at 8 (emphasis in original). In fact, ZL's allegation that its status as a Niche Player only can be interpreted to suggest that it is "unfocused and does not outinnovate or outperform others" is belied by other statements in the MQ Reports. RJN Ex. C at 17 (recognizing that ZL's "partitioned search supports fast access to data in very large archive repositories" and that ZL "has large deployments with customers that are happy with product features, scalability and efficient use of infrastructure resources."); see also RJN Ex. B at 8 (noting that "references spoke of the solution's ease of deployment, strong performance, and comprehensive supervision and discovery modules" and recognizing that ZL had "begun to get some market traction with stronger and larger references, and a good win as the OEM partner for Oracle's entry into the archiving market"). B. Implied Statements of Fact ZL next contends that if the Alleged Defamatory Statements themselves are opinions, they nonetheless are not entitled to First Amendment protection because they imply statements of fact. ZL is correct that there is not a "wholesale defamation [or trade libel] exemption for anything that might be labeled `opinion.'" Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S. Ct. 2695, 2705, 111 L. Ed. 2d 1 (1990). Such an exemption "would [] ignore the fact that expressions of `opinion' may often imply an assertion of objective fact." Id. Accordingly, "the threshold question in defamation suits is not whether a statement might be labeled opinion, but rather whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact." Unelko, 912 F.2d at 1053 (citation and internal 800 quotation marks omitted) (concluding that defendant Andy Rooney's opinion that a wind-shield treatment product "didn't work" implied additional or undisclosed facts capable of being proven true or false, including that "rain did not disperse on contact" and "that it did not repel bugs and other projectiles."); see also Gill v. Hughes, 227 Cal. App. 3d 1299, 1309, 278 Cal. Rptr. 306 (1991) (holding that "[t]he statement that plaintiff `is an incompetent surgeon and needs more training'... is susceptible of being proved true or false."). However, while ZL accurately has stated the law, its argument misapplies both Milkovich and Unelko. The FAC and ZL's opposition papers list a series of statements by Gartner suggesting that the opinions in the MQ Report, including ZL's placement on the Magic Quadrant, are based upon undisclosed facts: "our opinions are grounded in a solid base of facts verified by our own experienced analysts and others in business and academia," FAC ¶ 60; "analysts' opinions are grounded in a consistent methodology and fact-based analysis," id. ¶ 61; "Gartner insights are drawn from a critical fact base not available anywhere else, id. ¶ 62; and Gartner provides highly qualified, independent, objective and accurate advice to our clients ... [W]e provide insight based on the facts as our analysts see them, without unfair or undue influence." Id. ¶ 63. However, the Supreme Court in Milkovich and the Ninth Circuit in Unelko were concerned about whether a challenged statement itself "implies the assertion of an objective fact" (emphasis added), not whether the statement rests or implies that it rests on undisclosed fact. Gartner does not deny that its opinions, including its description of ZL as a Niche Player are extrapolated from undisclosed facts. Rather, Gartner contends that because the Alleged Defamatory Statements do not imply the assertion of specific objective facts, they are not actionableeven though they undeniably rest upon a large body of specific yet undisclosed facts. Once again, the Court finds Gartner's argument persuasive. In Unelko, the plaintiff brought suit against Andy Rooney, who had opined on 60 Minutes that the plaintiff's "Rain-X" product "didn't work." The court found Rooney's unelaborated statement actionable because it implied a specific factual assertion, not because it was based upon undisclosed facts. Unelko, 912 F.2d at 1055 (Rooney's comment that Rain-X "didn't work" necessarily implied the specific fact that Rain-X did not perform the functions for which it was sold). As is evident from the MQ Report itself, a company's MQ rating reflects Gartner's opinion as to whether the company is a Leader, Visionary, Challenger, or Niche Player. Gartner makes this determination by looking to a number of factors, applying differing weights based on its subjective assessment of a company's ability to execute and completeness of vision. See Compuware Corp. v. Moody's Investors Servs., Inc., 499 F.3d 520, 529 (6th Cir.2007) (holding that where the credit rating was "dependent on a subjective and discretionary weighing of complex factors," the rating itself did not "communicate[] any provably false factual connotation"). In fact, ZL itself alleges that, "Gartner explicitly states that its `Completeness of Vision' standardfully half of the Magic Quadrant ratingis based on whether the `vendor's view of how the market will develop matches Gartner's perspective.'" FAC ¶ 69. Unlike the facts implied by Rooney's opinion in Unelko, the differing weights applied to the MQ criteria are not facts that can be proved true or false but a reflection of a subjective valuation by Gartner.[3] Unlike Rooney's statement in 801 Unelko, the MQ Report cannot be read to imply any specific facts that can be proved true or false. Finally, Gartner need not provide full disclosure of the factual basis for an opinion that does not imply any actionable assertion of fact. If a defendant had to provide support for each fact forming the basis of its opinion in order to be entitled to First Amendment protection, an exhaustive and unreasonable inquiry into the materiality of facts disclosed or undisclosed necessarily would ensue in virtually all defamation and trade libel cases.[4] C. Leave to Amend Leave to amend should be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). When amendment would be futile, dismissal may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir.1996). When the Court granted ZL leave to amend its original complaint, it provided additional discussion of the defects in that pleading. In a footnote in its opposition papers, ZL requests leave to amend once again, but it offers no indication of what additional facts it might plead or theories it might assert if leave were granted. Because the Court discerns no way in which additional factual allegations could place the Alleged Defamatory Statements outside the protections of the First Amendment, leave to amend will be denied. Partington, 56 F.3d at 1162 (affirming the district court's dismissal without leave to amend of defamation and false light claims when the alleged defamatory statements were held to be non-actionable opinions protected by the First Amendment); Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir.1988) (holding that "[i]f the district court determines that the `allegation *802 of other facts consistent with the challenged pleading could not possibly cure the deficiency,' then the dismissal without leave to amend is proper"); Browne, 525 F.Supp.2d at 1255 (dismissing plaintiff's claims of defamation and libel without leave to amend after concluding that defendant's evaluative rankings were non-actionable opinions protected by the First Amendment). IV. ORDER Good cause therefor appearing, the motion to dismiss is GRANTED, without leave to amend. The Clerk shall enter judgment and close the file. IT IS SO ORDERED. NOTES [1] The 2007, 2008, and 2009 Magic Quadrant Reports, of which the Court took judicial notice in its order dismissing ZL's initial complaint, remain a part of the record on the instant motion. [2] Even if DiCenzo's statement were construed as an assertion of fact, ZL fails to demonstrate how the statement could be interpreted as defamatory given Symantec's alleged superior and prestigious rating as a "Leader." While ZL asserts that Symantec's product performance is inferior to that of ZL's products, the comparison by Gartner reasonably could be perceived only as positive given that Symantec's product consistently has been ranked in the MQ Report's highest rated quadrant. FAC ¶ 82. [3] ZL alleges that its product's performance is superior to that of Symantec's comparable product. FAC ¶ 94 (asserting that, "based on objective, quantifiable, and verifiable measures, ZL's offering outperform those of Symantec in the areas of (a) search accuracy, (b) search speed, and (c) completeness of search, which are the critical measure for email archiving software"); id. (claiming that "the future prospects for ZL's products are also superior to those of Symantec, which sells software based on search technology widely acknowledged to be outdated.") While these objective characteristics of ZL's product are capable of being proved true or false, the MQ Report nowhere suggests that ZL's products do not possess these qualities. To the contrary, the MQ Report explicitly credits ZL's positive product quality, while at the same time cautioning that to remain viable in the market the company needs to invest more in marketing. RJN Ex. C at 17. [4] Because it has determined that the Allegedly Defamatory Statements at issue are not statements of fact, the Court does not address the parties' arguments as to whether ZL has pled actual malice adequately, except to note that an inherent economic bias does not strip away First Amendment protection of pure opinion. Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 667, 109 S. Ct. 2678, 2686, 105 L. Ed. 2d 562 (1989) (holding that "[i]f a profit motive could somehow strip communications of the otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be little more than empty vessels. Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of `reckless disregard' `cannot be fully encompassed in one infallible definition,'" St. Amant v. Thompson, 390 U.S. 727, 730, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968), we have made clear that the defendant must have made the false publication with a "high degree of awareness of ... probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 215, 13 L. Ed. 2d 125 (1964), or must have "entertained serious doubts as to the truth of his publication," St. Amant, supra, 390 U.S. at 731, 88 S.Ct., at 1325); see also Avvo, 525 F.Supp.2d at 1252 n. 1 (recognizing that "[c]omparisons and comparative ratings are often based as much on the biases of the reviewer as on the merits of the reviewed: they should, therefore, be relied upon with caution.")	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540672/	718 F. Supp. 2d 374 (2010) Evrold WILLIAMS, Plaintiff, v. CITY OF WHITE PLAINS, White Plains Police Department, Sgt. Tiedemann, Police Officer Tassone, Police Officer Parra, Police Officer Petrosino, Police Officer Fuentas and Officer John Doe, Defendants. No. 08 CIV 5210-WGY. United States District Court, S.D. New York. June 16, 2010. 376 Richard E. St. Paul, Patsy D. Gouldborne & Associates, Bronx, NY, for Plaintiff. Joseph Anthony Maria, Joseph A. Maria, P.C., White Plains, NY, for Defendants. 377 MEMORANDUM AND ORDER WILLIAM G. YOUNG, District Judge.[1] I. INTRODUCTION This case arises out of the arrest of the plaintiff Evrold Williams ("Williams") that occurred on March 24, 2007. Williams raises claims under 28 United States Code Section 1983, alleging arrest without probable cause, and the use of excessive force in connection with his arrest. He also brings state claims: false arrest; assault and battery; negligence in hiring and retention; negligence in training and supervision; negligence in performing the arrest; and malicious prosecution. A. Procedural Posture Williams filed his complaint on June 6, 2008. [Doc. No. 1]. The Defendants City of White Plains, White Plains Police Department, Sgt. Tiedemann, Police Officer Tassone, Police Officer Parra, Police Officer Petrosino, Police Officer Fuentas, and Police Officer John Doe (the "Defendants") moved for summary judgment on October 12, 2009 [Doc. No. 8], and filed a Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def.'s Mem.") [Doc. No. 11]. Williams, represented by his counsel, did not file an opposition, but argued orally at a motion hearing held on February 23, 2010. B. Facts Because Williams did not file an opposition, the only evidence on the record is the evidence submitted by the defendants in this action. In support of their motion for summary judgment, the defendants submitted: a transcript of the plaintiffs sworn testimony at a 50-h Examination; a police incident report; an inter-office memorandum from the officer in charge to the white Plains police chief; and a Use of Force Report. In comparing the materials prepared by the police officers with the plaintiff's sworn testimony, there are disputes of fact. It must always be remembered that, "at the summary judgment stage, the Court should disregard all evidence favorable to the moving party that the jury is not required to believe. To do otherwise would supplant the jury's constitutionally-mandated role." Robert S. Mantell, Summary Judgment: The Real World, 31st Annual Labor & Employment Law Spring Conf. 275, 276 (Mass. Bar Ass'n, Mar. 11, 2010) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). [A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses." Reeves, 530 U.S. at 151, 120 S. Ct. 2097 (emphasis supplied) (internal citations omitted). "Thus, the Court should disregard. . . evidence proffered by the movant that a jury might not credit. Such disposable evidence includes testimony and affidavits from interested witnesses produced by, or affiliated with the defendant. To rely at summary judgment on evidence that a jury need not believe would be to engage in improper fact-finding." Mantell at 276 (internal citations omitted). See also generally Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 Va. L.Rev. 139 (2007). Here, the jury will be free to disregard the testimony of the police witnesses and thus in ruling on this motion, the Court will rely solely on the 378 plaintiff's sworn testimony and uncontradicted facts from the defendants' evidence. In the early hours of March 24, 2007, Williams was at a bar, the Porter House Saloon, in White Plains, According to Williams' testimony, around closing time, Williams' friends were involved in an altercation with two white men at the bar. Tr. 50-h Hearing 13-17, Sept. 12, 2007. Shortly after Williams and his friends exited the bar, the white men also exited. Id. at 17. Police officers ware already present outside the bar. Id. at 19. Unbeknownst to Williams, the police officers arrived at the bar in response to a report of a large group fighting. Aff. Supp. Summ. J. Ex. E. As Williams exited the bar, another friend, Rosa Morales ("Morales"), exchanged words with the white men. Tr. 50-h Hearing 18, Sept. 12, 2007. The police officers told everyone exiting the bar to go home. Id. at 21. The altercation continued. Id. at 22-23. Although Williams had his back to the altercation, he understood that Morales struck one of the white men. Id. at 22. At that point, the police officers restrained Morales and pushed the two men to the side. Id. at 24. Morales' boyfriend, Onyebuchi Salomon ("Salomon"), became upset when he saw the police officers focusing on her rather than the two white men and became increasingly agitated. Id. at 25-27. The police officers again told everyone to go home before anything happened, indicating that things were already out of control. Id. at 27. Williams tried to restrain Salomon and convince him to leave the area. Id. During that time, Williams had his back to the police officers. Id. at 28. An officer tasered Williams in the back, id. at 29, and he fell to the ground on his face, id. at 31. The police officer put his knee in Williams' back and pushed his head into the ground. Id. Williams then was subjected to a second electroshock resulting in a total inability to move.[2]Id. Next, he was handcuffed and taken to the police station, where he was informed that he was charged with disorderly conduct and resisting arrest. Id. at 33, 41. As a result of the events, Williams suffered emotional distress and mental pain as well as scratches on his face, a sore back, and damaged clothing. Id. at 48, 53, 55. Williams' mother, who is a nurse, took care of his face, and bought a heating pad for his back. Id. at 53. Otherwise, Williams did not seek any medical or psychological treatment. Id. Ultimately, the City of White Plains dropped the resisting arrest charge. Id. at 50. William "pled to a disorderly conduct charge." Id. He paid a $245 fine. Id. II. ANALYSIS A. Section 1983 Claim of Arrest Without Probable Cause and State Law Claim of False Arrest In their motion, the defendants argue that summary judgment should be granted with regard to the state and federal false arrest claims because there was probable cause for the arrest and the police officers are entitled to qualified immunity.[3] The Court will not discuss the issue 379 of probable cause because it finds that the police officers are entitled to qualified immunity. Qualified immunity is designed to protect government officials from civil liability when 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). In cases alleging false arrest, an arresting officer is "entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991). To be awarded qualified immunity in a false arrest action, a defendant "need only show `arguable' probable cause." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000). Similarly, under New York state law, an officer can rebut a presumption of an unlawful warrantless arrest "if, applying the reasonable, prudent person test, the arresting officer, acting in good faith, had `reasonable cause for believing the person to be arrested to have committed [a felony.]'" Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir.2007) (alteration in original) (quoting Dillard v. City of Syracuse, 51 A.D.2d 432, 435, 381 N.Y.S.2d 913 (N.Y.App.Div.1976)). As described by Williams, his friends were engaged in an altercation and the officers told everyone to go home at least twice. Williams states that he merely was attempting to persuade and prevent a friend from engaging in further confrontation with the police. Then, he says, he was subjected to an electroshock in the back, restrained, and arrested. While the Court disregarded the police version to the extent it differed with the one described by Williams, the events described by Williams are sufficient to grant qualified immunity. In the face of escalating tensions among potentially intoxicated individuals, it was reasonable for police officers to believe that Williams was engaged in the altercation and disturbing the peace. Therefore, the motion for summary judgment as to the state and federal falsa arrest claims is granted. B. Section 1983 Claim of Excessive Force and State Law Claim of Assault and Battery The defendants argue that no genuine issue of material fact exists with regard to the appropriateness of the amount of force applied to Williams during his arrest. Use of excessive force in connection with arresting criminal suspects is prohibited by the Fourth Amendment. The courts use an objective reasonableness test to assess the issue. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The determination of whether the force employed was reasonable requires an inquiry into the relevant facts, including "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight." Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir.1998). Because there is some dispute about the amount of force used, the Court relies solely on the description supplied by Williams in his sworn testimony to determine whether the use of force was objectively 380 reasonable. Williams claims that he was electroshocked with a Taser gun twice. The second shock came after Williams was on the ground with an officer restraining him. The facts, construed most favorably to Williams, describe a constitutionally unreasonable use of force in restraining Williams. Therefore, the defendants' motion for summary judgment on the section 1983 claim of excessive force, and the state claims of assault and battery is denied. C. Claim of Malicious Prosecution A malicious prosecution claim requires that a plaintiff show: "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiffs favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Droz v. McCadden, 580 F.3d 106, 109 (2d Cir.2009) (citing Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.2003)). Williams has not provided any evidence to allow his malicious prosecution claims to go forward. In the complaint, Williams alleges that "the charge of resisting arrest, Penal Law 205.20[,] was dropped and the charge of Disorderly Conduct, Penal Law 240.20[,] was adjourned in contemplation of dismissal and subsequently dismissed." Compl. ¶ 53. The only evidence in the record related to the dismissal of the charges arises in Williams sworn testimony, where he states that the resisting arrest charge was dropped and that "he pled to a disorderly conduct charge" and paid a fine. Tr. 50-h Hearing 50, Sept. 12, 2007. Whether Williams' case concluded with a guilty plea to disorderly conduct, or with an adjournment in contemplation of dismissal, this is not a dispute requiring submission of this claim to the jury because, in either case, Williams is not able to show that the charge for disorderly conduct terminated in his favor. See Shain v. Ellison, 273 F.3d 56, 68 (2d Cir.2001) (holding that "adjournment in contemplation of dismissal is not considered to be a favorable termination" for malicious prosecution purposes). Moreover, Williams has not submitted any evidence to establish malice by the defendants in charging Williams with disorderly conduct and resisting arrest. Since Williams cannot establish that the disorderly conduct charge terminated in his favor and has presented no evidence of malice, the defendants' summary judgment motion with regard to malicious prosecution is granted. D. Claims of Negligence Williams brings three negligence claims. First, he alleges that the City of White Plains was negligent in hiring and retention, because it did not investigate the background of individuals to be employed as police officers, and that the City knew that these individuals were unfit for that type employment. Compl. ¶ 37. Second, Williams's complaint alleges that the City failed properly to train and supervise its employees, particularly with regard to the use of the Taser device, handling and controlling a crowd, and managing their temper. Id. ¶ 41. Third, Williams' complaint alleges that because the police officers arrested him without probable cause, and used excessive force against him, their actions amounted to performing their duties negligently. Id. at ¶ 45. Williams has not submitted any evidence in support of his claims. In a summary judgment motion where the non-movant bears the ultimate burden of proof, "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the non-moving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 381 18 (2d Cir.1995). The nonmovant must then "come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise." Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir.1992). There is no evidence on the record to support the three counts of negligence. Therefore, on these three claims of negligence, summary judgment shall enter for the defendants. E. Claims Against the City of White Plains Police Department' The defendants argue that because White Plain Police Department is not a juridical entity, all claims against it ought be dismissed. Mem. Supp. Summ. J. at 21. Indeed, White Plains Police Department is an administrative arm of City of White Plains; it does not have a legal identity separate and apart from the municipality and thus cannot sue or be sued. See Fanelli v. Town of Harrison, 46 F. Supp. 2d 254, 257 (S.D.N.Y.1999) ("Under New York law, departments such as the Town of Harrison Police Department, which are merely administrative arms of a municipality, do not have a legal identity separate and apart from the municipality and cannot sue or be sued."). Therefore, all claims against the City of White Plains Police Department are dismissed. F. Section 1983 Claims Against the City of White Plains A municipality can be subject to suit pursuant to Section 1983. Monell v. Dep't of Social Servs. Of the City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). It can be held liable when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that [municipality]'s officers." Id. In addition, municipalities may be sued when the action occurs "pursuant to governmental 'custom' even though such a custom has not received formal approval through the [municipality]'s official decision making channels". Id. It cannot, however, be held liable under section 1983 solely on a respondeat superior theory. Id. at 691, 98 S. Ct. 2018. Williams fails to submit evidence demonstrating that any of the City of White Plains' ordinances, regulations, official decisions, customs or usages were a basis for the alleged violation of his constitutional rights. Thus, summary judgment is granted in favor of the City of White Plains for any action based on Section 1983. The remaining state law claim of assault and battery against the City of White Plains is alive due to the potential for vicarious liability for actions of its police officers as its employees. See L.B. v. Town of Chester, 232 F. Supp. 2d 227, 239 (S.D.N.Y.2002) ("Unlike cases brought under [Section] 1983, municipalities may be liable for the common law torts, like false arrest and malicious prosecution, committed by their employees under the doctrine of respondeat superior.") H. Local Rules Requirements Williams counsel appears to have done next to nothing to advance his client's cause. He has not responded to discovery, Aff. Supp. Summ. J. Ex. G, nor has he submitted any papers in response to the defendants' motion for summary judgment, including a statement of material facts as required under Local Civil rule 56.1(b). Still, this Court takes seriously its obligation to draw all reasonable inferences in favor of the non-moving party, here Williams. Here, a careful review of the *382 entire evidentiary record reveals that Williams still does not know who participated in the decision to arrest him; nor does he know which officer or officers touched him. Accordingly, since Sgt. Tiedemann admits using his Taser and since he appears to have been the senior officer present, drawing all inferences in Williams' favor, the case, as limited herein, may proceed solely against him as the individual defendant. III. CONCLUSION As against the City of White Plains Police Department the case is dismissed entirely. Summary judgment shall enter for the defendants on all claims based on negligence. Summary judgment shall enter for the defendants as to the claims of false arrest and malicious prosecution. As against the City of White Plains, the claims pursuant to section 1983 are dismissed. Summary judgment is denied as to Sgt. Tiedemann with regard to the section 1983 claim of use of excessive force and the state law claim of assault and battery, and the City of white Plains, which remains as a respondeat superior defendant should Sgt. Tiedemann be found liable for assault and battery. In all other respects, summary judgment shall enter for the defendants. SO ORDERED. NOTES [1] Of the District of Massachusetts, sitting by designation. [2] The Police Report and Use of Force Report corroborate the use of the taser after Williams was already on the ground. "[Williams] began flailing his arms and threatening Officers involved in assisting me in his arrest. In a second attempt to gain compliance I forcible [sic] redirected Mr. Williams to the ground and began to try and grab one of his arms at this time Sgt. Tiederann [sic] used his Taser to help us gain compliance." Aff. Supp. Summ. J. Ex. E. Sgt. Tiedemann wrote in his Use of Force Report that "[Williams] was physically taken to the ground where his combativeness continued. . . . I directed all officer [sic] to release the subject. I immediately initiated the Advanced Taser in the Drive Stun mode, approximate 3 second burst, to the subjects [sic] buttocks." Id. Ex. G. [3] In supporting their arguments regarding probable cause and qualified immunity, the defendants primarily apply the law to facts from a different case. See Mem. Supp. Summ. J. at 11, 13, 14, 16. Williams, however, never responded at all to the motion for summary judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540666/	356 S.W.3d 872 (2012) Larry BLACK, Appellant, v. ST. FRANCOIS CO. AMBULANCE DISTRICT, and Division of Employment Security, Respondents. No. ED 96841. Missouri Court of Appeals, Eastern District, Division One. January 17, 2012. 873 Kenneth P. Carp, Clayton, MO, for Appellant. Bart A. Matanic, Jefferson City, MO, for Respondents. ROY L. RICHTER, Judge. Larry Black ("Black") appeals a decision from the Labor and Industrial Relations Commission ("the Commission") denying Black unemployment benefits. We reverse and remand. I. BACKGROUND Black was employed by the St. Francois County Ambulance District ("Employer") since 2002. He began his tenure as a part-time EMT, and later became a full-time paramedic. During Black's shift on the morning of November 7, 2010, Black became ill with a sinus infection and received permission from his supervisor to lie down after his last call. Black awoke near the end of his shift, and, as Employer's policy required, he finished his paperwork before clocking out. To do so, however, caused Black to stay for 18 minutes of overtime. Black testified that he did not request permission for overtime because his actions were done in the presence of a supervisor, and it was not customary for employees to request permission to work overtime. Black was discharged on November 7, 2010. Employer's administrator testified that Black had been warned twice verbally that he had to request approval to work overtime; Employer's witness, however, could not provide the dates or documentation of the warnings. Employer had records of other reprimands in Black's file, but admitted that the issues addressed were unrelated to overtime. Black had been issued Employer's rule book and acknowledged 874 that he read, understood and agreed to abide by the Employer's policies. A deputy for the Division of Employment Security ("the Division") determined that Black was disqualified as of November 7, 2010, from receiving unemployment benefits because his discharge was for misconduct connected with his work. Black appealed to the Division's Appeals Tribunal ("the Tribunal"), which affirmed the deputy's determination. Subsequently, Black appealed to the Commission. The Commission also concluded that Black was discharged on November 7, 2010, for misconduct connected with work. One member of the Commission dissented from the Commission's decision finding Black engaged in misconduct, reasoning that Employer failed to prove Black's actions met the definition of "misconduct" for purposes of the Missouri Employment Security Law. Black now appeals to this Court. II. DISCUSSION In his sole point on appeal, Black argues that the Commission erred in denying him unemployment benefits under a finding of misconduct because there was not sufficient competent evidence in the record to warrant such a finding under Sections 288.050.2 and 288.210, RSMo Cum.Supp. 2010.[1] Black argues that Employer has failed to show that he behaved in a willful, wanton or deliberate manner when he accrued 18 minutes of overtime in order to fulfill Employer's paperwork completion policy. We may set aside the decision of the Commission only where (1) the Commission acted without or in excess of its powers, (2) the decision was procured by fraud, (3) the facts found by the Commission do not support the award, or (4) there was no sufficient competent evidence in the record to warrant the making of the award. Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 197-98 (Mo. App. W.D.2007). Under Section 288.210, we review the whole record to determine if it contains sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony. Munson v. Div. of Employment Sec., 323 S.W.3d 112, 114 (Mo.App. W.D.2010). However, we owe no deference to the Commission's conclusions of law or application of the law to the facts. Id. Whether an employee's conduct constitutes misconduct connected with work is a question of law, thus the Commission's determination is not given any deference by the reviewing court. Ottomeyer v. Whelan Sec. Co., 202 S.W.3d 88, 91 (Mo.App. E.D.2006). Under Section 288.050.2, a claimant may be disqualified from receiving unemployment benefits if he committed misconduct connected with work. While an employee generally bears the burden of demonstrating he is entitled to unemployment benefits, the burden shifts to the employer to prove misconduct connected with work when the employer asserts that the employee was discharged for misconduct. Williams v. Enterprise Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139, 142 (Mo.App. E.D.2009). Under Section 288.030.1(23), misconduct is defined as: [1] an act of wanton or willful disregard of the employer's interest, [2] a deliberate violation of the employer's rules, [3] *875 a disregard of standards of behavior which the employer has the right to expect of his or her employee, or [4] negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. A finding of misconduct requires proof by a preponderance of the evidence that a claimant willfully violated the rules or standards of the employer and that his actions were not simply the result of poor workmanship, lack of judgment, or an inability to do the job. Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9, 13 (Mo.App. W.D.2005). Black argues that the Commission erred in finding there was sufficient evidence in the record that the discharge was for misconduct related to work. He contends that the Commission's finding of misconduct is unsupported by the evidence because the record lacked evidence that Black deliberately or purposefully failed to follow Employer's instructions. Instead, Black argues that his actions amounted only to poor judgment or irresponsibility. In response, the Division argues that Black violated numerous rules of Employer, not just the "last" rule violation regarding seeking permission for overtime. The Division concedes that "this was not the most egregious violation of work rules that Claimant committed" and attempts to direct the Court's attention to the "clear course of misconduct during Claimant's tenure with Employer that resulted in his discharge." Without overlooking Black's past course of misconduct on the record, the primary issue here is whether Black committed disqualifying misconduct when he failed to seek permission for his overtime under the circumstances of this case. We find he did not. The record contains evidence that Black received permission to lie down while he felt sick, instead of completing his paperwork immediately after the call. Additionally, when Black awoke, a supervisor stood by silent and watched Black complete his paperwork while accruing overtime, and then, after Black's departure, made a "simple phone call" to report the incident to the administrator. Given these circumstances, as well as the usual course of conduct to accrue overtime without permission, we cannot find that Black committed misconduct connected with work. Black's effort to follow one policy to complete paperwork before leaving work, after receiving permission to lie down and delay completing paperwork earlier in his shift, does not amount to what Employer calls insubordination. Absent such a showing that the claimant acted in a willful, wanton, or deliberate manner, it is error as a matter of law to deny claimant his unemployment benefits. Hoover, 153 S.W.3d at 13. Upon this Court's review of the record, we find no sufficient evidence to warrant the denial of Black's benefits. III. CONCLUSION The decision of the Commission is reversed and the case is remanded to the Commission with instructions to enter Black's award of unemployment benefits. CLIFFORD H. AHRENS, P.J., and GARY M. GAERTNER, JR., J., concur. NOTES [1] All subsequent statutory citations are to RSMo Cum.Supp.2010, unless otherwise indicated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540655/	340 S.W.3d 526 (2011) Paul Kevin KEYS, Appellant, v. The STATE of Texas, Appellee. No. 06-10-00091-CR. Court of Appeals of Texas, Texarkana. April 12, 2011. Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant. William W. Ramsay, County Atty., Mt. Vernon, for appellee. Before MORRISS, C.J., CARTER and MOSELEY, JJ. ORDER JOSH R. MORRISS, III, Chief Justice. After finding Paul Kevin Keys guilty of 527 driving while intoxicated (DWI),[1] a Franklin County jury assessed Keys' punishment as a fine in the amount of $2,000.00 "and/or" confinement for a period of 183 days. The trial court entered judgment sentencing Keys to 183 days in the county jail in addition to a fine in the amount of $2,000.00, but, according to the record, never actually orally pronounced the sentence in Keys' presence.[2] On appeal, Keys claims first that the trial court committed fundamental error in failing to impose the sentence in open court. He also claims that the trial court committed fundamental error in assessing a fine in addition to confinement and that the evidence is not sufficient to prove the offense occurred in Franklin County. Because the trial court failed to impose sentence orally in Keys' presence, this Court does not now have jurisdiction to hear this appeal. Accordingly, we abate this cause to the trial court for a sentencing hearing. Courts are required to pronounce sentence orally in the defendant's presence. TEX.CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (Vernon Supp.2010);[3]Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim. App.2004); Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App.2002). The judgment, including the sentence assessed, is merely a written manifestation of that oral pronouncement. TEX.CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp.2010); Taylor, 131 S.W.3d at 500; Madding, 70 S.W.3d at 135. As explained by the Texas Court of Criminal Appeals in Madding, oral pronouncement of the sentence in the presence of the defendant is necessary because "the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence." Madding, 70 S.W.3d at 135. Therefore, "it is the pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it and should comport therewith." Id. (quoting Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998)). Because the trial court failed to orally pronounce Keys' guilt and punishment in his presence, Keys claims his conviction should be reversed, or if the error is jurisdictional, the matter should be abated to 528 the trial court for a new sentencing hearing. The State contends Article 42.03 was satisfied because sentence was imposed in Keys' presence. In support of this contention, the State points to the fact that in 1981, the Legislature "deleted the element of `oral pronouncement in the defendant's presence,'" as acknowledged by our sister court in Meachum v. State, 273 S.W.3d 803, 804 (Tex.App.-Houston [14th Dist.] 2008, no pet.).[4] The procedural requirement of pronouncement of sentence was, at the time of the 1981 amendment of the definition of "sentence," moved to Article 42.03, which provides that sentence "shall be pronounced in the defendant's presence." TEX.CODE CRIM. PROC. ANN. art. 42.03. To show that sentence was pronounced in Keys' presence, the State points to the judgment of conviction by jury, the second page of which is signed by Keys. Keys' signature on the judgment appears below the section entitled "Execution/Suspension of Sentence (select one)." The box that is checked is followed by the statement that: "The Court ORDERS Defendant's sentence Executed." The judgment lists the date of imposition of sentence as April 28, 2010. The State concedes that there is no indication in the record that sentence was orally pronounced in Keys' presence, but nevertheless maintains compliance with the statutory requirement as tantamount to an oral pronouncement. The State further seems to imply that, after the 1981 amendment, oral pronouncement of a sentence is not required; rather, it is sufficient if sentence is acknowledged in writing by the defendant, as witnessed by his or her signature. We disagree. The Texas Court of Criminal Appeals has unequivocally continued to require oral pronouncement of a defendant's sentence in his or her presence. See Taylor, 131 S.W.3d at 500; Madding, 70 S.W.3d at 135; Coffey, 979 S.W.2d at 328 (when oral pronouncement of sentence and written judgment vary, oral pronouncement controls). Meachum did not hold to the contrary. The issue facing the Meachum court was whether the oral pronouncement in the defendant's presence remains a jurisdictional requirement, or whether failure to orally pronounce sentence in the defendant's presence is now nonjurisdictional error. Meachum, 273 S.W.3d 803. Indeed, that is the issue now before us. The record here clearly fails to reflect the trial court's oral pronouncement of Keys' sentence in his presence. In analyzing this issue, Meachum recognized that before 1981, appellate courts dismissed a criminal appeal for want of jurisdiction when sentence was not orally pronounced in the defendant's presence. Id. at 804; see Casias v. State, 503 S.W.2d 262, 264-65 (Tex.Crim.App.1973) (when record does not reflect that sentence was pronounced in defendant's presence, there is no sentence, and court is without jurisdiction to entertain appeal). The court then considered whether, since pronouncement is no longer an element of a sentencebut is nevertheless required under Article 42.03the failure to orally pronounce sentence in the defendant's presence is nonjurisdictional error. In determining whether compliance with Article 42.03 is a jurisdictional requirement, the Meachum court relied on Thompson v. State, 108 S.W.3d 287 (Tex. Crim.App.2003). In Thompson, the intermediate *529 court dismissed a portion of the appeal for lack of jurisdiction, because sentence was not orally pronounced in the defendant's presence on the charge of indecency. Thompson v. State, 85 S.W.3d 415, 417 (Tex.App.-Fort Worth 2002), aff'd, 108 S.W.3d 287 (Tex.Crim.App.2003). The Texas Court of Criminal Appeals affirmed that decision, stating that the intermediate court "correctly dismissed the appeal over the [indecency] count for want of jurisdiction." Thompson, 108 S.W.3d at 293. The case at bar is no differentthe trial court failed entirely to pronounce punishment on the charged offense and the enhancement. Therefore, this Court is without jurisdiction to hear Keys' appeal from his conviction. We decline, however, to dismiss Keys' appeal. Rather, we choose to adopt the course of disposition of our sister court in Meachum, and abate this matter to the trial court to orally pronounce sentence in Keys' presence. In reliance on Rule 44.4 of the Texas Rules of Appellate Procedure, Meachum found that "a proper and more efficient remedy" is abatement. Meachum, 273 S.W.3d at 806.[5] We agree. Rule 44.4 directs us, in this circumstance in which the error can be corrected by the trial court, not to dismiss, but first to direct that the trial court take the corrective action and then, once the error has been corrected, to address the other issues on appeal. See TEX.R.APP. P. 44.4. We, therefore, by this order, abate this appeal and remand the cause to the trial court. On remand, the trial court shall give notice of a hearing to be held and, thereafter, pronounce the sentence in Keys' presence. The sentencing hearing is to be conducted within thirty days of this order. A supplemental court reporter's record of the sentencing shall be prepared and filed in the record of this appeal, together with a supplemental clerk's record containing the trial court's judgment. These records are due within forty-five days of the date of this order. This appeal will be reinstated when the supplemental records are filed with this Court. On reinstatement, this Court will consider the merits of the remaining issues raised in Keys' brief. IT IS SO ORDERED. NOTES [1] TEX. PENAL CODE ANN. § 49.09 (Vernon Supp. 2010). Keys was charged with a class A misdemeanor due to a prior DWI conviction. [2] At the conclusion of the punishment hearing, the trial court read the jury's punishment verdict in open court, but did not, however, orally pronounce Keys guilty of the primary DWI offense or the enhancement of that offense. After the trial court received the verdict, and after confirming that it was unanimous, the trial court stated: Cause No. 11438, The State of Texas versus Paul Kevin Keys. Punishment Verdict. "We the Jury, having found the Defendant, Paul Kevin Keys, guilty of the offense of a Class A misdemeanor, offense of driving while intoxicated second, assesses the punishment of the Defendant as follows: We set the fine at two thousand dollars. We set the confinement, one hundred eighty-three days." Thank you. And I will [sic] you some further instructions here. Ladies and Gentlemen of the Jury, your duty as Jurors is complete.... We're off the record. [3] Article 42.03, Section 1(a) provides that the sentence shall be pronounced in the defendant's presence, except as provided in Article 42.14, which allows such to be done in the absence of the defendant in a misdemeanor case. TEX.CODE CRIM. PROC. ANN. art. 42.03 (Vernon Supp.2010). Even though this is a misdemeanor case, Article 33.03 requires a defendant to be present in a misdemeanor case in which the potential range of punishment includes a jail sentence. TEX.CODE CRIM. PROC. ANN. art. 33.03 (Vernon 2006). [4] In 1981, the Texas Legislature redefined "sentence" as "that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law." TEX.CODE CRIM. PROC. ANN. art. 42.02 (Vernon 2006). [5] In deciding to abate the appeal, Meachum further relied on the statement by the Texas Court of Criminal Appeals that "we need not address the question of whether there is only one proper remedy for this situation; it is enough to determine whether the court of appeals chose a proper remedy." Thompson, 108 S.W.3d at 290-91.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540646/	341 S.W.3d 566 (2011) Donald Wayne MASON, Appellant, v. The STATE of Texas, Appellee. No. 07-09-00267-CR. Court of Appeals of Texas, Amarillo, Panel D. May 11, 2011. John Bennett, Attorney at Law, Amarillo, TX, for Appellant. John L. Owen, Assistant District Attorney, Amarillo, TX, for Appellee. Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. OPINION JAMES T. CAMPBELL, Justice. The motion for rehearing of appellant Donald Wayne Mason is denied. We withdraw our opinion and judgment of April 14, 2011, and substitute the following. A jury convicted appellant of driving while intoxicated,[1] enhanced by two prior convictions for driving while intoxicated. The trial court sentenced appellant to twenty-five years in prison.[2] On appeal, 567 appellant argues he was denied equal protection of law and due process and due course of law by the trial court's order denying his ex parte pretrial motion for appointment of an expert. Appellant further contends without appointment of an expert he was constructively denied effective assistance of counsel. Finding no error by the trial court, we will affirm. Background A witness testified he saw a van driven by appellant hit a stop sign and run over a mailbox. Because of a flat tire, the van was unable to leave the scene. The witness observed appellant and his passenger outside the vehicle. In his opinion, they could hardly stand. He immediately telephoned 911 because he "knew they were intoxicated." Meanwhile, a pedestrian approached the van and changed the flat tire for cash. Appellant and his passenger then drove the van from the scene. When police arrived the witness gave officers the license plate number of the van as well as a description of the vehicle and appellant. Shortly thereafter an officer saw a van fitting the description. Before the officer reached the vehicle it parked on the street. The officer approached the driver's side and told appellant to step out of the vehicle. The officer noted a "strong odor" of an alcoholic beverage coming from appellant and the interior of the vehicle. The officer described appellant's speech as "very slurred, hard to understand." The passenger, according to the officer, also smelled of alcohol and presented slurred speech. Inside the van, police found nine one-quart beer bottles. Three bottles were empty, one was three-fourths empty, one was three-fourths full, and four were full. Appellant told the officer he had consumed two and one-half to three quarts of beer. He did not specify a time interval for his consumption. The officer opined at trial that appellant and his passenger were intoxicated. While appellant was detained, a second officer arrived at the location. He testified appellant presented a "strong odor of alcoholic beverage," appeared to lack balance, and swayed. In that officer's opinion, appellant was intoxicated. A third officer arrived at the scene. He testified appellant's breath smelled of alcohol and he had difficulty standing. The officer could not recall the intensity of the odor of alcohol. He administered a horizontal gaze nystagmus test (HGN) and observed all six clues of intoxication. At trial, he expressed the opinion that appellant was intoxicated. Appellant was arrested and taken to the county jail. There he voluntarily submitted to a breath test which indicated an alcohol concentration of 0.097 and 0.095. Because appellant was involved in an accident police took him to a local hospital for examination. While at the hospital, some five hours after his initial detention, appellant voluntarily provided a blood sample. The result indicated a blood-alcohol concentration of 0.04. In addition to the testimony of the witness and police officers, the jury saw video recordings of appellant at the time of arrest and later the same day at the county jail. Appellant's younger brother testified for appellant. He was age fifty-two and appellant age sixty-eight. Appellant was involved in an accident before the witness's birth which left appellant with a speech impairment. According to his brother, appellant's 568 speech is slurred and sometimes hard to understand. He added appellant has equilibrium problems and twice fractured a bone in his ankle due to his gait. On cross-examination, he denied appellant drinks on a regular basis. Consistent with the indictment, the jury charge authorized a finding that appellant was intoxicated under the per se definition of intoxicationthat his alcohol concentration was 0.08 or moreor under the impairment theorythat he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body.[3] The jury found appellant guilty and the trial court sentenced him to confinement in prison for twenty-five years. Analysis Through three issues, appellant argues the trial court's denial of his request for an expert denied him equal protection of law, due process of law and due course of law, and effective assistance of counsel. We turn first to appellant's constitutional claims. We review the trial court's failure to appoint an expert witness for an abuse of discretion. See Deason v. State, 84 S.W.3d 793, 796 (Tex.App.-Houston [1st Dist.] 2002, pet. refused) (citing Griffith v. State, 983 S.W.2d 282, 287 (Tex.Crim.App. 1998)). Constitutional entitlement to a court-appointed expert required appellant to make a sufficient preliminary showing before the trial court that the subject of the expert's testimony would likely be a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 74, 105 S. Ct. 1087, 1091-92, 84 L. Ed. 2d 53 (1985); see Rey v. State, 897 S.W.2d 333, 338 (Tex.Crim.App. 1995) (while Ake concerned appointment of a psychiatrist, field of expertise is not decisive; rather, question is importance of scientific issue in case and degree of assistance defense expert could provide). The threshold showing under Ake requires more "than undeveloped assertions that the requested assistance would be beneficial." Williams v. State, 958 S.W.2d 186, 192 (Tex.Crim.App.1997) (citing Caldwell v. Mississippi, 472 U.S. 320, 323-24 n. 1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985)). Mere conclusions of defense counsel will not suffice. Norton v. State, 930 S.W.2d 101, 111 (Tex.App.-Amarillo 1996, pet. refused). Rather, the defendant must demonstrate a reasonable probability an expert will provide assistance and denial of expert assistance will cause a fundamentally unfair trial. Id. at 106-07; Davis v. State, 905 S.W.2d 655, 659 (Tex.App.-Texarkana 1995, pet. refused) (citing Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987)). This requires proof by the defendant of his defensive theory supported with factual allegations or evidence of how the requested expert testimony will support the theory. See Rey, 897 S.W.2d at 341 (discussing cases where a sufficient preliminary showing under Ake was not made). "There is no error in refusing to appoint an expert witness to assist an indigent defendant in rebutting a type of expert opinion that the State's witness did not present." Jackson v. State, 992 S.W.2d 469, 474 n. 5 (Tex. Crim.App.1999) (citing Griffith v. State, 983 S.W.2d 282 (Tex.Crim.App. 1998)). The reasonableness of the trial court's decision is determined as of the time it was made. Rey, 897 S.W.2d at 342 n. 9. Over one year before trial, appellant filed an ex parte motion requesting appointment of Gary H. Wimbish, Ph.D., as an expert. Appellant identified Dr. Wimbish as a forensic toxicologist. According to the motion, appellant's blood-alcohol level was an issue in the case and neither he nor 569 his counsel was "knowledgeable in the aforesaid sciences to determine and assess the significance of the facts surrounding these potential issues." The intended function of Dr. Wimbish was to "administer the necessary tests which will provide us with information as to proper extrapolation of blood/alcohol levels of defendant. Should the testing so indicate, the Defense would then require expert testimony of [Dr. Wimbish] at the trial." In the prayer, appellant requested expert assistance for the investigation, evaluation, preparation and presentation of his case. The motion was not supported by affidavits or other evidence and we have no record of a hearing. The trial court denied the motion. Nothing further concerning the motion appears of record until the day trial began. During the hearing of pretrial motions appellant's counsel notified the court that appellant wished to re-urge the motion for appointment of an expert. The court verbally denied the request. Appellant then asked for additional time to hire an expert at his own expense. The court ruled appellant could not have a continuance but was free to hire an expert. The State indicated it had no objection to appellant's use of an expert. Appellant did not offer the testimony of an expert at trial. Fairly read, appellant's motion sought expert assistance on a narrow ground, testing to provide information for proper extrapolation of appellant's blood-alcohol concentration and possible trial testimony conditioned on the testing results. There is no record indication the State intended to offer retrograde extrapolation opinion testimony requiring expert rebuttal by appellant.[4] In other words, there was no proof before the trial court at the time it considered appellant's motion that the State intended to present extrapolation opinion evidence of appellant's blood-alcohol concentration. At trial, the State offered witnesses supporting both the per se and impairment theories of intoxication. But the State offered no expert opinion of appellant's blood-alcohol level at the time of driving based on the process of retrograde extrapolation. Nor did appellant give the trial court any basis for a conclusion that extrapolation opinion evidence would be a significant factor in his case at trial. The motion itself contained no facts supporting such a conclusion and, as noted, no affidavit or other evidence appears in the record before us. The court cannot be said to have erred by failing to appoint appellant an expert on extrapolation. If his request for an expert is read more broadly, appellant offered the trial court no explanation of the claim that an expert was needed for "a determination of whether the Defendant may raise and prevail on certain defensive issues." Appellant presented no explanation of his defensive theory, how an expert would be useful in establishing the theory, or a reason to question a State's expert and proof. See Rey, 897 S.W.2d at 341 (citing State v. Edwards, 868 S.W.2d 682, 697-98 (Tenn. 570 Crim.App.1993) (while identity was "obvious issue" defendant did not make sufficient preliminary showing for a DNA expert as he did not disclose defense proof and gave no indication of potential misidentification as to specific charges)). We conclude appellant did not meet the threshold requirement for appointment of the requested expert. On this record, we perceive no abuse of discretion in the trial court's denial of the requested assistance of a court-appointed expert, and thus conclude appellant did not suffer the complained-of constitutional harm. See Rey 897 S.W.2d at 341; Wiley v. State, 74 S.W.3d 399, 408 (Tex.Crim. App.2002) (concluding appellant was not deprived constitutional right to present defense because trial court did not abuse its discretion in excluding evidence under Texas Rule of Evidence 403). We overrule appellant's first and second issues. By his third issue, appellant asserts he was constructively denied effective assistance of counsel by the trial court's failure to appoint an expert. Because we have found appellant was not entitled to appointment of an expert, an analysis of this issue is unnecessary to the final disposition of this appeal. Tex.R.App. P. 47.1. Conclusion Having overruled appellant's issues, we affirm the trial court's judgment. NOTES [1] Tex. Penal Code Ann. § 49.04(a) (West 2003). [2] The offense was enhanced to a third degree felony by Penal Code § 49.09(b)(2) and the range of punishment increased to a term of 25 to 99 years in prison by Penal Code § 12.42(d). Tex. Penal Code Ann. §§ 49.09(b)(2) & 12.42(d) (West Supp.2010). [3] See Tex. Penal Code Ann. § 49.01(2) (West 2003). [4] "Retrograde extrapolation is the computation back in time of blood-alcohol level-that is, the estimation of the level at the time of driving based on a test result from some later time." Mata v. State, 46 S.W.3d 902, 908-09 (Tex.Crim.App.2001). Following this procedure, an expert possessing sufficient information concerning such variables as an individual's weight, age, mental state, drinking pattern, type and amount of alcohol consumed, amount of food in the stomach, and the time period of alcohol consumption, can reliably estimate a person's blood-alcohol concentration at the time of driving. See Kirsch v. State, 306 S.W.3d 738, 745 n. 19 (Tex.Crim.App.2010) (explaining Mata). But the process also presents limitations and pitfalls which laymen and courts often fail to appreciate. Id.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540661/	366 S.W.3d 9 (2012) Gary L. LAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee. No. 2010-CA-001840-MR. Court of Appeals of Kentucky. April 6, 2012. Thomas M. Ransdell, Assistant Public Advocate, Frankfort, KY, for appellant. Jack Conway Attorney General of Kentucky, Christian K.R. Miller, Frankfort, KY, for appellee. Before DIXON, KELLER and STUMBO, Judges. OPINION STUMBO, Judge: Gary Land is appealing from a conditional guilty plea to the offense of second-degree escape. Land reserved the right to appeal the legal question of whether the failure to report for an alternative sentence that was ordered to be served on weekends constitutes second-degree escape. We agree with the trial court that *10 failure to report to a weekend jail sentence does constitute escape and affirm. In March of 2010, Land was sentenced to serve five years in prison for failure to report a change in order to receive benefits, a violation of Kentucky Revised Statute (KRS) 194A.505(1)(2), a class D felony. At his request his sentence was probated with an alternative sentence. He was ordered to pay over $11,000 in restitution and to serve 20 days in county jail. In order for Land to keep his job and pay restitution, the Commonwealth agreed to let Land serve his 20-day sentence on the weekends and the trial court so ordered. KRS 533.010(6) and (6)(c) permit a trial court to order probation with an alternative sentence that includes "jail for a period not to exceed twelve (12) months with or without work release[.]" In May of 2010, Land did not report to jail one weekend. He was subsequently arrested and indicted for second-degree escape. Land moved to dismiss the indictment arguing that failure to appear for a weekend jail service did not fit within the statutory definition of second-degree escape. He argued that it was only a violation of his probation. A hearing was held on the motion on August 12, 2010, and the trial court denied the motion. Land then entered into a conditional guilty plea, reserving the right to appeal the denial of his motion to dismiss. This appeal followed. "A person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody." KRS 520.030. "`Escape' means departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period[.]" KRS 520.010(5) (emphasis added). "`Custody' means restraint by a public servant pursuant to a lawful arrest, detention, or an order of court for law enforcement purposes, but does not include supervision of probation or parole or constraint incidental to release on bail[.]" KRS 520.010(2). Applying the forgoing definitions, we find that Land was properly charged with second-degree escape. Here, Land's conduct meets the definition of second-degree escape because he failed to return to a detention facility, the county jail, following a temporary leave granted for a limited period. Land was permitted to leave the county jail during the week so he could keep his job in order to pay restitution. He was then to return to jail on the weekends to serve his alternative sentence. He therefore escaped from a detention facility. He also meets the definition of second-degree escape because he was a convicted felon who escaped from custody. It is undisputed that Land had been convicted of a class D felony. He escaped when he failed to return to custody after a temporary leave. He was in custody because he was restrained by an order of the court for law enforcement purposes, i.e., in order to serve his 20-day alternative sentence. ALL CONCUR.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540670/	707 F. Supp. 2d 421 (2010) Rochelle RAMOS, Plaintiff, v. COUNTY OF SUFFOLK and Alfred Tisch, in his official capacity as Suffolk County Sheriff, Defendants. No. 07-cv-1250 (ADS)(ETB). United States District Court, E.D. New York. April 26, 2010. 423 Jon Norinsberg, Esq., PLLC, by Jon L. Norinsberg, Esq., Bennitta L. Joseph, Esq., of Counsel, New York, NY, for plaintiff. Suffolk County Attorney's Office, by Assistant County Attorney Arlene S. Zwilling, Assistant County Attorney Susan A. Flynn, Hauppauge, NY, for defendants. MEMORANDUM OF DECISION AND ORDER SPATT, District Judge: This case arises out of allegations by plaintiff Rochelle Ramos that a physician's assistant at the Suffolk County jail sexually assaulted her while she was incarcerated in that facility. The matter was tried before a jury, and the jury returned a verdict in favor of the defendants. The plaintiff now moves for (1) a partial directed verdict in her favor pursuant to Fed. R.Civ.P. 50(b), and (2) a new trial pursuant to Fed.R.Civ.P. 59. For the reasons set forth below, the Court denies the plaintiffs Rule 50(b) motion and grants the plaintiff's Rule 59 motion. I. BACKGROUND Plaintiff Rochelle Ramos asserts that on December 29, 2005, while she was an inmate at the Suffolk County Correctional Facility in Riverhead, NY, a physician's assistant named Gary Feinberg sexually assaulted her during a routine medical examination. Feinberg died in March of 2006. On March 23, 2007, Ramos brought the present 42 U.S.C. § 1983 action for damages against Feinberg's estate, the County of Suffolk, the Suffolk County Sheriffs Office, and Alfred Tisch, the Suffolk County Sheriff. After discovery was concluded, all of the defendants moved for summary judgment. The claims by Ramos against Feinberg's estate and the Suffolk County Sheriffs Office were dismissed by order of this Court dated September 8, 2009. However, her claims against Suffolk County and Tisch survived. These remaining causes of action asserted derivative liability against Suffolk County and Tisch, based on an alleged municipal policy or practice that lead to the assault. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). On November 9, 2009, the plaintiff proceeded to a jury trial against Suffolk County and Tisch, seeking to prove that (1) Feinberg had assaulted the plaintiff, and (2) the defendants had a policy or practice that led to this assault. The parties began the trial process by selecting a jury and arguing motions in limine, and during this time, and the Court issued three rulings relevant to the plaintiffs present motion. 424 In the first of these rulings, the Court permitted the defendants to amend a previous Local Rule 56.1 statement in which the defendants admitted that Feinberg had in fact assaulted Ramos. Prior to moving for summary judgment, the defendants had filed a statement of facts "as to which [they] contend[ed] there is no issue to be tried." This statement of facts included the admission that "[o]n or about December 28, 2005, Ramos was subjected to a sexual assault by Gary Feinberg, who was working as a Physician's Assistant in the Medical Unit at the jail." (Def.'s Rule 56.1 Stmt., ¶ 3.) A footnote referred to the assault as "alleged." (Id.) When the Court highlighted this statement just prior to jury selection, the defendants asserted that this admission was accidental, and that they had intended to refer to the assault at all times as "alleged." Over the plaintiffs objection, the Court accepted the defendants' explanation, and permitted them to revoke this material admission. Second, the plaintiff moved to exclude at trial all evidence of her substantial history of drug abuse. The Court found that evidence of the plaintiffs drug use impacted the plaintiffs claim for emotional distress damages, but that this was the only issue for which this evidence would be admissible. In so ruling, the Court explicitly held that the plaintiffs drug history would not be admissible for the purpose of impeaching the plaintiffs credibility. (Tr. at 21:4-5 ("Here, [the drug use history] has nothing to do with credibility. That's out.").) The Court also warned the defendants' counsel not to refer to the plaintiffs drug use except with regard to the issue of emotional distress damages. Third, the plaintiff moved to exclude evidence that she had been arrested for making a false statement to the police. The Court ruled that the fact of the arrest was admissible because it affected the plaintiffs claim for emotional distress damages, but that the reason for the arrest was not admissible. Thus, the Court ruled, "I'm going to let you cross-examine her on, have you ever been arrested before this and after this, and not go into what the reason for the arrest is." (Tr. at 14:6-9.) At the trial, the plaintiff offered her own testimony recounting Feinberg's assault in support of her allegation that it took place. In addition, her testimony was corroborated by: 1) notes from Gary Feinberg confirming that he examined her on the day of the alleged abuse, (Pl.'s Tr. Ex. 48); 2) the plaintiffs own sworn complaint of the assault, dated the day after it took place, (Pl.'s Tr. Ex. 21); 3) a report by the Suffolk County Sheriffs Office Internal Affairs Section, stating that a medical exam "revealed an irritation to [the plaintiffs] right vaginal area," and that Ramos's complaint against Feinberg was "founded", (Pl.'s Tr. Ex. 22); 4) a detailed sworn statement by Suffolk County jail inmate Tunisia Ivory, alleging that Feinberg sexually assaulted her approximately two weeks before he allegedly assaulted the plaintiff, (Pl.'s Tr. Ex. 28); 5) a detailed sworn statement by Suffolk County jail inmate Linda Kennedy, alleging that Feinberg sexually assaulted her approximately two weeks after he allegedly assaulted the plaintiff, (Pl.'s Tr. Ex. 29); 6) typed notes from the Suffolk County Sheriffs Office recording that another Suffolk County jail inmate, Marie Catterson, made a similar allegation during the same period of time, (Pl.'s Tr. Ex. 32); and 425 7) testimony at trial by Lowrita Rickenbacker, a former inmate at Suffolk County jail, alleging that Feinberg sexually abused her from February 2005 through January 2006, (Tr. at 952:7-14). Significantly, no evidence was admitted at the trial that conflicted with the plaintiffs testimony that the sexual assault by Feinberg took place. In addition, during the plaintiffs testimony at trial, evidence of the plaintiff's drug history came in both during her direct examination and cross-examination on the issue of damages. Also, counsel for the defendants questioned the plaintiff at some length concerning the alleged false statement she had made to the police. However, the plaintiff never admitted to making a false statement to the police, and consistent with the Court's ruling, the arrest itself was never introduced to impeach the plaintiffs denial. While defense counsel represents to the Court that she recalls that the plaintiff did admit at trial to filing the false report, no such evidence appears in the trial transcript, and this representation is thus unavailing. After both parties rested, each presented their closing statements. Defense counsel argued in summation, among other things, that Ramos had not proven that Feinberg assaulted her. Counsel questioned the "tone" of the plaintiffs written complaint, and pointed out that it was unusual that Ramos recalled certain details from the assault, such as the physical condition of Feinberg's shoes and the fact that officers outside the exam room were eating jalapeno-flavored potato chips. Defense counsel also argued that it was suspicious that Ramos did not complain about the assault until the day after it happened, even though she had several opportunities before then to speak with various correctional officers. Then, defense counsel made two additional statements to challenge the plaintiffs allegation of assault, to which the plaintiff now objects. First, despite the Court's ruling that the plaintiffs drug use was admissible only on the issue of damages, defense counsel exhorted the jury to consider the plaintiffs drug use in assessing liability, stating: Why didn't [the plaintiff] make an outcry [about the alleged abuse]? I think there is a clue in this evidence as to why she didn't. Because she said Gary Feinberg said to her, be a good girl. I'll get you some medication. I'll make it easier for you. And you know what, ladies and gentlemen? She's an admitted drug addict and that could be why she didn't say a word. (Tr. at 1372:7-12.) Shortly thereafter, defense counsel told the jury that the plaintiff had recently filed a false statement with the police, in spite of the fact that no evidence supported that allegation. Noting that the plaintiff had submitted her sworn description of Feinberg's alleged assault, defense counsel then stated: Well, you know what we know about Ms. Ramos? She's a person who files false statements with the police. She walked into a police station not long ago and filed a false report about being robbed, and it was not true. (Tr. at 1380:5-8.) Again, no such evidence was adduced at the trial. On November 24, 2009, the jury returned a verdict, answering only the first question on the verdict sheet. That question read: PRELIMINARY QUESTION 1. Did the plaintiff Rochelle Ramos prove that she was sexually abused by 426 Physician's Assistant Gary Feinberg on December 29, 2005? YES _________ NO __________ If your answer to question 1 is "NO", you have found a verdict in favor of the defendant in both causes of action. In that event, cease deliberations, the foreperson should sign and date the Verdict Sheet and advise the Court by note that you are ready to return to the courtroom to announce your verdict. The jury answered "NO" to this question, and thus answered no other questions and found a verdict in favor of the defendants. On December 23, 2009, the plaintiff made the present motions for judgment as a matter of law and for a new trial. The defendants oppose both motions. II. DISCUSSION A. As to the Plaintiff's Rule 50(b) Motion The plaintiff asserts that, pursuant to Fed.R.Civ.P. 50(b), the Court should rule as a matter of law that Feinberg assaulted her. The plaintiff presents two bases for this motion: First, she contends that defendants should be held to their admission in their Rule 56.1 statement that the assault occurred. Second, she claims that the evidence at trial overwhelmingly supported the conclusion that Feinberg assaulted her. The defendants respond that the plaintiff's motion is both procedurally improper and substantively deficient. 