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commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted). Haney argues that § 922(o) exceeds Congress’s power under the Commerce Clause by regulating purely intrastate activity. We note at the outset that all of the courts of appeals that have addressed this issue have upheld § 922(o) as a valid enactment under the Commerce Clause. See United States v. Franklyn, 157 F.3d 90 (2d Cir.1998); United States v. Wright, 117 F.3d 1265 (11th Cir.1997), amended on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Knutson, 113 F.3d 27 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273 (3d Cir.1996); REDACTED United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992); cf. Navegar, Inc. v. United States, 192 F.3d 1050, 1055 (D.C.Cir.1999) (upholding a federal ban on possessing semiautomatic assault weapons and comparing that law to § 922(o)), cert. denied, 531 U.S. 816, 121 S.Ct. 53,148 L.Ed.2d 21 (2000). Because § 922(o) contains no jurisdictional element (such as a requirement that the possession be in or affecting interstate commerce), we treat Haney’s challenge as a facial challenge. See United States v. Riddle, 249 F.3d 529, 539 (6th Cir.2001) (“Any as-applied challenge is irrelevant since [the statute]
[ { "docid": "6611425", "title": "", "text": "commerce, any firearm,” thus establishing a case-by-case effect on interstate commerce even in prosecutions of intrastate possession. Bell, 70 F.3d at 498. Section 922(o), like § 922(q), lacks an interstate commerce nexus element and thus can not be upheld under Bell’s analysis. Section 922(o) generally proscribes transfer and possession of machine guns without any reference to interstate commerce. Section 922(o) also, like § 922(q), lacks legislative findings or congressional committee reports regarding its nexus with interstate commerce. The government argues that § 922(o) is constitutional as part of either the second or third Lopez/Perez categories, as a regulation of things in interstate commerce or as a regulation of activities substantially affecting interstate commerce. For support, the government points out-that every circuit court to consider the question of § 922(o)’s constitutionality in light of Lopez has upheld it: United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Kirk, 70 F.3d 791 (5th Cir.1995), rehearing en banc granted, 78 F.3d 160 (5th Cir.1996); and United States v. Rambo, 74 F.3d 948 (9th Cir.1996). Ken ney counters by citing the contrary pre-Lopez view of United States v. Bownds, 860 F.Supp. 336 (S.D.Miss.1994). In Bownds, the district court held that § 922(o)‘ exceeded Congress’s commerce power and violated the Tenth Amendment. The court faulted Congress for failing either to include a jurisdictional element in the offense or to make findings “to support its authority to .ban the mere possession of machine guns.” 860 F.Supp. at 340. The magistrate judge in this case found the Bownds reasoning persuasive. We have, however, rejected the argument that Lopez requires federal criminal statutes to contain a jurisdictional element, Wilson, 73 F.3d at 685, and Lopez explicitly reaffirmed the rule that “Congress normally is not required to make formal findings as to the substantial burdens •that an activity has on interstate commerce.” Lopez, — U.S. at-, 115 S.Ct. at 1631. Even in Perez, where the Court discussed legislative history at length in the course of upholding a statute that criminalized loansharking, the Court was careful to note that such history is merely helpful, not essential, in" } ]
[ { "docid": "6752971", "title": "", "text": "v. Napier, 233 F.3d 394, 402 (6th Cir.2000) (holding that the Second Amendment right “is limited to keeping and bearing arms that have some reasonable relationship to the preservation or efficiency of a well regulated militia” (quotation marks omitted)); Gillespie v. City of Indianapolis, 185 F.3d 693, 711 (7th Cir.1999) (rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(9) because the plaintiff “does not argue (and we do not believe under any plausible set of facts that he could) that the viability and efficacy of state militias will be undermined by prohibiting those convicted of perpetrating domestic violence from possessing weapons in or affecting interstate commerce”), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000); United States v. Wright, 117 F.3d 1265, 1272-74 (11th Cir.1997) (holding that a criminal defendant must demonstrate a reasonable relationship between possession of a machinegun and the preservation or efficiency of a militia actively trained and maintained by the state), amended on other grounds by 133 F.3d 1412 (11th Cir.1998); United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996) (same); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir.1992) (same). Applying this standard, it is clear that § 922(o) is facially constitutional. Section 922(o)(2)(A) sets forth a specific exemption for possession of a machinegun “under the authority of’ a state; therefore, that section cannot impair the state’s ability to maintain a well-regulated militia. Accord Wright, 117 F.3d at 1274 n. 19. Haney does not contend that his possession of the machineguns at issue in this case was under the authority of Oklahoma. Nor has Haney proven several facts logically necessary to establish a Second Amendment violation. As a threshold matter, he must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is “well regulated” by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service. None of these are established. The militia of the Second Amendment is a governmental organization: The Constitution elsewhere refers to “the Militia of" }, { "docid": "9797095", "title": "", "text": "Third, Fifth, Seventh, Tenth and Eleventh Circuits. See United States v. Franklyn, 157 F.3d 90, 96 & n. 3 (2d Cir.1998) (not deciding whether FOPA fell within Lopez category 1); United States v. Wright, 117 F.3d 1265, 1270 (11th Cir.1997), vacated on other grounds, 133 F.3d 1412 (1998); United States v. Knutson, 113 F.3d 27, 30 (5th Cir.1997) (avoiding the issue of category 1 to prevent controversy); United States v. Rybar, 103 F.3d 273, 283 (3d Cir.1996); United States v. Kenney, 91 F.3d 884, 890 (7th Cir.1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995). The FOPA has been upheld as a Lopez category 1 regulation of the channels of interstate commerce by the Sixth and Ninth Circuits. See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir.1996); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.1996); see also United States v. Kirk, 70 F.3d 791, 796-97 (5th Cir.1995), vacated, 78 F.3d 160 (1996). Likewise, the First Circuit has upheld under Lopez category 3 section 110201 of the Violent Crime Control and Law Enforcement Act, entitled the Youth Handgun Safety Act, which prohibits the mere possession of a firearm by a juvenile. See United States v. Cardoza, 129 F.3d 6, 12 (1st Cir.1997); 108 Stat. 1796, 2010 (codified at 18 U.S.C. § 922(x) (1994)). . Congress heard other testimony regarding specific crimes where the assailant subverted state laws by buying a semiautomatic assault weapon in one state and using it to commit a crime in another where it was prohibited. See id. at 246 (statement of Catherine Varner); Assault Weapons: A View From the Front Lines: Hearing Before Senate Committee on the Judiciary, 103d Cong. 38 (1994) (Statement of Sarah Brady, chair of Handgun Control Int'l). . Congress also heard testimony from state and federal lawmakers regarding the necessity of a national ban on semiautomatic assault weapons because existing stale and federal regulation were insufficient. Jim Florio, at that time Governor of New Jersey, testified that \"no individual state law, no matter how strong, can stop the deadly flow of these weapons across State lines.” Assault" }, { "docid": "10118489", "title": "", "text": "be constitutional under either of the other two Lopez categories. As such, Knutson’s conviction for unlawfully possessing a maehinegun in violation of § 922(o) is AFFIRMED. . This issue was the subject of our rehearing en banc in United States v. Kirk, 70 F.3d 791, (5th Cir.1995), vacated, 78 F.3d 160, aff'd en banc by an equally divided court, 105 F.3d 997 (5th Cir.1997). . See United States v. Rybar, 103 F.3d 273 (3d Cir.1996) (upholding § 922(o) under the third of three possible categories of activity that Congress may regulate under the Commerce Clause, as a regulation of activities having a substantial effect on interstate commerce); United States v. Kenney, 91 F.3d 884 (7th Cir.1996) (upholding § 922(o) under the third category, as a regulation of activities having a substantial effect on interstate commerce); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996) (upholding § 922(o) under all three Lopez categories); United States v. Rambo, 74 F.3d 948 (9th Cir.) (upholding § 922(o) under the first category, as a regulation of channels of interstate commerce), cert. denied, -U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995) (upholding § 922(o) under the second category, as a regulation of a thing in interstate commerce). . A \"machinegun” is defined in 26 U.S.C. § 5845(b) as \"any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” See 18 U.S.C. § 921(a)(23). . Congress passed § 922(o) as part of the Firearms Owners' Protection Act of 1986, Pub.L. No. 99-308, 100 Stat. 449 (1986), which amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-28. Section 922(o) provides, in relevant part: (o)(l) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to- .4s 4s 4s 4: 4: 4s (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date" }, { "docid": "6703", "title": "", "text": "years up to life, or both, or sentenced to death. 18 U.S.C. § 2119. Arguing against the weight of all seven circuits that have considered the question, see United States v. Romero, 122 F.3d 1334, 1339 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998); United States v. McHenry, 97 F.3d 125, 126-29 (6th Cir.1996), cert. denied, — U.S. ——, 117 S.Ct. 992,136 L.Ed.2d 873 (1997); United States v. Coleman, 78 F.3d 154, 158-60 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996); United States v. Hutchinson, 75 F.3d 626, 627 (11th Cir.) (per curiam), cert. denied, — U.S.-, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996); United States v. Bishop, 66 F.3d 569, 575-90 (3d Cir.), cert. denied, 516 U.S. 1032, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995); United States v. Robinson, 62 F.3d 234, 235-37 (8th Cir.1995); United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir.1995), Cobb challenges Congress’ authority to enact this criminal statute. He contends that, in light of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), section 2119 is beyond the reach of Congress’ commerce power and therefore unconstitutional. Cobb’s challenge is without merit. The Lopez Court’s articulation of the scope of Congress’ commerce power is by now familiar. The Court recognized Congress’ authority to (1) “regulate the use of the channels of interstate commerce;” (2) “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce;” and (3) regulate “those activities that substantially affect interstate commerce.” 514 U.S. at 558-59, 115 S.Ct. at 1629-30 (citations omitted). When determining whether the Gun-Free School Zones Act of 1990 fit within the third category, the Court found that 18 U.S.C. § 922(q) lacked a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” 514 U.S. at 561, 115 S.Ct. at 1631. Because section 2119 does contain just such a jurisdictional element, and because the statute falls within Congress’ power to regulate the instrumentalities of" }, { "docid": "8096597", "title": "", "text": "by force, violence, or intimidation when the vehicle has been transported, shipped, or received in interstate or foreign commerce, was upheld in United States v. Bishop, 66 F.3d 569, 585-88 (3d Cir.) (relying on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), and Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), for the proposition that past transportation provided a sufficient nexus with interstate commerce), cert. denied, - U.S. -, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995). Because Trupin’s argument is directed toward the lack of a § 2315 reference to interstate commerce, we focus here upon those which do not contain such a reference. An overwhelming number of courts have upheld such statutes against Lopez challenges. (We also note that several such statutes, e.g., 18 U.S.C. § 922(o), outlaw simple possession.) Furthermore, several have been upheld despite being held not to be third-category cases. See, e.g., Beuckelaere, 91 F.3d 781 (upholding 18 U.S.C. § 922(o), which prohibits possession of machine guns, as a first-category regulation); Rambo, 74 F.3d at 952 (same); United States v. Rybar, 103 F.3d 273 (3d Cir.1996) (same, upheld as third-category regulation); United States v. Kenney, 91 F.3d 884, 885-91 (7th Cir.1996) (same, upheld as third-category regulation); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (same, upheld as second-category regulation); United States v. Wall, 92 F.3d 1444, 1449-52 (6th Cir.1996) (upholding 18 U.S.C. § 1955, which prohibits illegal gambling operations, as a third-category regulation), cert. denied, — U.S. ——, 117 S.Ct. 690, 136 L.Ed.2d 613 (1997); United States v. Michael R., 90 F.3d 340, 344-45 (9th Cir.1996) (upholding 18 U.S.C. 922(x)(2), which prohibits knowing and intelligent possession of a handgun by a juvenile, as a third-category regulation); United States v. Staples, 85 F.3d 461, 462-63 (9th Cir.) (upholding 18 U.S.C. § 924(c)(1), which prohibits use or carrying of a firearm during a crime of violence or drug trafficking, using third-category regulation analysis), cert. denied, - U.S. -, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996); United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th" }, { "docid": "22245226", "title": "", "text": "which they are made have considerably moved in interstate commerce”), regulation of the purchase and sale of firearms is an appropriate object of federal regulation. Cf. United States v. Wright, 117 F.3d 1265, 1269-71 (11th Cir.1997) (upholding 18 U.S.C. § 922(o), which prohibits possession and transfer of machine guns, on the ground that “[t]he regulation of purely intrastate possession of machine-guns constitutes an appropriate element of [§ 922(o)’s] broader scheme to reduce substantially the trade in machineguns” (eitation and internal quotation omitted)), rev’d on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Bailey, 123 F.3d 1381, 1392-93 (11th Cir.1997) (reaffirming Wright); Olin, 107 F.3d at 1510, 1511 (upholding CERCLA’s regulation of interstate waste disposal as “an appropriate element of Congress’s broader scheme to protect interstate commerce and industries thereof from pollution,” since “the unregulated management of hazardous substances, even strictly within individual states, significantly impacts interstate commerce”). Our sister circuits have repeatedly upheld other pieces of federal firearms legislation based on the national character of the market for firearms. See, e.g., United States v. Haney, 264 F.3d 1161, 1169 (10th Cir.2001) (upholding 18 U.S.C. § 922(o), which bans the possession or transfer of a machine gun, and finding “no question that the market in firearms generally is heavily interstate — indeed, international — -in character”); Navegar, Inc. v. United States, 192 F.3d 1050, 1063 (D.C.Cir.1999) (upholding 18 U.S.C. § 922(v), the, now-invalid assault weapons ban, based on “the widely accepted knowledge that there is a vast interstate market in firearms that makes the states unable to control the flow of firearms across their borders or to prevent the crime inevitably attendant to the possession of such weapons once inside their borders”); United States v. Cardoza, 129 F.3d 6, 11-13 (1st Cir.1997) (upholding 18 U.S.C. § 922(x), which prohibits the sale or transfer of handguns and ammunition to juveniles, as a regulation of the “national juvenile market in handguns”); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (upholding § 922(o) as a regulation of the “extensive, intricate, and definitively national market for machineguns” (citation and internal quotation" }, { "docid": "1726177", "title": "", "text": "nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.”). The rationale that Congress can, on a blank slate, criminalize possession under the interstate Commerce Clause in order to regulate “the demand side of the market” can be applied to the possession of anything. Following Lopez, § 922(o) cannot be upheld as a regulation which substantially affects interstate commerce. CONCLUSION Regardless of one’s view of the wisdom of banning the private possession of machine-guns, the question before this court is whether the Commerce Clause grants Congress the authority to ban private, intrastate possession of a machinegun with no showing that the prohibition is connected in any way to interstate commerce or is part of a broader federal regulatory scheme. Congress’s commerce powers are broad, reaching even Roscoe Filburn’s wheat field in Ohio. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Lopez, however, closely controls this case. Lopez does not permit Congress, acting pursuant to the Commerce Clause, to criminalize the mere intrastate possession of maehineguns without some indication that the possession ban is necessary to the regulation of, or has some other substantial tie to, interstate commerce. Section 922(o)’s ban on the mere possession of a machinegun exceeds Congress’s authority under the Commerce Clause. . See United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Rombo, 74 F.3d 948 (9th Cir.), cert. denied, — U.S. —, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). . A brief survey of recent federal cases reveals many examples. See, e.g., Smith v. United States, 508 U.S. 223, 224, 113 S.Ct 2050, 2052, 124 L.Ed.2d 138 (1993) (defendant in possession of a fully automatic MAC-10 and MAC-11 machine gun attempts to buy" }, { "docid": "8678380", "title": "", "text": "197 (1968), in evaluating the constitutionality of § 922(d). See, e.g., United States v. Rybar, 103 F.3d 273, 279 (3d Cir.1996). Because we find adequate support for the enactment of § 922(d) without reference to any legislative findings, we need not determine the proper role of such prior findings in conducting Commerce Clause review. See Olin, 107 F.3d at 1510 n. 6 (suggesting, without deciding, that prior legislative findings can be used to sustain Commerce Clause challenge); see also Lopez, 514 U.S. at 563-65, 115 S.Ct. at 1632 (declining to review earlier findings because § 922(q) represented a “sharp break” with prior firearms legislation) (quoting United States v. Lopez, 2 F.3d 1342, 1366 (5th Cir.1993)). . In United States v. Bass, 404 U.S. 336, 339 n. 4, 92 S.Ct. 515, 518 n. 4, 30 L.Ed.2d 488 (1971), the Supreme Court left open the question of whether the Commerce Clause granted Congress the power to punish the \"mere possession” of firearms. In that case, the Court interpreted 18 U.S.C. § 1202(a) to apply only to the possession of firearms \"in commerce or affecting commerce,” and thus did not reach the. constitutional issue. In contrast, the Court in Lopez concluded that because § 922(q) contained no ambiguity, it could not be read to contain a jurisdictional element. 514 U.S. at 561-63, 115 S.Ct. at 1631. We likewise find no ambiguity in section 922(d), and thus proceed to consider the constitutional question. . See United States v. Beuckelaere, 91 F.3d 781, 783-85 (6th Cir.1996) (upholding § 922(o) as a regulation of channels of and things in interstate commerce); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.) (upholding § 922(o) as regulation of channels of interstate commerce), cert. denied, - U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (upholding § 922(o) as regulation of things in interstate commerce). . The same cannot he said for the prohibition at issue in Lopez. By prohibiting only the possession of guns within 1,000 feet of a school, Congress could not rationally have expected to" }, { "docid": "6752975", "title": "", "text": "and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted). Haney argues that § 922(o) exceeds Congress’s power under the Commerce Clause by regulating purely intrastate activity. We note at the outset that all of the courts of appeals that have addressed this issue have upheld § 922(o) as a valid enactment under the Commerce Clause. See United States v. Franklyn, 157 F.3d 90 (2d Cir.1998); United States v. Wright, 117 F.3d 1265 (11th Cir.1997), amended on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Knutson, 113 F.3d 27 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992); cf. Navegar, Inc. v. United States, 192 F.3d 1050, 1055 (D.C.Cir.1999) (upholding a federal ban on possessing semiautomatic assault weapons and comparing that law to § 922(o)), cert. denied, 531 U.S. 816, 121 S.Ct. 53,148 L.Ed.2d 21 (2000). Because § 922(o) contains no jurisdictional element (such as a requirement that the possession be in or affecting interstate commerce), we treat Haney’s challenge as a facial challenge. See United States v. Riddle, 249 F.3d 529, 539 (6th Cir.2001) (“Any as-applied challenge is irrelevant since [the statute] does not contain a jurisdictional element and the prosecution need not put on evidence of a particular connection with interstate commerce.”). As such, “[o]ur task is merely to determine whether Congress could have had a rational basis to support the exercise of its commerce power; and, further, that the regulatory means chosen were reasonably adapted to the end permitted" }, { "docid": "6752974", "title": "", "text": "participation therein are well-regulated by the State of Oklahoma. Accord Wright, 117 F.3d at 1274 (“[T]he substantial segment of the population comprising the unorganized militia is not well regulated as that term was intended by the drafters of the Second Amendment.”); see also Oakes, 564 F.2d at 387 (noting that technical membership in the state militia is insufficient to show a Second Amendment violation); Hale, 978 F.2d at 1020 (same). Nor has Haney submitted any evidence that machineguns of the sort he possessed are used by the militia, or that his possession was connected to any sort of militia service. In sum, § 992(o) does not impair the state’s ability to maintain a well-regulated militia and therefore does not violate the Second Amendment. II. Commerce Clause Article I, Section 8 of the Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” Under this Commerce Clause, Congress may regulate three broad categories of activities: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted). Haney argues that § 922(o) exceeds Congress’s power under the Commerce Clause by regulating purely intrastate activity. We note at the outset that all of the courts of appeals that have addressed this issue have upheld § 922(o) as a valid enactment under the Commerce Clause. See United States v. Franklyn, 157 F.3d 90 (2d Cir.1998); United States v. Wright, 117 F.3d 1265 (11th Cir.1997), amended on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Knutson, 113 F.3d 27 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Beuckelaere, 91" }, { "docid": "7741590", "title": "", "text": "United States v. Franklyn, 157 F.3d 90, 93, 96-97 (2d Cir. 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 887, 142 L.Ed.2d 786 (1999); United States v. Wright, 117 F.3d 1265, 1267, 1270-71 (11th Cir.1997), vacated in part on rehearing on other grounds by United States v. Wright, 133 F.3d 1412 (11th Cir. 1998); United States v. Knutson, 113 F.3d 27, 31 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273, 284-85 (3d Cir.1996), cert. denied, 522 U.S. 807, 118 S.Ct. 46, 139 L.Ed.2d 13 (1997); United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996); United States v. Beuckelaere, 91 F.3d 781, 784-85 (6th Cir. 1996); United States v. Hale, 978 F.2d 1016, 1018 (8th Cir. 1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). . Two days after oral argument in this appeal, the Supreme Court decided National Federation of Independent Business v. Sebelius, — U.S. -, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012), which held that the federal statute requiring individuals to purchase health insurance is a valid exercise of Congress’s tax power. Five justices also agreed that the Commerce Clause did not authorize this statute. There has been considerable debate about whether the statements about the Commerce Clause are dicta or binding precedent. See, e.g., David Post, Commerce Clause “Holding v. Dictum Mess” Not So Simple, The Volokh Conspiracy, (July 3, 2012, 8:17 AM), http ://www. volokh. com/2012/07/03/ commerce-clause-holding-v-dictum-mess-not-so-simple/. We need not resolve that issue here because National Federation of Independent Business involved a requirement that individuals take action. See Nat’l Fed’n of Indep. Bus., 132 S.Ct. at 2587 (Roberts, C.J.) (\"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”) (emphasis in original). In contrast, Section 922(o) involves a prohibí tion of conduct. Therefore, even if National Federation of Independent Business changed Supreme Court precedent regarding the Commerce Clause, we conclude it would not overrule Stewart." }, { "docid": "1726159", "title": "", "text": "the cham neis of interstate commerce or of a thing in interstate commerce. There is circuit court support for each position. See United States v. Wilks, 58 F.3d 1518 (10th Cir.1995) (upholding § 922(o) as regulation of a thing in interstate commerce); United States v. Rambo, 74 F.3d 948 (9th Cir.1996) (§ 922(o) valid as regulation of channels of interstate commerce); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996) (§ 922(o) valid under all three Lopez categories); but see United States v. Kenney, 91 F.3d 884 (7th Cir.1996) (§ 922(o) upheld only under substantial effects prong of Lopez). 1. The Channels of Interstate Commerce ' Recourse to the first two Lopez categories suffers initially, however, from a serious fac tual error. Proponents of the constitutionality of § 922(o) assume that every possession of a maehinegun manufactured after May 19, 1986, excepting only the narrow class of possessions permitted in the statute, connotes that the gun traveled or was transferred in interstate commerce. These decisions overlook that an automatic weapon may be created by modifying a semiautomatic weapon, see United States v. Jones, 976 F.2d 176, 178 (4th Cir.1992), cert. denied 508 U.S. 914, 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993) (describing home conversion of shotguns), or that it may evolve from ordinary wear and tear on a semiautomatic firearm. In United States v. Anderson, 885 F.2d 1248, 1250-51 (5th Cir.1989) (en banc), this court recognized that “[s]everal of the most popular shotgun models, many handguns, and not a few rifles” can by “either wear and tear or a simple operation” become “machineguns” within the statutory definition. Section 922(o) would therefore prohibit the simple possession of an ordinary semi-automatic pistol whose sear wore off in 1987. Shorn of the misunderstanding that illegal possession cannot occur without illegal transfer , § 922(o) plainly reaches mere intrastate possession of ma-chineguns as well as possession of machine-guns which have illegally moved or been transferred in interstate commerce. Any decision upholding § 922(o) under Lopez must come to grips with this reality. Rambo, for instance, seeks to justify § 922(o) as regulating the channels" }, { "docid": "8678382", "title": "", "text": "substantially affect the manufacture, importation, and interstate transfer of firearms. .We note that every federal circuit to entertain a Commerce Clause challenge to § 922(o), either before or after Lopez, has upheld the constitutionality of this section. See United States v. Knutson, 113 F.3d 27 (5th Cir.1997); Rybar, 103 F.3d 273 (3d Cir.1996); Kenney, 91 F.3d 884 (7th Cir.1996); Beuckelaere, 91 F.3d 781 (6th Cir.1996); Rambo, 74 F.3d 948 (9th Cir.), cert. de nied, - U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991); see also United States v. Kirk, 105 F.3d 997 (5th Cir.1997) (en banc) (affirming, by an equally divided court, district court order upholding § 922(o)). Although the Court in Lopez rejected the rationale previously used in Evans to sustain § 922(o), see 514 U.S. at 563-65, 115 S.Ct. at 1632, we place no weight on that discussion because we base our ruling on a wholly different rationale than used by the Ninth Circuit in that case. (In Evans, the Ninth Circuit concluded that the rise in insurance costs caused by deaths attributable to firearms provided a sufficient nexus with interstate commerce to support § 922(o). 