1. Legal Standard Rule 50(a) provides that, prior to submission of a case to a jury, a court that "finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [a given] issue," may enter judgment as a matter of law on that issue. Rule 50(a)'s language thus permits a party to make a motion for judgment as a matter of law prior to submission of the case to the jury, and Rule 50(b) provides that a party may renew this motion after a verdict. Rule 50 does not permit a party to move for judgment as a matter of law for the first time after a verdict has been entered. Nevertheless, the Second Circuit has created an exception to this general rule, holding that a court "may grant judgment as a matter of law where no Rule 50 motion was made, if necessary to prevent `manifest injustice.'" Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir.2003) (citing Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir.1999); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir.1998)). The cases have provided little guidance on what constitutes "manifest injustice" in this context, but rather appear to focus on the specifics of each fact pattern. Id. 2. Application The defendants argue that the plaintiff is precluded from now making a motion pursuant to Rule 50 because she failed to so move prior to the submission of the case to the jury. While both parties agree that the plaintiff did not move for judgment as a matter of law until after the jury returned its verdict, the plaintiff contends that she may nevertheless make the motion at this time. The Court agrees. As discussed above, the Second Circuit has held that a failure to move for judgment as a matter of law prior to submission to the jury is not a per se bar to a later motion for the same relief. Nevertheless, the plaintiffs failure to timely move for judgment as a matter of law does require the Court to apply a higher standard. See Stephenson, 332 F.3d at 68. Thus, the Court may not grant the plaintiffs motion unless it is required to avoid "manifest injustice." Id. 427 With respect to the substance of the plaintiffs Rule 50(b) motion, the plaintiff first contends that the defendants are bound by their prior admission that Feinberg assaulted her. As discussed above, the Court previously permitted the defendants to amend their Rule 56.1 statement in which this admission appeared, and the Court declines to reverse this ruling. Thus, this basis for the plaintiffs motion is without merit. The Court gives greater consideration to the plaintiffs argument that she is entitled to judgment as a matter of law because the overall weight of evidence at trial requires it. The plaintiff correctly notes that her testimony describing Feinberg's alleged assault was uncontradicted, and that the record contains her sworn statement complaining of the assault the day after it took place. As discussed above, the record also contains evidence of an injury to the plaintiffs vagina, as well as several other similar complaints by other women against Feinberg, all made within a short time span. Nevertheless, the Court is wary of the Second Circuit's admonition that, in determining a Rule 50 motion, a court "must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses.. . ." Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir.2010) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008)). In the Court's view, the jury's verdict strongly indicates that they did not find the plaintiff to be credible, and the Court is hesitant to intrude on this determination by entering judgment that directly contradicts such an express finding. Based on a review of all the facts and arguments the Court finds that there will be no "manifest injustice" if the plaintiffs motion is denied. Accordingly, the Court denies the plaintiffs Rule 50 motion. B. As to the Plaintiff's Rule 59 Motion The plaintiff also moves for a new trial in this matter based on the her assertions that, among other things, (1) no evidence contradicted the plaintiffs allegation of assault, and (2) defense counsel made improper remarks during summation. 1. Legal Standard Rule 59 provides in pertinent part: (a) In General. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issuesand to any partyas follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court Generally, the grant of a new trial under Rule 59 is warranted only if the district judge is "convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Sorlucco v. New York City Police Dept., 971 F.2d 864, 875 (2d Cir.1992) (quoting Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988)). In evaluating a Rule 59 motion, the trial judge's duty is essentially to see that there is no miscarriage of justice. Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978). As stated in DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir.1998), "As a general matter, `[a] motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.'" Id. (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992)). 428 In comparison to a Rule 50 motion, the Second Circuit has held that the standard for a Rule 59 motion is less onerous for the moving party in two ways: first, "[u]nlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict." DLC Management Corp., 163 F.3d at 134. Second, in deciding a Rule 59 motion "a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." Id. 2. Application The Plaintiff first moves for a new trial on the same basis that supported her Rule 50 motion. That is, she asserts that the weight of the evidence in support of her allegation of assault requires that her Rule 59 motion be granted. The Court declines to grant a new trial solely on this basis for substantially the same reason that it declines to grant the plaintiffs Rule 50(b) motion: the jury is entitled to disbelieve the plaintiff. However, in the Court's view, the fact that substantial extrinsic evidence supported the plaintiffs testimony provides the background for the plaintiffs second basis for seeking a new trial. This second basis is essentially that, while the jury may be entitled to disbelieve the plaintiff, the defendants may not urge the jury to disbelieve the plaintiff for improper reasons. According to the plaintiff, this is what defense counsel did here, and the plaintiff asserts that defense counsel's improper comments ultimately affected the jury's verdict. On this issue, the Court agrees with the plaintiff. The first instance of this improper conduct, recounted more fully above, was defense counsel's statement that connected the facts of the alleged assault with the plaintiffs history of drug abuse. Counsel did this by stating, "And you know what, ladies and gentlemen? She's an admitted drug addict and that could be why she didn't say a word [about the alleged abuse]." (Tr. at 1372:7-12.) To be sure, the Court finds defense counsel's comments cryptic, as they appear possibly to admit that the assault did in fact take place. However, no close analysis of the text is necessary to determine that defense counsel plainly asked the jurors to consider, one the one hand, what actually happened during Feinberg's examination, and on the other hand, the fact that the plaintiff "was an admitted drug addict." This contradicted the Court's express ruling that evidence of drug use was not admissible on the issue of liability or credibility, and was therefore improper. Second, defense counsel asked the jury to discount the value of the plaintiff's sworn testimony, saying, "you know what we know about Ms. Ramos? She's a person who files false statements with the police. She walked into a police station not long ago and filed a false report about being robbed, and it was not true." (Tr. at 1380:5-8.) As noted above, there was no evidence in the record that the plaintiff had filed any false police reports. This statement is thus considerably more troubling to the Court, as it directly impeaches the plaintiffs credibility without any evidentiary basis. The Court notes that counsel for the plaintiff did not object to either of these statements at the time they were made, and that the Second Circuit generally reviews such unpreserved objections only for "plain error." See Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 18 (2d Cir.1996). Thus, while the defendant's statements were plainly improper, the threshold of harm necessary for a new trial is heightened here. 429 Nevertheless, the Court finds that this threshold has been met. First, defense counsel's statements here showed an audacious disregard both for the Court's rulings and for the evidentiary record, and brought out the inflammatory issues of the plaintiffs drug abuse and criminal history. Moreover, the great weight of the extrinsic evidence here supported the plaintiffs allegation, and there was no evidence that contradicted her. Thus, in the Court's view, there is a strong connection between (1) defense counsel's improper argument that plaintiff should be disbelieved on the basis of her drug history and alleged prior false statements to the police, and (2) the fact that the jury found the plaintiff not credible. The Court can identify few reasons from the record for the jury to have disbelieved the plaintiff, and thus finds it very likely that defense counsel's improper statements affected the jury's decision to discredit the plaintiffs testimony. As such, the Court finds that defense counsel's statements were "so serious and flagrant [as to go] to the very integrity of the trial." Id. (quoting Brenner v. World Boxing Council, 675 F.2d 445, 456 (2d Cir. 1982), cert. denied, 459 U.S. 835, 103 S. Ct. 79, 74 L. Ed. 2d 76 (1982)); see also, Falkowski v. Johnson, 148 F.R.D. 132, 135 (D.Del.1993) (holding that an attorney's presentation to the jury of arguments not supported by facts in evidence can warrant a new trial). In addition, the Court notes that its decision to grant the plaintiff a new trial is also supported on separate grounds. At the trial, the plaintiff sought to bolster her testimony that Feinberg had assaulted her by calling Suffolk County Investigator Terry-Clark, the investigator who on December 30, 2005 took the plaintiffs statement complaining of the assault. The plaintiffs counsel asserted that Terry-Clark would have testified to the plaintiffs demeanor at the time, and also offered into evidence documents from her investigation file supporting the claim that the assault took place. When the plaintiff attempted to call the investigator, the defendants objected to her testimony because she was not listed in the parties' joint pre-trial order. The plaintiff admitted that the witness was unlisted, but asserted that she was omitted in reliance on the defendants' now-revoked admission that the assault actually took place. The plaintiff asserted that, given that the defendants had now withdrawn this admission, the investigator's testimony should be permitted to prove the assault took place. Ultimately, the Court declined to allow the plaintiff to call the investigator, primarily because counsel's offer of proof at the time revealed that the investigator's testimony was not obviously relevant. However, in hindsight, the Court finds that this conclusion may have been unwarranted. While the plaintiffs counsel provided little detail as to what the investigator could say to bolster the plaintiffs testimony, it is reasonable to believe that the investigatorand the investigation file she would have placed into evidencemay well have supported the plaintiffs claim. Especially in light of the fact that the plaintiff claimed that she would have listed the investigator as a witness had the defendants not admitted to the assault at the time the parties filed the pre-trial order, the Court finds that the exclusion of the investigator's testimony caused unfair prejudice to the plaintiff. While the Court is uncertain that this incident would have supported a grant of a new trial by itself, the Court finds that the incident does support the Court's present Rule 59 decision. Thus, the Court grants the plaintiffs Rule 59 motion for a new trial. 430 III. CONCLUSION For the foregoing reasons, it is hereby ORDERED that the plaintiffs motion for judgment as a matter of law pursuant to Rule 50(b) is denied; and it is further ORDERED that the plaintiffs motion for a new trial pursuant to Rule 59 is granted; and it is further ORDERED that the parties are directed to appear for jury selection on June 28, 2010 at 9:00 a.m. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540768/	723 F. Supp. 2d 82 (2010) UNITED STATES of America, v. Vincent GRAY, Defendant. Case No. 09-681-MJ(JMF). United States District Court, District of Columbia. July 12, 2010. 83 Daniel S. Friedman, Sean Richard Delaney, U.S. Department of Justice, Washington, DC, for Plaintiff. Thomas Ruffin, Ruffin Legal Services, Washington, DC, for Defendant. MEMORANDUM OPINION JOHN M. FACCIOLA, United States Magistrate Judge. Defendant consented to trial, judgment, and sentencing before a United States Magistrate Judge, waiving his rights to a trial, judgment, and sentencing before a United States District Judge. As such, I have the case for all purposes. Currently pending before me and ready for resolution are seven pre-trial motions filed by defendant, including five motions to dismiss, a motion for a bill of particulars, and a motion to suppress certain evidence. The government has submitted an omnibus opposition to all seven motions. The deadline for a reply from defendant has passed; thus, I will assume that he will not file a reply and that the motions are ripe. Defendant is self-employed as a taxi cab driver. The government alleges that defendant failed to make a return and to pay federal and District of Columbia taxes. Information [#5] ("Info."). Defendant has filed several motions to dismiss the counts related to these allegations. I will address each motion in turn. I. Motion to Dismiss Counts One, Three, and Five or to Strike Surplusage from Those Counts Defendant is charged with failing "to make an income tax return to the Internal Revenue Service." Info. at 1-3. The charge is made in Count One for calendar year 2004, in Count Three for calendar year 2005, and in Count Five for calendar year 2006. Id. Defendant claims that the parenthetical note following the counts, "willful failure to file return in violation of Title 26, United States Code, Section 7203," indicates that the government initiated a prosecution for an offense the statute does not condemn. Motion to Dismiss Counts One, Three and Five or to Strike Surplusage from Those Counts [# 8] ("MTD # 1") at 2. According to defendant, the section does not mention the Internal Revenue Service ("IRS") and does not mandate the filing of a return. Id. The Supreme Court, in Hamling v. United States, 418 U.S. 87, 119, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974), and in United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007), "identified two constitutional requirements for an indictment: `first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" Resendiz-Ponce, 549 U.S. at 108, 127 S. Ct. 782 (quoting 84 Hamling, 418 U.S. at 117, 94 S. Ct. 2887). Thus, the defendant argues that these counts must be dismissed or the surplusage struck from the information. MTD #1 at 8. The government contends that the Information meets the constitutional standard of sufficiency "because it lays out the elements of 26 U.S.C. § 7203 with sufficient clarity and specificity to apprise Defendant of the charges against him, and allows him to prepare an adequate defense." Government's Consolidated Response to Defendant's Pretrial Motions [# 16] ("Gov's Opp.") at 2. I find that the three counts, as alleged in the Information, meet the standard of sufficiency as identified by the Supreme Court and will deny defendant's motion to dismiss on these grounds. Further, I find meritless defendant's argument that the government's use of the terms "IRS" and of "filing" is unfair surplusage. As the government argues, "a motion to strike surplusage from the indictment should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial." Gov's Opp. at 4 (citing United States v. Rezaq, 134 F.3d 1121, 1134 (D.C.Cir.1998) (internal citations and quotations omitted)). The determination of whether a surplusage is irrelevant or prejudicial is within the discretion of the Court. See, e.g., Rezaq, 134 F.3d at 1134. Accordingly, I find the language to which the defendant objects, "the Internal Revenue Service" and "file," to be relevant and find no prejudice created by its inclusion. Defendant's motion to strike surplusage from the Information will be denied. Defendant's Supplement to Motion to Dismiss Counts One, Three, and Five or Strike the Surplusage [# 15], which seeks to strike additional surplus language,[1] will likewise be denied. II. Motion to Dismiss Counts Two, Four, and Six for Lack of Jurisdiction Counts Two, Four, and Six in the Information allege defendant's failure "to make a tax return and pay all taxes due and owing to the District of Columbia." Info. at 2-4. Defendant claims that the Superior Court has exclusive jurisdiction over the prosecutions to enforce this section of the D.C. Code and that the U.S. Attorney for the District of Columbia does not have authority to prosecute a local tax ordinance in the United States District Court. Motion to Dismiss Counts Two, Four and Six for Lack of Jurisdiction [# 10] ("MTD # 2") at 2-3. The government challenges both of these arguments, contending that the Court has jurisdiction over the District of Columbia charges because they were properly joined in the same Information as federal offenses and that the Office of the Attorney General authorized the U.S. Attorney to bring the charges. Id. Gov's Opp. at 5, 7. The government offers to make the authorization letter from the Office of the Attorney General available to the Court for inspection; however, this is unnecessary. The D.C. Code expressly grants the United States Attorney's Office the authority to prosecute properly-joined District of Columbia charges alongside federal charges. See D.C.Code § 23-101(d). Counts Two, Four, and Six are properly joined to federal charges and the Office of the Attorney General has provided its consent to bring 85 the charges. Defendant's motion will be denied. Defendant's Motion to Suppress Evidence of Alleged Violation of the D.C. Code, Section 47-4103(c) [#9] ("Mot. to Suppress"), based on the same argument that the United States Attorney's Office has exceeded its prosecutorial powers by charging the violations of the D.C. Code, will likewise be denied. Further, in his motion, defendant alleges that, in bringing these charges, the United States Attorney's Office violated the Rules of Professional Conduct[2] by intentionally failing to seek the lawful objectives of a client, acting with prosecutorial misconduct, and acting with reckless disregard or negligence. Mot. to Suppress at 3-7. These allegations are serious but are not supported by any evidence. Instead, they are controverted by the existence of the authorization letter issued by the Office of the Attorney General. The Court therefore finds the defendant's allegations to be frivolous. III. Motion to Dismiss Information for Failure to State Essential Elements Defendant seeks to dismiss Counts One, Three, and Five for the government's failure to allege specific intent in its claim that defendant deliberately refused to make a federal income tax return. Motion to Dismiss Information for Failure to State Essential Elements [# 11] ("MTD # 3") at 2. Defendant seeks to dismiss Counts Two, Four, and Six for failure to allege that defendant, with deliberate intent, refused to make a D.C. tax return and pay all income taxes. Id. at 3. Further, defendant argues that those three counts should be dismissed for failure to allege an an essential element: that the prosecution was in the name of the District of Columbia, not in the name of the United States. Id. at 4. The government argues that the appropriate mens rea of the crimes charged is "willfulness," which is charged in the Information and is defined as a "voluntary, intentional violation of a known legal duty." Gov's Opp. at 7-8 (citing Cheek v. United States, 498 U.S. 192, 199, 111 S. Ct. 604, 112 L. Ed. 2d 617 (1991); United States v. Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 50 L. Ed. 2d 12 (1976)); see also Gov's Opp. at 8-9 (citing United States v. Shorter, 618 F. Supp. 255, 256 (D.D.C.1985) (internal citations omitted)). The Information alleges willful conduct on the part of defendant in each of the counts; therefore, defendant's motion will be denied. IV. Motion to Force an Election of, or to Dismiss, Duplicitous Charges in Counts Two, Four, and Six Defendant alleges that Counts Two, Four, and Six charge two separate acts: (1) failure to make a return; and (2) failure to pay all taxes due. Motion to Force an Election of, or to Dismiss, Duplicitous Charges in Counts Two, Four, and Six, [# 12-13] ("MTD # 4") at 7. Defendant argues that each offense should be in a separate count, or defendant could face an unfair jury trial. Id. at 3. Accordingly, the defendant moves the Court to dismiss the counts or force the government to choose between the two charges in each count. Id. at 8. The government argues that, "[b]ecause D.C.Code § 47-4103(a) lists in the disjunctive the ways in which an individual can commit a crime, there is no error for the United States to seek a conjunctively-worded charging instrument with the ultimate goal of securing 86 a conviction on proof of one act alone." Gov's Opp. at 10 (citing United States v. Brown, 504 F.3d 99, 104 (D.C.Cir.2007) (internal quotations and citations omitted)). In reviewing D.C.Code § 47-4103(a), it is clear that it lists multiple acts disjunctively. D.C.Code § 47-4103(a). I find Counts Two, Four, and Six in the Information are not duplicitous, and will therefore deny defendant's motion to dismiss or to force an election of charges. V. Motion for Bill of Particulars Defendant claims that the Information failed to state clearly and in adequate terms the nature and the cause of the alleged offenses with which he is charged. Motion for Bill of Particulars [# 14] ("Mot. for Bill of Part.") at 2. Thus, the defendant moves the court to order the government to produce a bill of particulars that would answer a set of questions: (1) what sort of tax return did defendant fail; (2) what sort of taxes did defendant fail to pay in Counts Two, Four, and Six; (3) what sort of income tax return did defendant fail to file in Counts One, Three, and Five; and (4) what is the definition of the term "Internal Revenue Service" or "Internal Revenue Service Center." Id. at 3-4. The United States argues that the Information is sufficiently particular and that the government continuously provided discovery to the defense and that it will provide to defendant a list and copies of the documents it intends to use in its case-in-chief. Gov's Opp. at 11. Thus, the government argues that the motion is moot. Id. Rule 7(f) of the Federal Rules of Criminal Procedure provides that "the court may direct the government to file a bill of particulars." Fed.R.Crim.P. 7(f). "A bill of particulars can be used to ensure that the charges brought against a defendant are stated with enough precision to allow the defendant to understand the charges, to prepare a defense, and perhaps also to be protected against retrial on the same charges." United States v. Butler, 822 F.2d 1191, 1193 (D.C.Cir.1987); see also United States v. Mejia, 448 F.3d 436, 445-46 (D.C.Cir.2006). "Yet if the indictment is sufficiently specific, or if the requested information is available in some other form, then a bill of particulars is not required." Butler, 822 F.2d at 1193. I already found the charges to be constitutionally sufficient. I further find, based on representations made by the government, that the information sought by defendant is available to him through the full discovery provided by the government. Defendant's motion will therefore be denied. VI. Conclusion For the reasons stated herein, the defendant's Motion to Dismiss Counts One, Three, and Five or to Strike Surplusage from Those Counts [#8]; Supplement to Motion to Dismiss Counts One, Three, and Five or Strike the Surplusage [# 15]; Motion to Dismiss Counts Two, Four, and Six for Lack of Jurisdiction [# 10]; Motion to Suppress Evidence of Alleged Violation of the D.C. Code, Section 47-4103(c) [# 9]; Motion to Dismiss Information for Failure to State Essential Elements [# 11]; Motion to Force an Election of, or to Dismiss, Duplicitous Charges in Counts Two, Four, and Six [# 12-13]; and Motion for Bill of Particulars [# 14] will be denied. A separate order accompanies this Memorandum Opinion. NOTES [1] Defendant seeks to strike the following surplusage: (1) "to the Internal Revenue Service Center at Philadelphia, Pennsylvania, to a person assigned to receive returns at the local office of the Internal Revenue Service in Washington, D.C., or to another Internal Revenue Service office permitted by the Commissioner of Internal Revenue"; and (2) "to file a return." Supp. Mot. at 3. [2] Motion to Suppress Evidence of Alleged Violation of the D.C. Code, Section 47-4103(c) [# 9] at 3-5.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2542430/	723 F. Supp. 2d 416 (2010) Sandra Maldonado MORALES, et al., Plaintiffs, v. Dr. Jorge Noya MONAGAS, et al., Defendants. Civil No. 08-1703(GAG). United States District Court, D. Puerto Rico. June 28, 2010. 417 Israel Melendez-Torres, Freddie O. Torres-Gomez, Roberto Sueiro-Del-Valle, San Juan, PR, for Plaintiffs. Jose A. Miranda-Daleccio, Jaime Sifre-Rodriguez, Nerylu Figueroa-Estasie, Juan A. Pedrero-Lozada, Ramonita Dieppa-Gonzalez, Roberto E. Ruiz-Comas, San Juan, PR, for Defendants. OPINION AND ORDER GUSTAVO A. GELPI, District Judge. Plaintiffs commenced this action against various defendants, including the appearing co-defendant Presbyterian Community Hospital ("PCH"), alleging medical malpractice, and seeking redress under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141 & 5142. Pending before this court is PCH's motion for summary judgment (Docket No. 140), Plaintiffs' opposition (Docket No. 152), PCH's reply to opposition (Docket No. 194), and Plaintiffs' sur-reply (Docket No. 203). After reviewing the filings and the applicable law, the court GRANTS in part and DENIES in part Co-Defendant's motion for summary judgment. (Docket No. 140.) I. Standard of Review for Summary Judgment Summary judgment is appropriate when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "An issue is genuine if `it may reasonably be resolved in favor of either party' at trial, and material if it `posses[es] the capacity to sway the outcome of the litigation under applicable law.'" Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (citations omitted). 418 The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S. Ct. 2548. The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S. Ct. 2505. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)). II. Relevant Facts The parties' summary judgment pleadings reveal the following uncontested material facts. Enrique Sanchez Vidal ("Sanchez") was referred to co-defendant Dr. Noya's private care by Dr. Wilfredo Pagani for a consultation regarding possible surgery since Sanchez had a problem with his gallbladder. (Docket No. 139-2 at 2.) Dr. Noya belongs to the medical faculty of PCH's surgery department with a specialty in general surgery since 1980. (Docket No. 139-3 at 15 and Docket No. 139-6 at 9, ¶ 22.) More specifically, Dr. Noya has been enjoying the clinical privilege of performing laparoscopic cholecystectomies at PCH since 1991 and has never been suspended nor revoked. (Docket No. 139-6 at 11, ¶¶ 32-33.) All members of PCH's medical staff enjoy clinical privileges to provide medical care to patients at the hospital. (Docket No. 139-6 at 7, ¶ 17.) Said privileges are granted as part of the application process to become a member of the medical staff. (Id.) PCH has established specific criteria and procedures that its medical staff must abide by in order to be able to provide care to patients in the hospital. (Docket No. 139-5 at 2.) Furthermore, the privilege of a medical staff membership is only extended to "professionally competent physicians who continuously meet the qualifications, standards and requirements set forth in the hospital's Bylaws, Rules and Regulations." (Docket No. 139-6 at 2, ¶ 6.) An application for appointment to the medical staff "must contain a request for specific clinical privileges" and "is evaluated on the basis of the practitioner's licensure, relevant education, training and experience, demonstrated current competence and judgment, ability to perform the privileges requested, and participation in continuing education programs." (Id. at 7, ¶ 2.) As an active member of the medical staff of PCH, Noya has never been an employee of the hospital and has never received salary from the hospital. (Id. at 11, ¶¶ 35-36.) The compensation he receives for being an active member of the medical staff and for enjoying clinical privileges is awarded by the medical insurance plans of the patients he attends to in PCH's facilities. (Id.) On May 9, 2007, Dr. Noya met with Sanchez for an initial consultation where he was diagnosed with chronic inflammation of the gallbladder and an umbilical hernia. (Id. at 4.) Dr. Noya recommended to Sanchez the removal of his gallbladder 419 by laparoscopy and the reparation of the umbilical hernia. (Id. at 5.) Sanchez consented to the procedure after being explained what it consisted of and its risks. (Id. at 6-7.) On May 15, 2007, the surgery was performed at PCH. (Id. at 7.) According to the Plaintiffs' expert witness's report, following the surgery, Sanchez suffered from abdominal pain, fever and elevated amylase and bilirubin levels. (Docket No. 137-2 at 2.) Dr. Noya diagnosed the patient with pancreatitis. (Id.) After performing an abdominal ultrasound and two CT scans, Dr. Noya performed a second surgery where he found a large abscess and pancreatitis. (Id.) Since a subsequent CT scan revealed multiple fluid collections, Sanchez was taken to the operating room once more. During this third surgery, Dr. Noya found that the patient had a leaking cyst duct and inserted a feeding tube to act as a "stent." (Id.) On June 13, 2007, Dr. Noya performed a cholangiogram at the cystic duct insertion site and became aware of a bile leak. (Id.) Despite being aware of the leak, Dr. Noya did not treat it. (Id.) After this operation, Sanchez remained febrile and with elevated labs but Dr. Noya wrote on his progress notes that he was "clinically improved". (Id.) On June 20, the patient was in septic shock with a blood pressure of 90/50 and a heart rate of 125.(Id.) On June 27, 2007 Sanchez was transferred in catastrophic condition to Auxilio Mutuo Hospital where, after several surgeries, he eventually expired. (Docket No. 1.) III. Discussion A. Hospital's liability with regard to primary physician's actions Co-defendant alleges that Plaintiffs have failed to demonstrate sufficient evidence to create a material issue of fact with regard to the hospital's liability for the primary physician's alleged malpractice in the medical treatment provided to patient. Under Puerto Rico law, a hospital can be held liable to its patients for malpractice when there has been negligence on the part of the hospital's employees. Marquez Vega v. Martinez Rosado, 116 D.P.R. 397, 405, 16 P.R. Offic. Trans. 487, 495 (1985). Thus, the hospital's liability is based on the vicarious liability doctrine. Id. Article 1803 of the Puerto Rico Civil Code governs the vicarious liability doctrine. Under said statute, [t]he obligation imposed by § 5141 of this title is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible . . . Owners or directors of an establishment or enterprise are likewise liable for any damages caused by their employees in the service of the branches in which the latter are employed or on account of their duties. P.R. Laws Ann. tit. 31, § 5142. However, when a physician is not employed by the hospital, but instead is granted the privilege of using the hospital's facilities for his or her private patients, the hospital should not be held liable for the exclusive negligence of an unsalaried physician, who was first and foremost entrusted with the patient's health. Marquez Vega, 116 D.P.R. at 408-409, 16 P.R. Offic. Trans. at 499. In their opposition to PCH's motion for summary judgment, Plaintiffs aver that pursuant to Sagardia De Jesus v. Hospital Auxilio Mutuo, 2009 T.S.P.R. 173, PCH is liable for Dr. Noya's negligence. However, while such precedent offers guidance on the vicarious liability doctrine, it does not change the firmly established standard for determining a hospital's liability. Instead, Sagardia only holds that the hospital and the physician are jointly liable when a hospital enters into a contract with a franchise to provide special medical services, since the patient does not have the option of choosing a particular doctor or 420 service. The holding in Sagardia is, thus, inapposite to the case at hand. In the instant case, Dr. Noya was at all times in charge of the medical treatment provided to Sanchez. Moreover, Dr. Noya was entrusted with Sanchez's health when they met at Dr. Noya's private office. (Docket No. 139-6.) Furthermore, while he was hospitalized at PCH, Sanchez relied upon Dr. Noya for the diagnosis and treatment of his medical condition. Since Sanchez was a private patient, and was admitted as such to PCH, PCH is not vicariously liable for Dr. Noya's actions. In light of the vicarious liability doctrine and the applicable case law, Plaintiffs have failed to establish the hospital's liability. Therefore, co-defendant's motion for summary judgment is GRANTED and the hospital's liability claim with regard to Dr. Noya's negligence is hereby dismissed. B. Hospital's liability in relation to granting clinical privileges Co-defendant avers that contrary to Plaintiffs' assertion, PCH was not negligent in granting clinical privileges to Dr. Noya. Under the "corporate negligence" doctrine, a hospital may be held liable for the negligent acts of physicians who have been granted the privilege of using hospital facilities for their private patients. Marquez Vega, 116 D.P.R. at 403, 16 P.R. Offic. Trans. at 494. Similarly, a hospital may be liable if it was "careless or imprudent in selecting the physician and granting him [privileges]." Id. Public policy dictates that even in this type of situations the hospital has the continuous obligation to protect the health of its patients by: (a) carefully selecting the physicians who, for some reason or another, are granted the privilege of using its facilities; (b) requiring that said physicians keep up-to-date through professional advancement studies; (c) monitoring the labor of said physicians and taking action, when possible, in the face of an obvious act of malpractice; (d) discontinuing the privilege granted in the face of the repeated or crass acts of malpractice on the part of one of those physicians; and (e) keeping reasonably up-to-date on current technological breakthroughs. Id., 116 D.P.R. at 409-410, 16 P.R. Offic. Trans. at 500. "A hospital that fails to follow such course of action is practically liable, by `complicity,' for the malpractice act committed in its facilities by the physician against his private patient." Id., 116 D.P.R. at 410, 16 P.R. Offic. Trans. at 500-501. Moreover, "the duty to care for the patient not only corresponds to his physician, but to the hospital as well." Nuñez v. Cintron, 115 D.P.R. 598, 605, 15 P.R. Offic. Trans. 786, 796 (1984). The uncontested facts of this case show that Sanchez Vidal was a private patient of Dr. Noya. (Docket No. 139-2 at 2.) Sanchez was operated at PCH, based on the recommendation made by Dr. Noya, since said hospital had granted him the privilege of using its facilities to treat his private patients. (Docket No. 139-6 at 5-7.) Sanchez was allegedly the victim of Dr. Noya's medical malpractice. Pursuant to the rule established in Marquez Vega, "a hospital is not liable for the exclusive negligent act of a non-staff physician with regard to his private patient unless the health-care institution had been negligent in granting himand in maintainingthe privilege of using its facilities to treat private patients. . . ." Id., 116 D.P.R. at 412, 16 P.R. Offic. Trans. at 502. PCH's bylaws establish the procedure for the application, appointment, renewal, and suspension of medical privileges to its medical staff, and provides that the privileges to the medical staff must be renewed every two years. (Docket No. 139-6 at 6, 421 ¶ 15.) On this initial application, the candidate physician must submit written details regarding relevant training, current competence, professional references, and involvement in any professional liability action, among other things. (Id. at 4, ¶ 9) (emphasis added). Upon review of a candidate's application, a physician is initially appointed to the medical staff on a provisional basis for a period of twelve months. (Id. at 5, ¶ 13.) If a staff member desires reappointment, his or her professional performance, clinical skills, technical skills, compliance with continuing medical education, quality improvement, and professional ethics are taken into consideration, among other things. (Id. at 6, ¶ 16.) PCH granted Dr. Noya privileges to practice his specialty in laparoscopic cholecystectomies on September 19, 1991. (Docket No. 139-6 at 9, ¶ 25.) He has performed more than a thousand laparoscopic cholystectomies for the past 17 years. (Docket No. 139-2 at 8, ¶ 18.) Dr. Noya's clinical privilege to perform laparoscopic cholystectomy has never been suspended nor revoked. (Id. at 11, ¶ 33.) Based on PCH's bylaws, in granting clinical privileges to Dr. Noya, the hospital must have considered any previous involvement in any professional liability action. Plaintiffs contend that Dr. Noya had been sued for medical malpractice on nine occasions. (Docket No. 158 at 2, ¶ 20.) Codefendants, on the other hand, aver that Dr. Noya had only been sued on six occasions, including the present case. (Docket No. 139-3 at 12.) Failure to determine the number of times sued would constitute admissible evidence of the hospital's negligence in evaluating a physician for selection to the medical staff. The court understand that the hospital's knowledge of the existence of prior lawsuits is an essential factor in determining whether or not the hospital exercised reasonable care in granting a physician staff privileges. Marquez Vega, 116 D.P.R. at 409-410, 16 P.R. Offic. Trans. at 500 (discontinuation of privilege in the face of a malpractice pattern is among hospital's responsibilities regarding protection of patients). See also Braden v. Saint Francis Hospital, 714 P.2d 505, 507 (1985). The issue of whether Dr. Noya's previous medical malpractice lawsuits were taken into consideration by PCH when granting him clinical privileges is a question of fact better left to the jury. Therefore, the court DENIES co-defendant's motion for summary judgment as to Plaintiffs' claim regarding hospital's liability in granting clinical privileges. C. Nursing staff's alleged negligence Co-defendant moves for summary judgment on the ground that PCH's nursing staff is not vicariously liable for negligence in the care of Sanchez. More specifically, co-defendant avers that nurses complied with all medical orders and used the necessary degree of care to avoid causing unnecessary harm to the patient. (Docket No. 140 at 42.) Plaintiffs, on the other hand, contend that PCH's nursing staff was negligent in failing to adequately keep, record and upgrade the medical records of Sanchez during his hospitalization and thus should be held vicariously liable under Article 1803. (Docket No. 127 at 12, ¶ 64.)[1] As previously stated, under Article 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5142, a hospital can be held liable for its employee's negligent acts. For an Article 1803 claim to prosper in a 422 medical malpractice case, Plaintiff would have to present sufficient evidence to prove all three elements of a prima facie medical malpractice case. That is, "(1) the duty owed; (2) an act or omission transgressing that duty; and (3) a sufficient causal nexus between the breach and harm." Marcano v. Turabo Medical Center Partnership, 415 F.3d 162, 167 (1st Cir.2005). Puerto Rico courts have explained the duty owed to a patient as that "level of care which, recognizing the modern means of communication and education, meets the professional requirements generally acknowledged by the medical profession." Otero v. United States, 428 F. Supp. 2d 34, 46 (D.P.R.2006). "The standard is considered national and should generally be proven through expert testimony." Id. As to the standard of care owed specifically by nurses, the Puerto Rico Supreme Court has held that "[a] nurse should exercise a certain standard of reasonable care to see that no unnecessary harm comes to the patient, and said standard of care must be the same as the standard of care exercised by other nurses in the locality or similar localities." Blas Toledo v. Hospital Nuestra Señora de la Guadalupe, 146 D.P.R. 267, 307, slip op. at 21 (1998) (citing Castro v. Municipality of Guanica, 87 D.P.R. 725, 728-729 (1963)). "Nurses ... have the unavoidable duty to fulfill medical orders with the required urgency and in accordance with each patient's particular circumstances." Ponce v. Ashford Presbyterian Comm. Hosp., 189 F.R.D. 31, 33 (D.P.R.1999). In terms of the causation, under Puerto Rico law, a Plaintiff must prove by a preponderance of the evidence that the "negligent conduct was the factor that `most probably' caused harm to plaintiff." Marcano, 415 F.3d at 168. Causation usually cannot be found based on mere speculation and conjecture. Pages-Ramirez v. Hosp. Español Auxilio Mutuo, 547 F. Supp. 2d 141, 149 (D.P.R.2008). "Expert testimony is generally essential in order to clarify complicated medical issues that are more prevalent in medical malpractice cases than in standard negligence cases." Otero, 428 F.Supp.2d at 46. Co-defendant moves for summary judgment arguing that PCH's nurses merely complied with all the medical orders given by the various physicians who treated Sanchez. (Docket No. 140 at 42.) As such, co-defendant argues that PCH's nursing staff cannot be held jointly liable for any damages alleged by Plaintiffs. Although nurses need to comply with a physician's orders, under Puerto Rico law, nurses are compelled to meet "certain independent standards of care." Pages-Ramirez, 547 F.Supp.2d at 149. As previously mentioned, nurses must use a degree of care to avoid causing unnecessary harm to the patient. Blas Toledo, 146 D.P.R. at 307. According to Plaintiffs' expert witness, Dr. Michael Wingate ("Dr. Wingate"), PCH's nurses did not depart from the standard of care, except on the day of Sanchez's transfer to Auxilio Mutuo Hospital. (Docket No. 139-10, at 22-23.) Dr. Wingate stated in his amended report that "due to [a] breach in the [standard of care] of proper record keeping which is directly supervised by the hospital, improper transfer to Hospital Auxilio and confusion set in." (Docket No. 137-4 at 9.) According to Dr. Wingate, it is the duty of a nurse to "prepare the proper documentation ... so the receiving hospital can receive it." (Docket No. 139-10 at 23.) However, there is no indication on the medical record, nor did Dr. Wingate have any knowledge, as to who was responsible for the transfer notes. (Id.) Moreover, when asked who was responsible for the transfer summary, Dr. Wingate replied that the *423 physician was responsible for producing it but that the charge nurse usually asks for it before the patient is released. (Id.) Because there is an issue of fact as to who is responsible for the transfer sheet and what are the hospital's rules regarding verification of the transfer sheet, this court cannot conclude whether the nurses breached the standard of care. "In a medical malpractice case, issues of deviation from the medical standard of care are questions of fact that must be decided by the jury." See Cortes-Irizarry v. Corp. Insular de Seguros, 111 F.3d 184, 189 (1st Cir.1997). This factual issue precludes summary judgment as to breach of duty of care by the hospital's nurses. Therefore, the court DENIES co-defendant's motion for summary judgment on this claim. IV. Conclusion For the foregoing reasons, the court GRANTS in part and DENIES in part co-defendant's motion for summary judgment. (Docket No. 140.) The court hereby GRANTS PCH's motion for summary judgment with respect to hospital's liability for Dr. Noya's alleged negligence and DENIES summary judgment as to hospital's liability in granting clinical privileges and nursing staff's alleged negligence. SO ORDERED. NOTES [1] Co-defendant, PCH, states in its motion for summary judgment that Plaintiffs also allege nurses negligence in allowing Sanchez to be fed solid food. However, this claim was not made on Plaintiffs' amended complaint and, as such, will not be considered by this court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540706/	715 F. Supp. 2d 394 (2010) Merlyn EMMONS, Plaintiff, v. The CITY UNIVERSITY OF NEW YORK, The Research Foundation of the City University of New York, Medgar Evers College[1], Edison Jackson, Andre Lake, Sandra Smith, Hanna Guada, Paul Shorter, Evelyn Watson, Defendants. No. 09-CV-537 (ENV)(JMA). United States District Court, E.D. New York. June 2, 2010. Order Modifying Opinion July 2, 2010. 401 Ugochukwu Uzoh, Ugochukwu Uzoh & Associates, Brooklyn, NY, for Plaintiff. Roderick Leopold Arz, Office of the Attorney General of New York, New York, NY, Christopher G. Gegwich, James P. O'Brien, Jr., Forchelli Curto Deegan Schwartz Mineo Cohn & Terrana, LLP, Uniondale, NY, for Defendants. 402 MEMORANDUM AND ORDER VITALIANO, District Judge. Plaintiff Merlyn Emmons brings this action against defendants The City University of New York ("CUNY"), one of its four-year senior colleges, Medgar Evers College ("MEC"), Edison Jackson and Hannah Guada, as individual employees of MEC, The Research Foundation of the City University of New York ("RFCUNY"), and four individual employees of RFCUNYAndre Lake, Sandra Smith, Paul Shorter and Evelyn Watson, pursuant to a plethora of federal and New York state statutes, as well as New York common law.[2] Emmons's claims stem from alleged mistreatment and, ultimately, termination from her employment by "CUNY and its affiliated entities." (Compl. ¶ 6.) Generally, she alleges that defendants unlawfully discriminated against her on the basis of her sex, disability, race, color, religion, and national origin, and retaliated against her for complaining about the discrimination. Defendants now move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[3] For the reasons set forth below, the motion is granted in part. Background The following allegations are drawn from the text of the complaint and are considered true for the purposes of the current motion. RFCUNY is a private, non-profit corporation that administers grant-funded programs at various educational institutions, including CUNY, a public university established by the City of New York. Emmons started working for RFCUNY in 2001 on a part-time basis at MEC. (Compl. ¶ 12.) In January 2005, she accepted a full-time position as an instructor in MEC's "Immersion" program at an annual salary of $38,000. Since plaintiff had a PhD, "her understanding at the time was that her salary would be increased," but her requests for a pay raise were ignored "on numerous occasions." (Id.) Plaintiff alleges that she had an "at-will contract of employment with CUNY."[4] (Id. ¶ 93.) In 2005, plaintiff attended MEC's annual retreat for employees and instructors. (Id. ¶ 13.) At one event, Peter Williams, the Vice President of MEC, encouraged the instructors to explain to their students the importance of education and the potential rewards that it could yield. During his address, Williams handed out to the attendees a "scale" that indicated the amount of money that an individual could expect to earn upon attaining successive levels of education. But, after reading that a PhD recipient could expect a salary substantially higher than what she was receiving, plaintiff asked Williams how she should explain her lower salary to her students, 403 inquired of him why her male colleagues were earning higher salaries, and indicated that defendants "were discriminating against her because of her sex." (Id.) In response, Williams "admonished" and "berated" her, insinuating that she should be content with the fact that she had a job. (Id. ¶ 14.) Williams also threatened to terminate her, she claims, if she continued to insist on a higher salary. (Id.) Emmons alleges further that, following their confrontation, Williams began intensely monitoring and scrutinizing her actions, verbally "abus[ing]" and "harass[ing]" her in the presence of her colleagues, and telling some of her former colleagues that he didn't want her to work in his programs. (Id. ¶ 15.) Plaintiff was also removed from a part-time teaching position. In March 2006, Emmons fell ill and was "placed on disability" for one week by her physician. (Id. ¶ 16.) While recovering at home, plaintiff received a phone call from her director, who informed her that she had been terminated from her full-time position because the position was no longer being funded. Following her termination, she was offered a part-time teaching position from Ella Russell, coordinator of the Adult and Continuing Education program ("ACE") at MEC. (Id. ¶ 17.) When plaintiff expressed interest, Russell promised to contact her with further details. However, Russell later told Emmons that Williams barred her from offering the position because he "did not want that woman to work in any of [his] programs." (Id.) Plaintiff filed "numerous" complaints with Edwin Jackson, President of MEC, expressing her belief that she was subjected to discriminatory treatment and wrongfully terminated. (Id. ¶ 18.) On June 19, 2006, Jackson directed Andre Lake to investigate plaintiff's termination. (Id. ¶ 19.) Lake informed plaintiff that she was wrongfully terminated by Williams, and he promised to "right the wrong" by reinstating her in a new position with a higher salary. (Id. ¶ 20.) On August 3, 2006, Lake encouraged plaintiff to apply for a position as an education director at the Young Adult Borough Program ("YABC"). (Id. ¶ 21.) Sandra Smith, director of YABC, offered the position to Emmons with a starting salary of $50,000, and promised to increase the salary up to $52,000 following her initial performance evaluation. (Id.) Plaintiff accepted the position, and, on September 6, 2006, started working at YABC. (Id. ¶ 22.) However, she claims that due to her Trinidadian "ethnicity and/or nationality," Smith "treated [her] differently" and "discriminated against" her by poking fun at her accent, making hurtful comments, and meeting behind closed doors with some of her former colleagues to "disparage" her. (Id.) Smith also frequently berated her, Emmons contends, over trivial issues. (Id. ¶ 23.) For example, when plaintiff requested supplies or to adjust her schedule she was admonished, but such requests were "routinely granted" for other employees. Further, when plaintiff was hired to work at YABC, she informed defendants that she could not work on Friday nights and Saturdays due to her religious practices, but Smith required her to work during those times. (Id. ¶ 26.) When plaintiff reminded Smith of their agreement, she was placed under heightened scrutiny, "disparaged," and "asked . . . to choose between her job and religion." (Id. ¶¶ 24-26.) Despite receiving positive evaluations, and in contravention of Smith's prior promise, plaintiff's salary was later reduced. (Id. ¶ 21.) At the same time, plaintiff's male colleague LeHendro Gadson, the employment coordinator at YABC, who allegedly had less experience and credentials 404 than she, earned a higher salary and was twice promoted. (Id. ¶ 25.) On February 12, 2008, Emmons sustained serious injuries in a car accident and was granted medical leave under the FMLA. (Id. ¶ 27.) While recovering, she received harassing and disparaging phone calls from Smith, who "mocked" plaintiff's injuries and insisted that she "get her ass back to work" or lose her job. (Id. ¶ 28.) Emmons contacted the Client Services office at RFCUNY to complain about "Ms. Smith's incessant threats and harassment." (Id.) On April 10, Emmons informed Smith that she was cleared to work, and planned to return on April 14. (Id. ¶ 29.) However, on April 11, Evelyn Watson, an employee in RFCUNY Human Resources, instructed plaintiff to report to ACE instead of YABC. When plaintiff threatened legal action for discrimination, Watson promised to have Lake's chief of staff, Hannah Guada, contact her and provide her with further details. Emmons was subsequently directed by Guada to contact Smith, who informed her that she had been "loaned" to ACE. (Id.) When plaintiff reported to ACE, the director was surprised to see her and had very short notice concerning the transfer. As a result, Emmons was not provided with office space until "several days later." (Id. ¶ 30.) On May 15, 2008, Watson told plaintiff to go to the New York City Department of Health and Mental Hygiene and inform them that she required fingerprinting for a new job at the Progressive Youth Empowerment program at Beacon Center (Id. at ¶ 31.) Plaintiff also received a letter from Beacon Center's director, Paul Shorter, dated May 13, 2008, stating that she "will be employed" as education director. In a change, on May 27, Smith informed plaintiff that the position had been eliminated. (Id. ¶ 32.) On June 4, 2008, plaintiff received a letter from Lake stating that her employment would be terminated as of June 30, 2008 due to lack of funds. (Id. ¶ 33.) Plaintiff filed numerous complaints seeking an answer as to why she was being "singled out," but June 13 and June 16 emails from Guada and Smith, respectively, explained that the decision was not personal and based solely on a "job roles redesign." (Id. ¶¶ 34-35.) On June 30, Lake informed plaintiff that defendants were investigating her termination and that she would be contacted after the investigation. (Id. ¶ 36.) However, Emmons claims that she was never contacted. (Id.) On July 22, 2008, Emmons filed a discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC"), which subsequently issued a Dismissal and Notice of Rights. Plaintiff filed the instant action on February 10, 2009. Discussion The Court's analysis is complicated by the complaint's overbreadth and lack of clarity. Plaintiff sets forth 20 causes of action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); the Rehabilitation Act, 29 U.S.C. § 701 et seq. ("Rehab Act"); the Equal Pay Act, 29 U.S.C. § 201 et seq. ("EPA"); Title VII, 42 U.S.C. § 2000e et seq.; 42 U.S.C. §§ 1981 & 1985; the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"); New York state Human Rights Law, N.Y. Exec. Law § 296 et seq. ("NYSHRL"); New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. ("NYCHRL"); and New York common law claims of negligent misrepresentation, detrimental reliance, breach of the implied covenant of good faith and fair dealing, injury to reputation, intentional infliction of emotional distress, retaliation and harassment, and tortious interference 405 with contractual relations. With the exception of the tortious interference claim, all of these causes of action are asserted against "all defendants," though seemingly focused on the institutional defendants. As a result, the Court must address each cause of action with respect to not only the institutional defendants CUNY and RFCUNY,[5] but also each of the six individual defendants in both their personal and official capacities. In several instances this "throw everything at the wall and see what sticks" approach is most unwarranted. Perhaps acknowledging such deficiencies, Emmons presents many facts in her opposition papers that do not appear anywhere in the complaint. Of course, these extra-pleading allegations cannot be considered by the Court on a 12(b)(6) motion. In any event, the complaint is deficient in other respects. For example, although the pleading sets forth extensive claims for various forms of damages with respect to each of the claims, it is far less clear what form of equitable relief Emmons seeks, as she requests only "an order of injunction prohibiting defendants from engaging in unlawful employment practices" and "such other relief as the Court may deem just and proper under the circumstances." (Compl. ¶ 128.) Further, she states a general cause of action for "retaliation" (id. ¶ 77-79), but this can only be understood as asserting retaliation claims under every statutory cause of action pled by plaintiff where retaliation is actionable, such as the ADA, Title VII, and the New York human rights laws. Notwithstanding the liberality this Order does accord plaintiff, the Court's willingness to liberally construe the complaint in her favor is far more circumscribed when, as here, plaintiff is represented by counsel. I. Legal Standards A. Motion to Dismiss Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." This rule does not compel a litigant to supply "detailed factual allegations" in support of his claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "A pleading that offers `labels and conclusions' . . . will not do." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955); see also In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). To survive a Rule 12(b) motion, the complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotations omitted); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (interpreting Twombly to require a "plausibility standard" that "obliges a pleader to amplify a claim 406 with some factual allegations in those contexts where such amplification is needed to render the claim plausible") (emphasis omitted), rev'd on other grounds, ___ U.S. ___, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). On a Rule 12(b)(6) motion, the Court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). The court may only consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995). On a rule 12(b)(1) motion to dismiss based on lack of subject matter jurisdiction, however, the Court does not draw all reasonable inferences in favor of plaintiffs. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). Further, "[i]n resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Hamm v. United States, 483 F.3d 135, 137 (2d Cir.2007) (quoting Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002)); see LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir.1999) (noting that "where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings"). B. The Eleventh AmendmentGenerally Defendants argue that several causes of action against CUNY and Jackson and Guada in their official capacities should be dismissed for lack of subject matter jurisdiction due to sovereign immunity. The Eleventh Amendment bars a private suit against a state unless the state consents to being sued or Congress "unequivocally expresses] its intent" to abrogate the state's sovereign immunity through legislation "enacted `pursuant to a valid grant of constitutional authority.'" In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.2007) (quoting Tennessee v. Lane, 541 U.S. 509, 517, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004)). The "Eleventh Amendment extends immunity not only to a state, but also to entities considered arms of the state," such as CUNY. Clissuras, 359 F.3d at 81 (internal quotation marks omitted); see Barry v. City Univ. of N.Y., 700 F. Supp. 2d 447, 451-53 (S.D.N.Y. 2010). The immunity also extends beyond state agencies to state officials at those agencies working on behalf of the state (i.e. in their official capacities). See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-04, 104 S. Ct. 900, 908-10, 79 L. Ed. 2d 67 (1984); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003) ("[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."). One narrow caveat to state sovereign immunity is the doctrine, first enunciated in Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), that "the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief against state officials "to 407 prevent a continuing violation of federal law" because such conduct is not considered to be state action. Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426, 88 L. Ed. 2d 371 (1985); see Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909. In her opposition, plaintiff attempts to shunt her claims into the ambit of Young by arguing that she seeks prospective injunctive relief against Jackson and Guada, "including but not limited to reinstatement." (Pl.'s Opp. Br. at 11.) However, as noted above, the complaint itself is far less clear in its request for equitable relief, and "reinstatement" is never mentioned. On the face of the complaint, the Young exception is not supportable, and, therefore, all claims purportedly brought pursuant to that doctrine are dismissed with leave to replead, if plaintiff can do so in harmony with her obligations under Rules 8 and 11.[6] II. ADA & Rehabilitation Act Plaintiff's third and fifth causes of action assert that defendants' conduct violated the ADA and the Rehab Act, respectively. Emmons claims that she was mistreated, discriminated against, and ultimately terminated "because of her disability." (Compl. ¶¶ 57, 68.) Titles I and II of the ADA collectively prohibit employers and public entities from discriminating against and excluding from benefits "qualified individual[s]" with disabilities. 42 U.S.C. §§ 12112(a), 12132. Under either title, plaintiff must assert that (1) defendants are subject to the ADA; (2) that she is "disabled" within the meaning of the statute; and (3) she was subject to some adverse employment action or denied benefits by reason of having such disability. Bolmer v. Oliveira, 594 F.3d 134, 148 (2d Cir.2010); Giordano v. City of N.Y., 274 F.3d 740, 747 (2d Cir.2001). Similarly, the Rehab Act prohibits "qualified individuals] with a disability" from being "denied the benefits of, or . . . subjected to discrimination" under programs that receive federal financial assistance. 29 U.S.C. § 794(a). Plaintiff's ADA and Rehab Act claims are based on the same factual allegations, and in light of the "identical requirements" imposed by the two statutes, the Court can analyze both causes of action "in tandem." Rodriguez v. City of N.Y., 197 F.3d 611, 618 (2d Cir.1999): see Fulton v. Goord, 591 F.3d 37, 43 (2d Cir.2009) (noting that the prima facie claims "under either the ADA or the Rehabilitation Act . . . are identical for our purposes"); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003) ("[T]he standards adopted by Title II of the ADA . . . are generally the same as those required under section 504 [of the Rehab Act]."); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146-49 (2d Cir.2002) (conflating analysis of ADA and Rehab Act claims). As an initial matter, individual defendants are not subject to personal liability as a matter of law under either statute. See Spiegel v. Schulmann, 604 F.3d 72, 408 79-80 (2d Cir.2010); Fox v. State Univ. of N.Y., 497 F. Supp. 2d 446, 449-50 (E.D.N.Y. 2007); Scaggs v. N.Y. State Dep't of Educ., 06-CV-799, 2007 WL 1456221, at 15 n. 12, 2007 U.S. Dist. LEXIS 35860, at 53 n. 12 (E.D.N.Y. May 16, 2007). Therefore, all ADA and Rehab Act claims against Jackson, Lake, Smith, Guada, Shorter, and Watson in their individual capacity are dismissed with prejudice. The Court also dismisses with prejudice plaintiff's ADA and Rehab Act claims against the individual RFCUNY employees in their official capacities, because they are wholly redundant to plaintiff's claims against RFCUNY itself See Loadholt v. Dep't of Corr. Servs., 09-CV-553, 2009 WL 4230132, at 3, 2009 U.S. Dist. LEXIS 109935, at 10 (W.D.N.Y. Nov. 24, 2009) ("[W]here . . . an official capacity claim against an individual defendant would be redundant, courts in this Circuit have dismissed ADA claims against individual defendants in their official capacities."); B.D.S. v. Southold Union Free Sch. Dist., 08-CV-1319, 2009 WL 1875942, at 21, 2009 U.S. Dist. LEXIS 55981, at 64-65 (E.D.N.Y. June 24, 2009) (dismissing "official capacity" ADA and Rehabilitation Act claims sua sponte with prejudice as redundant of claims against employer school district); Fox, 497 F.Supp.2d at 451 (dismissing ADA claims against CUNY employees in their official capacities as "redundant" with claims against the university itself, and noting that "this Court and others have held that official capacity claims are not viable under the ADA"). Additionally, the Eleventh Amendment requires dismissal with prejudice of the ADA claims against CUNY and Jackson and Guada in their official capacities.[7] "Title I [of the ADA] does not abrogate the sovereign immunity enjoyed by the State of New York or its agencies and officials." Canales-Jacobs v. N.Y. State Office of Court Admin., 640 F. Supp. 2d 482, 498 (S.D.N.Y.2009) (citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 961, 148 L. Ed. 2d 866 (2001)). In her opposition brief, Emmons disclaims reliance on Title I, which deals with employment discrimination, and instead claims protection under Title II, which addresses discrimination by public entities. Although district courts in this Circuit have split on the issue, the Court agrees with well-reasoned precedent that Title I is the exclusive remedy for employment discrimination claims, even if the employer is a public entity.[8]See Scherman v. N.Y. State Banking Dep't, 09-CV-2476, 2010 WL 997378, at 6-10, 2010 U.S. Dist. LEXIS 26288, at 22-34 (S.D.N.Y. Mar. 19, 2010); Chiesa v. N.Y. State Dep't of Labor, 638 F. Supp. 2d 316, 321 (N.D.N.Y. 2009); Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324, 333 (E.D.N.Y.2007). But see Olson v. New York, 04-CV-419, 2005 WL 5885368, at 4-5, 2005 U.S. Dist. LEXIS 44929, at 12-13 (E.D.N.Y. Mar. 9, 2005). Sovereign immunity also extends to claims of retaliation brought pursuant to Title V of the ADA. Moshenko v. State Univ. of N.Y. at Buffalo, 07-CV-116, 2009 WL 5873236, at 3-4, 2009 U.S. Dist. LEXIS 125069, at 7-8 (W.D.N.Y. Sept. 16, 2009); Chiesa, 638 F.Supp.2d at 323. Plaintiff's purported Title II claims are dismissed. The remaining discrimination claims against RFCUNY under the ADA 409 and Rehab Act fail because they do not satisfy Iqbal. Plaintiff does notand cannotsufficiently allege that she has a "disability." Both statutes define a disabled individual as one who "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Weixel, 287 F.3d at 147 (quoting 29 U.S.C. § 705(20)(B) & 42 U.S.C. § 12102(2)); see Garvin v. Potter, 367 F. Supp. 2d 548, 561 (S.D.N.Y.2005) (noting that the definition of a "disabled person" under the Rehabilitation Act is "almost identical to that of a disabled person under the ADA"). Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing . . . and working," 29 C.F.R. § 1630.2(h)(2), (i), and must be "of central importance to daily life." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 691, 151 L. Ed. 2d 615 (2002). However, "the inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working." Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 05-CV-5106, 2009 WL 1405203, at 8, 2009 U.S. Dist. LEXIS 40616, at 25 (E.D.N.Y. May 24, 2009) (internal quotation marks and citations omitted). Here, the only relevant allegations in the complaint are that (1) plaintiff "became sick and was placed on disability by her physician for [a] one week period" in March 2006; and (2) in February 2008, plaintiff was injured in a car accident, was "placed on an indefinite disability or sick leave by her physician," and was cleared to return to work about two months later. (Compl. ¶¶ 16, 27-29.) Plaintiff's complaint fails to allege any substantial physical limitations,[9] but even if it did, the fact that Emmons returned to work so quickly without claim of limitation undermines any such cause of action; "short term, temporary restrictions are not `substantially limiting' and do not render a person `disabled' within the meaning of the ADA." Verdi v. Potter, 08-CV-2687, 2010 WL 502959, at 5, 2010 U.S. Dist. LEXIS 11053, at 17-18 (E.D.N.Y. Feb. 9, 2010) (internal quotation marks omitted); see Toyota, 534 U.S. at 198, 122 S. Ct. 681; see, e.g., Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir.1999) (finding employee not disabled under ADA where temporary physical injuries prevented him from working for three and a half months). Nor can Emmons find her way under the aegis of the disability statutes by claiming that defendants "regarded" her as disabled, because plaintiff alleges the oppositenamely, that Smith doubted that her injuries were more than "minor" and that plaintiff was home relaxing. (Compl. ¶ 28.) Since plaintiff cannot plausibly amend her complaint to allege that she has a "disability", the discrimination claims against RFCUNY are dismissed with prejudice. See Rogers v. City of N.Y., 359 Fed.Appx. 201, 203 (2d Cir.2009) (affirming 12(b)(6) dismissal of ADA claims where complaint failed to assert that shortness of breath when climbing stairs constituted a "substantial limitation of a major life activity"); Verdi, 2010 WL 502959, at 7, 2010 U.S. Dist. LEXIS 11053, at 25-26 (dismissing Rehab Act claim and denying leave to amend where impairment lasted only two months and plaintiff "fail[ed] to allege the threshold requirement that Plaintiff was `disabled'"); Lee v. Sony BMG Music Entm't, Inc., 557 F. Supp. 2d 418, 425 (S.D.N.Y.2008) (dismissing ADA claims 410 where plaintiff did not "even identify what her disability isshe merely states that she (1) suffered unspecified . . . injuries following the altercation . . . and (2) was `forced to go on leave'"). On the other hand, plaintiff's retaliation claims against RFCUNY under the ADA and Rehab Act are sufficiently pled to survive the 12(b)(6) motion. Emmons need not allege a disability to sustain a retaliation claim, but must allege that (1) she engaged in an activity "protected by the ADA"; (2) defendants were aware of this activity; (3) defendants took adverse employment action against her; and (4) a causal connection existed between the alleged adverse action and the protected activity. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). Plaintiff stated that she complained to RFCUNY Client Services about Smith's "harassment" during her sick leave in 2008. Although the complaint does not specifically allege that plaintiff complained about being discriminated against on the basis of having a disabilitythe sort of activity that ADA Title V seeks to protect, see 42 U.S.C. § 12203(a)such complaints can be reasonably inferred from the pleading. Of course, plaintiff will have to prove at a later stage of the litigation that she was actually engaged in such protected activity. Therefore, the only ADA and Rehab Act claims that survive the instant motion to dismiss are the retaliation claims asserted against RFCUNY. All of plaintiff's claims against CUNY and the individual defendants in both their personal and official capacities, and plaintiff's discrimination claims against RFCUNY are dismissed with prejudice. III. Title VII Emmons's second cause of action asserts claims pursuant to Title VII, alleging that defendants refused to promote and pay her equal wages, brought false allegations against her, and fired her based on unlawful discrimination due to her sex, religion, national origin, race, and color. (Comp. ¶¶ 47-52.) Title VII not only forbids employment discrimination based on these criteria, but also prohibits an employer from retaliating against an employee for opposing the employer's potentially discriminatory practices. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56, 126 S. Ct. 2405, 2408, 165 L. Ed. 2d 345 (2006); Matima v. Celli, 228 F.3d 68, 78 (2d Cir.2000). On this claim, plaintiff also alleges that she was berated and subjected to harassment by her superiors, and disparaged on account of her religious observances. (Compl. ¶¶ 22, 26.) First off, though, individuals are not subject to liability pursuant to Title VII. Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir.2009); Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.2004). Therefore, all Title VII claims against individual defendants Jackson, Lake, Smith, Guada, Shorter, and Watson in their personal capacities are dismissed with prejudice. Also dismissed with prejudice are plaintiff's Title VII claims against the individual defendants in their official capacities. Although the Second Circuit has not yet explicitly decided the issue, "many recent decisions in this Circuit have rejected Title VII official capacity claims." Martin v. State Univ. of N.Y., 06-CV-2049, 704 F. Supp. 2d 202, 2010 WL 1257782, at 25, 2010 U.S. Dist. LEXIS 29297, at 73-74 (E.D.N.Y. Mar. 26, 2010); Harris v. Buffardi, 08-CV-1322, 2009 WL 3381564, at 3-4, 2009 U.S. Dist. LEXIS 96724, at 8-9 (N.D.N.Y. Oct. 19, 2009); Carmody v. Vill. of Rockville Ctr., 661 F. Supp. 2d 299, 326 (E.D.N.Y.2009). Yet, even if official capacity claims are permissible, the Court 411 would still dismiss such claims in this case because they, like the ADA and Rehab Act official capacity claims, see supra Part II, are redundant in light of the Title VII claims brought against CUNY and RFCUNY themselves. See Saunders v. N.Y. City Dep't of Educ., 07-CV-2725, 2010 WL 331679, at 8, 2010 U.S. Dist. LEXIS 4544, at 21-22 (E.D.N.Y. Jan. 19, 2010) (dismissing plaintiff's Title VII claims sua sponte against individual defendants because "individuals are not subject to liability under those statutes and any `official capacity' claim would be redundant to plaintiff's claims against [the public entity]"). Defendants do not dispute that plaintiff has stated a Title VII claim against RFCUNY. However, they assert that CUNY is not a proper defendant because it was not plaintiff's "employer" within the meaning of the statute, and that, in any event, any allegations regarding discrete acts by defendants prior to September 26, 2007 are time-barred. On the first point, defendants contend that "the Complaint is notably devoid of any allegation that CUNY was Plaintiff's employer under any relevant statutory definition." (Def. CUNY's Br. at 14.) Nonetheless, while the alleged conduct relevant to the Title VII claims directly involves individuals employed by RFCUNY, the complaint alleges that "[a]t all times relevant and material to this case, CUNY, RFCUNY, and MEC were characterized as a single integrated employer," so the employer status has been sufficiently pled as to all institutional defendants. (Compl. ¶ 9.) Defendants also argue that "CUNY was not Plaintiff's employer as a matter of law" under Title VII and other statutes. (Def. CUNY's Reply Br. at 9.) But, this contention, at its heart, requests that the Court conduct a fact-intensive inquiry into the nature of the relationship between CUNY and RFCUNY, including applying "common law principles of agency," and examining whether "financial benefit is obtained by the purported employee from the employer." By defendants' admission, that inquiry requires consideration of a variety of "factors," including "salary or other wages, employee benefits, such as health insurance, vacation, sick pay, or the promise of any of the foregoing."[10] (Id.; quoting York v. Ass'n of the Bar of the City of N.Y., 286 F.3d 122, 123-26 (2d Cir.2002)). CUNY and RFCUNY are not such disparate entities that this Court can determine, without the benefit of a factual record, that CUNY per se cannot qualify as Emmons's "employer." On the contrary, there is precedent indicating that, at least in some circumstances, the two are sufficiently related for CUNY to be held liable. See, e.g., Fox v. City Univ. of N.Y., 94-CV-4398, 1996 WL 384915, at 7, 1996 U.S. Dist. LEXIS 9594, at 20-22 (S.D.N.Y. July 10, 1996) (noting that "[t]he whole purpose of [RFCUNY] was to streamline the process of procuring and implementing grants for the colleges of [CUNY]" and that "[RFCUNY] acted as a single integrated unit with the University and the individual colleges"); cf. Zhao v. State Univ. of N.Y., 472 F. Supp. 2d 289, 313-15 (E.D.N.Y.2007) (refusing to dismiss Title VII claims against CUNY's "Research Foundation" because of the "intertwined relationship" between the foundation 412 and the university); Campbell v. City Univ. Constr. Fund, 98-CV-5463, 1999 WL 435132, at 3, 1999 U.S. Dist. LEXIS 9575, at 8-9 (S.D.N.Y. June 25, 1999) ("There appears to be enough intermingling of the staff and functions of CUNY. . . and the Research Foundation for plaintiff's ADEA and ADA claims to proceed against CUNY."). Where such factual issues persist, dismissal at the Rule 12 stage is wholly inappropriate. Putting aside CUNY's corporate muddle, plaintiff's Title VII claims against CUNY and RFCUNY are still subject to a time bar. "Before an individual may bring a Title VII suit in federal court, the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency . . . within 300 days of the alleged discriminatory conduct." Williams v. N. Y. City Hous. Auth., 458 F.3d 67, 69 (2d Cir.2006); 42 U.S.C. § 2000e-5(e)(1). Emmons filed her administrative charge with the EEOC on July 22, 2008, meaning that any Title VII claims concerning acts that occurred prior to September 26, 2007 are time-barred. Defendants note that several of plaintiff's allegations, including her claims that male colleagues were earning higher salaries in 2005 and that she was terminated from the Immersion Program in March 2006 due to discrimination, occurred prior to the limitations date. Plaintiff argues, on the other hand, that defendants' discriminatory acts prior to the bar date are saved by the "continuing violation" doctrine, which provides that "if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir.2004) (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir.1993)). "If a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.2001) (internal quotation marks and citations omitted). Plaintiff seeks to mold her claim accordingly by alleging a "policy, pattern and practice of intentional and willful exclusion of protected employees from promotions" in violation of Title VII. (Compl. ¶ 49.) Mere allegation of such a continuing practice does not guarantee a clear path. Title VII "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period," even when they are "related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 113, 122 S. Ct. 2061, 2068, 2072, 153 L. Ed. 2d 106 (2002); see Patterson, 375 F.3d at 220. The continuing violation doctrine only "allow[s] the inclusion of action whose discriminatory character was not apparent at the time they occurred" and "is not intended to allow employees a second chance to bring stale claims once the statute of limitations has passed." Warren v. N. Shore Univ. Hosp. at Forest Hills, 03-CV-0019, 2006 WL 2844259, at 5, 2006 U.S. Dist. LEXIS 73302, at 14 (E.D.N.Y. Sep. 29, 2006). "Discrete" acts that are easy to identify, such as "termination, failure to promote, [and] denial of transfer," will not be saved even where a plaintiff alleges a continuing policy of discrimination or retaliation. Morgan, 536 U.S. at 114, 122 S. Ct. 2061. The discriminatory actions alleged by Emmons to have occurred prior to September 26, 2007 were discrete and therefore 413 time-barred. For example, plaintiff claims that she was harassed in retaliation for her complaints regarding sex discrepancies in pay, and that she was relieved of a part time teaching position and fired while she was out on disability. These actions do not directly bear on plaintiff's allegation of a policy denying promotions based on unlawful discrimination. Since "continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination," Patterson, 375 F.3d at 220 (internal quotation marks omitted), any Title VII claims of discrimination and retaliation directed at defendants' alleged actions prior to September 26, 2007 are dismissed with prejudice, for they cannot be saved by the bald assertion that they are connected somehow to what transpired later. Yet, to the extent that the complaint alleges a Title VII claim that defendants' actions constituted a hostile work environment, such a claim would permit consideration of conduct prior to September 26, 2007. See Morgan, 536 U.S. at 122, 122 S. Ct. 2061 ("A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period."). The complaint asserts such a hostile work environment claim but does so only under NYSHRL and NYCHRL. More importantly, the Court does not foreclose the possibility that plaintiff intended to incorporate hostile work environment claims in her Title VII cause of action, and she is permitted to amend her pleading on that basis, if she believes such claim is warranted. In summary, plaintiff's Title VII claims against all of the individual defendants, in both their personal and official capacities, are dismissed with prejudice. Plaintiff's claims against CUNY and RFCUNY survive, but allegations of discrimination and retaliation based on conduct that occurred prior to September 26, 2007 are time-barred. Plaintiff may amend her pleading to incorporate a Title VII claim of a hostile work environment. IV. Equal Pay Act Emmons's sixth cause of action asserts a claim pursuant to the EPA. Although plaintiff repeats stock language asserting that her rights were violated by defendants' "refusing to promote the plaintiff," "terminat[ing] her employment," and other unlawful conduct, the EPA, true to its name, only "prohibits the payment of unequal wages to employees on the basis of sex." Jamilik v. Yale Univ., 362 Fed. Appx. 148, 149 (2d Cir.2009); 29 U.S.C. § 206(d). To state a claim for EPA relief, plaintiff must assert that: (1) her employer pays different wages to employees of the opposite sex; (2) employees paid disparate salaries perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. Klein v. N.Y. Univ., 07-CV-160, 2008 WL 3843514, at 2-3, 2008 U.S. Dist. LEXIS 62540, at 8-9 (S.D.N.Y. Aug. 14, 2008); Bronzini v. Classic Sec. LLC, 08-CV-475, 2009 WL 102140, at 7, 2009 U.S. Dist. LEXIS 2865, at 19 (S.D.N.Y. Jan. 15, 2009) (citing Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999)). The only relevant allegations in the complaint are that: (1) at the 2005 employee retreat, Emmons believed that her male colleagues were earning higher salaries, and complained about sex discrimination; and (2) when Emmons was working at YABC, the employment coordinator, LeHendro Gadson, was "elevated above the plaintiff," "promoted on at least two separate occasions," and "apparently earned more money than [Emmons] even 414 though Mr. Gadson hardly worked." (Compl. ¶¶ 13, 25.) Without more, these allegations are insufficient to satisfy Iqbal. Plaintiff's belief that her male colleagues were receiving more compensation than women in 2005 is not supported by any allegation other than her own speculation at that time. Plaintiff provides more detail with respect to her 2006 claim by discussing an employee who allegedly received more compensation, but she still fails to allege in the complaint that Gadson's employment coordinator position was one of comparable skill, effort, and/or responsibility relative to plaintiff's position. See Rose v. Goldman, Sachs & Co., Inc., 163 F. Supp. 2d 238, 242 (S.D.N.Y.2001) (noting that plaintiff "must show that the two positions are `substantially equal' in skill, effort and responsibility") (quoting Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir.2001)); see also Virgona v. Tufenkian Imp.-Exp. Ventures, Inc., 05-CV-10856, 2008 WL 4356219, at 8, 2008 U.S. Dist. LEXIS 72139, at 7 (S.D.N.Y. Sept. 23, 2008) (noting that "where jobs are merely comparable, an action under the Equal Pay Act will not lie") (quoting Lambert, 10 F.3d at 56). Accordingly, plaintiff's EPA claims against all defendants are dismissed, but without prejudice and with leave to replead if plaintiff can do so in compliance with Rules 8 and 11.[11] V. 42 U.S.C. §§ 1981 & 1985 Plaintiff's first and fifteenth causes of action assert claims against all defendants pursuant to 42 U.S.C. §§ 1981 and 1985, respectively, alleging that they, "in furtherance of their policy and practice and in their respective individual capacities]," discriminated against her right to make and enforce contracts, and conspired to deprive her of her rights by placing her under surveillance and obtaining her fingerprints under false pretenses.[12] (Compl. ¶¶ 44, 98-99.) To start with, the §§ 1981 and 1985 causes of action against CUNY and Jackson and Guada in their official capacities are barred by sovereign immunity and dismissed. See Ding v. Bendo, 03-CV-1237, 2006 WL 752824, at 3-4, 2006 U.S. Dist. LEXIS 24339, at 10-11 (E.D.N.Y. Mar. 23, 2006); Moshenko, 2009 WL 5873236, at 4, 2009 U.S. Dist. LEXIS 125069, at 9. Although it is not settled law whether § 1985 abrogates New York's immunity, "it is well-settled that a State and its instrumentalities are not `persons' subject to suit under § 1983 . . . and there is no reason to suspect the Congress intended the term `persons' to take on a different meaning in § 1985." Ding, 2006 WL 752824, at 4 n. 2, 2006 U.S. Dist. LEXIS 24339, at 11 n. 2 (internal citations omitted); see also Harrison v. Potter, 323 F. Supp. 2d 593, 604 (S.D.N.Y.2004) (no waiver of sovereign immunity for claims 415 under §§ 1983 and 1985). Either way, the Court holds that it lacks subject matter jurisdiction over the §§ 1981 and 1985 claims advanced against CUNY and Jackson and Guada in their official capacities. A. Section 1981 More specifically, § 1981 protects against racial discrimination. To state a claim, plaintiff must allege: (1) she is a member of a racial minority; (2) an intent by defendants to discriminate on the basis of race; and (3) the discrimination concerned rights such as plaintiff's ability to make and enforce contracts, sue, be party to suit, give evidence, or fully and equally enjoy the benefit of all laws and proceedings for the security of persons and property. See 42 U.S.C. § 1981; McNeill v. New York, 242 Fed.Appx. 777, 778 (2d Cir.2007); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Section 1981's conception of "race" also protects "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S. Ct. 2022, 2028, 95 L. Ed. 2d 582 (1987); see United States v. Nelson, 277 F.3d 164, 178 (2d Cir.2002). However, Emmons errs to the extent that she attempts to premise her § 1981 claims "on the basis of disability, sex, religion, [and] national origin," (Compl. ¶¶ 43-45), and any such claims are dismissed with prejudice. See Walker v. N.Y. City Dep't of Corr., 01-CV-1116, 2008 WL 4974425, at 11, 2008 U.S. Dist. LEXIS 97109, at 32 (S.D.N.Y. Nov. 18, 2008); Chin v. N.Y. City Hous. Auth., 575 F. Supp. 2d 554, 561 n. 3 (S.D.N.Y.2008); Ritterband v. Hempstead Union Free Sch. Dist., 06-CV-6628, 2008 WL 3887605, at 7, 2008 U.S. Dist. LEXIS 65423, at 20 (E.D.N.Y. Aug. 20, 2008). Plaintiff's claims of § 1981 discrimination (but not retaliation) based on her race, ethnicity, and/or ancestry are dismissed without prejudice.[13] In her opposition, Emmons acknowledges that the complaint contained an error insofar as she conflated her Trinidadian national origin with her West Indian ethnicity, the latter of which is not referenced in the complaint. (PL's Opp. Br. at 10 n. 10.) Plaintiff may correct this error and premise a § 1981 claim on her West Indian ancestry and ethnicity in an amended complaint, but this is not the only 12(b)(6) obstacle that she must overcome to state plausible claims against several of the individual defendants. More pointedly, she only alleges one instance where she was subjected to discrimination on the basis of her ethnicity: in September 2006, Smith and other unnamed colleagues at YABC "treated [her] differently," made fun of her, mocked her accent, and increased surveillance of her activities. (Compl. ¶ 22-24.) Even assuming arguendo that these activities implicated a right protected by § 1981, the complaint does not allege any defendant's personal involvement in discrimination, aside from Smith, sufficient to establish individual liability under § 1981. See Patterson, 375 F.3d at 229 ("In order to make out a claim for individual liability under § 1981, a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action. . . . Personal liability under § 1981 must be predicated on the actor's personal involvement.") (internal quotation marks omitted). Although personal involvement by a supervisor "includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who 416 committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring," id., plaintiff's allegations regarding involvement in racial or ethnic discrimination by Jackson, Guada, Lake, Shorter, and Watson are conclusory. Jackson's and Guada's alleged "power to hire and fire" (Pl's Opp. at 23), for example, is insufficient to claim their involvement. B. Section 1985 Section 1985(3) creates a cause of action where "two or more persons in any State or Territory conspire . . . for the purpose of depriving . . . any person . . . of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). To allege a violation, plaintiff must claim: (1) a conspiracy; (2) for the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a United States citizen. United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3356, 77 L. Ed. 2d 1049 (1983). Moreover, a § 1985(3) violation "must be motivated by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971)). In other words, "the intended victims must be victims not because of any personal malice the conspirators have toward them, but because of their membership in or affiliation with a particular class." Id. at 850, 103 S. Ct. 3352. In this light, plaintiff's § 1985 claim is inadequately pled. First, for the same reasons stated above with respect to the § 1981 claim, Emmons has failed to sufficiently plead racial or other class-based discrimination. Rather, she claims a conspiracy to place her under increased surveillance and acquire her fingerprints. As a result, it is unclear how plaintiff alleges that she was deprived of "equal protection of the laws, or of equal privileges and immunities under the laws." See Friends of Falun Gong v. Pac. Cultural Enter., 288 F. Supp. 2d 273, 279 (E.D.N.Y.2003) ("[T]o maintain a claim pursuant to § 1985(3), there must be some predicate constitutional right which the alleged conspiracy violates."). Second, to properly allege a § 1985 conspiracy, plaintiff must "provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 110 (2d Cir.2003) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). "[A] complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997). Here, plaintiff's allegations regarding a concerted effort are speculative; she is unable to demonstrate anything beyond the fact that more than one individual defendant may have been "involved in the events of which [plaintiff] complains," which alone "does not establish a conspiracy."[14]Parker v. 417 City of N.Y., 05-CV-1803, 2008 WL 110904, at 9, 2008 U.S. Dist. LEXIS 791, at 25 (S.D.N.Y. Jan. 7, 2008); see Morpurgo v. Inc. Vill. of Sag Harbor, 07-CV-1149, 2010 U.S. Dist. LEXIS 21109, at 76 (E.D.N.Y. Feb. 17, 2010) (dismissing § 1985 claim because "[a]lthough Plaintiff makes some allegations of relationships between the alleged co-conspirators, she has done so by way of freewheeling and speculative allegations which fail to raise a reasonable inference of a conspiracy."); Harris v. Queens County Dist. Atty's. Office, 08-CV-1703, 2009 U.S. Dist. LEXIS 105912, at 23 (E.D.N.Y. Sept. 15, 2009). The claims, consequently, fail, and are dismissed without prejudice. VI. Family Medical and Leave Act Emmons's fourth claim is brought under the FMLA, which grants to eligible employees the right to take up to 12 work weeks per year of unpaid leave due to a serious health condition that prevents them from performing their work functions. 29 U.S.C. § 2612(a)(1). The statute provides that the employee has the right to return to a prior position or an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a). "The FMLA `creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency) in any Federal or State court of competent jurisdiction' should that employer `interfere with, restrain, or deny the exercise of FMLA rights.'" Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir.2006) (quoting Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25, 123 S. Ct. 1972, 1976, 155 L. Ed. 2d 953 (2003)). Plaintiff may advance a FMLA action on two different theories: "interference" and "retaliation." Potenza v. City of N.Y., 365 F.3d 165, 167 (2d Cir.2004). A prima facie case of interference is established when a plaintiff demonstrates that: (1) she is an "eligible employee" under the FMLA; (2) defendants constitute an employer under the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave notice to defendants of her intention to take leave; and (5) defendants denied her benefits to which she was entitled by the FMLA. Roberts v. Ground Handling, Inc., 499 F. Supp. 2d 340, 351 (S.D.N.Y.2007). A prima facie case of retaliation is established when a plaintiff demonstrates: (1) she exercised rights protected under the FMLA; (2) she was qualified for his position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent. Potenza, 365 F.3d at 168. The operative allegations in the complaint relate to plaintiff's February 2008 injury. Emmons alleges that following her car accident, she requested, and was granted by defendants, FMLA leave. During this period of leave, she alleges that Smith threatened and harassed her, insisting that she return to work. Further, when she was ready to return to work approximately two months later, she was told to report to a different location, and learned that her prior position had been eliminated. Plaintiff also states that 418 when she transferred to the new location, her new supervisors were "surprised" by her arrival and did not provide her with office space for several days. Within two months of the transfer, she was fired. (Compl. ¶ 27-33.) Once again, sovereign immunity mandates dismissal with prejudice of the FMLA claims against CUNY and Jackson and Guada in their official capacities. The Second Circuit has held that "Congress did not have the authority to abrogate the sovereign immunity of the states on claims arising under the provisions at issue here,. . . medical leave to deal with one's own `serious health condition,' 29 U.S.C. § 2612(a)(1)(D), and the related retaliation section, see id. § 2614(a)(1), at least when used in conjunction with Section 2612(a)(1)(D)." Hale v. Mann, 219 F.3d 61, 69 (2d Cir.2000). Emmons's allegation that she had "serious injuries" leaves no doubt that she took medical leave to deal with her own health, and thus she cannot pierce sovereign immunity.[15] Plaintiff also fails to state an "interference" claim against the remaining parties because she has not sufficiently alleged that she was denied any benefits to which she was entitled under the FMLA. Plaintiff's admission that her request for leave was granted and that she returned to work upon its conclusion forecloses her from arguing that she was denied benefits while on leave. The mere fact that plaintiff has alleged that she was "harassed" by Smith during her leave does not establish that any of her actual benefits were denied or subject to interference. Nor is plaintiff's transfer to another position upon her return sufficient to demonstrate a denial, because she has failed to allege that the new position was not "equivalent" to her prior position "in terms of pay, benefits and working conditions, including privileges, perquisites and status." 29 C.F.R. § 825.215(a); see Vlahos v. Schroeffel, 02-CV-139, 2006 WL 544444, at 4, 2006 U.S. Dist. LEXIS 95814, at 13-15 (E.D.N.Y. Mar. 6, 2006). The only information plaintiff provides regarding her new position at ACE is that it was "situated at a different location," her supervisors "were only given a short notice concerning her transfer," and she was not provided with "office space until several days" following the transfer. (Compl. ¶¶ 29-30.) None of these allegations constitute a denial of benefits. See Alessi v. Monroe County, 07-CV-6163, 2010 WL 161488, at 8-9, 2010 U.S. Dist. LEXIS 2746, at 26 (W.D.N.Y. Jan. 13, 2010). The "interference" claims are therefore dismissed with prejudice. Not all FMLA claims are foreclosed, however. Emmons's allegation that she was fired approximately two months following her FMLA leave does state a claim for FMLA retaliation. Drawing all inferences in plaintiff's favor, the complaint sufficiently alleges that her employers were frustrated and upset with her taking of FMLA leave, and, as a result, took steps to "punish" her or force her out of her employment, including the hasty transfer to the other location, refusing to offer the Beacon Center position, and ultimately firing her. Without question, therefore, plaintiff adequately states a FMLA retaliation claim against RFCUNY. 419 Not necessarily so, though, with respect to the liability of the individual defendants. These defendants argue that plaintiff's claims fall short of Iqbal compliance. The FMLA permits actions against an "employer," which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer," 29 U.S.C. § 261 1(4)(A)(ii), and has been interpreted to "extend [] to all those who controlled in whole or in part [a plaintiff's] ability to take a leave of absence and return to her position." Wilson v. Am. Broad. Co., 08-CV-1333, 2009 U.S. Dist. LEXIS 60163, at 14 (S.D.N.Y. Mar. 31, 2009) (quoting Johnson v. A.P. Prods., Ltd., 934 F. Supp. 625, 629 (S.D.N.Y.1996)); see Astudillo v. U.S. News & World Report, 02-CV-7902, 2005 WL 23185, at 2, 2005 U.S. Dist. LEXIS 92, at 5 (S.D.N.Y. Jan. 6, 2005) (denying motion to dismiss FMLA claim where allegations "indicate[d] some control [by defendant] over [plaintiff]'s employment"). Still, in this case, reasonable inferences can be drawn from the complaint that Jackson, Guada, Lake, Smith, and Watson could have had some degree of control over the hiring, firing, or granting of FMLA leave to plaintiff, and thus they could be deemed "employers" under the statute. And, at this stage, the Court so finds. However, under no circumstances can the pleading be understood to allege that Shorter, the Beacon Center director, had any power to control Emmons's employment at YABC or any other position she held. As to him, the claim does not lie and is dismissed. VII. State Law Claims Plaintiff asserts against all defendants causes of action pursuant to the NYSHRL and NYCHRL, and common law claims for negligent misrepresentation, detrimental reliance, "retaliation and harassment," breach of the implied covenant of good faith and fair dealing, "injury to reputation," and intentional infliction of emotional distress. She also advances a cause of action for tortious interference with contractual relations against individual defendant Lake. A. Sovereign Immunity "It is well-established that `[t]he Eleventh Amendment bars federal suits against state officials on the basis of state law.'" Carvel v. Cuomo, 357 Fed. Appx. 382, 383 (2d Cir.2009) (quoting Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir.1996)); see Pennhurst, 465 U.S. at 106, 104 S. Ct. 900. Since state law causes of action, whether common law or statutory, cannot constitute an abrogation of state sovereign immunity by Congress, a federal court can only obtain subject matter jurisdiction over a state on such claims where the state has waived its immunity. Clissuras, 359 F.3d at 81 n. 3. Neither a federal court's pendent jurisdiction "nor any other basis of jurisdiction may override the Eleventh Amendment," and the state's immunity against state law claims extends to state officials. Pennhurst, 465 U.S. at 121, 104 S. Ct. 900; see Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 540-41, 122 S. Ct. 999, 1004, 152 L. Ed. 2d 27 (2002). Accordingly, given the absence of waiver, "[c]laims under state law against CUNY are barred by the Eleventh Amendment" and are dismissed with prejudice. Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y.1998).[16] Similarly, all state law 420 claims brought against Jackson and Guada in their official capacities are dismissed with prejudice for lack of subject matter jurisdiction.[17] B. New York State and New York City Human Rights Laws Plaintiff's eighth, ninth, and tenth causes of action seek relief on claims brought pursuant to New York state Executive Law § 296 ("NYSHRL"), alleging a hostile work environment and unlawful termination on account of her "disability, sex, religion, national origin, race and color," and unlawful retaliation. (Compl. ¶¶ 80-85.) Her eleventh, twelfth, and thirteenth causes of action re-assert the same claims, but this time pursuant to the Administrative Code of the City of New York, § 8-107.1(a) ("NYCHRL"). (Id. ¶¶ 86-91.) Defendants do not seek to dismiss any of these claims as brought against RFCUNY or the individual RFCUNY defendants. However, they argue that plaintiff has failed to allege conduct by Jackson or Guada that would support a plausible personal capacity claim against them. Two separate provisions of NYSHRL § 296 create potential liability. Section 296(1)(a) provides that it "shall be an unlawful discriminatory practice [f]or an employer . . ., because of the age, race,. . . color, national origin, . . . sex, [or] disability . . . of any individual, . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." Individual liability under § 296(1) lies where a defendant "actually participates in the conduct giving rise to discrimination", Schanfield v. Sojitz Corp. of Am., 663 F. Supp. 2d 305, 344 (S.D.N.Y.2009) (quoting Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004)), but is "limited to individuals with ownership interest or supervisors, who themselves, have the authority to hire and fire employees." Banks v. Corr. Servs. Corp., 475 F. Supp. 2d 189, 199 (E.D.N.Y. 2007) (internal quotation marks omitted); see McCoy v. City of N.Y., 131 F. Supp. 2d 363, 376 (E.D.N.Y.2001). Section 296(6) provides for "aiding and abetting'" liability for § 296(l)(a) violations, explaining that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article or to attempt to do so." N.Y. Exec. Law § 296(6). To be found liable under this provision, an individual need not have supervisory or hiring and firing power, see Banks, 475 F.Supp.2d at 200, but still must have "actually participated in the conduct giving rise to the claim of discrimination" and engaged in "direct, purposeful, participation." Robles v. Goddard Riverside Cmty. Ctr., 08-CV-4856, 2009 WL 1704627, at 3, 2009 U.S. Dist. LEXIS 51500, at 8 (S.D.N.Y. June 17, 2009) (quoting Brice v. Sec. Operations Sys., Inc., 00-CV-2438, 2001 WL 185136, at 3-4, 2001 U.S. Dist. LEXIS 1856, at 10-11 (S.D.N.Y. Feb. 26, 2001)). 421 Since § 296 "uses virtually identical language" to § 8-107 of the NYCHRL, claims under both statutes are "subject to the same analysis."[18]Dunson v. Tri-Maintenance & Contractors., Inc., 171 F. Supp. 2d 103, 113-14 (E.D.N.Y.2001); see Schanfield, 663 F.Supp.2d at 344. Once again the Court's analysis is complicated by the plaintiff's failure to clearly allege her causes of action, and in not specifying which provision of § 296 and § 8-107 applies to each of the individual defendants. Assuming, however, that Emmons incorporates both theories of liability against both Jackson and Guada, the NYSHRL and NYCHRL claims against them under both § 296(1)/ § 8-107(1)(a) and § 296(6)/ § 8-107(6) survive the 12(b)(6) motionalbeit by the slimmest of marginsbecause plaintiff has sufficiently alleged their personal involvement. With respect to Jackson, plaintiff's unpled allegation surfacing in her opposition brief that Jackson "refused to take any actions to reinstate plaintiff since June 2008" is insufficient to establish that he was discriminating against her on the basis of race, sex, or any other trait. (Pl.'s Opp. Br. at 25.) However, since Jackson was the President of MEC, a reasonable inference can be drawn from the complaint that he had the power to hire and fire Emmons. Further, Emmons alleged in the complaint that she filed "numerous" complaints with Jackson about discrimination, which could give rise to a potential claim for retaliation. The same is true of Guada. Emmons has significant work yet to do to demonstrateas she alleges in her brief that "Guada worked in cahoots with the other named individuals to terminate plaintiff's employment." However, Emmons does allege that Guada played a not insignificant role in the decision to terminate her position and responded to her complaints via email. These allegations yield an inference that Guada had power over personnel, and that she was discriminating or retaliating against Emmons. Accordingly, plaintiff's causes of action pursuant to § 296(6) of the NYSHRL and § 8-107(6) of the NYCHRL against all defendants save for CUNY, and Jackson and Guada in their official capacities, survive the motion to dismiss. C. Negligent Misrepresentation and Detrimental Reliance Plaintiff's sixteenth and seventeenth causes of action seek to advance common law claims for negligent misrepresentation and detrimental reliance. Although the complaint purports to state both claims against "all defendants," plaintiff only alleges relevant facts with respect to Shorter and Watson, namely that they had no intention to employ her but still represented to her that she would receive the education director position. (Compl. ¶¶ 101-110.) In any event, the detrimental reliance claims are dismissed with prejudice against all parties because "[d]etrimental reliance is an element of equitable and promissory estoppel; there is no independent cause of action for detrimental reliance." Paxi, LLC v. Shiseido Ams. Corp., 636 F. Supp. 2d 275, 286-87 (S.D.N.Y.2009) (quoting Brinsights, LLC v. Charming Shoppes of Del., Inc., 06-CV-1745, 2008 WL 216969, at 5, 2008 U.S. Dist. LEXIS 3787, at 12 (S.D.N.Y. Jan. 16, 2008)). Even if the Court permitted plaintiff to recast this claim as one for 422 promissory estoppel, the claim would nonetheless fail because "New York law ... does not recognize promissory estoppel in the employment context." Henry v. Dow Jones, 08-CV-5316, 2009 WL 210680, at 5 n. 8, 2009 U.S. Dist. LEXIS 6508, at 18 n. 8 (S.D.N.Y. Jan. 28, 2009) (quoting Deutsch v. Kroll Assocs., 02-CV2892, 2003 WL 22203740, at 3, 2003 U.S. Dist. LEXIS 16613, at 8 (S.D.N.Y. Sept. 23, 2003)); Baguer v. Spanish Broad. Sys., 04-CV8393, 2007 WL 2780390, at 5, 2007 U.S. Dist. LEXIS 70793, at 15 (S.D.N.Y. Sept. 25, 2007) (explaining that "several courts within the Second Circuit" have held same); Shapira v. Charles Schwab & Co., 225 F. Supp. 2d 414, 419 (S.D.N.Y.2002) ("[A] prospective employee, in other words, cannot sue an employer who reneges on a job offer or other employment promise on such a theory."). Plaintiff's remaining claims for negligent misrepresentation also must be dismissed with prejudice. "Under New York law, a plaintiff may recover for negligent misrepresentation only where the defendant owes her a fiduciary duty." Muller-Paisner v. TIAA, 289 Fed.Appx. 461, 465 (2d Cir.2008) (quoting Stewart v. Jackson & Nash, 976 F.2d 86, 90 (2d Cir.1992)). "A fiduciary relationship exists under New York law when one person is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation." Id. (quoting Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 599 (2d Cir.1991)). As one might expect, plaintiff has not alleged that Shorter, Watson, or any other defendant owed her any fiduciary duty, and "courts have routinely held that the employer-employee relationship does not constitute a special relationship sufficient to support a claim for negligent misrepresentation." Kwon v. Yun, 606 F. Supp. 2d 344, 356-57 (S.D.N.Y.2009) (citing and describing cases); see Cannon v. Douglas Elliman, LLC, 06-CV-7092, 2007 WL 4358456, at 10-11, 2007 U.S. Dist. LEXIS 91139, at 33-35 (S.D.N.Y. Dec. 10, 2007). Even if plaintiff could establish the special relationship necessary to support a negligent misrepresentation claim, she has not sufficiently alleged that she "reasonably relied on [the misrepresentations]... to her detriment." Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir.2000). Plaintiff merely states, in conclusory fashion, that she "reasonably relied upon defendants' representations" and "has been damaged." Accordingly, the negligent misrepresentation claims are dismissed with prejudice. D. Breach of Implied Covenant of Good Faith Emmons's eighteenth cause of action vaguely alleges that defendants' collective actions "were malicious, illegal, unlawful, fraudulent, and directed at depriving the plaintiff of her rights, and were in violation of public policy," and as a result she is "traumatized." (Compl. ¶¶ 112-13.) In New York, however, the implied covenant of good faith and fair dealing may only arise from a valid and binding contract, and plaintiff has failed to allege that any contract between herself and defendants existed. See Beekman Inv. Partners, L.P. v. Alene Candles, Inc., 05-CV-8746, 2006 WL 330323, at 7, 2006 U.S. Dist. LEXIS 5341, at 19 (S.D.N.Y. Feb. 14, 2006) (explaining that a "cause of action for breach of an implied duty of good faith and fair dealing... [is] properly dismissed for lack of a valid and binding contract from which such a duty would arise"). Nor can plaintiff turn to her at-will employment or public policy generally to find an implied covenant of good faith on which to base her lawsuit. See Horn v. N.Y. Times, 100 N.Y.2d 85, 96, 760 N.Y.S.2d 378, 384, 790 N.E.2d 753, 759 (2003) (explaining 423 that New York has "consistently declined to create a common-law tort ... or to recognize a covenant of good faith and fair dealing to imply terms grounded in a conception of public policy into employment contracts" and that "a claim based on the implied covenant of good faith and fair dealing may not be used as a substitute for a nonviable claim of breach of contract") (internal quotation marks omitted). Accordingly, plaintiff's implied covenant cause of action is dismissed with prejudice. E. Injury to Reputation Emmons's nineteenth cause of action asserts that she relied on defendants' assertions that she would be employed as Education Director, but having not received that position, she has "remained unemployed and has been ridiculed by colleagues, friends and acquaintances as a result." (Compl. ¶ 114-17.) She claims that these actions caused injury to her reputation and attacked her "proprietary right to her good name." (Id. ¶ 118-20.) This cause of action dangerously approaches frivolousness. To start with, there is no general "injury to reputation" cause of action under New York law; as both parties agree, plaintiff really intends to state a claim for "defamation." See Four Directions Air, Inc. v. United States, 06-CV-283, 2007 WL 2903942, at 4-5, 2007 U.S. Dist. LEXIS 72882, at 14-15 (N.D.N.Y. Sept. 30, 2007). "Under New York law, a claim for defamation must allege (1) a false statement about the [complainant]; (2) published to a third party without authorization or privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4) that either constitutes defamation per se or caused special damages." Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 411 (S.D.N.Y.2009) (internal quotation marks omitted). Even if the Court assumes that the letter from Shorter included a false statement regarding plaintiff's employment, Emmons has not alleged that the letter was published to any third party. More critically, the falsity in the letter would relate solely to the alleged false promise of employment, which could not possibly constitute defamation. A defamatory statement is "one that exposes an individual `to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or ... induce[s] an evil opinion of one in the minds of right-thinking persons, and ... deprives one of ... confidence and friendly intercourse in society.'" Celle v. Filipino Reporter Enters., Inc., 209 F.3d 163, 177 (2d Cir.2000) (quoting Kimmerle v. N.Y. Evening Journal, 262 N.Y. 99, 102, 186 N.E. 217, 218 (1933)). Statements that are "defamatory per se" include those that "tend to injure another in his or her trade, business or profession." Liberman v. Gelstein, 80 N.Y.2d 429, 434-35, 590 N.Y.S.2d 857, 860, 605 N.E.2d 344, 347 (1992). Nothing about the alleged letter could possibly expose plaintiff to such public hatred or contempt, or damage her "business" reputation. Emmons's embarrassment in not receiving a job that she expected to receive does not give her license to contort the boundaries of defamation law as this claim seeks to do. Her cause of action based on injury to reputation and/or defamation is dismissed with prejudice. F. Intentional Infliction of Emotional Distress Emmons's twentieth cause of action, alleging intentional infliction of emotional distress in light of defendants' alleged "extreme and outrageous actions," 424 must also be dismissed with prejudice for failure to state a claim. In order to state such a claim in New York, plaintiff must show: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999). The New York Court of Appeals has explained that the standard for stating a valid claim is "rigorous, and difficult to satisfy" because the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Howell v. N.Y. Post Co. Inc., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699, 702 (1993) (internal citations omitted). "Accordingly, absent a `deliberate and malicious campaign or harassment or intimidation,' an [intentional infliction of emotional distress] claim is susceptible to determination as a matter of law." Nelson v. Ulster County, 06-CV-1057, 2010 WL 1257865, at 7-8, 2010 U.S. Dist. LEXIS 29215, at 26 (N.D.N.Y. Mar. 26, 2010) (quoting Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 654, 255 N.E.2d 765, 770 (1970)). Aside from plaintiff's failure to specify which defendants engaged in such conduct, the alleged conduct (regardless of whose responsibility) does not rise to the level of outrageousness required to maintain the intentional infliction claim. As a general proposition, adverse employment actions, even those based on discrimination, are not sufficient bases for intentional infliction claims. See Virola v. Xo Commc'ns, Inc., 05-CV-5056, 2008 WL 1766601, at 21, 2008 U.S. Dist. LEXIS 30413, at 69 (E.D.N.Y. Apr. 15, 2008) ("New York courts do not, as a rule, extend the tort of intentional infliction of emotional distress to employment discrimination claims."); Fahmy v. Duane Reade, Inc., 04-CV-1798, 2005 WL 2338711, at 7-8, 2005 U.S. Dist. LEXIS 20929, at 22-23 (S.D.N.Y. Sept. 26, 2005) (describing several cases that stand for this proposition). General rule or not, and (however regrettable) discriminatory conduct or not, the misconduct alleged simply does not constitute a "deliberate and malicious" campaign that can trigger liability on this theory. The intentional infliction cause of action is therefore dismissed with prejudice. G. Retaliation and Harassment Emmons's seventh cause of action is stated as a claim for "retaliation and harassment." (Compl. ¶¶ 77-79.) As discussed above, the Court construes the complaint to incorporate "retaliation" claims into all of the state and federal statutory causes of action that would permit such claims. But, New York does not recognize an independent cause of action for "harassment," and that portion of plaintiff's seventh cause of action is dismissed with prejudice. See Jacobs v. 200 E. 36th Owners Corp., 281 A.D.2d 281, 281, 722 N.Y.S.2d 137, 137 (1st Dep't 2001); Goldstein v. Tabb, 177 A.D.2d 470, 471, 575 N.Y.S.2d 902, 904 (2nd Dep't 1991). H. Tortious Interference With Contractual Relations Emmons's fourteenth cause of action advances yet another theory: tortious interference with contractual relations. It is brought against defendant Lake only, alleging that Emmons had a "reasonable expectation" of the contract's "continued existence," and that Lake "arbitrarily" and unlawfully terminated her employment. (Compl. ¶¶ 92-96.) 425 To establish a claim of tortious interference with contractual relations under New York law, plaintiff must show: "(a) that a valid contract exists; (b) that a `third party' had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; and (d) that the breach resulted in damage to the plaintiff." Albert v. Loksen, 239 F.3d 256, 274 (2d Cir.2001) (quoting Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir.1996)). Defendants argue that since plaintiff has an "at will" employment contract, the claim is better cast as one for tortious interference with prospective contractual relations. Regardless of the nomenclature, nonetheless, New York law does recognize that "the at will relationship entails certain limited rights, ... including the right to maintain an action for tortious interference in certain limited situations." Finley, 79 F.3d at 1294-95 (internal citations omitted). This class of tort does not require showing interference with an existing contract, but rather that a defendant "acted for a wrongful purpose or used dishonest, unfair, or improper means" to interfere with a business relationship of some kind. Catskill Dev., L.L.C. v. Park Place Entm't Corp., 547 F.3d 115, 132 (2d Cir.2008), cert, denied, Catskill Dev., L.L.C. v. Harrah's Operating Co., ___ U.S. ___, 129 S. Ct. 1908, 173 L. Ed. 2d 1058 (2009); see Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir. 2002). Plaintiff's claim ultimately fails because she cannot establish that Lake was a "third party" who "used wrongful means to effect the termination" of her employment with CUNY and/or RFCUNY. Albert, 239 F.3d at 274 (quoting Cohen v. Davis, 926 F. Supp. 399, 403 (S.D.N.Y.1996)). A plaintiff may only maintain "an action for tortious interference against a co-employee by showing that the co-employee `acted outside the scope of [his or her] authority'" by inducing the employer to terminate. Id. at 275 (quoting Kosson v. Algaze, 203 A.D.2d 112, 113, 610 N.Y.S.2d 227, 228-29 (1st Dep't 1994)). "A supervisor is considered to have acted outside the scope of his employment if there is evidence that the supervisor's manner of interference involved independent tortious acts such as fraud or misrepresentations, or that he acted purely from malice or self interest." Cohen, 926 F.Supp. at 404. In this case, plaintiff's allegations reflect her grievance that Lake played a significant role in her termination, having written the June 4, 2008 letter indicating that her position was eliminated due to lack of funds. (Compl. ¶¶ 33, 93.) Emmons alleges that Lake acted outside the limits of his authority due to his "bad faith, self-interest, malice, and personal animosity" toward her. Yet this rote listing impure intentions comprises no more than a series of conclusory allegations that cannot satisfy Iqbal. Even if the Court inferred "malice" from the discriminatory and retaliatory acts that plaintiff alleges Lake committed during her tenure, such conduct is insufficient to establish "independent tortious act[s]" under New York law to sustain a tortious interference claim brought by an employee against her superior. See Baguer, 2007 WL 2780390, at 3-4, 2007 U.S. Dist. LEXIS 70793, at 9-10 (citing cases and explaining that "alleged violations of federal, state, and city anti-discrimination laws are not torts under New York law"). Simply put, Emmons was an at-will employee, and a claim grieving employment termination by that very employee's superiors acting within the scope of their authority simply does not lie as a tort under New York law. The tortious interference claim is, consequently, dismissed with prejudice. 426 Conclusion For the reasons discussed above, defendants' motion to dismiss is granted in part. The following claims survive the motion to dismiss: (1) retaliation claims against RFCUNY under both the ADA and the Rehab Act; (2) discrimination and retaliation claims against CUNY and RFCUNY under Title VII based on discrete acts alleged to have taken place after September 26, 2007; (3) retaliation claims under § 1981 against all defendants except CUNY, and Jackson and Guada in their official capacities; (4) retaliation claims under the FMLA against RFCUNY, and Jackson, Guada, Lake, Smith, and Watson in their individual capacities; and (6) NYSHRL and NYCHRL claims against all defendants except CUNY, and Jackson and Guada in their official capacities. Plaintiff is further granted leave to amend the complaint to specify the prospective injunctive relief that she is seeking, add causes of action pursuant to § 1983, and replead the following causes of action, provided, of course, that she can do so in compliance with her Rule 8 and Rule 11 obligations: (1) hostile work environment claims under Title VII against CUNY and RFCUNY; (2) claims under the EPA; (3) claims under § 1981 based on discrimination due to race, ethnicity, or ancestry against any defendant except CUNY; and (4) claims under § 1985 against any defendant except CUNY. Plaintiff shall file any amended complaint no later than 30 days from the date this Memorandum and Order is docketed. All other claims and causes of action are dismissed with prejudice, including all claims against MEC. SO ORDERED. MEMORANDUM AND ORDER On June 2, 2010, the Court addressed defendants' motions to dismiss the complaint, and issued a Memorandum and Order dismissing the majority of plaintiffs federal and state causes of action. In so ruling, the Court granted plaintiff permission to amend the complaint and replead some of those causes of action, provided that she could do so in compliance with her Rule 8 and Rule 11 obligations. For other dismissed claims, including plaintiffs claims for interference with her rights pursuant to the Family Medical and Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), the Court denied leave to replead.[1] (See Docket No. 36.) Plaintiff now asks the Court to "change the dismissal of said [FMLA interference] claim with prejudice to dismissal without prejudice" because she claims an ability to "amplify her claims with facts and allegations that were not included" in the initial complaint. In light of plaintiffs representation, the Court, pursuant to Federal Rule of Civil Procedure 60(b), relieves plaintiff of that portion of the prior Order dismissing the FMLA interference claims with prejudice. That dismissal is now ordered without prejudice. Plaintiff, as a result, may file an amended complaint incorporating FMLA interference claims, on the same terms and conditions the prior Order permits the repleading of other dismissed claims, by no later than July 9, 2010. Obviously, defendants remain free to test the efficiency of any or all of the repled claims asserted in the amended complaint, including the repled FMLA interference claims. SO ORDERED. NOTES [1] The case caption has been amended to reflect the correct spelling of Medgar Evers College. [2] There is some confusion regarding Lake's employment. Plaintiff alleges in her complaint that Lake was the Vice President of MEC, and therefore an employee of CUNY. (Compl. ¶ 19.) However, Lake is represented by RFCUNY's counsel, and defendants claim that he is "an employee of the Research Foundation." (Def. CUNY's Br. at 3.) Since both sides' arguments have implicitly grouped Lake analytically with the discussion of claims against Shorter, Smith, and Watson, the Court treats Lake as an RFCUNY employee for purposes of the instant motion. [3] Although defendants CUNY and RFCUNY (with their respective individual employee defendants) each filed separate motions to dismiss, the Court refers to the defendants' arguments collectively. [4] Defendants agree that plaintiff had an at-will employment status, but assert that her employment was with RFCUNY, not CUNY. (Def. RFCUNY's Br. at 26 n. 8.) [5] Although plaintiff purports to sue MEC, the senior colleges of CUNY are not themselves legally cognizable entities apart from CUNY. See N.Y. Educ. Law §§ 6202, 6205; Clissuras v. City Univ. of N.Y., 359 F.3d 79, 81 n. 2 (2d Cir.2004). Accordingly, all claims against MEC are subsumed by the claims against CUNY, and the claims against MEC are dismissed with prejudice. [6] Even assuming arguendo that the complaint sought reinstatement, dismissal of the claims seeking such relief against Jackson and Guada would still be required because plaintiff has not sufficiently alleged that either individual currently has the responsibility or capability to enact such relief. See Miles v. Baruch Coll., 07-CV-1214, 2008 WL 222299, at 4, 2008 U.S. Dist. LEXIS 5534, at 14 (E.D.N.Y. Jan. 25, 2008) (explaining that the Young exception only applies "provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action.") (quoting Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001)). Defendants point out that Jackson is no longer employed by MEC. (See Second Decl. of Roderick Arz, dated Aug. 27, 2009, Ex. A.) [7] Defendants do not argue that sovereign immunity protects against Rehabilitation Act claims. [8] In Garrett, the Supreme Court declined to decide "whether Title II . . . is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject." 531 U.S. at 360 n. 1, 121 S. Ct. 955. [9] In her opposition brief, plaintiff explains that her physician put her on disability due to "difficulties walking and climbing, back pains, difficulties sitting for an extended period of time, injury to her arms and shoulders, etc." (PL's Opp. Br. at 15 n. 14.) [10] Plaintiff argues that, aside from common law agency, the Court may apply the "single or joint employer" test, a "four factored analysis" that has been "adopted by the Second Circuit in the Title VII context." Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 378 (2d Cir.2006). This factor analysis too would require the Court to investigate the niceties; of the CUNY/RFCUNY relationship. [11] Since the Court dismisses the EPA claims on these grounds, it does not address defendants' other 12(b)(6) arguments that plaintiff has not sufficiently alleged personal involvement of Jackson and Guada or CUNY's status as plaintiff's "employer," as defined by the EPA. Plaintiff might choose to consider this objection should she attempt to re-plead this claim. [12] In her opposition, plaintiff defends the merits of a § 1983 cause of action, ignoring the motion to dismiss the § 1985 claims, and premising one defense of her § 1981 claims on the ability to "maintain a § 1983 individual-capacity suit." (PL's Opp. Br. at 23.) Whatever the reason, plaintiff failed to plead a § 1983 claim, and she cannot use her legal briefs to add an entirely new, wholly unreferenced cause of action to her complaint. Plaintiff is permitted, however, to amend her pleading to include properly tailored § 1983 claims, provided that she can do so in compliance with Rules 8 and 11. [13] The RFCUNY employees, however, have not sought to dismiss plaintiff's retaliation action pursuant to § 1981, so these claims survive the motion to dismiss. [14] Plaintiff relies on two allegations to demonstrate that there was a "clear" conspiracy. First, that Watson, an RFCUNY employee, promised to have Guada contact her with further details regarding involuntary transfer out of YABC in April 2008. (Compl. ¶ 29.) Yet, while this may establish some contact between CUNY and RFCUNY staff members, it does not demonstrate a meeting of minds to achieve an unlawful end. Second, Guada emailed plaintiff in June 2008 and indicated that her position was eliminated due to "job roles redesign." (Id. ¶ 35.) In her opposition brief, plaintiff supplements this allegation with an unpled allegation that the email stated that "we could not reappoint you," which plaintiff takes to imply that Guada worked in connection with RFCUNY employees to terminate plaintiff. Even if this fact were pled, however, it falls well short of sufficiently pleading conspiracy. [15] The distinction between taking FMLA leave for dealing with one's own health, as opposed to taking care of a family member, 29 U.S.C. § 2614(a)(1)(C), is important in light of the Supreme Court's holding in Hibbs, which recognized Congress's abrogation of state sovereign immunity on the family-care leave provision. 538 U.S. at 727-728, 123 S. Ct. 1972. The Supreme Court has not made an explicit holding with respect to FMLA leave to take care of one's self, so the Second Circuit's opinion in Hale remains controlling on this Court. [16] Plaintiff does notand cannotpoint to any instances in which New York waived its immunity and consented to be sued under state law in federal court. It is clear that New York has maintained its sovereign immunity with respect to the NYSHRL and NYCHRL, Moore v. N.Y. State Div. of Parole, 06-CV-1973, 2008 WL 4394677, at 7, 2008 U.S. Dist. LEXIS 72260, at 21 (E.D.N.Y. Sept. 23, 2008); Koumantaros v. City Univ. of N.Y., 03-CV-10170, 2007 WL 840115, at 5, 2007 U.S. Dist. LEXIS 19530, at 14-*15 (S.D.N.Y. Mar. 19, 2007). [17] Even if the Court construed the complaint to assert claims for prospective injunctive relief, see supra Part LB, the Ex parte Young doctrine would not apply to permit such relief against Jackson and Guada in their official capacities on the state law claims. See Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 97-98 (S.D.N.Y.2010), aff'd, 599 F.3d 148 (2d Cir.2010) ("It is well settled that federal courts may not grant declaratory or injunctive relief against a state agency based on violations of state law") (quoting Bad Frog Brewery, Inc. v. NY. State Liquor Auth., 134 F.3d 87, 93 (2d Cir. 1998)). [18] The complaint purports to state causes of action pursuant to "§ 8-107.1(a)" of the NYCHRL, which deals exclusively with "victims of domestic violence, sex offenses or stalking." The Court assumes that plaintiff intended to refer to § 8-107, including subsections (1)(a) (employment discrimination) and (6) (aiding and abetting). [1] Several of plaintiff's retaliation-based claims pursuant to the FMLA survived the motions to dismiss.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2542391/	709 F. Supp. 2d 345 (2010) Jo-Anna Lynn MARTIN, Plaintiff, v. WAL-MART STORES, INC., et al., Defendants. Civil Action No. 10-2053 (RMB/AMD). United States District Court, D. New Jersey. April 30, 2010. 346 Barry Joel Hockfield, Hockfield, Hasner & Associates, PA, Cherry Hill, NJ, for Plaintiff. Roberto K. Paglione, McDonnell & Associates, P.C., Cherry Hill, NJ, for Defendant. OPINION BUMB, District Judge: This matter comes before the Court upon its own motion. Relying upon diversity of citizenship to establish federal subject-matter jurisdiction, defendant Wal-Mart Stores, Inc. (the "Defendant") removed this slip-and-fall case upon its allegation that the amount-in-controversy requirement is satisfied by virtue of its adversary's refusal to cap its recovery below $75,000. As the Court has received a number of removal notices alleging diversity of citizenship on similar grounds, it takes this opportunity to opine that allegations similar to that propounded here do not sustain federal subject-matter jurisdiction. Thus, for the reasons below, the Court will remand this action. BACKGROUND On March 8, 2010, plaintiff Jo-Anna Lynn Martin (the "Plaintiff") initiated this action against Defendant by filing a complaint in the Superior Court of New Jersey, Camden County. (Dkt. No. CAM-L-1312-10.) In the three-page complaint, Plaintiff alleges that Defendant's negligence caused her to slip and fall in Defendant's Deptford, New Jersey retail store. The complaint does not specify Plaintiff's injuries beyond boiler-plate generalizations. Plaintiff served the complaint upon Defendant on April 8, 2010, and Defendant timely removed the action to this Court by filing a Notice of Removal two weeks later, on April 23, 2010. [Dkt. Ent. 1.] The Notice of Removal alleges diversity of citizenship as the basis of the Court's original subject-matter jurisdiction over this action. (Ntc. Rmvl. ¶¶ 4-12.) Specifically, the Notice of Removal alleges that the amount in controversy exceeds $75,000, as required by 28 U.S.C. § 1332, because, [O]n April 15, 2010, defense counsel contacted Plaintiff's counsel, via letter, and informed Plaintiff's Counsel of Defendant's intention to Remove this matter to the District Court, if Plaintiff was unwilling to enter into a Stipulation of Damages of less than $75,000.... To date, Plaintiff has refused to enter into the aforementioned Stipulation to limit Damages. Therefore, [Defendant] suspects that Plaintiff may be seeking a recovery in excess of $75,000. (Ntc. Rmvl. ¶ 10-12.) The Court now addresses the sufficiency of this allegation. DISCUSSION 1. Analysis of Legal Standard The Court begins from the premise that it must always be suspicious of its subject-matter jurisdiction. "[T]he federal courts are courts of limited jurisdiction, and there is no presumption that they have subject matter jurisdiction to adjudicate a particular case. Indeed, until the court's jurisdiction is demonstrated, the converse is true." Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1206 (3d ed.WL 2010) (emphasis added). "A federal court's entertaining a case that is not within its subject matter jurisdiction is no mere technical violation; it is nothing less than an unconstitutional usurpation of state judicial power. Accordingly, there is a presumption that a federal court lacks subject matter jurisdiction, and the party seeking to invoke federal jurisdiction must affirmatively allege the facts supporting it." Id. at 13 Fed. Prac. & Proc. Juris. § 3522. 347 Thus, when a case is removed to federal court, the removing defendant bears the burden of establishing subject-matter jurisdiction. Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir.2005). The notice of removal is the defendant's opportunity to persuade the district court of its subject-matter jurisdiction. Id. at 449. The court's ensuing jurisdictional inquiry begins with a review of the removal pleadings; at that juncture, the court must decide whether or not the removing defendant has satisfied its burden of establishing the propriety of federal jurisdiction. See Saffle v. Oil Field Pipe & Supply, Inc., No. 09-0327, 2009 WL 1606519, 3 (N.D.Okla. June 8, 2009) ("When neither the complaint nor the notice of removal establishes that the court has subject matter jurisdiction, a district court may raise this issue sua sponte and remand a case to state court.").[1] The case St. Paul Mercury Indemnity Co. v. Red Cab Co. is often cited for the misleadingly simple proposition that, "It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." 303 U.S. 283, 289, 58 S. Ct. 586, 82 L. Ed. 845 (1938); see, e.g., Dardovitch v. Haltzman, 190 F.3d 125, 135 (3d Cir.1999) (citing Red Cab, 303 U.S. at 289, 58 S. Ct. 586). The Third Circuit clarified Red Cab in the context of a plaintiff's motion to remand in Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 397-398 (3d Cir.2004) Samuel-Bassett instructs district courts to grant a remand motion when the moving partythe plaintiff challenging jurisdictionhas established to a legal certainty that its recovery cannot exceed $75,000. Id. Notably, Samuel-Bassett shifts the burden to the party challenging federal jurisdiction; the rule does not require the proponent of federal jurisdiction to prove anything. See Frederico v. Home Depot, 507 F.3d 188, 195 (3d Cir.2007) ("[T]he challenger to subject matter jurisdiction ha[s] to prove, to a legal certainty, that the amount in controversy c[an] not exceed the statutory threshold." (emphasis original)); Valley v. State Farm Fire and Cas. Co., 504 F. Supp. 2d 1, 4 (E.D.Pa.2006).[2] When the Court, as opposed to the non-removing party, raises its jurisdiction sua sponte, two questions arise: (1) which party bears the burden of establishing the propriety of federal jurisdiction, and (2) what must that party prove? The first question may be answered easily: the proponent of federal jurisdiction must demonstrate its propriety. Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 151 (3d Cir.2009). The second question requires more analysis. Samuel-Bassett's progeny-case Frederico involved a 348 court's sua sponte inquiry. After the Third Circuit questioned subject-matter jurisdiction sua sponte, the plaintiffimportantlyresponded to the Court's inquiry by contesting federal jurisdiction. In that procedural context, that is, where the parties contested jurisdiction, the Court applied Red Cab's "legal certainty" test. 507 F.3d at 198 ("We will therefore apply Red Cab's legal certainty test to the facts alleged by Frederico in her complaint and incorporated by Home Depot into its Notice of Removal."). The Third Circuit stated, however, that "[e]ven where allegations are not challenged by the adversary, the Court may still insist that the jurisdictional facts be established ... [by] the party alleging jurisdiction ... by a preponderance of the evidence." Id. (internal citation omitted) (emphasis added). In other words, as Frederico held, where there is no jurisdictional contest among the parties, the proponent of federal jurisdiction must still satisfy the Court by a preponderance standard that federal jurisdiction is appropriate. Frederico offers insight into why the Red Cab "legal certainty" test is ill-suited to govern a court's sua sponte analysis of its subject-matter jurisdiction when there is no jurisdictional contest among the parties. If the legal certainty test were controlling, a removing defendant would establish jurisdiction simply by responding that plaintiff's claims are not legally certain to be worth less than the jurisdictional amount. In practice, this would be no burden at all, since virtually any claim could conceivably be worth more than $75,000. Certainly, a jury could conceivably award more than $75,000 for any simple negligence claim. Even a contract obligation worth tens or hundreds of dollars could, if breached, conceivably produce more than $75,000 in consequential (or "special") damages. Further, a court may always award fees and costs in its discretion, even when such award is not contemplated by the controlling statute. Hall v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973). In other words, virtually every time a district court were to ask a removing defendant to justify federal jurisdiction, the defendant could merely reply, "Although I do not know the value of the plaintiff's claims, it cannot be said to a legal certainty that the claims do not exceed $75,000." In fact, this "you can't prove otherwise" position is strengthened in cases with vague, boiler-plate averments in the complaint and notice of removal. After all, the less the pleadings say, the harder it becomes to prove that the amount-in-controversy cannot exceed the jurisdictional threshold. This "you can't prove otherwise" burden would be at odds with a court's general presumption against federal jurisdiction.[3] The foregoing illustrates precisely why, when a court raises its subject-matter jurisdiction 349 sua sponte and the non-removing party does not assume the burdens of challenging jurisdiction as it did in Frederico, the Red Cab/Samuel-Bassett framework does not control the parties' burdens or the court's inquiry. Although Samuel-Bassett shifts the burden from the proponent of federal jurisdiction to its challenger, as discussed above, Samuel-Bassett does not transfer that burden to the inquiring court. The reason is obvious: a court is ill-equipped to assume this burden. If the burden of establishing that the plaintiff's claims are legally certain to be less than $75,000 were to fall upon the district court, a defendant's glib answer "you can't prove otherwise" would virtually always duck jurisdictional scrutinyparticularly in simple negligence cases. This consequence is plainly inconsistent with the mandate that federal courts be vigilant in questioning their subject-matter jurisdiction. Federal jurisdiction is not a game of dodgeball: it is far too important to permit parties to avoid its limitations with evasiveness and circumvention. The Third Circuit rule articulated in Frederico and summarized herein is largely consistent with the somewhat different formulations of other circuits. Elsewhere, courts have made clear that as a threshold matter, the jurisdictional proponent always bears the burden of establishing by a preponderance that jurisdiction is appropriate. See Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.2009) ("The party seeking to remove ... has the burden to prove the requisite amount by a preponderance of the evidence." (citations omitted)); Lowdermilk v. U.S. Bank National Ass'n, 479 F.3d 994, 998 (9th Cir. 2007) ("[W]hen the plaintiff fails to plead a specific amount of damages, the defendant seeking removal must prove by a preponderance of the evidence that the amount in controversy requirement has been met." (citations omitted)); Brill, 427 F.3d at 449 ("[T]he removing litigant must show a reasonable probability that the stakes exceed the minimum."). Courts must conduct a more rigorous inquiryguided by the "legal certainty" testwhen the litigants dispute subject-matter jurisdiction. "Thus part of the removing party's burden is to show not only what the stakes of the litigation could be, but also what they are given the plaintiff's actual demands." Brill, 427 F.3d at 449 (emphasis original).[4] 2. Defendant's Notice of Removal When the complaint is silent or ambiguous as to the jurisdictional amountas it is herethe Court scrutinizes the notice of removal as it would a complaint filed originally in federal court. Morgan v. Gay, 471 F.3d 469, 474 (3d Cir.2006). Although Defendant's Notice of Removal asserts that the amount-in-controversy exceeds $75,000, (Ntc. Rmvl. ¶ 4), the Court does not credit a pleading's conclusory statements. Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009). The only genuine fact averments pled in the Notice of Removal that are relevant to the amount-in-controversy are that Defendant mailed to Plaintiff's counsel a draft stipulation stating that Plaintiff's recovery would be less than $75,000, and that Plaintiff's counsel "has refused to enter into the aforementioned 350 Stipulation." (Ntc. Rmvl. ¶¶ 10-11.) From this, Defendant infers that "Plaintiff may be seeking a recovery in excess of $75,000." (Id. at ¶ 12.) Notably, even Defendant characterizes this inference as a mere "susp[i]c[ion]". (Id.) Defendant's suspicion that Plaintiff's claims may be worth more than the jurisdictional amount falls far short of establishing by a preponderance the Court's subject-matter jurisdiction. One may not reasonably infer from Plaintiff's "refusal" to stipulate to a limitation on her claims that the claims are reasonably likely to exceed $75,000. Any number of reasons can account for Plaintiff's failure to execute Defendant's proposed stipulation: Plaintiff may not yet know the value of her claims; she may prefer to be uncooperative with Defendant; or the stipulation may simply have gotten lost in the mail (it is not clear if Plaintiff affirmatively declined to sign the stipulation, or if she just never responded to Defendant's letter). The Court will not make a finding of its subject-matter jurisdiction upon the mere whim of Plaintiff's counsel to resist signing a stipulation.[5] CONCLUSION This Opinion begins from the premise that until the Court's jurisdiction is demonstrated, the Court presumes that jurisdiction is lacking. This premise is of constitutional gravity. Removing defendants cannot avoid their burden of establishing this Court's subject-matter jurisdiction by expecting that jurisdiction will be assumed unless disproven. The Court should not be rendered powerless to question whether virtually any simple negligence claim satisfies the amount-in-controversy requirement just because a plaintiff's mere assertion of injury creates some possibility that his recovery might exceed the jurisdictional minimum. This consequence effectively eliminates the amount-in-controversy requirement in negligence cases, turning the controlling constitutional principle on its head. The Court cannot countenance such a result. Accordingly, for the reasons stated herein, this action will be remanded to the Superior Court of New Jersey, Camden County. An Order will accompany this Opinion. NOTES [1] It is appropriate for the Court to determine its subject-matter jurisdiction upon the pleadings alone. See Wright & Miller, supra, at 14B Fed. Prac. & Proc. Juris. § 3702 ("In determining whether the jurisdictional amount requirement has been satisfied, the federal courts usually can look at the record as of the time the issue is raised. Typically the district court will rely upon the pleadings...."); see also Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995) ("The amount in controversy is ordinarily determined by the allegations of the complaint, or, where they are not dispositive, by the allegations in the notice of removal. The burden is on the party requesting removal to set forth, in the notice of removal itself, the underlying facts supporting the assertion that the amount in controversy exceeds $50,000. Moreover, there is a presumption against removal jurisdiction." (internal citations omitted) (emphasis original)). [2] Where the plaintiff has strategically limited its claim to avoid federal jurisdiction, the burden shifts to the removing party to show, to a legal certainty, that the amount in controversy exceeds the statutory threshold. Frederico, 507 F.3d at 196 (explaining Morgan v. Gay, 471 F.3d 469 (3d Cir.2006)). [3] The Court has argued here that application of the "legal certainty" test to a Court's sua sponte inquiry creates an untenably low burden for the removing defendant. Interestingly, it could also be argued that such burden is unworkably demanding, since it requires the removing defendant to prove a negative: that is, it must prove that it cannot be established to a legal certainty that the plaintiff's claims are worth less than the jurisdictional amount. One might view this as an impossibly high burden, since proving that something cannot be established is extraordinarily difficult (if not impossible). Accord Guglielmino v. McKee Foods Corp., 506 F.3d 696, 704-05 (9th Cir.2007) (O'Scannlain, J., concurring) ("[I]t is unclear how the legal certainty burden is to be applied against a defendant seeking to establish federal jurisdiction. What type of proof can satisfy such a burden? ... [W]hat type of proof suffices to reach the necessary quantum of a legal certainty? By inverting the test and applying it against a party seeking federal jurisdiction, we raise these practical problems to which there are no easy answers."). [4] Samuel-Bassett, Morgan, and Frederico have contributed to some confusion among district courts in this circuit. See, e.g., Raspa v. Home Depot, 533 F. Supp. 2d 514, 519 n. 4 and accompanying text (D.N.J.2007). In fact, a few months before the Third Circuit helped to clarify matters in Frederico, this Court misstated the controlling legal rule. See Lamond v. Pepsico, Inc., No. 06-3043, 2007 WL 1695401, *5 (D.N.J. Jun. 8, 2007) ("[B]ecause the relevant facts are not in dispute, this Court holds that the [removing d]efendants must prove the requisite amount in controversy, $5 million, to a legal certainty."). [5] In any event, the relevance of a stipulation to an inquiry into subject-matter jurisdiction is doubtful. After all, "the plaintiff and the defendant cannot agree that the jurisdictional amount requirement has been satisfied, since parties cannot by stipulation or any other mechanism confer subject matter jurisdiction on the federal courts; nor can the defendant consent to jurisdiction. The court's obligation to determine that the requisite jurisdictional amount is present is independent of the parties' assertions or desires." Wright & Miller, supra, at 14AA Fed. Prac. & Proc. Juris. § 3702.