928 F.2d at 862.) . Because we find that Congress was justified in its decision to regulate activities affecting the trade of maehineguns, we need not decide whether § 922(o) can also be sustained by referring to the machinegun’s special utility in the narcotics trade. See United States v. Kirk, 105 F.3d 997 (Opinion of Higginbotham, J.); cf. Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971)(discussing the importance of extortionate credit transactions to organized crime). . Section 5861(d) makes it unlawful for any person \"to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861 (d)(l 989). \"Firearm\" is defined to include any" }, { "docid": "6752989", "title": "", "text": "these weapons across state lines.” Id. at 1060. It likewise is rational for Congress to conclude that intrastate ma-ehinegun possession substantially affects interstate commerce in those weapons. CONCLUSION We hold that 18 U.S.C. § 922(o) is constitutional and does not violate either the Second Amendment or the Commerce Clause, and therefore we AFFIRM Haney’s conviction. . Haney argues that the federal courts lack jurisdiction over him because the above-cited statutes are unconstitutional. We reject this contention as frivolous. . Some courts have reached a similar conclusion under the first Lopez category, regulation of the channels of interstate commerce. See, e.g., Beuckelaere, 91 F.3d at 784; Rambo, 74 F.3d at 952 (9th Cir.1996). But see Kenney, 91 F.3d at 889 (criticizing this approach and suggesting that the analysis must be done under the third category). We do not discuss the first category here but note that the Lopez categories necessarily overlap to some extent. See United States v. Schaffner, 258 F.3d 675, 2001 WL 827618, at *4 (7th Cir.2001). . In Commerce Clause challenges to § 922(o), we and other circuits have referred to legislative history not only of § 922(o) itself, but also of other federal gun legislation generally. E.g., Wilks, 58 F.3d at 1521 n. 4; Franklyn, 157 F.3d at 95; Ryhar, 103 F.3d at 279; Kenney, 91 F.3d at 889-90. We have concluded that § 922(o ) is closely intertwined with other federal gun legislation and that Congress should not be required to rearticu-late its old findings every time it adds an additional provision. Furthermore, because a Commerce Clause justification for legislation can be any rational basis, whether or not so articulated by Congress, we refer to congressional findings in the context of other gun legislation for rational arguments in support of the gun provision at issue. Cf. Lopez, 514 U.S. at 562-63, 115 S.Ct. 1624 (stating that \"Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce,” particularly when a \"substantial effect [is] visible to the naked eye”). . The markets for semiautomatic weapons and machineguns" }, { "docid": "8678381", "title": "", "text": "possession of firearms \"in commerce or affecting commerce,” and thus did not reach the. constitutional issue. In contrast, the Court in Lopez concluded that because § 922(q) contained no ambiguity, it could not be read to contain a jurisdictional element. 514 U.S. at 561-63, 115 S.Ct. at 1631. We likewise find no ambiguity in section 922(d), and thus proceed to consider the constitutional question. . See United States v. Beuckelaere, 91 F.3d 781, 783-85 (6th Cir.1996) (upholding § 922(o) as a regulation of channels of and things in interstate commerce); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.) (upholding § 922(o) as regulation of channels of interstate commerce), cert. denied, - U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (upholding § 922(o) as regulation of things in interstate commerce). . The same cannot he said for the prohibition at issue in Lopez. By prohibiting only the possession of guns within 1,000 feet of a school, Congress could not rationally have expected to substantially affect the manufacture, importation, and interstate transfer of firearms. .We note that every federal circuit to entertain a Commerce Clause challenge to § 922(o), either before or after Lopez, has upheld the constitutionality of this section. See United States v. Knutson, 113 F.3d 27 (5th Cir.1997); Rybar, 103 F.3d 273 (3d Cir.1996); Kenney, 91 F.3d 884 (7th Cir.1996); Beuckelaere, 91 F.3d 781 (6th Cir.1996); Rambo, 74 F.3d 948 (9th Cir.), cert. de nied, - U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991); see also United States v. Kirk, 105 F.3d 997 (5th Cir.1997) (en banc) (affirming, by an equally divided court, district court order upholding § 922(o)). Although the Court in Lopez rejected the rationale previously used in Evans to sustain § 922(o), see 514 U.S. at 563-65, 115 S.Ct. at 1632, we place no weight" }, { "docid": "8101390", "title": "", "text": "it stand. Conclusion It is undisputed that the photograph in question crossed state lines. Thus, prosecution under § 2251(a) in this case is a permissible exercise of Congress’ authority under the Commerce Clause. Accordingly, the district court’s denial of Mr. Schaff-ner’s motion to dismiss the indictment is affirmed. AFFIRMED. . In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court struck down the Gun-Free School Zones Act, 18 U.S.C. § 922(q), which criminalized knowingly possessing a firearm in a school zone, because regulating such activity exceeded Congress' authority under the Commerce Clause. . In Navegar, Inc. v. United States, 192 F.3d 1050, 1055 n. 2 (D.C.Cir.1999), cert. denied, 531 U.S. 816, 121 S.Ct. 53, 148 L.Ed.2d 21 (2000), the Court of Appeals for the District of Columbia Circuit noted that Lopez had cited United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941), as a category one case, while citing Maryland v. Wirtz, 392 U.S. 183, 196 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), as a category three case. Wirtz involved a challenge to a 1961 amendment to the Fair Labor Standards Act that had been challenged originally in Darby. . We note that the Court, at a later point in its Lopez opinion, omits the term '‘regulate” from its description of the second category. Lopez, 514 U.S. at 559, 115 S.Ct. 1624. . See United Stales v. Angle, 234 F.3d 326, 337 n. 12. (7th Cir.2000), cert, denied, - U.S. -, 121 S.Ct. 2556, 150 L.Ed.2d 722 (2001); United States v. Wilson, 73 F.3d 675, 688 (7th Cir.1995). .Other circuits have agreed with United States v. Black, 125 F.3d 454 (7th Cir.1997), that the Child Support Recovery Act is per missible under category two because it regulates things in commerce. See United States v. Williams, 121 F.3d 615, 619 (11th Cir.1997); United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.1997); United States v. Hampshire, 95 F.3d 999, 1003-04 (10th Cir.1996); United States v. Mussari, 95 F.3d 787, 790-91 (9th Cir.1996). . In United" }, { "docid": "9797094", "title": "", "text": "employees \"employed in an enterprise engaged in commerce or in the production of goods for commerce.\" See 392 U.S. at 188, 88 S.Ct. 2017. The Supreme Court held that the constitutionality of the 1961 extension of employees covered by the Act was \"settled by the reasoning of Darby itself.” Id. Therefore Wirtz, the paradigmatic category 3 case according to Lopez, is in fact a category 1 case as well. The confluence of categories 1 and 3 demonstrates that while the categories are useful as a synopsis of the Supreme Court’s Commerce Clause jurisprudence, the attempt to fit a regulation squarely within one category can prove elusive, even fruitless. . The confluence of Lopez categories 1 and 3 is also apparent from the cases where other circuits have upheld the Firearm Owners Protection Act of 1986, (\"FOPA”), which makes it unlawful to \"transfer or possess a machine gun.” 18 U.S.C. § 922(o) (1994). FOPA has been upheld as a Lopez category 3 regulation of an activity with a substantial effect on interstate commerce by the Second, Third, Fifth, Seventh, Tenth and Eleventh Circuits. See United States v. Franklyn, 157 F.3d 90, 96 & n. 3 (2d Cir.1998) (not deciding whether FOPA fell within Lopez category 1); United States v. Wright, 117 F.3d 1265, 1270 (11th Cir.1997), vacated on other grounds, 133 F.3d 1412 (1998); United States v. Knutson, 113 F.3d 27, 30 (5th Cir.1997) (avoiding the issue of category 1 to prevent controversy); United States v. Rybar, 103 F.3d 273, 283 (3d Cir.1996); United States v. Kenney, 91 F.3d 884, 890 (7th Cir.1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995). The FOPA has been upheld as a Lopez category 1 regulation of the channels of interstate commerce by the Sixth and Ninth Circuits. See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir.1996); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.1996); see also United States v. Kirk, 70 F.3d 791, 796-97 (5th Cir.1995), vacated, 78 F.3d 160 (1996). Likewise, the First Circuit has upheld under Lopez category 3 section 110201 of the Violent Crime Control" }, { "docid": "6752988", "title": "", "text": "itself is significant. It follows that intrastate possession and transfers have a substantial effect on interstate commerce. Although there is virtually no legislative history explaining § 922(o) itself, see Wilks, 58 F.3d at 1519, we find support for the rationality of these conclusions in the legislative history of § 922(v), which bans manufacturing, transferring, or possessing certain semiautomatic assault weapons. To restrict interstate commerce in semiautomatic assault weapons, particularly into states that prohibit them, Congress “imposed criminal liability for those activities which fuel the supply and demand for such weapons. The ban on possession is a measure intended to reduce the demand for semiautomatic assault weapons.” Navegar, 192 F.3d at 1058 (quotation marks omitted). After surveying the extensive congressional testimony on how common it was for individuals to purchase semiautomatic assault weapons in one state and bring them to another, the Navegar court concluded that “Congress was well aware that there was significant interstate traffic in semiautomatic assault weapons and that state laws and existing federal firearms regulation were inadequate to control the flow of these weapons across state lines.” Id. at 1060. It likewise is rational for Congress to conclude that intrastate ma-ehinegun possession substantially affects interstate commerce in those weapons. CONCLUSION We hold that 18 U.S.C. § 922(o) is constitutional and does not violate either the Second Amendment or the Commerce Clause, and therefore we AFFIRM Haney’s conviction. . Haney argues that the federal courts lack jurisdiction over him because the above-cited statutes are unconstitutional. We reject this contention as frivolous. . Some courts have reached a similar conclusion under the first Lopez category, regulation of the channels of interstate commerce. See, e.g., Beuckelaere, 91 F.3d at 784; Rambo, 74 F.3d at 952 (9th Cir.1996). But see Kenney, 91 F.3d at 889 (criticizing this approach and suggesting that the analysis must be done under the third category). We do not discuss the first category here but note that the Lopez categories necessarily overlap to some extent. See United States v. Schaffner, 258 F.3d 675, 2001 WL 827618, at *4 (7th Cir.2001). . In Commerce Clause challenges to §" }, { "docid": "6752976", "title": "", "text": "F.3d 781 (6th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992); cf. Navegar, Inc. v. United States, 192 F.3d 1050, 1055 (D.C.Cir.1999) (upholding a federal ban on possessing semiautomatic assault weapons and comparing that law to § 922(o)), cert. denied, 531 U.S. 816, 121 S.Ct. 53,148 L.Ed.2d 21 (2000). Because § 922(o) contains no jurisdictional element (such as a requirement that the possession be in or affecting interstate commerce), we treat Haney’s challenge as a facial challenge. See United States v. Riddle, 249 F.3d 529, 539 (6th Cir.2001) (“Any as-applied challenge is irrelevant since [the statute] does not contain a jurisdictional element and the prosecution need not put on evidence of a particular connection with interstate commerce.”). As such, “[o]ur task is merely to determine whether Congress could have had a rational basis to support the exercise of its commerce power; and, further, that the regulatory means chosen were reasonably adapted to the end permitted by the Constitution.” Kenney, 91 F.3d at 886 (citing Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)); see also Goetz v. Glickman, 149 F.3d 1131, 1135 (10th Cir.1998). “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (noting also the “presumption of constitutionality” that congressional legislation possesses); see also United States v. Kirk, 105 F.3d 997, 999 (5th Cir.1997) (evenly divided en banc court) (opinion of Higginbotham, J.) (“This deferential standard [in reviewing congressional legislation against a Commerce Clause challenge] does not insist that Congress actually make factual findings. To the contrary, its tolerance of hypothetical, judicially supposed purposes and means gives the rational basis standard its deferential character.”). In a post-Lopez decision, we upheld the constitutionality of § 922(o) and distinguished it from the statute struck down" }, { "docid": "1726178", "title": "", "text": "to the Commerce Clause, to criminalize the mere intrastate possession of maehineguns without some indication that the possession ban is necessary to the regulation of, or has some other substantial tie to, interstate commerce. Section 922(o)’s ban on the mere possession of a machinegun exceeds Congress’s authority under the Commerce Clause. . See United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Rombo, 74 F.3d 948 (9th Cir.), cert. denied, — U.S. —, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). . A brief survey of recent federal cases reveals many examples. See, e.g., Smith v. United States, 508 U.S. 223, 224, 113 S.Ct 2050, 2052, 124 L.Ed.2d 138 (1993) (defendant in possession of a fully automatic MAC-10 and MAC-11 machine gun attempts to buy cocaine by selling the MAC-10, a gun that “apparently is a favorite among criminals” because it .\"can fire more than 1,000 rounds per minute\"); United States v. Powell, 469 U.S. 57, 59, 105 S.Ct. 471, 473, 83 L.Ed.2d 461 (1984) (search of defendant’s car yields, among other things, two kilograms of cocaine and a machine gun); County Court v. Allen, 442 U.S. 140, 143, 99 S.Ct. 2213, 2217, 60 L.Ed.2d 777 (1979) (loaded machine gun and more than a pound of heroin found in the trunk of defendants’ car); United States v. Jones, 102 F.3d 804, 806 (6th Cir.1996) (cocaine dealers attempt to sell federal agents a MAC-10, a MAC-11, and an AK-47, two of which have obliterated serial numbers); United States v. Agis-Meza, 99 F.3d 1052, 1054 (11th Cir.1996) (two defendants charged with violation of § 922(o) plead guilty to possession of marijuana); United States v. Alerta, 96 F.3d 1230, 1233 (9th Cir.1996) (two brothers arrested for methamphetamine distribution are found in possession of two fully automatic weapons: a MAC-10 and a converted TEC-9);" } ]
273471
is black. Nor would there be any doubt if the trial court had found: This defendant has been selected for prosecution by the IRS because he is on the President’s political enemies list. Similarly, there can be no doubt that this conviction would fall if the trial court had found: This defendant has been selected for prosecution because he protested in writing that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exac-tions, not voluntary contributions. To demand more in the name of morals is mere cant. REDACTED Phillips, 332 U.S. 168, 173, 67 S.Ct. 1584, 1587, 91 L.Ed. 1977 (1947) (Frankfurter, J., delivering the opinion of the Court)). Whatever else the trial court may have found, its express language compels the conclusion that it found that this defendant had been selected for prosecution because ho was an “outspoken protester.” To hold that such selectivity is permissible would make the examples of selectivity I have just set out equally permissible. For first amendment purposes, nothing distinguishes an “outspoken protester” against existing tax laws from one who protests as Judge Hand and Justice Frankfurter have protested. By definition, each and every instance of selective prosecution which
[ { "docid": "23701902", "title": "", "text": "if Newman had not been made trustee, and if the naked powers had -alone been given him, I should construe “alter or amend,” in what appears — to me at any rate — to be their more natural meaning: that is, as enabling him to accommodate the administration of the trust to possible changes in circumstances. But when we consider that he was to be trustee, and that he would probably continue to be the trustee while he lived, our reading becomes to my mind still more likely. Had he not been the father of the beneficiaries, I submit that we should all have agreed that such an equivocal phrase would not have allowed him for his own benefit to frustrate the main purpose. The fact that he was the beneficiaries’ father does indeed relieve this of its more acute improbability; nevertheless, it remains true that we are reading language which certainly does not imperatively demand such a result, so as to give to a trustee a power totally at variance with the most fundamental duty of every trustee; not to feather his own nest at the expense of bis charge. If that was the purpose, I submit it ought to have been more plainly put. Finally, if I understand the Commissioner, he wishes us to consider that these deeds may have been a preliminary step in a reprehensible scheme to lessen the wife’s income taxes. There is not the faintest ground for imputing any such purpose to the parties at bar; and, if there were, it ought not to count. Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere. cant." } ]
[ { "docid": "6686950", "title": "", "text": "were singled out from this group because they were “outspoken and vocal” about their activity. Arguably, the assertion that 34 persons were not facing prosecution for the same offense as the defendants were charged with is a sufficient fact to claim a colorable right to dismissal under the first prong of the Oyler test — that the defendants have been singled out from others similarly situated. However, in order to justify a hearing, a “colorable right” must also be shown pursuant to the second prong. An analysis of the defendants’ assertions regarding motive establishes that they believe the government prosecuted them because they were highly visible leaders of their movement. In a case directly on point, which was explicitly relied upon by the trial court herein, the Eighth Circuit in United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978) stated: Defendant’s theory is not that he has been singled out for prosecution solely because he has protested the war and tax policies of the government. Rather, he objects to his prosecution only on the basis that he was selected due to the publicity his protests have received. The decision to prosecute, therefore, rests upon the amount of publicity one’s protests receive, not upon the exercise of one’s first amendment right to free speech. Such a decision is not based upon an impermissible ground but rather serves a legitimate governmental interest in promoting public compliance with the tax laws. The government is entitled to select those cases for prosecution which it believes will achieve this objective. The prosecution of the defendant clearly falls within this range of prosecutorial discretion. Accordingly, we hold that the district court did not err in denying the defendant discovery and a hearing on his selective prosecution claim. Accord, United States v. Stout, 601 F.2d 325, 328 (7th Cir.1979); United States v. Johnson, 577 F.2d 1304, 1309 (5th Cir.1978). Stated differently, even if Hazel and Lott had conclusively proven their charge that the Government initiated prosecution because of the great notoriety of their protests, that fact would not, as a matter of law, be an impermissible" }, { "docid": "15672456", "title": "", "text": "show that, in any span of time, the government has declined to prosecute similarly situated, non-black felons illegally in possession of firearms.” Id. at 941. The majority opinion mistakenly distinguishes Bourgeois by emphasizing that it involved only one operation, over a single two^day period; in fact, Bourgeois’ focus .was on both the span of time and scope necessary to have-probative value and the lack of similarly situated prosecutions. In United States v. Wilson, 639 F.2d 500 (9th Cir.1981), the defendants claimed that they were singled out by the government because they were tax protesters. The evidence showed that out of 425 taxpayers who filed an “exempt” Wt4 form the only two who were prosecuted were tax protesters; that an IRS investigator was unaware of any.tax protestors who were not prosecuted for non-payment of taxes; and that others whose W-4 forms might bear-investigation had not been prosecuted. We held that the evidence did not suffice for a selective prosecution claim as the defendants have not shown, as the Oaksm test requires, that other[ ] similarly situated who have not exercised their rights have not been prosecuted. The statistics listed above show that there were other prosecutions and the Wilsons have not shown that those defendants were also tax protestors. This being so, we cannot find that the Wilsons carried their burden of proving that the decision to prosecute was made because they exercised their constitutional rights. Id. at 504. In United States v. Aguilar, 883 F.2d 662 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991), we upheld the district court’s denial of defendants’ request for discovery and an evidentia-ry hearing on their motion for dismissal based upon selective prosecution because the defendants’ suggested definition of those similarly situated excluded the most relevant analogous class. Stating that “[a]bsent a similarly situated control group, the government’s prosecution of a defendant exercising his constitutional rights proves nothing,” id. at 706, we joined the D.C. Circuit in the understanding that “ ‘[discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in" }, { "docid": "22305659", "title": "", "text": "Appeals is therefore Affirmed. Unregulated, that is, under the NFA. The phrase “other than by one qualified to engage in such business under this chapter” apparently refers to those manufacturers who have sought and obtained qualification as a firearms manufacturer under 26 U. S. C. § 5801(a)(1), which requires payment of a $1,000 occupational tax. Rather than seek such qualification, Thompson/Center applied for permission to make a firearm as a nonqualified manufacturer under § 6822, which requires payment of the $200 per firearm “making tax” under § 5821(a). In Drasen, a complete-parts kit was sold with a flash suppressor, which, if affixed to the rifle barrel, would have extended it beyond the regulated length. See Drasen, 846 F. 2d, at 737. Because the Drasen court concluded that such a flash suppressor was not a part of the rifle’s barrel, see ibid., its holding is consistent with ours. We do not accept the Government’s suggestion, however, that complete-parts kits must be taxable because otherwise manufacturers will be able to “avoid the tax.” Brief for United States 11. Rather, we conclude that such kits are within the definition of the taxable item. Failure to pay the tax on such a kit thus would amount to evasion, not avoidance. In our system, avoidance of a tax by remaining outside the ambit of the law that imposes it is every person’s right. “Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich of poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” Commissioner v. Newman, 169 F. 2d 848, 860-851 (CA2) (L. Hand, J., dissenting), cert. denied, 331 U. S. 869 (1947). Contrary to Justice Scalia’s suggestion, see post, at 522, our understanding of these aggregations of parts, shared by a majority of the Court (those who join this opinion and the four Members of the Court in" }, { "docid": "17908045", "title": "", "text": "the purpose of the Wisconsin and federal bankruptcy statutes. There is nothing unlawful about structuring one’s assets to take advantage of the bankruptcy laws as Congress and the Wisconsin Legislature have seen fit to write them. Judge Learned Hand famously wrote about tax planning that “there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions.” Commissioner v. Newman, 159 F.2d 848, 850-51 (2d Cir. 1947) (Hand, J., dissenting). The same applies to bankruptcy planning; no debtor owes her creditors more than the law demands. See In re Smiley, 864 F.2d 562, 566 (7th Cir. 1989) (noting that the law allows a debtor “to make full use of the exemptions to which he is entitled under the law”), quoting H.R. Rep. No. 95-595 (1977), as reprinted in 1978 U.S.C.C.A.N. 5968, 6317, and S. Rep. No. 95-989 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5862. Both the federal bankruptcy code and the Wisconsin exemption statute contain fraudulent transfer provisions that protect creditors. See 11 U.S.C. § 548; Wis. Stat. § 815.18(10). The trustee has not invoked those provisions here. To cap off our analysis, in § 815.18 itself the Wisconsin legislature chose to require a liberal construction of the exemption statute in. a debtor’s favor: “This section shall be construed to secure its full benefit to debtors and to advance the humane purpose of preserving to debtors and their dependents the means of obtaining a livelihood, the enjoyment of property necessary to sustain life and the opportunity to avoid becoming public charges.” Wis. Stat. § 815.18(1). We may not “write exemptions into statutes,” but based on this legislative instruction, we must broadly interpret the exemptions the legislature has created. In re Geise, 992 F.2d 651, 656 (7th Cir. 1993). Because the debtors’ reading of paragraph (3)(j) is consistent with the language and structure of the statute, we construe the arguable ambiguity in the key statutory" }, { "docid": "22999435", "title": "", "text": "lending institutions would deprive the independent insurance companies of substantial credit insurance business. The type of plan recommended by American National was intended to salvage a portion of such business by charging a fee for the actuarial, accounting, and other services made available to Security Life, which reinsured the entire risk. T. C. Memo 1967-256. Taxpayers are, of course, generally free to structure their business affairs as they consider to be in their best interests, including lawful structuring (which may include holding companies) to minimize taxes. Perhaps the classic statement of this principle is Judge Learned Hand’s comment in his dissenting opinion in Commissioner v. Newman, 159 F. 2d 848, 850-851 (CA2 1947): “Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” See Knetsch v. United States, 364 U. S. 361, 365 (1960); Chirelstein, Learned Hand’s Contribution to the Law of Tax Avoidance, 77 Yale L. J. 440 (1968). The opinion of the Tax Court, supra, includes tables showing the profitability of Security Life. Its net worth (capital and surplus) increased from $161,370.52 at the end of 1955 to $1,050,220 at the end of 1959, despite the paying out of claims and claims expenses over the five-year period totaling $525,787.91. The Tax Court found that: “Although Security Life’s business proved to be successful, there was no way to judge at the outset whether it would succeed. In relation to its capital structure, Security Life reinsured a large amount of risk.” Both the Life Insurance Company Tax Act for 1955, 70 Stat. 36, applicable to the years 1955-1957, and the Life Insurance Company Income Tax Act of 1959, 73 Stat. 112, applicable to later years, accorded preferential tax treatment to life insurance companies. The Commissioner made an alternative allocation to Management Company. Because it" }, { "docid": "13327135", "title": "", "text": "Two, Three and Four are matters for the civil courts. The Government is required to prove every element of the offenses beyond a reasonable doubt. It does not seem appropriate to resort to the concurrent sentence doctrine since Treasury will, in all probability, endeav- or to assess tax penalties upon the theory that the finding of guilt stamps the transactions as fraudulent. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The distinction between tax avoidance and tax evasion is sometimes difficult to discern. As Judge Learned Hand said in Commissioner of Internal Revenue v. Newman (2nd Cir. 1947), 159 F.2d 848 at 850: « ->:• •>:- * over an¿[ over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.”" }, { "docid": "12161183", "title": "", "text": "court as being done, in this case. That is, it may be shown by what has been colloquially called the “smoking pistol” method, an outright admission. Proof adduced in this case showed that the IRS had a deliberate policy of selecting, and attempting to silence those who were “outspoken protesters” against the tax laws. If it were shown by direct evidence that such a policy had been applied to defendant — and apparently the trial court found that it had- — then the first leg of the test is satisfied without requiring defendant to conduct his own nationwide investigation of tax violations to identify all possible defendants and then to show that none of them had been prosecuted. In the present case, the first and second legs of the test are satisfied by the same proof. Here, the IRS declared (and the trial court believed) that it intended to se lect and silence outspoken tax protesters. Thus, both the fact of selectivity and its motivation — to silence the outspoken — -are proved by direct evidence. I find it impossible to believe that the majority really means what it is saying. Surely it does not mean that, even though the government declares its intent to select persons for prosecution in order to silence them, the ensuing prosecution does not violate constitutionally protected interests. It is beyond cavil that this conviction would fall if the trial court had found: This defendant has been selected for prosecution because he is black. Nor would there be any doubt if the trial court had found: This defendant has been selected for prosecution by the IRS because he is on the President’s political enemies list. Similarly, there can be no doubt that this conviction would fall if the trial court had found: This defendant has been selected for prosecution because he protested in writing that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands:" }, { "docid": "21306428", "title": "", "text": "other Supreme Court decisions are also discussed in the dissenting opinion including the parent case of Eisner v. Macomber, 252 U.S. 189 (1919), the landmark decision in Gregory v. Helvering, 293 U.S. 465 (1935) and Helvering v. F. & R. Lazarus & Co., 308 U.S. 252 (1939). Speaking in another context, Mr. Justice Rehnquist once said of conflicting decisions in the several courts of appeals that they \"may be summarized in the language of Macduff: 'Confusion now hath made his masterpiece.’ ” Reid v. Immigration and Naturalization Service, 420 U.S. 619, 628 (1975). In Schulz the court treated such knowledge by the buyer as evidence of lack of intent to allocate. In this connection, one is also reminded of Judge Learned Hand’s famous dictum that \"[0]ver and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” Commissioner v. Newman, 159 F. 2d 848, 850 (2d Cir., 1947) (dissenting opinion.)" }, { "docid": "12161185", "title": "", "text": "taxes are enforced exac-tions, not voluntary contributions. To demand more in the name of morals is mere cant. Commissioner v. Newman, 159 F.2d 848, 850-51 (2d Cir. 1947) (Judge Learned Hand, dissenting) (approved and quoted in Atlantic Coast Line v. Phillips, 332 U.S. 168, 173, 67 S.Ct. 1584, 1587, 91 L.Ed. 1977 (1947) (Frankfurter, J., delivering the opinion of the Court)). Whatever else the trial court may have found, its express language compels the conclusion that it found that this defendant had been selected for prosecution because ho was an “outspoken protester.” To hold that such selectivity is permissible would make the examples of selectivity I have just set out equally permissible. For first amendment purposes, nothing distinguishes an “outspoken protester” against existing tax laws from one who protests as Judge Hand and Justice Frankfurter have protested. By definition, each and every instance of selective prosecution which reaches us on appeal involves a person who has allegedly violated some law. Nevertheless, the usual carte blanche of the prosecutor in seeking the convictions of these persons is subject to the requirement that the decision to prosecute not be motivated by factors by which the government cannot constitutionally distinguish one violator from all others. If administratively the government has not the resources to prosecute every violator, if the government therefore must pick and choose from among all violators, it may not do so based on its desire to shut the taxpayer up. However reprehensible may be citizens who object to paying the taxes which make possible an acceptable degree of civilization, the first amendment protects the right to make those objections. If not, then the constitutional guarantee of free speech is illusory. Where, as here, the government seeks to silence a citizen precisely because it detests or fears the citizen’s spreading of ideas relating to effective self-government, the Constitution forbids the government action unless the annunciation of those ideas amounts to such a clear and present danger to the security of the Republic that it falls outside the ambit of otherwise protected political speech. While one could argue that the history of" }, { "docid": "12161156", "title": "", "text": "Here the district judges, after evidentiary hearings in both cases, found that no unconstitutionally selective prosecution of the defendants had occurred. We are satisfied that the findings are supported by the record and are not clearly erroneous and thus should not be set aside. See United States v. Ganter, 436 F.2d 364, 368 (7th Cir.). In both cases there are particular findings in the district judges’ rulings which we should discuss. At the conclusion of Amon’s evidentiary hearing, the judge specifically found that the selection of Amon for prosecution “was in compliance with the directives and the policies” of the IRS, that he saw no “pattern or practice of attempting to silence Mr. Amon on any given occasion where he chooses to exercise his First Amendment rights by the institution of investigation, arrest or prosecution”, but that Amon was “selected for prosecution because he is an active and outspoken protestor.” (II Supp. R. 30-32). After enunciating the proper two-prong test for establishing an unconstitutionally selective prosecution, the district court concluded that it was unable to determine if Amon had been “singled out” for prosecution since the statute of limitations had not yet run for others who were similarly situated. Citing United States v. Stout, 601 F.2d 325 (7th Cir.), the district court did hold, however, that “the defendant’s status as an active protestor was insufficient to establish selective prosecution,” and that no “invidious” discrimination occurs when, as here, the IRS prosecutes individuals “for actions which they take in failing to comply with the tax laws where the transgential [sic] [tangential] effect is to dissuade others from engaging in that kind of tax protest.” The court concluded that (II Supp. R. 32): Accordingly, I am going to deny the motion to dismiss even though I find that the defendant has been selected for prosecution because he is an active and outspoken protestor. That will present the issue of law squarely, but I do think that United States v. Stout is the existing law on the subject. We agree with the trial court’s ruling. Defendant Amon’s asserted claim of a First Amendment" }, { "docid": "12161177", "title": "", "text": "no basis for a finding of denial of equal protection. ‘[TJhe conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.’ Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). Selective enforcement without malicious intent may be justified when a test case is needed to clarify a doubtful law, Mackay Telegraph Co. v. Little Rock, 250 U.S. 94, 100, 39 S.Ct. 428, 63 L.Ed. 863 (1919), or when officials seek to prosecute a particularly egregious violation and thereby deter other violators. People v. Utica Daw’s Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128, 4 A.L.R.3d 393 (1962). Appellee informs us that many of the other violators called as witnesses by appellant have ceased their illegal practices as a result of the experience.” Cook v. City of Price, 566 F.2d 699, 701 (10th Cir. 1977). See United States v. Rickman, 638 F.2d 182 (10th Cir. 1980) (tax protestor case). I am in agreement with the expressions in the quotations I have set out. I think Judge Holloway’s opinion handles the selective prosecution issue at least as favorably toward defendants as they are entitled, and I agree with his handling of the other issues in the appeal. I therefore join in that opinion. McKAY, Circuit Judge, dissenting: Based on an adequate record, the trial court held: Accordingly, I am going to deny the motion to dismiss even though I find that the defendant has been selected for prosecution because he is an active and outspoken protestor. Supp. Record, vol. 2, at 32 (emphasis added). In reaching this conclusion, the court referred to Defendant’s Exhibit D, a letter from the IRS to a tax protester in a situation similar to defendant’s: Secondly, your return was selected for examination because of your past publicized activities in the illegal tax protest movement .... The court also cited an IRS Manual Supplement, Defendant’s Exhibit G, which is captioned “Examination and Investigation of Illegal Tax Protest-type Activities.” The instructions are replete with directions to proceed against “protesters.” In its declaration of purpose, the document states, “The" }, { "docid": "12161184", "title": "", "text": "evidence. I find it impossible to believe that the majority really means what it is saying. Surely it does not mean that, even though the government declares its intent to select persons for prosecution in order to silence them, the ensuing prosecution does not violate constitutionally protected interests. It is beyond cavil that this conviction would fall if the trial court had found: This defendant has been selected for prosecution because he is black. Nor would there be any doubt if the trial court had found: This defendant has been selected for prosecution by the IRS because he is on the President’s political enemies list. Similarly, there can be no doubt that this conviction would fall if the trial court had found: This defendant has been selected for prosecution because he protested in writing that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exac-tions, not voluntary contributions. To demand more in the name of morals is mere cant. Commissioner v. Newman, 159 F.2d 848, 850-51 (2d Cir. 1947) (Judge Learned Hand, dissenting) (approved and quoted in Atlantic Coast Line v. Phillips, 332 U.S. 168, 173, 67 S.Ct. 1584, 1587, 91 L.Ed. 1977 (1947) (Frankfurter, J., delivering the opinion of the Court)). Whatever else the trial court may have found, its express language compels the conclusion that it found that this defendant had been selected for prosecution because ho was an “outspoken protester.” To hold that such selectivity is permissible would make the examples of selectivity I have just set out equally permissible. For first amendment purposes, nothing distinguishes an “outspoken protester” against existing tax laws from one who protests as Judge Hand and Justice Frankfurter have protested. By definition, each and every instance of selective prosecution which reaches us on appeal involves a person who has allegedly violated some law. Nevertheless, the usual carte blanche of the prosecutor in seeking the convictions of these persons" }, { "docid": "12161178", "title": "", "text": "Judge Holloway’s opinion handles the selective prosecution issue at least as favorably toward defendants as they are entitled, and I agree with his handling of the other issues in the appeal. I therefore join in that opinion. McKAY, Circuit Judge, dissenting: Based on an adequate record, the trial court held: Accordingly, I am going to deny the motion to dismiss even though I find that the defendant has been selected for prosecution because he is an active and outspoken protestor. Supp. Record, vol. 2, at 32 (emphasis added). In reaching this conclusion, the court referred to Defendant’s Exhibit D, a letter from the IRS to a tax protester in a situation similar to defendant’s: Secondly, your return was selected for examination because of your past publicized activities in the illegal tax protest movement .... The court also cited an IRS Manual Supplement, Defendant’s Exhibit G, which is captioned “Examination and Investigation of Illegal Tax Protest-type Activities.” The instructions are replete with directions to proceed against “protesters.” In its declaration of purpose, the document states, “The procedures in this Supplement are not directed towards suppressing dissent or prosecuting individuals because they are critical of, or are identified with groups critical of, the tax system or government policies.” IRS Manual Supplement, January 10, 1979, at 1. The overall tenor of the document, however, belies this statement of purpose. It makes clear that IRS activities with regard to tax protesters extend well beyond the manifestly permissible policy of using admissions of a crime against the criminal, to the suspect policy of punishing political protestors — or in other words, of punishing citizens for exercising a right which is front and center to the first amendment. Indeed, if the objective of the IRS were only to prosecute the more serious or frequent violators of the tax laws, the word “protester” would be irrelevant. As the trial court found, the object of the selectivity is to shut up the “outspoken.” The test for determining whether a prosecution is unconstitutionally selective is two-pronged. To support a selective prosecution claim a defendant bears a heavy burden of" }, { "docid": "12161179", "title": "", "text": "procedures in this Supplement are not directed towards suppressing dissent or prosecuting individuals because they are critical of, or are identified with groups critical of, the tax system or government policies.” IRS Manual Supplement, January 10, 1979, at 1. The overall tenor of the document, however, belies this statement of purpose. It makes clear that IRS activities with regard to tax protesters extend well beyond the manifestly permissible policy of using admissions of a crime against the criminal, to the suspect policy of punishing political protestors — or in other words, of punishing citizens for exercising a right which is front and center to the first amendment. Indeed, if the objective of the IRS were only to prosecute the more serious or frequent violators of the tax laws, the word “protester” would be irrelevant. As the trial court found, the object of the selectivity is to shut up the “outspoken.” The test for determining whether a prosecution is unconstitutionally selective is two-pronged. To support a selective prosecution claim a defendant bears a heavy burden of establishing, at least prima facie (1) that he has been singled out for prosecution, and (2) that the selectivity for prosecution was invidious or in bad faith, that is, based on such impermissible considerations as race, religion, or the desire to prevent or inhibit his exercise of such constitutional rights as free speech. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). See also Oyler v. Boles, 368 U.S. 448, 454-56, 82 S.Ct. 501, 504-06, 7 L.Ed.2d 446 (1962); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In other words, challengers must show both selectivity and proscribed motivation. A reading of the trial court’s findings in context makes clear that the trial court was struggling with the implementation of this test. It has not been easy for this court to give substance to the broad statement of the rules regarding selective prosecution. While it may be that in context the trial court was merely saying that defendant was in fact not singled out for prosecution, the trial" }, { "docid": "13327134", "title": "", "text": "was not clearly erroneous. We deem frivolous the contention that the government was required to prove that Considine himself filed or caused to be filed the tax returns underlying each of the four counts in the indictment. It was proved that Considine prepared and signed the returns and that the returns were on file with the Internal Revenue Service. The inference that he filed or caused to be filed the returns is clear and was uncontra-dicted. Affirmed. CARR, District Jiidge (concurring in part and dissenting in part): I concur in the affirmance of the judgment of conviction on Count One. I am compelled to conclude that the Government’s case was insufficient to support the judgments of conviction respecting Counts Two, Three and Four. My main concern is with the issues of law in each of the three counts. Many interpretations of the Internal Revenue Code and the Treasury Regulations were required. A reading of the Reporter’s Transcript, as well as a study of the exhibits, compels me to conclude that the transactions involved in Counts Two, Three and Four are matters for the civil courts. The Government is required to prove every element of the offenses beyond a reasonable doubt. It does not seem appropriate to resort to the concurrent sentence doctrine since Treasury will, in all probability, endeav- or to assess tax penalties upon the theory that the finding of guilt stamps the transactions as fraudulent. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The distinction between tax avoidance and tax evasion is sometimes difficult to discern. As Judge Learned Hand said in Commissioner of Internal Revenue v. Newman (2nd Cir. 1947), 159 F.2d 848 at 850: « ->:• •>:- * over an¿[ over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals" }, { "docid": "12161157", "title": "", "text": "determine if Amon had been “singled out” for prosecution since the statute of limitations had not yet run for others who were similarly situated. Citing United States v. Stout, 601 F.2d 325 (7th Cir.), the district court did hold, however, that “the defendant’s status as an active protestor was insufficient to establish selective prosecution,” and that no “invidious” discrimination occurs when, as here, the IRS prosecutes individuals “for actions which they take in failing to comply with the tax laws where the transgential [sic] [tangential] effect is to dissuade others from engaging in that kind of tax protest.” The court concluded that (II Supp. R. 32): Accordingly, I am going to deny the motion to dismiss even though I find that the defendant has been selected for prosecution because he is an active and outspoken protestor. That will present the issue of law squarely, but I do think that United States v. Stout is the existing law on the subject. We agree with the trial court’s ruling. Defendant Amon’s asserted claim of a First Amendment infringement is not sufficient. Merely showing that the Government elected, under established IRS directives, to prosecute an individual because he was vocal in opposing voluntary compliance with the federal income tax law, without also establishing that others similarly situated were not prosecuted and that the prosecution was based on racial, religious or other impermissible considerations, does not demonstrate an unconstitutionally selective prosecution. See United States v. Rickman, 638 F.2d 182, 183 (10th Cir.); United States v. Stout, 601 F.2d 325, 328 (7th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406; United States v. Catlett, 584 F.2d 864, 866-867 (8th Cir.); United States v. Johnson, supra, 577 F.2d at 1309. We uphold the trial court’s ruling on the ground that the defendant Amon did not satisfy the second requirement — that the prosecution was based on racial, religious or other impermissible considerations. In the Dunbar case the district judge reached a similar conclusion without making all the findings stated in the Amon case. The judge said that it would be anomalous if" }, { "docid": "22305660", "title": "", "text": "11. Rather, we conclude that such kits are within the definition of the taxable item. Failure to pay the tax on such a kit thus would amount to evasion, not avoidance. In our system, avoidance of a tax by remaining outside the ambit of the law that imposes it is every person’s right. “Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich of poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” Commissioner v. Newman, 169 F. 2d 848, 860-851 (CA2) (L. Hand, J., dissenting), cert. denied, 331 U. S. 869 (1947). Contrary to Justice Scalia’s suggestion, see post, at 522, our understanding of these aggregations of parts, shared by a majority of the Court (those who join this opinion and the four Members of the Court in dissent, see post, p. 523 (White, J., joined by Blackmun, Stevens, and Kennedy, JJ., dissenting) (any aggregation of parts necessary to assemble a firearm is a firearm)), applies to all the provisions of the Act, whether they regulate the “making” of a firearm, e. g., 26 U. S. C. § 5821(a), or not, see, e. g., § 5842(b) (possession of a firearm that has no serial number); § 5844 (importation of a firearm); § 5811 (transfer of a firearm). Since, as we conclude, such a combination of parts, or of a complete gun and an additional part or parts, is “made” into a firearm, it follows, in the absence of some reason to the contrary, that all portions of the Act that apply to “firearms” apply to such a combination. Justice Scalia does not explain how we would be free to construe “firearm” in a different way for purposes of those provisions that do not contain the verb “to make.” Our normal canons of construction caution us to read the statute as a whole, and," }, { "docid": "12161182", "title": "", "text": "selectivity is not only erroneous but an impossible test for anyone to meet. The majority is not prepared to hold that that test should in fact be applied. The net effects of the majority’s handling of this issue are (1) a contradiction of the trial court’s findings without any discussion of the insufficiency of the record to support them, and (2) the establishment of a rule which permits the government through selective prosecution to chill the exercise of a citizen’s right to be “outspoken” in protest against government policies. The trial court’s confusion apparently arises from a failure to understand what kinds of proof can show selective prosecution. The trial court apparently believed that the only way selectivity could be shown was by circumstantial evidence — i. e., that all other possible violators had been ignored while the defendant had been prosecuted. While that is one method of showing selectivity, it is certainly not the only method. Selectivity also may be shown by direct evidence, as apparently was done, and was accepted by the trial court as being done, in this case. That is, it may be shown by what has been colloquially called the “smoking pistol” method, an outright admission. Proof adduced in this case showed that the IRS had a deliberate policy of selecting, and attempting to silence those who were “outspoken protesters” against the tax laws. If it were shown by direct evidence that such a policy had been applied to defendant — and apparently the trial court found that it had- — then the first leg of the test is satisfied without requiring defendant to conduct his own nationwide investigation of tax violations to identify all possible defendants and then to show that none of them had been prosecuted. In the present case, the first and second legs of the test are satisfied by the same proof. Here, the IRS declared (and the trial court believed) that it intended to se lect and silence outspoken tax protesters. Thus, both the fact of selectivity and its motivation — to silence the outspoken — -are proved by direct" }, { "docid": "12161187", "title": "", "text": "the American Revolution supports a finding that tax protests present a clear and present danger to the Republic, there is no argument before us that they do; no court has so held; and it is doubtful that any court is prepared so to hold. Of course there is a danger that illegal tax practices will become more widespread if the government fails to strike swiftly and decisively in gagging or at least intimidating the most outspoken tax protesters. However, in a day in which even a computerized search is incapable of tabulating the fractions of a citizen’s conduct which government agents now have discretion to charge severally or cumulatively as alleged violations of the law, the necessity of subjecting that discretion to constitutional scrutiny is manifest and certain. It seems a puny enough effort to suggest that the limit on the dangers of unconstitutional discrimination be drawn at least where the hapless citizen can carry his heavy burden to show that he was singled out because (to use the trial court’s express language) “he is an active and outspoken protestor.” It is hard to imagine a kind of political protest more consistent with the most cherished traditions of this nation than protest focusing on the laws of taxation. Certainly no form of protest is more American. It was, after all, protest against the Stamp Act which helped set in motion the chain of events which won for this nation its independence from a repressive King George and led to the enshrining in the first amendment of the right to protest. Since the trial court seemed justifiably confused as to the proper application of the first prong of the test, this ease should be remanded to give the trial court an opportunity to reconsider the matter in light of this clarification of the various means by which selectivity may be proved. The possibility that the confusion may have affected the finding that selectivity was motivated by a desire to suppress outspokenness suggests that the trial court not be bound by that finding on remand but rather be permitted to reconsider whether" }, { "docid": "12161181", "title": "", "text": "court undeniably found that if defendant was singled out the motivation was that “he is an active and outspoken protestor.” The majority opinion is simply mistaken in concluding that the trial court ruled that the defendant had not satisfied the second leg of the test — •/. e., had not shown that the prosecution was motivated by the desire to inhibit his exercise of free speech. The trial court’s express finding is exactly to the contrary — “I find that the defendant has been selected for prosecution because he is an active and outspoken protestor.” Supp. Record, vol. 2, at 32 (emphasis added). In fact, a close reading of the trial court’s struggle with the issues indicates that its doubt arose not from the IRS’s motivation but rather from an erroneous belief that it was necessary for the defendant not only to show that he was the only one so far who had been prosecuted but also that the statute of limitations had run as to all other persons similarly situated. That test for determining selectivity is not only erroneous but an impossible test for anyone to meet. The majority is not prepared to hold that that test should in fact be applied. The net effects of the majority’s handling of this issue are (1) a contradiction of the trial court’s findings without any discussion of the insufficiency of the record to support them, and (2) the establishment of a rule which permits the government through selective prosecution to chill the exercise of a citizen’s right to be “outspoken” in protest against government policies. The trial court’s confusion apparently arises from a failure to understand what kinds of proof can show selective prosecution. The trial court apparently believed that the only way selectivity could be shown was by circumstantial evidence — i. e., that all other possible violators had been ignored while the defendant had been prosecuted. While that is one method of showing selectivity, it is certainly not the only method. Selectivity also may be shown by direct evidence, as apparently was done, and was accepted by the trial" } ]
825565
believes to be without merit. Vaca, 386 U.S. at 191-192, 87 S.Ct. at 917-18; Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir.1980); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir.1971). In addition, a union may not discharge its representation duties in a perfunctory or otherwise inadequate manner. Del Costello, 462 U.S. at 164, 103 S.Ct. at 2290; Vaca, 386 U.S. at 191, 87 S.Ct. at 917. However, the union member bringing a lack of fair representation claim cannot meet his burden of proof by merely showing that the union representative might have been negligent or made a mistake in judgment by failing to proceed further with the complaint. REDACTED Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th Cir.1980); Nunn v. National Fresh Fruit & Vegetable Co., Inc., 541 F.Supp. 469, affd. 703 F.2d 556 (5th Cir. 1982). 7. Plaintiff asserts two potential duty of fair representation violations. The first involved the unions’ alleged failure to pursue plaintiffs 1981-82 grievance complaining of supervisor Walkoviak’s policy requiring that service technicians utilize spikes rather than ladders to climb telephone poles. Defendants argue that this claim is time-barred. The Supreme Court has held that a § 301 fair representation suit against a union is governed by the six-month statute of limitations period contained in § 10(b) of the National Labor Relations Act. Del Costello v. Teamsters, 462 U.S. 151, 103 S.Ct.