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540737/	714 F. Supp. 2d 432 (2010) Raymond CLYDE, Plaintiff, v. Tom SCHOELLKOPF Hearing Officer, Donald Selsky, Director of Special Housing, M. Maldonado, Correction Officer, Defendants. No. 09-CV-6319L. United States District Court, W.D. New York. June 1, 2010. 434 Raymond Clyde, Malone, NY, pro se. Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, for Defendants. DECISION AND ORDER DAVID G. LARIMER, District Judge. Plaintiff, Raymond Clyde, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that his constitutional rights have been violated in a number of respects in connection with certain incidents that occurred in 2006, while plaintiff was confined at Auburn, and later Attica, Correctional Facilities. Plaintiff has sued three individual defendants, each of whom was a DOCS employee at the time of the relevant events. Defendants have moved for summary judgment dismissing the claims against them, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion is granted. BACKGROUND In July 2006, plaintiff was issued two misbehavior reports charging him with assaulting staff and other violations arising out of an alleged assault on a female DOCS employee. A Tier III hearing began on July 14, 2006, before Hearing Officer Thomas Schoellkopf. The hearing was held at Attica Correctional Facility, to which plaintiff had been transferred.[1] After a ten-day adjournment to give plaintiff a chance to review certain material that he had requested, the hearing was concluded on August 2, 2006. Schoellkopf found plaintiff guilty of most of the charges against him, and imposed a penalty of twelve years' confinement to the Special Housing Unit ("SHU") and a corresponding loss of good time and privileges. In support of his decision to impose such a stiff penalty, Schoellkopf stated that plaintiff's act of grabbing, punching, and threatening to kill the victim "constitutes one of the worst forms of misbehavior in a facility...." Dkt. # 10 at 167. 435 Plaintiff filed an administrative appeal from Schoellkopf's decision, which was affirmed by SHU Director Donald Selsky. Plaintiff also filed an Article 78 petition in state court challenging the results of the disciplinary proceedings. The petition was dismissed by the Appellate Division, Fourth Department, on March 14, 2008. Clyde v. Fischer, 49 A.D.3d 1310, 853 N.Y.S.2d 519 (2008).[2] In his § 1983 action, plaintiff asserts three claims. The first of these alleges that the officer who was assigned to act as plaintiff's assistant during the disciplinary proceedings, defendant Correction Officer Maldonado, failed to assist him at all. Plaintiff's second claim alleges that defendant Schoellkopf imposed an excessive penalty on plaintiff, and that he failed to ensure that plaintiff was provided with adequate assistance. Plaintiff's third claim is asserted against defendant Selsky, based on Selsky's affirmance of Schoellkopf's determination. Plaintiff states in the complaint that he "is not seeking and will never seek to have his good time restored," but that he is only seeking monetary damages in this action. Dkt. # 1 ¶¶ 43-46. DISCUSSION I. Res Judicata, Collateral Estoppel, and Rooker-Feldman Defendants contend that plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel. "Res judicata, also known as claim preclusion, requires that a final judgment on the merits of an action be given preclusive effect, barring the parties as well as those in privity with them from relitigating in a subsequent action a claim which was or could have been raised in the prior suit. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir.2002). Courts in this circuit have generally held, however, that because money damages are not available in Article 78 proceedings, an unsuccessful Article 78 petitioner is not barred from bringing a subsequent claim for damages under § 1983. See, e.g., Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir.2004); Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir.1986); Farid v. Bouey, 554 F. Supp. 2d 301, 316 (N.D.N.Y.2008); Watkins v. Annucci, No. 02 CIV. 4475, 2006 WL 722005, at 4 (S.D.N.Y. Mar. 22, 2006). Cf. Johns v. Rampe, 333 Fed.Appx. 644, 646 (2d Cir. 2009) ("because Johns does not seek damages [in his federal civil rights action], the Article 78 proceedings could have provided all the relief that he seeks. Thus, Johns's constitutional claims are barred by claim preclusion"). Res judicata, then, does not act as a bar to plaintiff's claims here. I agree with defendants, however, that plaintiff's claims are subject to dismissal on the ground of collateral estoppel. "`Collateral estoppel bars a party from raising an issue of law or fact in a second suit that the party had a `full and fair opportunity to litigate ... in [a] prior proceeding' and where `the decision of the issue was necessary to support a valid and final judgment on the merits' in the first 436 action.'" Irish Lesbian and Gay Org. v. Giuliani 143 F.3d 638, 644 (2d Cir.1998) (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir.1992)). In the case at bar, plaintiff contends that the doctrine does not apply because "[t]he issues raised in Plaintiff's Article 78 petition are not the same issues raised in this action." Plaintiff's Mem. of Law (Dkt. # 14) at 5. A review of plaintiff's Article 78 petition, however, shows that the claims that he advances in this action were expressly raised in his Article 78 proceeding. See Def. Ex. A (Dkt. # 10). Plaintiff alleged in his Article 78 petition that he "received no assistance from M. Maldonado what so ever...." Id. at 8, ¶ 16. He also alleged that Schoellkopf failed to take steps to ensure that plaintiff received adequate assistance, id. ¶ 17, and that plaintiff "was not provided with relevant documentary evidence to enable him to prepare a defense." Id. at 11, ¶ 34. In a brief prepared on plaintiff's behalf by the Wyoming County-Attica Legal Aid Bureau, it was also alleged that plaintiff's sentence was harsh and excessive. See Dkt. # 10 at 264. Because those allegations encompass plaintiff's claims in this case, plaintiff's claims are barred by the doctrine of collateral estoppel. See, e.g., Giakoumelos v. Coughlin, 88 F.3d 56, 60 (2d Cir.1996); Graham v. Mahmood, No. 05 Civ. 10071, 2008 WL 1849167, at 10 (S.D.N.Y. Apr. 22, 2008); Rossi v. Goord, No. 00-CV-1521, 2006 WL 2811505, at 12 (N.D.N.Y. Sept. 28, 2006). For similar reasons, plaintiff's claims are barred by the judicially-created Rooker-Feldman doctrine, pursuant to which "inferior federal courts have no subject matter jurisdiction over suits that seek direct review of judgments of state courts, or that seek to resolve issues that are `inextricably intertwined' with earlier state court determinations." Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir.2004). "[I]nextricably intertwined means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding ..., subsequent litigation will be barred under the 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) ] doctrine if it would be barred under principles of preclusion." Id. (quoting Phifer v. City of New York, 289 F.3d 49, 55-56 (2d Cir.2002)) (internal quotations omitted). Here, all of the requirements for the application of the Rooker-Feldman doctrine have been met. Plaintiff lost at the state court level, his claimed injuries flow from the state court's dismissal of his petition, his § 1983 claims in the present action effectively seek review of the state court decision, and the state court judgment was rendered prior to the commencement of the instant suit. Plaintiff's claims are therefore subject to dismissal on this ground as well. See, e.g., Ford v. Krusen, No. 9:06-CV-0890, 2009 WL 959534, at 9 (N.D.N.Y. Apr. 6, 2009); Cole v. Fischer, No. 07 Civ. 11096, 2009 WL 130186, at 4 (S.D.N.Y. Jan. 15, 2009).[3] 437 II. Claim against Maldonado Plaintiff alleges that prior to his hearing, Officer Maldonado came to plaintiff's cell, and that plaintiff gave him "a list of the things he needed assistance with." Dkt. # 1 ¶ 14. He further alleges that although Maldonado promised to return at a later time, in fact Maldonado never had any further contact with plaintiff, nor was anyone else assigned to act as plaintiff's assistant. Although a prisoner does have a right to assistance in preparing for a prison disciplinary hearing, "the scope of DOCS's obligation in this regard is significantly limited, and ... an inmate's right to assistance in connection with a disciplinary hearing-which arises under the Due Process Clause of the Fourteenth Amendment... falls far short of the right to counsel that the Sixth Amendment guarantees to criminal defendants." Loving v. Selsky, 2009 WL 87452, 2 (W.D.N.Y.2009). In addition, "any violations of this qualified right are reviewed for `harmless error.'" Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir.2009) (quoting Eng v. Coughlin, 858 F.2d 889, 897, 898 (2d Cir.1988), and Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir.1991)). In the case at bar, plaintiff's claim against Maldonado fails on the ground that, even assuming arguendo that plaintiff was not provided with adequate assistance by Maldonado, there is no basis in the record upon which a factfinder could conclude that plaintiff was prejudiced as a result. The record shows that Schoellkopf took steps to provide plaintiff with the evidence that he had requested, and that Schoellkopf granted plaintiff an adjournment to review that evidence, and there is no indication that the result of plaintiff's hearing would have been different had Maldonado provided plaintiff with the requested materials, or otherwise assisted him, in advance of the hearing. See Chavis v. vonHagn, No. 02-CV-0119, 2009 WL 236060, at 53 (W.D.N.Y. Jan. 30, 2009) (plaintiff's claims that he was denied an employee assistant to prepare for his disciplinary hearings failed, since the record established that "plaintiff was indeed able to present evidence (and often did), both oral and documentary, in his own defense") (citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). III. Claim against Schoellkopf Plaintiff's claim against Schoellkopf must also be dismissed on the merits. Plaintiff's allegations that Schoellkopf was biased, that he impaired plaintiff's ability to present a defense to the charges against him, and that he imposed an excessive penalty are conclusory and not supported by the record. As stated, the record shows that, contrary to plaintiff's assertions, Schoellkopf attempted to accommodate plaintiff's various requests for evidence, and that he gave plaintiff time to review the evidence and prepare a defense. That some of Schoellkopf's rulings may not have been to plaintiff's liking is not enough to show bias on Schoellkopf's part. See Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir.1989) ("a plaintiff-inmate armed with nothing more than conclusory allegations of bias and prejudgment should not be able to defeat a well-supported motion for summary judgment"); Wright v. Conway, 584 F. Supp. 2d 604, 609 (W.D.N.Y.2008) (prisoner's "own 438 subjective belief that [hearing officer] was biased ... is not enough to create a genuine issue of fact"). To the extent that the complaint can be construed as challenging the sufficiency of the evidence to support Schoellkopf's determination, such a claim is meritless as well. To withstand constitutional scrutiny, "prison discipline decisions ... must be `supported by some evidence in the record.'" Sira v. Morton, 380 F.3d 57, 76 (2d Cir.2004) (citing Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985)). The relevant question in reviewing such decisions is "whether there is any evidence in the record that could support the conclusion reached" by the hearing officer. Id. (citing Hill, 472 U.S. at 455-56, 105 S. Ct. 2768). Having reviewed the transcript and record of plaintiff's disciplinary hearings, I conclude that the evidence more than meets that standard here. As to the alleged excessiveness of the penalty imposed, plaintiff's claim appears to be barred under by the favorable termination requirement of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). That rule precludes a § 1983 action based on alleged constitutional violations in connection with a prisoner's disciplinary proceedings, where the sanction imposed in those proceedings could affect the overall length of the inmate's sentence, unless the inmate has succeeded in obtaining a favorable result in state court (or through federal habeas relief) in challenging the administrative findings. See Muhammad v. Close, 540 U.S. 749, 751, 124 S. Ct. 1303, 158 L. Ed. 2d 32 (2004) ("where success in a prisoner's § 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence"). In the case at bar, plaintiff expressly disavows any present or future intent to have his good time credits restored, but he also alleges that Schoellkopf "abused his discretion by imposing such an excessive penalty of twelve years SHU and twelve years loss of good time." Complaint ¶ 33. His other allegations concerning hearing officer bias and due process violations, if accepted, would also clearly call into question the validity of the underlying determination of guilt on the administrative charges against him, which has never been overturned. Plaintiff cannot avoid Heck's favorable termination requirement merely by insisting that he only seeks damages in this action. See Heck, 512 U.S. at 487, 114 S. Ct. 2364 (claim for damages for allegedly unconstitutional actions whose unlawfulness would render a conviction or sentence invalid is not cognizable under § 1983, unless that conviction or sentence has already been invalidated); see also Muhammad v. Close, 540 U.S. 749, 751, 124 S. Ct. 1303, 158 L. Ed. 2d 32 (2004) ("where success in a prisoner's § 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence"). The Second Circuit has held that "a prisoner can, without demonstrating that the challenged disciplinary proceedings or resulting punishments have been invalidated, proceed separately with a § 1983 action aimed at the sanctions or procedures that affected the conditions of his confinement... if he agrees to abandon forever any and all claims he has with respect to the sanctions that affected the length of 439 his imprisonment." Peralta v. Vasquez, 467 F.3d 98, 100 (2d Cir.2006). In the case at bar, plaintiff does not appear to challenge the conditions of his confinement, so much as the length of that confinement. Even assuming that plaintiff's claim that his SHU sentence was excessive could be construed as a conditions-of-confinement claim, however, plaintiff would not be entitled to relief absent a showing that some constitutional infirmity led to that confinement. See, e.g., Pacheco v. Drown, No. 9:06-CV-0020, 2010 WL 144400, at 17 (N.D.N.Y. Jan. 11, 2010). He has not done so. In addition, plaintiff's contention that the penalty imposed by Schoellkopf was unconstitutionally excessive is meritless. As noted by Schoellkopf, the assault here on a female DOCS staff member was "extremely violent," Dkt. # 10 at 167, and given plaintiff's disciplinary and criminal record, the penalty alone did not give rise to a constitutional violation. IV. Claim against Selsky Plaintiff's claim against Selsky is premised upon Selsky's affirmance of Schoellkopf's determination. See Complaint ¶ 39. Since plaintiff has failed to show that his rights were violated during the disciplinary proceedings conducted by Schoellkopf, however, there is no basis for his claim against Selsky. See Eleby v. Selsky, 682 F. Supp. 2d 289, 293 (W.D.N.Y.2010); Black v. Selsky, 15 F. Supp. 2d 311, 318 (W.D.N.Y. 1998). CONCLUSION Defendants' motion for summary judgment (Dkt. # 7) is granted, and the complaint is dismissed. IT IS SO ORDERED. NOTES [1] Other than plaintiff, all of the witnesses testified by speakerphone. [2] In addition, on February 23, 2007, plaintiff was convicted in state court of assault and other charges stemming from the July 2006 incident. He was sentenced to a term of imprisonment of twenty-five years to life, consecutive to the term that he was already serving. Dkt. # 10 at 293. On April 30, 2010, by a 3-1 majority, a panel of the Appellate Division, Fourth Department, reversed plaintiff's conviction and ordered a new trial, on the ground that the trial court erred in failing to articulate a reasonable basis on the record for its decision to restrain plaintiff in shackles during his trial. People v. Clyde, 72 A.D.3d 1538, 899 N.Y.S.2d 757, 758 (2010). [3] The Appellate Division's decision vacating plaintiff's criminal conviction relating to the alleged assault, see n. 1 supra, is of no moment to plaintiff's claims in the case at bar. The issues in this case concern whether plaintiff's constitutional rights were violated in connection with the DOCS disciplinary proceedings. The Appellate Division's decision in plaintiff's criminal case turned on the state trial court's decision to have plaintiff shackled at his criminal trial. The Appellate Division's decision that the trial court erred in that regard has no bearing on the issues before me. Cf. Shapard v. Attea, No. 08-CV-6146, 2009 WL 4042956, at *8 (W.D.N.Y. Nov. 19, 2009) (plaintiff's guilty plea in state court, in which he admitted assaulting DOCS officer, did not bar his § 1983 claim alleging that his due process rights were violated during DOCS disciplinary proceedings, since plaintiff's guilt on the criminal charges was distinct from whether his due process rights were violated).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540708/	709 F. Supp. 2d 517 (2010) RINCON DEL SOL, LLC, Plaintiff, v. LLOYD'S OF LONDON, Steadfast Insurance Company, Essex Insurance Company, Axis Surplus Insurance Company, Crouch Insurance Consulting, Gregory Crouch, York Claims Service, Inc. d/b/a York Sla, Mike Carpenter d/b/a Carpenter Asset Management 518 Associates LLC, Michelle Whiteside, Individually, Trimont Real Estate Advisors, Bank of America Corporation, Fannie Mae Foundation, Tritex Real Estate Advisors, Inc., and Fannie Mae, Defendants. Civil Action No. H-10-346. United States District Court, S.D. Texas, Houston Division. April 27, 2010. 519 Frederick L. McGuire, Attorney at Law, Liberty, TX, Colleen Michele McClure, Law Offices of Frederick L. McGuire, Spring, TX, for Plaintiff. Eric W. Pinker, Edward Jason Dennis, Lakeisha M. Forte, Lynn Tillotson Pinker & Cox, LLP, Michael Anthony Parsons, II, Brad E. Brewer, Zelle Hofmann Voelbel Mason LLP, Dallas, TX, Anthony Lee Icenogle, Icenogle & Sullivan, L.L.P., Austin TX, Yasmin Islam Atasi, Justin Bryan Whitley, Winstead PC, Houston, TX, for Defendants. ORDER DAVID HITTNER, District Judge. Pending before the Court are Defendants Crouch Insurance Consulting, Ltd., LLC and Gregory Crouch's Rule 12(b)(6) Motion to Dismiss and Brief in Support, Defendant Michele Whiteside's Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to FED.R.CIV.P. 12(b)(2), and, Subject Thereto, Defendants Michele Whiteside, Fannie Mae, Fannie Mae Foundation, Bank of America Corporation, Trimont Real Estate Advisors, Inc., and Tritex Real Estate Advisors, Inc.'s Motion to Dismiss Plaintiff's Claims Pursuant to FED. R.CIV.P. 9(b) and 12(b)(6), and Plaintiff Rincon Del Sol, LLC's Motion to Remand. Having considered the motions, submissions, and applicable law, the Court determines the motion to remand should be granted and the motions to dismiss should be denied as moot. BACKGROUND This case arises from a dispute over insurance coverage for an apartment complex located in Houston, Texas. Plaintiff Rincon Del Sol, LLC ("Plaintiff"), a California corporation, alleges that an apartment complex (the "Property") it owns incurred $634,057.87 worth of damage as a result of Hurricane Ike. According to Plaintiff, the insurance carriers fraudulently assessed damage at $48,901.99, an amount below the deductible, and refused to pay Plaintiffs claims. Plaintiff further alleges that some of the defendants breached a forbearance agreement made while awaiting proceeds of its insurance claims, resulting in foreclosure of the Property. On January 6, 2010, Plaintiff filed its original petition in the 281st Judicial District Court of Harris County, Texas, alleging various causes of actions against multiple defendants. Plaintiff amended its complaint on January 28, 2010, adding the Federal National Mortgage Association ("Fannie Mae") as a defendant. On February 8, 2010, Defendants Steadfast Insurance Company, Essex Insurance Company, and Axis Surplus Insurance Company ("Removing Defendants" or "Defendants") filed a notice of removal to federal court asserting diversity jurisdiction. These defendants admit that Defendants Mike Carpenter, Gregory Crouch, and Crouch Insurance Company ("Texas Defendants") are citizens of Texas for diversity purposes but argue that they were improperly joined. The Removing Defendants contend there is "no reasonable possibility of recovery" against the Texas Defendants, making removal proper. Plaintiff argues that the Texas Defendants were not improperly joined because Plaintiff has asserted legitimate claims against them and, therefore, the case must be remanded to state court. On February 12, 2010, the Removing Defendants filed a supplemental notice of removal, asserting an additional basis for jurisdiction due to Fannie Mae's addition as a party. They argue Fannie Mae's presence as a defendant confers original jurisdiction upon federal courts under provisions 12 U.S.C. § 1723a(a), the Fannie 520 Mae charter. On March 7, 2010, Plaintiff moved to remand for lack of subject matter jurisdiction. Thus, the Court must determine whether subject matter jurisdiction exists. STANDARD OF REVIEW The party seeking to remove the case to federal court bears the burden of establishing federal jurisdiction. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.1993). Due to federalism concerns, the removal statute should be construed strictly in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); Healy v. Ratta, 292 U.S. 263, 270, 54 S. Ct. 700, 78 L. Ed. 1248 (1934) ("The policy of the statute calls for its strict construction."); Frank v. Bear Stearns & Co., 128 F.3d 919, 921-22 (5th Cir.1997). Any ambiguities are construed against removal. Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979). An action removed to federal court must be remanded if the district court determines that it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); McDonal v. Abbott Labs., 408 F.3d 177, 182-83 (5th Cir.2005). LAW & ANALYSIS The Removing Defendants contend removal is proper for two reasons: (1) diversity jurisdiction exists because the Texas Defendants were improperly joined; and (2) the existence of Fannie Mae as a defendant compels the removal to federal forum under 12 U.S.C. § 1723a(a). The Court addresses each argument in turn. I. Diversity Jurisdiction A. Complete Diversity A defendant may remove a state-court action to federal court based on diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441. Diversity jurisdiction requires complete diversity of citizenship between all plaintiffs and all defendants. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978); Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1177 (5th Cir.1984) ("[W]here one or more plaintiffs sue one or more defendants, each plaintiff must be of a different citizenship than each defendant."). Diversity jurisdiction exists only when there is "an actual, substantial controversy between citizens of different states." Zurn Indus., Inc. v. Acton Const. Co., Inc., 847 F.2d 234, 236 (5th Cir.1988). The parties agree that Plaintiff is a citizen of California for diversity purposes. Thus, for diversity jurisdiction to exist, all defendants must be citizens of states other than California. It is apparent that is the case here. Because each defendant is diverse from Plaintiff, the Court determines that complete diversity exists in this case. B. Local Defendant But even when complete diversity exists, 28 U.S.C. § 1441(b) imposes a limitation on removal. See 28 U.S.C. § 1441(b). An action in which there exists complete diversity of citizenship is not removable if a defendant is a citizen of the state in which the action was brought. Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531-32 (5th Cir.2006). The plaintiff can object to the improper removal by moving for remand within thirty days of removal. See Denman v. Snapper Div., 131 F.3d 546, 548 (1998) ("[T]he presence of an in-state defendant is a procedural defect that is waived unless raised within thirty days of removal."). The Removing Defendants argue that the Texas Defendants were improperly 521 joined and thus should be dismissed and disregarded for purposes of the jurisdictional analysis. It is true that a defendant may remove an otherwise non-removable case to federal court if the defendant can establish that the local defendant was improperly joined for the purpose of defeating federal jurisdiction. See, e.g., Smallwood v. Ill Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.2004). The Removing Defendants may establish improper joinder by: (1) showing "actual fraud in the pleading of jurisdictional facts"; or (2) showing an "inability of the plaintiff to establish a cause of action against the [local defendants]." Id. "[T]he test for fraudulent joinder is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant." Smallwood, 385 F.3d at 573. The Court must evaluate the factual allegations made in the state-court pleadings in the light most favorable to Plaintiff. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). The Court need not determine whether the plaintiff will prevail on the merits. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308-09 (5th Cir.2005). Rather, the Court need look only for a possibility that the plaintiff may prevail. Id. "If that possibility exists, then a good faith assertion of such an expectancy in a state court is not a sham... and is not fraudulent in fact or in law." Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 43 (5th Cir.1992) (internal quotations omitted). There are two proper methods for predicting whether a plaintiff has a reasonable basis of recovery under state law: (1) "[t]he court may conduct a Rule 12(b)(6)type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant"; or (2) "pierce the pleadings and conduct a summary inquiry" in cases in which the plaintiff has "misstated or omitted discrete facts that would determine the propriety of joinder." Smallwood, 385 F.3d at 573. "Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder." Id. Carpenter, Crouch, and Crouch Insurance Consulting are local defendants. The Removing Defendants do not contend there is "actual fraud in the pleading of jurisdictional facts." Indeed, they agree that the Texas Defendants are Texas citizens. Rather, they argue that Plaintiff cannot show a legitimate cause of action against the Texas Defendants. Plaintiff's complaint asserts that Plaintiff contracted with Carpenter to manage the Property. Plaintiff alleges the contract obligated Carpenter to procure the proper insurance coverage for the Property and Carpenter breached his obligation. Further, Plaintiff alleges Carpenter entered into a side agreement with Crouch to purchase insufficient insurance coverage from Crouch Insurance. Assuming Plaintiff's factual allegations are trueas the Court must at this stagethe Court finds that Plaintiff asserts a claim against Carpenter upon which Plaintiff has a reasonable basis to seek recovery.[1]See Smallwood, 385 F.3d at 573; B, Inc., 663 F.2d at 550. 522 Next, then, the Court must determine whether removal is proper despite the existence of the Texas Defendants in the case. Because a local defendant is statutorily prohibited from removing a case on the basis of diversity jurisdiction, see 28 U.S.C. § 1441(b), Plaintiff is entitled to remand if an objection is filed within thirty days of removal. See Denman, 131 F.3d at 547. Plaintiff moved to remand within the allotted thirty-day time-period and is therefore entitled to remand unless another basis for jurisdiction exists. Thus, the Court must determine if another basis for subject matter jurisdiction exists in this case.[2] II. Original Jurisdiction Next, the Removing Defendants argue subject matter jurisdiction nevertheless exists because Defendant Fannie Mae's charter grants it the protection of a federal forum. Fannie Mae's charter authorizes the organization "to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal." 12 U.S.C. § 1723a(a). Defendants contend this provision, standing alone, confers upon the Court original subject matter jurisdiction in this case. Thus, Defendants argue, removal is proper merely because Fannie Mae is a named defendant. To support their argument that original jurisdiction exists, Defendants rely upon American National Red Cross v. S.G., 505 U.S. 247, 112 S. Ct. 2465, 120 L. Ed. 2d 201 (1992). In that case, faced with a similarbut not identical"sue-and-be-sued" provision in the Charter of the American National Red Cross, the Supreme Court of the United States held that the language authorizing the organization "to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States," confers original jurisdiction to federal courts. Red Cross, 505 U.S. at 251, 112 S. Ct. 2465. The Court reached this conclusion only after examining the history of "sue-and-be-sued" provisions in federally chartered organizations as supporting "the rule that a congressional charter's `sue and be sued' provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts." Id. at 255, 112 S. Ct. 2465 (emphasis added). Defendants contend Red Cross compels the conclusion that original jurisdiction exists in this case and, thus, removal is proper despite lack diversity or any other independent basis of jurisdiction. As an initial matter, the Court finds no opinion of the United States Court of Appeals for the Fifth Circuit applying Red Cross in interpreting the Fannie Mae "sueand-be-sued" charter language. Moreover, it appears that the United States Court of Appeals for the District of Columbia and a few district courts across the country have addressed it and its effect on federal jurisdiction, with those courts taking divergent opinions. Compare Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Raines, 534 F.3d 779, 785 (D.C.Cir.2008), and In re Fannie Mae 2008 Sec: Litig., Nos. 08 Civ. 7831(PAC), 09 Civ. 1352(PAC), 2009 WL 4067266, at 2-3 & n. 1 (S.D.N.Y. Nov. 24, 2009), and Grun v. Countrywide Home Loans, Inc., 523 No. Civ. A. SA.-03-CA-0141-XR, 2004 WL 1509088, at 2 (W.D.Tex. July 1, 2004), and C.C. Port, Ltd. v. Davis-Penn Mortgage Co., 891 F. Supp. 371, 372 (S.D.Tex. 1994), affd 61 F.3d 288, 291 (5th Cir.1995), with Knuckles v. RBMG, Inc., 481 F. Supp. 2d 559, 562-66 (S.D.W.Va.2007), and Fed. Nat'l Mortgage Ass'n v. Sealed, 457 F. Supp. 2d 41, 46-47 (D.D.C.2006), overruled by Pirelli, 534 F.3d at 785, and Poindexter v. Nat'l Mortgage Co., 94 C 5814, 1995 WL 242287, at 10 (N.D.Ill. April 24, 1995) (citing Saraco v. Hallett, 831 F. Supp. 1154, 1162 (E.D.Pa.1993); W. Sec. Co. v. Derwinski, 937 F.2d 1276, 1279 (7th Cir.1991)). Defendants point the Court to the D.C. Circuit's opinion in Pirelli as authority for its preferred construction of the Fannie Mae charter's "sue-and-be-sued" provision. In Pirelli, the D.C. Circuit relied upon Red Cross and concluded the Fannie Mae "sueand-be-sued" language "provides federal subject matter jurisdiction to Fannie Mae cases." Pirelli, 534 F.3d at 785. The court reasoned that Congress would have omitted the word "Federal" from the statute, instead of adding the words "of competent jurisdiction," if it desired to eliminate federal jurisdiction in Fannie Mae cases. Id. at 786. The court pointed to the deletion of "Federal" from the Federal Savings and Loan Insurance Corporation charter as support for its analysis. Id. at 786-87. Thus, the court concluded that by specifically referring to federal courts in the Fannie Mae charter, Congress intended to provide federal courts original jurisdiction in all cases in which Fannie Mae is a party. Id. The Removing Defendants argue that "in light of this clear precedent contrary to [Plaintiff's] position" the Court should deny remand. The Court is unconvinced. First, Pirelli is not binding on this Court, and, given other courts' more persuasive analyses, the Court is finds that Red Cross does not compel a decision in this case that original jurisdiction exists. Rather, the Court finds the "sue-and-be-sued" provision in the Fannie Mae charter requires an independent source of subject matter jurisdiction. This is so because the Fannie Mae "sue-and-be-sued" provision differs distinctly from the language with which the Supreme Court was confronted in Red Cross. Indeed, as the Pirelli court admitted, "the Fannie Mae sue-and-be-sued clause differs from the Red Cross statute" in that the Fannie Mae clause contains the words "of competent jurisdiction," whereas the Red Cross charter does not. Id. at 784-85. And, the Pirelli court acknowledges that other courts have read this language to simply waive immunity and require an independent basis of jurisdiction in federal court. Id. Nonetheless the Pirelli court took the opposite view. The Court disagrees with Pirelli. First, the district courts that have most thoroughly analyzed this issue have found that the Fannie Mae charter's "sue-andbe-sued" clause merely allows that plaintiffs may sue Fannie Mae in federal court but that Fannie Mae's existence as a defendant does not compel removal to federal court. See Knuckles, 481 F.Supp.2d at 562-66; Sealed, 457 F.Supp.2d at 46-47, overruled by Pirelli, 534 F.3d at 785; see also Poindexter, 1995 WL 242287, at 10.[3] In Knuckles, the court explained that the addition of the "of competent jurisdiction" language in the Fannie Mae charter is significant and distinguishes it from the "sue-and-be-sued" provision in the Red Cross charter. Knuckles, 481 F.Supp.2d 524 at 563. Indeed, the court explained that this difference is not "merely semantic, but ha[s] jurisdictional effect" because "each word in a statute should be given effect and linguistic superfluity avoided." Id. at 563 (citing Scheidler v. Natl. Org. for Women, Inc., 547 U.S. 9, 126 S. Ct. 1264, 164 L. Ed. 2d 10 (2006)). The court went on to explain that "for the phrase `any court of competent jurisdiction' to have any meaning it should be read as differentiating between state and federal courts that possess `competent' jurisdiction, i.e., an independent basis for jurisdiction, from those that do not." Finally, the Knuckles court elaborated: To conclude, as Fannie Mae suggests, that its charter could be read to confer original federal jurisdiction in all suits in which it is a party, notwithstanding the absence of an independent basis for federal jurisdiction, would effectively eliminate the phrase `of competent jurisdiction' from the charter. Stated differently, were the court to adopt Fannie Mae's reading of its charter, all federal courts would possess jurisdiction, regardless of competency. Id. Like the court in Knuckles, this Court finds that Red Cross does not compel the conclusion that the "sue-and-be-sued" language in Fannie Mae's charter necessarily mandates a federal forum. Rather, the Court reads the phrase "of competent jurisdiction" to require an independent basis for jurisdiction to be proper in federal court. See id. This conclusion is supported by the fact that the charter language itself explicitly states that Fannie Mae may "be sued in any court of competent jurisdiction, State or Federal." (emphasis added). To find, as the Removing Defendants urge, that this language grants Fannie Mae an automatic right to remove to federal court regardless of the lack of an independent basis for federal jurisdiction would belie the plain language of the charter and effectively eliminate a Plaintiffs statutory right to bring suit against Fannie Mae in state court. Moreover, the D.C. Circuit's contention that Congress would have omitted the word "Federal" from the statute, instead of adding the words "of competent jurisdiction," if it desired to eliminate federal jurisdiction in Fannie Mae cases is unpersuasive. As the Knuckles court clearly explained, elimination of federal jurisdiction could not reasonably be Congress's intent and cannot be fairly read into the construction of the Fannie Mae charter's "sue-and-be-sued" language. See id. at 564 & n. 4. Rather, the predication of federal jurisdiction upon some additional basis must have been the legislative concern when Congress included the "of competent jurisdiction, State or Federal" language into the Fannie Mae charter. This must be so because Congress included this additional language"of competent jurisdiction"to the Fannie Mae charter seven years after the Supreme Court put Congress on notice of the precise language in federal charters that would be sufficient to confer federal jurisdiction. Id.; see also Red Cross, 505 U.S. at 254-55, 112 S. Ct. 2465 (citing D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 455-56, 62 S. Ct. 676, 86 L. Ed. 956 (1942)). In Red Cross the Supreme Court explained that it placed Congress on notice of the language sufficient to confer original jurisdiction with its opinion in D'Oench, Duhme. Red Cross, 505 U.S. at 254-55, 112 S. Ct. 2465. The Court further explained that, because Congress placed substantially identical language in the Red Cross charter as was found to grant federal jurisdiction in D'Oench, Duhme, Congress intended for the Red Cross to have the protection of a federal forum. Id. It 525 follows then that because Congress chose to use substantially different language seven years later when amending the Fannie Mae charterincluding the modifying language, "of competent jurisdiction"Congress intended for there not to be original federal jurisdiction, but rather intended for the federal forum to be available if that forum was "competent" to hear the case. See Knuckles, 481 F.Supp.2d at 563-64. That is, the federal forum would be appropriate if there existed an independent basis of jurisdiction. See id. Other district courts have reached the same conclusion. See, e.g., Poindexter, 1995 WL 242287, at 10 (distinguishing Red Cross and finding the phrase "`in any court of competent jurisdiction, State or Federal,' impl[ies] that one must look elsewhere or determine competence" (citing Hallett, 831 F.Supp. at 1162; Derwinski, 937 F.2d at 1279)). But still other courts take the opposite view. See, e.g., In re Fannie Mae 2008 Sec. Litig., 2009 WL 4067266, at 2-3 & n. 1 (following Pirelli and concluding that removal of the case was proper). Indeed, one court in this district and a court in the Western District of Texas has denied remand and assumed, without analysis or explanation, that subject matter jurisdiction existed based solely on § 1723a(a). See Grun, 2004 WL 1509088, at 2; CC Port, Ltd., 891 F.Supp. at 372 (assuming subject matter jurisdiction based on § 1723a(a)). Although these courts can be persuasive, they are not binding on this Court. Furthermore, these courts provided nothing more than a conclusory statement that their jurisdiction was predicated upon the Fannie Mae charter's "sue-and-and-be-sued" provision. Given the more compelling analysis detailed above and the absence of Fifth Circuit authority on this question, the Court is persuaded that Red Cross and the Fannie Mae charter language do not work to automatically grant federal jurisdiction. Finally, a substantial number of circuit courts, including the Fifth Circuit, have found that the identical "sue-and-be-sued" language found in 12 U.S.C. § 1702 does not automatically confer federal jurisdiction. Indeed, the "majority of federal circuit courts have interpreted the phrase `in any court of competent jurisdiction, State or Federal' found in 12 U.S.C. § 1702 respecting the Secretary of Housing and Urban Development, have rejected the proposition that this language serves as a grant of federal jurisdiction." Knuckles, 481 F.Supp.2d at 563 (citing, among others, Industrial Indem., Inc. v. Landrieu, 615 F.2d 644, 647 (5th Cir.1980)). The Fifth Circuit, in fact, made clear in Industrial Indemnity, Inc. v. Landrieu, that the language "is plainly no more than a waiver of sovereign immunity and requires another statute to grant jurisdiction in order to make a court competent to hear a case...." Landrieu, 615 F.2d at 647. That reasoning is no less compelling when applied to the identical language found in 12 U.S.C. § 1723a(a). Accordingly, the Court finds that Fannie Mae's charter does not work to confer original subject matter jurisdiction upon the Court to hear this case. Because, as the Court has explained, diversity jurisdiction is not proper here, and no other basis for federal jurisdiction exists, the Court lacks subject matter jurisdiction and this case should be remanded to state court. III. Attorneys' Fees Finally, Plaintiff urges the Court to award it attorneys' fees pursuant to 28 U.S.C. § 1447(c). Under § 1447(c), "[a]n order remanding the case may require payment of costs and any actual expenses, including attorney fees, incurred as a result of the removal." A court may award attorneys' fees at its discretion, and 526 "[t]here is no automatic entitlement to an award of attorney[s'] fees." Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir.2000). Instead, courts consider "whether the defendant had objectively reasonable grounds to believe the removal was legally proper." Id. at 293. Defendants removed this case on the basis of diversity and original jurisdiction. Although unsuccessful, both arguments Defendants presented were objectively reasonable. Consequently, the Court declines to award attorneys' fees in this case. CONCLUSION The Court must remand this case to state court. The case does not present a federal question nor is diversity jurisdiction proper due to the presence of local defendants. Furthermore, Defendants have not met their burden of proving the local defendants were improperly joined. Accordingly, the Court hereby ORDERS that Plaintiff Rincon Del Sol, LLC's Motion to Remand is GRANTED. The Court farther ORDERS that Defendants Crouch Insurance Consulting, Ltd., LLC and Gregory Crouch's Rule 12(b)(6) Motion to Dismiss is DENIED as moot. The Court further ORDERS that Defendant Michele Whiteside's Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to FED. R.Civ.P. 12(b)(2), and, Subject Thereto, Defendants Michele Whiteside, Fannie Mae, Fannie Mae Foundation, Bank of America Corporation, Trimont Real Estate Advisors, Inc., and Tritex Real Estate Advisors, Inc.'s Motion to Dismiss Plaintiff's Claims Pursuant to FED.R.CIV.P. 9(b) and 12(b)(6) is DENIED as moot. The Court further ORDERS that this case is hereby RMANDED to the 281st Judicial district Court of Harris County, Texas. NOTES [1] The Court makes no finding as to the weight of Plaintiff's claim or the probability of Plaintiff prevailing on the claim. The court simply finds that Plaintiff's claim survives the Rule 12(b)(6)-type analysis for purposes of determining whether joinder of the Texas Defendants is proper. See Smallwood, 385 F.3d at 573. [2] It is not apparent from the record that all of the defendants consented to removal, including the Texas Defendants. It is axiomatic that all defendants in a case must consent to removal. See, e.g., Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants Local 349, 427 F.2d 325, 326-27 (5th Cir.1970) (citing Chicago, Rock Island & Pac. Ry. v. Martin, 178 U.S. 245, 20 S. Ct. 854, 44 L. Ed. 1055 (1900)). Even those defendants who themselves would not be able to remove the case to federal court must consent to removal by their co-defendants. See Doe v. Kerwood, 969 F.2d 165, 169 (5th Cir.1992). [3] Although the D.C. Circuit overruled Sealed with its opinion in Pirelli, 534 F.3d at 785, the Court is not bound by Pirelli and finds the Sealed analysis, like that of Knuckles, persuasive.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540725/	344 S.W.3d 125 (2010) Rocky Chad McENTIRE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. No. 2009-CA-000916-MR. Court of Appeals of Kentucky. November 5, 2010. As Modified November 19, 2010. Discretionary Review Denied by Supreme Court August 17, 2011. 126 J. David Niehaus, Louisville, KY, for appellant. Jack Conway, Attorney General of Kentucky, Jason B. Moore, Assistant Attorney General, Frankfort, KY, for appellee. Before KELLER, MOORE, and STUMBO, Judges. OPINION KELLER, Judge: Rocky Chad McEntire (McEntire) appeals from a judgment of the Jefferson Circuit Court following his conditional guilty plea to first-degree rape and kidnapping. For the reasons set forth below, we affirm in part, reverse in part, and remand. FACTS On August 20, 2007, McEntire was indicted by a Jefferson County Grand Jury and was charged with first-degree rape and kidnapping. At his arraignment, McEntire was represented by private counsel and he entered a plea of not guilty to the charges. On September 20, 2007, McEntire's private counsel filed a motion to withdraw as counsel and for the Jefferson Circuit Court to appoint a public defender. As grounds for the motion, counsel stated that McEntire did not have sufficient resources to defend against the charges as "the defense may reasonably be anticipated to require ancillary services such as an investigator and experts in various professions." The trial court granted the motion and appointed a Louisville Metro Public Defender to represent McEntire. On December 5, 2007, McEntire filed a motion to suppress statements he made to Louisville Metro Police Detectives, arguing that his statements were not made voluntarily or knowingly. A suppression hearing was held on January 30, 2008, and on March 11, 2008, the trial court entered an order denying McEntire's motion. On January 22, 2009, McEntire entered a conditional guilty plea to kidnapping and to an amended charge reducing first-degree 127 rape from a Class A felony to a Class B felony. McEntire's plea bargain reserved the right to appeal the trial court's order denying his motion to suppress. On April 15, 2009, the trial court entered a final judgment of conviction and sentenced McEntire to ten years' imprisonment on each conviction with the sentences to run concurrently. Additionally, the trial court ordered McEntire to pay court costs in the amount of $125 and pay a partial recoupment fee of $200 for representation by the Louisville Metro Public Defenders' Office. Finally, the judgment noted that McEntire was required to register as a sex offender under Kentucky Revised Statute(s)(KRS) 17.520 for lifetime. This appeal followed. ANALYSIS Initially, we note that pursuant to Kentucky Rule(s) of Criminal Procedure (RCr) 8.09, McEntire reserved the right to appeal the trial court's denial of his motion to suppress. However, in this appeal, McEntire makes no argument that the denial of that motion was error. Instead, McEntire first argues that the trial court erred by imposing court costs and a public defender fee against him. McEntire's second argument is that his "sentence" of lifetime registration as a sex offender constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution. As to the court costs and attorney fees, McEntire contends that the trial court erred in ordering him to pay these costs without first holding a hearing. In support of his argument, McEntire cites to KRS 31.211(1), which provides the following: At arraignment, the court shall conduct a nonadversarial hearing to determine whether a person who has requested a public defender is able to pay a partial fee for legal representation, the other necessary services and facilities of representation, and court costs. The court shall order payment in an amount determined by the court and may order that the payment be made in a lump sum or by installment payments to recover money for representation provided under this chapter. This partial fee determination shall be made at each stage of the proceedings. The Commonwealth concedes that the trial court failed to hold a "nonadversarial hearing" or inquire whether McEntire had the ability to pay court costs and a partial fee for legal representation by a public defender. However, the Commonwealth does contend that McEntire failed to preserve this issue in writing when he entered his conditional guilty plea pursuant to RCr 8.09, and thus waived the right to appeal this issue. RCr 8.09 states that "a defendant may enter a conditional plea of guilty, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified trial or pretrial motion." In Dickerson v. Commonwealth, 278 S.W.3d 145, 149 (Ky.2009), the Supreme Court of Kentucky set forth certain circumstances in which an issue raised on appeal from a conditional guilty plea is properly preserved for review. The Court held that it would consider such issues on appeal only if they: (1) involve a claim that the indictment did not charge an offense or the sentence imposed by the trial court was manifestly infirm, or (2) the issues upon which appellate review are sought were expressly set forth in the conditional plea documents or in a colloquy with the trial court, or (3) if the issues upon which appellate review is sought were brought to the trial court's attention before the entry of the conditional guilty 128 plea even if the issues are not specifically reiterated in the guilty plea documents or plea colloquy. Furthermore, as noted in Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008), a waiver of the right to appeal in a guilty plea does not extinguish all appealable issues. Rather, some issues "survive an express waiver of the right to appeal[.]" Id. These issues include "competency to plead guilty; whether the plea complied with the requirements of Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); subject matter jurisdiction and failure to charge a public offense; and sentencing issues." Id. (citations omitted). We have found no published cases addressing this factual situation precisely, and it is unclear whether this issue is of the type listed in Windsor that survives an express waiver of the right to appeal. However, the unpublished opinion of the Supreme Court of Kentucky in Craven v. Commonwealth, 2006 WL 1650968 (Ky. 2006)(2004-SC-000793-MR), is instructive. In Craven, the appellant plead guilty to complicity to murder. The final judgment and sentence required payment of court costs and attorney fees to the Department of Public Advocacy. The appellant argued that the trial court was required to hold a hearing prior to ordering the appellant to pay these costs. Relying on KRS 31.211(1), the Court noted that the trial court failed to conduct a "nonadversarial hearing" for the purpose of determining whether the appellant could pay these costs. Thus, the Court remanded the case to the trial court for further proceedings to determine whether the appellant had the ability to pay these costs. Id. at 1-2. The Court in Craven did not directly address whether the appellant waived her right to appeal the assessment of court costs and attorney fees by entering a guilty plea. However, by addressing it, the Court implicitly acknowledged that the appellant did not waive her right to appeal this issue. In light of Craven, we conclude that McEntire did not waive his right to appeal the issue of whether the trial court failed to hold a "nonadversarial hearing" as required by KRS 31.211(1). We do note however that this issue was not properly preserved for our review. Therefore, any error may be "noticed on appeal only if the error is `palpable' and `affects the substantial rights of a party[.]'" Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky.2009) (citations omitted). Because an inquiry as to McEntire's ability to pay the public defender and court costs should have been made, Donovan v. Commonwealth, 60 S.W.3d 581 (Ky. App.2001), we are utilizing our discretion, in the interest of justice, to remand this case for further proceedings. RCr 10.26. On remand, the trial court shall hold a "nonadversarial hearing" to determine whether McEntire has the ability to pay the assessed costs and fees as required by KRS 31.211(1). McEntire next argues that his "sentence" of lifetime registration as a sex offender constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution. We disagree. As noted by the Supreme Court of Kentucky in Hyatt v. Commonwealth, 72 S.W.3d 566, 572 (Ky.2002), "the designation of sexual predator is not a sentence or a punishment but simply a status resulting from a conviction of a sex crime." The Court further stated that registration does "not constitute a disability or restraint;. . ." Id. Because registration as a sex offender is not "a punishment but simply a status," we conclude that lifetime registration 129 as a sex offender does not constitute cruel and unusual punishment. We note that the Commonwealth contends that McEntire waived his right to appeal this issue by entering a guilty plea. Because McEntire does not prevail on his argument that lifetime sex offender registration is cruel and unusual punishment, the Commonwealth's argument that McEntire waived this issue is moot. CONCLUSION For the foregoing reason, the judgment of the Jefferson Circuit Court is affirmed in part, reversed in part, and remanded. STUMBO, Judge, Concurs. MOORE, Judge, Concurs in Result Only.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540773/	718 F. Supp. 2d 1151 (2010) Wendy SCHRAMM, Plaintiff, v. CNA FINANCIAL CORP. INSURED GROUP BENEFITS PROGRAM, Defendant. No. 09-03087 CW. United States District Court, N.D. California. June 14, 2010. 1152 Michelle Lee Roberts, Cassie Springer-Sullivan, Springer-Sullivan & Roberts LLP, Oakland, CA, for Plaintiff. Dennis Graham Rolstad, Sedgwick Detert Moran & Arnold LLP, San Francisco, CA, for Defendant. Erin A. Cornell, Sedgwick Detert Moran & Arnold LLP, San Francisco, CA, Plaintiff/Defendant. 1153 ORDER GRANTING PLAINTIFF'S MOTION FOR JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR JUDGMENT (Docket Nos. 28 and 36) CLAUDIA WILKEN, District Judge. Plaintiff Wendy Schramm moves for judgment on her claims under the Employee Retirement Income Security Act (ERISA). Defendant CNA Long Term Disability Program, erroneously sued as CNA Financial Corp. Insured Group Benefits Program, opposes Plaintiff's motion and cross-moves for judgment on her claims. Plaintiff opposes the cross-motion. The motions were heard on April 15, 2010. Having considered oral argument and all of the papers submitted by the parties, the Court GRANTS Plaintiff's motion for judgment and DENIES Defendant's cross-motion for judgment. FINDINGS OF FACT I. Plaintiff's Employment and Educational Background For more than thirty years, Plaintiff worked in vocational rehabilitation, spending more than ten years in the insurance industry. She has a bachelor of arts degree in sociology and a master of science degree in rehabilitation administration. From 2001 to 2005, Plaintiff worked as a Vocational Rehabilitation Case Manager for CNA Financial Corporation. Her primary duties were to review claims and provide vocational and rehabilitation services to claimants, with the goal of facilitating "the claimant's return to work in their own occupation or any occupation which is physically appropriate." AR446. As an employee, Plaintiff participated in the CNA Long Term Disability Program. At the time Plaintiff filed her claim for benefits, Hartford Life and Accident Insurance Company administered the Program.[1] At the suggestion of her doctors, Plaintiff stopped working for CNA on February 15, 2005. II. Policy Terms Under the Program's policy, an employee is considered disabled for the purposes of receiving benefits if he or she satisfies the "Occupation Qualifier or the Earnings Qualifier," which, in relevant part, are defined as follows: Occupation Qualifier ... After the Monthly Benefit has been payable for 12 months, "Disability" means that Injury or Sickness causes physical impairment to such a degree of severity that You are: 1. continuously unable to engage in any occupation for which You are or become qualified by education, training or experience; and 2. not working for wages in any occupation for which You are or become qualified by education, training or experience. Earnings Qualifier You may be considered Disabled during and after the Elimination Period in any in which You are Gainfully Employed,[2] if an Injury or Sickness is causing physical or mental impairment to such a degree of severity that You are unable to earn more than 80% of Your Monthly 1154 Earnings in any occupation for which You are qualified by education, training or experience. On each anniversary of Your Disability, We will increase the Monthly Earnings by the lesser of the current annual percentage increase in CPI-W, or 10%. ... Roberts Decl., Ex. 1 at POL10-11 (emphasis in original). To file a claim under the policy, an insured must provide "Proof of Disability." Id. at POL16-17. The policy also contains a provision for "Continuing Proof of Disability," which states: You may be asked to submit proof that You continue to be Disabled and are continuing to receive Appropriate and Regular Care of a Doctor. Requests of this nature will only be as often as We feel reasonably necessary. If so, this will be at Your expense and must be received within 30 days of Our request. Id. at POL17 (emphasis in original). III. Plaintiff's Car Accident and Initial Medical Assessments In June, 2004, Plaintiff was involved in an automobile accident. Her vehicle was rear-ended by a car traveling at approximately sixty miles per hour. After the accident, Plaintiff reported pain in her shoulder, neck and back. In October, 2004, Dr. Gary Schneiderman, an orthopedic surgeon, examined Plaintiff. He noted that Plaintiff had hypertension, diabetes and carpal tunnel syndrome, which was diagnosed in 1992. He also reviewed magnetic resonance imaging (MRI) scans of Plaintiff's spine, taken on September 30, 2004. He observed that Plaintiff had "a very large herniation" in her cervical spine, "which compresses the spinal cord and nerve root foramen." Administrative Record (AR) at 715. Dr. Schneiderman was not certain whether this herniation required surgery. In her thoracic spine, Dr. Schneiderman found another herniation, which caused a slight displacement of Plaintiff's spinal cord. He did not believe that this herniation warranted surgery and stated it "should improve over time; although it may take a number of months." AR716. In February, 2005, Dr. James Zucherman, a specialist in orthopedic surgery, examined Plaintiff. Dr. Zucherman observed disc protrusion in Plaintiff's thoracic and cervical spines and reiterated that Plaintiff had carpal tunnel syndrome. He advised Plaintiff to stop working, which she did as of February 15, 2005. On March 25, 2005, Dr. Zucherman examined Plaintiff again. He noted that Plaintiff was being treated for "diabetes and hypertension, which have been somewhat out of control...." AR755. Concerning her spine, Dr. Zucherman stated, "Although ... Mrs. Schramm has severe stenosis with spinal cord encroachment, she does not have long tract signs and she reports some slow improvement recently." Id. He reviewed MRI scans of Plaintiff's cervical spine and observed disc protrusion, spinal stenosis and degenerative disc disease. Dr. Zucherman stated that Plaintiff "may return to work in 3 months." AR756. He further explained that Plaintiff "is not permanent and stationary, but is temporarily totally disabled." AR756. Plaintiff was certified to be "off work until July 1, 2005." AR694. IV. Defendant Approves Disability Benefits On July 18, 2005, Defendant approved Plaintiff's claim for short-term disability benefits. Then, as of August 17, 2005, Plaintiff became eligible for long-term disability benefits. Around the same time, Plaintiff also sought workers' compensation benefits. 1155 V. Plaintiff's Care by Dr. Thomas Pattison From November, 2005 through the summer of 2007, Plaintiff received care from Dr. Thomas Pattison, a specialist in physical medicine and rehabilitation. At a November 23, 2005 consultation, Plaintiff complained of "numbness and tingling in both upper extremities, as well as the cervical, thoracic and low back regions." AR590. Reviewing the March, 2005 MRI images of Plaintiff's spine, Dr. Pattison reported that she "has very significant findings." AR594. In particular, he observed "significant confluent disc extrusions at C5-6 or C6-7" and the "encroachment of the spinal canal," which was discussed by Dr. Schneiderman in his report. AR593. The scans of the lumbar and thoracic sections of Plaintiff's spine showed mild and scattered degenerative changes. In assessing Plaintiff's neck motion, he observed results below expected values. Based on his observations, Dr. Pattison had the following impressions: 1. Cervical Disc Disease with Central stenosis and possible component of Myelopathy722.71 2. Possible Cervical Radiculitis in C5 or C6 on the Left associated with Left Shoulder Weakness723.4 3. Rule out Rotator Cuff Tear in association with Left Shoulder Weakness. 4. Sprain of Lumbar Region847.2 5. Some features of a Post Traumatic Stress disorder possibly combined with some underlying Anxiety and Depression. 6. Late Effects Sprain/Strain905.7 7. Traumatic Thigh Left716.15 8. Probable Progressive Polyneuropathy356.4 9. Right greater than left carpal tunnel syndrome. 10. Diabetes. 11. Hypertension. 12. Obesity. AR593. Dr. Pattison suggested that Plaintiff should undergo additional tests for her shoulder and back injuries and her carpal tunnel syndrome. He also recommended further physical therapy, through which he believed she could make "significant progress." AR595. On December 12, 2005, Dr. Pattison conducted electrodiagnostic studies of Plaintiff, which confirmed that she had carpal tunnel syndrome. Dr. Pattison stated that Plaintiff "has electrodiagnostic evidence of a peripheral neuropathy, given the abnormalities in multiple limbs." AR586. He also observed "moderate to severe focal median nerve dysfunction on the right and slight focal median nerve dysfunction on the left." Id. At a visit on December 28, 2005, Plaintiff reported feeling better, which she attributed to her physical therapy. Dr. Pattison stated that Plaintiff would continue with therapy, although he expressed concern about Plaintiff causing further injury to herself. He discussed with Plaintiff the need to "balance the activities of daily living with the degree of fitness, as not to injure the disc structures further." AR578. To restore Plaintiff's "functional capacity," Dr. Pattison recommended that she continue physical therapy "for the next month at a frequency of one to two times a week." AR579. He opined that Plaintiff may be a "surgical candidate" for her pain, but Plaintiff stated that she wanted to "proceed very conservatively due to her comorbid diagnosis of diabetes." Id. Because of her other conditions, Plaintiff did not want any invasive treatment, such as an injection to her shoulder. On February 25, 2006, apparently in response to an inquiry from Defendant, Dr. Pattison reported that Plaintiff "has a number of medical problems that have interrupted 1156 her physical therapy." AR531. He stated that Plaintiff was still undergoing additional study and, thus, it had "been somewhat difficult to opine [on] her exact [temporary total disability] status on a more objective basis." AR531. Dr. Pattison stated that he was relying on Plaintiff's subjective reports of her inability to work. At a visit on March 16, 2006, Plaintiff again reported that physical therapy had been helping, "particularly with some functional tasks." AR526. However, she also complained of "widespread body pain," particularly in her left shoulder. Id. Dr. Pattison continued to observe "some significant limitations in neck range of motion." Id. He explained that Plaintiff had "rather severe degenerative changes in her neck," although they were "stable and were addressed by Dr. Zucherman." AR527. He proposed an injection to Plaintiff's left shoulder, presumably to alleviate her pain. However, Plaintiff reiterated her aversion to this course of action, to which Dr. Pattison noted that "there have been a lot of delays in this case already." AR527. He stated that Plaintiff had missed several of her physical therapy sessions for various reasons, "some of which relate to the diabetic situation." Id. Dr. Pattison expressed concern about Plaintiff's belief "that she can case manage" her condition on her own and recommended that a nurse case manager be used. AR528. He opined that "follow up here has been quite erratic and is contributing to a less than optimal outcome." Id. He acknowledged the insurer's concern over Plaintiff's continued absence from work, and suggested that she be offered a "modified duty arrangement." Id. He stated, I am concerned that her work status is based much more on her subjectives than objectives, but this has been a little hard to sort out. Again, I note that she has a high level of objective findings in the cervical spine that does not seem to correlate temporally to her absence from work. She does have a very long commute, but it is my understanding that this would not be a factor in determining her ability to be off work. Id. On May 16, 2006, Plaintiff reported improvements in her neck and shoulder and that she was having less trouble sleeping. Her neck continued to have a limited range of motion, but her shoulder demonstrated an improved range. Concerning Plaintiff's ability to work, Dr. Pattison stated: I do agree light duty would be appropriate for her. When I have brought up this contentious subject before, I was met with some concerns about how she cannot drive down there, she cannot sit or stand for long periods of time, or various other difficulties. I did remind her that she took a trip to Reno and that is quite an arduous drive over the mountains. Thus, it would seem that she could do some light work based on all the factors available to me. Thus, I did put her back on modified duty although she seemed unhappy about that and I got a call later on in the day which I have not responded to yet.... AR495-96. Dr. Pattison filed a "permanent and stationary report" on July 6, 2006. AR467. He provided a review of Plaintiff's medical history, reiterating many of his previous findings concerning her conditions. He stated that Plaintiff presented "significant herniation" in her thoracic spine, although it did not appear to bother her significantly. AR472. With regard to her cervical spine, Dr. Pattison noted that she had "significant findings on serial MRI studies." AR473. He, along with Drs. Schneiderman and Zucherman, documented neurological impairment in this area. 1157 Concerning her functional capacities, Dr. Pattison stated, among other things, that Plaintiff could sit no more than six hours per day and that she "should avoid prolonged sitting as this increases her neck discomfort." AR477. He indicated that Plaintiff could not, at that time, return to her usual occupation. He noted that Plaintiff felt "rather stridently that she cannot return to her usual and customary job." AR478. He requested a description of Plaintiff's job from her insurance carrier, presumably to determine whether Plaintiff could return to work. He stated that Plaintiff would require "an ergonomic workstation" at any future place of employment. AR478. At a visit on August 7, 2006, Plaintiff felt "slightly better" and a "pain diagram" showed improvements in her level of pain and function. AR464. Dr. Pattison noted that Plaintiff went on a fifteen-day trip to Maine, during which "she went to Chicago and drove the rest of the way." AR464. He reported, "Nothing flared up too dramatically with the trip." AR464. Dr. Pattison encouraged Plaintiff's "re-entry into the labor force." AR464. Again, he requested a description of Plaintiff's job, along with "functional requirements," to determine "once and for all" whether Plaintiff was "a qualified injured worker." AR464. Thereafter, Plaintiff's reports of her pain markedly changed. At an October 16, 2006 visit, Plaintiff reported "overall increased dysfunction and pain." AR454. She reported an inability to sleep, but, according to Dr. Pattison, she refused to undertake any tests for this problem. He observed that the range of motion of Plaintiff's shoulder had been reduced. He acknowledged that Plaintiff has "very significant multilevel cervical disc disease with some indications of an ongoing myelopathy, as well as a radiculopathy." AR454. Nevertheless, after conducting a cursory review of Plaintiff's job description, Dr. Pattison did not see anything that "would cause her not to be able to go back to work based on her current situation ...." AR454. He noted, with surprise, that Plaintiff had not sought treatment for her carpal tunnel syndrome, which he opined was "very fixable." AR455. He asserted that "it is a challenge to get [Plaintiff] to focus on things. I offered to send her back to St. Mary's for an updated spine evaluation. She did not see[m] that interested in doing this." AR455. Again, he reported that Plaintiff was released to work. In a December 7, 2006 visit, Plaintiff reported "more discomfort on [her] left side, particularly her left shoulder." AR451. Dr. Pattison noted "no acute neurological deficits," although Plaintiff continued to have limited range of motion in her shoulder. Id. In his last progress report for Plaintiff's state workers' compensation claim, Dr. Pattison reported that Plaintiff had: "Cervical Disc with Myelopathy, Cervical Radiculitis, Sprain of Lumbar Region, Late Effects Sprain/Strain, Traumatic Thigh Left." Id. On December 9, 2006, Dr. Pattison filed a report, detailing his opinion on Plaintiff's ability to return to her position with CNA. He reviewed an analysis of the job, prepared by a third-party on behalf of CNA, and Plaintiff's written comments. He reiterated that Plaintiff was limited to lifting no more than twenty pounds. He noted that Plaintiff claimed that she was required to carry thirty pounds at her job, notwithstanding CNA's assertion that her lifting was limited to twenty pounds. He also stated that Plaintiff's carpal tunnel syndrome would "play a role in her ability to perform frequent keyboarding and grasping activities" and that until it "gets treated, she would not be able to return to her usual and customary job." AR437. 1158 He noted that Plaintiff raised complaints about her hypertension, diabetes and sleep problems, which, taken in combination with her orthopedic issues, "may well preclude her from participating in her usual and customary job." Id. He declined to opine on these non-orthopedic issues because they were outside the scope of his specialty. He repeated his concern about Plaintiff refusing to seek care for her sleep difficulties. VI. Qualified Medical Examination by Dr. Edwin Clark On May 14, 2007, Dr. Edwin Clark, a board-certified orthopedic surgeon, conducted an in-person evaluation of Plaintiff, which was required as part of her workers' compensation claim. Dr. Clark did not review Plaintiff's medical records. Dr. Clark diagnosed Plaintiff with: 1. Cervical dorsal lumbar sprain/strain, status post motor vehicle accident. 2. No objective findings of radiculopathy, i.e., reflex, motor, or sensory changes in the upper or lower extremities. 3. Cervical lumbar spondylosis, preexisting on a more probable than not basis. 4. Left shoulder contusion, sprain, with residual biceps tendinitis. No objective findings or shoulder impingement testing. 5. Provocative testing for carpal tunnel syndrome bilaterally negative. 6. Diabetes mellitus. 7. Exogenous obesity. AR432. He concluded that Plaintiff could perform "light work," but that she should be restricted from heavy lifting, repetitive bending and stooping. Id. She also could not sustain activity "at or above shoulder level for the left shoulder." AR432. Unlike Dr. Pattison, Dr. Clark did not suggest any restrictions for Plaintiff's wrists or hands. VII. Care by Dr. Cheryl Matossian On September 12, 2007, Dr. Matossian began treating Plaintiff for her spinal and shoulder injuries, presumably after Plaintiff left the care of Dr. Pattison. Although she had been Plaintiff's primary care physician since January, 2005, the scope of Dr. Matossian's care was initially limited to managing Plaintiff's diabetes and hypertension. In November, 2007, Dr. Matossian diagnosed Plaintiff with: 1. Rotator cuff tendonitis/possible tear of the supraand infraspinatus tendons 2. Subacromial bursitis 3. Cervical disc degeneration 4. Thoracic disc degeneration 5. Bulging disc (C5-C6) 6. Bulging disc (T7-T8) 7. Cervical spondylosis 8. Acquired spondylolisthesis: L5-S1, first degree, on 3/05 mri 9. Carpal tunnel syndrome, s/p recent decompression. AR370-71. In a "Medical Source Statement," dated November 19, 2007, Dr. Matossian stated that shoulder and lower back pain limited Plaintiff's functioning. Plaintiff could lift no more than ten pounds. She could stand or walk no more than two hours in an eight-hour work day, although after one hour, Plaintiff's pain would worsen. Plaintiff could sit three to three-and-a-half hours per day, but no more than one hour at a time. Dr. Matossian did not cite any evidence other than Plaintiff's reports of pain. In a November 21, 2007 report to Defendant, Dr. Matossian reiterated many of the 1159 limits she stated previously: Plaintiff could sit no more than one hour at a time, and for no more than three to three-and-a-half hours per day; she could not stand for more than fifteen to thirty minutes at a time, and for no more than one to one-and-a-half hours per day; and she could walk for forty-five minutes to one hour at a time, but no more than two to two-and-a-half hours per day. Dr. Matossian stated that Plaintiff could participate in vocational rehabilitation services, but that she would be unable to work a full eight-hour workday. VIII. Termination of Plaintiff's Benefits Rowena Buckley, a nurse for Defendant, performed a "Functional Assessment" of Plaintiff based on her claims file. In particular, Ms. Buckley evaluated the reasonableness of the restrictions and limitations imposed by Dr. Matossian on Plaintiff. Ms. Buckley interpreted Dr. Matossian's November, 2007 reports to state that Plaintiff could not work a full eight-hour workday. She also read Dr. Matossian to "give functionality for at least 6 hours of function," although Ms. Buckley noted that this was before Plaintiff's second carpal tunnel surgery. FN23. Ms. Buckley concluded that Dr. Matossian's restrictions and limitations "seem reasonable given the chronicity of [Plaintiff's] complaints, her advancing years and progressive degenerative arthritis, comorbid condition of diabetes and neuropathy, as well as the inherent limitations associated with bilateral carpal tunnel surgery...." Id. Susan Marquis completed an "Employability Analysis Report" for Plaintiff on April 23, 2008. Ms. Marquis construed Dr. Matossian's reports to state that Plaintiff could "sit 3 to 3.5 hours/workday; stand 1 to 1.5 hours/workday; and walk 2 to 2.5 hours/workday." AR284. She also interpreted the reports to state that Plaintiff could work a thirty-hour workweek, or six hours per day. Id. As suggested by Ms. Buckley's comments above, this number appears to be the sum of the hours of functionality listed by Dr. Matossian. However, Dr. Matossian's November reports did not explicitly state that Plaintiff could work a six-hour workday or a thirty-hour workweek. Using the "Occupational Access System," which was adjusted to "reflect the sedentary physical ability provided by" Dr. Matossian, Ms. Marquis determined that there were four occupations appropriate for Plaintiff: counselor, job development specialist, field director or employment agency manager. On April 28, 2008, Defendant notified Plaintiff that she did not meet the Program's definition of "Disability." AR268. Accordingly, her long-term disability benefits ended on May 1, 2008. Defendant stated that it relied on: The Attending Physician's Statement signed by Dr. Cheryl Matossian on 11/21/2007; Office notes and medical records from Dr. Cheryl Matossian, Family Practice from 11/19/2007; Medical records from Dr. Thomas Pattison of 12/12/2005; Medical records from Dr. Darin White of 7/19/2007; Employability Analysis information completed by a Vocational Rehabilitation Clinical Case Manager on 4/24/2008 and; Your education, training and experience described in your resume received 04/17/2008. AR269. Defendant incorporated the discussion from Ms. Marquis's Employability Analysis Report, stating that Plaintiff could "sit 3 to 3.5 hours/workday; stand 1 to 1.5 hours/workday; and walk 2 to 2.5 hours/workday." AR270. Defendant also noted that Plaintiff could work thirty hours per week; it provided Plaintiff with the four occupations identified by Ms. Marquis. 1160 Thereafter, because Plaintiff was not disabled under the Program's terms, Defendant terminated her "Waiver of Premium benefit" for her group life insurance plan. PWAR86. IX. Plaintiff's Part-Time Work In August, 2008, Plaintiff began work as a Career Guidance Technician/Job Developer at a high school in El Dorado, California. She reported that, after beginning this part-time work, she "noticed a decline in [her] health, with increased pain in [her] neck, shoulder, and back...." AR204. The administrative record does not contain evidence that Plaintiff has ceased to work in this capacity. X. Plaintiff's Appeal On December 30, 2008, Plaintiff filed an appeal with Defendant concerning the termination of her benefits. Plaintiff included notes from Dr. Matossian's examinations in September and October, 2008. In her notes from September 9, 2008, Dr. Matossian stated that Plaintiff was experiencing shoulder and neck pain that prevented her from sleeping at night. She noted that Plaintiff's left shoulder had "at least a 50% loss" of range of motion. AR199. In her notes from Plaintiff's October 6, 2008 visit, Dr. Matossian stated that Plaintiff's "neck and shoulder pain/limitations in motion ... limit [Plaintiff's] functional (upper extremity) abilities by about 50% of normal." AR198. Plaintiff also included an interpretation of the November, 2008 MRI scan of her left shoulder. According to Dr. Alan Hirahara, the MRI revealed a "SLAP lesion with severe glenohumeral osteoarthritic changes with significant spurring and flattening of the joint." AR188. A "subscap tear" was also present. Id. Dr. Hirahara stated that Plaintiff could be a candidate for arthroscopic surgery in her left shoulder. AR189. Also included was a letter by Dr. Matossian, dated December 22, 2008. Dr. Matossian explained that she did not intend to represent, in her November, 2007 reports to Defendant, that Plaintiff could work a six-hour day. Dr. Matossian reiterated that she believed Plaintiff could "sit for less than 1 hour for a total of 3 to 3.5 hours, stand 15-30 minutes for 1 to 1.5 hours, and walk 45 minutes to 1 hour for 2 to 2.5 hours." AR191. She believed that Plaintiff could not perform regular job duties, even on a part-time basis, without causing increased pain, "elevated blood glucose levels, excessive fatigue, and daytime somnolence." AR191. Dr. Matossian stated, "Based on my clinical findings, the recent MRI results, and Ms. Schramm's worsening diabetic status, it is my professional medical opinion that Ms. Schramm cannot sustain full-time employment with regular continuity at this time." Id. XI. Review of Plaintiff's Appeal and Affirmation of Termination Defendant requested a review of Plaintiff's file by MES Solutions, Peer Review Services. Two physicians examined Plaintiff's medical records and conducted a conference call with Dr. Matossian. Dr. Philip Marion, who is board-certified in physical medicine and rehabilitation, reported that Plaintiff "has well-documented cervical, thoracic and lumbar degenerative spine impairments that support the permanent restriction of light capacity occupational activity." AR100. He also concluded the impairments to Plaintiff's left shoulder justified "the restriction of no overhead work activities involving the left upper extremity." Id. He noted that Plaintiff "has not required prescribed analgesic medications for several months." Id. He concluded that Plaintiff was "medically stable with no particular acute medical issues to support any other specific occupational restrictions and limitations." Id. 1161 Dr. Albert Fuchs, who is board-certified in internal medicine, concluded that Plaintiff's hypertension and diabetes did not support any work limitations. He noted that the "occasional hypoglycemic symptoms" raised by Dr. Matossian in their conference call were "not documented to be causing functional limitations and would not be expected to as long as the claimant had access to something sweet to ingest." AR102. He concluded: [T]he claimant and Dr. Matossian maintain that a work environment would worsen her glycemic and blood pressure control. A mechanism for this deregulation is difficult to imagine in an environment that did not cause physical injury, since exercise would be expected to lower glucose. Therefore, no restrictions or limitations are supported. Id. On March 12, 2009, Defendant affirmed its decision to terminate Plaintiff's benefits. It stated that it reviewed the material submitted along with Plaintiff's appeal and cited the reports of Drs. Marion and Fuchs. On May 6, 2009, Plaintiff submitted rebuttal materials to Defendant for review, including a letter from Dr. Matossian contesting the conclusions of Drs. Marion and Fuchs. The administrative record does not show that Defendant reviewed this material. CONCLUSIONS OF LAW I. Standard of Review Pursuant to Federal Rule of Civil Procedure 52, each of the parties moves for judgment in its favor on Plaintiff's ERISA claims. Under Rule 52, the Court conducts what is essentially a bench trial on the record, evaluating the persuasiveness of conflicting testimony and deciding which is more likely true. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.1999). The parties have stipulated to a de novo standard of review. A court employing de novo review in an ERISA case "simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits." Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). Generally, the court's review is limited to the evidence contained in the administrative record. Opeta v. Nw. Airlines Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th Cir.2007). Evidence outside of the administrative record should only be considered "when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision." Id. (citation and internal quotation marks omitted; emphasis in original). II. Discussion A. Relevant Qualifier for Benefits Under her policy, Plaintiff is considered to have a disability or be disabled if she meets either the "Occupation Qualifier" or the "Earnings Qualifier." The policy language provides that the Earnings Qualifier may apply when a claimant is employed, but has reduced earnings based on a qualifying injury or sickness. Because Plaintiff was not working at the time her benefits were terminated, the Earnings Qualifier does not apply to this case.[3] For its review, 1162 the Court accordingly applies the Occupation Qualifier. B. Burden of Proof In an ERISA case involving de novo review, the plaintiff has the burden of showing entitlement to benefits. See, e.g., Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir.2010) (placing burden on plaintiff to prove disability); Juliano v. Health Maint. Org. of N.J., 221 F.3d 279, 287-88 (2d Cir.2000); Wiley v. Cendant Corp. Short Term Disability Plan, 2010 WL 309670, 7 (N.D.Cal.); Sabatino v. Liberty Life Assurance Co. of Boston, 286 F. Supp. 2d 1222, 1232 (N.D.Cal.2003). In conducting de novo review, a court considers various circumstances when weighing evidence. In Saffon v. Wells Fargo & Co. Long Term Disability Plan, the Ninth Circuit stated that "MetLife had been paying Saffon long-term disability benefits for a year, which suggests that she was already disabled." 522 F.3d 863, 871 (9th Cir.2008). The court opined that to find the plaintiff no longer disabled, "one would expect the MRIs to show an improvement, not a lack of degeneration." Id. (emphasis in original). This language does not impose a burden of proof on a defendant, but rather demonstrates a logical inference that a court may make based on a specific set of facts. Thus, in reviewing the administrative record, the Court evaluates the persuasiveness of each party's case, which necessarily entails making reasonable inferences where appropriate. Plaintiff, however, carries the ultimate burden to prove that she was disabled under the terms of the Program. C. Analysis of Plaintiff's Disability The Court must determine whether Plaintiff was disabled, as defined by her policy, on or about May 1, 2008. In particular, it must consider whether Plaintiff was "continuously unable to engage in any occupation for which" she is "qualified by education, training or experience." Plaintiff establishes that she has multiple medical conditions. Her medical record reflects that she has a history of hypertension; diabetes; carpal tunnel syndrome, for which she has had surgery; various spinal conditions, including but not limited to cervical and thoracic disc degeneration and cervical radiculitis; and abnormalities in her left shoulder, which may require arthroscopic surgery or joint replacement. Defendant's own reviewing doctors generally agree that Plaintiff has these conditions, concluding that she has hypertension, diabetes, "well-documented cervical, thoracic and lumber degenerative spine impairments that support the permanent restriction of light capacity occupational activity" and "a left shoulder impairment that supports the restriction of no overhead work activities involving the left upper extremity." AR100-02. The parties dispute whether these conditions, taken together, render Plaintiff continuously unable to engage in any occupation for which she is qualified. The Court accords significant weight to the evaluation of Plaintiff by Dr. Pattison, who treated her neck, shoulder and back pain for almost two years. He consistently stated that Plaintiff had abnormalities in her spine and shoulder. In his July, 2006 report, Dr. Pattison stated that Plaintiff could only sit for a total of less than six hours per eight-hour day and that she would need to avoid "prolonged sitting as this increases her neck discomfort." AR477. He also certified Plaintiff to have a forty percent "whole person impairment." AR474. Although he often noted that Plaintiff could engage in light-duty work, he did not state how he defined this term. In his last report on Plaintiff, he 1163 opined that her hypertension, diabetes and sleep problems, in combination with her orthopedic injuries, "may well preclude her from participating in her usual and customary job." AR437. Dr. Matossian, who had treated Plaintiff since 2005, found significant limits to Plaintiff's functionality. In November, 2007, she concluded that Plaintiff could not sit for more than three to three-and-half hours per day, stand for more than one to one-and-a-half hours per day or walk for more than two to two-and-a-half hours per day. It is true that Dr. Matossian had only been treating Plaintiff's neck, shoulder and back pain for approximately four months when she made this assessment. However, these limits are not inconsistent with Dr. Pattison's conclusions. Moreover, Ms. Buckley, one of Defendant's reviewers, agreed that these restrictions were justified. The evaluations of Drs. Pattison and Matossian persuade the Court that, more likely than not, Plaintiff was disabled on May 1, 2008; she could not continuously engage in any occupation for which she was qualified. As noted above, Defendant identified four "sedentary duty skilled occupations" for Plaintiff: counselor, job development specialist, field director and employment agency manager. AR285. Because Plaintiff is limited to sitting for no more than three-and-a-half hours per day, the Court is not convinced that she can perform any of these positions, or any sedentary job, on a full-time basis. In its employability analysis report, Defendant erroneously concluded that Plaintiff could work a thirty-hour workweek, or six-hour workdays. As noted above, this figure appears to be the sum of the hours Plaintiff could sit, stand and walk, as stated by Dr. Matossian. Even if Plaintiff could work a six-hour day, she could not sit for more than three-and-a-half hours, and for no more than one hour at a time. It is not likely, as Defendant appears to assume, that Plaintiff could complete her duties in these sedentary occupations while either standing or walking for the balance of her day. Defendant challenges Dr. Matossian's assessment, asserting that its sole basis was "plaintiff's own subjective complaints, an issue which by itself is insufficient to support an award of further benefits." Def.'s Reply at 6. However, Dr. Matossian's notes show that she was aware of more than just Plaintiff's self-reported pain: she knew of Plaintiff's spine and shoulder conditions. See AR336. These conditions, which had been consistently recognized by Dr. Pattison, along with Plaintiff's reports of pain, adequately support Dr. Matossian's conclusion. Indeed, Defendant's attempt to discount Plaintiff's subjective reports of pain is not supported by Ninth Circuit precedent. See Saffon, 522 F.3d at 872 (stating that "individual reactions to pain are subjective and not easily determined by reference to objective measurements"); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.1989) ("[D]espite our inability to measure and describe it, pain can have real and severe debilitating effects; it is, without a doubt, capable of entirely precluding a claimant from working. Because pain is a subjective phenomenon, moreover, it is possible to suffer disabling pain even where the degree of pain, as opposed to the mere existence of pain, is unsupported by objective medical findings."). Throughout her treatment by Drs. Pattison and Matossian, Plaintiff consistently reported that she experienced pain. Although she reported some improvement in her level of pain to Dr. Pattison, she never stated that she was free of it. Notably, Dr. Pattison, along with other doctors, diagnosed Plaintiff with degenerative spinal conditions. Thus, it is reasonable to infer that, over time, Plaintiff's pain would increase. 1164 Defendant also contends that Dr. Matossian's conclusions contradicted her earlier statements. In April, 2007, Dr. Matossian estimated, for a state benefits claim, that Plaintiff could return to work on January 1, 2008. AR384. This belief does not preclude Dr. Matossian's later conclusions regarding Plaintiff's functioning. Defendant also notes that Dr. Matossian's records from 2005 did not report that Plaintiff's hypertension and diabetes were disabling. However, this omission likewise does not preclude Dr. Matossian's finding, two years later, that Plaintiff was functionally limited. Defendant makes much of Dr. Pattison's assertions that Plaintiff could perform light-duty work. Although Dr. Pattison opined in October, 2006, after a cursory review of Plaintiff's job description, that he did not find anything that would prevent Plaintiff from returning to work, he later took a contrary position. In a December 9, 2006 report, he noted that Plaintiff could not return to her usual and customary job because of her carpal tunnel syndrome. He further stated that Plaintiff's multiple conditions "may well preclude her from participating in her usual and customary job." AR437. Thus, even though Dr. Pattison believed that Plaintiff could return to the workforce, he never made findings that she had the functionality to engage in any occupation for which she was qualified. Nor did Dr. Pattison ever state that Plaintiff's subjective reports of pain were unfounded. The Court finds the report of Dr. Clark minimally persuasive. Although he examined Plaintiff in person, he did not review her medical records. He also believed that Plaintiff did not have any work restrictions for her wrists or hands, despite her carpal tunnel syndrome. Plaintiff had not undergone surgery for her carpal tunnel at the time Dr. Clark examined her, and there is no evidence that the condition had significantly improved in the six months since Dr. Pattison concluded that this condition prevented Plaintiff from returning to work. Also, Dr. Clark's conclusion that Plaintiff could perform "light work" did not establish that she could continuously engage in an occupation for which she was qualified. Like Dr. Pattison, Dr. Clark did not define what constituted "light work." The Court likewise gives little weight to the opinions of Drs. Marion and Fuchs. Although they reviewed Plaintiff's medical records, they did not examine her in person. Moreover, the two doctors viewed Plaintiff's conditions in isolation: Dr. Marion solely addressed Plaintiff's orthopedic conditions, whereas Dr. Fuchs focused on her hypertension and diabetes. They did not address the co-morbid nature of Plaintiff's conditions or whether, as Dr. Pattison suggested, the conditions in combination could preclude Plaintiff from working at her usual and customary job. Nor did Defendant's reviewing doctors either account for Plaintiff's reports of pain or state that her pain had no basis. Although Defendant did not need to prove a material improvement in Plaintiff's condition to defeat her entitlement to benefits, her lack of consistent, marked progress is probative of her continuing disability. Like those of the plaintiff in Saffon, Plaintiff's MRIs continued to reflect degenerative conditions that were not expected to improve over time. This evidence, on its own, does not prove Plaintiff's disability; however, along with the other proof she presents, the lack of consistent improvement lends support for her position. Finally, Plaintiff's award of Social Security Disability Insurance (SSDI) benefits, based on an administrative law judge's (ALJ) October 15, 2009 ruling, similarly 1165 buttresses her showing.[4] In his decision, the ALJ found Plaintiff to be disabled, under the Social Security Act, since February 16, 2005. Defendant correctly notes that the standard applied to Plaintiff's SSDI claim differs from that applicable under her policy. However, notwithstanding this difference, her entitlement to SSDI benefits suggests that she suffers from some limitation on her ability to work. Again, although this award does not constitute direct proof, it reinforces Plaintiff's showing that she had a disability that could qualify her for benefits under her policy. Accordingly, the Court is persuaded that Plaintiff, more likely than not, was disabled under the Program's terms as of May 1, 2008. Plaintiff presents evidence of her disability, and Defendant does not persuade the Court that Plaintiff's or her treating physicians' statements are not credible. She is therefore entitled to the restoration of her long-term disability and "Waiver of Premium" benefits as of May 1, 2008. D. Entitlement to Pre-judgment Interest A district court may award pre-judgment interest on past-due benefits in ERISA cases. The decision whether to award such interest is "a question of fairness, lying within the court's sound discretion, to be answered by balancing the equities." Landwehr v. DuPree, 72 F.3d 726, 739 (9th Cir.1995) (quoting Shaw v. Int'l Ass'n of Machinists & Aerospace Workers Pension Plan, 750 F.2d 1458, 1465 (9th Cir.1985)). The Court finds that the equities support an award of pre-judgment interest in this case. "Generally, the interest rate prescribed for post-judgment interest under 28 U.S.C. § 1961 is appropriate for fixing the rate of pre-judgment interest...." Blankenship v. Liberty Life Assurance Co. of Boston, 486 F.3d 620, 628 (9th Cir.2007). This section provides that interest is calculated "at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding. [sic] the date of the judgment." 28 U.S.C. § 1961(a). In Nelson v. EG & G Energy Measurements Group, Inc., 37 F.3d 1384, 1391 (9th Cir.1994), the court stated: EG & G argues that the pre-judgment interest rate should have been calculated at the 52-week Treasury bill rate[5] as of the time of judgment, which was 3.51 percent. This does not correspond with the approach taken in Western Pacific Fisheries [, Inc. v. S.S. President Grant, 730 F.2d 1280, 1289 (9th Cir.1984)]. In that case, insurance underwriters had 1166 paid out funds for which they sought reimbursement. The interest rate utilized for the pre-judgment interest was the average 52-week Treasury bill rate operative immediately prior to the date of payment by the underwriters. This makes good sense because pre-judgment interest is intended to cover the lost investment potential of funds to which the plaintiff was entitled, from the time of entitlement to the date of judgment. It is the Treasury bill rate during this interim that is pertinent, not the Treasury bill rate at the time of judgment. The Treasury bill rate at the time of judgment has no bearing on what could have been earned prior to judgment. The method of calculating the pre-judgment interest utilized by the district court reasonably reflected this approach. The interest due was calculated as though the plaintiffs had invested the withheld funds at the 52-week Treasury bill rate and then reinvested the proceeds annually at the new rate. This reasonably reflects the conservative investment income the plaintiffs would have been able to have earned had they received the funds on September 30, 1987. 37 F.3d at 1391-92. Thus, Plaintiff is due interest equivalent to that which would have accrued if she had invested her benefits at a rate equal to the weekly average 1-year constant maturity Treasury yield on the date the benefits were due to her, and then reinvested the proceeds annually at a rate equal to the weekly average 1-year constant maturity Treasury yield at the time of the reinvestment, up to the date on which Defendant satisfies the judgment. CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiff's Motion for Judgment (Docket No. 28) and DENIES Defendant's Cross-Motion for Judgment (Docket No. 36). Plaintiff qualifies for continued long-term disability benefits under the terms of the Program. She is entitled to an award of her long-term disability benefits from May 1, 2008 through the entry of judgment, plus pre-judgment interest calculated in the manner discussed above. Plaintiff is also entitled to a reinstatement of her waiver of life insurance premium claim benefits under the Program. Defendant shall calculate the amount of past benefits and interest due in the first instance and the parties shall file a stipulated form of judgment within fourteen days of the Court's Order, unless a dispute concerning the amount due arises and cannot be resolved without Court intervention, in which case the parties may move for appropriate relief. Plaintiff may file a motion for attorneys' fees and costs within fourteen days of entry of judgment. As the successful party in this action, she is entitled to move to recover the reasonable attorneys' fees and costs she has incurred in prosecuting this action, the amount of which shall be determined by post-judgment motion. 29 U.S.C. § 1132(g)(1); Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984). Pursuant to Civil Local Rule 54-5, the parties are ordered to meet and confer regarding Plaintiff's motion for attorneys' fees within fourteen days of entry of judgment. IT IS SO ORDERED. NOTES [1] The Court hereinafter refers to the actions of Hartford as those of Defendant. [2] The policy defines "Gainfully Employed" as: the performance of any occupation for wages, remuneration or profit, for which You are qualified by education, training or experience on a full-time or part-time basis, for the Employer or another employer, and which We approve and for which We reserve the right to modify approval in the future. Roberts Decl., Ex. 1 at POL20. [3] Plaintiff asks the Court, "in its de novo review of the Plan provisions," to "interpret the Earnings Qualifier as setting a minimum level of earnings that one must be able to achieve in the evaluation of whether one is continuously unable to engage in any occupation for which she may become qualified." Pl.'s Reply at 23. Because the Program's policy language does not require such an interpretation, the Court declines to find such an implied term. [4] The Ninth Circuit has adopted a de novo scope of review that allows a district court, in its discretion, to consider evidence outside the administrative record in order "to enable the full exercise of an informed and independent judgment." Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir.1995). However, a court must not consider evidence outside the administrative record unless "circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision." Id. at 944 (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir.1993)). The Court considers Plaintiff's award of SSDI benefits because it constitutes additional evidence that she could not have presented in the administrative process. See Opeta, 484 F.3d at 1217. [5] At the time Nelson was decided, 28 U.S.C. § 1961(a) provided that the applicable interest rate was "the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540857/	362 S.W.3d 39 (2012) STATE of Missouri, Plaintiff-Respondent, v. Neldon H. NEAL, Defendant-Appellant. No. SD 31057. Missouri Court of Appeals, Southern District, Division One. March 23, 2012. 40 Erika R. Eliason, Columbia, MO, for Appellant. Chris Koster, Attorney General, and, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO., for Respondent. DON E. BURRELL, Presiding Judge. Neldon H. Neal ("Defendant") appeals his conviction of involuntary manslaughter in the first degree for the shooting death of Judy Lewis ("Victim"). See section 565.024.[1] In a prior trial, a jury acquitted Defendant of second-degree murder, but found him guilty of voluntary manslaughter. We subsequently reversed Defendant's voluntary manslaughter conviction and its accompanying life sentence in State v. Neal, 304 S.W.3d 749, 750 (Mo.App. S.D.2010) (Neal I). As none of the complaints Defendant asserts in the instant appeal were presented to the trial court, he seeks plain-error review. Defendant claims the trial court clearly erred by: 1) violating his right to be free from double jeopardy in that the State's second amended information charged him with "knowingly" causing the death of Victimthe mental state required for the second-degree murder charge of which he was previously acquitted; and 2) submitting an instruction to the jury that authorized it to find him guilty of involuntary manslaughter in the first degree if it found that he "recklessly" caused the death of Victima different mental state than that alleged in the second amended information. Finding no merit in either contention, we affirm. Applicable Principles of Review An issue not properly preserved for appellate review "may be reviewed for 41 plain error only[.]" State v. Storey, 40 S.W.3d 898, 903 (Mo. banc 2001). "[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "The rule has long been established that to preserve constitutional questions for review on appeal, the constitutional issue must be raised in the trial court at the earliest opportunity, consistent with good pleading and orderly procedure." Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 701 (Mo. banc 2008). "The determination of whether the protections against double jeopardy apply is a question of law which this court reviews de novo." State v. Mullenix, 73 S.W.3d 32, 34 (Mo.App. W.D.2002). Facts and Procedural Background Defendant was originally charged with second-degree murder. As earlier noted, the jury in Defendant's first trial convicted him of the lesser-included crime of voluntary manslaughter. Neal I, 304 S.W.3d at 751. In Neal I, we held that the verdict directors submitted to the jury were erroneous because voluntary manslaughter was submitted as a lesser-included offense of second-degree murder without the necessary predicate evidence at trial of "sudden passion arising from adequate cause." Id. at 754. We found Defendant was prejudiced thereby as "it permitted the jury to find [Defendant] guilty of a crime that it was impossible to commit given the apparent absence of `sudden passion.'" Id. at 755. And because Defendant was acquitted of the greater charge, he could not again be tried for voluntary manslaughter as a lesser-included offense of a greater charge now barred by double jeopardy. Id. at 756. After we issued our mandate reversing the conviction, the State, acting consistently with that mandate, charged Defendant in an "Amended Information" as a persistent offender with first-degree involuntary manslaughter for "recklessly caus[ing] the death of [Victim] by shooting her[.]" Five days before Defendant's second trial commenced, the State filed a "Second Amended Information." That information was still subtitled "Involuntary Manslaughter in the First Degree" but it charged Defendant with "knowingly" causing the death of Victim instead of "recklessly" doing so. The Second Trial The evidence adduced at Defendant's second trial is summarized here in the light most favorable to the verdict. See State v. Stidman, 259 S.W.3d 96, 98 (Mo. App. S.D.2008). On March 13, 2007, Marsha Sumrall and her small child were living with Victim and Defendant at their trailer in Roby. Ms. Sumrall was formerly Victim's daughter-in-law and viewed Victim as her "mom." Defendant and Nathan Light arrived at the trailer around 2:00 p.m. Mr. Light went to Defendant's trailer to help him with an awning, to take a shower (because Mr. Light did not have hot water at his residence), and to have a sandwich. Both Defendant and Mr. Light had been drinking alcohol, and Mr. Light believed they were both drunk. After the two men arrived at the trailer, Defendant changed his mind about doing anything with the awning. Mr. Light went inside to take a shower, and while he was showering he heard "murmuring and cussing and carrying on, but [he] ignored it[.]" Ms. Sumrall, who was inside the trailer, heard Defendant yelling at Victim outside the residence. The yelling continued as the two came inside the trailer. Defendant was calling Victim derogatory names 42 and accusing her of infidelity. Defendant grew angrier "and started foaming at the mouth." Defendant also yelled at Ms. Sumrall, calling her names. He threw a barstool three times. Ms. Sumrall, who was frightened by Defendant's behavior, took her child and ran to her car, forgetting to take her car keys with her. When she went back inside to retrieve her keys, Defendant was standing over Victim, holding a knife sharpener. Victim was crouched down and had her hands in the air. Ms. Sumrall "[had] never seen a look of terror in [Victim's] eyes like that." Ms. Sumrall knew where a gun was kept inside the trailer. She "grabbed the gun and turned and pointed it [at Defendant], and [she] tried to make it work[,]" but the gun did not fire. At that moment, Mr. Light came into the living room. Defendant said he was sorry, put the knife sharpener on the kitchen counter, and went to the back of the trailer. When Defendant left the room, Ms. Sumrall gave the gun to Victim and told her to kill Defendant. Instead, Victim, still holding the gun, sat in a chair. Defendant returned to the living roomholding a bigger gunand took from Victim the smaller gun she was holding. Ms. Sumrall described what happened next as follows: Um, [Defendant] said, bitch, pull a gun on me and I'll kill you. You know, at that time I turned to run out the front door, and he put the little gun to the back of my head and it went click. And he's like, stop bitching, I'll shoot. I then see [my child] standing in front of my car, so I knew I had to get to her. Ms. Sumrall ran toward her child and Defendant chased her. Victim ran after Defendant and jumped on his back. Defendant threw Victim off his back, and she landed against a truck parked next to Ms. Sumrall's car. Defendant then pointed the gun in Victim's direction and fired. Ms. Sumrall heard the gunshot and saw smoke come out of Victim's chest. Victim "grabbed her chest and toppled to the ground." Ms. Sumrall put her child in her car, directed Mr. Light to also put Victim in, retrieved her car keys from inside the trailer, and drove to a convenience store in Roby. A Texas county deputy, medical personnel, and other law enforcement-related persons responded to Ms. Sumrall's car at the convenience store. The Texas County coroner testified that Victim was in the back seat "in a sitting position and deceased."[2] Several officers then went to Defendant's residence and found it vacant. A search for Defendant ensued, and he was eventually located sixty-two days later at a campsite in "a very, very remote rugged wooded area along the [Gasconade R]iver." Defendant was taken into custody and executed a written waiver of rights before being questioned. During that questioning, Defendant informed the authorities where to find the gun he had used to shoot Victim. The interview of Defendant was recorded. Although that recording was admitted into evidence and played for the jury, Defendant did not include it in the record on appeal.[3] 43 The Challenged Jury Instruction and Resulting Verdict The verdict-directing instruction, Instruction No. 6, submitted to the jury at Defendant's second trial read as follows. If you find and believe from the evidence beyond a reasonable doubt: First, that on or about March 13, 2007 ... [Defendant] caused the death of [Victim] by shooting her, and Second, that [D]efendant recklessly caused the death of [Victim], then you will find [Defendant] guilty of involuntary manslaughter in the first degree. The instruction further stated "that a person acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances." Defense counsel argued to the jury, consistent with his opening statement, that "this was an accident, [a] terrible and tragic accident, but an accident nonetheless." The jury found Defendant guilty of involuntary manslaughter in the first degree, and this appeal timely followed his subsequent sentencing. Analysis Point IDouble Jeopardy Defendant's first point contends his conviction of first-degree involuntary manslaughter violated his Fifth and Fourteenth Amendment rights to be free from double jeopardy. Defendant bases this claim on the fact that the State's second amended information charged Defendant with "knowingly" causing the death of Victim (the mental state required to prove second-degree murder) "and in the appeal from that [second-degree murder] conviction this Court reversed his conviction of the lesser[-]included offense of voluntary manslaughter in the first degree." As earlier indicated, Defendant acknowledges that "because the issue was not raised at the trial court level, [he] is forced to request review for plain error."[4] Defendant cites State v. Elliott, 987 S.W.2d 418 (Mo.App. W.D.1999), as an example of plain error review of an alleged double-jeopardy violation. In Elliott, the court stated that "an exception [to the rule permitting waiver of a double-jeopardy claim] should be made in any case in which we can determine from the face of the record that the court had no power to enter the conviction." Id. at 421 (citing Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992)), overruled on other grounds by State v. Heslop, 842 S.W.2d 72 (Mo. banc 1992).[5] 44 A review for plain error involves two steps. First we determine whether the claim of error facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. [State v. Kidd, 75 S.W.3d 804, 811 (Mo.App.2002)]. If so, we can then, in our discretion, consider whether a miscarriage of justice or manifest injustice will occur if the error is not corrected. Id. at 811-12. An appellant must go beyond a mere showing of prejudice to show manifest prejudice affecting his substantial rights. Id. at 812. State v. Washington, 249 S.W.3d 255, 257 (Mo.App. W.D.2008). Here, we do not make it past the first step, as Defendant has not facially demonstrated the existence of an error that gives us substantial grounds for believing that a manifest injustice or miscarriage of justice has occurred. Here, assuming arguendo, that the State's second amended information charged Defendant with second-degree murder, he was tried and convicted of first-degree involuntary manslaughter, not second-degree murder or voluntary manslaughter. Defendant next argues that "[d]ue process mandates that a criminal defendant may not be convicted of an offense not expressly charged in the information or indictment, citing State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999). But [a] defendant may be convicted of any lesser offense necessarily included in an indictment or information. Hibler, 5 S.W.3d at 150. Accordingly, since involuntary manslaughter is a lesser included offense of second degree murder, State v. Smith, 737 S.W.2d 731, 734 (Mo.App. W.D.1987), the information charging [a]ppellant with second degree murder was sufficient to support trying him for involuntary manslaughter. Likewise, the original information charging [a]ppellant with armed criminal action in connection with the murder in the second degree charge was sufficient to support [a]ppellant's conviction of armed criminal action in connection with the lesser-included offense of involuntary manslaughter. State v. Hayes, 88 S.W.3d 47, 55 (Mo.App. W.D.2002). For due-process purposes, "a defendant is deemed to have notice that he could be convicted of any lesser-included offense of a charged crime." Id. at 56 n. 4. The State's initial amended information, filed after our remand in Neal I, clearly stated the offense charged was involuntary manslaughter, it cited the involuntary manslaughter statute (section 565.024) as authority, and it alleged that Defendant "recklessly caused" the death of Victim as required by section 565.024.1. The second amended information changed the dates of Defendant's alleged prior convictions and asserted that Defendant "knowingly caused" Victim's death. Despite this change in the mental state asserted, the second amended information still referred to the offense charged as "Involuntary Manslaughter in the First Degree," and it still cited section 565.024, the involuntary manslaughter statute. The incorrect use of the "knowingly caused" language in the State's second amended information did not create a double-jeopardy violation in the instant case because the jury convicted Defendant of first-degree involuntary manslaughter; it did not convict Defendant of either second-degree murder or voluntary manslaughter. As discussed more fully in our analysis of 45 Defendant's second point, the jury was asked to determine whether Defendant "recklessly" caused Victim's deaththe appropriate mental state for first-degree involuntary manslaughter. Moreover, our review of the transcript reveals that the word "knowingly" was never uttered during Defendant's second trial. It is clear that the case was prosecuted, defended, and submitted to the jury for it to determine whether Defendant was guilty of first-degree involuntary manslaughter, not second-degree murder or voluntary manslaughter. No manifest injustice or miscarriage of justice appears. Point one is denied. Point TwoAlleged Instructional Error Defendant's second point contends the trial court erred in instructing the jury that it could find Defendant guilty of first-degree involuntary manslaughter "if [it] found that [Defendant] recklessly caused the death of [Victim]" because this "fundamentally changed the culpable mental state" as set forth in the second amended information. As with his first point, Defendant acknowledges that his claim may only be reviewed for plain error as he lodged no objection to the submission of this instruction at trial.[6] Defendant does not allege that the challenged instruction incorrectly set forth the elements necessary to support a conviction for first-degree involuntary manslaughter, and he acknowledges that instructional error seldom constitutes plain error, citing State v. Thomas, 75 S.W.3d 788, 791 (Mo. App. E.D.2002). Instead, Defendant characterizes his claim as one pointing out a "fatal variance" between the charge and the instruction. Defendant argues that he "was entitled to rely on the factual allegations in the second amended information[,]" citing State v. Madison, 997 S.W.2d 16, 19 (Mo. banc 1999), and that it was a manifest injustice for "the State to fix the error in the second amended information by means of the jury instruction." "A variance is prejudicial only if it affects the appellant's ability adequately to defend against the charges presented in the information and given to the jury in the instructions." State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992); see also Madison, 997 S.W.2d at 19 (even if the charging document was incorrect, the defendant must still demonstrate actual prejudice); State v. Goss, 259 S.W.3d 625, 627 (Mo. App. S.D.2008) ("[e]ven a material variance is prejudicial only if it impairs the defendant's ability to adequately defend"). Indeed, "the Crossman Court enunciated a standard that `unless the defendant can be said to have been prejudiced in that he would have been better able to defend had the information contained the phrase ..., he should not be entitled to relief on account of the variance.'" Lee, 841 S.W.2d at 650 (quoting State v. Crossman, 464 S.W.2d 36, 42 (Mo. banc 1971)). As noted by the State, section 562.021 addresses the application of culpable mental states and provides that while "reckless" acts are insufficient to prove that someone "knowingly" acted in a certain way, "[w]hen recklessness suffices to establish *46 a culpable mental state, it is also established if a person acts purposely or knowingly." Section 562.021.3 and .4, RSMo 2000. Defendant argues that he "was not properly given notice that he would be required to defend against the `reckless' mental state which greatly impaired his ability to properly prepare his defense." Tellingly, he suggests no actual impairment or harm. And, given our opinion from Defendant's first appeal, the language used in the State's first amended information, the other language used in its second amended information, and our review of the transcript of Defendant's second trial, Defendant's claim of prejudice due to lack of notice is unpersuasive. Defendant's position from his opening statement through closing argument was that the incident was an accident. This clearly refutes Defendant's after-the-fact claim that the substitution of "knowingly caused" for "recklessly caused" in the State's second amended information negatively impacted his ability to adequately defend the case. The challenged instruction was not erroneousit correctly submitted the charge of first-degree involuntary manslaughter. And Defendant's trial conduct demonstrated that the erroneous language in the State's second amended information did not prejudice his ability to prepare and execute his defense. No manifest injustice or miscarriage of justice appears. Defendant's second point is also denied, and the judgment of conviction and sentence is affirmed. RAHMEYER, and LYNCH, JJ., Concur. NOTES [1] Defendant received a fifteen-year sentence as a persistent felony offender. Unless otherwise indicated, all statutory references are to RSMo Cum.Supp.2011, and all rule references are to Missouri Court Rules (2011). [2] A subsequent examination revealed that Victim's heart and one lung were perforated by a single bullet and that she died from excessive blood loss. [3] "When an exhibit is not filed with an appellate court, its intendment and content will be taken as favorable to the trial court's ruling and as unfavorable to the appellant." State v. Davis, 242 S.W.3d 446, 449 n. 1 (Mo.App. S.D.2007). [4] Defendant raised the double-jeopardy issue in his motion for new trial and argued it at the sentencing hearing, but this was not "the earliest opportunity, consistent with good pleading and orderly procedure." Carpenter, 250 S.W.3d at 701. Cf. State v. Knifong, 53 S.W.3d 188, 192 (Mo.App. W.D.2001) ("[a] motion for new trial is too late to properly assert and preserve a claim that a statute is constitutionally invalid"). [5] In Elliott, the court discussed both the Fifth Amendment's double jeopardy clause and the prohibition stated in section 556.041(1) against conviction for multiple offenses where "[o]ne offense is included in the other[.]" Id. at 420-22. Mr. Elliott was convicted of both first-degree robbery and first-degree assault, in addition to other offenses, resulting from acts against a single victim on one occasion. Id. at 419-20. In that particular case, a deadly weapon or dangerous instrument was not used to commit the robbery, and the defendant was charged "with assault causing serious physical injury to the victim and with causing a serious physical injury to rob her. The first-degree assault charge did not require proof of a fact which the robbery charge did not also require." Id. at 421. The court vacated the conviction with the shorter sentence. Id. at 422. [6] Rule 28.03 provides that "[n]o party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." The rule also provides that "[t]he objections must also be raised in the motion for new trial in accordance with Rule 29.11." Id. Defendant's motion for new trial claimed that the verdict director was erroneous, but not because it varied from the charge. Rather, Defendant alleged in his motion for new trial that the instruction "fail[ed] to specify what actions of Defendant the State alleged were reckless[.]"	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540859/	353 S.W.3d 230 (2011) TOWN OF FLOWER MOUND, Texas, Appellant, v. MOCKINGBIRD PIPELINE, L.P., Appellee. No. 02-10-00069-CV. Court of Appeals of Texas, Fort Worth. October 13, 2011. Rehearing Overruled November 23, 2011. En Banc Reconsideration Overruled November 23, 2011. 231 Brown & Hofmeister, L.L.P. and Robert F. Brown, Edwin P. Voss, Jr., Terrence G. Welch, Richardson, for Appellant. Wood, Thacker & Weatherly, P.C. and Samuel B. Burke, Denton, for Appellee. PANEL: GARDNER and McCOY, JJ; and WILLIAM BRIGHAM (Senior Justice, Retired, Sitting by Assignment). OPINION BOB McCOY, Justice. I. Introduction Appellant Town of Flower Mound, Texas, attempts to bring an interlocutory appeal of the Denton County Probate Court's denial of its plea to the jurisdiction in favor of Appellee Mockingbird Pipeline, L.P. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008). We dismiss the appeal for want of jurisdiction. II. Factual and Procedural Background Mockingbird, a gas corporation, filed a condemnation action under section 181.004 of the utilities code to obtain a pipeline easement on property owned by Flower Mound, a home-rule municipality. The probate court issued an order appointing special commissioners to assess condemnation damages. The special commissioners awarded $69,170 as damages, Mockingbird deposited this amount into the probate court's registry, and both parties filed objections to the award. Flower Mound also filed a plea to the jurisdiction, arguing that it was entitled to governmental immunity 232 from suit and that Mockingbird had not established a waiver of its immunity. Mockingbird responded that Flower Mound's immunity had been waived under section 181.004. The probate court denied Flower Mound's plea to the jurisdiction, and Flower Mound filed a notice of appeal under civil practice and remedies code section 51.014(a)(8). Mockingbird filed a motion to dismiss the appeal for want of jurisdiction. III. Jurisdiction Although Flower Mound brings three issues, we must first address Mockingbird's motion to dismiss the appeal. See, e.g., Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (stating that before reaching the merits of the parties' issues, the court must inquire into its own jurisdiction). A. Motion to Dismiss Mockingbird argues that this appeal should be dismissed for want of jurisdiction because section 51.014 of the civil practice and remedies code does not expressly authorize interlocutory appeals from statutory probate courts. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a). Flower Mound responds with a number of arguments, which we have set out below. B. Standard of Review The standard of reviewde novo is the same with regard to jurisdictional issues and their statutory underpinnings. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002) (stating that subject matter jurisdiction is a question of law); Tarrant County v. McQuary, 310 S.W.3d 170, 172 (Tex.App.-Fort Worth 2010, pet. denied) (same); see also City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008) (setting out statutory construction standard of review). In construing statutes, we ascertain and give effect to the legislature's intent as expressed by the statutory language. City of Rockwall, 246 S.W.3d at 625. We construe the statutory text according to its plain and common meaning unless a contrary intention is apparent, or unless such a construction leads to absurd results. Id. at 625-26. The supreme court has stated that "[o]ur sole objective in construing [s]ection 51.014(a)(8) is to give effect to the Legislature's intent. In determining the Legislature's intent, we begin by looking at the plain meaning of the statute's words." Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex.2007) (citations omitted). "We strictly construe [s]ection 51.014(a) as `a narrow exception to the general rule that only final judgments are appealable.'" Id. at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001)). When the statutory text is clear, it is determinative of the legislature's intent, and we give meaning to the language consistent with other provisions in the statute. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010). C. History of Civil Practice and Remedies Code Section 51.014(a)(8) Section 51.014 was enacted in 1985. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, Tex. Gen. Laws 3242, 3280 (last amended Act of May 24, 2011, 82nd Leg., R.S., ch. 203, § 3.01, sec. 51.014, 2011 Tex. Sess. Law. Serv. 759, 759 (West)) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 51.014). From its 1985 enactment 233 through numerous amendments,[1] including the most recent amendment in the 2011 legislative session, the first sentence in subsection (a) has stated, "A person may appeal from an interlocutory order of a district court, county court at law, or county court that...." See id. § 51.014(a) (emphasis added). Although the language in section 51.014(a) has not changed, language in the other subsections has. Before the legislature's 2005 amendments,[2] subsection (d) stated that "a district court" may issue a written order for interlocutory appeal and subsection (e) stated that an appeal was not stayed in the "district court" unless the parties agreed. In 2005, however, the legislature amended subsections (d) and (e) as follows: (d) A district court, county court at law, or county court may issue a written order for interlocutory appeal in a civil action not otherwise appealable under this section if ... .... (e) An appeal under Subsection (d) does not stay proceedings in the trial court unless the parties agree and the trial court, the court of appeals, or a judge of the court of appeals orders a stay of the proceedings. See Act of May 27, 2005, 79th Leg., R.S., ch. 1051, § 1, 2005 Tex. Gen. Laws 3512, 3512-13 (emphasis added). The bill analysis with regard to the change in subsection (d) states, among other things, that the change was to "authorize[] a court in a civil action, rather than a district court,... to permit an appeal from an interlocutory order." Senate Comm. on State Affairs, Bill Analysis, Tex. S.B. 494, 79th Leg., R.S. (2005). Effective September 1, 2011, subsection (d) now states: "On a party's own motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if...."[3]See Act of May 24, 2011, 82nd Leg., R.S., ch. 203, § 3.01, sec. 51.014, 2011 Tex. Sess. Law. Serv. 759, 234 759. In short, section 51.014 continues to be a work in progress. D. Flower Mound's Arguments We have categorized Flower Mound's argument into five subarguments. 1. Purpose over Form Flower Mound argues that a focus on the beginning phrase of section 51.014(a) is misplaced because the statute's purpose "is to allow appellate review of the substance of the challenge to the trial court's jurisdiction, not its form." It points out that the supreme court stated in Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006), that section 51.014(a)(8)'s purpose is to allow interlocutory appellate review when a trial court denies a governmental unit's challenge to subject matter jurisdiction and that under Long, form does not matter. In Long, the supreme court stated, "The Legislature provided for an interlocutory appeal when a trial court denies a governmental unit's challenge to subject matter jurisdiction, irrespective of the procedural vehicle used.... To be entitled to an interlocutory appeal, section 51.014(a)(8) requires the denial of a jurisdictional challenge." 207 S.W.3d at 339. However, although Flower Mound argues that this means that the form of the challenge does not matter and points out that the court "did not state that appellate review of the denial of a jurisdictional challenge could only occur from a district or county court in order to satisfy" section 51.014(a)'s requirements, the interlocutory appeal at issue in Long was from a district court, not from a statutory probate court. Id. at 336. And the formor "procedural vehicle"at issue was an implicit denial of a plea to the jurisdiction by the trial court, which the supreme court held was sufficient to satisfy section 51.014(a)(8). Id. at 339-40. The issue of whether an interlocutory appeal from a statutory probate court could be brought under section 51.014(a) was therefore not before the court. Further, while the form of the procedural vehiclesuch as an implicit denial of a plea to the jurisdiction is irrelevant, it is not the form of the procedural vehicle that is at issue before us. Accordingly, Long provides us with no guidance here. 2. Appellate Jurisdiction Flower Mound also contends that to hold that we lack jurisdiction here "would greatly restrict this Court's own jurisdiction in all appeals that do not come from district or county courts,"that is, in appeals from probate courtssince the constitution and government code only mention appellate court jurisdiction for district courts and county courts. See Tex. Const. art. V, § 6(a) (stating that the court of appeals shall have appellate jurisdiction extending "to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law"); Tex. Gov't Code Ann. § 22.220(a) (West 2010) (stating that the court of appeals has appellate jurisdiction over all civil cases within its district of which the district courts and county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $250, exclusive of interest and costs). However, the probate code provides that "[a] final order issued by a probate court is appealable to the court of appeals." See Tex. Prob.Code Ann. § 4A(c) (West 2010). And although the probate code does not define "final," the supreme court has adopted a test for determining when an order in a probate proceeding is final for appellate purposes. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995) (stating that if there is an express statute declaring the phase of the probate proceedings to be final and appealable, that 235 statute controls, and setting out test for determining final orders otherwise).[4] And the restriction at issue here is when interlocutory appealsa very narrowly construed subphylum of appealare allowed and from which courts these appeals can be taken, not this court's jurisdiction in general to hear appeals. 3. Concurrent Jurisdiction in Denton County Flower Mound also argues that because the probate court has concurrent jurisdiction with district courts in condemnation proceedings by virtue of its concurrent jurisdiction with statutory county courts in certain types of cases, and appeals in condemnation proceedings are to occur "as in other civil cases," the probate court here functions as a district court, bringing it "within the ambit of [section] 51.014(a)." See Tex. Gov't Code Ann. § 25.0635 (West 2004); Tex. Prop.Code Ann. § 21.063 (West 2000). Further, it contends that because property code section 21.063(a) states that "[t]he appeal of a judgment in a condemnation proceeding is as in other civil cases," an interlocutory appeal under section 51.014 is permissible here. See Tex. Prop.Code Ann. § 21.063(a). Denton County currently has two statutory county courts at law[5] and one statutory probate court. Tex. Gov't Code Ann. § 25.0631(a)(1)-(2), (b) (West 2004). In addition to the "regular" statutory probate court jurisdiction over probate proceedings and matters arising under the health and safety code, under government code section 25.0635(d), Denton County's statutory probate court has jurisdiction over eminent domain cases as provided by property code section 21.001 for statutory county courts, "with all ancillary or pendent jurisdiction necessary for adjudication of an eminent domain case as provided by [s]ections 21.002 and 21.003"[6] of the property 236 code. Id. §§ 25.0021, 25.0635(d) (West 2004). Property code section 21.001 provides that district courts and county courts at law have concurrent jurisdiction in eminent domain cases. Tex. Prop.Code Ann. § 21.001 (West 2004). Property code section 21.063 states that "[t]he appeal of a judgment in a condemnation proceeding is as in other civil cases." See id. § 21.063 (West 2000). a. Government Code Section 25.0635 Government code section 25.0635 was enacted in 1995. See Act of May 19, 1995, 74th Leg., R.S., ch. 328, § 3, 1995 Tex. Gen. Laws 2833, 2833-34 (amended 2001) (current version at Tex. Gov't Code Ann. § 25.0635). The 1995 version of the statute stated: (a) A statutory probate court in Denton County has the jurisdiction provided by law for a county court except that the court does not have the juvenile jurisdiction, jurisdiction over misdemeanors under Section 26.045, habeas corpus jurisdiction, or appellate criminal jurisdiction provided by law for county courts. A statutory probate court has no criminal jurisdiction other than the contempt powers provided by general law for county courts. (b) A statutory probate court has the civil jurisdiction provided by Section 25.0003 for statutory county courts. (c) A statutory probate court has the jurisdiction provided by general law for county courts or statutory county courts over civil penalties, forfeitures, including surety bond forfeitures and escheats regardless of the amount in controversy or remedy sought. (d) A statutory probate court has jurisdiction, regardless of the amount in controversy or remedy sought, over eminent domain cases as provided by Section 21.001, Property Code, for statutory county courts; direct and inverse condemnation cases; adjudication and determination of land titles, whether or not ancillary to eminent domain proceedings; partition cases; suits to quiet title; trespass to try title; lien foreclosures; and adjudication of all freehold and leasehold interests, easements, licenses, and boundaries of real property; with all ancillary or pendent jurisdiction necessary for adjudication of an eminent domain case as provided by Sections 21.002 and 21.003, Property Code. Id. Therefore, in 1995, the Denton County statutory probate court had jurisdiction that was more or less coextensive with that of the statutory county courts at law except for the specific exclusions set forth in subsection (a). The bill analysis for the senate bill that became the 1995 statute supports this conclusion, stating that the reason behind the expansion of jurisdiction for the Denton County statutory probate court was "[d]ue to the increasing number of court cases each year, [for which] Denton County has had to modify the jurisdiction and structure of [the] courts to accommodate the crowded dockets" and, as proposed, the bill "create[d] an additional county court and modifie[d] other county courts to assume case overload."[7] Comm. on Jurisprudence, Bill Analysis, Tex. S.B. 240, 74th Leg., R.S. (1995). The legislature amended section 25.0635 in 2001. See Act of May 23, 2001, 77th Leg., R.S., ch. 635, § 2, 2001 Tex. Gen. 237 Laws 1197, 1197 (current version at Tex. Gov't Code Ann. § 25.0635). The amendment deleted most of the 1995 statute's subsection (a) and all of subsections (b) and (c). Subsection (d) remained unchanged. Subsection (a) of the 2001 version of the statute, which remains the same in the most current version, was amended to read, "A statutory probate court in Denton County has the jurisdiction provided by Section 25.0021." Id. Section 25.0021 provides for regular statutory probate court jurisdiction over probate matters and some matters under the health and safety code.[8] Section five of the 2001 act provided that the Denton County statutory probate judge was to transfer "all actions, cases, matters, or proceedings over which the court loses jurisdiction under this Act and that are pending in the court on May 1, 2002, to a district or county court in the county with jurisdiction over the action, case, matter, or proceeding." See Act of May 23, 2001, 77th Leg., R.S., ch. 635, § 5, 2001 Tex. Gen. Laws 1198, 1198. The bill analysis for the 2001 amendment reflects that it was generated in response to legislative recommendations that had already been implemented to limit statutory county court jurisdiction, which did not, at the time, have corresponding provisions for statutory probate court jurisdiction. Comm. on Jurisprudence, Bill Analysis, SRC-JBJ Tex. H.B. 689, 77th Leg., R.S. (2001). The amendment was intended to limit statutory probate court jurisdiction to "matters of probate, guardianship, mental health, and eminent domain and delineate[d] the particular matters over which statutory probate courts have jurisdiction." Id. Therefore, while the Denton County statutory probate court's jurisdiction was once mostly coextensive with the statutory county court, after 2001, it no longer had the same reach. Although the probate court may have concurrent jurisdiction with district courts in condemnation proceedings, nothing in the statutory framework shows that the legislature intended the probate court to function as a district court to the extent that section 51.014(a)'s language would implicitly include "statutory probate court" in the list of courts from which interlocutory appeals may be taken. b. Property Code Section 21.063 Although Flower Mound argues that an interlocutory appeal is permissible here because property code section 21.063(a) states that "[t]he appeal of a judgment in a condemnation proceeding is as in other civil cases," not all civil cases qualify for an interlocutory appealonly those that meet the requirements set out in civil practice and remedies code section 51.014 or other statutory provisions permitting interlocutory appeals. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014; see also id. § 15.003(c) (West Supp. 2010) (setting out procedure for interlocutory appeal in venue determination involving multiple plaintiffs and intervening plaintiffs), §§ 51.016 (West Supp. 2010), 171.098 (West 2011) (allowing interlocutory appeals involving arbitration); cf. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001) ("[T]he general rule, with a few mostly 238 statutory exceptions, is that an appeal may be taken only from a final judgment."). And again, while the probate court may have been functioning with the same authority as a county or district court in this matter, we have found no authority to allow us to write "probate court" into section 51.014(a) to allow an interlocutory appeal from the probate court's decision to deny Flower Mound's plea to the jurisdiction. Cf. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex.2009) (op. on reh'g) ("Enforcing the law as written is a court's safest refuge in matters of statutory construction, and we should always refrain from rewriting text that lawmakers chose." (emphasis added)). 4. Precedent Flower Mound also points out that this court and other courts of appeals have "routinely" found jurisdiction to exist in interlocutory appeals from probate courts under section 51.014(a). However, the particular issue of whether an interlocutory appeal may be brought under section 51.014(a)(8) from a probate court's denial of a plea to the jurisdiction does not appear to have arisen in most of these cases. See, e.g., City of Carrollton v. HEB Parkway., Ltd., 317 S.W.3d 787, 789-90 (Tex. App.-Fort Worth 2010, no pet.) (addressing merits of city's appeal from the denial of its plea to the jurisdiction by the Denton County Probate Court without addressing jurisdictional issue); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex.App.-Fort Worth 2004, no pet.) (op. on reh'g) (dismissing interlocutory appeal of Denton County Probate Court's denial of a plea to the jurisdiction under section 51.014(a)(8) because the appeal was brought by nongovernmental entities); Denton County v. Huther, 43 S.W.3d 665, 666-67 (Tex.App.-Fort Worth 2001, no pet.) (dismissing interlocutory appeal of probate court's denial of plea to the jurisdiction under section 51.014(a)(8) because county failed to timely perfect its appeal). In addition to Carrollton, Shores, and Huther, we have found five other cases from this court involving interlocutory appeals from a probate court under section 51.014: Maris v. Hendricks, 262 S.W.3d 379, 381 (Tex.App.-Fort Worth 2008, pet. denied); Allen v. Havens, No. 02-05-00318-CV, 2007 WL 805477, at 1 (Tex. App.-Fort Worth Mar. 15, 2007, no pet.) (mem. op.); Shell Cortez Pipeline Co. v. Shores, 127 S.W.3d 286, 288 (Tex.App.-Fort Worth 2004, no pet.); Armstrong-Bledsoe v. Smith, No. 02-03-00323-CV, 2004 WL 362293, at 1 (Tex.App.-Fort Worth Feb. 26, 2004, no pet.) (mem. op.); and Mobil Oil Corp. v. First State Bank of Denton, No. 02-02-00119-CV, 2004 WL 1699928, at 1 (Tex.App.-Fort Worth July 29, 2004, no pet.) (mem. op.). Shell Cortez and First State Bank are the only cases in which one of the parties raised this court's jurisdiction to hear an interlocutory appeal under section 51.014 from the probate court.[9] However, we dismissed First State 239 Bank, an attempted interlocutory appeal of the probate court's class certification order under section 51.014(a)(3), for want of jurisdiction as moot without discussing whether we had jurisdiction over the interlocutory appeal under section 51.014. 2004 WL 1699928, at 1. Shell Cortez also brought an interlocutory appeal from the probate court's class certification ruling under section 51.014(a)(3). Shell Cortez, 127 S.W.3d at 288. While we ultimately held that the probate court did not have subject matter jurisdiction over the class claims at issue, in response to the appellees' argument that this court did not have jurisdiction to review the interlocutory appeal, we held that this court had subject matter jurisdiction to review the probate court's subject matter jurisdiction under section 51.014(a)(3). Id. at 288, 290, 292. Specifically, this court stated, [W]e are authorized to review the trial court's authority or jurisdiction to enter the very order appealed here: the class certification order. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(3); Cook United, Inc., 464 S.W.2d at 106; Carp, 343 S.W.2d at 243; Letson, 979 S.W.2d at 417; Air Prods. & Chems., Inc., 594 S.W.2d at 221-22. To hold otherwise would nonsensically preclude our review of a fundamental tenetsubject matter jurisdictionunderlying an order the legislature has statutorily authorized us to review. We hold that we have jurisdiction in this section 51.014(a)(3) class certification appeal to address whether the statutory probate court has subject matter jurisdiction over the class claims.[[10]] Id. at 292. We have reviewed the cases cited in this key provision. Cook United involved an appeal of a temporary injunction from a Tarrant County district court. State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971). Carp involved an appeal of a temporary injunction from a Dallas County district court. Tex. State Bd. of Examiners v. Carp, 162 Tex. 1, 343 S.W.2d 242, 243 (1961). Letson involved an appeal of a temporary injunction from a Potter County district court. Letson v. Barnes, 979 S.W.2d 414, 416 (Tex.App.-Amarillo 1998, pet. denied). And Air Products involved an appeal of a temporary injunction from a Travis County district court. R.R. Comm'n of Tex. v. Air Prods. & Chems., Inc., 594 S.W.2d 219, 221-22 (Tex.Civ. App.-Austin 1980, writ ref'd n.r.e.). None of these cases provides a basis for concluding that an interlocutory appeal may be taken from a statutory probate court.[11]240 See, e.g., In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 303 (Tex.2010) (orig. proceeding) ("Appellate rights can vary depending on which court a case is filed in, even among trial courts with concurrent jurisdiction, and even when the same judge in the same courtroom presides over two distinct courts.").[12] 5. Policy Finally, Flower Mound complains that to hold in favor of Mockingbird with a literal construction of section 51.014(a) would "lead to absurd consequences that could not have been intended by the Legislature, and [would be] contrary to the purpose of this interlocutory appeal statute, which is to provide an appellate remedy for certain orders when public policy dictates." We acknowledge that it may have been a legislative oversight not to add "statutory probate court" to the list of courts from which interlocutory orders may be appealed via section 51.014in fact, it seems likely, under the circumstances, as medical malpractice cases brought by heirs of a deceased and condemnation proceedings involving governmental entities can both occur in the probate courts[13]however, we are constrained by the statutory language and history as set out above to conclude that an interlocutory appeal is not permitted here. See id.; see also Huther, 43 S.W.3d at 667 n. 2 (stating that subject matter 241 jurisdiction may be raised for the first time on appeal). E. Conclusion While this court has a duty to determine its jurisdiction sua sponte, without guidance from the parties, as illustrated above, it can be challenging to determine when jurisdiction is lacking. Nonetheless, based on the plain language of section 51.014(a), the 2005 amendments, and the new 2011 amendments, the legislature has clearly demonstrated that it knows how to modify the language of this particular statute when it so desires. This statutory background, combined with the legislature's history of expanding and then contracting the jurisdiction of the statutory probate court in Denton County, supports dismissing the appeal for want of jurisdiction. See Presidio Indep. Sch. Dist., 309 S.W.3d at 930 (stating that clear statutory text is determinative of the legislature's intent). To the extent we have held otherwise in prior interlocutory appeals from the Denton County Probate Court, these jurisdictional determinations were incorrect. We grant Mockingbird's motion to dismiss. IV. Conclusion Having granted Mockingbird's motion to dismiss, we dismiss the appeal for want of jurisdiction. NOTES [1] See Act of May 16, 2005, 79th Leg., R.S., ch. 97, § 5, 2005 Tex. Gen. Laws 180, 180 (adding appeal of denial of a motion to dismiss under section 90.007current section (a)(11)); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849 (adding appeal of denial of a motion under section 74.351(b) or grant of relief sought under section 74.351(l)current subsections (a)(9) and (a)(10)amending subsection (b), and deleting some language from subsection (c)); Act of May 17, 2001, 77th Leg., R.S., ch. 1389, § 1, 2001 Tex. Gen. Laws 3575, 3575 (adding provisions pertaining to stayscurrent subsections (b) and (c) and provision addressing interlocutory appeal by agreed ordercurrent subsection (d)); Act of May 27, 1997, 75th Leg., R.S., ch. 1296, § 1, 1997 Tex. Gen. Laws 4936, 4936-37 (adding appeal of the grant or denial of a defendant's special appearancecurrent subsection (a)(7)and appeal of the grant or denial of a plea to the jurisdiction by a governmental unit as defined in section 101.001current subsection (a)(8)among other provisions); Act of May 25, 1993, 73rd Leg., R.S., ch. 855, § 1, 1993 Tex. Gen. Laws 3365, 3365-66 (adding appeal of the denial of a motion for summary judgment by a media defendantcurrent section (a)(6)); Act of May 24, 1989, 71st Leg., R.S., ch. 915, § 1, 1989 Tex. Gen. Laws 3946, 3946-47 (adding appeal of a denial of a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the statecurrent subsection (a)(5)); Act of May 1, 1987, 70th Leg., R.S., ch. 167, § 3.10, 1987 Tex. Gen. Laws 1351, 1351 (adding appeal of a grant or refusal of a temporary injunction to the list of items subject to interlocutory appealcurrent subsection (a)(4)). [2] At the time this case was filed, the 2005 version of section 51.014 controlled. [3] The legislature also amended subsection (e) and added subsection (f), but these changes and additions have no effect here. [4] We note that the recognized exception to the final judgment rule for probate proceedings does not apply here because this case is not a traditional "probate proceeding" as defined by the probate code. Cf. In the Estate of Frame. No. 06-10-00073-CV, 2010 WL 2931242, at 1 (Tex.App.