[ { "docid": "23066383", "title": "", "text": "has been dishonest, in bad faith, or discriminatory; for in that event error and injustice of the grossest sort would multiply.” The duty of fair representation encompasses a variety of situations in which a grievance may arise. For example, in bargaining over the terms of a contract, the union may be placed in a position where securing benefits for one group works to the detriment of other members. There, the internal conflict presents special problems. E. g., DeBoles v. Trans World Airlines, Inc., 552 F.2d 1005 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). In processing grievances there are times when the interests of all the employees affected by given circumstance may not be harmonious. E. g., Smith v. Hussmann Refrigerator Co., 619 F.2d 1229 (8th Cir. 1980) (en banc). None of those conflicts are present here, nor is this a case of bad faith on the part of the union officers growing out of internal political dissension, such as that present in Hines v. Local 377, Teamsters Union, 506 F.2d 1153 (6th Cir. 1974), rev’d on other grounds, Hines v. Anchor Motor Freight, Inc., supra. The mere refusal of a union to take a complaint to arbitration does not establish a breach of duty, even if the member’s claim was meritorious. Vaca v. Sipes, supra, 386 U.S. at 192-93, 87 S.Ct. at 917-18. Proof of arbitrary or bad faith union conduct in deciding not to proceed with the grievance is necessary to establish lack of compliance with the fair representation. Id. at 194-95, 87 S.Ct. at 918-19. But once the grievance mechanisms have been utilized, as here, the focus is on whether, contrary to the arbitrator’s decision, the employer did breach the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 568, 96 S.Ct. at 1058. Accordingly, the issue here is whether the union’s representation in the grievance proceedings was within the “range of acceptable performance,” and if not, whether it tainted" } ]
[ { "docid": "8919308", "title": "", "text": "this claim is time-barred. The Supreme Court has held that a § 301 fair representation suit against a union is governed by the six-month statute of limitations period contained in § 10(b) of the National Labor Relations Act. Del Costello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Therefore, any claims against the unions arising out of events that occurred prior to September 12, 1984 would be time-barred. As such, plaintiff’s first claim against the unions is clearly time-barred. 8. The second alleged violation of the duty of fair representation involves the unions’ failure to formally pursue plaintiff’s 1984 grievance request complaining about his demotion from service technician to maintenance administrator. Included within this second alleged violation is the question of whether the unions’ failure to recognize plaintiff as a handicapped individual when considering his grievance request constitutes a breach of the duty of fair representation. 9. As this Court noted earlier, the duty of fair representation does not require a union to pursue grievance procedures whenever an employee has a complaint against his employer. Seymour, 666 F.2d at 208. Unions have a great deal of latitude in dealing with grievance matters and a union breaches its duty of representation only when it handles the employee’s complaint in a manner that is arbitrary, discriminatory, or in bad faith. Vaca, 386 U.S. at 191, 87 S.Ct. at 917. This Court finds no evidence that would lead it to conclude that the Unions’ response to plaintiff’s complaint was either arbitrary or in bad faith. The facts indicate that the Union Steward, Dale Dugas, intervened on plaintiffs behalf prior to his demotion and, largely due to her efforts, plaintiff was placed in the higher paying Maintenance Administrator position instead of the Service Order Assignment Clerk position. In addition, the facts indicate that Ms. Dugas discussed plaintiff’s situation with Union Vice-President Callaway on numerous occassions. Based on these discussions and a consideration of the company’s position in similar cases, Mr. Callaway apparently reached two conclusions: First, that the Union would be unsuccessful if it filed a grievance regarding plaintiff’s complaint" }, { "docid": "11676745", "title": "", "text": "(u) Throughout the pendency of plaintiff’s grievance, both before the grievance was dropped and after, plaintiff never supplied Daigle with the names of witnesses or any other evidence which might have substantiated plaintiff’s contention that his suspension and discharge were unjust (Plaintiff’s Deposition, p. 37, p. 22 to p. 38, 1. 1, p. 144,1. 6-9, p. 162,1. 14-16, o. 197, 1. 10-17). (v) Although plaintiff had previously considered seeking the position of union steward he never discussed this possibility with Daigle (Plaintiff’s Deposition, p. 117,1. 8-16; Daigle Deposition, p. 39, 1. 3-5). Plaintiff did not know when the union steward’s term expired (Plaintiff’s Deposition, p. 117, 1. 17-18). The crux of plaintiff’s claim of unfair representation is that the Union abandoned his grievance prior to the resolution of the criminal charges which served as the basis of his termination. Plaintiff also complains the Union failed to fully investigate whether or not he was at fault in the December 7th accident. Plaintiff’s claims that he had not violated company rules and regulations or that extenuating circumstances justified his violation(s), are immaterial to the issue of whether the Union breached its duty of fair representation. The duty of fair representation does not require unions to pursue grievance procedures in every case where an employee has a complaint against the employer. Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir. 1982). It is well settled that the duty of fair representation “does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure.” Turner v. Air Transport Dispatchers’ Association, 468 F.2d at 299; Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Unions have considerable discretion in dealing with grievance matters, provided the treatment of an employee’s complaint is neither arbitrary, discrimi natory, or in bad faith. Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. A union may not discharge its representation duties in a perfunctory manner. Vaca v. Sipes; Hart v. National Homes Corp., 668 F.2d 791, 794 (5th Cir. 1982). Subject to the duty of fair" }, { "docid": "8919307", "title": "", "text": "Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir.1971). In addition, a union may not discharge its representation duties in a perfunctory or otherwise inadequate manner. Del Costello, 462 U.S. at 164, 103 S.Ct. at 2290; Vaca, 386 U.S. at 191, 87 S.Ct. at 917. However, the union member bringing a lack of fair representation claim cannot meet his burden of proof by merely showing that the union representative might have been negligent or made a mistake in judgment by failing to proceed further with the complaint. Findley v. Jones Motor Freight Division Allegheny Corp., 639 F.2d 953 (3rd Cir.1981); Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th Cir.1980); Nunn v. National Fresh Fruit & Vegetable Co., Inc., 541 F.Supp. 469, affd. 703 F.2d 556 (5th Cir. 1982). 7. Plaintiff asserts two potential duty of fair representation violations. The first involved the unions’ alleged failure to pursue plaintiffs 1981-82 grievance complaining of supervisor Walkoviak’s policy requiring that service technicians utilize spikes rather than ladders to climb telephone poles. Defendants argue that this claim is time-barred. The Supreme Court has held that a § 301 fair representation suit against a union is governed by the six-month statute of limitations period contained in § 10(b) of the National Labor Relations Act. Del Costello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Therefore, any claims against the unions arising out of events that occurred prior to September 12, 1984 would be time-barred. As such, plaintiff’s first claim against the unions is clearly time-barred. 8. The second alleged violation of the duty of fair representation involves the unions’ failure to formally pursue plaintiff’s 1984 grievance request complaining about his demotion from service technician to maintenance administrator. Included within this second alleged violation is the question of whether the unions’ failure to recognize plaintiff as a handicapped individual when considering his grievance request constitutes a breach of the duty of fair representation. 9. As this Court noted earlier, the duty of fair representation does not require a union to pursue grievance procedures whenever an employee has a" }, { "docid": "8919306", "title": "", "text": "is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. 6. The duty of fair representation does not, however, require unions to pursue grievance procedures in every case where an employee has a complaint against the employer. Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir.1982). It is well settled that the duty of fair representation “does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure.” Vaca, 386 U.S. at 191, 87 S.Ct. at 917. Unions have considerable discretion in dealing with grievance matters, provided the treatment of an employee’s complaint is neither arbitrary, discriminatory, or in bad faith. Id. Subject to the duty of fair representation, a union is entitled to exercise its discretionary power to settle, abandon or even refuse to institute a grievance it believes to be without merit. Vaca, 386 U.S. at 191-192, 87 S.Ct. at 917-18; Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir.1980); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir.1971). In addition, a union may not discharge its representation duties in a perfunctory or otherwise inadequate manner. Del Costello, 462 U.S. at 164, 103 S.Ct. at 2290; Vaca, 386 U.S. at 191, 87 S.Ct. at 917. However, the union member bringing a lack of fair representation claim cannot meet his burden of proof by merely showing that the union representative might have been negligent or made a mistake in judgment by failing to proceed further with the complaint. Findley v. Jones Motor Freight Division Allegheny Corp., 639 F.2d 953 (3rd Cir.1981); Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th Cir.1980); Nunn v. National Fresh Fruit & Vegetable Co., Inc., 541 F.Supp. 469, affd. 703 F.2d 556 (5th Cir. 1982). 7. Plaintiff asserts two potential duty of fair representation violations. The first involved the unions’ alleged failure to pursue plaintiffs 1981-82 grievance complaining of supervisor Walkoviak’s policy requiring that service technicians utilize spikes rather than ladders to climb telephone poles. Defendants argue that" }, { "docid": "18752590", "title": "", "text": "grievance or process it in a perfunctory fashion.” Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1967). In policing union conduct that is “arbitrary and perfunctory,” courts have been willing to look beyond the question whether the union in fact pursues an employee’s grievance (contractual or statutory) and to determine whether the union has made a full investigation, has given the grievant notice and an opportunity to participate, has mustered colorable arguments and has refuted insubstantial arguments by the employer. R. Gorman, Labor Law 718 (1976). Unions occasionally fail to fulfill this duty of fair representation. The Supreme Court has thus recognized that when an employee has a dispute with the employer, the federal labor policy of requiring exhaustion of any grievance or arbitration remedies provided in the collective-bargaining agreement “works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). In those instances, when a union breaches its duty to represent fairly one of its members who alleges that the employer wronged him, the “employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding.” Id. (citations omitted). Justice Stewart, concurring in the judgment, explained the practicalities of such a hybrid suit in United Parcel Serv. v. Mitchell, 451 U.S. 56, 66-69, 101 S.Ct. 1559, 1565-67, 67 L.Ed.2d 732 (1981). A hybrid suit consists of two distinct claims, each with its own jurisdictional basis. The cause of action against the employer rests on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982); the employee is alleging a breach of the collective-bargaining agreement. The cause of action against the union rests on the union’s duty of fair representation, implied from the National Labor Relations Act, 29 U.S.C. §§ 151-170 (1982 & Supp. III 1985); the employee is alleging that the" }, { "docid": "8919305", "title": "", "text": "the defendant Unions’ discriminated in their treatment of plaintiff because he was handicapped. 4. This case presents a number of difficult legal questions that this Court must address. First, whether the Unions breached the duty of fair representation owed to the plaintiff? Second, whether plaintiff must prove that the unions breached their duty as a prerequisite to recovery against defendant Southwestern Bell for breach of contract? Third, whether Southwestern Bell breached the collective bargaining agreement and/or its own affirmative action plan? And finally, whether plaintiff can recover against either the defendant Unions or Southwestern Bell under the Texas Human Rights Act? B. BREACH OF THE DUTY OF FAIR REPRESENTATION 5. It is undisputed that a Union, acting as the exclusive bargaining representative of its members, has a duty to fairly represent its members under the scheme of the National Labor Relations Act. Del Costello v. Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983). A breach of the statutory duty of fair representation occurs when a union’s conduct toward a member is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. 6. The duty of fair representation does not, however, require unions to pursue grievance procedures in every case where an employee has a complaint against the employer. Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir.1982). It is well settled that the duty of fair representation “does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure.” Vaca, 386 U.S. at 191, 87 S.Ct. at 917. Unions have considerable discretion in dealing with grievance matters, provided the treatment of an employee’s complaint is neither arbitrary, discriminatory, or in bad faith. Id. Subject to the duty of fair representation, a union is entitled to exercise its discretionary power to settle, abandon or even refuse to institute a grievance it believes to be without merit. Vaca, 386 U.S. at 191-192, 87 S.Ct. at 917-18; Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir.1980); Harris v. Chemical" }, { "docid": "13451926", "title": "", "text": "permit a finding of futility would allow recovery for breach of the duty of fair representation. See e.g., Coe, 571 F.2d at 1350 (holding that union not liable for misdesignating notice, thereby barring arbitration). Therefore, a hybrid plaintiff may generally bring his suit only if he can win it; in response, courts have equated futility with the union’s breach of its duty of fair representation. See, e.g., Vaca, 386 U.S. at 186, 87 S.Ct. at 914 ; Proudfoot, 779 F.2d at 1559 (holding that hybrid suit accrues upon breach of duty of fair representation); Adkins v. International Union of Elec., Radio & Machine Workers, 769 F.2d 330, 336 (6th Cir.1985) (stating that “the typical hybrid claim is based on the union’s failure to properly process a grievance, so nonjudicial enforcement has already failed”); Boone v. Armstrong Cork Co., 384 F.2d 285, 288, 291-92 (5th Cir.1967) (holding that exhaustion is not required in face of breach of fair representation duty). To bring all this closer to the matter at hand, it may be said that any inquiry into the timeliness of a hybrid suit will almost always focus on the plaintiff's dealings with his union, as opposed to intercourse with his employer. A hybrid suit is subject to the time limit announced in Del-Costello, which applied the six-month period in section 10(b) of the National Labor Relations Act to hybrid suits. DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294. The general rule concerning limitary periods is that they begin when plaintiff may first maintain a cause of action against a defendant. Dougherty v. United States Navy Bd. for Correction of Naval Records, 784 F.2d 499, 502 (3d Cir.1986); Kucera v. Metropolitan Life Ins. Co., 719 F.2d 678, 681 (3d Cir.1983). Moreover, it is well settled that a union need neither inform the employee of his grievance’s progress nor notify him that the organization’s own effort toward a private resolution of his dispute has ended. Demars, 779 F.2d at 98; Bazarte, 429 F.2d at 872. Finally, a union is not under a duty to draft an articulate and clear collective bargaining" }, { "docid": "8720803", "title": "", "text": "Inc., 483 U.S. 143, 147, 107 S.Ct. 2759, 2762-63, 97 L.Ed.2d 121 (1987) (Rules of Decision Act usually requires application of statute of limitations and “[gjiven our longstanding practice of borrowing state law, and the congressional awareness of this practice, we can generally assume that Congress intends by its silence that we borrow state law”). This general rule is neither rigid nor mechanically applied, however. Where state limitations periods are at odds with the purpose or operation of federal substantive law, or where they are determined to be unsatisfactory vehicles for its enforcement, federal courts may decline to borrow them and draw instead from federal law. DelCostello, 462 U.S. at 161-62, 103 S.Ct. at 2289. In Del-Costello, the Supreme Court determined federal labor policies and the practicalities of § 301 litigation supported the application of the six-month statute of limitations prescribed by § 10(b) of the LMRA, 29 U.S.C. § 160(b), to “hybrid” § 301/unfair representation suits charging an employer breached a collective-bargaining agreement and the union breached its duty of fair representation. Id., 462 U.S. at 154-55, 103 S.Ct. at 2285-86. We have followed DelCostello and applied § 10(b)’s statute of limitations in Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1463, 1472 (10th Cir.1993), cert. denied, — U.S. — —, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994), Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 420 (10th Cir.1990), and Rucker v. St. Louis Southwestern Ry. Co., 917 F.2d 1233, 1237-38 (10th Cir.1990). The “hybrid” suit is a judicially created exception to the general rule that an employee is bound by the result of grievance or arbitration remedial procedures provided in a collective-bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967), discussed in DelCostello, 462 U.S. at 163-64, 103 S.Ct. at 2289-90. Where an employee can prove he suffered a wrongful discharge in violation of a collective-bargaining agreement that would have been remedied through the grievance process had the union fulfilled its statutory duty to represent the employee fairly, federal law will provide a remedy. Vaca," }, { "docid": "17163021", "title": "", "text": "See W.R. Grace & Co. v. Local 759, ante [461 U.S. 757] at- [103 S.Ct. 2177, at 2183, 76 L.Ed.2d 298]; Steelworkers v. Enterprise Corp. 363 U.S. 593 [80 S.Ct. 1358, 4 L.Ed.2d 1424] (1960). In Vaca [v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ] and Hines [v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) ], however, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. (Citations omitted). Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. (footnote omitted).. .The suit is thus not a straightforward breach of contract suit under § 301, as was [Auto Workers v.] Hoosier Corp., [383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ], but a hybrid § 301/fair representation claim, amounting to a direct challenge to 'the private settlement of disputes under [the collective bargaining agreement].’” (citation omitted). DelCostello, 462 U.S. at 151, 103 S.Ct. at 2289-91. See also Storck v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 600, 712 F.2d 1194, 1195 (7th Cir. 1983); Sear v. Cadillac Auto Co. of Boston, 501 F.Supp. 1350, 1355-58 (D.Mass.1980). . Paper Nos. 81 & 82. . Paper No. 83. See also Paper Nos. 87, 88 & 89. . Paper No. 6. . A limitations defense may be asserted by motion if the timeliness issue is apparent from the face of the complaint. White v. Padgett, 475 F.2d 79 (5th" }, { "docid": "11676746", "title": "", "text": "justified his violation(s), are immaterial to the issue of whether the Union breached its duty of fair representation. The duty of fair representation does not require unions to pursue grievance procedures in every case where an employee has a complaint against the employer. Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir. 1982). It is well settled that the duty of fair representation “does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure.” Turner v. Air Transport Dispatchers’ Association, 468 F.2d at 299; Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Unions have considerable discretion in dealing with grievance matters, provided the treatment of an employee’s complaint is neither arbitrary, discrimi natory, or in bad faith. Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. A union may not discharge its representation duties in a perfunctory manner. Vaca v. Sipes; Hart v. National Homes Corp., 668 F.2d 791, 794 (5th Cir. 1982). Subject to the duty of fair representation, a union is entitled to exercise its discretionary power to settle, abandon or even refuse to institute a grievance it believes to be without merit. Vaca v. Sipes, 386 U.S. at 191-192, 87 S.Ct. at 917-18; Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir. 1980); Turner, 468 F.2d at 300; Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971). The depositions and exhibits on file with this Court support the finding that the Union did not breach its duty of fair representation with regard to the processing of plaintiff’s grievance. Plaintiff asserts John Daigle failed to investigate the validity of plaintiff’s contention that he was not at fault in the December 7th accident. It is well established that the duty of fair representation includes the obligation to investigate the merits of an employee’s grievance. Freeman v. O’Neal Steel, Inc., 609 F.2d at 1128; Turner, 468 F.2d 297. Here, John Daigle met with plaintiff after the accident and discussed the various charges filed against him. At the" }, { "docid": "1888033", "title": "", "text": "was formally withdrawn by UAW. Clark left Ford in February 1996 on medical leave and has not filed any grievances nor made any health and safety complaints subsequent to that time. Clark was not included as a named plaintiff to this action until January 1997. II. DISCUSSION In this action the class seeks to pursue a hybrid claim under Section 801 against Ford for breach of the CBA and against UAW for breach of the duty of fair representation. Although the contractual remedies under a collective bargaining agreement between the employer and union ordinarily are exclusive, if the union has sole power under the contract to utilize the higher stages of a grievance procedure and wrongfully refuses to process a grievance, the employee may bring a hybrid action under Section 301. Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In order to prevail against either the employer or union, the employee must prove both that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement. Id. at 186-87, 87 S.Ct. 903. Such an action is governed by the six-month statute of limitations set forth by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In DelCostello, the Court reasoned that a hybrid Section 301 fair representation claim resembled a claim for an unfair labor practice under the National Labor Relations Act (NLRA), and imposed a six-month limitations period similar to the limitation period found in section 10(b) of the NLRA. Id. at 169-70, 172, 103 S.Ct. 2281. The statute of limitations begins running when the employee “should reasonably have known of the union’s alleged breach.” Evans v. Northwest Airlines, Inc., 29 F.3d 438, 441 (8th Cir.1994). The class cannot maintain an action against UAW for breach of the duty of fair representation because the action was not filed within the six-month statute of limitations. At the very latest, Scott knew that UAW was not going to pursue the grievance when he filed charges against the union’s" }, { "docid": "11676732", "title": "", "text": "against National only if he establishes that the Union violated its duty of fair representation in the processing of his grievance. Only by alleging and proving such a breach of duty by the Union can plaintiff avoid the bar which the contractual grievance procedure otherwise presents to his suit against National. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1975); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir. 1979). In order to demonstrate a breach of the duty of fair representation, the plaintiff must establish that the Union’s refusal to prosecute his grievance through arbitration was “arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 193, 87 S.Ct. 903, 918, 17 L.Ed.2d 842 (1967). The Fifth Circuit has recognized “that summary judgment can be a proper method for disposing of fair representation cases where material issues of fact have been settled by depositions and affidavits [citations omitted].” Turner v. Air Transport Dispatchers Association, 468 F.2d 297, 299 (5th Cir. 1972). The inquiry before this Court, therefore, is whether the evidence when considered within the framework of the applicable law, creates a genuine material fact issue regarding the Union’s fulfillment of its duty of fair representation. In order to resist defendants’ summary judgment motion, plaintiff must produce evidence from which one might reasonably infer that the Union processed plaintiff’s grievance against National in a “perfunctory fashion” or acted in a manner which might be characterized as “arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, supra 386 U.S. at 193, 87 S.Ct. at 918; cf. id. at 191, 87 S.Ct. at 917; Lomax v. Armstrong Cork Company, 433 F.2d 1277, 1281 (5th Cir. 1970). The pleadings, affidavits, depositions and exhibits on file with the Court show the following, essentially undisputed, facts: (a) Defendant National and the Union entered into a collective bargaining agreement (“contract”) effective from July 17, 1977 to July 13, 1980, which defined the wages, hours, and terms and conditions of employment of National’s employees (Exhibit No. I). (b) Article III of said contract" }, { "docid": "11676747", "title": "", "text": "representation, a union is entitled to exercise its discretionary power to settle, abandon or even refuse to institute a grievance it believes to be without merit. Vaca v. Sipes, 386 U.S. at 191-192, 87 S.Ct. at 917-18; Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir. 1980); Turner, 468 F.2d at 300; Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971). The depositions and exhibits on file with this Court support the finding that the Union did not breach its duty of fair representation with regard to the processing of plaintiff’s grievance. Plaintiff asserts John Daigle failed to investigate the validity of plaintiff’s contention that he was not at fault in the December 7th accident. It is well established that the duty of fair representation includes the obligation to investigate the merits of an employee’s grievance. Freeman v. O’Neal Steel, Inc., 609 F.2d at 1128; Turner, 468 F.2d 297. Here, John Daigle met with plaintiff after the accident and discussed the various charges filed against him. At the December 10th meeting with Willie Fuller, plaintiff explained why he felt he was not at fault for the accident (Fuller Deposition, p. 10, 1. 17-21; Plaintiff’s Deposition, p. 133,1. 2-12, p. 134, 1. 1-3, p. 138,1. 22 to p. 139, 1. 6) and both plaintiff and Daigle argued plaintiff had sound reasons for carrying a gun in the cab of his truck (Plaintiff’s Deposition, p. 133,1. 20-22, p. 139, 1. 9 to p. 140, 1. 1). At no time did plaintiff suggest the names of any witnesses for Mr. Daigle to interview nor did he apprise Mr. Daigle that he (plaintiff) was dissatisfied with the way Daigle had represented his case to Mr. Fuller (Plaintiff’s Deposition, p. 48, 1. 13-25). Mr. Daigle subsequently reviewed the police report plaintiff produced for him, yet there was nothing in that report indicating plaintiff was not at fault. Plaintiff apparently believes it was incumbent upon the Union to pursue his grievance until there had been a judicial resolution of the charges pending against him. Plaintiff fails to cite any" }, { "docid": "15661222", "title": "", "text": "agreement and (2) that the union breached its duty of fair representation in redressing her grievance against the employer. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171, 184-86, 87 S.Ct. 903, 913-15, 17 L.Ed.2d 842 (1967). Section 301 of the Labor Management Relations Act, 1947 (the “LMRA”), 29 U.S.C. § 185, governs the employer’s duty to honor the collective bargaining agreement, and- the, duty of fair representation is implied under the scheme of the National Labor Relations Act (the “NLRA”). See DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290-91; see also Price v. International Union, United Auto. Aerospace & Agric. Implement Workers, 795 F.2d 1128, 1134 (2d Cir.1986) (union’s duty of fair representation is implied from § 9(a) of the NLRA, 29 U.S.C. § 159(a), specifically). The limitations period on this “hybrid' § 301/ DFR” action is six months, see DelCostello, 462 U.S. at 169, 103 S.Ct. at 2293, which begins to run when the employee knew or should have known of the breach of the duty of fair representation, see Cohen v. Flushing Hosp. & Med Ctr., 68 F.3d 64, 67 (2d Cir. 1995); King v. New York Tel. Co., 785 F.2d 31, 33 (2d Cir.1986). The plaintiff may sue the union or the employer, or both, but must allege violations on the part of both. See DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. B. The Plaintiffs’ Claims Against the Union In their third amended complaint, the plaintiffs joined Local 138 as a defendant and alleged that the union had breached its duty of fair representation in two ways: (1) by entering into the Amendment without ratification by the union membership, and (2) by refusing to pursue their claim to arbitration. 1. The Union’s Participation in the Amendment The union was joined in this action more than two years after it participated in the Amendment; thus, the plaintiffs’ claim against the union based.on that act would be time-barred by the six-month limit of Del-Costello. It is unclear whether the" }, { "docid": "8720807", "title": "", "text": "165, 103 S.Ct at 2291 (internal quotes and citations omitted), applied in Quay v. Sheffield Steel Corp., 25 F.3d 1058 (10th Cir.1994) (unpublished opinion); Aguinaga, 993 F.2d at 1469 n. 1 & 1471-72. As between the two, however, the ultimate wrong is that of the employer. Del-Costello, 462 U.S. at 168, 103 S.Ct. at 2292. Thus, while employees may sue their union for unfair representation, the union may be held liable “only for ‘increases if any in [the employee’s] damages caused by the union’s [wrongful conduct in] processing] the grievance.’ ” Id. (emphasis original) (quoting Vaca, 386 U.S. at 197-98, 87 S.Ct. at 920-21). The result is that a suit against the union is by definition a suit against the employer. Because the employer cannot “hide behind the union’s wrongful failure to act ... the employer may be (and probably should be) joined as a defendant in the fair representation suit.” Vaca, 386 U.S. at 197, 87 S.Ct. at 920. Under the analysis in Vaca and DelCostel-lo, it is clear Edwards’ suit against the Union cannot exist independently of his underlying wrongful discharge grievance against Trover. We find the district court correctly held Edwards could not avoid the six-month statute of limitations applicable to both elements of a “hybrid” claim under DelCostello by suing only the Union. 