-Texarkana July 28, 2010, no pet.) (mem. op.) (citing De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006)). That is, a "probate proceeding," according to the probate code, "means a matter or proceeding related to the estate of a decedent," including probate of a will, issues of letters testamentary and of administration, heirship determination, a claim arising from estate administration, the settling of a personal representative's account of an estate, and a will construction suit. Tex. Prob.Code Ann. § 3(bb) (West 2010); see also Crowson, 897 S.W.2d at 782-83 (discussing the difficulty in determining when a "particular phase" of a probate proceeding is concluded for purposes of immediate appeal). [5] Denton County Court at Law No. 1 gives preference to juvenile matters and criminal cases and does not have jurisdiction over civil, civil appellate, probate, or mental health matters or family law cases other than juvenile proceedings, while Denton County Court at Law No. 2 has jurisdiction over all civil causes and proceedings, original and appellate, prescribed by law for county courts but lacks jurisdiction over causes and proceedings concerning roads, bridges, and public highways, the general administration of county business, and criminal cases. See Tex. Gov't Code Ann. § 25.0633(a), (c)-(f) (West 2004). [6] Property code section 21.002 states that if an eminent domain case is pending in a county court and the court determines that the case involves an issue of title "or any other matter that cannot be fully adjudicated in that court, the judge shall transfer the case to a district court." Tex. Prop.Code Ann. § 21.002 (West 2004). Section 21.003 states that a district court may determine all issues in any suit in which the state or one of its political subdivisions, "a person, an association of persons, or a corporation is a party," and "that involves a claim for property or for damages to property occupied by the party under the party's eminent domain authority or for an injunction to prevent the party from entering or using the property under the party's eminent domain authority." Id. § 21.003 (West 2004). [7] See Tex. Gov't Code Ann. § 311.023 (West 2005) (stating that, in construing statutes, we may consider the circumstances under which the statute was enacted, its legislative history, and its former statutory provisions, among other things). [8] It also contains a provision stating that [i]f this section conflicts with a specific provision for a particular statutory probate court or county, the specific provision controls, except that this section controls over a specific provision for a particular court or county if the specific provision attempts to create jurisdiction in a statutory probate court other than jurisdiction over probate, guardianship, mental health, or eminent domain proceedings. Tex. Gov't Code Ann. § 25.0021. [9] Maris brought an interlocutory appeal of the probate court's order denying his motion to dismiss the deceased Hendricks's health care liability claims, under section 51.014(a)(9) and section 74.351. Maris, 262 S.W.3d at 381-82. No one raised an issue with regard to this court's jurisdiction to hear this interlocutory appeal. Id. In Allen, an estate's administrator who was the deceased's surviving spouse, brought an interlocutory appeal of the probate court's order granting a special appearance under section 51.014(a)(7). 2007 WL 805477, at 1-2. Again, it does not appear that either party raised an issue with regard to this court's jurisdiction to hear the interlocutory appeal. See id. And in Armstrong-Bledsoe, a trustee brought an interlocutory appeal under section 51.014(a)(4) from a temporary injunction order issued by the probate court to compel an accounting. 2004 WL 362293, at 1. No one raised an issue with regard to this court's jurisdiction to hear the interlocutory appeal. See id. [10] The dissent in Shores discussed this provision, stating, The Shell Cortez Pipeline interlocutory class certification appeal was filed pursuant to civil practice and remedies code section 51.014(a)(3). The legislature in section 51.014 granted us general appellate jurisdiction over any appeal "from an interlocutory order" set forth in section 51.014. We held in the Shell Cortez Pipeline class certification appeal that civil practice and remedies code section 5[1].014's general statutory grant of appellate jurisdiction implicitly conferred upon us the power to review the trial court's subject matter jurisdiction to enter the class certification order being appealed. Specifically, we held that "when an appellate court is granted jurisdiction to review an interlocutory order or judgment, that jurisdiction encompasses a review of the validity of the ... trial court's authority or jurisdiction to enter the appealable interlocutory order." 128 S.W.3d at 727 (Walker, J., dissenting) (citations omitted). [11] To the contrary, the Cook court refers us to Carp. See Cook, 464 S.W.2d at 106. The Carp court states that the supreme court "would have jurisdiction of an appeal from a final judgment in the main case out of which the application for a temporary injunction grew, and therefore has jurisdiction to review by writ of error the action of the trial court in granting such injunction," and refers us to "Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, and authorities there cited." 343 S.W.2d at 243. In Southwest Weather Research, the supreme court stated that it had previously held by virtue of the provisions of said Article 4662, [that this court] `has jurisdiction to review, by writ of error, the ruling of the trial court in granting or refusing a temporary injunction where the main case out of which the application for injunction grew is one over which the Supreme Court has jurisdiction. This Court clearly has jurisdiction of the main cases out of which the temporary injunctions were issued. 160 Tex. 104, 327 S.W.2d 417, 418 (1959) (citations omitted). However, in a subsequent case, Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253 (Tex. 1983), the court revisited its statement in Southwest Weather Research about article 4662"the temporary injunction appeal statute," which had specifically provided, "Such case may be heard in the Court of Civil Appeals or Supreme Court...." 647 S.W.2d at 254 (citing former Tex.Rev.Civ. Stat. Ann. art. 4662 (West 1925)). In Hajek, the court observed that the legislature had amended article 4662 in 1981 to state that a party "may [only] appeal from such order or judgment to the Court of Appeals," limiting the supreme court's jurisdiction over appeals from the granting or denying of a temporary injunction. Id. The court then set out the two exceptions to its inability to review court of appeals decisions reviewing interlocutory orders made appealable to the court of appeals: when there is a dissent upon a question of law material to the decision or when the court of appeals's holding on a material question of law conflicts with a prior decision of another court of appeals or the supreme court. Id. at 254-55 ("This general rule now applies to temporary injunctions, since the legislature no longer designates them a special type of interlocutory order appealable to this Court."). [12] Flower Mound also directs us to In re Estate of Trevino, 195 S.W.3d 223 (Tex.App.-San Antonio 2006, no pet.) (op. on reh'g), State v. Fernandez, 159 S.W.3d 678 (Tex.App.-Corpus Christi 2004, no pet.), and Smith v. Lanier, 998 S.W.2d 324 (Tex.App.-Austin 1999, pet. denied), but in these interlocutory appeals from probate courts, the courts of appeals either did not explain why an interlocutory appeal was permissible under section 51.014(a) or did not address their jurisdiction under section 51.014(a) at all. [13] The underlying facts of this casean entity with condemnation authority attempting to take public property from a townare unlikely to have arisen before in the probate court, and Flower Mound has argued that the merits of this case present an issue of first impression.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2541831/	716 F. Supp. 2d 299 (2010) Alberto NIEVES, Plaintiff, v. NEW YORK CITY POLICE DEPARTMENT, Police Officer Carrasquillo, Detective DePaolis, Sergeant Mackay, Detective Mulroy, Sergeant Ragni, and Police Officer Tass, Defendants. No. 07 Civ. 5751 (SAS). United States District Court, S.D. New York. May 18, 2010. 301 Christopher N. Lavigne, Esq., Sean C. Marlaire, Esq., Sean J. Young, Esq., Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Plaintiff. Diep Nguyen, Assistant Corporation Counsel, New York City Law Department, New York, NY, for Defendants. OPINION AND ORDER SHIRA A. SCHEINDLIN, District Judge: I. INTRODUCTION Alberto Nieves, an inmate who was initially proceeding pro se but is now represented by counsel, brings suit under section 1983 of title 42 of the United States Code and New York law alleging unreasonable entry and search of a residence, false arrest, malicious prosecution, conspiracy, and intentional infliction of emotional distress against defendants the New York City Police Department ("NYPD"), Detectives DePaolis and Mulroy, Sergeants MacKay and Ragni, and Police Officers Carrasquillo and Tass. On January 26, 2010, I granted in part and denied in part defendants' motion for summary judgment in this action (the "January 26 Opinion").[1] On February 17, 2010, Nieves, still proceeding pro se, filed an untimely motion for reconsideration of that decision. On March 1, 2010, Nieves's motion was denied. Thereafter, pro bono counsel filed a notice of appearance on his behalf on March 15, 2010.[2] In blatant disregard for the Southern District of New York's fourteen day deadline to file a motion for reconsideration and having given no prior notice to the Court of their intention to do so Nieves's counsel moved on April 26, 2010 for reconsideration.[3] No less than four months had passed since the January 26 Opinion was issued and nearly six weeks since counsel first filed a notice of appearance before Nieves filed this motion. Under any calculationincluding the date on which counsel first filed a notice of appearance 302 this motion is substantially untimely and is, itself, a sufficient reason to deny Nieves's motion.[4] For the most part, Nieves's motion also raises issues that are inappropriate for a motion for reconsideration. Nevertheless, Nieves has demonstrated cause to revisit this Court's decision to dismiss Nieves's illegal entry and search claims for failure to demonstrate compensatory damages. In the interest of justice, the Court grants Nieves's motion for reconsideration, but for that issue only. The remainder of Nieves's motion is denied. II. BACKGROUND On July 19, 2004, several of the defendants arrested Nieves without a warrant at an apartment owned by a friend (the "Apartment") for a shooting that had occurred nine days earlier.[5] Nieves often frequented the Apartment to smoke marijuana or "hang out" with women and stayed overnight about five times per month.[6] Nieves testified that he had a key to the apartment, kept personal items there, and occasionally contributed to expenses.[7] On this occasion, Nieves intended to stay in the apartment for the afternoon only.[8] When he arrived, the owner of the apartment was present, but left soon after, leaving Nieves alone in the Apartment.[9] Nieves then smoked marijuana he had purchased on his way over and fell asleep.[10] According to Nievesalthough disputed by defendantsthe officers then arrived at the Apartment and, with their guns drawn, ordered him out of the Apartment.[11] Nieves then left the Apartment and the door to the apartment closed behind him.[12] The officers handcuffed Nieves, patted him down, and took him outside to be held in an NYPD van.[13] The officers then entered the closed Apartment (without a warrant) and conducted a search, finding marijuana on top of the television in the living room and crack-cocaine floating in the toilet.[14] After approximately forty-five minutes, Officer Carrasquillo entered the van and told Nieves that narcotics had been found in the apartment.[15] Defendants have a different account of the arrest. According to defendants, when they arrived at the apartment, Sergeant 303 MacKay observed Nieves leaving the apartment.[16] When Nieves saw Sergeant MacKay, he re-entered the apartment and tried to close the door.[17] Nieves stopped, opened the door, and invited Sergeant MacKay inside the apartment.[18] Once inside, the officers saw the marijuana and crack-cocaine.[19] It is not clear from defendants' evidence whether Nieves was arrested before or after the narcotics were observed. III. APPLICABLE LAW Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court.[20] A motion for reconsideration is appropriate where "`the moving party can point to controlling decisions or data that the court overlookedmatters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'"[21] A motion for reconsideration may also be granted to "`correct a clear error or prevent manifest injustice.'"[22] The purpose of Local Rule 6.3 is to "`ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'"[23] Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court."[24] Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively to reargue `"those issues already considered when a party does not like the way the original motion was resolved.'"[25] A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced,"[26] nor is it a substitute for appeal.[27] 304 IV. DISCUSSION A. Nieves's False Arrest Claims In the January 26 Opinion, this Court dismissed Nieves's false arrest claims against defendants Carrasquillo, Tass, MacKay, and Ragni on qualified immunity grounds because "it was objectively reasonable for them to believe probable cause existed" to arrest Nieves.[28] Nieves contends that the Court erred in finding that these defendants were entitled to qualified immunity by overlooking the Second Circuit's decision in Loria v. Gorman.[29] In Loria, the Second Circuit denied an officer's claim of qualified immunity where he entered a residence without exigent circumstances and executed a warrantless arrest.[30] In reaching this conclusion, the Second Circuit cited the Supreme Court's seminal decision in Payton v. New York.[31] In Payton, the Supreme Court held that "[a]bsent exigent circumstances [the] threshold [of a residence] may not reasonably be crossed without a warrant."[32] A suspect may not be arrested in his house without an arrest warrant even where there is probable cause to arrest him.[33] Nieves contends that because the Court did not consider whether exigent circumstances existed prior to arresting him, the Court committed clear error. Nieves's position conveniently ignores a critical distinction between Loria, Payton, and his version of the facts of this case the officers did not cross the threshold of the apartment to execute the arrest.[34] Rather, according to Nieves, he stepped outside of the Apartment, concededly in response to police direction, and let the door close behind him before he was patted down and handcuffed. Recognizing that according to his own testimony the officers did not enter the Apartment to effectuate a warrantless arrest in a home, Nieves relies on United States v. Gori.[35] In Gori, following a tip that the occupants were dealing drugs out of an apartment, two police officers began surveillance on the apartment.[36] They did not have either an arrest warrant or a search warrant.[37] About twenty or thirty minutes later, a delivery woman arrived with an order of food for that apartment.[38] The two police officers then accompanied the 305 delivery woman to the apartment.[39] The delivery woman knocked and the occupants opened the door.[40] Both officers immediately displayed their shields, ordered all of the occupants into the hallway, and arrested them.[41] The officers then obtained the consent of one of the suspects to enter and search the apartment.[42] Upon doing so, the officers found and seized physical evidence.[43] The defendants were later charged with conspiracy to distribute cocaine.[44] Prior to trial, the defendants moved to suppress physical evidence seized in the apartment on the grounds that the officers had violated the Fourth Amendment and the Payton rule by constructively entering the apartment when they ordered the individuals out of the apartment.[45] Defendants argued that the evidence seized should be suppressed as the fruits of an illegal seizure in violation of the Fourth Amendment.[46] The Second Circuit rejected the defendants' view. The Second Circuit agreed that the individuals were "seized" for purposes of the Fourth Amendment when the officers, standing outside of the apartment, made a show of police authority and ordered the occupants to leave the apartment.[47] However, because the occupants had voluntarily opened the door for an invitee (the delivery woman), they had no legitimate expectation of privacy and the Payton rule did not apply.[48] "The officers therefore needed no warrant to temporarily `seize' the occupants and conduct a limited investigation, and such an investigation is constitutional so long as it was reasonable in all the circumstances."[49] Nieves contends that under Gori, he was "seized" inside of the Apartment, and, because Nieves did not open the door voluntarily to an invitee, the Payton rule should apply.[50] Thus, according to Nieves, exigent circumstances were required to permit the officers to make a lawful warrantless arrest.[51] Contrary to Nieves's assertion, however, the Second Circuit in Gori expressly refrained from deciding the precise question presented by Nieves, noting that because "[t]he Payton rule ... is directed primarily at warrantless physical intrusion into the home,"[52] "[i]t is unclear whether Payton's solicitude is aroused when a dwelling is penetrated by the voice of a police officer standing outside. The facts of this case, however, do not draw us into that debate."[53] Here, as in Gori, 306 there was no physical entry of the Apartment by the officers before they arrested Nieves. While he may have been "seized" inside the Apartment based on the officers' exercise of authority from outside of the Apartment, the Second Circuit has not yet ruled that exigent circumstances are required before the police may make such a seizure.[54] Thus, the January 26 Opinion did not err in this regard. Nieves also quarrels with this Court's finding that Nieves's false arrest claims should be limited to the time period from arrest until the discovery of narcotics because defendants did not establish exigent circumstances prior to entering the Apartment and finding the narcotics.[55] In the January 26 Opinion, this Court, applying Townes v. City of New York, held that "[o]nce the narcotics were discovered, [] the officers had probable cause to arrest Nieves. That the narcotics were found pursuant to an arguably unreasonable entry and search is irrelevant because the fruit of the poisonous tree doctrine is inapplicable to civil actions arising under section 1983. Therefore, Nieves' false arrest claim is viable, but only for the period between his initial arrest and the discovery of the narcotics."[56] Nieves takes issue with this Court's application of Townes and asserts that there is a question of fact as to whether Nieves's false arrest claims may extend past the discovery of the narcotics.[57] However, Nieves fails to cite any controlling case that supports that assertion and does no more than reargue whether and how Townes should apply. Nothing in Nieves's argument changes this Court's prior analysis or undermines the Court's conclusions. Nieves's argument is one for appeal, not for a motion for reconsideration.[58] B. Unreasonable Entry and Search Claim In the January 26 Opinion, the Court also dismissed Nieves's unreasonable entry and search claims because Nieves provided no evidence of any compensatory injury.[59] Nieves correctly points out that even in the absence of colorable compensatory injury, a jury could award Nieves nominal or 307 punitive damages.[60] As a result, Nieves's unreasonable entry and search claim is reinstated and considered in light of the original briefing by Nieves and defendants. Defendants asserted that Nieves's illegal entry and search claims should be dismissed for lack of standing because, according to defendants, Nieves did not have a legitimate expectation of privacy in the Apartment.[61] I disagree. To have standing to object to an entry and search of a home under the Fourth Amendment, a plaintiff must show that he had a `"legitimate expectation of privacy'" in the place searched.[62] "This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable."[63] "A protected privacy interest has been found in a wide array of circumstances, ranging from ownership or regular occupancy of a home, to status as an overnight guest in someone else's home, or even in someone else's hotel room, to a rental storage unit, to one's business premises, including the desk drawers and file cabinets contained therein, as well as the contents of one's office computer."[64] It is undisputed that Nieves had been friends with the Apartment's owner for several years, spent the night in the Apartment about five times a month, had a key to the Apartment, kept personal items there, and was the sole occupant at the time the officers arrived at the Apartment.[65] Nieves also claims that he was asleep at the time the officers arrived and that he assisted the Apartment's owner with some of the expenses.[66] These facts are sufficient to establish that Nieves had a legitimate expectation of privacy in the Apartment and has standing to contest the officer's search after the arrest.[67] 308 Despite the fact that Nieves was asleep, alone, in the Apartment at the time the officers arrived, defendants contend that Nieves could not have a legitimate expectation of privacy in the Apartment because he was not an overnight guest.[68] By his own testimony, he planned to leave later that day, rather than stay overnight as he has done in the past.[69] But the Supreme Court's assessment of why overnight guests are entitled to a legitimate expectation of privacy undermines defendants' argument: From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth"a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable."[70] Indeed, the Second Circuit has recognized that "[t]here is no authority for the proposition that one need live in the premises, or exercise control over them, in order to enjoy a privacy interest in those premises."[71] Nieves had a legitimate expectation of privacy in the Apartment and standing to challenge the allegedly illegal entry. Because the parties dispute the circumstances giving rise to the officer's entryi.e., whether the officers entered the closed door of the Apartment after arresting Nieves or whether Nieves, in fact, invited the officers insideis a question of fact for a jury. As a result, Nieves's illegal entry and search claim is reinstated for trial. V. CONCLUSION For the foregoing reasons, Nieves's motion for reconsideration is granted in part and denied in part. An exception to the strict deadline regarding motions for reconsideration has been made in this instance in the interest of justice and because Nieves previously appeared pro se. No additional extensionsparticularly with regard to the October 18, 2010 trial datewill be granted. The Clerk of the Court is directed to close this motion (Docket No. 54). A conference is scheduled 309 for May 27, 2010 at 4:00 p.m. in Courtroom 15C. SO ORDERED. NOTES [1] See Nieves v. New York City Police Dept., No. 07 Civ. 5751, 2010 WL 330205 (S.D.N.Y. Jan. 26, 2010). [2] See March 15, 2010 Notice of Appearance by Sean J. Young on behalf of Nieves (Docket No. 50). [3] See S.D.N.Y. Civ. R. 6.3. [4] See Sea Trade Co. Ltd. v. FleetBoston Fin. Corp., No. 03 Civ. 10254, 2009 WL 4667102, at 3 (S.D.N.Y. Dec. 9, 2009) ("Failure to adhere to Local Rule 6.3's time limitations is in and of itself a sufficient reason to deny a motion for reconsideration."). [5] See Nieves, 2010 WL 330205, at 1. The facts set forth in the January 26 Opinion were drawn from exhibits attached to the Declaration of Diep Nguyen, defendants' counsel, in Support of Defendants' Motion for Summary Judgment ("Nguyen Decl."). [6] Nieves, 2010 WL 330205, at 1. [7] See id. [8] See id. [9] See id. [10] See id. [11] See id.; Deposition of Alberto Nieves, Ex. C to Nguyen Decl. ("Nieves Dep.") at 110-111 ("I could see he had his gun drawn .... He said, `Nieves, come out.' .... I opened the door and put my hands out ...."). [12] See Nieves, 2010 WL 330205, at 1; Nieves Dep. at 111 ("I opened the door and put my hands out, I stepped out, the door closed."). [13] See Nieves, 2010 WL 330205, at 1; Nieves Dep. at 111 ("[The officer] put me against the wall, handcuffed me, and they patted me down."). [14] See Nieves, 2010 WL 330205, at 1. [15] See id. [16] See id. [17] See id. [18] See id. [19] See id. [20] See Patterson v. United States, No. 04 Civ. 3170, 2006 WL 2067036, at 1 (S.D.N.Y. July 26, 2006) ("The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court.") (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983)). [21] In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir.2003) (quotation marks omitted). [22] RST (2005) Inc. v. Research in Motion Ltd., 597 F. Supp. 2d 362, 365 (S.D.N.Y.2009) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992)). [23] Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at 3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v. Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at 1 (S.D.N.Y. May 31, 2001)). Accord Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y.2005) ("[A] movant may not raise on a motion for reconsideration any matter that it did not raise previously to the court on the underlying motion sought to be reconsidered."). [24] United States v. Treacy, No. 08 CR 366, 2009 WL 47496, at 1 (S.D.N.Y. Jan. 8, 2009) (quotation marks omitted). Accord Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the motion when the movant "seeks solely to relitigate an issue already decided"). [25] Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at 1 (S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y.1996)). [26] Associated Press v. United States Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005). [27] See Grand Crossing, 2008 WL 4525400, at 3. [28] Nieves, 2010 WL 330205, at 3. [29] See Memorandum of Law in Support of Plaintiff's Motion for Reconsideration of the Court's Opinion Granting in Part Defendants' Motion for Summary Judgment ("Pl. Mem.") at 3-7 (citing Loria, 306 F.3d 1271, 1283 (2d Cir.2002)). [30] See id. [31] Loria, 306 F.3d at 1283-84 (citing Payton, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)). [32] 445 U.S. at 590, 100 S. Ct. 1371. [33] See id. [34] Note that under defendants' version of the facts, exigent circumstances would not be required because Nieves is alleged to have invited the officers inside the Apartment and thus consented to the entry. See United States v. Snype, 441 F.3d 119, 130 (2d Cir.2006) ("Although warrantless searches of private property are generally presumed to be unreasonable, the law recognizes certain exceptions, for example, when the search is conducted pursuant to the consent of an authorized person.") (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) and United States v. Lewis, 386 F.3d 475, 481 (2d Cir.2004)). [35] See Pl. Mem. at 5 (citing Gori, 230 F.3d 44, 49 (2d Cir.2000)). [36] See Gori, 230 F.3d at 47. [37] See id. [38] See id. [39] See id. [40] See id. [41] See id. [42] See id. [43] See id. [44] See id. at 48. [45] Id. [46] See id. [47] See id. at 49. [48] See id. at 53. [49] Id. [50] See Pl. Mem. at 3-4. [51] See id. [52] Gori, 230 F.3d at 51 (citing Payton, 445 U.S. at 585-86, 100 S. Ct. 1371 ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.") (quotation marks and citation omitted) (emphasis added) and New York v. Harris, 495 U.S. 14, 17, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990) ("Payton was designed to protect the physical integrity of the home.") (emphasis added)). [53] Id. Cf. Loria, 306 F.3d at 1284 ("We believe that it is clear that by stepping into the house, Gorman crossed Payton's `firm line' [`drawn ... at the entrance to the house'] and implicated its protections.") (quoting Payton, 445 U.S. at 590, 100 S. Ct. 1371) (emphasis added). [54] This case is also distinguishable from those cited in Gori where "police surround a dwelling, flood it with searchlights, and order evacuation over a bullhorn." Gori, 230 F.3d at 52 n. 2 (citing United States v. Morgan, 743 F.2d 1158, 1164-67 (6th Cir.1984) (finding a Payton violation on facts similar to those stated in Gori) and Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997) (finding Payton violation where "SWAT team surrounds a residence with machine guns pointed at the windows and then persons inside are ordered to leave the house backwards with their hands raised")). Should the Circuit decide that Nieves was seized "inside" the Apartment because he left it solely in response to what Nieves contends was an exercise of police authority, qualified immunity would still be appropriate as the officers would not have violated clearly established law in arresting Nieves outside the Apartment. [55] See Pl. Mem. at 7-9. [56] Nieves, 2010 WL 330205, at 3 (citing Townes v. City of New York, 176 F.3d 138, 145 (2d Cir.1999)). [57] See Pl. Mem. at 7-9. [58] See In re Refco Capital Markets, Ltd. Brokerage Customer Sees. Litig., No. 06 Civ. 643, 2008 WL 4962985, at 1 (S.D.N.Y. Nov. 20, 2008) ("A motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue."). [59] See Nieves, 2010 WL 330205, at 2 (citing Heck v. Humphrey, 512 U.S. 477, 487 n. 7, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994)). [60] See Nieves Mem. at 9-10 (citing Atkins v. New York City, 143 F.3d 100, 103 (2d Cir. 1998) ("A section 1983 plaintiff is entitled to nominal damages only in the absence of proof of actual injury.") and Robinson v. Cattaraugus Cty., 147 F.3d 153, 162 (2d Cir.1998) ("[I]n Section 1983 cases ... punitive damages may be awarded even in the absence of a compensatory award.")); see also Amato v. City of Saratoga Springs N.Y., 170 F.3d 311, 317 (2d Cir. 1999) ("While the main purpose of a § 1983 award is to compensate individuals for injuries caused by the deprivation of constitutional rights, a litigant is entitled to an award of nominal damages upon proof of a violation of a substantive constitutional right even in the absence of actual compensatory injury."). [61] See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment (Docket No. 33) ("Def. SJ Mem.") at 4-8. [62] U.S. v. Hamilton, 538 F.3d 162, 167 (2d Cir.2008) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)). [63] Id. Accord Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). [64] Hamilton, 538 F.3d at 167-68 (citations omitted). [65] See Nieves, 2010 WL 330205, at 1. [66] See id. [67] See Jones v. United States, 362 U.S. 257, 259, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960) (finding a legitimate expectation of privacy in an apartment where the petitioner was permitted to use the apartment, had a key to the apartment and kept clothes at the apartment, but paid nothing for its use, had only slept there "maybe a night," and at the time of the entry was the sole occupant of the apartment); United States v. Hamilton, 538 F.3d 162, 168 (2d Cir.2008) (recognized a legitimate expectation of privacy where the defendant had paid the $250,000 for the purchase of the house; the purchase was registered in the name of his "common law wife," and the mother of his child; had free access "to come and go as he pleased"; he went there "two to three times a week for years"; but did not have a key); United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir.2003) ("[The defendant's] regular presence at the home, his overnight stays, the discovery of his receipts in the house, and his comfort in entering the residence unannounced and taking a nap, all support our determination that [the defendant] had an ongoing and meaningful connection to [the owner's] home as a social guest. Therefore, [the defendant] has standing to challenge the government's search and seizure of evidence from [the owner's] residence."). [68] See Def. SJ Mem. at 5-8. [69] See Nieves, 2010 WL 330205, at *1. [70] Minnesota v. Olson, 495 U.S. 91, 99, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)) (emphasis added). [71] Hamilton, 538 F.3d at 169.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2541832/	721 F. Supp. 2d 491 (2010) Rhonda DANOS, Plaintiff, v. Edith JONES, Chief Judge, United States Court of Appeals for the Fifth Circuit, individually and in her official capacity as presiding officer of the Judicial Council of the Fifth Circuit, et al., Defendants. Civil Action No. 09-6299. United States District Court, E.D. Louisiana. July 8, 2010. 493 Samuel S. Dalton, Attorney at Law, Jefferson, LA, Remy Voisin Starns, Attorney at Law, New Orleans, LA, for Plaintiff. Brigham J. Bowen, U.S. Department of Justice, Washington, DC, for Defendants. MEMORANDUM OPINION AND ORDER W. HAROLD ALBRITTON, Senior Judge. I. INTRODUCTION This cause is before the court on a Motion to Dismiss (Doc. #43), filed by the Defendants on May 19, 2010. The Plaintiff was given an opportunity to respond to the Motion and did so, and the Defendants, with the consent of the Plaintiff, sought and obtained permission of the court to file a Reply in support of their Motion. To aid in its understanding of the parties' positions, the court held oral argument on the Motion to Dismiss on June 24, 2010. The Plaintiff, Rhonda Danos, filed a Complaint for Declaratory Judgment on September 15, 2009. The Defendants are the Judicial Council of the Fifth Circuit, Edith Jones, Carolyn Dineen King, Jerry E. Smith, W. Eugene Davis, Rhesa H. Barksdale, Edith Brown Clement, Priscilla Owen, Jennifer Walker Elrod, Leslie H. Southwick, Sarah Vance, Neal B. Biggers Jr., Louis G. Guirola, Sam R. Cummings, Hayden Head, and Fred Biery, all of whom are judges named individually and in their capacities as members of the Judicial Council of the Fifth Circuit. Danos seeks a Declaratory Judgment, reinstatement of her employment, back pay and benefits, and attorneys' fees and costs. The Defendants have moved in all capacities to dismiss all claims in the Complaint for Declaratory Judgment for lack of subject matter jurisdiction and for failure to state a claim. For reasons to be discussed, the Motion to Dismiss is due to be GRANTED for lack of jurisdiction.[1] II. MOTION TO DISMISS STANDARD A Rule 12(b)(1) motion challenges the district court's subject matter 494 jurisdiction and takes one of two forms: a "facial attack" or a "factual attack." A "facial attack" on the complaint requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). A "factual attack," on the other hand, challenges the existence of subject matter jurisdiction based on matters outside the pleadings. Lawrence, 919 F.2d at 1529. Under a factual attack, the court may hear conflicting evidence and decide the factual issues that determine jurisdiction. Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir.1991). The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S. Ct. 673, 86 L. Ed. 951 (1942) III. FACTS The allegations of the Plaintiff's Complaint for Declaratory Judgment are as follows: Rhonda Danos ("Danos"), the Plaintiff in this case, was employed as a secretary to United States District Judge G. Thomas Porteous, Jr. for nearly fourteen years. She was terminated from her employment on September 19, 2008. In this case, Danos challenges the order issued by the Judicial Council of the Fifth Circuit pursuant to which she was terminated. In May of 2007, the Department of Justice filed a formal Complaint of Judicial Misconduct Concerning the Honorable G. Thomas Porteous, Jr. with Defendant Edith H. Jones, Chief Judge of the United States Court of Appeals for the Fifth Circuit. The Department of Justice disclosed that it had chosen not to prosecute Judge Porteous. In November 2007, a Special Investigatory Committee report recommended that the Judicial Council of the Fifth Circuit ("Judicial Council") refer the matter to the Judicial Conference of the United States. In December 2007, the matter was certified to the Judicial Conference of the United States. In June of 2008, the Judicial Conference of the United States certified to the House of Representatives the Judicial Conference's determination that impeachment of Judge Porteous may be warranted. The Judicial Conference also authorized an invitation to the Judicial Council to decide whether to suspend proceedings regarding sanctions for misconduct, to issue a public reprimand, and to direct that no further cases be assigned to Judge Porteous for two years or until final action regarding impeachment and removal by Congress, if earlier than two years. Danos has incorporated into her Complaint letters signed by the Honorable Edith H. Jones in which the Judicial Council refers to disciplinary action contemplated by the Judicial Council against Judge Porteous, based in part on the Judicial Conference's recommendation, but also refers to the suspension of his power to employ staff. A majority of the Judicial Council voted to issue, and the Judicial Council ordered, a public reprimand of Judge Porteous, pursuant to Rule 20(b)(1)(D)(i), and ordered that no new cases be assigned to Judge Porteous for two years from the date of the Order and Public Reprimand or until Congress takes final action on the impeachment proceedings, whichever occurs earlier. Additionally, the Judicial Council ordered that, pursuant to 28 U.S.C. § 332(d)(1), Judge Porteous's authority to employ staff be suspended for the period of time during which his new cases would be suspended. See Exhibit A to the Complaint. Danos was terminated pursuant to this order. 495 Judge Porteous was impeached by the House of Representatives on March 11, 2010. His trial by the Senate has been scheduled, but has not yet occurred. IV. DISCUSSION At the outset, the court notes that while the individual Defendants have been named in both their individual and official capacities in the caption of the Complaint for Declaratory Judgment, no claims are asserted against the individual Defendants in their individual capacities. Furthermore, Danos clarified at oral argument that she does not intend to pursue claims against the individual Defendants, but only named the individuals in an attempt to assert an ultra vires theory. Accordingly, the court interprets the Complaint as only stating claims against the Judicial Council and the individual Defendants in their official capacities, which the Defendants have moved to dismiss based on sovereign immunity. The court now turns to the sovereign immunity defense as to those claims. Sovereign Immunity In a lawsuit against the United States, or an agency or official of the United States, the United States must waive its sovereign immunity and consent to suit for a court to exercise subject matter jurisdiction in the case. U.S. v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). There is no dispute in this case, and counsel for Danos conceded at oral argument, that the members of the Judicial Council of the Fifth Circuit are federal officials protected by sovereign immunity. See, e.g., Shemonsky v. Vanaskie, No. 04CV2759, 2005 WL 2031140 (M.D.Pa. Aug. 16, 2005) (sovereign immunity barred claim against Judicial Council of the Third Circuit). The Defendants contend, therefore, that the claims against the Defendants in their official capacities, as well as the Judicial Council, are due to be dismissed for lack of subject matter jurisdiction on the basis of sovereign immunity. There is apparently no dispute that the Judicial Council is entitled to sovereign immunity. The Plaintiff, Danos, however, contends that her claims against the members of the Judicial Council are not barred by sovereign immunity because they fit within the ultra vires exception to sovereign immunity. The ultra vires exception was recognized by the Supreme Court of the United States as an exception to sovereign immunity which allows for suit against federal officials in limited circumstances. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). The Supreme Court in Larson explained that the ultra vires exception applies in two situations: (1) where an officer's powers are limited by statute, but his actions go beyond those limitations, or (2) if his actions are unconstitutional. Larson, 337 U.S. at 689-90, 69 S. Ct. 1457. Under these circumstances, the officials' actions are considered individual and not of the sovereign. Id. at 689, 69 S. Ct. 1457. The Defendants dispute that the ultra vires exception to sovereign immunity is still a viable exception to sovereign immunity in the Fifth Circuit, but alternatively argue that, even if the exception can apply in cases in the Fifth Circuit, it does not apply in this case. In support of the argument that the Larson ultra vires exception no longer applies in the Fifth Circuit, the Defendants cite Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985). In Geyen, the court declined to apply the ultra vires theory, finding that the 1976 Amendments to the Administrative Procedures Act ("APA"), did away with this exception. Id. at 1307. The court used the following broad language: 496 The principal purpose of this amendment was to do away with the ultra vires doctrine and other fictions surrounding sovereign immunity. As the House Report notes, "Actions challenging official conduct are intrinsically against the United States and are now treated as such for all practical purposes." H.R.Rep. No. 1656, 94th Cong., 2d Sess. 11 (1976), reprinted in 1976 U.S.Code Cong. & Ad. News 6121, 6131. Were we to hold, as amicus urges, that Geyen's action is not against the United States, we would revive the technical complexities that Congress sought to eliminate in 1976. We decline to do so. We hold that Geyen's action challenging his activation and the denial of his hardship applications is against the United States and subject to § 2401(a)'s six-year limitation. Id. If Geyen applies in this case, the claims against the individual Defendants in their official capacities are barred by sovereign immunity. While the Geyen opinion certainly speaks broadly about the effects of the APA amendment, it does so in the context of a determination of the appropriate statute of limitations in that case, and it is not clear that the holding should apply here to preclude application of an ultra vires exception to sovereign immunity. In addition, other courts, including a panel of the Fifth Circuit Court of Appeals, albeit in an unpublished opinion, have implicitly recognized the continuing vitality of the ultra vires exception by analyzing its application to claims against federal officials in recent opinions. See, e.g., Taylor v. United States, 292 Fed.Appx. 383 (5th Cir. 2008) (unpublished); United Tribe of Shawnee Indians v. United States, 253 F.3d 543 (10th Cir.2001); Doe v. Wooten, No. 09-13707, 376 Fed.Appx. 883, 2010 WL 1645136 (11th Cir. April 26, 2010) (unpublished). At least one circuit has explicitly concluded that the ultra vires exception can still apply in certain cases. See Swan v. Clinton, 100 F.3d 973, 981 & n. 4 (D.C.Cir.1996) (applying Larson exception and concluding that amendments to APA had no applicability to a claim against the President of the United States, who is not an agency under the APA). Therefore, while mindful of the broad language in Geyen, this court determines that the better course in this case is to apply the ultra vires doctrine to the facts and claims as pled, in order to determine whether, if such an exception can apply in the Fifth Circuit, it applies in this case. Danos brings a single claim for declaratory judgment, seeking a declaration that the Judicial Council acted beyond its authority. Danos, however, contended at oral argument that she has asserted both the lack of statutory authority and the constitutional claim of the ultra vires exception to sovereign immunity. The court will address each in turn. A. Application of Ultra Vires Exception Based on Lack of Authority Danos has alleged in the Complaint that the Judicial Conference's order regarding suspension of the ability to employ staff went beyond the authority given to the Judicial Council by the Judicial Conference and 28 U.S.C. § 354.[2] Danos 497 states that the Judicial Council improperly infringed the appointment power of Judge Porteous under 28 U.S.C. § 752.[3] Danos further alleges that the Judicial Council's order was actually disciplinary, and has included within her Complaint the text of letters signed by Chief Judge Edith Jones which she contends demonstrate that the Judicial Council intended the suspension of the appointment power to be a form of discipline of Judge Porteous. In its order, the Judicial Council did not purport to suspend Judge Porteous's power to employ staff for the period in which he was not to be assigned new cases pursuant to the Judicial Conference's recommendation, or pursuant to § 354. Instead, the Judicial Council explicitly stated that its suspension of the power of Judge Porteous to employ staff was done pursuant to 28 U.S.C. § 332. Title 28, section 332(d)(1) states that "[e]ach judicial council shall make all necessary and appropriate orders for the effective and expeditious administration of justice within its circuit." Whether, as a factual matter, the Judicial Council was correct in determining that the suspension of the appointment power was necessary and appropriate for the effective administration of justice within its circuit, is not the relevant inquiry for this court in deciding the Motion to Dismiss. To find that the majority of the Judicial Council, who approved suspension of Judge Porteous's power to employ staff while his new case assignments were suspended, were acting ultra vires, this court would have to determine that the Judicial Council acted "without any authority whatever." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n. 11, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). "A claim of error in the exercise of that power is therefore not sufficient." Larson, 337 U.S. at 689-90, 69 S. Ct. 1457. The Defendants contend, and the court agrees, that the action taken pursuant to § 332 need not be viewed only as a disciplinary action, accepting Danos's allegation that the Judicial Council contemplated a disciplinary action in ordering suspension of the appointment power, but also as an action taken to remedy judicial misconduct, which is within the Judicial Council's authority. See In re McBryde, 117 F.3d 208, 227 (5th Cir.1997) (stating, "it is not unreasonable to view § 332 as empowering a council to remedy judicial misconduct."). As stated earlier, the Judicial Council order ties the length of the suspension of Judge Porteous's appointment power to the length of the suspension of his assignment of new cases. See Exhibit A to Complaint. Therefore, the Judicial Council's order pursuant to § 332, for the effective and expeditious administration of justice, which imposed a remedy consistent with the action of suspending future cases for a set time period, was not "without any authority whatever." Furthermore, fundamental to Danos's attempt to avoid the application of sovereign immunity is the fact that "to qualify for the ultra vires exception, [Danos] must assert a viable cause of action." Howe v. Bank for Internat'l Settlements, 194 F. Supp. 2d 6, 21 (D.Mass.2002). Danos's claim is that the Judicial Council acted improperly by disciplining Judge Porteous without statutory authority and violated his right to appoint secretaries under § 752. Even viewing the Judicial 498 Council's order suspending the ability to employ staff as discipline in part, and remedying judicial misconduct in part, the order was, of course, directed at Judge Porteous, was not an order of general application, and was not directed at Danos herself. The Defendants have argued that Danos does not have standing to assert claims which seek to vindicate Judge Porteous's rights. Clearly, standing is required to bring a claim in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Standing has both constitutional and prudential aspects. Logan v. Burgers Ozark Country Cured Hams Inc., 263 F.3d 447, 460 (5th Cir.2001). The prudential considerations require generally that a party "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004). Standing requirements apply to statutory as well as constitutional claims. See Logan, 263 F.3d at 460. Standing to assert a violation of law is also required in order to raise a claim of ultra vires as an exception to sovereign immunity. See United Tribe of Shawnee Indians v. U.S., 253 F.3d 543, 548 n. 2 (10th Cir. 2001) (declining to address standing after finding that Larson was not satisfied, but noting that standing issues were implicated); Schlafly v. Volpe, 495 F.2d 273, 277-8 (7th Cir.1974) (making a determination as to standing in addition to applying Larson ultra vires exception). At oral argument, the attorney for Danos emphasized that Danos has suffered injury-in-fact by losing her job. The court recognizes that Danos has lost her job, but this injury alone is not sufficient to establish standing. As stated earlier, prudential standing considerations generally limit a person to vindicating that person's own rights. Kowalski, 543 U.S. at 129, 125 S. Ct. 564. A plaintiff can assert standing on behalf of a third party only if the party who suffered the actual harm is hindered from asserting his claim directly. Id. at 129-30, 125 S. Ct. 564; Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Danos does not bring her claims on behalf of Judge Porteous, nor has she identified a hindrance to Judge Porteous's ability to protect his interests. Therefore, Danos has failed to establish a viable claim of a statutory violation. For that reason, and because the Judicial Council did not act without authority in suspending Judge Porteous's ability to employ staff for a limited time, Danos has failed to establish jurisdiction over her claims under the first Larson ultra vires exception. B. Application of Ultra Vires Exception Based on Constitutional Violation Although she has failed to sufficiently plead specific constitutional violations as claims in her Complaint for Declaratory Judgment, Danos refers generally to constitutional violations in her Complaint, and argues in response to the Motion to Dismiss that these claims satisfy the second Larson ultra vires exception to sovereign immunity. At oral argument on the Motion to Dismiss, the attorney for Danos clarified that the constitutional violation Danos intends to allege is a violation of Article II, section 4 of the Constitution of the United States.[4] *499 The Defendants contend that Danos cannot assert a viable constitutional claim. As stated above, to bring a claim in a federal court, a plaintiff must demonstrate that she has standing to invoke the court's jurisdiction. As with her claimed statutory violation, Danos has identified an alleged violation of a constitutional right held by Judge Porteous, not held by Danos herself.[5] She does not bring the constitutional claims on Judge Porteous's behalf, nor has she demonstrated that he has been hindered in his ability to bring claims on his own behalf. See Kowalski, 543 U.S. at 129-30, 125 S. Ct. 564. Accordingly, Danos has also failed to establish the unconstitutional acts basis for the Larson ultra vires exception to sovereign immunity.[6] V. CONCLUSION In conclusion, the Judicial Council of the Fifth Circuit ordered relief consistent with discipline suggested by the Judicial Conference for Judge Porteous, by suspending Judge Porteous's power to employ staff for the period during which he was no longer to be assigned new cases. Such relief was authorized by 28 U.S.C. § 332. Even if, however, an ultra vires exception to sovereign immunity can still apply in the Fifth Circuit,[7] and could apply under the facts as alleged in this case, any statutory or constitutional violation alleged was an alleged violation of the rights of Judge Porteous, not the Plaintiff, Rhonda Danos. As was discussed above, the court recognizes that the Plaintiff, Rhonda Danos, has suffered injury in the form of her lost employment, although she has not lost a constitutionally protected property interest. Danos's injury alone, however, does not give her standing to assert that the Judicial Council of the Fifth Circuit acted without authority, or unconstitutionally, in ordering the suspension of Judge Porteous's power to employ staff. Having failed to establish that she can assert such a claim, Danos's theory that an ultra vires exception can be made to the Defendants' sovereign immunity in this case is unavailing. Accordingly, the claims against the Defendants in their official capacities, as well as the claims against the Judicial Council of the Fifth Circuit, are barred by sovereign immunity. For the foregoing reasons, the Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) is GRANTED and the Plaintiff's Complaint is DISMISSED in its entirety for lack of subject matter jurisdiction. NOTES [1] It is, therefore, unnecessary for the court to address the Rule 12(b)(6) aspect of the Defendants' Motion. [2] 28 U.S.C. § 354(a)(2) provides the following: (A) In general.Action by the judicial council under paragraph (1)(C) may include (I) ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint; (ii) censuring or reprimanding such judge by means of private communication; and (iii) censuring or reprimanding such judge by means of public announcement. [3] 28 U.S.C. § 752 provides in relevant part as follows: District judges may appoint necessary law clerks and secretaries subject to any limitation on the aggregate salaries of such employees which may be imposed by law. [4] Article II, section 4 provides that the President, Vice President, and all civil Officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. [5] Danos conceded at oral argument that she does not have a constitutionally protected property interest in her employment. [6] Having concluded that Danos has failed to establish the ultra vires exception to sovereign immunity, the court need not address the Defendants' argument that Danos' statutory claim is foreclosed by 28 U.S.C. § 357. [7] Having concluded that the ultra vires exception does not apply in this case, the court need not determine whether Geyen forecloses application of the ultra vires exception in the Fifth Circuit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540877/	702 F. Supp. 2d 1049 (2010) Scott Nolan KING, Plaintiff, v. Lynn M. DINGLE, Individual and Official Capacity, Greg J. Lindell, Craig S. Oseland, Steve Hamann, and Stacy Corbo in their Individual Capacities, Defendants. Civ. No. 08-5922 (ADM/RLE). United States District Court, D. Minnesota. March 11, 2010. 1055 Scott Nolan King, Stillwater, MN, pro se. Kelly S. Kemp, St. Paul, MN, for Defendants. ORDER ADOPTING THE REPORT AND RECOMMENDATION ANN D. MONTGOMERY, District Judge. Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-titled matter, IT IS ORDERED: 1. That the Plaintiff's Motion for Relief Stated in Complaint [Docket No. 32] is DENIED. 2. That the Defendants' Motion to Dismiss and for Summary Judgment [Docket No. 44] is GRANTED. REPORT AND RECOMMENDATION RAYMOND L. ERICKSON, United States Chief Magistrate Judge. I. Introduction This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the self-styled Motion of the Plaintiff Scott Nolan King ("King") for Relief Stated in Complaint, and the Defendants' Motion to Dismiss, or for Summary Judgment. King appears pro se, and the Defendants appear by Margaret E. Jacot, Assistant Minnesota Attorney General. For reasons which follow, we recommend that the Defendants' Motion for Summary Judgment be granted, and that King's Motion for Relief State in Complaint be denied. II. Factual Background King is currently incarcerated at the Minnesota Correctional Facility, at Oak Park Heights ("MCF-OPH"), where he is serving a life sentence following a conviction for First Degree Murder. See, State v. King, 513 N.W.2d 245, 245 (Minn.1994); Affidavit of Lisa Rudeen, ("Rudeen Aff."), Docket No. 52, at ¶ 2 and Exhibit A. At all relevant times, King was incarcerated at the Minnesota Correctional Facility, in Stillwater ("MCF-Stillwater"). See, Rudeen Aff. at ¶ 2. King brings this action against Lynn Dingle ("Dingle"), who is the Warden of MCF-Stillwater, in her official and individual capacities, and against Craig Oseland ("Oseland"), Steven Hamann ("Hamann"), and Gregory Lindell ("Lindell"), in their individual capacities. At all relevant times, Oseland, Hamann, and Lindell, were employees of MCF-Stillwater. Construing King's submissions liberally, we understand him to be asserting claims, pursuant to Title 42 U.S.C. § 1983, for asserted violations of his rights under the First, Eighth, and Fourteenth Amendments.[1] In 1056 addition, King alleges claims under Title 42 U.S.C. §§ 1985(3), and 1986, for a civil rights conspiracy, and for failure to prevent a civil rights conspiracy. For relief, King seeks compensatory damages for his emotional injuries, punitive damages, and declaratory and injunctive relief pertaining to the disciplinary proceeding, including a request that we order an expungement of the pertinent incident from his prison records. The facts, as pertinent to the Motions now before us, may be briefly summarized. The Minnesota Department of Corrections' ("DOC's") correctional industry program is called MINNCOR, which provides a centralized organizational structure for the program. See, Affidavit of Steven Hamann, ("Hamann Aff."), Docket No. 48, ¶¶ 1, 5. MINNCOR has a number of different shops at MCF-Stillwater. Id. at ¶ 5. In September and August of 2007, King was working in the W-Shop at MCF-Stillwater. Id. at ¶¶ 3 and 7, and Exhibit D. W-Shop has three (3) production lines on which the inmates can work. Id. at ¶ 5. On one (1) production line, workers insert cards into bags, and seal the bags while, on the other two (2) lines, workers fold balloons, insert the balloons into bags, and seal the bags. Id. The cards and balloons do not go into the same bags, but each card bag must be accompanied by a balloon bag. Id. Card stuffing takes less time, however, so there are often more finished card bags than there are balloon bags, and accordingly, the foreman will move inmates around, between the production lines, in order to accommodate production needs. Id. In August and September of 2007, Stacy Corbo ("Corbo"),[2] who was, at that time, the Corrections Manufacturing Specialist for the W-Shop, and who was responsible for the direct supervision of the inmates who were working in the Shop, including King. Id. at ¶ 3, and Exhibit A. Corbo was hired by the DOC in 2001, to work as a Correctional Officer, and she began working for MINNCOR in 2005. Id. Hamann, who was the Factory Manager responsible for supervising MINNCOR's industry operations at MCF-Stillwater, avers that Corbo "directly supervised inmate workers, ensured that production ran smoothly, interviewed inmates for new employment positions, evaluated inmates, and granted raises." Id. at ¶ 1, 3; see also, Id. at Exhibit A. According to Hamann, MINNCOR employees must comply with nearly all of the same training requirements as DOC security staff, and they are expected to follow DOC policies. Id. at ¶ 4. DOC employees must attend academy training, prior to the commencement of their employment, which lasts about three (3) weeks, and they are required to complete additional mandatory training throughout each year of employment. Id. As pertinent here, the employees learn the rules regarding interaction with other inmates, the protection of inmates' rights, the protection of the safety and security of both inmates and staff, and the protection of data privacy. Id. at ¶ 4, and Exhibit B. King was initially assigned to the card stuffing production line in the W-Shop. Id. at Exhibit F. Apparently, on August 31, 2007, Corbo reassigned King from the card stuffing production line to the balloon stuffing line, which King believed was a demotion. Id. at ¶ 10, and Exhibit F. Shortly thereafter, on September 5, 2007, Hamann was filling in for Corbo's supervisor, 1057 Tom Petrich, who was on vacation, when Hamann was approached by King while Hamann was making the rounds in the W-Shop. Id. at ¶ 10. King told Hamann that he had been unfairly demoted from his position, as Lead Worker for the card stuffing line. Id. Hamann discussed the situation with King, and then told King to put his complaints in writing, and send them to him. Id. The next day, on September 6, 2007, King sent Hamann a kite, which King had entitled "Grievance/Complaint."[3]Id. at Exhibit F. Notwithstanding the title, Hamann avers that the kite was not a formal grievance, as defined by the DOC grievance procedure. Id. at ¶ 10. In his kite, King alleged that Corbo demoted him from his Lead Worker position on the card stuffing line, because King had not informed her about workers, who had not come to work during the last week of August, which resulted in a drop in the production of cards. Id. at Exhibit F. King further alleged that his job duties did not include monitoring the attendance of his co-workers, or reporting that attendance to Corbo. Id. King, who is an African-American male, further alleges that Corbo gave his Lead Worker position to a white man, and that her decision to reassign him was racially motivated. Id. King requested reinstatement to his Lead Worker position, and a statement assuring that the incident would not affect King's eligibility for pay raises in the future. Id. Hamann avers that, when he spoke with King on September 5, 2007, King had not mentioned racial discrimination. Id. at ¶ 10. According to Hamann, there is no formal Lead Worker position, because no inmates are allowed to supervise other inmates. Id. ¶ 7. Hamann avers that, while there is no formal position, some inmate workers become informally known as Lead Workers because they demonstrate that they are responsible, experienced workers, who the staff are able to rely upon for information about production. Id. Hamann attests that inmate workers are reviewed quarterly for raises, which are based upon seniority, performance, and the pay rates of other workers in the shop. Id. at ¶ 8. In addition, inmate pay rates fall into various categories, and there are caps on the number of inmates in a shop, who may receive wage rates within each category. Id. According to Hamann, while taking on more responsibility as a Lead Worker would increase an inmate's chances that they would receive a favorable evaluation, it does not affect the factors that are considered in granting raises. Id. at ¶ 8, and Exhibit E. Hamann avers that, as a result, Corbo's decision to move King to another production line did not result in a demotion, a change in his employment position, or a decrease in pay. Id. at ¶ 10. After receiving King's kite, Hamann gave a copy of the kite to Corbo, and asked her to meet with him in his office in order to discuss the kite after she had reviewed it. Id. at ¶ 11. Corbo went to Hamann's office later in that same day, at which time, they discussed King's allegations. Id. Corbo denied the allegations and stated that she moved King to a different line, because more workers were needed in other production lines. Id. During that conversation, Corbo stated that she had left King's kite lying on her desk in the W-Shop office, and that the inmate worker who performed janitorial work in the W-Shop might have seen the kite through the windows. Id. at ¶ 12. In 1058 response, Hamann told Corbo that she needed to be more careful in maintaining the privacy of inmate's kites, and that she should tell inmate workers to stay at least five (5) feet away from the office so that they could not see items on her desk.[4]Id. Hamann avers that Corbo did not tell him that she had intentionally shown, or discussed, the contents of King's kite with another inmate. Id. Following that conversation, on September 7, 2007, Hamann sent King a memorandum in response to his kite. Id. at ¶ 11 and Exhibit G. In pertinent part, Hamann's memorandum stated as follows: You * * * mentioned that you were demoted from the card stuffing area, as you claim that you were a "lead worker." It is the discretion of the foremen to determine who works in specific area's [sic] as anybody can be put into a different position to provide other services in the Anagram division as the foremen see fit. I have moved many individuals to other area's [sic] when I have been involved with the day to day operations of Anagram. During our conversation, I asked you to send me a kite, which you have done, to express specific issues related to your change of duties. In your kite, you are claiming racial discrimination. Mr. King, the changing of your duties are [sic] in no way racially motivated. As I stated before, the foremen can and will continue to determine who works where to benefit the production of Anagram product. You are not responsible for the lack of attendance by other workers as you are claiming that this responsibility is a reason as to why your duties were changed. I will mention that past practice has been that foremen are notified by offenders if their area is in need of more offender support to meet daily goals. Based on some of the issues that had taken place with your former duties, could [sic] indeed affect you with not getting a raise. You do have the right to apply or bid out for other positions if Anagram is not a good fit for you. Id. at Exhibit G. For his part, King avers that, on September 6, 2007, after Corbo received a copy of King's kite from Hamann, he and several other inmates saw her call Calvin Jones ("Jones"), who is another inmate worker in the W-Shop, into her office, and give him a copy of the grievance to read.[5] See, Affidavit of Scott Nolan King, ("King Aff."), Exhibit C3 to Complaint, Docket No. 2, ¶¶ 6-7. King alleges that, after Jones left Corbo's office, King talked with Corbo, and stressed that showing his kite to Jones was against prison policy, but that she was unresponsive. See, Complaint, supra at ¶ 9. 1059 King further alleges that, on September 6, 2007, he also "personally informed Hamann that Corbo showed Prisoner Jones the grievance to read," and then asked Hamann if he was going to talk to Corbo, because King was concerned "that there could be problems from Prisoner Jones." Id. at ¶ 10. King claims that Hamann was unresponsive. Id. Hamann avers that he does not recall having any further conversations with King about his allegations, after sending his responsive memorandum to King. Hamann Aff., supra at ¶ 13. King further alleges that, on September 10, 2007, another inmate told King that Jones and Corbo had discussed his kite, in which he accused Corbo of racial discrimination, and that they had together concluded that Jones was going "to take care of [King] for filing the grievance." Complaint, supra at ¶ 12. King further alleges that, between September 10, 2007, and September 17, 2007, several other inmates told him to be "aware" of Jones. Id. at ¶ 13. Shortly thereafter, on September 19, 2007, Jones reported to MCF-Stillwater staff that he had been assaulted during recreation in Cell Hall B East. See, Affidavit of Gregory Lindell, ("Lindell Aff."), Docket No. 50, ¶ 4. Following that assault, Jones approached staff while he was bleeding profusely from the neck, at which time, they placed him in a wheelchair, and escorted him to health services for treatment. Id. at ¶ 4, and Exhibit E. Jones "sustained a neck wound of approximately 1 inch in length which was closed by sutures." Id. Sergeant Paul Hofland ("Hofland") watched video footage, from a surveillance camera in Cell Hall B East, and he determined that King was Jones' assailant. Lindell Aff., supra at ¶ 4 and Exhibits C and D.