3. Edwards next contends he was precluded from bringing a DelCostello-type “hybrid” action because the Union’s action to vacate the arbitration award “was” his § 301 suit against Trover. Aplt.’s Reply at 2. Edwards provides no support for his contention and we reject it out of hand. The very purpose behind the creation of the “hybrid” cause of action in Vaca was to enable an employee to hold his employer accountable for breaching its collective-bargaining agreement notwithstanding a “final”, result obtained for him by his exclusive bargaining agent. See DelCostello, 462 U.S. at 164-65, 103 S.Ct. at 2290-91 (discussing Vaca and its progeny). Under Vaca, the district court’s entry of summary judgment in favor of Trover merely marked the end of the Union’s efforts on Edwards’ behalf under the collective-bargaining agreement; it did" }, { "docid": "5506359", "title": "", "text": "conformed to this court’s practice first articulated in Kinney v. International Brotherhood of Electrical Workers, 669 F.2d 1222 (9th Cir.1981). It is important to recognize that this species of liability, although brought under section 301, has a different jurisprudential basis than the more familiar action based on the “statutory duty of fair representation.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967). The duty of fair representation is inferred from unions’ exclusive authority under the NLRA, 29 U.S.C. § 159(a), to represent all employees in a bargaining unit. Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 563, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990); Vaca, 386 U.S. at 177, 87 S.Ct. at 910. Whereas the duty of fair representation requires a union to act fairly when dealing with an employer on behalf of a member, a Wooddell claim requires a union to obey its own constitution regardless of the context. Moore made two separate Wooddell claims against the International, arising from the two separate complaints Moore filed with the International against Local 569 officials. 1. The first claim arose from Moore’s allegation that officials of the Local assaulted and harassed him at an April 1984 meeting. Robbins, the International official who investigated Moore’s allegations, found the complaint to be without merit. In essence, Moore alleges that the IBEW breached the duty imposed by its own constitution to investigate charges properly. Although the International denied his claim on September 12, 1984, Moore did not file his complaint in the within action until July 25, 1985. Relying on the authority of Del-Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983), the district court applied the six month limitation period of section 10(b) of the NLRA, 29 U.S.C. § 160(b), to this claim and held that it was time-barred. Moore contends that the district court erred by not applying the state statute of limitations. governing breaches of contract. A ruling on the appropriate statute of limitations is a question of law reviewed de" }, { "docid": "13451922", "title": "", "text": "conduct permissible in the workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties.... Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of [the fiduciary’s] behavior.’ Seminole Nation v. United States, 316 U.S. 286, 297 n. 12, 62 S.Ct. 1049, 1055 n. 12, 86 L.Ed. 1480, 1777 (1942) (quoting Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928)). A union may handle worker rights with negligence and not violate its fiduciary duty. See Findley v. Jones Motor Frieght, 639 F.2d 953, 960 (3d Cir.1981) (stating that union failure to call known witnesses at grievance hearing or ascertain identity of other witnesses not actionable); Coe v. Rubber Workers, 571 F.2d 1349, 1350 (5th Cir.1978) (holding that union did not breach duty where it misde-signated notice, thereby barring arbitration). Rather, the organization’s duty is the lesser obligation to avoid gross negligence, malice or bad faith. Vaca, 386 U.S. at 190, 87 S.Ct. at 916; Florey v. Air Lane Pilots’ Ass’n., 575 F.2d 673, 676 (8th Cir.1978) (holding that “[ijmproper union motivation is the very crux of the fair representation doctrine and is an essential element in all fair representation cases”). The duty of fair representation may be enforced by a “hybrid” suit, in which a worker proceeds against both his union and employer. As the term implies, a “hybrid” has a dual nature. The worker’s claim against his employer is for breach of the collective bargaining agreement. His claim against the union is for its breach of the implied duty of fair representation. Del- Costello, 462 U.S. at 164, 103 S.Ct. at 2290; Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 671 n. 1 (9th Cir.1988); Proudfoot v. Seafarer’s Int’l. Union, 779 F.2d 1558, 1559 (11th Cir.1986). These causes of action are symbiotic; a hybrid plaintiff must “prove both that the employer violated its contract and that the union breached its duty, since the two claims are inextricably linked.” Demars v. General Dynamics Corp., 779 F.2d 95, 97 (1st Cir.1985); and see DelCostello, 462 U.S. at" }, { "docid": "10944957", "title": "", "text": "hearing was conducted by Joint Council No. 53, and a decision is still pending. DISCUSSION A. Section 301 Claims, Counts I and II. Section 301 of the Labor-Management Relations Act, 29 U.S.C. 185 provides that an individual employee may bring an action charging his employer with breach of the collective bargaining agreement and his union with violating its duty of fair representation in mishandling the resulting grievance. See Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct. 1048, 1057, 47 L.Ed.2d 231 (1976). Neither section 301 nor any other section of the LMRA states the statute of limitations applicable to these so-called Vaca-Hines actions. The Supreme Court recently held in Del Costello v. International Broth, of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) that the statute of limitations to be applied to section 301 actions was the six month statute of limitations contained in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (1976). Del Costello, supra at 2293-94. Del Costello overruled United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) which had held that the applicable statute of limitations was the 90 day statute of limitations contained in the Pennsylvania statute governing vacation of arbitration awards. Id., 103 S.Ct. at 2291. Subsequently, the Third Circuit Court of Appeals held that the ruling in Del Costello was to be applied retroactively and thus would bar any section 301 suit not brought within the six month statute of limitations. Perez v. Dana Corporation, 718 F.2d 581, 588, 114 L.R.R.M. 2814, 2820 (3d Cir.1983). Defendant argues that the six month statute runs from the date that plaintiff knew or should have known that Local 384 would not process her grievance to arbitration. Defendant Thrift-Rack’s Memorandum of Law in Support of the Motion to Dismiss or for Summary Judgment (“Defendant Thrift-Rack’s Memo”) at 6; Defendant Teamster’s Local # 384 Memorandum of Law in Support of the Motion to Dismiss or for Summary Judgment" }, { "docid": "3587291", "title": "", "text": "Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 199 and 202-03, 65 S.Ct. 226, 230 and 231-32, 89 L.Ed. 173 (1944), these sections do not provide expressly for a limitations period. Hence, we are required to borrow an appropriate statute of limitations. During the pendency of this appeal, the Supreme Court decided the ease of DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The Court in Del-Costello held that where an employee brought an action under the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq., against both his employer for breach of the collective bargaining agreement (29 U.S.C. § 185) and his union for breach of the duty of fair representation, the suit was governed by the six-month period of limitations mandated in § 10(b) of the NLRA, 29 U.S.C. § 160(b). Although the instant case does not arise under the NLRA, we nonetheless hold that on the particular facts of this case, where Barnett made claims against his employer and his union similar to those in DelCostello, the rationale of DelCostello requires the application of the six-month period under § 10(b) of the NLRA to Barnett’s cause of action. The Supreme Court has repeatedly held that when Congress has not expressly provided a statute of limitations governing federal statutory actions, a court must apply the most “‘appropriate state statute of limitations.’ ” United Parcel Service, Inc. v. Mitchell, supra at 60, 101 S.Ct. at 1560 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) and Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966)). This has been the approach followed by some courts when determining a limitations period for a duty of fair representation claim under the RLA. See Price v. Southern Pacific Transportation Co., 586 F.2d 750, 752-53 (9th Cir.1978); Brotherhood of Locomotive Firemen and Enginemen v. Mitchell, 190 F.2d 308, 313 (5th" }, { "docid": "10459432", "title": "", "text": "letter provided for EEOC review of the action, plaintiff never requested such a review. In summary, plaintiffs failure to file a timely complaint was not due to a false representation by any court, agency, or potential defendant. As a result, the circumstances of this case do not merit equitable tolling of the limitations period. Plaintiffs Title VII claims are therefore dismissed. B. Breach of Duty of Fair Representation Plaintiff alleges that Local 41 failed to represent him properly in his grievances against Roadway. Specifically, he alleges that Local 41 failed to address his grievances concerning job assignments, and that he had difficulty in communicating with the Local 41 business agent. Local 41 argues that this claim should be dismissed because it is barred by the six-month statute of limitations mandated by 29 U.S.C. § 160(b). Federal labor law gives rise to -a statutory duty on the part of a union to fairly represent all of its members. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967). The statutory duty of fair representation requires the union to represent employees in its bargaining unit “honestly and in good faith and without invidious discrimination or arbitrary conduct.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 564, 570, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). A union breaches its duty when its “conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. at 916. The Supreme Court, in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), held that the six-month limitations period set forth in § 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b), is the appropriate statute of limitations for such breach of duty claims. Section 10(b) sets out the statute of limitations for bringing unfair labor practice claims before the National Labor Relations Board. 29 U.S.C. § 160(b). The DelCostello Court noted the “family resemblance” between an unfair labor practice charge and a charge of breach of duty of fair" } ]
391524
the laws of New York was a forbidden use. It could not have been authorized on behalf of the United States by any action short of a Congressional enactment. There could be no Air Force undertaking or enterprise in the premises to which its personnel or equipment could be lawfully assigned and, in consequence, the absence of any defect in formal orders, the absence of any element of self interest on the part of the officers and the presence of an obvious public safety objective are irrelevant. They cannot bring the case within the narrow area in which agents of the government can be found to be acting within the scope of their employment although beyond their actual authority ( REDACTED . 173, 180-181, 76 S.Ct. 745, 100 L.Ed. 1065) because there was here no activity that could be authorized, no legally cognizable “scope of employment” to which the questioned conduct could be related. Cf. United States v. Alexander, 4 Cir.1956, 234 F.2d 861, 865; Sanchez v. United States, 10th Cir.1949, 177 F.2d 452; Ford v. Grand Union Company, 1935, 268 N.Y. 243, 246, 253, 197 N.E. 266; Burmaster v. State, 1959, 7 N.Y.2d 65, 68, 70, 195 N.Y.S.2d 385, 163 N.E.2d 742; Restatement, Agency Second, Sec. 229(e). It is, therefore, concluded that plaintiffs have not established that the injury to the infant plaintiff was incurred through the negligence of defendant’s officers and that plaintiffs have not established that the infant plaintiff’s personal injuries were caused
[ { "docid": "22091752", "title": "", "text": "was an attempt at any time to comply with the notice provisions of the Federal Range Code. For these reasons we hold that the Utah abandoned horse statute was not properly invoked. The circumstances of this case were specifically provided for by § 161.11 (b) of the Federal Range Code, and the government agents failed to comply with the terms of that section because the requisite notice was not given. But, having concluded that there was no statutory authority, we are faced with the question whether the Government is liable under the Federal Tort Claims Act for wrongful and tortious acts of its employees committed in an attempt to enforce a federal statute which they administer. We believe there is such liability in the circumstances of this case. Section 1346 (b) of Title 28, United States Code, authorizes suits against the Government for “loss of property . . . caused by the negligent or wrongful act . . . 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 . . . occurred.” It is clear that the federal agents here were acting within the scope of their •employment under both state and federal law. Under the law of Utah an employer is liable to third persons for the willful torts of his employees if the acts are committed in furtherance of the employer’s interests or if the use of force could have been contemplated in the employment. Cf. Barney v. Jewel Tea Co., 104 Utah 292, 139 P. 2d 878. Both of these conditions obtained here. The federal agents were attempting to enforce the federal range law, and such enforcement must contemplate at least the force used in removal of stock from the range. The fact that the agents did not have actual authority for the procedure they employed does not affect liability. There is an area, albeit a narrow one, in which a government agent," } ]
[ { "docid": "3721532", "title": "", "text": "BANK N Y ACCT BANKHAUS ID HERSTATT KGAA (App. 358). When Manufacturers transferred the money to Chase, Chase received a written credit slip at its computer terminal. That was notice to Chase of the assignment. Even if one assumes that Herstatt, not Chase, was the assignee, notice to Chase will be imputed to Herstatt. Chase was the paying and receiving agent of Herstatt, and notice to an agent is imputed to the principal. Farr v. Newman, 14 N.Y.2d 183, 187, 250 N.Y.S.2d 272, 199 N.E.2d 369 (1964). See also Nolan v. Williamson Music, Inc., 300 F.Supp. 1311, 1316 (S.D.N.Y.1960); Ford v. Grand Union Co., 268 N.Y. 243, 252, 197 N.E. 266 (1935). Delbrueck’s argument that Chase was not Herstatt’s agent after the declared bankruptcy will not stand. Herstatt had directed Chase to “take whatever action [Chase] felt advisable as a result of this information [i. e. the closing of Herstatt].” (App. 68). Thus, Chase’s freezing of payments out of Herstatt’s account was only Chase continuing to act within the scope of its agency relationship with Herstatt. Furthermore, the Restatement (Second) of Agency states: “The bankruptcy ... of the principal, of which the agent has notice, terminates his authority as to transactions which he should infer the principal no longer consents to have conducted for him.” (§ 114). Thus, where an agent has a specific contract which is vitiated by the principal’s bankruptcy, the agency is terminated. Lewis Sagal & Co. v. Smith, 35 F.2d 182, 183 (3d Cir. 1929). However, Chase (the agent) could infer in this case that Herstatt (the principal) would consent to Chase gathering payments for Herstatt’s account. Indeed, no inference is required because Her-statt specifically requested Chase to “take whatever action . . . advisable”. Chase’s authority to act as agent for Her-statt in receiving funds was not terminated by the bankruptcy. Sokoloff v. National City Bank, 250 N.Y. 69, 164 N.E. 745 (1928) is inapposite to this situation. That case dealt with whether or not an intermediary bank can be agent for both the transferor and the transferee. Here, Chase is agent for Herstatt and" }, { "docid": "849949", "title": "", "text": "one, in which a government agent, like a private agent, can act beyond his actual authority and yet within the scope of his employment. We note that § 1346(b) provides for liability for ‘wrongful’ as well as ‘negligent’ acts. Id. at 180-81, 76 S.Ct. at 751. Although the Government baldly asserts that the activities at issue here should fall outside Hatahley’s “narrow” range, it offers no principled way to distinguish the illegal intentional acts here from the illegal intentional acts for which the United States incurred liability in Hatahley. Therefore, this Court holds that the alleged activities set forth in the complaint fall within the purview of the waiver of sovereign immunity in Section 1346(b). The Court’s conclusion is reinforced by the jurisdictional trend in determining what acts fall within the scope of a person’s employment. Although in the past some courts found that an illegal act could not be within the scope of an agent’s employment because the employer could not authorize his employees to break the law, the modern and expanding view is to hold an employer liable for the intentional torts of his employees if the employee was motivated by a desire to help his employer, see Prosser, Law of Torts § 70 at 464-65 (4th ed. 1971), or if it is fair to shift the loss from the victim to the employer. See, e. g., Ira S. Bushey & Sons, Inc. v. United States, 276 F.Supp. 518 (E.D.N.Y.1967), aff’d, 398 F.2d 167 (2d Cir. 1968). But see Wrynn v. United States, 200 F.Supp. 457, 465 (E.D.N.Y.1961). Under either theory, this Court finds that the alleged acts, if proved, would be within the scope of the agents’ employment in this case. B. SECTION 2680(a): THE DISCRETIONARY FUNCTION EXCEPTION The Government’s second argument is that the decision to open plaintiff’s mail illegally stemmed from a discretionary function of the CIA and, thus, the United States cannot be held liable for damages caused by the non-negligent execution of that decision. 28 U.S.C. § 2680(a) provides an exception to the general waiver of sovereign immunity contained in 28 U.S.C. §" }, { "docid": "11874938", "title": "", "text": "discuss possible distinctions between a sale and a lease, or between a chattel and real property for the purposes of strict tort liability, because the doctrine of liability without fault does not apply in New York to a “defect” as notorious, open, and obvious as the alleged flaw in the construction of the EGH service station. This court has previously noted that the law of strict liability in New York applies only where the alleged defect which causes injury is a latent or hidden one, see Messina v. Clark Equipment Co., 263 F.2d 291 (2 Cir.), cert, denied 359 U.S. 1013, 79 S.Ct. 1150, 3 L.Ed.2d 1037 (1959). Thus in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), the New York Court of Appeals affirmed the dismissal of a complaint against the manufacturer of a machine on the ground that the alleged defect, absence of a safety guard, was known to the plaintiff. That position was reaffirmed in Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895, 59 A.L.R.2d 1072 (1957), a case which, like the present one, involved a suit against the lessor of real property for injuries allegedly caused by the absence of a safety device from a portion of the demised premises. While recent decisions of the New York Courts have tended towards a broader base for application of the doctrine, see Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963), these cases in no way suggest that the doctrine should apply to a situation involving an obvious and known defect. Therefore, we conclude that the trial court properly refused to submit to the jury the case against American on the strict tort theory. The judgments are affirmed. . Plaintiff’s action against the other named defendants was withdrawn by motion before trial. . In fact all indications are that the foot-brake was fully operative at such times. Thus when I-Cronitz started from his home, the brake was" }, { "docid": "18170189", "title": "", "text": "respectively, on the commission of a tort within New York state or outside New York state where the act causes injury within the state, where certain commercial criteria are met. Miller asserts that the Complaint fails to present any facts or evidence to demonstrate that Miller falls within the scope of any of the cited subsections of CPLR 302(a), in that any action he took was solely in his capacity as Administrator of Dana U.K. and not in his “personal capacity.” Any contacts sufficient to support jurisdiction were therefore, he argues, those of Dana U.K. rather than of Miller personally. The New York State Court of Appeals has rejected the “fiduciary shield” doctrine as a basis for insulating corporate officers or employees from the exercise of personal jurisdiction over them in connection with claims premised on actions taken in a representative capacity. See CPC International Inc. v. McKesson Corp., 70 N.Y.2d 268, 519 N.Y.S.2d 804, 813-14, 514 N.E.2d 116 (N.Y.1987) (no fiduciary shield from CPLR 302(a)(2) jurisdiction); Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40 (1988); see also Retail Software Services v. Lashlee, 854 F.2d 18 (2d Cir.1988). Such jurisdiction can be asserted where the acts of the corporation are attributable to the representative on an agency theory. Agency is properly found if the corporate entity “engaged in purposeful activities within this state in relation to [the] transaction for the benefit of and with the knowledge and consent of the [individual] and ... [the individual] exercised some control over [the corporate entity] in the matter.” Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d 195, 522 N.E.2d 40. Here, Plaintiffs allege that Dana U.K. (by virtue of his status as its Administrator) and Miller transacted business in New York by entering into and performing the U.K. Agreement, under which certain assets of Dana U.K. (including assets relating to Houbigant’s licensed products) were transferred to non-licensed third parties. Plaintiffs point out that the transaction document called for a closing and payments in New York, and that title passed through a New York entity. Plaintiffs also point" }, { "docid": "288241", "title": "", "text": "93, 335 N.E.2d 310, 313 cert, denied, Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). Regarding the second element, i. e., awareness of confinement, it has been held in New York that where a person by incompetency or infancy has no such will as enables him to exercise intelligent and legal volition as to his custody, the action may be predicated upon his restraint or removal against the will of the party having his legal custody. Barker v. Washburn, 200 N.Y. 280, 284, 93 N.E. 958 (1911). Plaintiff must establish such constituent elements by a fair preponderance of the credible evidence in order to recover for false imprisonment. Wiltse v. State, 51 A.D.2d 865, 866, 380 N.Y.S.2d 175, 176 (1976); Carrol v. Gimbel Bros., 195 A.D. 444, 450, 186 N.Y.S. 737, 742 (1921). The unlawful taking or withholding of a minor child from the custody of the parent entitled to such custody is a tort. A parent not entitled to custody has no privilege to interfere with the legal custody of the child. Abdul-Rahman Omar Adra v. Clift, 195 F.Supp. 857, 862 (D.C.Md.1961). It is apparent to the court by a fair preponderance of the credible evidence that on November 3, 1977, defendant Fabian did unlawfully take, with the intent to keep, the infant plaintiff from his mother in California who was awarded legal custody. The false imprisonment and unlawful detention continued and became even more apparent when on November 19, 1977, defendant Fabian took the infant from New York and flew to Yugoslavia where he and the child have remained. As a general rule, any imprisonment which is not justifiable is a false imprisonment, and subjects those responsible to an action in tort for damages. Vernes v. Phillips, 266 N.Y. 298, 300, 194 N.E. 762 (1935); Grago v. Vassello, 173 Misc. 736, 739, 19 N.Y.S.2d 34, 37 (1940). Accordingly, all those who by direct act or indirect procurement, personally participate in, or proximately cause, the false imprisonment or unlawful detention are liable therefor. Burns v. Erben, 40 N.Y. 463, 466 (1879); Kaye v. Shane," }, { "docid": "17094324", "title": "", "text": "the discretionary function exception. Central to our decision today is that Agent Erwin had no authority to issue orders to the non-FBI law enforcement officers. If, in contrast, he had possessed such authority, and if we had determined that his tactical decisions were performances of a discretionary function, then plaintiffs would not be able to press their claim simply by stating that those decisions violated practices like containment, coordination, and establishment of a command post. Those are tactical guidelines and do not address the agent's authority. . Under the Federal Tort Claims Act, the United States is liable only when the tort is committed by a government employee \"acting within the scope of his office or employment.” 28 U.S.C. § 1346(b) (1982). Although Erwin had no authority to take command, he was nevertheless acting within the scope of his office when he did so. ‘There is an area, albeit a narrow one, in which a government agent, like a private agent, can act beyond his actual authority and yet within the scope of his employment.\" Hatahley v. United States, 351 U.S. 173, 181, 76 S.Ct. 745, 751, 100 L.Ed. 1065 (1956). According to Minnesota law, a finding that an employee’s act of negligence was within his scope of employment will be made when it is shown that his conduct was \"to some degree, in furtherance of the interests of his employer.\" Additionally, courts will consider whether “the conduct is of the kind that the employee is authorized to perform and whether the act occurs substantially within authorized time and space restrictions.” Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (Minn.1979). Erwin was engaged in law enforcement, and he had been sent to the reservaonly in order to assess the situation and direct the other FBI his superior officer. He was, quite plainly, acting within the scope of his employment. .Despite its concession in the Joint Statement that Erwin had no authority to issue orders to the BIA and local law enforcement personnel, the government suggests the contrary proposition in its brief, citing the following exchange from the deposition of" }, { "docid": "18457453", "title": "", "text": "(1955). . Section 35 has been adopted as the law in both New York and Pennsylvania. Compare Burke v. Bonat, 255 N.Y. 226, 229, 174 N.E. 635 (1931), with Starling v. West Erie Ave. B. & L., 333 Pa. 124, 3 A.2d 387, 388 (1939). . Compare Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968), with Ford v. Unity Hospital, 32 N.Y.2d 464, 472, 346 N.Y.S.2d 238, 244, 299 N.E.2d 659, 664 (1973). . Section 161 is clearly the law in Pennsylvania. See, e. g., Rednor & Kline, Inc. v. Department of Highways, 413 Pa. 119, 124, 196 A.2d 355, 358 (1964); Diuguid v. Bethel African Meth. Church, 119 Pa.Super. 493, 497, 180 A. 737, 738 (1935); Anthony P. Miller, Inc. v. Needham, 122 F.2d 710, 712-13 (3d Cir. 1941); Waldron v. Aetna Cos. & Sur. Co., 141 F.2d 230, 234-35 (3d Cir. 1944). Its status in New York is less certain as we have not been able to find a case expressly adopting it as the law of New York. Cf. Lind v. Schenley Ind. Inc., 278 F.2d 79, 85 (3d Cir. 1960). The Appendix to the Restatement (Second) of Agency does cite one case, Lightbody v. North American Ind. Co., 23 Wend. 18 (N.Y.1840), where a New York court bound the principal to the unauthorized act of its agent though no evidence of apparent authority existed. But cf., Ford v. Unity Hospital, 32 N.Y.2d 464, 472, 346 N.Y.S.2d 238, 244, 299 N.E.2d 659, 664 (1973): One who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority. . Cf. Restatement (Second) of Agency §§ 399-401 (1958). . We are cognizant of GE’s forceful argument that Supplement 16 represents the product of long negotiations as a result of which both parties were required to give as well as take. We discuss that argument infra, nn. 45-47 and accompanying text. . Our qualms are exacerbated because of our realization that were we to decide as a matter of law at this juncture that Ebasco" }, { "docid": "23569092", "title": "", "text": "184 N.Y.S.2d 161 (1959), aff’d, 11 A.D.2d 1047, 206 N.Y.S.2d 355 (1960); 1 Restatement of Torts § 35. Thus, this claim is barred by 28 U.S.C. § 2680(h). Klein v. United States, 268 F.2d 63 (2 Cir. 1959). In our view of this portion of the complaint we do not have to pass upon the government’s claim that the action is barred because the acts complained of were within the “discretionary function” provision of 28 U.S.C.A. § 2680(a). Cf. Morton v. United States, 97 U.S.App.D.C. 84, 228 F.2d 431 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845 (1956). Appellant also charges mistreatment at the hands of employees of Bellevue Hospital, who were, of course, not federal personnel, while she was held there. Under ordinary principles of tort law, liability can be imposed for the acts of a third person in these circumstances only if the negligence is the “proximate cause” of the injury or, better put, only where such acts are among the foreseeable consequences of defendant’s conduct. 2 Harper & James, Torts, § 18.2 (1956). This principle is obviously applicable to suits under the Federal Tort Claims Act. United States v. Hutchins, 268 F.2d 69, 83 A.L.R.2d 447 (6 Cir. 1959); Voytas v. United States, 256 F.2d 786 (7 Cir. 1958). In the absence of an allegation that agents of the United States knew or should have known that injuries were likely to be inflicted on plaintiff while she was at Bellevue, the complaint in this regard is insufficient. The third portion of the complaint alleges failure of officers and employees of the Veterans Hospital of the Bronx to treat plaintiff for “recurrent fevers” and “fever of undetermined origin.” Instead, it is alleged, employees of the hospital “applied other psychological pressures to plaintiff.” The question here is whether this decision of the Veterans Hospital officials to examine for psychiatric symptoms rather than fever symptoms was a decision that involved the “discretionary function” exception of section 2680(a). We are convinced that each case in this area must stand on its own record. Recently we held: “There" }, { "docid": "15891474", "title": "", "text": "the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise of performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” It is well settled, however, that where the wrongful acts and omissions of the government do not involve discretionary functions or duties but involve rather the performance of operational details, the government cannot claim the exemption from- liability provided by Title 28 U.S.C.A. § 2680(a). Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065; Somerset Seafood Co. v. United States, 4 Cir., 193 F.2d 631; Eastern Air Lines v. Union Trust Company, 95 U.S.App.D.C. 189, 221 F.2d 62; Pierce v. United States, D.C., 142 F.Supp. 721, affirmed 6 Cir., 235 F.2d 466. 8. In arriving at the damages in an action for wrongful death it is proper to consider the pecuniary loss, mental shock and suffering, wounded feelings, grief and sorrow, loss of companionship, deprivation of the comfort of the intestate’s society and the loss of his experience, knowledge and judgment in managing his own affairs and those of his beneficiaries. Greene v. Miller, D.C., 114 F.Supp. 150; Mishoe v. Atlantic C. L. R. Co., 186 S.C. 402, 197 S.E. 97. 9. Applying the foregoing principles of law and statutes to the facts in this-case, I conclude that the stream of electricity which struck the plaintiff’s intestate, his resulting injuries and death, and the damages to plaintiff as administra-trix of the estate of Coker Hardy, deceased, were caused by the negligence of the defendant, acting by and through its agents and employees within the course and scope of their employment. 10. That the negligence of the defendant, by and through its agents, servants and employees, acting within the scope of their employment, was the direct and proximate cause of the stream of electricity coming in contact with the plaintiff’s intestate and his resulting injuries" }, { "docid": "13109993", "title": "", "text": "Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)); Vera, 335 F.3d at 114-15. This, in turn, depends on the “legal character” of the state law claim and whether it is truly independent of rights under the collective bargaining agreement. Livadas v. Bradshaw, 512 U.S. 107, 123-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994); Foy v. Pratt Whitney Group, 127 F.3d 229, 234 (2d Cir.1997). Accordingly, “the stating point in determining whether a claim is preempted by Section 301 is consideration of the elements of plaintiffs stated claim.” Zuckerman v. Volume Services America, Inc., 304 F.Supp.2d 365, 370 (E.D.N.Y.2004). To establish a negligence claim under New York law, the plaintiff would be required to show that the defendants breached a duty of care owed to the plaintiff and that the breach was a substantial factor in bringing about damage to the plaintiff. In re New York City Asbestos Litigation, 5 N.Y.3d 486, 806 N.Y.S.2d 146, 840 N.E.2d 115, 119 (2005); Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99, 99-100 (1928). New York State law provides for employment at will. Arledge v. Stratmar Systems, Inc., 948 F.2d 845, 847 (2d Cir.1991). “An employer has the right to terminate employment at will at any time and for any reason or no reason, except as that right may have been limited by express agreement with the employee or in a collective bargaining agreement of which the employee is a beneficiary.” O’Connor v. Eastman Kodak Co., 65 N.Y.2d 724, 492 N.Y.S.2d 9, 481 N.E.2d 549 (1985); see also Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 851 (2d Cir.1985). If Salamea was an at will employee, she could be terminated for any reason or no reason at all, and the defendants would have no duty to investigate her complaints and could rely upon even false supervisory statements for her termination. Therefore, if the defendants owed any duty of care to Salamea, that duty arose from the CBA’s requirement that an employee not be terminated without just cause. Thus, this case is governed by Allis-Chalmers Corp. v. Lueck, 471 U.S." }, { "docid": "3059279", "title": "", "text": "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.” In Hatahley v. United States, 351 U.S. 173, at page 180, 76 S.Ct. 745, at page 751, 100 L.Ed. 1065, the Supreme Court held that under appropriate circumstances the Government was liable under the Tort Claims Act “for wrongful and tor-tious acts of its employees committed in an attempt to enforce a federal statute which they administer.” There Government agents, acting to enforce the Taylor Grazing Act, 43 U.S. C.A. § 315 et seq., wrongfully seized and destroyed or sold a large number of horses and burros owned by the plaintiffs who were Indians, claiming that this stock was unlawfully grazing on a federal range. The court held that the Government was liable for these tortious acts in the nature of trespass and affirmed a recovery against the Government for the wrongs so committed. It stated, 351 U.S. at page 180, 76 S.Ct. at page 751: “ * * * It is clear that the federal agents here were acting within the scope of their employment under both state and federal law. Under the law of Utah an employer is liable to third persons for the willful torts of his employees if the acts are committed in furtherance of the employer’s interests or if the use of force could have been contemplated in the employment. Cf. Barney v. Jewel Tea Co., 104 Utah 292, 139 P.2d 878. Both of these conditions obtained here. The federal agents were attempting to enforce the federal range law, and such enforcement must contemplate at least the force used in removal of stock from the range. The fact that the agents did not have actual authority for the procedure they employed does not affect liability. There is an area, albeit a narrow one, in which a government agent, like a private agent, can act beyond his" }, { "docid": "23569091", "title": "", "text": "to exercise or perform a discretionary function or duty on the part of a federal agency or an-employee of the Government, whether- or not the discretion involved be abused,”' or for those “arising out of assault, battery, false imprisonment, false arrest”' and other intentional torts. While the allegations in this-complaint concerning the visit to the Veterans Hospital in New York City charge-wanton and wilful “negligence” over and. over again, the actual facts pleaded make; out a claim for false imprisonment. It is, of course, the substance of the claim, and not the language used in stating it, that controls. Klein v. United States, 268 F.2d 63 (2 Cir. 1959); Miller Harness Co. v. United States, 241 F.2d 781 (2 Cir. 1957). Here the basis of the claim is the intentional detention of the plaintiff and the refusal to permit her to leave the Veterans Hospital before the agents from Bellevue arrived. False imprisonment means wrongful or unlawful detention. Schultz v. Greenwood Cemetery, 190 N.Y. 276, 83 N.E. 41 (1907); Guzy v. Guzy, 16 Misc.2d 975, 184 N.Y.S.2d 161 (1959), aff’d, 11 A.D.2d 1047, 206 N.Y.S.2d 355 (1960); 1 Restatement of Torts § 35. Thus, this claim is barred by 28 U.S.C. § 2680(h). Klein v. United States, 268 F.2d 63 (2 Cir. 1959). In our view of this portion of the complaint we do not have to pass upon the government’s claim that the action is barred because the acts complained of were within the “discretionary function” provision of 28 U.S.C.A. § 2680(a). Cf. Morton v. United States, 97 U.S.App.D.C. 84, 228 F.2d 431 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845 (1956). Appellant also charges mistreatment at the hands of employees of Bellevue Hospital, who were, of course, not federal personnel, while she was held there. Under ordinary principles of tort law, liability can be imposed for the acts of a third person in these circumstances only if the negligence is the “proximate cause” of the injury or, better put, only where such acts are among the foreseeable consequences of defendant’s conduct. 2 Harper &" }, { "docid": "18775919", "title": "", "text": "liable to the claimant in accordance with the law of the place where the act or omission occurred. 2. The substantive law that governs this action is that of New York State, which is “the place where the act or omission occurred.” 28 U.S.C. § 1846(b). Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 752, 100 L.Ed. 1065 (1956); see Goodkin v. United States, 773 F.2d 19 (2d Cir.1985). 3. To make out a case of negligence against the Government, plaintiffs have the burden of proving that: (i) the Government had a duty to him, (ii) the Government breached that duty, and (iii) as a result of that breach, plaintiff Mr. Battista suffered an injury. Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 648, 424 N.E.2d 531, 535 (1981); Iannelli v. Powers, 114 A.D.2d 157, 498 N.Y.S.2d 377, 380 (2d Dep’t 1986). 4. To establish liability plaintiffs must show that the Government’s alleged wrongful conduct was the proximate cause of Mr. Battista’s injury. See O’Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 145, 477 N.E.2d 445, 447 (1985). Such a showing requires proof that the Government created a continuous force active up to the time of the event that caused the injury. Mack v. Altmans Stage Lighting Co., Inc., 98 A.D.2d 468, 470 N.Y.S.2d 664, 666-67 (2d Dep’t 1984). 5. We find that the negligence alleged by the plaintiffs that (1) there was no gate or railing at the entrance to the lookout gallery; (2) the lookout gallery had inadequate lighting; and (3) that the Government failed to warn Mr. Battista of an unsafe condition was proven at trial and constituted the proximate cause of the accident. Ordonez v. LIRR, 112 A.D.2d 923, 492 N.Y.S.2d 442, 443 (2d Dep’t 1985); Wagshall v. Wagshall, 148 A.D.2d 445, 538 N.Y.S.2d 597, 598- 99 (2d Dep’t), appeal dismissed in part and denied in part, 74 N.Y.2d 781, 545 N.Y.S.2d 101, 543 N.E.2d 744 (1989); Ascher v. F. Garafolo Elec. Co., Inc., 113 A.D.2d 728, 493 N.Y.S.2d 196, 197-98 (2d Dep’t 1985), aff'd, 67 N.Y.2d" }, { "docid": "11244148", "title": "", "text": "These acts were early interpreted to exclude any actions sounding in tort. Gibbons v. United States, 1869, 8 Wall. 269, 19 L.Ed. 453; Schillinger v. United States, 1894, 155 U.S. 163, 15 S.Ct. 85, 39 L.Ed. 108. Immunity of the United States to suits in tort was waived in 1946 when the Federal Tort Claims Act was enacted conferring on the district courts: “* * * exclusive jurisdiction of civil actions on claims against, the United States, for money damages, accruing on and after January 1, 1945, 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). The act was primarily directed towards eliminating the congressional preoccupation with the enactment of private bills compensating individuals for losses sustained as a result of the negligent torts of government employees. S.Rep. No. 1400, 79th Cong., 2d Sess. (1946). However, the act was written broadly to include losses “caused by the negligent or wrongful act or omission of any employee of the government.” (Emphasis supplied.) See Hatahley v. United States, 1956, 351 U.S. 173, 181, 76 S.Ct. 745, 100 L.Ed. 1065. Aleutco’s claim is for an amount in excess of $10,000. That being so, the District Court could entertain the action only if it was one in tort cognizable under the Federal Tort Claims Act. In deciding whether the action is one in tort, the nature of the complaint against the United States must be determined. Cf. Nicholson v. United States, 5 Cir., 1949, 177 F.2d 768; United States v. Scrinopskie, 5 Cir., 1950, 179 F.2d 959; Aktieboleget Bofors v. United States, D.C.D.C.1950, 93 F.Supp. 131, affirmed 1951, 90 U.S.App.D.C. 92, 194 F.2d 145; Fulmer v. United States, D.C.N.D.Ala.1949, 83 F.Supp. 137. The fact that the claimant and the United States were in a" }, { "docid": "12366583", "title": "", "text": "sufficient to give rise to the inference that the power of attorney was effectively revoked prior to its exercise. Cf. Restatement 2d, Agency § 134, comment c (principal may notify agent of termination of authority by giving notification to an agent of the agent). Consequently, any appearance on plaintiff’s behalf by the Mexican lawyer named in the power of attorney would be unauthorized and the divorce obtained by defendant could be found to have been invalid by the New York courts. B. Tortious Injury Plaintiff states a cause of action for fraud in inducing her to marry defendant. Her complaint sets forth all the requisite elements of a claim of fraud — false representations, scienter, reliance, injury. Under New York law, it has long been established that fraud in inducing a person to enter into marriage is actionable. See, e. g., Leventhal v. Lieberman, 262 N.Y. 209, 186 N.E. 675, 88 A.L.R. 782 (1933) (action by divorcee against former in-laws); Kujek v. Goldman, 150 N.Y. 176, 44 N.E. 773, 34 L.R.A. 156 (1896) (action against third party for inducing marriage); Damages for Fraud Inducing Marriage and Declarations of Trust, N.Y. Law Journal, June 19, 20, 21, 1956, p. 4, col. 1. Cf. Tuck v. Tuck, 14 N.Y.2d 341, 251 N.Y.S.2d 653, 200 N.E.2d 554 (1964) (sham marriage ceremony; “wife” has cause of action for fraud against “husband”). Such an action may be maintained by one spouse against the other, whether they are still married or have been divorced. See, e. g., Becker v. Becker, 207 Misc. 17, 138 N.Y.S.2d 397 (Sup.Ct.1954); Risikoff v. Risikoff, 120 N.Y.S.2d 776, 777-778 (Sup.Ct.1953) (dictum); Saunders v. Saunders, 63 N.Y.S.2d 880, 882 (Sup.Ct.1946); Amsterdam v. Amsterdam, 56 N. Y.S.2d 19 (Sup.Ct.1945) (action for damages and to declare marriage void); cf. N.Y. General Obligations Law, McKinney’s Consol. Laws, c. 24-A, § 3-313. The plaintiff may seek both a declaration that the judgment is void and damages resulting from the procurement of the fraudulent judgment. N.Y.CPLR § 3002(e). We need not consider whether, were the divorce decree rendered in another state, full faith and credit would' mandate" }, { "docid": "849948", "title": "", "text": "on their own time; they were paid by the United States for that purpose. In order to sustain its argument, the Government relies heavily on Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956). However, such reliance is misplaced. If anything, the holding in Hatahley supports the plaintiff’s position here. In Hatahley, agents of the Interior Department rounded up and destroyed horses which belonged to a group of Indians. At the time, the agents were purportedly acting pursuant to a state abandoned horse statute but they failed to give the Indians notice of their intended actions, as required by federal law. 351 U.S. 177-80, 76 S.Ct. 745. Thus, the intentional acts of the government agents were illegal. Nevertheless, the Court held that they were acting within the scope of their employment under federal law. Id. at 180, 76 S.Ct. 745. The Court explained that: The fact that the agents did not have actual authority for the procedure they employed does not affect liability. There is an area, albeit a narrow one, in which a government agent, like a private agent, can act beyond his actual authority and yet within the scope of his employment. We note that § 1346(b) provides for liability for ‘wrongful’ as well as ‘negligent’ acts. Id. at 180-81, 76 S.Ct. at 751. Although the Government baldly asserts that the activities at issue here should fall outside Hatahley’s “narrow” range, it offers no principled way to distinguish the illegal intentional acts here from the illegal intentional acts for which the United States incurred liability in Hatahley. Therefore, this Court holds that the alleged activities set forth in the complaint fall within the purview of the waiver of sovereign immunity in Section 1346(b). The Court’s conclusion is reinforced by the jurisdictional trend in determining what acts fall within the scope of a person’s employment. Although in the past some courts found that an illegal act could not be within the scope of an agent’s employment because the employer could not authorize his employees to break the law, the modern and expanding view is" }, { "docid": "8954408", "title": "", "text": "head on the sandy bottom, and suffered the most seri ous kind of injury — permanent quadriplegic paralysis. As a result of this accident, Caraballo sued the government for negligence pursuant to the Federal Tort Claims Act. The trial court calculated his damages at $3.9 million, and having found plaintiff 70 percent negligent and the government 30 percent negligent, awarded plaintiff $1,170,-808.50. In determining that the government was 30 percent negligent, the district judge concluded that the government had failed adequately to warn that swimming and diving were prohibited. He found that whatever signs were present in the area were insufficient to warn the public — particularly the Hispanics who were heavy users of the area. The district court also credited plaintiffs witnesses who testified that there were inadequate patrols on the beach and found the wood piling to be an “attractive nuisance.” In its appeal from the judgment, the government contends that plaintiffs reckless conduct was the sole proximate cause of his injury, that it had no duty to warn the plaintiff about the wood piling, and that the “discretionary function exception,” 28 U.S.C. § 2680(a) (1982), bars this suit. II In considering the government’s arguments, we begin by observing that in waiving its sovereign immunity under the Federal Tort Claims Act, the United States is liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674 (1982). Under the Act, the law of the state where the tort occurred applies. 28 U.S.C. § 1346(b); Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 752, 100 L.Ed. 1065 (1956); Montellier v. United States, 315 F.2d 180, 185 (2d Cir.1963). Because this incident occurred in New York, the law of that State controls. A landowner in New York, such as the United States Park Service, must maintain its property in a reasonably safe condition under the circumstances. Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976). To prove that the government was negligent in maintaining the beach where plaintiff was injured in Gateway" }, { "docid": "18775918", "title": "", "text": "the ladder. Tr. 37. 42. Shortly after the accident, Mr. Battis-ta told Joseph Pessolano, the emergency medical services technician, that he slipped and fell off of a ladder. Pessolano Decl. ¶ 4; PX-11. 43. Shortly after the accident, Mr. Battis-ta also told William Loweth, the USPS employee who investigated the accident, that he slipped off the ladder. According to Low-eth’s report, prepared the day of the accident, Mr. Battista “slipped off the ladder and fell to the base of the ladder.” PX-2 (Narrative Description of the Accident). DISCUSSION Liability 1. As noted, this personal injury action is brought under the FTCA, which provides in relevant part: [T]he district courts ... shall have exclusive jurisdiction of 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. 2. The substantive law that governs this action is that of New York State, which is “the place where the act or omission occurred.” 28 U.S.C. § 1846(b). Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 752, 100 L.Ed. 1065 (1956); see Goodkin v. United States, 773 F.2d 19 (2d Cir.1985). 3. To make out a case of negligence against the Government, plaintiffs have the burden of proving that: (i) the Government had a duty to him, (ii) the Government breached that duty, and (iii) as a result of that breach, plaintiff Mr. Battista suffered an injury. Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 648, 424 N.E.2d 531, 535 (1981); Iannelli v. Powers, 114 A.D.2d 157, 498 N.Y.S.2d 377, 380 (2d Dep’t 1986). 4. To establish liability plaintiffs must show that the Government’s alleged wrongful conduct was the proximate cause of Mr. Battista’s injury. See O’Toole v. Greenberg," }, { "docid": "849961", "title": "", "text": "that decision and is entitled to present evidence which he maintains leads to the conclusion that the CIA’s activities were illegal at the time that they occurred. Whether or not the government should be liable for illegal acts carried out by employees acting in good faith is not an issue before the court at this time. See generally Hatahley v. United States, 351 U.S. 173, 176, 76 S.Ct. 745, 100 L.Ed. 1065 (1956). . According to Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955), the law of the place where the act occurred determines the scope of an officer’s employment. In this case, that place is apparently New York. This Court has not been able to discover any New York cases directly on point, a fact which is not surprising considering that it is only recently that the public has become aware of the extent of the CIA’s domestic activities. Each case must necessarily turn upon its own facts and the specific tort alleged. Due to the lack of explicitly controlling New York law, I have referred to more general common law. Nevertheless, the practice in New York seems to be in line with the modern trend. See, e. g., De Wald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430 (1948). Cf. Osipoff v. City of New York, 286 N.Y. 422, 36 N.E.2.d 646 (1941). . This Court’s research has only disclosed one published opinion which held that § 2680(a) barred a suit for damages caused by the illegal decision of a government official. In Kiiskila v. United States, 466 F.2d 626 (7th Cir. 1972), a military base commander had unconstitutionally excluded the plaintiff from her job on a military base. The court held that a commander has wide discretion to exclude people from his.base. It thus felt that § 2680(a) precluded a claim for damages based on the unconstitutional exercise of that discretion. The Kiiskila court did not make reference to Hatahley, supra. Kiiskila is not controlling in this Circuit and I decline to follow it. I am also aware of three other" }, { "docid": "849947", "title": "", "text": "accordance with the law of' the place where the act or omission occurred. The thrust of the Government’s argument is that because the covert mail opening program was illegal, the CIA agents involved could not have been legally authorized to carry out these activities. Consequently, as a matter of law, the agents were not “acting within the scope of [their] office or employment”, as that phrase is used in Section 1346(b), and, thus, the complaint must be dismissed. One’s immediate response to this argument is that it misconceives the obvious purpose of the phrase in Section 1346(b). The dichotomy between an act within and without the scope of an officer’s employment was set up to prevent the United States from being liable for acts committed by its employees when they were not on duty; not to prevent liability for acts, albeit illegal ones, directly committed as a part of the employee’s job. See generally United States v. Romitti, 363 F.2d 662 (9th Cir. 1966). Obviously, the agents who opened plaintiff’s mail were not doing so on their own time; they were paid by the United States for that purpose. In order to sustain its argument, the Government relies heavily on Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956). However, such reliance is misplaced. If anything, the holding in Hatahley supports the plaintiff’s position here. In Hatahley, agents of the Interior Department rounded up and destroyed horses which belonged to a group of Indians. At the time, the agents were purportedly acting pursuant to a state abandoned horse statute but they failed to give the Indians notice of their intended actions, as required by federal law. 351 U.S. 177-80, 76 S.Ct. 745. Thus, the intentional acts of the government agents were illegal. Nevertheless, the Court held that they were acting within the scope of their employment under federal law. Id. at 180, 76 S.Ct. 745. The Court explained that: The fact that the agents did not have actual authority for the procedure they employed does not affect liability. There is an area, albeit a narrow" } ]
65036
with the Amended Plea Agreement, petitioner’s Guideline range was reduced to 121 to 151 months from 135 to 168 months. See Transcript of Sentencing Proceeding dated April 13, 2000 (“Second Sentencing Transcript”) at 2. This Court thereafter sentenced petitioner at the bottom of this range to 121 months on April 13, 2000. See id. at 4. DISCUSSION At the outset, petitioner’s claim is procedurally barred because he has waived his right to appeal the imposition of any sentence within the stipulated Guideline range. See United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.1993), cert. denied 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993). While petitioner claims that such waiver was not entered into knowingly and voluntarily, see REDACTED this Court finds such claim entirely without merit. At petitioner’s plea hearing, Judge Pit-man asked several specific questions to determine whether petitioner fully understood these proceedings. See Plea Transcript at 2. Accordingly, Judge Pitman found that petitioner was fully competent and aware of the consequences of his guilty plea, and that his understanding of the proceedings was not inhibited by any extraneous factor, like a limited educational background, the provision of inhibiting medical care, or a lack of translation of the proceedings. See id. at 11-14. Moreover, Judge Pitman explicitly provided petitioner with notice that he was giving up any right to appeal a sentence within the Guideline range of 135 to 168 months, and petitioner stated that he understood
[ { "docid": "23358926", "title": "", "text": "the plain language of this waiver provision, Pepshi now contends that his sentence should be vacated (1) because he received ineffective assistance of counsel at sentencing given his attorney’s failure to seek enforcement of the agreement to avoid the use of multiple grouping analysis in calculating Pepshi’s guideline range, and (2) because the district court erred in holding that only 18 months of Pepshi’s incarceration would run concurrently with his New Jersey state sentence. The government responds that the defendant is baried from appealing his sentence because he knowingly and voluntarily waived his right to appeal a sentence within the stipulated Guidelines range of 57 to 71 months. We agree. II. It is by now well-settled that a defendant’s knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable. See United States v. Chen, 127 F.3d 286, 289-90 (2d Cir.1997) (noting that “[t]he right to appeal may be waived as part of a plea agreement,” but declining to enforce a waiver that was not knowing and voluntary); United States v. Rosa, 123 F.3d 94, 97 (2d Cir.1997) (enforcing voluntary waiver even where the plea agreement specified that defendant would not appeal any sentence within or below the guidelines range “as determined by the Court”); United States v. Maher, 108 F.3d 1513, 1531 (2d Cir.1997) (refusing to address defendants’ sentencing contentions where both defendants were sentenced in accordance with their plea agreements); United States v. Ready, 82 F.3d 551, 555-57 (2d Cir.1996) (declining to enforce waiver where district court had instructed the defendant that his waiver of the right to appeal was “a limited one”); United States v. Yemitan, 70 F.3d 746, 747-48 (2d Cir.1995) (holding that appeal was foreclosed by plea agreement where district court imposed a sentence within the range stipulated by the agreement); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.1993) (per curiam) (“In no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a" } ]