[6] Hofland described the incident, as follows: I watched cell hall video to find how Offender Jones received a puncture wound to the right side of his neck. * * King met up with Offender Jones near the B-East bubble. Both offenders walked together toward the B-East door. They square off and face each other near cell 141. Offender King hit offender Jones with his left hand to Jones's right side of his neck area. Offender Jones then hits King with his right hand to the neck upper chest area. Offender Jones then backed up as Offender King walked at Offender Jones. Offender Jones has his hands up in a defensive stance as he is backing up. King turned and walked away toward the door as Offender Jones follows. Offender King then stoped [sic] and faces Jones again and they both stop and square off again but no punches are thrown. Offender King then turned and walked toward the door and Jones again walked after him for approximately 4 cells and then turned and walked away. Offender King then talked to [another Offender] and then King backed up to the trash can with both hands behind his back and then walked to his cell * * . All Offenders listed above worked in Shop. Id. at Exhibit D. Following the incident, on September 19, 2007, the Office of Special Investigations ("OSI") at MCF-Stillwater launched an investigation into the altercation between Jones and King, in order to determine whether the case should be referred to the Washington County Attorney's Office for criminal prosecution. See, Affidavit 1060 of David Kampa, ("Kampa Aff."), Docket No. 49, at ¶¶ 1-2. David Kampa ("Kampa"), who is an investigator with OSI, was involved in that investigation and, on September 20, 2007, he interviewed King. Id. at ¶¶ 1-3. As related by Kampa, King told him that Corbo had shown Jones a kite that he had written, and that he had preemptively assaulted Jones, because he was afraid that Jones would assault him based upon the information contained in his kite. Id. at ¶ 3. Lieutenant Prince Aileru ("Aileru"), who was in charge of Cell Hall B East at MCF-Stillwater at all times relevant, avers that, prior to the altercation between the two (2) inmates, King never told him that he believed Jones was going to assault him, or that he had been threatened by Jones. See, Affidavit of Prince Aileru, ("Aileru Aff."), Docket No. 46, at ¶¶ 1-2. Aileru attests that had he been aware of King's allegations, he would have placed King on Investigative Restrictive Status ("IR Status"), would have investigated King's allegations, and would have referred the matter to MCF-Stillwater's Incompatibility Review Committee ("Committee"). Id. at ¶ 2. An inmate is locked in his cell, for safety, while on IR Status. Id. Following a referral, the Committee investigates and determines whether offenders should be assigned an incompatibility, where an inmate has complained of a conflict with another inmate. Id. at ¶ 3; see also, Exhibit A. According to Aileru, the Committee will assign an incompatibility if there is compelling evidence, which indicates a risk of serious bodily injury if the inmates are not separated. Id. An incompatibility requires the inmates to be assigned to different DOC facilities. Id. Prior to the assault of September 19, 2007, OSI also did not have any records regarding any problems, or issues, between Jones and King, and its investigations, which followed the assault, did not reveal that King had informed any MCF-Stillwater staff that he feared an assault at any time prior to the investigation of the incident. See, Kampa Aff., supra at ¶ 4. In addition, Hamann avers that he is certain that King never told him that he believed Corbo, and Jones, were conspiring to assault him, that he feared Jones would assault him, or that Corbo had deliberately shown King's kite to Jones. See, Hamann Aff., supra at ¶ 13. Hamann avers that the first time, that he learned of any of King's allegations as to Corbo and Jones, was through rumors following the altercation between Jones and King, and then, more fully, when OSI contacted him in regard to its investigation. Id. According to Hamann, had King informed him that Jones had threatened to assault him, Hamann would have taken steps to ensure King's safety, by referring the matter to security personnel at MCF-Stillwater. Id. at ¶ 9. Hamann further avers that he was surprised to learn that Corbo had breached DOC policy, since she had been a good employee up until that time. Id. at ¶ 14. According to Hamann, Corbo did not have a prior disciplinary record, and there was nothing in her record which would indicate that she would engage in prohibited conduct. Id. Hamann avers that DOC staff do not show kites to other inmates because it violates their rights, and can threaten the safety and security of the facility, can cause embarrassment, and can cause conflict between inmates. Id. at ¶ 15, and Exhibit H. Hamann attests to the fact that Corbo was thoroughly trained on those policies, and should have known that it was a violation to show King's kite to Jones. Id. at ¶ 15. Hamann avers that MINNCOR does not tolerate this type of conduct, as evidenced by its termination of Corbo, following the investigation into the incident between Jones and King. Id. 1061 Based upon the information gained during its investigation, which included physical evidence, video footage, photographs, incident reports, medical records, and the interviews of the witnesses, OSI concluded that the evidence established that King had assaulted Jones, and the case was referred to the Washington County Attorney's Office for prosecution. Kampa Aff., supra at ¶ 2. However, it appears that those charges were eventually dismissed. See, Exhibit X30 to Complaint, Docket No. 2. Following the interview with King, Kampa and Jeff Dansky ("Dansky"), who is another OSI investigator, interviewed several inmates, and MINNCOR staff, concerning King's allegations. Kampa Aff., supra at ¶ 3. One of the interviews was with Corbo, since it is considered employee misconduct to show one (1) inmate another inmate's kite. Id. According to Kampa, Corbo initially denied King's allegations, but eventually, she admitted that the had discussed King's kite and its contents with Jones. Id. Following that interview, OSI prepared and submitted a report to Lynn Dingle ("Dingle"), who was the Warden of MCF-Stillwater, and the report was referred to a Work Incident Review Committee, which determined that Corbo had violated several DOC policies by sharing King's kite with Jones. Id. Corbo was terminated from her employment on November 13, 2007. Id. at ¶ 3 and Exhibit A. As a result of the altercation between Jones and King, Lindell, who is a corrections lieutenant in the discipline unit at MCF-Stillwater, charged King with violating several Offender Discipline Regulations ("ODRs"). Lindell Aff., supra at ¶ 5. ODRs "apply to inmates at DOC facilities and inform offenders of what conduct is prohibited and what the penalties are for infractions." Id. at ¶ 3 and Exhibit B. A Notice of Violation Report was delivered to King on September 24, 2007, which notified him of the factual basis for the charges, and the evidence to be introduced at the Hearing. Id. at ¶ 5 and Exhibit F. The Notice of Violation charged King with Destruction, Damage, or Alteration of Property, in violation of ODR 270; Disorderly Conduct in violation of ODR 320; Possession of ContrabandWeapons, in violation of ODR 383; Assault on an Inmate with a Weapon, in violation of ODR 414; and Attempted Homicide, in violation of ODR 440. Id. at Exhibit F. Lindell attests that, although he was aware that King alleged that he had preemptively assaulted Jones, because of an asserted conspiracy between Jones and Corbo, he found that the evidence clearly showed that King initiated the altercation with Jones. Id. at ¶ 7. Accordingly, Lindell avers that King's conduct was in violation of the ODRs, and that the violations would have been charged against King, regardless of King's motivations for committing the violations. Id. Lindell attests that he did not become aware of any alleged conspiracy, or of King's belief that Jones was conspiring to assault him, prior to the OSI investigation. Id. He further avers that he was not aware of King's belief, that Jones and Corbo were conspiring against him. Id. King was also provided with a Notice of Hearing Date, which disclosed that the Hearing, with respect to the ODR charges against him, would be held on October 2, 2007, and he requested a continuance of that Hearing date, which he was granted, and the Hearing was rescheduled for November 2, 2007. Id. at ¶ 5 and Exhibit G. The Hearing was held on November 2, 2007, and was presided over by Oseland, who is a Corrections Case Manager at MCF-Stillwater, and who was working out of class, as a Hearing Officer at MCF-Stillwater, at all relevant times. See, Affidavit of Craig Oseland, ("Oseland Aff."), Docket No. 51, at ¶¶ 1-2. Oseland attests 1062 that, at the Hearing, the prosecution presented testimony, incident reports, cell hall videos, notes, and photographs, from the investigation conducted by OSI, as well as physical evidence that was collected at the scene of the assault. Id. at ¶ 2. Oseland avers that, in his defense, King testified that Jones had threatened him, and that he had assaulted Jones in order to prevent Jones from assaulting him. Id. After reviewing all of the evidence, Oseland determined that King had assaulted Jones, and used the key to his cell as a weapon. Id. Accordingly, Oseland concluded that King had violated ODR 320, ODR 383, and ODR 414, but he found that King did not have the intent to murder Jones, so he dismissed charge under ODR 440.[7]Id. at ¶ 2, and Exhibit H. In his findings, Oseland stated that "the penalty is mitigated for reasons of self defense," and that he believed that "the intent was not to cause bodily harm, or to murder the offender." Id. at ¶ 3. Oseland attests that, when he used the term "self defense" in his findings, he was not using the phrase as it is used in the Criminal Law. Id. at ¶ 3. Rather, he avers that he used the term so as to "recognize King's motivation for committing the assault," and that it was still his conclusion that King had started the fight. Id. Oseland avers that, "[although King believed he was acting in self defense, he still engaged in an unprecipitated assault of another inmate * * * [and][r]egardless of his motivation, King was guilty of the assault because the evidence clearly established that he started the fight with Jones, punched Jones, and injured Jones." Id. Accordingly, Lindell imposed a ninety (90) day segregation sentence for disorderly conduct; a ninety (90) day segregation sentence for possessing a weapon; and an one hundred and eighty (180) day segregation sentence for the assault. Lindell Aff., supra at Exhibit I. The sentences were to run concurrently. Id. King alleges that he was denied the right to present witnesses at the disciplinary Hearing. According to King, he requested that Corbo, and another inmate, testify at the Hearing. Oseland Aff., supra at ¶ 4 and Exhibit A. Although Oseland acknowledged that King's requested witnesses were not at the Hearing, he does not recall the reason that the witnesses were not present. Id. at ¶ 4. However, Oseland avers that the DOC does not compel witnesses to testify, so if they did not wish to testify, they need not appear at a Hearing. Id. Oseland further avers that an inmate must complete the witness request form, within a designated time limit, in order for the requested witness's testimony to be permitted at the Hearing. Id. King's witness request form is not dated, and does not contain the initials of a Discipline Unit staff person which, according to Oseland, indicates that the form may not have been turned in, or may have turned in after the deadline. Id. DOC policy provides that an inmate, who is subject to the disciplinary process, has the right to appear in person, and be heard by an impartial Hearing Officer, who is not to be the reporting officer, a witness, or anyone who will review the proceedings if the inmate appeals. See, Lindell Aff., supra at Exhibit B. Oseland recognizes that he was working "out of class" as a Hearing Officer at the time of the Hearing. Oseland Aff., supra at ¶ 5. As related by Oseland, employees of the DOC are assigned to different job classes, which have specific job descriptions and duties, and that he was assigned to the job class of Corrections Case Manager. Id. He further relates that an employee, who 1063 is regularly assigned to a class, can be assigned to temporarily work another positionor "out of class"when necessary. Id. at ¶ 5, and Exhibit B. When working out of class, the employee "has all the powers, duties and responsibilities of the position he is filling." Id. As such, Oseland avers that, for purposes of the DOC offender discipline policy, he was considered to be a Hearing Officer. Id. On August 20, 2009, King filed a self-styled "Dispositive Motion," which we construe as a Motion for Summary Judgment, in which he moves the Court for an Order finding that the Defendants "knowingly and intentionally deprived [him] of his rights under Federal Law * * [and that he] be granted the requested relief in his complaint." See, Plaintiff's Dispositive Motion, Docket No. 32. King asserts that the evidence "explicitly supports" that his rights, under Federal Law, were intentionally violated by the Defendants. Id. Thereafter, on October 28, 2009, the Defendants filed a Motion to Dismiss, and for Summary Judgment. See, Defendants' Motion to Dismiss and for Summary Judgment, Docket No. 44. First, Dingle argues that King's claim for damages against her, in her official capacity pursuant to Title 42 U.S.C. § 1983, are barred by the Eleventh Amendment. See, Defendants' Memorandum in Support, ("Defendants' Memorandum"), Docket No. 45, at pp. 1, 10-11. Second, the Defendants argue that King's claims must be dismissed, because he failed to exhaust his administrative remedies, with respect to the claims that are raised in his Complaint. Id. at pp. 8-9. The Defendants further argue that they are entitled to Summary Judgment because they did not violate King's Federal constitutional, or statutory rights and, in any event, that they are protected by qualified immunity. Id. at p. 1. We address the parties' arguments in turn. III. Discussion A. Standard of Review. Rule 12(c), Federal Rules of Civil Procedure, allows parties to move for a Judgment on the Pleadings, "[a]fter the pleadings are closedbut early enough not to delay trial." The standard upon which Rule 12(c) Motions are decided is akin to that of a Motion to Dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure. See, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) ("[W]e review this 12(c) motion under the standard that governs 12(b)(6) motions."), citing St. Paul Ramsey County Med. Ctr. v. Pennington County, 857 F.2d 1185, 1187 (8th Cir.1988); see also, Flora v. Firepond, Inc., 260 F. Supp. 2d 780, 784 (D.Minn.2003), aff'd, 383 F.3d 745 (8th Cir.2004). As a result, a "[j]udgment on the pleadings is appropriate where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law." Faibisch v. University of Minnesota, 304 F.3d 797, 803 (8th Cir.2002), citing United States v. Any & all Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000), cert. denied, 531 U.S. 1071, 121 S. Ct. 761, 148 L. Ed. 2d 663 (2001). A disputed fact is "material," if it must inevitably be resolved, and that resolution will determine the outcome of the case. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Jenkins v. Southern Farm Bureau Casualty, 307 F.3d 741, 744 (8th Cir.2002) ("A fact is material if its determination in favor of the non-moving party could affect the result in the case."); Herring v. Canada Life Assurance Co., 207 F.3d 1026 (8th Cir.2000). When making such determinations, "[w]e accept as true, all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party." Syverson v. FirePond, Inc., 383 F.3d 745, 749 1064 (8th Cir.2004), quoting United States v. Any & all Radio Station Transmission Equip., supra at 462. However, we need not accept as true, wholly conclusory allegations, or unwarranted factual inferences. See, Hanten v. School Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.1999). Moreover, in treating the factual allegations of a Complaint as true, the Court "do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts." Westcott v. City of Omaha, supra at 1488, citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). In addition, Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. See, Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir.2006), citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 711 (8th Cir.2004), cert. denied, 544 U.S. 977, 125 S. Ct. 1860, 161 L. Ed. 2d 728 (2005). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. See, Smutka v. City of Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006), citing Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153, 157 L. Ed. 2d 43 (2003); Eide v. Grey Fox Technical Servs. Corp., 329 F.3d 600, 604 (8th Cir.2003); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir.2003). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a Verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., supra at 248, 106 S. Ct. 2505; Planned Parenthood of Minnesota/South Dakota v. Rounds, 372 F.3d 969, 972 (8th Cir.2004); Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707, 711 (8th Cir.2003). As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, it response mustby affidavits or as otherwise provided in this ruleset out specific facts showing a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256, 106 S. Ct. 2505; Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 602 (8th Cir.2003). Moreover, the movant is entitled to Summary Judgment where the nonmoving party has failed "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 Corp. v. Catrett, supra at 322, 106 S. Ct. 2548; see also, Forest Park II v. Hadley, 408 F.3d 1052, 1057 (8th Cir.2005); Mercer v. City of Cedar Rapids, 308 F.3d 840, 843 (8th Cir.2002); Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir.2000). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra at 323, 106 S. Ct. 2548; see also, Sallis v. University of Minnesota, 408 F.3d 470, 474 (8th Cir. 2005); Davis v. U.S. Bancorp, 383 F.3d 1065 761, 768 (8th Cir.2004); Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir.1995). B. Legal Analysis. As a threshold question, the Defendants seek Summary Judgment on King's claims, under the First and Eighth Amendments, and under Section 1986, because King has failed to exhaust his administrative remedies, and accordingly, our analysis commences with that contention. 1. Exhaustion of Administrative Remedies. a. Standard of Review. In Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), the Supreme Court recently considered the role that a prisoner's failure to exhaust his administrative remedies should play in the context of deciding the merits of a claim, which is brought pursuant to Section 1983. The Court began its analysis by noting that requiring prisoners to exhaust their administrative remedies had the positive effect of allowing prison officials "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court," which, in turn, "has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record." Id. at 204, 127 S. Ct. 910, citing Woodford v. Ngo, 548 U.S. 81, 94-95, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). Those purposes served as the backdrop to the Court's consideration of the exhaustion requirement, that Congress included in the Prison Litigation Reform Act ("PLRA"), which provides as follows: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. Title 42 U.S.C. § 1997e(a). The Court first considered whether exhaustion, which is "mandatory under the PLRA," is a pleading requirement that must be satisfied by the prisoner in his Complaint, or if it must be pled, and proved, by the defendant. See, Jones v. Bock, supra at 211, 127 S. Ct. 910, citing Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). After noting that the drafters of the PLRA failed to impose a stringent pleading requirement on prisoners, the Court concluded that the "failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints." Id. at 216, 127 S. Ct. 910. The Court further clarified that Courts, which are charged with determining exhaustion, should do so on a case-by-case basis, with each prisoner's Complaint being evaluated in the light of its compliance with established prison grievance procedures. Id. at 218, 127 S. Ct. 910. The Court concluded by considering "mixed claims," in which a prisoner has failed to exhaust some, but not all, of the claims asserted in his or her Complaint. In general, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad," and the Court distinguished the exception to this general rulethe total exhaustion requirement in habeas corpusbecause of the implication that habeas relief has on principles of comity and federalism. Id. at 221-222, 127 S. Ct. 910. The Court concluded that the language in Section 1997e(a) of the PLRA, which states that "[n]o action shall be brought" unless administrative procedures are exhausted, allowed Courts to follow the typical claim-by-claim approach, and precluded blanket 1066 dismissal of a prisoner's Complaint that contained both exhausted and unexhausted claims. Id. b. Legal Analysis. As noted, the Defendants contend that King has not exhausted his administrative remedies, with respect to his claims under the First Amendment, Eighth Amendment, and Section 1986. In support of their contention, the Defendants have provided copies of the DOC's Grievance Procedures, which were in effect at all times relevant to the pending action. See, Affidavit of Kim Ebeling ("Ebeling Aff."), Docket No. 47, at ¶ 2 and Exhibit A. Before the filing of a formal grievance, an inmate "must attempt to resolve any concerns informally via the kite system prior to pursuing the formal grievance process * * [and] must follow the chain of command and contact only one staff at a time." Id. The Grievance Procedure explicitly provides that "[a]n offender may, in good faith, submit a grievance without fear of retaliation." Id. at Exhibit A. The DOC's formal grievance procedure has two (2) levels. Id. at ¶ 2. First, an inmate must file a grievance with the correctional facility's grievance coordinator, and either the Warden of the facility, or a designee, will decide the grievance. Id. If the inmate is dissatisfied with the facility's decision, then he may initiate a grievance appeal, which will be decided by either the Commissioner of Corrections, the Assistant Commissioner of Corrections, or the Deputy Commissioner of Corrections. Id. The decision on appeal is considered the DOC's final response to the inmate's grievance. Id. In the event that the inmate fears retaliation at the facility where he is incarcerated, a grievance may be filed directly with the DOC's Central Office. Id. Kim Ebeling ("Ebeling"), who is an Administrative Specialist Senior with the Policy and Legal Services Division of the DOC, avers that she is involved in the coordination of grievance appeals within the DOC. Id. at ¶ 1. According to Ebeling, the DOC grievance procedure, as we have detailed its processes, may be used to address nearly any issue or grievance, that concerns the conditions of confinement at a particular facility, and she further avers that King's claims are appropriate subjects for a grievance. Id. at ¶¶ 2-3. Ebeling attests that labeling a kite as a "grievance" does not convert the kite into a formal grievance, as contemplated by the DOC's grievance procedures. Id. at ¶ 2. Ebeling avers that she has reviewed the DOC's records, and she has determined that King did not file a grievance on those issues with MCF-Stillwater, or with the DOC's Central Office, and indeed, he has filed only one (1) grievance, in December of 2008, since he was incarcerated, and that grievance pertained to a strip search that was conducted while he was incarcerated at MCF-OPH. Id. at ¶ 3. According to Ebeling, that grievance did not have any relationship to any of King's allegations concerning the sharing of private information by a staff person, or any conspiracy to assault him. Id. Moreover, Lisa Rudeen, who is a paralegal at MCF-Stillwater, avers that, while at MCF-Stillwater, King attempted to file only one (1) grievance on March 27, 2008, which related to discipline that he had received for refusing to move to a double-bunked cell on March 19, 2008. See, Rudeen Aff., supra at ¶¶ 1-3, and Exhibits A and B. However, that grievance was returned to King on March 28, 2008, because there is a separate appeal process for discipline decisions, and because he had not attached copies of kites showing that he had tried to resolve the issues informally. Id. at ¶ 3 and Exhibit B. "Courts recognize only three exceptions to the exhaustion requirement, including futility, inability of the administrative 1067 remedies to provide adequate relief, and the establishment of an agency policy or practice of general applicability that is contrary to law." Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 656 (8th Cir.1999), citing Urban by Urban v. Jefferson Co. Sch. Dist. R-1, 89 F.3d 720, 724 (10th Cir.1996). "An administrative remedy will be deemed futile if there is doubt about whether the agency could grant effective relief." Ace Prop. & Cas. Insur. Co. v. Federal Crop Ins., 440 F.3d 992, 1000 (8th Cir.2006), citing McCarthy v. Madigan, 503 U.S. 140, 147, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992). Here, the Defendants have submitted Affidavits, which attest to the fact that the King has filed only two (2) grievances during his incarceration, which are entirely unrelated to his current complaints. They argue that, as a consequence, King's claims should be dismissed. In response, King has not competently controverted the Defendants' attestation that he failed to exhaust his administrative remedies. Indeed, he does not so much as suggest that he followed the DOC's formal Grievance Procedure, that efforts to exhaust his remedies would have been futile, that adequate relief was unavailable, or that the policies pertaining to his claims were contrary to law. While King submitted several informal kites to various MCF-Stillwater staff persons, the Record before establishes that he did not file a formal grievance with respect to those claims.[8] Those submissions are insufficient to create any genuine issue of material fact, concerning the Plaintiff's failure to exhaust his administrative remedies. As noted, Ebeling avers that the informal use of kites does not satisfy the requirements of the formal grievance procedure, even if an inmate labels his various kites as grievances. The inmate is still required to institute the formal grievance procedure, following a failure of the informal use of kites that are directed at staff members in order to resolve the inmate's particular issue. In addition to being mandatory, "the PLRA exhaustion requirement requires proper exhaustion * * [which] demands compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, supra at 90, 93, 126 S. Ct. 2378 [emphasis in original]. As such, an inmate's "[f]ailure to adhere to DOC's sequential grievance process after the sending 1068 of the kite to a pertinent staff member is fatal to plaintiffs suit * ." Roth v. Larson, 2008 WL 4527831 at 16 (D.Minn., September 30, 2008) (granting Summary Judgment, based upon a failure to exhaust, notwithstanding the plaintiffs submission of numerous kites, in view of the plaintiff's failure to file a formal grievance, and appeal); see also, Jones v. Bock, supra at 218, 127 S. Ct. 910 ("The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.")[emphasis added]; Garcia v. Schull, 2007 WL 295614 at 5 (D.N.D., January 29, 2007) ("Woodford does not allow for substantial compliance; it requires proper exhaustion."), citing Woodford v. Ngo, supra; Wynn v. Connor, 2008 WL 400699 at 6 (D.Minn., February 11, 2008) (holding that the plaintiff had not exhausted his administrative remedies, pursuant to the PLRA, where he sent numerous kites, but never filed a formal grievance pertaining to the issues raised in that case). Here, the Plaintiff has not competently disputed the Defendants' evidence, which demonstrates that he has failed to exhaust his administrative remedies for his claims under the First and Eighth Amendments, and under Section 1986. The DOC's Grievance Procedure is not fully exhausted until a prisoner follows all of the required steps, and obtains a final decision from the Commissioner, and the undisputed evidence demonstrates that King has failed to initiate that process, let alone complete it. As a consequence, we recommend that his claims of Retaliation, for a Failure to Protect, and his claims under Title 42 U.S.C. § 1986, be dismissed, since King failed to exhaust his administrative remedies as to those claims. 2. Claims Against Dingle In Her Official Capacity. a. Standard of Review. Next, we proceed to Dingle's argument that King's claims for damages, and for retroactive equitable relief against her, in her official capacity, are barred by the Eleventh Amendment, and the provisions of Section 1983. The Eleventh Amendment provides that "[t]he 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." United States Constitution, Amendment XI. For over a century, the Amendment has been understood to stand for the proposition that a non-consenting State is immune from Federal Court suits by its own citizens, as well as by citizens of another State. See, Kimel v. Florida Board of Regents, 528 U.S. 62, 72, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996); Hans v. Louisiana, 134 U.S. 1, 15, 10 S. Ct. 504, 33 L. Ed. 842 (1890)(such suits were "not contemplated by the constitution when establishing the judicial power of the United States"). In effect, the Eleventh Amendment immunizes from suit a "state agency or official * * * if immunity will `protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.'" Hadley v. North Arkansas Community Technical College, 76 F.3d 1437, 1438 (8th Cir.1996), cert. denied, 519 U.S. 1148, 117 S. Ct. 1080, 137 L. Ed. 2d 215 (1997), quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 123 n. 34, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); see also, Regents of the University of California 1069 v. Doe, 519 U.S. 425, 117 S. Ct. 900, 137 L. Ed. 2d 55 (1997); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 89 L. Ed. 389 (1945), overruled on other grounds, Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 614-15, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002). Over the years, the Supreme Court has fashioned a patchwork of exceptions to the Eleventh Amendment's limitation on Federal Court jurisdiction, as that doctrine was initially expressed in Hans v. Louisiana, supra. Under the doctrine of Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), a Federal Court retains jurisdiction, notwithstanding the Eleventh Amendment, to direct State officials to conform their practices to the requirements of Federal law, even though such an injunction might have collateral effects upon a State Treasury.[9] See, Edelman v. Jordan, supra at 666-68, 94 S. Ct. 1347; Milliken v. Bradley, 433 U.S. 267, 289, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977). However, suits for retroactive equitable relief against State Officers, in their official capacity, are also barred by the Eleventh Amendment, insofar as the suits would require the payment of funds from a State Treasury. See, Edelman v. Jordan, supra at 667-68, 94 S. Ct. 1347; Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); McGee v. Feneis, 2009 WL 2928245 at 4 (D.Minn., September 8, 2009). Thus, the Eleventh Amendment bars actions, in Federal Court, which seek monetary damages from individual State Officers, in their official capacities, as well as State Agencies, because such lawsuits are essentially "for the recovery of money from the state." Ford Motor Co. v. Department of the Treasury, supra 464, 65 S. Ct. 347; see also, Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) ("[N]either a State nor its officials acting in their official capacities are `persons' under § 1983" when sued for damages.). In an action under Title 42 U.S.C. § 1983, a public servant may be sued in an official, or in an individual capacity, or both. See, Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). A suit against a public employee in that person's official capacity is merely a suit against the public employer. Id., citing Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). The Eleventh Amendment protects the State, and the arms of the State, from liability for monetary damages in a Section 1983 action. See, Hadley v. North Arkansas Community Technical College, supra at 1438 (stating that a State Agency, or its officials, may invoke Eleventh Amendment immunity, if the practical result of a suit would result in a Judgment against the State itself). Such immunity also extends to State officials who are named as individual defendants, acting in their official capacity. Id. When the action is against the office, and not the person, there is no difference from a suit against the State itself. See, Hafer v. Melo, 502 U.S. 21, 25-26, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991); Will v. Michigan Department of State Police, supra at 71, 109 S. Ct. 2304. a. Legal Analysis. Dingle is an employee of the DOC, and therefore, she is entitled to Eleventh Amendment immunity, because she is an official employed by the State. See, Hadley v. North Arkansas 1070 Community Technical College, supra at 1438. King does not allege any waiver of Eleventh Amendment immunity by Dingle, or the State, and a review of the Record does not disclose any such waiver by either. See, Faibisch v. University of Minnesota, 304 F.3d 797, 800 (8th Cir. 2002)("To waive sovereign immunity, a state must make a clear, unequivocal statement that it wishes to do so."). Accordingly, we find that King's request for money damages, against Dingle in her official capacity, is barred by the Eleventh Amendment.[10] 3. Qualified Immunity. The Defendants contend that they are entitled to qualified immunity, as to each of King's claims that are directed at them in the individual capacities, because King cannot demonstrate any violation of his constitutional rights and, in any event, since it was not reasonably clear, at the time that the events occurred, that they were violating King's rights. a. Standard of Review. Government officials, who are performing discretionary functions, are generally shielded from liability for civil damages, unless 1071 their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. See, Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999); Young v. Harrison, 284 F.3d 863, 866 (8th Cir.2002); Winters v. Adams, 254 F.3d 758, 766 (8th Cir.2001). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in the light of the legal rules that were `clearly established' at the time it was taken." Wilson v. Layne, supra at 614, 119 S. Ct. 1692, quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); Parrish v. Ball, 594 F.3d 993, 1000-01 (8th Cir.2010). The contours of the constitutional right at issue "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right," but "[t]his 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 light of pre-existing law, the unlawfulness must be apparent." Anderson v. Creighton, supra at 640, 107 S. Ct. 3034 (1987); Nelson v. Correctional Medical Services, 583 F.3d 522, 531 (8th Cir.2009); Young v. Selk, 508 F.3d 868, 875 (8th Cir.2007). Thus, "[t]he doctrine `gives ample room for mistaken judgments but does not protect the plainly incompetent or those who knowingly violate the law.'" Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir.1996). "In analyzing the officials' claim of qualified immunity we consider two questions: (1) `whether the facts that a plaintiff has alleged or shown,' when viewed in the light most favorable to [the plaintiff] support a finding that the conduct of [the defendants] violated a constitutional right, and (2) whether that constitutional right was `clearly established' [at the time of the alleged violation] such that a reasonable official would have known that his or her actions were unlawful." Nelson v. Correctional Medical Services, supra at 528, quoting Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808, 815-16, 172 L. Ed. 2d 565 (2009); see also, Howard v. Kansas City Police Dep't, 570 F.3d 984, 988 (8th Cir.2009). "Recently, the Supreme Court instructed that we are `permitted to exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.'" Parrish v. Ball, supra at 1001-02, quoting Pearson v. Callahan, supra at 818. While advising that the Saucier procedure is helpful, see, Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), but no longer mandatory, the Supreme Court explained, as follows: [T]he rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise. Pearson v. Callahan, supra at 818. As a result, where appropriate, Courts are permitted to dispose of the qualified immunity issue on the second prongthat is, whether a violation of a clearly established constitutional right has occurredwithout considering the first prong of Saucier. See, Parrish v. Ball, supra (holding that the second prong was 1072 dispositive, because the defendant's actions did not amount to a violation of a clearly established constitutional right); Norman v. Schuetzle, 585 F.3d 1097, 1103 (8th Cir. 2009). b. Legal Analysis. In the light of these legal standards, we proceed to an examination of each of King's claims. 1. The Eighth Amendment Claim. As the Defendants have underscored, King did not expressly plead an Eighth Amendment claim, but he cited to Eighth Amendment case law in his Memorandum, and therefore, in an abundance of caution, we address whether he has advanced a viable Eighth Amendment claim. We conclude that he has not. The conditions of a prisoner's confinement are clearly subject to Eighth Amendment scrutiny. See, Helling v. McKinney, 509 U.S. 25, 31-32, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993); Brown v. Nix, 33 F.3d 951, 954-955 (8th Cir.1994); C.H. v. Sullivan, 718 F. Supp. 726, 733-734 (D.Minn.1989), aff'd, 920 F.2d 483 (8th Cir. 1990). Indeed, our Court of Appeals has mandated a "careful judicial scrutiny" of prison conditions. Tyler v. Black, 865 F.2d 181, 184 (8th Cir.1989), cert. denied, 490 U.S. 1027, 109 S. Ct. 1760, 104 L. Ed. 2d 196 (1989). Accordingly, it is well-settled that a prisoner's confinement must not result in a serious deprivation of his basic human needs, or of a minimal, civilized measure of life's necessities. See, Helling v. McKinney, supra at 32, 113 S. Ct. 2475; Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); see also, Rhodes v. Chapman, 452 U.S. 337, 347-348, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). As stated, the focus is on "basic human needse.g., food, clothing, shelter, medical care and reasonable safety." Helling v. McKinney, supra at 32, 113 S. Ct. 2475, citing DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989); see also, Williams v. Delo, 49 F.3d 442, 445 (8th Cir.1995); Brown v. Nix, supra at 955. "The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) [internal quotes and citations omitted]. Prison officials violate the Eighth Amendment "only when two requirements are met." Farmer v. Brennan, supra at 834, 114 S. Ct. 1970. First, the alleged deprivation must be, objectively, sufficiently serious, that is, the prison official's act, or failure to act, must have resulted in "the denial of the minimal civilized measure of life's necessities." Id., citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991), and Rhodes v. Chapman, supra at 347, 101 S. Ct. 2392; Williams v. Delo, supra at 445. Second, to be liable, a prison official "must have a sufficiently culpable state of mind," id., citing Wilson v. Seiter, supra at 302-03, 111 S. Ct. 2321, and, in cases such as this one, a subjective standardnamely, a "deliberate indifference" to an excessive risk posed to an inmate's health and safetymust be satisfied before a finding of liability can attach. Id.; see also, Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir.2004), cert. denied, 546 U.S. 860, 126 S. Ct. 371, 163 L. Ed. 2d 140 (2005) ("The defendant's conduct must objectively rise to the level of a constitutional violation, by depriving the plaintiff of the minimal civilized measure of life's necessities, [and][t]he defendant's conduct must also reflect a subjective state of mind evincing deliberate indifference to the health or safety of the prisoner.")[internal citations and quotations omitted]. "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offense against society.'" Lenz v. Wade, 490 F.3d 1073 991 (8th Cir.2007), cert. denied, 552 U.S. 998, 128 S. Ct. 504, 169 L. Ed. 2d 353 (2007), quoting Farmer v. Brennan, supra at 834, 114 S. Ct. 1970. Accordingly, "[t]he Eighth Amendment imposes upon prison officials, among other things, the duty to take reasonable measures `to protect prisoners from violence at the hands of other prisoners.'" Davis v. Scott, 94 F.3d 444, 446 (8th Cir.1996), quoting Farmer v. Brennan, supra at 833, 114 S. Ct. 1970; see also, Pagels v. Morrison, 335 F.3d 736, 740 (8th Cir.2003) (an Eighth Amendment failure to protect claim requires an inmate to show that there was a substantial risk of serious harm, and that a prison official or officials "knew of and disregarded an excessive risk to [the inmate's] safety."); Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996)(same); Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir.2002) ("The Supreme Court has made it clear that the Eighth Amendment encompasses an inmate's right to be protected from harm by fellow inmates."), citing Farmer v. Brennan, supra at 833, 114 S. Ct. 1970. Here, King has alleged that he told Hamann that Corbo had shown Jones his kite, and that he was "concerned" that he might have problems with Jones. See, Complaint, supra at p. ¶ 10.[11] King has not alleged, nor is there any evidence to show, that King told Hamann, or anyone else, that he was at risk of violence at the hands of Jones. While it is not a requirement that an inmate suffer physical injury before a prison official can be imputed with knowledge of a threat to safety, "threats between inmates are common and do not, under all circumstances, serve to impute actual knowledge of an actual risk to harm." Prater v. Dahm, supra at 541. We agree with the Defendants that King has failed to raise a genuine issue of material fact, as to his Eighth Amendment claim, because he has not established an evidentiary showing that any prison official was sufficiently aware that King was at risk of substantial harm. See, Lenz v. Wade, supra at 996 ("[N]either unsupported conjecture nor negligence regarding a substantial risk of serious harm to the inmates is sufficient to prove deliberate indifference."); Tucker v. Evans, supra ("Even if there was a substantial risk of harm to [plaintiff], there is no evidence that [the defendant] was deliberately indifferent to that risk."); cf., Prater v. Dahm, supra at 541-542 (where inmate threatened another inmate, but prison officials received an assurance that there would be no further problems, there was no Eighth Amendment violation, and finding no violation of plaintiffs clearly established constitutional rights). Moreover, "[t]he doctrine [of qualified immunity] `gives ample room for mistaken judgments but does not protect the plainly incompetent or those who knowingly violate the law.'" Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir.1996). Here, at worst, we would conclude that King may have established that Hamann's failure to act in response to King's vague claims, regarding Jones and Corbo, was a mistaken judgment, as to which he should be granted qualified immunity. Accordingly, we find that there has not been a violation of King's clearly established right to personal safety, since King has not established that Hamann, or any other prison official, was on notice of an "excessive risk" to his safety. 1074 Therefore, on this Record, the Defendants are entitled to Summary Judgment on King's Eight Amendment claim, that is, to the extent that we assume that he implicitly pled one. Cf., Young v. Selk, supra at 873-874 (where plaintiff told officials that he had been threatened by another inmate, that his circumstances were urgent, and that he needed to move immediately, the defendants were not entitled to Summary Judgment); see also, Norman v. Schuetzle, supra at 1105 ("The subjective component of the qualified immunity inquiry requires that the official knew of and disregarded an excessive risk to the inmate's safety[,][and][w]hile a factfinder may conclude that a prison official knew of a substantial risk from the fact that the risk was obvious, the fact remains that the prison official must still draw the inference.")[internal citations and quotations omitted]. Moreover, Section 1983 liability for an Eighth Amendment violation requires a compensable injury to be greater than de minimis. See, Irving v. Dormire, 519 F.3d 441, 446-448 (8th Cir.2008)(an inmate must prove an actual injury and cannot recover for the de minimis use of force, unless repugnant to the conscience of mankind); Cummings v. Malone, 995 F.2d 817, 822-823 (8th Cir.1993) (actual injury is required, but recognizing that nominal damages may be awarded); Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996); White v. Holmes, 21 F.3d 277, 281 (8th Cir.1994) ("While a serious injury is not necessary, some actual injury is required in order to state an Eighth Amendment violation."); Seltzer-Bey v. Delo, 66 F.3d 961 (8th Cir.1995) (no constitutional violation where inmate fails to demonstrate that he suffered an injury or adverse health consequence as a result of his confinement); Jones v. Shields, 207 F.3d 491, 495 (8th Cir.2000). Here, King does not allege, nor offer does he offer any evidence of an actual physical injury, as a result of any purported Eighth Amendment violation, and accordingly we conclude that he has not advanced an actionable Eighth Amendment violation. Moreover, to the extent that King claims mental and emotional suffering, the PLRA requires that a prisoner suffer a physical injury before he can recover for mental or emotional suffering, and therefore, his claim cannot be sustained as a result of any mental or emotional suffering that he may claim to have suffered. See, Smith v. Moody, 175 F.3d 1025 (8th Cir.1999)[Table Decision](affirming dismissal of inmate's Complaint in light of inmate's failure to allege a physical injury); Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir.1997)(affirming a dismissal, pursuant to the PLRA, where physical injury was merely de minimis, and had not raised excessive use of force).[12] Accordingly, we 1075 conclude that any purported emotional or mental suffering he has alleged does not sustain his Eighth Amendment claim, and therefore we recommend that the Defendants be granted Summary Judgment on King's Eighth Amendment claimthat is, to the extent that he has implicitly pled one. 2. The Due Process Claim. King alleges that the Defendants intentionally deprived him of procedural due process, during the disciplinary proceeding, which resulted in an one hundred and eighty (180) day segregation sentence.[13] The Fourteenth Amendment prohibits a deprivation of life, liberty, or property, without the due process of law. While it is true that the constitutional protections, which are encompassed by the Due Process Clause, do not abate at the time of imprisonment, see, Hudson v. Palmer, 468 U.S. 517, 539, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (O'Connor, J., concurring), it is also true that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Sandin v. Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), quoting Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977), quoting, in turn, Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948). In order to maintain an actionable procedural due process claim, an inmate must show that he has been deprived of some constitutionally protected liberty or property interest. See, Ragan v. Lynch, 113 F.3d 875, 876 (8th Cir.1997) ("A due process claim is cognizable only if there is a recognized liberty or property interest at stake."). In prisoner cases, a constitutionally protected liberty interest will arise only when the prisoner can show that he has suffered an "atypical and significant hardship * * * in relation to the ordinary incidents of prison life," as contemplated in Sandin v. Conner, supra at 484, 115 S. Ct. 2293 (holding that disciplinary segregated confinement of an inmate falls within expected parameters of prison life, and does not represent an "atypical and significant hardship," which would create a protected liberty interest). Our Court of Appeals has interpreted Sandin, as follows: Sandin concluded that the inmate had no liberty interest in avoiding the disciplinary confinement in issue in that case because that confinement did not present an atypical and significant deprivation in relation to the ordinary incidents of prison life. Therefore, the Due Process Clause is not implicated despite the mandatory nature of the rules relating to the imposition of disciplinary confinement. The Court stated that there are some deprivations, and not necessarily those so severe as to independently trigger due process protection, against which states could conceivably create a liberty interest. Those are deprivations which work such major disruptions in a prisoner's environment and life that they present dramatic departures from the basic conditions and ordinary incidents of prison sentences. Moorman v. Thalacker, 83 F.3d 970, 972 (8th Cir.1996)[internal citations omitted] (holding that placing inmate in "the highest 1076 level of disciplinary detention" for fifteen (15) days, followed by 107 days of progressively less restricted disciplinary detention, was not a dramatic departure from the ordinary incidents of prison life). Here, we are compelled to conclude that King has not established an actionable due process claim, with respect to his six (6) month segregation sentence, because he has not shown that that type of discipline is the type of dramatic departure from prison life, as is contemplated by Sandin. King has not alleged that he has suffered the imposition of an extended incarceration, or the loss of good time credits, as a result of the disciplinary proceeding, nor has he alleged that the conditions of his confinement, while in segregation, were an atypical or significant hardship. Rather, the only allegation that King has made is that he was subjected to a six (6) month segregation sentence. The Courts have consistently held that a transfer to segregated confinement, by itself, is not an "atypical and significant hardship" that would create a protected liberty interest. See, Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir.2002) ("We have consistently held that administrative and disciplinary segregation are not atypical and significant hardships under Sandin."); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir.2003) (holding that denial of visitation, exercise privileges, and religious services during thirty-seven (37) day segregation was not an atypical, significant hardship, which would support the denial of a protected liberty interest, and stating that "[w]e have consistently held that demotion to segregation, even without cause, is not itself an atypical and significant hardship."); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997) (prisoner had no constitutionally protected liberty interest in remaining in less restrictive prison environment, and therefore, was not denied due process); Kennedy v. Blankenship, 100 F.3d 640, 642-643 (8th Cir.1996); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir.1996) (prisoner has no liberty interest in avoiding segregation); Bunch v. Long, 2008 WL 5082861 4 (W.D.Mo., November 24, 2008) (twenty-two (22) months in administrative segregation did not support a finding of an atypical or significant hardship, which would implicate the Due Process Clause); Hemphill v. Delo, 124 F.3d 208 (8th Cir.1997)[Table Decision](four (4) days in lock-down, thirty (30) days of disciplinary segregation, and two hundred and ninety (290) days of administrative segregation, without more, was not an atypical and significant hardship); Howard v. Collins, 129 F.3d 121 (8th Cir.1997)[Table Decision](eight (8) months in administrative segregation not an atypical and significant hardship); Wilson v. Harper, 949 F. Supp. 714, 723 (S.D.Iowa 1996) (eleven (11) months in segregation, including six (6) months of punitive segregation was not a denial of a protected liberty interest). While the imposition of segregated confinement does not alone create a liberty interest, that is not to say that the length or conditions of segregation, or such other similar conditions of confinement, never implicate the Due Process Clause. See, Williams v. Norris, 277 Fed.Appx. 647, 648-649 (8th Cir.2008)[unpublished per curiam](approximately twelve (12) years in administrative segregation confinement was an atypical and significant hardship, in light of the particular restrictions imposed in relation to the segregation); Herron v. Schriro, 11 Fed.Appx. 659, 661-662 (8th Cir.2001), cert. denied, 534 U.S. 1059, 122 S. Ct. 653, 151 L. Ed. 2d 569 (2001)(recognizing that the District Court found that the inmate's "lengthy confinement, for more than thirteen years, in administrative segregation, resulted in an atypical and significant hardship in relation to the ordinary incidents of prison life."); Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005)(holding that an indefinite placement in supermax facility, where 1077 there was a severe limitation on human contact, including cell to cell conversation; where the cell lights were dimmed, but never turned off; where inmates remained in their cells twenty-three (23) hours per day, with exercise limited to one (1) hour per day in a small indoor room; and where inmates lost parole eligibility while at the facility, was atypical). Here, however, we are not presented with any such circumstances. King has alleged nothing more than that he was sentenced to six (6) months in segregation and, as we have detailed, that does not, by itself, create a protected liberty interest. Moreover, King has not alleged, nor has he offered any evidence of, any additional conditions of segregation which would implicate the Due Process Clause. Accordingly, we conclude that his six (6) month stint, in segregation, did not constitute an "atypical and significant hardship" that would create a liberty interest. Insofar as King challenges the processes that the Defendants used in imposing the segregation sentence, it is well-established that a prisoner has no Federal constitutional liberty interest in having prison officials follow prison regulations, see, Phillips v. Norris, supra at 847, and any allegation, that the Defendants failed to follow prison regulations, does not, in and of itself, state a claim for a Due Process violation. See, Bonner v. Federal Bureau of Prisons, 196 Fed.Appx. 447, 448 (8th Cir.2006) (prisoner failed to state constitutional claim when he did not challenge constitutionality of prison regulations, but only the manner in which the regulations were followed by prison officials); McClinton v. Arkansas Dept. of Correction, 166 Fed.Appx. 260, 260-61 (8th Cir.2006) ("[A]ny contention that defendants failed to follow prison policy does not by itself state a claim."), citing Kennedy v. Blankenship, supra at 643 ("If [the plaintiff] has a liberty interest, it is an interest in the nature of his confinement, not an interest in the procedures by which the state believes it can best determine how he should be confined."). Accordingly, to the extent that King alleges that the Defendants violated the procedures prescribed by the prison's own rules for disciplinary proceedings, we find that the claim also fails as a matter of law.[14] Although unclear, to the extent that King also alleges a Due Process violation, with respect to his loss of employment in the W-Shop, it is sufficient to recognize that the denial of prison work opportunities does not constitute an atypical and significant hardship. See, Freitas v. Ault, supra at 1337-1338 (finding that the loss of prison employment did not implicate the Due Process Clause); Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir.1996)("[R]evocation of [the plaintiffs] work release program was not an atypical or significant deprivation."); Kelley v. Vaughn, 760 F. Supp. 161, 163 (W.D.Mo. 1991)("[T]he expectation of keeping a particular job in prison is not a property or liberty interest entitled to due process protection,"); Lyon v. Farrier, 727 F.2d 766 (8th Cir.1984), cert. denied, 469 U.S. 839, 105 S. Ct. 140, 83 L. Ed. 2d 79 (1984). In sum, we conclude that King has not presented a valid Due Process claim, and therefore, we recommend that the Defendants be granted Summary Judgment on his Fourteenth Amendment claim, as well. 3. Failure to Prevent Conspiracy to Violate Civil Rights. King also alleges that Hamann failed to prevent the conspiracy, between 1078 Corbo and Jones, to violate his civil rights, in violation of Title 42 U.S.C. § 1986. Section 1986 provides, in pertinent part, as follows: Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented. As a result, a claim under Section 1986 is dependent upon a valid claim under Title 42 U.S.C. § 1985. See, Adams v. Boy Scouts of America-Chickasaw Council, 271 F.3d 769, 774 n. 8 (8th Cir.2001); Barstad v. Murray County, 420 F.3d 880, 887 (8th Cir.2005); Gatlin ex rel. Estate of Gatlin v. Green, 362 F.3d 1089, 1095 (8th Cir.2004). Here, King alleges that Corbo, and Jones, violated Section 1985 by conspiring to have King assaulted, in retaliation for the grievance he filed against Corbo. In order to show a civil rights conspiracy under Section 1985, a plaintiff must prove: (1) that the defendants conspired, (2) with the intent to deprive the plaintiff, either directly or indirectly, of the equal protection of the laws, or equal privileges and immunities under the laws, (3) an act in furtherance of the conspiracy, and (4) that they or their property were injured, or they were deprived of exercising any right or privilege of a citizen of the United States. See, Barstad v. Murray County, supra, citing Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir.1996). Here, King's claim must fail because there is no evidence that Jones, or Corbo, committed any act in furtherance of the conspiracy, and therefore, King's Section 1986 claim must fail, since he has failed to establish a valid Section 1985 claim, which is a prerequisite to a viable Section 1986 claim. Moreover, King has offered no evidence that the alleged conspiracy was based upon racial, or class-based, discriminatory animus, beyond his conclusory allegations to that effect. See, Jensen v. Henderson, 315 F.3d 854, 862-863 (8th Cir.2002) ("Purposeful discrimination must be established for a party to succeed on a § 1985(3) claim," and concluding that the plaintiff had not offered any evidence of purposeful discrimination), citing Palesch v. Mo. Comm'n on Human Rights, 233 F.3d 560, 570 (8th Cir.2000), for the proposition that "stating conclusory allegations that the individual defendants were out to get plaintiff based on race and gender does not state a claim;" City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650, 653 (8th Cir.1989) (holding that the evidence did not even remotely establish that the defendant "harbored any animus toward women," in denying a female a promotion assertedly on account of her sex). Accordingly, even viewing the evidence in the light most favorable to King, there is no genuine issue of material fact, because there is no evidence of discriminatory animus on the part of Corbo and Jones, which would support the existence of a Section 1985 conspiracy. We conclude that the mere fact that they may have conspired to commit some wrong does not establish the requisite discriminatory animus for a Section 1985 claim.[15] 1079 In turn, in order to maintain a Section 1986 action, a plaintiff must prove that (1) the defendant had actual knowledge of a Section 1985 conspiracy, (2) the defendant had the power to prevent or aid in the prevention of the Section 1985 conspiracy, (3) the defendant neglected or refused to prevent the conspiracy, and (4) a wrongful act was committed. See, Brandon v. Lotter, 157 F.3d 537, 539 (8th Cir. 1998), quoting Clark v. Clabaugh, 20 F.3d 1290, 1295 (3rd Cir.1994) (firsthand knowledge is not required, but Courts nevertheless require "actual knowledge," and finding that genuine issue of material fact existed regarding whether knowledge of rumors was sufficiently reliable to constitute actual knowledge of a civil rights conspiracy); Robey v. Chester County, 946 F. Supp. 333, 336 (E.D.Pa.1996) (finding that plaintiff had not established a Section 1986 claim where there was no evidence in the Record to show that any of the defendants had knowledge of a conspiracy). King's Section 1986 claim must also fail because he has not shown that Hamann was aware of any alleged conspiracy. While King has alleged that he told Hamann that Corbo showed his kite to another inmate, he has not alleged that he told Hamann that they were planning to assault him. To be sure, Hamann denies that King told him of a planned assault, but we conclude that the mere fact that King may have told Hamann, that Corbo showed King's kite to Jones, is insufficient to establish knowledge of a Section 1985 conspiracy. King argues that he need not show that Hamann had a specific awareness that King could be assaulted by Jones, but rather, he need only show that Hamann had knowledge of a substantial risk that King could be harmed, assaulted, or killed. See, Plaintiffs Memorandum, supra at p. 5.[16] However, we note that "[l]iability under Section 1986 is `dependent on proof of actual knowledge by a defendant of the wrongful conduct.'" Brandon v. Lotter, supra at 539, quoting 1080 Owen v. City of Independence, 445 U.S. 622, 674 n. 15, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). Here, there is no evidence that Hamann was aware that any wrongful conduct, which was the object of a conspiracy, was about to be committed. Accordingly, we conclude that King's Section 1986 claim fails on numerous grounds, as we have detailed them. Therefore, in addition to King's failure to exhaust his administrative remedies with respect to that claim, his Section 1986 claim fails on substantive grounds, since no reasonable trier of fact could conclude that either a valid Section 1985, or a valid Section 1986 claim, had been established. 4. First Amendment Retaliation Claim. King also alleges that the Defendants sentenced him to one hundred and eighty (180) days in segregation, in retaliation for his filing a grievance, in which he alleged that Corbo had discriminated against him on the basis of race, when she decided to change the circumstances of his employment. See, Plaintiff's Memorandum, supra at p. 6. "To prevail on a claim of retaliation, a prisoner must show 1) he engaged in a protected expression, 2) he suffered an adverse action, and 3) the adverse action was causally related to the protected expression." Norman v. Schuetzle, 585 F.3d 1097, 1118 (8th Cir.2009), citing Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004). "Conduct that retaliates against the exercise of a constitutionally protected right is actionable, even if the conduct would have been proper if motivated by a different reason." Cody v. Weber, 256 F.3d 764, 771 (8th Cir.2001), citing Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir.1990). It is well-established that "[t]he filing of a prison grievance, like the filing of an inmate lawsuit, is protected First Amendment activity." Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.2007), citing Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994); Norman v. Schuetzle, supra at 1117; Cowans v. Warren, 150 F.3d 910, 911 (8th Cir.1998); see also, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989). To avoid Summary Judgment on his retaliation claim, King "must submit `affirmative evidence [of] a retaliatory motive.'" Lewis v. Jacks, supra at 1029, quoting Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir.2006). We conclude that King has failed to sustain his burden. As we have detailed, there is no dispute that King has a constitutionally guaranteed First Amendment right to file grievances against prison stafffree from retaliation. Nevertheless, King has failed to show that, but for a retaliatory motive related to his exercise of those rights, the actions he complains of would not have been taken. First, as a matter of law, King's contention, that he was wrongfully disciplined, cannot support his retaliation claim. The Courts have repeatedly advised that, in the context of an allegedly retaliatory disciplinary action, "`if the discipline which the prisoner claims to have been retaliatory was in fact imposed for an actual violation of prison rules or regulations, then the prisoner's claim that the discipline was retaliatory in nature must fail.'" Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994), 515 U.S. 1145, 115 S. Ct. 2584, 132 L. Ed. 2d 833 (1995), quoting Goff v. Burton, 7 F.3d 734, 738 (8th Cir.1993), cert. denied, 512 U.S. 1209, 114 S. Ct. 2684, 129 L. Ed. 2d 817 (1994); Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.1990) (no retaliation claim can be stated when alleged retaliation arises from actual violation of prison regulations); Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir.2008). As our Court of Appeals has explained: The critical inquiry "is not whether the prisoner alleges that prison officials retaliated against him for participating in constitutionally protected activity, but 1081 instead is whether the prison disciplinary committee ultimately found based upon some evidence that the prisoner committed the charged violation of the prison regulations." Cornell v. Woods, 69 F.3d 1383, 1389 (8th Cir.1995), quoting Henderson v. Baird, supra at 469; see also, Hartsfield v. Nichols, supra ("[A] defendant may successfully defend a retaliatory discipline claim by showing `some evidence' the inmate actually committed a rule violation."), citing Goff v. Burton, supra at 738-739. Here, because the Hearing Officer foundbased on some evidencethat King violated several prison rules, during his altercation with Jones, King cannot prevail on his retaliatory discipline claim. The prison did no more than punish King for acts that he was not entitled to commit, and the imposition of punishment for those wrongful acts cannot, as a matter of law, form the basis of a retaliation claim. See, Goff v. Burton, supra at 738-739. Other than King's bare assertion, that the Defendants were part of some conspiracy to retaliate against him for having filed a grievance, King has simply made no showing that any of the actions of the Defendants, with respect to the disciplinary proceedings, were in any way motivated by a desire to retaliate against him for filing a grievance against Corbo. "[B]are allegations of malice on the defendants' part are not enough to establish retaliation claims against them." Shehee v. Grimes, 39 Fed.Appx. 127, 129 (6th Cir.2002), citing Crawford-El v. Britton, 523 U.S. 574, 588, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998). We have considered King's allegation, that Corbo conspired to have him assaulted, in retaliation for the grievance that he filed against her. However, we find that King has shown no real connection between any retaliatory motive, on the part of Corbo, and the Defendants' decision to institute disciplinary charges against King. Notably, Corbo had nothing to do with the ultimate disciplinary proceedings against King and, indeed, upon learning of Corbo's conduct, prison officials promptly investigated Corbo, and terminated her employment. King may labor under the misapprehension that, because he believed Corbo was planning an assault against him, in retaliation for the grievance he lodged against her, that he was justified in assaulting Jones, and that any resulting disciplinary proceeding would, thereby, be "in retaliation" for his grievance. However, that contention is without merit, and cannot sustain his retaliation claim. The mere fact that King felt he was defending against a fear of retaliation does not invalidate the subsequent disciplinary proceedings, nor does it support an inference that the disciplinary proceedings were in retaliation for King's grievance against Corbo. Moreover, to the extent that King may be contending that the Defendants conspired to have him assaulted, in retaliation for his grievance against Corbo, such a claim must also fail. First, as we have previously detailed, King has offered no evidence that any of the Defendants were aware of, or complicit in, the asserted conspiracy between Corbo and Jones. At most, King has alleged that Hamann was aware that Corbo showed the grievance to Jonesa fact which Hamann has denied. Nevertheless, the fact that Hamann knew that Corbo showed the grievance to Jones would not competently establish that Hamann knew about any conspiracy to assault King. While King has conjecture and speculation, he has no supporting proof. As a final note, we recognize that King has not established that any of the Defendants are liable for Corbo's conduct, since a supervisor is liable, under Section 1983, only if he or she "directly participates in a constitutional violation or if a failure to properly supervise and train the 1082 offending employee caused a deprivation of constitutional rights." Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir.1996); Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir.1999)(stating that a prisoner must allege defendants' personal involvement in or responsibility for the constitutional violations to state a claim under Section 1983); Mark v. Nix, 983 F.2d 138, 139-140 (8th Cir.1993). Accordingly, any claim that the Defendants are liable for Corbo's conduct, without establishing the personal involvement of each Defendant, which we have already determined has not been shown here, is insufficient as a matter of law. Given the absence of any evidence, which would support a conclusion that King's discipline was retaliatory in nature, we recommend that Summary Judgment be granted in favor of the Defendants on this claim as well.[17] In sum, as we have detailed, all of King's claims against the Defendants fail, and therefore, we recommend Summary Judgment in favor of the Defendants be granted.[18] NOW, THEREFORE, It is RECOMMENDED: 1. That the Plaintiff's Motion for Relief Stated in Complaint [Docket No. 32] be DENIED. 2. That the Defendants' Motion to Dismiss and for Summary Judgment [Docket No. 44] be GRANTED. NOTES [1] Although it is not clear if King is asserting an independent claim for retaliation under Section 1983, in addition to his claims related to a conspiracy to violate his First Amendment Rights, see, Plaintiff's Memorandum, Docket No. 34, at pp. 1-5, we have followed the Defendants' lead in proceeding as if he has also asserted such an independent claim. Moreover, as the Defendants have noted, King has not specifically pled an Eighth Amendment claim but, in his Memorandum, he cites to Eighth Amendment law, so we have addressed whether he has asserted a viable Eighth Amendment claim and, for that purpose, assume that he has alleged such a claim. We will further assume, but without deciding, that this particular claim is against the Defendants generally, although that is not entirely clear. [2] Stacy Corbo was initially a Defendant in this action, but she has already been dismissed as a Defendant, upon the recommendation of the undersigned, by Order of the District Court, the Honorable Ann D. Montgomery presiding, which was dated July 22, 2009. See, Order, 2009 WL 2208164 Docket No. 24. [3] A "kite" is "a printed form issued by the [DOC] that offenders use to communicate with staff * * * [and that] can be used to request appointments, information, programming, or to informally resolve an issue." See, Affidavit of Kim Ebeling, Docket No. 47, at Exhibit A ("Grievance Procedure"). [4] The Defendants have submitted photographs of the W-Shop office, which reveal that it is a small enclosed office, with windows on three (3) sides. See, Hamann Aff., supra at Exhibit C. Hamann avers that an inmate outside of the office would be able to see paperwork that was on the desk in the office, if he was close to the windows and looking inside. Id. at ¶ 6. [5] Hamann avers that there is one (1) inmate worker assigned to be a clerk in the W-Shop, whose job entails obtaining information from production lines, writing information on a board, and verifying orders before they are shipped out. See, Hamann Aff., supra at ¶ 6. The inmates who are working on the production line provide production information to the clerk, who then completes the associated paperwork. Id. According to Hamann, the clerk often enters the W-Shop office in order to complete paperwork with the foreman, but the clerk is never allowed in the W-Shop unaccompanied by a staff person. Id. Hamann avers that Jones has worked as the W-Shop clerk in the past, but he does not know if he was working as the clerk in August or September of 2007. Id. [6] A copy of the surveillance footage of the incident between Jones and King has been provided to the Court. See, Lindell Aff. at Exhibit C. We have reviewed the surveillance footage, which reveals that King initiated the physical altercation, consistent with the reports of the prison officials in the Record. [7] The charge that King had violated ODR 270 ("Destruction Damage, or Alteration of Property") was withdrawn prior to the Hearing. See, Oseland Aff., supra at ¶ 2. [8] King has submitted copies of numerous kites, or responses to his kites, and he alleges in his Complaint, that he "appealed through prison chain-of-command to David R. Crist, Assistant Commissioner of D.O.C. Facility Services Division and to Brent Wartner Director Policy and Legal Services for D.O.C." Complaint, supra at p. 2. However, King's submissions show that he formally appealed the outcome of his Disciplinary Hearing, but he has not attempted to show that he either filed or attempted to file, a formal grievance with respect to his other claims. Id. at Exhibits H8-J10. We are mindful that, in one of his kites, King appears to claim that he has been denied access to the administrative remedies process because some of his kites were apparently not returned to him. Id. at Exhibit P16. However, King has not alleged that he was denied access in this action, and we cannot conclude that this brief reference, in an exhibit, to an asserted obstruction of the grievance procedure is sufficient to create a genuine issue of material fact as to exhaustion. Moreover, King has not shown that he attempted to use the formal grievance procedure, which was obstructed because he did not attach the relevant kites. As such, any argument to this effect would likewise fail. We note that King makes reference to Corbo's asserted retaliation in his appeal of his disciplinary proceeding. See, Complaint, at p. 6 and Exhibit Q22. However, at that time, he did not assert that anyone other than Corbo, had retaliated against him, or was responsible for that retaliation. As such, this does not change the question, since exhaustion requires that the plaintiff exhaust his administrative remedies for each claim, as to each of the named Defendants. [9] In Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), the Court held that pendent State law claims, for even prospective injunctive relief, were barred by the Eleventh Amendment and, to that extent, the doctrine in Ex parte Young was substantially narrowed. [10] Dingle has also argued that the Eleventh Amendment bars King's request for injunctive relief, in the nature of an expungement of the disciplinary proceeding from his disciplinary record, because it amounts to retroactive equitable relief. We cannot conclude that such is the case here. While Dingle is correct in noting that retroactive equitable relief is unavailable under the Eleventh Amendment, many Courts have found that an expungement, even where predicated on a past violation of the law, is still, at least in some circumstances, prospective in nature, at least to the extent that it prohibits government officials from continuing to use a past violation against the plaintiff. See, e.g., Pascarella v. Swift Transportation Company, Inc., 643 F. Supp. 2d 639, 648-649 (D.N.J.2009) (finding that reinstatement of employment and driver's license, based upon a past due process violation, is appropriate prospective relief under Eleventh Amendment); Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir.1986) ("The injunctive relief requested here, reinstatement and expungement of personnel records, is clearly prospective in effect and thus falls outside the prohibitions of the Eleventh Amendment," where the State wrongfully discharged employee in violation of First Amendment right to free speech.); Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 178-79 (3d Cir.2002), cert. denied, 537 U.S. 1232, 123 S. Ct. 1353, 155 L. Ed. 2d 196 (2003) (finding that a request for reinstatement by State officials was not barred by Eleventh Amendment); Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir.1992) (finding that expungement of disciplinary records, based upon punishment imposed in violation of First Amendment, awarded only prospective relief since, "[a]s a practical matter, the district court's order merely prevents the prison system from considering the discipline imposed in this case as part of the inmates' records in the future."); Sexton v. Arkansas Supreme Court Committee on Professional Conduct, 725 F. Supp. 1051, 1053 (W.D.Ark. 1989). We recognize that at least one (1) case in this District has held that an expungement of a prison record is retroactive only. See, McGee v. Feneis, 2009 WL 2928245 at *5 (D.Minn., September 8, 2009)(relying on Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 88 L. Ed. 2d 371 (1985), and holding that expungement only affects events that have happened in the past). McGee did not discuss whether any future repercussions might result from the disciplinary proceeding and, moreover, Green v. Mansour, supra, upon which McGee relied, is distinguishable from this case since, there, the only relief was "notice relief" that the State's prior conduct had violated Federal law. Here, Dingle has not put forth any evidence that would allow us to conclude that there are no future effects flowing from the disciplinary proceeding, and as such, we cannot conclude that injunctive relief, as requested by King, is barred by the Eleventh Amendment, based upon the Record before us. Nevertheless, we have concluded, as we discuss elsewhere, that King is not entitled to injunctive relief, since no violation of his rights occurred as a result of the discipline imposed because of the altercation with Jones, or any other conduct that has been alleged by King. [11] Notably, this allegation is contained in King's unverified Complaint, and he does not offer any additional evidence in support of the assertion, nor does he offer a sworn Affidavit to that effect. In contrast, the Defendants have offered the Affidavit of Hamann, who denies that King ever told him that Corbo showed Jones the kite, or that he was concerned about any actions by Corbo and Jones. [12] We recognize that, in some circumstances, personal humiliation, and mental anguish and suffering, are compensable under the Eighth Amendment, notwithstanding the PLRA and the actual injury requirement, when the prisoner is subjected to degrading and humiliating treatment, or the unnecessary or wanton infliction of pain at the hands of prison officials. See, e.g., Cowans v. Wyrick, 862 F.2d 697, 699 (8th Cir.1988)(noting that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain). However, the cases in which emotional suffering are awarded are distinguishable, because they generally involve degrading treatment or the wanton infliction of pain. Here, King appears only to assert a failure to protect claim, as he does not allege that he was caused to endure degrading treatment, or the wanton infliction of pain. As a result, under such circumstances, and in the absence of any actual physical injury that was more than de minimis, we are compelled to conclude that the occurrence, that is alleged by King, did not rise to the level of an Eighth Amendment violation, and that King has simply failed to establish that the circumstances were serious enough to result in Eighth Amendment liability. [13] King has intertwined his Due Process claim, with his Retaliation claim, and his Civil Rights Conspiracy claim. See, Plaintiff's Memorandum, supra at pp. 6-8. To the extent that King may assert that those other claims may also constitute a Due Process violation, we find that the Plaintiff has failed to support a contention that any of the Defendants retaliated against him, or that he was the victim of an actionable conspiracy claim, which we address elsewhere. [14] Since we have concluded that King does not have a protectible liberty interest, which would implicate Due Process, we need not address whether or not the proceedings satisfied procedural due process requirements. [15] King makes a vague reference to a Section 1985 conspiracy, with respect to Defendants Oseland, Dingle, and Lindell, in the portion of his Memorandum that relates to his Due Process and First Amendment claims. See, Plaintiffs Memorandum, supra at pp. 7-8. The Defendants have not addressed those references specifically. He contends that they conspired to intentionally deprive him of his procedural due process rights, through an unlawful disciplinary proceeding. Id. However, as far as we can tell, King did not raise such a claim in his Complaint. Moreover, we find that the claim must also fail, because King has not alleged any facts that would support any inference that there was a "meeting of the minds" to deprive King of any civil right, that any civil right was violated, or that any discriminatory animus existed, which is necessary to support a Section 1985 conspiracy. See, Habhab v. Hon, 536 F.3d 963, 969 (8th Cir.2008)(advising that "[a] conspiracy claim requires evidence of specific facts that show a `meeting of minds' among conspirators"), quoting Barstad v. Murray County, 420 F.3d 880, 887 (8th Cir.2005). Therefore, even if he had appropriately raised a claim under Section 1985, it would likewise fail. [16] In support of this argument, King has cited to cases addressing an Eighth and Fourteenth Amendment claimed failure to protect. See, Plaintiffs Memorandum, supra at p. 5, citing Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) ("A prison official's `deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment."); Brown v. Budz, 398 F.3d 904 (7th Cir.2005)(to state an Eighth Amendment failure to protect claim, a plaintiff must allege that a defendant acted with deliberate indifference to a substantial risk of serious harm to the plaintiff); Velez v. Johnson, 395 F.3d 732 (7th Cir.2005)(under the Fourteenth Amendment a plaintiff must demonstrate that the defendant was subjectively aware of a serious risk to health or safety of plaintiff, and that he acted with deliberate indifference to that risk). We find those cases to be inapposite as to the issue of what level of knowledge is required in a Section 1986 case. However, to the extent that King is raising an Eighth Amendment failure to protect claim, we have already addressed that issue, and have concluded that he has not demonstrated an actionable Eighth Amendment claim. [17] We need address the question of equitable relief only to the extent of noting that where, as here, there is an absence of any unlawful conduct, equitable relief is not available to the complaining party. [18] We have not addressed, in any great detail, the issue of Qualified Immunity, since King has not established that any of the named Defendants violated his rights. However, we note the Defendants have not violated King's clear established rights, and as such are also entitled to Qualified Immunity.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540885/	707 F. Supp. 2d 503 (2010) UNITED STATES of America, v. Paul W. BERGRIN, et al. Criminal No. 09-369. United States District Court, D. New Jersey. April 21, 2010. 505 John Gay, Steven G. Sanders, Joseph N. Minish, Office of the U.S. Attorney, Philip James Degnan, Zach Intrater, United States Attorney's Office, Newark, NJ, for United States of America. Lawrence S. Lustberg, Jennifer Mara, Michael Baldassare, Gibbons, PC, Newark, NJ, for Paul W. Bergrin. Christopher D. Adams, Leigh-Anne Mulrey, Walder, Hayden & Brogan, PA, Roseland, NJ, for Yolanda Jauregui. John P. McGovern, Newark, NJ, for Vicente Esteves. Stephen Turano, Newark, NJ, for Jose R. Jimenez. Miles R. Feinstein, Clifton, NJ, for Sundiata Koontz. OPINION WILLIAM J. MARTINI, District Judge. On November 10, 2009, a federal grand jury in Newark returned a thirty-nine count Superseding Indictment (hereinafter "Indictment" or "S.I.") against Defendants Paul Bergrin, Yolanda Jauregui, Thomas Moran, Alejandro Barraza-Castro ("Alejandro"), Vicente Esteves, Alonso Barraza-Castro ("Alonso"), Jose Jimenez, and 506 Sundiata Koontz. This Indictment charges an array of criminal activity, ranging from conspiracy to murder a government witness and witness bribery to mortgage fraud and drug conspiracy, with a prostitution charge in between. These varied charges are presented by the government as schemes,[1] joined together under the umbrella of RICO, the Racketeering Influenced and Corrupt Organizations statute. As will be discussed herein, the Indictment alleges that Defendant Bergrin led "The Bergrin Law Enterprise" and committed the aforementioned acts in conjunction with his RICO co-defendants Jauregui, Moran, Alejandro, and Esteves[2] (collectively the "RICO Defendants"), as well as those remaining defendants who each are charged only in the substantive non-RICO counts. This matter presently comes before the Court on several pretrial motions related to the RICO counts. The first motion, brought by Defendants Bergrin, Jauregui, Moran, and Alejandro, seeks dismissal of the substantive Racketeering violation alleged in Count One of the Superseding Indictment for failure to state an offense. The next two related motions seek dismissal of the Racketeering Conspiracy and Violent Crimes in Aid of Racketeering ("VICAR") counts on the same basis. I. Motion To Dismiss Count OneRacketeering Count One, the substantive RICO count, charges Defendants Bergrin, Jauregui, Moran, and Alejandro Barraza-Castro with a Section 1962(c) violation. In order to plead a Section 1962(c) violation, the Government must set forth the following four elements: (1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated in, either directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that he or she participated through a pattern of racketeering activity. United States v. Irizarry, 341 F.3d 273, 285 (3d Cir.2003). The RICO Defendants move to dismiss Count One under Federal Rule of Criminal Procedure 12(b)(3) for failure to state an offense. Specifically, they argue that the Indictment fails to allege both a "pattern of racketeering activity" and an "enterprise." Before addressing each of these arguments, the Court first will describe the racketeering acts alleged in the Indictment. A. Facts as Alleged in Count One Defendant Bergrin was an attorney with a law office in Newark, New Jersey. According to the Indictment, Bergrin was the leader of "The Bergrin Law Enterprise," which in addition to Bergrin, included the following as its members and associates: Yolanda Jauregui, Thomas Moran, Alejandro Barraza-Castro, Vicente Esteves, the Law Office of Paul W. Bergrin, P.C., P.B. & V, P.A.,[3] Premium Realty Investment 507 Corp., Inc., and Isabella's International Restaurant, Inc. (S.I. ¶ 24.) Among the purposes and objectives alleged for this enterprise were: providing the enterprise and its leaders, members and associates with an expanding base of clients for legal and illegal services; generating, preserving and protecting the enterprise's profits and client base through commission of the predicate acts; protecting and preserving Paul Bergrin's status as a licensed attorney; enhancing defendant Paul Bergrin's reputation as a criminal defense attorney; and, promoting and enriching the enterprise and its members, while concealing the enterprise's criminal activities. (S.I. ¶ 4.) As the alleged leader of "The Bergrin Law Enterprise," the Indictment states that Bergrin, with his RICO co-defendants, "use[d] the special privileges granted to licensed attorneys to engage in and assist Client Criminals to engage in criminal activities." (S.I. ¶ 6.) These criminal activities are broken down by scheme in the Racketeering charge as follows: Conspiracy to Murder Kemo DeShawn McCray Conspiracy to Murder Witnesses Against Vicente Esteves Bribery of a Witness Against Ramon Jauregui Drug Conspiracy Operating a Prostitution Business Mortgage and Tax Fraud These varied schemes spanned approximately six years, from late 2003 through May 2009. 1. Conspiracy to Murder Kemo Deshawn McCray (Racketeering Act One, Counts Four and Five)[4] The first scheme alleged is the conspiracy to murder Kemo Deshawn McCray, a government cooperating witness set to testify against one of Defendant Bergrin's clients, William Baskerville. After Bergrin entered Baskerville's case on November 25, 2003, he purportedly met with Baskerville's drug trafficking associates and informed them that McCray was a cooperator. During this meeting, Defendant Bergrin also allegedly informed these associates that the murder of McCray would result in Baskerville going free. On March 2, 2004, Kemo Deshawn McCray was murdered. 2. Conspiracy to Murder Witnesses Against Vicente Esteves (Racketeering Acts Two and Three, Counts Six through Eleven) Four years later, Defendant Vicente Esteves retained Defendant Bergrin to represent him on pending drug charges in Monmouth County, New Jersey. The Indictment alleges that Esteves sought not only legal services from Defendant Bergrin; Esteves also purportedly hired "The Bergrin Law Enterprise" to plan the murder of those government witnesses set to appear against him in this Monmouth County case. In connection with this plot to kill the Monmouth County witnesses (also referred to hereinafter as "the Monmouth County scheme"), Defendants Bergrin, Moran, and Esteves allegedly solicited a "hitman." This hitman, unbeknownst to them, was a government informant. The Government charges the Monmouth County scheme as a Travel Act conspiracy 508 under 18 U.S.C. § 371 and sets forth several acts in furtherance stemming from the hitman's interactions with Bergrin, Moran, Esteves, and Jauregui. For example, during the summer of 2008, Bergrin allegedly met with the hitman several times, and Moran smuggled a cellphone into the Monmouth County Jail for Esteves to be used for calls to the hitman. In December 2008, these acts culminated in a conversation during which Bergrin purportedly told the hitman to murder a witness but to make it look like a home invasion robbery. No murder occurred. 3. Bribery of a Witness Against Ramon Jauregui (Racketeering Act Four, Counts Thirteen through Fifteen) The third scheme alleged involves a criminal case against Ramon Jauregui, Yolanda Jauregui's brother. When Ramon was charged with robbery in Essex County, New Jersey, the Indictment alleges that Defendants Bergrin, Yolanda Jauregui, and Moran bribed a witness to testify falsely. Specifically, the Indictment states that these defendants paid or assisted in paying this witness $3000 to falsely exculpate Ramon Jauregui. This conspiracy began on or about January 5, 2009 and ended on February 19, 2009. 4. Drug Conspiracy (Racketeering Acts Five through Seven, Counts Sixteen through Twenty) The fourth scheme involves a cocaine trafficking business allegedly operated by Defendants Bergrin, Jauregui, and Alejandro from January 2005 through May 21, 2009 out of a restaurant in Newark, New Jersey. Isabella's International Restaurant purportedly served as a "stash house" used to store "multi-kilogram quantities of cocaine and the proceeds of cocaine sales." (S.I. ¶ 18). In connection with the affairs of this stash house, the Indictment sets forth several racketeering acts, including conspiracy to distribute (against Defendants Bergrin, Jauregui, and Alejandro) and possession with intent to distribute five kilograms or more of cocaine (against Alejandro only).[5] In addition, the Indictment also charges Alejandro with distributing 500 grams or more of cocaine on December 8, 2008. 5. Operating a Prostitution Business (Racketeering Act Eight, Counts Twenty-One through Twenty-Three) From July 24, 2004 through March 2, 2005, the Indictment alleges that Defendant Bergrin assisted a client (referred to as "J.I.") with the running of J.I.'s prostitution business in New York state. Bergrin mailed letters to the New Jersey Parole Board, falsely stating that J.I. was employed by Bergrin's law office. These letters helped J.I. to evade his New Jersey parole restrictions and operate the prostitution business out of New York. In addition to writing letters, Bergrin provided J.I. with photocopies of checks drawn from the account of Premium Realty Investment Corp., an entity allegedly owned by Bergrin. These checks were meant to substantiate J.I.'s false claims to the Parole Board regarding his employment with Bergrin. When J.I. was arrested in New York state, the Indictment states that Bergrin 509 managed J.I.'s prostitution business while he was incarcerated. At some point, Bergrin also was arrested in New York and subsequently charged with a prostitution-related offense.[6] 6. Mortgage and Tax Fraud (Racketeering Acts Ten through Thirteen, Counts Twenty-Four through Thirty-Six) Finally, the sixth alleged scheme involves a mortgage fraud conspiracy, in which RICO Defendants Bergrin and Jauregui purportedly sold real estate[7] to individuals they knew had fraudulently obtained mortgage loans to pay for the properties.[8] Bergrin and other attorneys from his law office allegedly served as closing attorneys on these transactions. This scheme began in May 2005 and continued through the beginning of April 2006. B. Fed.R.Crim.P. 12(b)(3) Standard A motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B) tests the sufficiency of the Indictment. In analyzing a motion to dismiss, the Court must accept as true the facts as alleged and determine if those facts constitute a violation of the law under which the defendant is charged. United States v. Zauber, 857 F.2d 137, 144 (3d Cir.1988). Further, the Court is limited to the four corners of the Indictment itself, as the sole function of a motion to dismiss is to test the sufficiency of the allegations, not the government's evidence. United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir.2000). In assessing an Indictment's sufficiency, the Court looks to whether the charging document: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution. United States v. Vitillo, 490 F.3d 314, 321 (3d Cir.2007). The sufficiency of an Indictment may be challenged not only on the basis that it fails to charge the essential elements of the statutory offense, but also on the ground that "the specific facts alleged... fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation." United States v. Panarella, 277 F.3d 678, 685 (3d Cir.2002). In so holding, the Third Circuit in Panarella rejected the Government's contention that "an Indictment or information charges an offense ... as long as it recited in general terms the essential elements of the offense, even if the specific facts alleged in the charging instrument fail to satisfy those elements." Id.; see also United States v. McGeehan, 584 F.3d 560, 575 (3d Cir.2009) (dismissing wire fraud counts where Indictment failed to aver sufficient facts to set forth the offenses as charged). Accordingly, in assessing the sufficiency of the instant RICO charge, the Court may look past general recitations of statutory language to the facts alleged to determine 510 whether a RICO offense has been set forth. See Vitillo, 490 F.3d at 321 ("An indictment must allege more than just the essential elements of the offense."). With these principles in mind, the Court now turns to the RICO Defendants' Rule 12(b)(3) motion to dismiss on the grounds that this Indictment fails to allege both a "pattern of racketeering activity" and an "enterprise." C. "Pattern of Racketeering Activity" In defining the contours of the RICO pattern of racketeering element, the Supreme Court has explained that the term "pattern" requires "more than just a multiplicity of racketeering predicates." H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). "A pattern is an arrangement or order of things or activity ... and the mere fact that there are a number of predicates is no guarantee that they fall into any arrangement or order." Id. (citation omitted). Rather, "[i]t is not the number of predicates but the relationship that they bear to each other or to some external organizing principle that renders them `ordered' or `arranged.'" Id. Thus, to plead a pattern of racketeering activity, the predicate acts alleged must be related and must pose a threat of continued criminal activity.[9]Id. at 239, 109 S. Ct. 2893. The Third Circuit has emphasized that "relatedness" and "continuity" are distinct requirements that must be satisfied in order to establish a RICO pattern of racketeering activity. United States v. Eufrasio, 935 F.2d 553, 564 (3d Cir.1991). 1. Relatedness The relationship prong "focuses on the inter-relationship of the charged RICO predicates." Eufrasio, 935 F.2d at 564-65 (emphasis in original). A relationship exists among predicate acts if they "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." H.J. Inc., 492 U.S. at 240, 109 S. Ct. 2893. This relationship requirement "exists to ensure that RICO is not used to penalize a series of disconnected criminal acts." Eufrasio, 935 F.2d at 565. Defendant Bergrin argues that the racketeering predicates alleged in the Indictment are such a series of disconnected acts, since they "share little in terms of defendants, subject matter, manner of commission or time frame." (Bergrin Reply Br. 8). The Court agrees. There is little on the face of the Indictment demonstrating relatedness among the varied white collar frauds and street crimes offered 511 by the Government as RICO predicates. The Government even conceded as much during oral argument, admitting that these disparate acts could not be joined but for the allegation of a RICO enterprise: Court: If there were no RICO statute in existence when you did this investigation and you returned everything but the three RICO counts, could you legally have joined all those counts? And if so, under what theory could you legally have joined all those counts even as to just Mr. Bergrin? Government: Well, Judge, I am not sureI certainly haven't done the analysis on that. My sense is that it would be a difficult proposition to do that. See Tr. of Oral Argument ("Tr.") 39. Again, in response to questioning the Government admitted that the acts would be prejudicially joined under Rule 14(a): Court: If there were no RICO count, could any of these [substantive counts] be tried together without violating the principles of Rule 14? Government: Probably not. See Tr. 44. These admissions speak volumes as to the disparate nature of the substantive crimes that, in effect, also serve as the racketeering predicates.[10] While the Government maintains that these wide-ranging crimes nonetheless fall within the ambit of a RICO pattern, to hold as much would be to condone the precise type of overreaching that courts and commentators have warned against since the enactment of RICO. See, e.g., United States v. Riccobene, 709 F.2d 214, 221 (3d Cir.1983) (discussing concerns expressed about the broadness of RICO and stating "the statute could be extended to situations far removed from those actually contemplated by Congress ... federal prosecutors could use the law to invoke an additional penalty whenever they had a case involving the commission of two offenses that, coincidentally, were among those listed as `racketeering activities.'"). The predicate acts alleged range from murder of a witness to drug distribution to mortgage fraud. They may be grouped as follows: The Kemo Murder Case (11/03-3/04): Bergrin only; The Prostitution Case (7/04-3/05): Bergrin only; The Drug Conspiracy Case (1/05-5/09): Bergrin, Jauregui, Alejandro Barraza-Castro, and non-RICO Defendants Alonso Barraza-Castro and Jimenez. The Mortgage Fraud Case (5/05-4/06): Bergrin, Jauregui, and non-RICO defendant Koontz; and, The Monmouth County/Esteves Case (6/08-4/09): Bergrin, Jauregui, Esteves, and Moran; 512 The Ramon Jauregui Bribery Case (1/09-2/09): Bergrin, Jauregui, and Moran; As evident from the list, this panoply of criminal activity has but one common denominator, Paul Bergrin, who is alleged to have participated in ten of the thirteen predicate acts.[11] While the Government is correct that the Indictment's failure to name Bergrin in every predicate act "is not fatal," see Gov. Br. 40 n. 8, the Indictment's failure to set forth similar or common purposes, victims, manners of commission, or otherwise distinguishing characteristics relating these predicates warrants dismissal. a. The Kemo Murder Case The Kemo murder case demonstrates most strikingly the deficiencies of the Government's pattern pleading. This case shares nothing in common with the other schemes, save for the presence of Paul Bergrin, the only defendant purportedly involved. Bergrin is not alleged to have acted in concert with any of the RICO Defendants or any of the RICO enterprise corporations, including his law office. In fact, this case significantly predates the involvement of the other RICO Defendants in the alleged enterprise.[12] Compounding this problem, it is clear from the nature of the allegations that the Kemo murder case shares little, if anything, in common with the methods allegedly employed in the commission of the other predicates. Thus, from the face of the indictment, it is clear to the Court that no enterprise existed at the time of the Kemo murder case, if ever. b. The Other Predicate Act Schemes The Government's pleading of the remaining predicate acts shares many of the same deficiencies. Viewed together, these temporally-distinct schemes share no common defendants, save Defendant Bergrin. Indeed, Bergrin appears alone in the prostitution scheme. Alejandro appears only in the drug conspiracy. Beyond this, it is evident on the face of these schemes that they lack any similarity in method. Although the Government attempts to tie together the disparate predicates by arguing that they each furthered the "principal goals of the enterprise," Gov. Br. 39, the purposes offered in the Indictment undermine the assertion that the RICO persons share any such common objectives. Among the purposes offered are: providing The Bergrin Law Enterprise and its leaders, members and associates with an expanding base of clients for legal and illegal services; generating, preserving and protecting The Bergrin Law Enterprise's profits and client base through acts of, among other things, witness tampering, murder, conspiracy to commit murder, traveling in aid of racketeering enterprises, 513 bribery, drug trafficking, prostitution, wire fraud and money laundering; protecting and preserving Paul Bergrin's status as a licensed attorney; and, enhancing defendant Paul Bergrin's reputation as a criminal defense attorney. (S.I. ¶ 4.) Given these alleged objectives, it strikes the Court that each pertains to Paul Bergrin individually as an attorney.[13] Even the name given to this alleged entityThe Bergrin Law Enterprisereflects this fact. The enhancement of Bergrin's reputation and the preservation of his law license are clearly of unique importance to Bergrin himself, as is the expansion of his law firm's client base. As further demonstration of this, the Indictment emphasizes that "The Bergrin Law Enterprise" offers "legal and illegal services" to its "clients." This purpose again speaks to Paul W. Bergrin, Esq. While the Indictment attributes these objectives to the other members and associates of the enterprise, it strains credulity to argue, for example, that Alejandro Barraza-Castro, an alleged drug dealer, shared the aforementioned purposes regarding Bergrin's law license and his client base. Thus, the Indictment as pled offers a series of disconnected street crimes and white collar frauds carried out using divergent methods for distinct purposes at different times as the RICO "pattern." These disparate acts lack the indicia of relatedness required for a pattern and do not satisfy, on their face, the RICO pattern of racketeering requirement. 2. Continuity Beyond relatedness, to set forth a pattern of racketeering, the Indictment also must set forth "continuity." "Continuity is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). "A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time." Id. at 242, 109 S. Ct. 2893. Alternatively, the government may allege open-ended continuity through "related predicates [that] themselves involve a distinct threat of long-term racketeering activity." Id. As both the open-ended and closed-ended definitions imply, related predicates are prerequisite to a finding of continuity. In H.J., Inc., for example, the Supreme Court's continuity determination hinged not solely on the duration of the alleged predicate acts but also on their relatedness, particularly in demonstrating that they were "part of an ongoing entity's regular way of doing business." Id. The complaint in that case set forth an ongoing bribery scheme over the course of six years, directed at influencing the ratemaking decisions of five members of a regulatory agency. This common bribery scheme executed over several years allowed the Court to discern a distinct threat of long-term racketeering activity. Conversely, for the reasons set forth above, the Court holds that the predicate acts as alleged in the instant Indictment lack the commonality required for a finding of relatedness and thus continuity. The fact that these acts as alleged spanned 514 nearly six years is not sufficient, in and of itself, to satisfy the continuity requirement. See Hindes v. Castle, 937 F.2d 868, 875 (3d Cir.1991) ("We observe that not one of our post-H.J.Inc. cases has found continuity satisfied by the duration of the predicate acts alone."). Instead, there must also be a threshold showing of commonality among the acts. Finding no such showing there, the Court cannot hold that the racketeering acts alleged demonstrate continuity. As such, the Indictment does not set forth a pattern of racketeering on its face. The Court notes, however, that where racketeering acts lack relatedness and continuity, and therefore do not form a pattern on their face, the Third Circuit may deem them a pattern nonetheless if undertaken in association with a RICO enterprise. United States v. Eufrasio, 935 F.2d 553, 565 (3d Cir.1991). While this is most frequently encountered in organized crime or union corruption cases, the Court is mindful that the RICO statute can be applied outside of these contexts. See H.J., Inc., 492 U.S. at 242, 109 S. Ct. 2893 (noting that RICO has not been limited to organized crime activity). Thus, the next issue is whether such a RICO enterprise is pled sufficiently: (1) as a statutory element and (2) to allow the functionally unrelated acts pled by the Government to form a pattern. D. "Enterprise" The existence of an enterprise is a distinct statutory element from the pattern and must be established in its own right. Boyle v. United States, ___ U.S. ___, 129 S. Ct. 2237, 2245, 173 L. Ed. 2d 1265 (2009). The RICO statute defines an enterprise as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. "18 U.S.C. § 1961(4) (emphasis added). Here, the Indictment states that "The Bergrin Law Enterprise" was an associated in fact enterprise, whose members and associates included the aforementioned RICO Defendants, as well as the Law Office of Paul W. Bergrin, P.C.; P.B. & V., P.A.; Premium Realty Investment Corp., Inc.; and, Isabella's International Restaurant, Inc. (S.I. ¶¶ 1, 2.) As the Boyle Court succinctly stated, "`an association-in-fact enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct.'" Boyle, 129 S.Ct. at 2244 (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)) (emphasis added). By definition, this association-in-fact enterprise must have a structure. Id. "From the terms of RICO, it is apparent that an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose."[14]Id. 515 No structure, or at best a minimal structure, is pled in the instant Indictment with regard to "The Bergrin Law Enterprise." Instead, the Government attempts to graft an enterprise onto the actions of Defendant Bergrin by alleging that he led "The Bergrin Law Enterprise." S.I. ¶ 24(a). The Indictment, however, does not describe what this leadership entailed. Except for the labeling of Bergrin as the "leader," there is no discussion of the roles of the other associates, other than their commission of illegal acts. See, e.g., S.I. ¶¶ 24(d) ("Defendant Alejandro Barraza-Castro... conducted the affairs of The Bergrin Law Enterprise by, among other things, engaging in drug trafficking."); 24(c) ("Defendant Thomas Moran conducted the affairs of The Bergrin Law Enterprise by, among other things, engaging in conspiracy to murder witnesses, traveling in aid of racketeering enterprises and bribery of a witness."). This pleading stands in stark contrast to the typical form of a RICO Indictment. In an organized crime or union corruption RICO Indictment, for example, there is often a lengthy discussion of each associate's role in the enterprise and how the enterprise came to be. See, e.g., United States v. Merlino, 349 F.3d 144, 147 (3d Cir.2003) ("The 111 page indictment identifies defendants Merlino, Mazzone, Borgesi, Angelina, Ciancaglini, and Gambino as `made' members of the Philadelphia LCN family`The Enterprise'and Lutz and the four defendants who pled guilty as `associates' in the family, a family, it was alleged, that has been in `substantially continuous operation for a number of decades.' The structure, hierarchy, and manner in which the enterprise operated was set forth in the indictment in detail . . . The indictment described defendant Merlino as having risen through the ranks to be Acting Boss, defendant Mazzone to be Acting Underboss, and defendant Borgesi to be Acting Consigliere."). There is no such pleading as to the history of the enterprise or the roles of its members' roles here. Compounding this deficiency, the instant Indictment fails to plead a common course of conduct or unity of purpose to connect, for example, the mortgage fraud with the witness murder. Each of the seven purposes pled in ¶ 7 of the Indictment inure to the benefit of Paul Bergrin, as discussed above with regard to the pattern of racketeering. From such a pleading, no structure is readily apparent. The Court acknowledges, however, that under Boyle, in certain circumstances, a structure need not be alleged. Where a structure is not pled, the existence of an enterprise instead may be inferred from its alleged pattern of acts. Id. at 2245; cf. United States v. Console, 13 F.3d 641, 650 n. 5 (3d Cir.1993) ("Although proof of a pattern of racketeering does not necessarily establish the existence of an enterprise, we have stated that in the appropriate case, the enterprise can be inferred from proof of the pattern.") (emphasis added). This clearly assumes, of course, that a pattern of racketeering acts 516 has been sufficiently alleged, which is not the case here. 1. Enterprise Pled as the Pattern of Racketeering On the face of the instant Indictment, the Court concludes that the "enterprise" requirement is insufficiently pled. The Government hangs its hat on enterprise allegations that are both general and conclusory. During oral argument, the Government emphasized that the Indictment included allegations beyond the bare text of the statute; however, even if that were so, a plain reading of the Indictment does not enable this Court to infer, consistent with Boyle, that an enterprise has been pled as a distinct element. This is particularly true here, as the predicate act schemes on their face lack the commonality required for a pattern.[15] Here, the Government attempts to plead an enterprise exclusively through its alleged acts, in effect labeling the pattern as the enterprise. See United States v. Masters, 924 F.2d 1362, 1367 (7th Cir.1991) ("If the `enterprise' is just a name for the crimes committed, or for their agreement to commit these crimes that was charged separately in the conspiracy count, then it would not be an enterprise within the meaning of the statute."). While allegations regarding the enterprise may "coalesce" with the pattern of racketeering, these two elements are distinct and must be established separately. See Boyle, 129 S.Ct. at 2245. Accordingly, the Government cannot bootstrap an enterprise on to the pattern. By contrast, the facts of Boyle present a clear instance in which the pattern of racketeering acts alleged could lead a court to infer the existence of an associated in fact enterprise. Boyle involved a series of bank thefts in New York, New Jersey, Ohio, and Wisconsin. Specifically, from 1991 to 1994, a core group of participants was responsible for more than thirty night-deposit-box thefts and at least two attempted bank-vault burglaries. Boyle, 129 S.Ct. at 2241. This core group, which occasionally recruited others to assist it, met beforehand to plan its crimes and split the proceeds from the thefts. Id. From these allegations of a core group engaged in the same type of criminal conduct pre-existing the recruitment of additional outlying members, it is apparent how "evidence used to prove the pattern of racketeering activity and the evidence establishing an enterprise may in particular cases coalesce." Id. at 2245. The acts alleged in the instant Indictment stand in stark contrast to Boyle. There is no core group alleged, other than Paul Bergrin himself. There is no common criminal conduct; instead, the acts alleged range from prostitution to murder to mortgage fraud without any apparent overlap or coordination, again other than the presence of Paul Bergrin, over different periods of time. In particular, as discussed supra, the murder of Kemo McCray stands apart, both temporally and substantively from the other acts.[16] Beyond this, the predicate acts themselves are so disparate in type and method that the Government conceded that they could 517 not be properly joined under Rule 8(b) absent a RICO count. As such, "The Bergrin Law Enterprise" as alleged better fits Justice Alito's example of circumstances not giving rise to a RICO enterprise: It is easy to envision situations in which proof that individuals engaged in a pattern of racketeering activity would not establish the existence of an enterprise. For example, suppose that several individuals, independently and without coordination, engaged in a pattern of crimes listed as RICO predicatesfor example, bribery or extortion. Proof of these patterns would not be enough to show that the individuals were members of an enterprise. Id. at 2245 n. 4. To the extent that the Government relied on United States v. Masters to support the proposition that an enterprise can commit vastly different types of predicate acts, this comparison likewise fails on the instant facts. In Masters, the Seventh Circuit held that an association-in-fact enterprise existed among a lawyer, his law firm, two police officers, and their respective police departments where these individuals and entities engaged in a kickback scheme. 924 F.2d 1362, 1365 (7th Cir. 1991). This core group engaged in the predicate act bribery scheme for twelve years, at which point, the lawyer decided to have his wife killed. The lawyer, Masters, turned to his corrupt police contacts to arrange the killing. The Government contends that these two different categories of actsbribery and murderdemonstrate how disparate racketeering acts can be used to infer the existence of an enterprise. This argument, however, glosses over the most salient facts from Masters. The Masters enterprise existed for twelve years with the same individuals pursuing the same kickback scheme for the same ends. The existence of this enterprise could be inferred consistent with Boyle. That the defendant-attorney, Masters, then decided to use these same police officers to plan another crime did not negate the existence of that already-formed enterprise. Conversely, in the instant case, the Indictment sets forth a number of unrelated criminal schemes and attempts to excuse their lack of temporal and substantive overlap by arguing that they were part of a growing enterprise. However, looking at the schemes alleged in the Indictment by date and by defendant, the facts belie any assertion that an enterprise existed before, during, or after this growth and diversification. Turning back to the schemes and the timeline, Bergrin allegedly acted by himself in the Kemo murder case in early 2004. In the prostitution scheme later in 2004, Bergrin again acted alone. By the time the drug conspiracy began in 2005, Bergrin allegedly was working with Defendants Jauregui, Alejandro, Alonso, and Jimenez. None of these drug conspiracy defendants appear in the next scheme the mortgage fraudexcept for Bergrin and Jauregui, nor are any of these other drug defendants or Sundiata Koontz involved in the Monmouth County case. No core group ever coalesced, in stark contrast to Masters. This fact alone renders Masters either inapposite, or reading the case most broadly, helpful to Bergrin's argument that no enterprise existed. The panoply of criminality alleged and the involvement of Defendant Bergrin in each scheme cannot on its face give rise to a RICO enterprise. The Government's reasoning appears somewhat circular: it is trying both to plead a pattern of racketeering based on the alleged nature of the enterprise, and at the same time, to set forth the alleged 518 nature of the enterprise through the pattern of predicate acts. While proof of the pattern and the enterprise may coalesce, here the Government has alleged neither sufficiently in the Indictment. Thus, the attempt to use one to establish the other fails. 2. Distinctiveness Requirement Beyond the aforementioned deficiencies, the Indictment also fails to satisfy the RICO distinctiveness requirement. In order to properly allege a RICO enterprise, the Government must plead the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir. 1993); see also Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161, 121 S. Ct. 2087, 150 L. Ed. 2d 198 (2001). In other words, the defendant must be the "person" who conducted the affairs of the "enterprise," and the defendant/"person" must be distinct from the "enterprise." This is the so-called "distinctiveness" requirement. As discussed above, "The Bergrin Law Enterprise" as pled is essentially Paul Bergrin, the licensed attorney, by another name. The Government emphasized this during oral argument by asserting that the animating force behind this enterprise was the misuse of legal services to perform illegal acts. See Tr. 54, 80; see also S.I. ¶ 6 ("Defendants and other members and associates of The Bergrin Law Enterprise would provide illegal services to various criminals ... who hired or otherwise used the services of The Bergrin Law Enterprise. As part of those services, defendants and other members and associates of The Bergrin Law Enterprise would use the special privileges granted to licensed attorneys to engage in and assist Client Criminals to engage in criminal activities."). Through its focus on the misuse of legal services, the Government ties this enterprise together through Bergrin's status as an attorney. "The Bergrin Law Enterprise" therefore is simply Paul W. Bergrin, Esq., without whom, as the Indictment states, none of the criminal schemes would be possible. The Court notes that the Indictment alleges the enterprise to be a group of individuals and legal entities, including the Law Office of Paul W. Bergrin, P.C.; P.B. & V, P.A.; Premium Realty Investment Corp., Inc.; and, Isabella's International Restaurant, Inc. In support of its enterprise argument, the Government contends that the mention of these legal entities renders "The Bergrin Law Enterprise" distinct from Paul Bergrin himself under Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 121 S. Ct. 2087, 150 L. Ed. 2d 198 (2001). The formality of this pleading, however, is not sufficient to allege a RICO enterprise, as the inclusion of corporations in the enterprise does not, on its own, set forth the requisite distinctiveness. In Cedric Kushner, the Supreme Court assessed whether a corporate employee, "acting within the scope of his authority allegedly conduct[ed] the corporation's affairs in a RICO-forbidden way." 533 U.S. at 163, 121 S. Ct. 2087. Under this factual framework, the Court held that Don King (person) was distinct from the corporation (enterprise) that he both worked for and owned, given the distinct legal status of the corporation. Id. The allegations in the instant Indictment are distinguishable in several important aspects. First, as noted above, the inclusion of different entities by the Government in the enterprise allegations does little but distract from the fact that both the person and the enterprise are Paul Bergrin, licensed attorney. This was not 519 the case in Cedric Kushner, where the allegations focused on Defendant Don King's operation of his boxing promotion company, the enterprise in a corrupt way. Beyond the fact that the persons and the enterprise in this case are functionally Paul Bergrin, the RICO persons listed in the Indictment are identical to the alleged RICO enterprise. Unlike the complaint at issue in Cedric Kushner, the Indictment does not state that Bergrin, as the RICO person, operated one or all of the corporations listed as the RICO enterprise. Instead, the RICO persons are alleged to be the RICO Defendants and the aforementioned corporations, see S.I. ¶¶ 1, 2, as is the RICO enterprise. See S.I. ¶ 24; Gov. Br. 28 ("Count One defines the enterprise not merely as a corporation of which Bergrin is a sole shareholder, but as an association of several individuals and business entities.") Where the RICO persons and the enterprise are alleged to be the same individuals and corporations, there can be no distinctiveness. The legal status of the corporations, as discussed in Cedric Kushner, is of no relevance under these circumstances. Put another way, the same individuals and entities alleged to be RICO persons also cannot serve as the enterprise. See Zavala v. Wal-Mart Stores, Inc., 447 F. Supp. 2d 379, 383 (D.N.J.2006) ("If the members of the enterprise are the same as the persons, [§ 1962(c)'s] distinctness requirement has not been met, as the `person' and the `enterprise' must not be identical."); Kolar v. Preferred Real Estate Inv., Inc., Civ. No. 07-3864, 2008 WL 2552860, at 4-5 (E.D.Pa. Jun. 19, 2008) (same). Accordingly, the enterprise as pled fails the RICO distinctiveness requirement. Since Count One as set forth in the Indictment both fails to set forth a pattern of racketeering and an enterprise, it is dismissed as to all Defendants. II. Motions to Dismiss Counts Two and ThreeRacketeering Conspiracy and Violent Crimes in Aid of Racketeering Dismissal of Count One for failure to properly allege a pattern and an enterprise requires the dismissal of Count Twothe RICO conspiracy charge. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir.1993) ("Any claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient."). The VICAR charge, Count Three, must be dismissed as well. To set forth a VICAR violation, the following five elements must be shown: (1) that there was an "enterprise," (2) that engaged in "racketeering activity," (3) affecting interstate or foreign commerce, (4) and that the defendant committed a crime of violence, (5) "for the purpose of gaining entrance to or increasing or maintaining his position in the enterprise." 18 U.S.C. § 1959(a). Since the Indictment fails to allege an enterprise for the reasons noted above, Count Three is dismissed. III. Conclusion For the foregoing reasons, the RICO Defendants' motions to dismiss Counts One, Two, and Three, pursuant to Federal Rule of Criminal Procedure 12(b)(3), are GRANTED. The Court reserves on all pending pretrial motions not addressed herein. An Order follows this Opinion. ORDER THIS MATTER having come before the Court on the motions to dismiss Counts One, Two, and Three of the Superseding Indictment filed by Defendants Bergrin, Jauregui, Moran, and Alejandro Barraza-Castro; 520 and the Court having carefully considered the parties' briefs and oral argument on April 7, 2010; and for the reasons set forth in the accompanying Opinion; and for good cause appearing, IT IS on this 21st day of April 2010, hereby, ORDERED that the motions to dismiss Counts One, Two, and Three are GRANED as to all Defendants named therein and Counts One, Two, and Three are DIMISSED; and it is FURTHER ORDERED that the Court reserves on all pending pretrial motions not addressed in this Opinion. NOTES [1] As part of its oral argument on April 7, 2010, the Government presented a "Timeline of Racketeering Acts." The schemes referred to in this Opinion are drawn from the Government's timeline and from the Government's grouping of the racketeering acts in the Indictment. [2] Defendants Bergrin, Jauregui, and Moran are charged in all three RICO countsCount One (Racketeering, in violation of 18 U.S.C. § 1962(c)), Count Two (Racketeering Conspiracy, 18 U.S.C. § 1962(d)), and Count Three (Violent Crimes in Aid of Racketeering, 18 U.S.C. § 1959(a)(3)). Alejandro Barraza-Castro is charged only in the first two counts, and Vicente Esteves is charged only with Violent Crimes in Aid of Racketeering. [3] While this acronym is not spelled out in the Indictment, during oral argument, the parties referred to this entity as the law firm of Pope, Bergrin, & Verdesco. [4] Since the racketeering acts alleged also are set forth as substantive charges later in the Indictment, for ease of reference, the headings in this section will list both where the acts can be found in the RICO charge and where they are charged later in the Indictment. [5] Like all of the other aforementioned schemes, in addition to being pled as a RICO predicate, the drug conspiracy is also charged as a substantive count in the Indictment. Defendants Alonso and Jimenez are charged only in these substantive drug counts, specifically Count 16 (conspiracy to distribute cocaine), Count 17 (distribution of cocaine), and Count 20 (maintaining drug-involved premises). In these three counts, Alonso and Jimenez are charged with Alejandro but only Alejandro is named as a RICO defendant. [6] Defendant Bergrin later pled guilty to a misdemeanor prostitution offense in New York state and was sentenced to a term of probation. [7] The Indictment states that Bergrin and Jauregui owned at least one of these properties through Premium Realty Investment Corp., Inc. [8] Defendant Koontz, while not charged in the RICO mortgage fraud predicates, is charged with Bergrin and Jauregui in the substantive mortgage fraud counts in the Indictment, Counts 24 through 29. [9] While the Government maintains that relatedness and continuity are proof elements for trial and not pleading requirements, the Third Circuit has considered both on a motion to dismiss. See Hollis-Arrington v. PHH Mortg. Corp., 205 Fed.Appx. 48, 54 (3d Cir.2006) ("To plead a pattern of racketeering activity, Hollis-Arrington must aver not only that each defendant committed at least two acts of prohibited racketeering activity but also that the predicate acts are related and that they amount to or pose a threat of continued criminal activity."); HT of Highlands Ranch, Inc. v. Hollywood Tanning Sys., Inc., 590 F. Supp. 2d 677, 688 (D.N.J.2008) (assessing sufficiency of continuity pleading on a motion to dismiss); see also GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 465 (2d Cir.1995) ("[A] plaintiff in a civil RICO suit must establish a `pattern of racketeering activity.' The plaintiff must plead at least two predicate acts, see § 1961(5), and must show that the predicate acts are related and that they amount to, or pose a threat of, continuing criminal activity"). As such, this Court shall consider relatedness and continuity for the purposes of the instant motion. [10] The differences between these RICO predicates are not merely a pleading concern. Thinking through to the practicalities of trial, it concerns the Court that evidence of these different alleged criminal acts likely would pose evidentiary problems. For example, the Court would be sensitive to the admission of the Kemo murder evidence in conjunction with the Monmouth County hitman case, which involved different defendants, save Bergrin, and occurred four years later. To the extent that the hitman evidence would be used to demonstrate motive in the Kemo trial, this clearly would be inappropriate. Further, the spillover prejudice from the introduction of each witness murder case in a trial of the other would give the Court serious pause. Beyond this, the Government would introduce its mortgage fraud case and prostitution cases during the same megatrial. The many and complex limiting instructions that would have to be employed as to the counts and defendants would confound the Court, let alone the jurors. [11] Jauregui is named in five of the thirteen racketeering acts; Moran is named in two; and, Alejandro is named in three. [12] The next scheme alleged to have occurred is the prostitution case, which again involved only Bergrin. After the prostitution case, the next scheme by date is the drug conspiracy. This scheme allegedly began in January 2005; however, it bears noting that the Indictment pleads no acts in furtherance of this conspiracy until December 2008. (S.I. ¶ 33) (setting forth Racketeering Act Seven alleging that Jauregui and Alejandro intentionally distributed 500 grams or more of cocaine). Thus, to the extent that the Government contends that the existence of an enterprise around the time of the Kemo murder is bolstered by commencement of the prostitution scheme or the drug conspiracy shortly thereafter, this argument is undermined both by lack of any co-defendant involvement in the prostitution and the lack of any alleged overt acts in this drug conspiracy until late 2008. [13] This issue is discussed in more detail infra. [14] The Government contends that it need not plead the enterprise with any specificity, as long as it identifies entities believed to be the enterprise. Gov. Br. 26. Further, the Government cites to Seville, a Third Circuit case holding that a civil RICO plaintiff need not plead the so-called Turkette factorsi.e., ongoing organization, functioning as a continuing unit, and existence separate and apart from the patternto state a cause of action. Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 790 (3d Cir.1984). In support of this holding, the Seville court noted that "[i]t is the function of discovery to fill in the details." Id. The Court notes the holding of Seville and agrees with the Government that failure to plead each of the three Turkette factors does not render an Indictment defective; however, the Court here does not rely on Turkette factors to assess the sufficiency of this enterprise pleading. Instead, the Court is looking more fundamentally at whether each element of a Section 1962(c) violation has been pled, which, of course, includes both the pattern and enterprise elements. See Seville, 742 F.2d at 790 n. 5 ("It is an essential element of the RICO cause of action that the `enterprise' be apart from the underlying pattern of racketeering."); see also Boyle, 129 S.Ct. at 2245 ("[T]he existence of an enterprise is an element distinct from the pattern of racketeering activity."). While facts establishing the pattern and the enterprise may coalesce, the two elements are not identical, rendering one or the other surplusage. Accordingly, the Court will consider whether the enterprise has been pled as a distinct element from the pattern. [15] Unless, of course, the common purpose of the enterprise is to break the law and the course of conduct is committing illegal acts. To hold as much, however, would convert any garden variety criminal conspiracy into a RICO enterprise, which would be true neither to the letter nor the spirit of the RICO statute. [16] To the extent that any of the RICO corporations, such as Premium Investment Realty Corp., existed at the time of the Kemo murder, they are not alleged to have been used or to have played any part in this temporally-distinct scheme.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2540867/	723 F. Supp. 2d 1132 (2010) Joan NAJBAR, Plaintiff, v. The UNITED STATES, Defendant. Case No. 09-CV-3143 (PJS/RLE). United States District Court, D. Minnesota. July 16, 2010. 1133 Jeff H. Eckland, Mark J. Blando, Timothy M. Connelly, and Kate H. Kennedy, Eckland & Blando LLP, for plaintiff. Mary Jo Madigan, United States Attorney's Office, for defendant. AMENDED ORDER GRANTING MOTION TO DISMISS PATRICK J. SCHILTZ, District Judge. Plaintiff Joan Najbar contends that the federal government committed various state-law torts when a letter that she sent to her son while he was serving in the United States Army in Iraq was returned to her stamped "deceased" even though her son was, in fact, alive. The government moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction. For the reasons that follow, the Court grants the motion and dismisses the case. I. BACKGROUND According to Najbar's complaint (which the Court takes as true for purposes of ruling on the government's motion), Najbar's son served in the United States Army in Iraq in 2006 and 2007. In September 2006, Najbar sent him a letter via the United States Postal Service. A few weeks later, the letter was returned to her by the Postal Service, and the word "DECEASED" (in all capital letters) was stamped in red ink on the envelope. Compl. ¶¶ 5-7. Until she received the letter, Najbar had no reason to believe that her son had died. She became very upset upon receiving the letter and reading the "deceased" stamp. After failing to get information from the Postal Service about the letter, she soon learned from the Red Cross that her son was still alive. Id. ¶¶ 10-11, 14-16. Najbar was already under the care of a psychiatrist when she received the letter. Id. ¶ 12. After she received the letter, though, Najbar's psychological problems got worse. Id. ¶ 13. Subsequently, she suffered emotional distress with accompanying physical manifestations, sought medical treatment for her condition, and lost income. Id. ¶¶ 18, 26. Najbar filed an administrative claim for compensation with the Postal Service. The Postal Service denied the claim both initially and on request for reconsideration. Id. ¶¶ 20, 24. Najbar then brought this suit against the federal government. She asserts state-law claims that her complaint denominates as "intentional infliction of emotional distress," "negligence," "negligent infliction of emotional distress," and "negligence per se." Compl. Counts 1-4. II. DISCUSSION A. Standard of Review The appropriate standard for review of a Rule 12(b)(1) motion depends on the nature of the motion. When a defendant challenges the factual basis of the court's subject-matter jurisdictionthat is, when the defendant alleges that under the facts as they actually exist the court does not have subject-matter jurisdictionthe court may take evidence and decide any disputed issues of fact that relate to the existence of subject-matter jurisdiction. See Osborn v. United States, 918 F.2d 724, 729 n. 6 & 730 (8th Cir.1990). But when a defendant makes a so-called "facial attack" under Rule 12(b)(1)that is, when the defendant argues that under the facts as they are alleged in the complaint the court does not have subject-matter jurisdictionthe court treats the factual allegations in the complaint as true and determines whether 1134 those allegations are sufficient to establish subject-matter jurisdiction. Id. at 729 n. 6 (internal quotation marks omitted); see also Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). In this case, the government brings a facial challenge to subject-matter jurisdiction. The Court therefore considers whether, as a matter of law, the Court would have subject-matter jurisdiction if all of the factual allegations in Najbar's complaint were true. Cf. Bear Medicine v. United States, 241 F.3d 1208, 1213 (9th Cir.2001) ("A district court's determination that it lacks subject matter jurisdiction under the FTCA . . . [is] reviewed de novo."). B. Exceptions under the Federal Tort Claims Act Najbar brings four state-law tort claims against the United States and seeks damages for physical and emotional distress, medical expenses, and lost income. State-law tort claims against the federal government are generally permitted under the Federal Tort Claims Act ("FTCA"), which provides subject-matter jurisdiction over civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). The FTCA thus waives, in part, the federal government's sovereign immunity, which would otherwise prohibit state-law tort suits against the federal government. See United States v. Dalm, 494 U.S. 596, 608, 110 S. Ct. 1361, 108 L. Ed. 2d 548 (1990) (discussing federal sovereign immunity). As noted, the FTCA does not entirely waive the federal government's sovereign immunity. Specifically, 28 U.S.C. § 2680 carves out various types of claims from the FTCA's sovereign-immunity waiver and effectively deprives district courts of jurisdiction over those carved-out claims. Two subsections of § 2680 are relevant to this case. First, subsection (b) forecloses "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b). Second, subsection (h) forecloses "[a]ny claim arising out of . . . misrepresentation . . . ." 28 U.S.C. § 2680(h). The government contends that Najbar's claims fall within both of these exceptions and that, as a result, the Court lacks subject-matter jurisdiction. The Court disagrees with respect to the postal-matter exception (subsection (b)), but agrees with respect to the misrepresentation exception (subsection (h)). 1. The Postal-Matter Exception Najbar's claims stem from the return to her by the United States Postal Service of a letter that she had sent her sona letter that, when it was returned, bore a stamp saying "deceased." According to the government, § 2680(b) applies because Najbar essentially asserts that the letter was "damaged or mishandled." Def. Reply Mem. at 2 [Docket No. 11]. Section 2680(b) does not actually use the words "damaged" or "mishandled." Rather, the statute precludes claims arising from three causes: the "loss" of mail, the "miscarriage" of mail, and the "negligent transmission" of mail. 28 U.S.C. § 2680(b). The Supreme Court interpreted this very language in Dolan v. United States Postal Service, 546 U.S. 481, 126 S. Ct. 1252, 163 L. Ed. 2d 1079 (2006). 1135 The plaintiff in Dolan sued the Postal Service for injuries she received when she tripped over a package that had been left on her front porch. Id. at 483, 126 S. Ct. 1252. Dolan rejected the government's argument that the plaintiff's claim arose from negligent transmission of the mail and was therefore barred under § 2680(b). Id. at 486-87, 126 S. Ct. 1252. Dolan noted that "[i]f considered in isolation, the phrase `negligent transmission' could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail," including the kind of acts alleged by the plaintiff. Id. at 486, 126 S. Ct. 1252. But Dolan embraced a "narrower reading" of the statutory language and held that "`negligent transmission' does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address." Id. Dolan also explained that the words "lost" and "miscarried" have their ordinary meaning: "mail is `lost' if it is destroyed or misplaced and `miscarried' if it goes to the wrong address." Id. at 487, 126 S. Ct. 1252. Najbar's letter was not lost, nor was it miscarried. (If the "deceased" stamp had been accurate, the Postal Service's delivery would have likewise been accurate). And given Dolan's discussion of "negligent transmission," the Court finds that the "deceased" stamp on the letter is not the kind of "damage" to postal matter that qualifies as "negligent transmission." Dolan described § 2680(b) as reaching harms of the sort "primarily identified with the Postal Service's function of transporting mail throughout the United States," and offered the "shattering of shipped china" as an example of a claim arising from the delivery of mail "in damaged condition . . . ." Id. at 489, 126 S. Ct. 1252. When, as in this case, a claim is based not on damage to the contents of an envelope or package but only to markings on the exterior of the envelope or package, the claim does not arise from the "negligent transmission" of mail and does not fall within § 2680(b). Cf. Barbieri v. Hartsdale Post Office, 856 F. Supp. 817, 818 (S.D.N.Y.1994) (rejecting application of § 2680(b) to claim arising from "an allegedly erroneous postmark which plaintiff claims led to a tax penalty"). 2. The Misrepresentation Exception The government also argues that Najbar's claims are barred by 28 U.S.C. § 2680(h), which precludes claims "arising out of . . . misrepresentation . . . ." 28 U.S.C. § 2680(h). The government's argument is straightforward: Najbar alleges that she suffered damages when the government, by returning her letter stamped "deceased," effectivelyand inaccuratelytold her, "Your son has died." To say that a person is dead when the person is alive is to make a misrepresentation, and thus (says the government) Najbar's claims fall within § 2680(h). Najbar makes two arguments in response. First, Najbar denies that her claim arises out of a misrepresentation in any sense of the word. Rather, says Najbar, her claim is based on "actionable negligence [that] occurred at an operational level before the envelope was stamped `DECEASED.'" Pl. Mem. Opp. Mot Dism. at 14 [Docket No. 10]. Second, Najbar argues that even if her claim is one for misrepresentation, it is for a type of misrepresentation that does not fall within § 2680(h). Id. at 15-20. The Court rejects both arguments. With respect to the first argument, it is true that the misrepresentation exception "does not bar negligence actions which focus not on the Government's failure to use due care in communicating information, but rather on the Government's breach of a different duty." Block v. Neal, 460 U.S. 289, 297, 103 S. Ct. 1089, 75 1136 L.Ed.2d 67 (1983). This principle does not help Najbar, however, because her action focuses squarely on "the Government's failure to use due care in communicating information." Najbar's alleged damages were caused by the delivery of a letter stamped "deceased." This is clear from the complaint, which asserts that "[u]pon viewing the `DECEASED' stamp on the letter, Ms. Najbar became extremely distressed," and that "[a]s a result of receiving the letter indicating that her son was dead, Ms. Najbar suffered emotional distress with physical manifestations." Compl. ¶¶ 11, 18. Obviously, Najbar did not become "extremely distressed" because the letter had not reached her son or because the envelope had been defaced with red ink. Najbar became "extremely distressed" because the government was telling her, by returning the envelope stamped "deceased," that her son was dead. Had Najbar never seen the letter, or had she seen the letter only after having been warned by the government that someone mistakenly stamped "deceased" on a letter to her son but he was in fact alive, she would not have suffered any damages. It is therefore absurd to allege, as Najbar does, that "the communication of the information [about her son's alleged death] was collateral to the alleged wrong." Pl. Mem. Opp. Mot. Dism. at 13. As the complaint itself makes clear, the "communication of information" was central to "the alleged wrong." Without the "communication of information," there would not have been an "alleged wrong." Najbar would not have been injured, and she would have no claim against the federal government. This case is thus very different from Mundy v. United States, 983 F.2d 950 (9th Cir.1993), the sole case on which Najbar relies in arguing that her claim is for operational, precommunication negligence rather than for negligence in communicating information. The plaintiff in that case, Mundy, was fired by a defense contractor after the government denied his security clearance, and he sued the government for negligently denying the clearance. Id. at 951-52. According to Mundy, if the government had not misfiled a document, it would have granted him the requested clearance. Id. at 951. The Ninth Circuit held that the FTCA's misrepresentation exception did not bar the claim because the claim "focuse[d] on the performance of an operational taskthe processing of a requested security clearancerather than the communication of information." Id. at 952. Crucially, the court noted that "the communication was not a misrepresentation: the security clearance in fact had been denied." Id. (emphasis added). This case, by contrast, is "focuse[d] on . . . the communication of information," and the communication at issue in this casethe "deceased" stamp, which communicated to Najbar that her son had diedwas a misrepresentation. Najbar further argues that the misrepresentation exception does not apply because this case, if it involves a misrepresentation, does not involve the type of misrepresentation that is the subject of the exception. According to Najbar, the misrepresentation exception in § 2680(h) applies only to claims seeking to recover for commercial damage resulting from reliance by a plaintiff on a misrepresentation by the government. Pl. Mem. Opp. Mot. Dism. at 15. The FTCA's misrepresentation exception certainly reaches commercial claims, but there is little reason to think that it reaches only commercial claims. Fifty years ago, the Supreme Court in United States v. Neustadt held that Congress intended the misrepresentation exception to reach "the traditional and commonly understood legal definition of the tort of `negligent misrepresentation'"that 1137 is, a claim by a party arising from the government's "breach of . . . the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely in the conduct of his economic affairs . . . ." 366 U.S. 696, 706, 81 S. Ct. 1294, 6 L. Ed. 2d 614 (1961). In support of this holding, the Court cited § 552 of the first Restatement of Torts, published in 1938, as well as the 1941 edition of Prosser's treatise on torts. Id. at 706 n. 16, 81 S. Ct. 1294. Twenty-two years after Neustadt, the Supreme Courtquoting Neustadt quoting Prossersaid in a footnote in Block v. Neal: The "misrepresentation" exception applies only when the action itself falls within the commonly understood definition of a misrepresentation claim, which "`has been identified with the common law action of deceit,' and has been confined `very largely to the invasion of interests of a financial or commercial character, in the course of business dealings.'" 460 U.S. at 296 n. 5, 103 S. Ct. 1089 (quoting Neustadt, 366 U.S. at 711 n. 26, 81 S. Ct. 1294, in turn quoting Prosser, Torts § 85, "Remedies for Misrepresentation," at 702-03 (1941 ed.)). Taken out of context, the quoted portions of Block and Neustadt could be read to support Najbar's assertion that, because she does not seek to recover for commercial injury, her claim is not barred by the FTCA's misrepresentation exception even if it is a claim for misrepresentation. But the context makes clear that Block and Neustadt were simply describing, in elliptical fashion, the most-common types of misrepresentation claims. Indeed, the very language from Prosser's treatise quoted in Neustadt and then in Block spoke of misrepresentation claims being "`very largely'"but not exclusivelylimited to claims seeking recovery for commercial injury. Neustadt, 366 U.S. at 711 n. 26, 81 S. Ct. 1294 (quoting Prosser, Torts § 85, "Remedies for Misrepresentation," at 702-03 (1941 ed.)). And Block itself said that "the essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies." 460 U.S. at 296, 103 S. Ct. 1089. This formulation of the "essence" of misrepresentation is not limited to commercial misrepresentations. Finally, neither Neustadt nor Block involved a claim for noncommercial misrepresentation, and thus neither case could have held that such claims were outside the scope of the FTCA's misrepresentation exception. The question was simply not before the Court. Najbar argues, in effect, that when Congress declared "misrepresentation" claims off-limits under the FTCA, it intended to reach only a subset of misrepresentation claims. In other words, Najbar argues that, in enacting § 2680(h), Congress essentially said: "The government cannot be sued for a misrepresentation that causes commercial loss, but it can be sued for a misrepresentation that causes physical or emotional injury." But Congress said no such thing. Congress used the word "misrepresentation," and that word is broad enough to reach all types of claims for misrepresentation, whether those claims seek recovery for commercial injury, physical injury, or emotional injury. Further, the word is broad enough to reach a claim based on a misrepresentation regardless of how, or even whether, the plaintiff relied on the misrepresentation. The Court therefore rejects Najbar's (dubious[1]) argument that her 1138 claim does not fit within the misrepresentation exception because the injuries she suffered were not caused by her reliance on the "deceased" stamp. See Pl. Mem. Opp. Mot. Dism. at 18-20. ORDER Based on the foregoing and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: 1. The motion of defendant the United States of America to dismiss for lack of subject-matter jurisdiction [Docket No. 6] is GRANTED. 2. Plaintiff's complaint is DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION. LET JUDGMENT BE ENTERED ACCORDINGLY. NOTES [1] The Court is highly skeptical of the factual premise of Najbar's argumentnamely, that she did not rely on the misrepresentation. According to the complaint, when Najbar saw the "deceased" stamp, she believed that her son might have died. Compl. ¶¶ 13, 15. She would not have been injuredand she would have no claim against the governmentif the "deceased" stamp had not caused her to believe that her son might have died. To believe an assertion is to rely (at least mentally and psychologically) on the assertion's truth, even if one does not act on that belief.	01-03-2023	10-30-2013

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