[ { "docid": "12230143", "title": "", "text": "747 (2d Cir.1995); see also United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.1993) (“In no circumstances ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.”). Defendant maintains that the waiver of his right to appeal was not knowing and voluntary because the waiver provision of the plea agreement “was not adequately explained in open court during the Rule 11 hearing.” This claim, however, is belied by the record. During the course of the Rule 11 proceeding, the following colloquy took place between Magistrate Judge Peck and defendant: The Court: There is a plea agreement letter with the government that has been handed up to me. It is dated April 20 on the first page, and you and [defense counsel] signed it today. That plea agreement letter says—and I want to make sure you understand that by signing it you agree not to appeal or in any other way challenge any sentence imposed upon you by Judge Rakoff if it is within or below the range set out in the letter, that is to say, if it is within or below the range of 120 to 135 months, then you cannot appeal. But if Judge Rakoff were to sentence you to more than 135 months’ imprisonment and you believed that there was a legal or other error in him doing that, you would then have the right to appeal to the Second Circuit Court of Appeals with respect to that. Do you understand that? Defendant: Yes, your Honor I understand that. The Court: Do you understand that even if the sentence Judge Rakoff gives you is more severe than whatever you may be thinking or hoping in your head is the sentence you are going to get, you are still going to be bound by [ ] your guilty plea and not be permitted to withdraw it?.... DefendaNt: Yes, your Honor. This colloquy adequately establishes that defendant understood the terms of his" }, { "docid": "7611937", "title": "", "text": "hearing. See, e.g., United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.) (per curiam), cert. denied, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993) (“While [the defendant] did not object to this alleged violation of the plea agreement at the time of sentencing, there is no requirement that he do so.”). Thus, Lawlor’s claim is not barred by his failure to raise this issue with the District Court, nor are we bound to apply a plain error standard of review. “To determine whether a plea agreement has been breached, a court must look to what the parties reasonably understood to be the terms of the agreement,” and “any ambiguity should be resolved against the government.” United States v. Miller, 993 F.2d 16, 20 (2d Cir.1993). Moreover, “[bjecause plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to the most meticulous standards of both promise and performance.” United States v. Velez Carrero, 77 F.3d 11, 11 (1st Cir.1996) (internal quotation marks omitted). Lawlor first argues that the government breached the plea agreement by failing to object to the PSR’s use of Guideline § 2A2.4. In the plea agreement, the government specifically stipulated “that Section 2A2.3 of the Guidelines, Minor Assault, is applicable to Count One.” However, neither this stipulation nor any language in the remainder of the agreement obligated the government to bring the issue to the attention of Lawlor or the District Court at the sentencing hearing, or to object to the PSR on the defendant’s behalf. See Salcido-Contreras, 990 F.2d at 53 (holding that the government did not breach a plea agreement because “no provisions in the agreement remotely compel the government to justify to the court conclusions agreed to by the parties in the plea agreement or make any representations on [the defendant’s] behalf at sentencing”); cf. United States v. Peglera, 33 F.3d 412, 413 (4th Cir.1994) (noting that “the government’s duty in carrying out its obligations under a plea agreement is no greater than that of fidelity to the agreement”) (internal quotation marks omitted). Thus, the government’s" }, { "docid": "21091982", "title": "", "text": "we conclude that the apportionment selected by Judge Duffy violated the prescriptions of guideline 2J1.7, it does not necessarily follow that Stevens is entitled to have that aspect of his sentence corrected. This depends on whether Stevens waived appeal, which is discussed below. B. The Waiver Provision. The government contends that, by entering into the Stipulation, Stevens waived appeal of the apportionment required by § 3147 and guideline § 2J1.7. If Stevens agreed to the Stipulation, knowingly and voluntarily, we agree. The Stipulation expressly covers this allocation, and provides that “neither party will appeal a sentence ... that falls within the sentence/range offense level calculated above, even should the court ... reach that range/offense level by a guidelines analysis different from that set forth above.” Stevens argues that because the district court did not engage him in a colloquy to ascertain whether the waiver of his right to appeal was knowing and voluntary, we should hold the waiver provision invalid. The government does not directly address this contention in its brief, but relies upon United States v. Salcido-Contreras, 990 F.2d 51 (2d Cir.) (per curiam), cert. denied, — U.S. —, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993), in which we held that an agreement as to the appropriate sentencing range that contains a waiver-of-appeal provision is enforceable. Id. at 51; see also United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992). In Salcido-Contreras, we stated that: “In no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.” 990 F.2d at 53. However, in Salcido-Contreras, unlike the present case, the defendant “concede[d] that he knowingly and voluntarily waived his right to appeal if the sentence fell within the agreed range,” id. at 51-52, and the case accordingly did not reach the issue whether, in the absence of a specifically directed colloquy, a defendant may avoid enforcement of a waiver-of-appeal provision by contending that he did not agree to it knowingly and voluntarily." }, { "docid": "2547731", "title": "", "text": "counsel. United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir.1991). Since this issue “hinges on a variety of factors, including the defendant’s knowledge of English and the complexity of the proceedings and testimony, the trial judge, who is in direct contact with the defendant, must be given wide discretion.” Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.1989); see also Sanchez, 928 F.2d at 1455. Morales first contends that he was unable to comprehend his plea colloquy without an interpreter, and thus he did not knowingly and voluntarily waive his right to appeal his sentence. According to Morales, the following exchange demonstrates that it was difficult for him to comprehend his waiver: Q And if I [the district court] sentence you within the appropriate range, are you giving up or waiving your right to appeal your sentence on any ground and also agreeing not to contest your sentence in any post-conviction proceeding? A No. Q You’re not. Read paragraph M and see if you want to change that answer. (Conference between counsel and client, not within hearing) A Yeah, I — my right to appeal. (Tr. 23-24.) The complete transcript of his plea hearing, however, shows that he understood the proceedings. At the start of the hearing, the court asked Morales whether he can “speak, read, write and understand English,” and he answered, “I get by.” He also confirmed that he fully discussed his indictment and guilty plea with his counsel. When the court asked him if he wanted to review the plea agreement with his attorney once more before the court proceeded with further questions, he declined the opportunity. After Morales consulted with his attorney, the court carefully reviewed the waiver with him again to confirm that he understood that provision: Q Okay. If you’re sentenced within the appropriate guideline range, as I understand this agreement, you are expressly giving up your right to appeal your sentence and you’re also giving up your right to contest your sentence under any post-conviction proceeding, is that true? A Yes, sir. Q Okay. Do you understand what all that means?" }, { "docid": "19710353", "title": "", "text": "3, 1992 for attempting to take, by intimidation, from the person or presence of another, money belonging to and in the care of a bank as defined in 18 U.S.C. § 2113(f), in violation of 18 U.S.C. § 2113(a). Halmos states that in March 1993, his attorney contacted the Assistant United States Attorney in order to negotiate a plea agreement. Petitioner’s Memorandum at 2. An April 5, 1993 hearing on change of plea was continued in order for the court to review the doctor’s report finding Halmos competent to stand trial. On April 12, 1993, the court accepted Halmos’s guilty plea pursuant to Rule 11. At sentencing, this court awarded a two-level reduction in offense level for acceptance of responsibility under U.S.S.G. § 3El.l(a). At the hearing, Halmos, through his attorney, argued that he should receive an additional one-level reduction because either (1) he timely provided complete information to the government concerning his own involvement in the offense, or (2) he timely notified authorities of his intention to plead guilty, thereby permitting the government to avoid preparing for trial. U.S.S.G. § 3El.l(b)(l), (2). This court denied the additional one-level reduction. Due to the total offense level and criminal history level, the sentencing guidelines called for a prison range of 51 to 63 months. Petitioner’s attorney did not argue for a downward departure due to diminished capacity because attempted bank robbery is considered a violent crime. Transcript at 18. However, his attorney did request this court to consider diminished capacity factors within the given range of 51-63 months, which this court did in sentencing Petitioner to 51 months of incarceration, the lowest end of the guidelines. Halmos alleges that his attorney’s representation was ineffective both during the sentencing hearing and in failing to directly appeal. Petitioner bases his arguments on his attorney’s (1) failure to assert that an attempted robbery should be subject to a three-level reduction in offense level pursuant to § 2X1.1 of the Sentencing Guidelines; (2) ineffectual argument before the court that Petitioner should have received an additional one-level decrease under § 3El.l(b) for acceptance of responsibility; and" }, { "docid": "16107011", "title": "", "text": "is voluntary, knowing, and that there is a factual basis for it. I will therefore recommend that Judge Scheindlin accept the defendant’s plea of guilty. On August 18, 1998, Garcia-Santos was sentenced by Judge Scheindlin to 78 months, near the bottom of the stipulated Guidelines range. At the conclusion of the proceeding, the district judge told Garcia- Santos that he had a right to appeal his sentence. Garcia-Santos took no appeal. However, approximately a year later, on August 3, 1999, he filed this § 2255 petition, attacking his conviction on numerous grounds. Judge Scheindlin denied his petition on the ground that in his plea agreement Garcia-Santos had expressly waived his right to appeal or petition under § 2255. Garcia-Santos then filed a motion to reconsider, which stated: “Petitioner will demonstrate that his attorney-at-law was ineffective, for he failed to inform him of the adverse consequences he faced if he signed the plea agreement,” and “petitioner will demonstrate that he did not knowingly and willingly sign[ ] the plea agreement.” On January 28, 2000, the District Court rejected his contentions and denied the motion to reconsider. On August 81, 2000, this Court granted a COA on the following issues: (1)whether the District Court ascertained that the defendant understood the provision of the plea agreement waiving the right to appeal and to collaterally attack his conviction, see United States v. Tang, 214 F.3d 365, 369 (2d Cir.2000); Fed.R.Crim.P. 11(c)(6); (2) whether the existence of the waiver of appeal provision is cause for not taking a direct appeal; and (3) whether the provision purporting to waive a collateral attack includes grounds that might arise after the entry of the plea. This appeal follows. Discussion A.Garciar-Santos’s understanding that he waived his right to appeal or file a § 2255 challenge. We find no error in the District Court’s determination that Garcia-Santos’s plea agreement was entered into knowingly and voluntarily, and with awareness of his waiver of appeal and collateral attack. See United States v. Stevens, 66 F.3d 431, 437 (2d Cir.1995). The conclusion was supported by the following facts: (1) petitioner signed the plea" }, { "docid": "23603002", "title": "", "text": "was the case, isn’t that right? A. That I could not appeal my sentence? Q. If it was below 121 months. A. Yes. (Id. at 405 (emphasis added); see also id. at 409-10 (at her plea hearing, Monzon understood “every question [she] answered,” and in answering, she “w[as] telling the truth”).) In sum, there is nothing in the transcript of Monzon’s plea allocution to support her contention that she did not understand her Plea Agreement commitment to give up the right to appeal her sentence if the prison term imposed was 121 months or less. And Monzon’s testimony at the hearing on remand, as quoted above, confirms that she understood that she was giving up that right. The district court found that at the plea hearing, when Mon-zon stated that she “understood that she ... was waiving her right to appeal any sentence of 121 months -or less,” she spoke truthfully. Monzon II, 2001 WL 883647, at *11. We conclude that this finding is amply supported by the record. B. The Interplay Between Enforceability of an Appeal Waiver and a Claim of Ineffective Assistance Of Counsel Monzon contends that we should nonetheless find her appeal waiver unenforceable because she was denied effective assistance of counsel. She relies on United States v. Hernandez, 242 F.3d 110, .113 (2d Cir.2001) (per curiam) (“Hernandez ”), for the proposition that “a waiver in a plea agreement of appellate rights will not be enforced where the defendant claims that the plea agreement was entered into without effective' assistance of counsel.” (Mon-zon February 2003 brief on appeal at 22 (emphasis added).) We have two difficulties with this proposition. First, Hernandez is inapposite. There, the defendant who claimed that his agreement to plead guilty was the result of ineffective assistance of counsel — because counsel had misled him as to the consequences of his plea — had moved to withdraw his plea; on appeal, he challenged the court’s denial of that motion. We noted that in his plea agreement, Hernandez had agreed not to appeal “ ‘any sentence within or below the stipulated Guidelines range.’ ” 242" }, { "docid": "22765460", "title": "", "text": "of the government. The court did not abuse its discretion in denying the motions of Mancusi and Giordano to withdraw their pleas of guilty on the ground that they were actually, or could conceivably be found to be, innocent. Mancusi and Giordano also contend that they should have been allowed to withdraw their pleas because they had received ineffective assistance of counsel. We reject these contentions substantially for the reasons stated by the district court in denying the motions. E. Sentencing Mancusi and Giordano also challenge their sentences. Their challenges are not properly before us because they have been waived. In their respective plea agreements, defendants stipulated to various offense levels under the Guidelines and acknowledged various sentencing ranges that would be applicable with respect to those offense levels in light of their respective criminal history categories. To the extent pertinent here, defendants further agreed not to appeal “any sentence within or below the stipulated Guidelines range[s].” With respect to Mancusi, the pertinent stipulated range was 108-135 months’ imprisonment; he was sentenced to 108 months. With respect to Giordano, the pertinent stipulated range was 121-151 months’ imprisonment; he was sentenced to 151 months. “In no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.” United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.) (per curiam) (dismissing appeal), cert. denied, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993); see United States v. Rivera, 971 F.2d at 896. Accordingly, we decline to address their sentencing contentions. CONCLUSION We have considered all of defendants’ contentions on these appeals and have found them to be without merit. The judgments of conviction are affirmed." }, { "docid": "443888", "title": "", "text": "a defendant has waived the right to appeal, a defendant has waived the right to challenge improper application of the sentencing guidelines on appeal. The Bolinger court also noted that a waiver of the right to appeal would not prevent an appeal where the sentence imposed is not in accordance with the negotiated settlement. Id. This exception is not applicable here. The court-imposed sentence was within the negotiated settlement. Petitioner was thus unable to appeal his sentence since he knowingly and intelligently waived his right to appeal. The Sixth Circuit addressed a similar issue in which the sentencing judge departed upward without giving sufficient findings of aggravating circumstances. United States v. Newsome, 894 F.2d 852 (6th Cir.1990). In Newsome, the defendant entered into a plea agreement with the government that set a sentencing cap at 57 months. This cap was agreed to because of defense counsel’s miscalculation of the guideline range. Id. at 854. At the sentencing hearing, the probation officer who prepared the presentence report determined that the range was only 33-41 months. “No one challenged the probation officer’s 33-41 month calculation, and the district court appears to have accepted it as correct.” Id. Newsome’s sentencing judge acknowledged the correct sentencing range and intentionally sentenced Newsome to 57 months, a punishment outside the applicable guideline range but within the plea agreement cap. On appeal, the court found that “defendant’s miscalculation of the guidelines could hardly constitute ... an aggravating circumstance, and neither could the. defendant’s desire to insure that in no event would he spend more than four years and nine months in prison.” Id.' at 856. While Newsome appears to be directly on point, there are several differences that make the analysis less useful to this Court. First, Newsome did not waive his statutory right to appeal his sentence pursuant to a plea agreements as did Petitioner here. If he had, the Sixth Circuit might not have addressed the issúe at all. Second, New-some’s sentencing judge was aware of the actual guideline range and intentionally decided to impose a higher sentence. Here, this Court was unaware of the" }, { "docid": "23602997", "title": "", "text": "even as augmented, for either her ineffective-assistance-of-counsel claim or the claimed lack of understanding of her appeal waiver, we conclude that Monzon’s appeal waiver is enforceable and that the appeal should therefore be dismissed. A. Enforceability of Appeal Waivers “[Wjaivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing.” United States v. Ready, 82 F.3d 551, 556 (2d Cir.1996) (“Ready”). Thus, a defendant’s promise in a plea agreement to forgo the right to appeal a sentence is not enforceable unless “the record ‘clearly demonstrates’ that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.” Id. at 557; see, e.g., id. at 557-58 (declining to enforce waiver that was not knowing and voluntary); United States v. Chen, 127 F.3d 286, 289-90 (2d Cir.1997) (same). Where the record clearly demonstrates that the defendant’s waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable. See, e.g., United States v. Salcido-Contreras, 990 F.2d 51, 51-52 (2d Cir.1993) (per curiam); Unit ed Stages v. Rivera, 971 F.2d 876, 896 (2d Cir.1992). “In no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal ... then appeal the merits of a sentence conforming to the agreement,” for to permit such a defendant to escape the fairly bargained-for consequences of her agreement with the government would “render the plea bargaining process and the resulting agreement meaningless.” United States v. Salcido-Contreras, 990 F.2d at 53. Monzon attempts to liken her circumstances to those of the defendant in Ready, in which we found that the promise not to appeal had not been knowing. Monzon describes Ready as a case in which the minutes of the Rule 11 hearing revealed that Ready’s lawyer had advised him that he retained the right to appeal a sentence which was illegally imposed .... As in Ready, [Monzon] understood if something illegal occurred she would be able" }, { "docid": "22095224", "title": "", "text": "the defendant knowingly agreed to the [post-trial sentencing] Stipulation, much less the waiver of appeal contained in it, we will remand to the district court.”); United States v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir.1993) (per curiam) (\"We have held that knowing and voluntary waivers of a defendant’s right to appeal a sentence within an agreed Guidelines range are enforceable; United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992).\"), cert. denied, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993). . Compare Schmidt, 47 F.3d at 191 (\"These two excerpts from the guilty plea hearing clearly reveal that the waiver of the right to appeal was knowingly, voluntarily, and intelligently made.”); Bushert, 997 F.2d at 1351 (\"[I]n most circumstances, for a sentence appeal waiver to be knowing and voluntary, the district court must have specifically discussed the sentence appeal waiver with the defendant during the Rule 11 hearing.”); Marin, 961 F.2d at 496 (“[A] waiver is not knowingly or voluntarily made if the district court fails to specifically question the defendant concerning the waiver provision of the plea agreement during the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of the waiver.\"); Rutan, 956 F.2d at 830 (\"Review of the transcript of the [Rule 11] hearing ... shows that [the defendant] fully understood the consequences of the waiver.\"); with United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1992) (\"[A] Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient.”), cert. denied, - U.S. -, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995); United States v. Portillo, 18 F.3d 290, 293 (5th Cir.) (“[W]hen the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the" }, { "docid": "22095204", "title": "", "text": "the district courts.” The right to appeal a sentence under § 1291 was limited to sentences that were. imposed above statutory limits, that were the result of material misinformation, or that were based on a constitutionally impermissible factor. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972); United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). The 1984 Act “expanded appellate review.” Colon, 884 F.2d at 1552. A new statutory section (which we quote in its current form) provided not just for review of a sentence “imposed in violation of law,” 18 U.S.C. § 3742(a)(1), but also for review of a sentence “imposed as a result of an incorrect application of the sentencing guidelines,” id. § 3742(a)(2), a sentence “greater than the sentence specified in the applicable guideline range,” id. § 3742(a)(3), or a sentence “plainly unreasonable” when “imposed for an offense for which there is no sentencing guideline,” id. § 3742(a)(4). Entry into a plea agreement that includes a specific sentence forecloses only the last two grounds of appeal (as long as the actual sentence falls within the sentence envisioned by the agreement), but does not foreclose an appeal based on an illegal sentence or one based on an incorrect application of the Guidelines. Id.' § 3742(c). Along with the other circuits that have considered the question, we have held that a defendant’s right to appeal his sentence may be waived in a plea agreement. See Yemitan, 70 F.3d at 748; United States v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir.) (per curiam), cert. denied, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993); see also United States v. Schmidt, 47 F.3d 188, 192 (7th Cir.1995) (“declin[ing] to exercise” the court’s “jurisdiction to determine the merits of the defendants’ appeal” because of valid waiver of right to appeal); United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994); United States v. Melancon, 972 F.2d 566, 567" }, { "docid": "22095223", "title": "", "text": "to a statutory maximum. For all of these reasons, we conclude that the waiver of Ready’s right to appeal his “sentence” did not include a waiver of his right to appeal his restitution penalty. We hold that Ready did not waive the right to bring this appeal. The merits of that appeal raise no new issues, and are resolved by summary order issued on the same day as this opinion. . The reference to an offense level of 23 appears to be a mistake, since the Government had agreed in paragraph 3B that the proper offense level was 22. . Though this Court has never ruled on the issue explicitly, statements in our past decisions make it clear that we would not accept an involuntary or “unknowing” waiver of the right to appeal. See Yemitan, 70 F.3d at 747 (\"It is undisputed that [the defendant] entered into his plea agree ment knowingly and voluntarily.”); United States v. Stevens, 66 F.3d 431, 437 (2d Cir.1995) (\"As the record on appeal affords no basis to know whether the defendant knowingly agreed to the [post-trial sentencing] Stipulation, much less the waiver of appeal contained in it, we will remand to the district court.”); United States v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir.1993) (per curiam) (\"We have held that knowing and voluntary waivers of a defendant’s right to appeal a sentence within an agreed Guidelines range are enforceable; United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992).\"), cert. denied, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993). . Compare Schmidt, 47 F.3d at 191 (\"These two excerpts from the guilty plea hearing clearly reveal that the waiver of the right to appeal was knowingly, voluntarily, and intelligently made.”); Bushert, 997 F.2d at 1351 (\"[I]n most circumstances, for a sentence appeal waiver to be knowing and voluntary, the district court must have specifically discussed the sentence appeal waiver with the defendant during the Rule 11 hearing.”); Marin, 961 F.2d at 496 (“[A] waiver is not knowingly or voluntarily made if the district court fails to specifically question the defendant concerning the" }, { "docid": "9000988", "title": "", "text": "• sentence level as “none.” Because the petitioner had, according to the PSR’s criminal history computation, no prior record apart from the instant offense, his criminal history category was I. The petitioner’s base offense level total of 32, minus two for acceptance of responsibility, yielded an offense level total of 30 and, thus, a guideline range of 97-121 months, a minimum of three years supervised release, and a mandatory $50 assessment. ■ Petitioner’s sentence was at the lowest end of that range. Petitioner’s sentence was not influenced by his criminal history or any other defect in the PSR. The petitioner claims that he should not have been held accountable for the acts of co-conspirators in determining his sentence. However, petitioner’s sentence was, in fact, not determined based on the conduct of co-conspirators. The Court specifically stated that petitioner was not being sentenced for the activities of the entire Hernandez organization of which he was a part. The base offense level was calculated on the basis of petitioner’s own participation in the negotiation for two kilograms of heroin. In addition, as discussed above, the lowest guideline range sentence was imposed by the Court. The, petitioner next claims that he was denied access to the courts after sentencing. The only basis for such a claim appears in connection with petitioner’s desire to appeal the sentence, which is discussed below. Petitioner next claims that his guilty plea was induced through the use of trickery and bullying tactics by. his counsel. Petitioner also alleges that, due to his difficulty understanding English and mental problems, he was not fully competent to understand the nature and consequences of the proceeding. Claims by petitioners that their pleas were involuntarily made due to the erroneous advice' or unrealized promises made by counsel “afford an all to easy avenue for the invalidating of conviction on pleas of guilty.” United States v. Horton, 334 F.2d 153, 154 (2d Cir.l964). Thus, when considering the voluntariness of a defendant’s plea, courts look to the voir dire of the defendant upon each plea to determine whether the plea reflected a “knowing, free and" }, { "docid": "7611936", "title": "", "text": "following his release from prison. This appeal followed. DISCUSSION Lawlor’s central contention on appeal is that the government breached the plea agreement because, although the government stipulated that § 2A2.3 (Minor Assault) of the Sentencing Guidelines applied to Law-lor’s offense, it nonetheless informed the Probation Office that it had no objections to the Presentence Report, which utilized § 2A2.4 to determine Lawlor’s base offense level, and informed the District Court at sentencing that “the government feels that the Presen-tence Report was appropriately scored in the first instance.” At the outset, Lawlor’s counsel concedes that she failed to object to either of these alleged breaches of the plea agreement, and, indeed, the record reflects that Lawlor’s counsel failed to object to the application of § 2A2.4 either in her objections to the PSR or at sentencing. Accordingly, the government maintains that we are bound to apply a plain error standard of review. We disagree. We have previously stated that a defendant is not required to object to the violation of a plea agreement at the sentencing hearing. See, e.g., United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.) (per curiam), cert. denied, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993) (“While [the defendant] did not object to this alleged violation of the plea agreement at the time of sentencing, there is no requirement that he do so.”). Thus, Lawlor’s claim is not barred by his failure to raise this issue with the District Court, nor are we bound to apply a plain error standard of review. “To determine whether a plea agreement has been breached, a court must look to what the parties reasonably understood to be the terms of the agreement,” and “any ambiguity should be resolved against the government.” United States v. Miller, 993 F.2d 16, 20 (2d Cir.1993). Moreover, “[bjecause plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to the most meticulous standards of both promise and performance.” United States v. Velez Carrero, 77 F.3d 11, 11 (1st Cir.1996) (internal quotation marks omitted). Lawlor first argues that" }, { "docid": "443887", "title": "", "text": "“Supreme Court has found that knowing and voluntary constitutional waivers do not violate due process.” Id. at 321 (citing Town of Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987)). The Court also held that it is not a .violation of due process for a defendant to waive, in an otherwise valid plea agreement, the statutory right of appeal. United States v. Navarro-Botello, 912 F.2d at 321. In. this case, the record shows that the Petitioner intelligently. and voluntarily waived his right to appeal. See RT-II at 11. Petitioner was therefore unable to raise his arguments on direct appeal. In a case similar to the instant case, the Ninth Circuit upheld the defendant’s waiver of appeal, despite the fact that the sentence imposed was greater than that mandated. United States v. Bolinger, 940 F.2d 478. The Bolinger court stated, “Because we enforce Bolinger’s waiver of his right to appeal the sentence, we do not consider his underlying claims that the district court misapplied the guidelines.” Id. at 480. If a defendant has waived the right to appeal, a defendant has waived the right to challenge improper application of the sentencing guidelines on appeal. The Bolinger court also noted that a waiver of the right to appeal would not prevent an appeal where the sentence imposed is not in accordance with the negotiated settlement. Id. This exception is not applicable here. The court-imposed sentence was within the negotiated settlement. Petitioner was thus unable to appeal his sentence since he knowingly and intelligently waived his right to appeal. The Sixth Circuit addressed a similar issue in which the sentencing judge departed upward without giving sufficient findings of aggravating circumstances. United States v. Newsome, 894 F.2d 852 (6th Cir.1990). In Newsome, the defendant entered into a plea agreement with the government that set a sentencing cap at 57 months. This cap was agreed to because of defense counsel’s miscalculation of the guideline range. Id. at 854. At the sentencing hearing, the probation officer who prepared the presentence report determined that the range was only 33-41 months. “No" }, { "docid": "16107010", "title": "", "text": "addressed by) the above stipulation. On April 14, 1998, a plea allocution took place before Magistrate Judge James C. Francis. The following exchange occurred: The Court: I would note that I have before me a plea agreement dated August 26, 1997, signed by the defendant, defendant’s attorney, and the Assistant United States Attorney. Have you read and understood this plea agreement and did you sign it? The DEFENDANT: Yes. The CouRT: Is your plea voluntary and made of your own free will? The Defendant: Yes. The defendant was not asked about and did not specifically address the waiver of appeal and collateral attack. The magistrate judge did ask Garcia-Santos if he understood that “under some circumstances you or the government may have the right to appeal any sentence that is imposed,” and Garcia-Santos answered in the affirmative. After the complete allocution, the magistrate judge stated: I am satisfied that the defendant understands the nature of the charges against him and the consequences of the plea of guilty. ■ I am also satisfied that the plea is voluntary, knowing, and that there is a factual basis for it. I will therefore recommend that Judge Scheindlin accept the defendant’s plea of guilty. On August 18, 1998, Garcia-Santos was sentenced by Judge Scheindlin to 78 months, near the bottom of the stipulated Guidelines range. At the conclusion of the proceeding, the district judge told Garcia- Santos that he had a right to appeal his sentence. Garcia-Santos took no appeal. However, approximately a year later, on August 3, 1999, he filed this § 2255 petition, attacking his conviction on numerous grounds. Judge Scheindlin denied his petition on the ground that in his plea agreement Garcia-Santos had expressly waived his right to appeal or petition under § 2255. Garcia-Santos then filed a motion to reconsider, which stated: “Petitioner will demonstrate that his attorney-at-law was ineffective, for he failed to inform him of the adverse consequences he faced if he signed the plea agreement,” and “petitioner will demonstrate that he did not knowingly and willingly sign[ ] the plea agreement.” On January 28, 2000, the District" }, { "docid": "19836547", "title": "", "text": "within the sentencing range of 135-168 months. At the change-of-plea hearing before a magistrate judge, the judge inquired into Sotirion’s understanding of the plea agreement and the consequences of his plea. The judge called attention to the waiver provision, asking, “And do you understand that you are waiving your right to appeal this case except I guess if there are legal issues that arise subsequent hereto. Okay?” Sotirion responded, ‘Tes.” In addition, the magistrate judge confirmed with Sotirion that (1) he had had an opportunity to go over the plea agreement in detail, (2) he understood the terms of the plea agreement, (3) he understood that at sentencing the government would argue for a two-level increase for abuse of trust and would argue for a sentencing range of 135-168 months, (4) there were no aspects of the plea agreement that he did not understand or wanted to raise with the court, and (5) he had “gone over [the plea agreement] line by line” with counsel. At sentencing, the court calculated an adjusted offense level of 30, based in part on the two-level increase for abuse of a position of trust. Although defense counsel successfully challenged several offense-level increases sought by the government, counsel did not object to the increase for abuse of trust. This adjusted offense level, combined with Sotirion’s criminal history category of I, resulted in an advisory sentencing guidelines range of 97-121 months. The court sentenced Sotirion to 109 months of imprisonment, the middle of the guidelines range. At the close of the hearing, the court stated that Sotirion had “a right to appeal the sentence. Even though you pled guilty, that does not limit your right to appeal.” In January 2008, Sotirion filed a § 2255 petition arguing that the increase for abuse of trust was not applicable to his offense under the sentencing guidelines. See U.S.S.G. § 2C1.1, cmt. 6 (stating that an increase for abuse of trust under § 3B1.3 does not apply to an offense level calculated under § 2C1.1). He contended that his sentence was therefore based on inaccurate information in violation of" }, { "docid": "21091983", "title": "", "text": "States v. Salcido-Contreras, 990 F.2d 51 (2d Cir.) (per curiam), cert. denied, — U.S. —, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993), in which we held that an agreement as to the appropriate sentencing range that contains a waiver-of-appeal provision is enforceable. Id. at 51; see also United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992). In Salcido-Contreras, we stated that: “In no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.” 990 F.2d at 53. However, in Salcido-Contreras, unlike the present case, the defendant “concede[d] that he knowingly and voluntarily waived his right to appeal if the sentence fell within the agreed range,” id. at 51-52, and the case accordingly did not reach the issue whether, in the absence of a specifically directed colloquy, a defendant may avoid enforcement of a waiver-of-appeal provision by contending that he did not agree to it knowingly and voluntarily. In both Salcido-Contreras and Rivera, the appeal waiver was included in a plea agreement. Here, by contrast, Stevens was found guilty after a jury trial, and the appeal waiver was incorporated in a subsequent stipulation concerning sentencing issues. In the case of a plea agreement, Fed.R.Crim.P. 11 requires a colloquy to ensure that the defendant’s guilty plea is knowing and voluntary. A number of plea agreement cases have considered whether there must in addition be a colloquy explicitly addressed to a waiver-of-appeal provision to render the waiver enforceable. While some cases express a preference for a specifically directed colloquy, see, e.g., United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992); United States v. Davis, 954 F.2d 182, 186 & n. 1 (4th Cir.1992), the preference is generally not imposed as a requirement if there is other evidence in the record adequate to establish that the defendant knowingly and voluntarily waived his appeal rights. See, e.g., United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 939, 130" }, { "docid": "2343475", "title": "", "text": "the change of plea hearing during the colloquy with the court, and petitioner has raised no new meritorious allegations that his plea otherwise was coerced. Nor has petitioner set forth any allegations that his guilty plea was uncounseled except as alleged in his third claim for relief, which the court likewise finds to be without merit. Petitioner’s third claim for relief asserts that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. In order to prevail on his claim that his counsel rendered constitutionally' ineffective assistance, petitioner must' demonstrate; (1) that counsel’s performance fell below an objective standard of reasonableness; and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of an ineffective assistance of counsel claim relating to guilty pleas, the prejudice prong of the Strickland test can be met by a showing that, but for counsel’s errors, petitioner would have proceeded to trial instead of pleading guilty. Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994). Here, petitioner can show neither ineffective assistance nor prejudice. Petitioner’s counsel negotiated a favorable plea agreement whereby petitioner’s guideline sentencing range was calculated to be 97 to 121 months. Petitioner was sentenced to the low end of that range. Had petitioner proceeded to trial and been convicted of conspiracy to import 5 kilograms or more of cocaine as charged in the indictment, he would have faced a statutory minimum sentence of 10 years. 21 U.S.C. §§ 952(a); 960(a)(l)(B)(ii); 963. Thus, defense counsel negotiated a plea with the government by which petitioner was spared at least 23 additional months of imprisonment and possibly more. It is true that as part of the give and take of negotiations, defense counsel conceded to a three-level increase for petitioner’s role in the offense, but the record indicates that petitioner knowingly and voluntarily agreed to this. Moreover, by accepting the plea agreement the three-level enhancement was offset by a" } ]
275974
levels if she was “a minimal participant” in the criminal activity. USSG § 3B1.2(a)(2006). The commentary to this guideline indicates, somewhat tautologically, that it applies to a defendant who plays a minimal role in that activity. Id., cmt. (n.4). The Sentencing Commission has made clear that the adjustment for minimal participation should be invoked sparingly. See id. The line between minor and minimal participation is fuzzy. In the last analysis, that distinction comes down to a judgment call. Labels are not dispositive. This last precept is important because, in this case, the appellant emphasizes that she was “merely” a courier. It is plain, however, that drug couriers are not automatically entitled to mitigating rule adjustments for minimal participation. See, e.g., REDACTED United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990); United States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir.1989); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989). Everything depends on the idiosyncratic circumstances of the particular case. See USSG § 3B1.2, cmt. (n.3(C)). Here, the record shows a plausible basis for believing that the appellant was more than a minimal participant. She registered the minivan used to transport the contraband in her own name, drove it to the Dominican Republic, waited while the drugs were loaded aboard, and then tried to smuggle them into the United States. This course of conduct, coupled with the quantity and type of drugs — upwards of two kilograms of heroin
[ { "docid": "22728967", "title": "", "text": "Just because a defendant may be less culpable than other participants in an offense, he is not necessarily entitled to a minimal or minor role adjustment under section 3B1.2. See Ajala, 997 F.2d at 656 (citation omitted). Moreover, this court has consistently stated that a downward adjustment under section 3B1.2 is to be used infrequently and only in exceptional circumstances. See United States v. Hoac, 990 F.2d 1099, 1106 (9th Cir.1993); United States v. Christman, 894 F.2d 339, 341 (9th Cir.1990). Although his courier status does not automatically entitle him to a downward adjustment, Davis is correct in asserting that one who is solely a courier may be entitled to a downward adjustment under section 3B1.2. Application note 2 to section 3B1.2 indicates that a one employed as a courier for a single small transaction could be a minor or minimal participant. Additionally, we have stated that whether one who is solely a courier is automatically entitled to a reduction for his role in the offense is an open question. See Hoac, 990 F.2d at 1106; Flores-Payon, 942 F.2d at 561; Rigby, 896 F.2d at 394. In prior decisions, we have denied downward adjustments to defendants who were couriers where some additional factor showing that they were not a minor or minimal partici pants existed. See Flores-Payon, 942 F.2d at 561 (defendant attended drug negotiations and commented on the quality of the drugs); Hoac, 990 F.2d at 1106 (defendant owned trading company and leased warehouse to which drugs were delivered); Lui, 941 F.2d at 849 (defendant imported a substantial amount of drugs). As in our prior decisions, the record here shows that, although he was a courier, Davis was still not a minor or minimal participant. Davis knew that he was carrying drugs and was prepared to accept the $6,400.00 from McConnell. Similarly, in Zweber we found that the defendant was not entitled to a downward adjustment because he knew he was transporting cocaine and received money in return, demonstrating that he was trusted ■with responsibility. 913 F.2d at 710. As the district court’s findings are not clearly erroneous, our" } ]
[ { "docid": "22792458", "title": "", "text": "3B1.2 comment, (n. 2). There is no rational basis to believe that Headley’s trial counsel’s failure to argue adjustment was a strategic choice. Clearly it falls outside the prevailing professional norms. Given the scope of SNO and the district court’s express willingness to consider departure, it is reasonable to believe that the outcome of the proceeding may have been different had counsel argued for adjustment. We do not suggest that an adjustment for role in the offense was required. The fact that a defendant’s participation in a drug operation was limited to that of courier is not alone indicative of a minor or minimal role. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989) (determination of minor or minimal role status “turns upon culpability, not courier status”), cert. denied, — U.S. -, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); see also United States v. White, 875 F.2d 427, 434 (4th Cir.1989). As the Second Circuit recently said, “the culpability of a defendant courier must depend necessarily on such factors as the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.” United States v. Garcia, 920 F.2d 153 (2d Cir.1990) (district court’s refusal to depart downward under § 3B1.2 was not clearly erroneous); see also § 3B1.2, comment, (n. 1) (lack of knowledge or understanding of the scope and structure of the enterprise is evidence of minimal role in offense). On the other hand, the fact that Headley’s actual criminal conduct was dwarfed by the conduct of other co-conspirators and that she lived in Brooklyn while the conspiracy was centered in Philadelphia are factors that suggest that her involvement, knowledge and culpability may have been significantly less than the other SNO members. It follows that because counsel’s ineffectiveness, which deprived Headley of the opportunity to have the district court consider whether she qualified for an adjustment under § 3B1.2, is plain from the record, we must remand to give Headley the opportunity to make" }, { "docid": "22215599", "title": "", "text": "the abstract but rather with regard to the defendant’s culpability in the context of the facts of the case. See § 3B1.2 Background Commentary, stating that the range of adjustments in § 3B1.2 are “for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant” and that the determination “is heavily dependent upon the facts of the particular case.” Our sister circuits, when faced with the argument that the district court erred in not awarding courier status with a downward adjustment for a minor or minimal role in the offense, have similarly rejected it. United States v. Paz-Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989); United States v. Williams, 890 F.2d 102, 104 (8th Cir.1989); United States v. Hewin, 877 F.2d 3, 4-5 (5th Cir.1989); United States v. White, 875 F.2d 427, 434 (4th Cir.1989); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). While in certain cases and on particular facts, a district court might conclude that a defendant courier was “substantially less culpable than the average participant” and thus make a downward adjustment pursuant to § 3B1.2, this conclusion is by no means mandated. Although the second Application Note accompanying this section of the Guidelines does state that a minimal participant downward adjustment would be appropriate, for example, “in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs,” this comment does not automatically entitle a courier to a downward adjustment, it only suggests that some couriers may receive a reduction, based upon their culpability in light of the specific facts. United States v. Buenrostro, 868 F.2d at 138. Couriers are indispensable to the smuggling and delivery of drugs and their proceeds. The culpability of a defendant courier must depend necessarily on such factors as the nature of the defendant’s relationship to other" }, { "docid": "16454644", "title": "", "text": "3B1.2. The difference between a minimal and a minor participant is a difference of degree, not kind. United States v. Sanchez, 354 F.3d 70, 74 n. 2 (1st Cir.2004). To qualify as a minor participant, a defendant must prove that he is both less culpable than his cohorts in the particular criminal endeavor and less culpable than the majority of those within the universe of persons participating in similar crimes. Id. at 74; United States v. Teeter, 257 F.3d 14, 30-31 (1st Cir.2001). To qualify as a minimal participant, a defendant must prove that he is among the least culpable of those involved in the criminal activity. In our view, this entails proof that he is substantially less culpable than his cohorts in the actual offense and that he is substantially less culpable than the vast majority of those taking part in similar crimes. See USSG § 3B1.2, cmt. (nn.3(A), 4, 5); see also United States v. Kerr, 13 F.3d 203, 206 (7th Cir.1993) (refusing reduction for minimal participation where defendant did not prove that she was substantially less culpable than the average participant in similar crimes); De La Cruz, 996 F.2d at 1314 (giving as examples of a minimal participant “someone who played no other role in a very large smuggling operation than to offload part of a single marijuana shipment” or someone who “was recruited as a courier for a single smuggling operation involving a small amount of drugs”) (quoting USSG § 3B1.2 cmt. (n.2)). In short, a defendant must be a plainly peripheral player to justify his classification as a minimal participant. This standard is hard to meet and, accordingly, it will be the rare case in which a defendant will warrant designation as a minimal participant. See USSG § 3B1.2, cmt. (n.4). That is especially so since a defendant who seeks a downward role adjustment bears the burden of proof on that issue. United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir.1990). With this framework in mind we return to the instant case. At the disposition hearing, the appellant argued that his role was minimal" }, { "docid": "22267119", "title": "", "text": "defendant’s role in criminal activity is highly fact-specific and depends upon “the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.” United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990) (per curiam). Shonubi describes his role in heroin smuggling as that of a lowly courier. He insists he must be a minor or minimal participant because he had no money to acquire heroin independently and no accumulated drug profits. In rejecting this characterization, the trial court stated: “[defendant was not the foolish, occasionally even unwitting, drug mule who frequently comes before this court.” Shonubi, 802 F.Supp. at 864. Instead, it believed appellant “regularly and systematically engaged in the business of narcotics trafficking” and “deserve[d] no leniency.” Id. A defendant’s courier status does not entitle him automatically to the benefit of the minor and minimal role adjustments. See Garcia, 920 F.2d at 155. Nor do limited finances prove that a defendant was a minor or minimal participant. See United States v. Adames, 901 F.2d 11, 12 (2d Cir.1990). A sentencing court is not bound to accept defendant’s self-serving characterizations of his role in an offense. It is not defendant’s exact role or status in the criminal activity that necessarily decides this question; rather, it is an assessment of defendant’s culpability in the context of all the circumstances. See Garcia, 920 F.2d at 155; see also Lopez, 937 F.2d at 727. It was not clearly erroneous to find Shonubi more than a minor or minimal participant or, in other words, not “substantially less culpable than the average participant” in this heroin trafficking scheme. U.S.S.G. § 3B1.2, comment, (backg’d.). As stated, appellant regularly engaged in drug smuggling, and the uncharged conduct of his seven other trips to Nigeria is relevant on this issue. See Perdomo, 927 F.2d at 117. The quantity of drugs imported-so crucial to the determination of a base offense level—is not the question here. The pattern of travel, as well as the known quantity of" }, { "docid": "22419534", "title": "", "text": "was entitled to be classified as a minimal participant under section 3B1.2(a) of the guidelines. Over the government’s objection, the court granted Gordon a two-level reduction for being a minor participant. U.S.S.G, § 3B1.2(b). The resulting offense level of 18 with a criminal history category of I produced a guideline range of 27-33 months. The court sentenced Gordon to 27 months. II. On appeal, review of a district court determination regarding role in the offense is governed by the clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213 (4th Cir.1989) (determination that defendant was neither minimal nor minor participant is a factual question and due deference requires affirmance unless clearly erroneous); see United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir.1989); United States v, Wright, 873 F.2d 437 (1st Cir.1989); United States v. Nunley, 873 F.2d 182 (8th Cir.1989); United States v. Rojas, 868 F.2d 1409 (5th Cir.1989). Gordon bases his claim that he was a minimal participant on the commentary to section 3B1.2 of the guidelines, which states that an offense level reduction for minimal participation would be appropriate “in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment, (n.2). Gordon also argues that the government’s reference to him during the trial as a courier entitles him to a reduced offense level. However, as this circuit and the Fifth Circuit have held, the fact that a defendant is a drug courier does not automatically entitle him to a reduction. United States v. White, 875 F.2d 427, 434 (4th Cir.1989); see United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989). In Buenrostro the court, referring to the commentary cited by Gordon, stated that “[t]he example suggests that some couriers may appropriately receive the reduction; it does not suggest that all couriers are entitled to a downward adjustment.” Buenrostro, 868 F.2d at 138. In White we adopted the reasoning of Buenrostro and held that section 3B1.2 of the guidelines turns upon culpability, not courier status. White, 875 F.2d at 434. A defendant may" }, { "docid": "23096251", "title": "", "text": "recruited solely as a courier for that single transaction, and there is no evidence that he was part of a continuing drug smuggling operation. Madrid-Mutio is not the source of the heroin, and is not close to the source of the heroin. Madrid-Mutio contends that on these facts he was entitled to a reduction in his offense level because he was a minor or minimal participant in his crime. See Guideline 3B1.2. A reviewing court will uphold a sentence unless the sentence was “imposed in violation of law,” or was “imposed as a result of an incorrect application of the sentencing guidelines,” or was “outside the range of the applicable sentencing guideline, and is unreasonable.” 18 U.S.C. §§ 3742(d) and (e). The reviewing court “shall accept the findings of fact of the district court unless they are clearly erroneous.” 18 U.S.C. § 3742(d). The sentencing guidelines necessarily call upon the district courts to make sophisticated factual determinations which depend upon an assessment of the broad context of the crime. A defendant’s status as a “minimal participant” or a “minor participant” is among these sophisticated factual determinations, and these findings “enjoy the protection of the clearly erroneous standard.” Although we encourage judges to supply more specific factual findings, a simple statement that the defendant was not a “minor participant” will suffice as a factual finding. United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989). See also United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.1989). Madrid-Mutio places great emphasis upon the second application note accompanying Guideline 3B1.2. That note first observes that the “minimal participant” adjustment should be used infrequently. It goes on to state that the adjustment “would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” Madrid-Mutio contends that he is the sort of courier mentioned in the last phrase of the application note. We have held," }, { "docid": "16454647", "title": "", "text": "is clearly not the small amount of drugs contemplated in the guidelines” for minimal participation): For another thing, the record contains evidence that the appellant did more than merely serve as a cornier: for example, he inspected the cocaine for quality and assisted in repackaging it for transportation. The sockdolager is that even those who serve purely and simply as drug couriers are not automatically guaranteed mitigating role reductions. See, e.g., United States v. Lopez-Gil, 965 F.2d 1124, 1131 (1st Cir.1992) (upholding the denial of a two-level “minor participant” credit to a drug courier); United States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir.1989) (same). If drug couriers cannot lay claim as of right to minor participant status, the assertion that every drug courier is entitled to a four-level reduction for minimal participation is obviously untenable. In this case, the sentencing court carefully appraised the appellant’s involvement and acknowledged that he was the least culpable of the four coconspirators. The court determined, however, that he properly should be classified as a minor, not a minimal, participant. Under the circumstances, the court’s recension of the evidence seems entirely plausible. Thus, we cannot say that its conclusion was clearly erroneous. We need go no further. For the reasons elucidated above, we uphold the appellant’s sentence. Affirmed. . The \"hide” is apparently a secret compartment in which contraband may be stored. . The sentencing guidelines direct that the mitigating role adjustment then be made from the capped base offense level. USSG § 3B1.2, cmt. (n.6). This is a form of \"double counting” that the Sentencing Commission has apparently deemed meet. . Under the sentencing guidelines, drug quantity bears a direct correlation to the GSR (and, therefore, to the length of a defendant's sentence). United States v. Conley, 156 F.3d 78, 84 (1st Cir.1998). To achieve a base offense level of 30, a defendant must be responsible for more than 3.5 kilograms of cocaine. USSG § 2D 1.1 (c)(5). Because of the “capping” effect of USSG § 2D1.1(a)(3), see text supra, amounts above that quantity are irrelevant in this case. . To reinforce" }, { "docid": "22419535", "title": "", "text": "for minimal participation would be appropriate “in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment, (n.2). Gordon also argues that the government’s reference to him during the trial as a courier entitles him to a reduced offense level. However, as this circuit and the Fifth Circuit have held, the fact that a defendant is a drug courier does not automatically entitle him to a reduction. United States v. White, 875 F.2d 427, 434 (4th Cir.1989); see United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989). In Buenrostro the court, referring to the commentary cited by Gordon, stated that “[t]he example suggests that some couriers may appropriately receive the reduction; it does not suggest that all couriers are entitled to a downward adjustment.” Buenrostro, 868 F.2d at 138. In White we adopted the reasoning of Buenrostro and held that section 3B1.2 of the guidelines turns upon culpability, not courier status. White, 875 F.2d at 434. A defendant may be a courier without being less culpable than the other participants. Id. Gordon offered absolutely no evidence to support a finding that he was a minimal participant. Therefore, we affirm the refusal by the district court to grant Gordon a four-level reduction of his offense level on this basis. In its cross-appeal, the government urges that Gordon was not entitled to the two-level reduction for minor participant status. Its position is simply that Gordon was apprehended while possessing, with the intent to distribute, a quantity of cocaine. The government had no knowledge of the source of the cocaine or that Gordon was involved in a conspiracy with others. At sentencing Gordon offered no evidence regarding the scope of his involvement with another participant or any other evidence on which the district court could base a finding of reduced culpability or involvement justifying his classification as a minor participant. Although Gordon correctly asserts that the number of defendants indicted does not determine whether there was more than one participant involved in the offense, there was no" }, { "docid": "16454645", "title": "", "text": "she was substantially less culpable than the average participant in similar crimes); De La Cruz, 996 F.2d at 1314 (giving as examples of a minimal participant “someone who played no other role in a very large smuggling operation than to offload part of a single marijuana shipment” or someone who “was recruited as a courier for a single smuggling operation involving a small amount of drugs”) (quoting USSG § 3B1.2 cmt. (n.2)). In short, a defendant must be a plainly peripheral player to justify his classification as a minimal participant. This standard is hard to meet and, accordingly, it will be the rare case in which a defendant will warrant designation as a minimal participant. See USSG § 3B1.2, cmt. (n.4). That is especially so since a defendant who seeks a downward role adjustment bears the burden of proof on that issue. United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir.1990). With this framework in mind we return to the instant case. At the disposition hearing, the appellant argued that his role was minimal because he was to act only as a courier and lacked an understanding of the scope of the criminal enterprise. He makes essentially the same argument on appeal, insisting that such things as his somewhat equivocal answer when asked if he was at the garage to pick up the thirty-five kilograms of cocaine, his absence during the pre-sale negotiations, his method of compensation (he was to be paid a flat fee, not a share of the anticipated profits), and his inability to open the vehicle’s “hide” indicate how far removed he was from the protagonists. To be sure, all of these things count in the appellant’s favor — but they tell only a part of the story. For one thing, the appellant’s argument overlooks that the quantity of drugs involved in this transaction was very large — and the appellant should have known as much. That fact militates against a finding that his role was minimal. See, e.g., United States v. Rodriguez Cortes, 949 F.2d 532, 547 (1st Cir.1991) (holding that “twenty-six kilos of cocaine" }, { "docid": "23603807", "title": "", "text": "the evidence demonstrates that the defendant knew the essential objective of the conspiracy; knowing all the details of the conspiracy or playing more than a minor role is not necessary for conviction. United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984); see United States v. Carter, 760 F.2d 1568, 1582 (11th Cir.1985) (A conspirator need not be privy to all the details of the conspiracy, aware of all the other conspirators, or participate in every stage of the conspiracy in order to have his conviction upheld.); United States v. Garcia, 721 F.2d 721, 725 (11th Cir.1983) (A leadership role is irrelevant, “an individual cannot escape criminal responsibility merely because he played a minor role in the conspiracy.”). Based upon culpability, the Sentencing Guidelines § 3B1.2 commentary defines and illustrates a “minimal” or “minor” participant in any criminal activity, enabling the district court to give a convicted defendant a downward adjustment in sentencing: 1. Subsection (a) applies to a defendant who plays a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. 2. It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs. Sentencing Guidelines § 3B1.2, Commentary, Application Notes 1, 2. Depending on his culpability, a drug courier is not necessarily a minor or minimal participant within the meaning of the Sentencing Guidelines. United States v. Velasquez, 868 F.2d 714, 715 (5th Cir.1989); United States v. Gallegos, 868 F.2d 711," }, { "docid": "22267118", "title": "", "text": "drugs deemed attributable to his conduct. The government failed to prove by a preponderance of the evidence that Shonubi imported more than 427.4 grams of heroin; only speculation links appellant to any importation of drugs beyond 427.4 grams. The district court’s factual findings to the contrary when it imposed sentence were therefore necessarily predicated on surmise and conjecture. As such, they were clearly erroneous. Ill Role in the Offense Further, appellant asserts that he proved by a preponderance of the evidence that he was only a minor or minimal participant in heroin importation. The district court refused to so find and therefore did not reduce his sentence. The Sentencing Guidelines provide for a two-level decrease in offense level where a defendant is a “minor participant” in criminal activity and a four-level decrease for a defendant who is a “minimal participant.” U.S.S.G. § 3B1.2. The defendant must prove his or her reduced culpability by a preponderance of the evidence. See United States v. Lopez, 937 F.2d 716, 726-27 (2d Cir.1991). A sentencing court’s assessment of the defendant’s role in criminal activity is highly fact-specific and depends upon “the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.” United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990) (per curiam). Shonubi describes his role in heroin smuggling as that of a lowly courier. He insists he must be a minor or minimal participant because he had no money to acquire heroin independently and no accumulated drug profits. In rejecting this characterization, the trial court stated: “[defendant was not the foolish, occasionally even unwitting, drug mule who frequently comes before this court.” Shonubi, 802 F.Supp. at 864. Instead, it believed appellant “regularly and systematically engaged in the business of narcotics trafficking” and “deserve[d] no leniency.” Id. A defendant’s courier status does not entitle him automatically to the benefit of the minor and minimal role adjustments. See Garcia, 920 F.2d at 155. Nor do limited finances prove that a defendant" }, { "docid": "23443600", "title": "", "text": "to the DEA agents that he was involved in a conspiracy to distribute 50 kilograms of cocaine; the fact that the kilogram of cocaine that was found in Lopez’s hotel room was 93% pure, which suggests that Lopez was a well-connected dealer, capable of obtaining a large quantity of cocaine. In light of this evidence, the district court’s conclusion was not clearly erroneous. See United States v. Lanese, 890 F.2d 1284, 1291 (2d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990). 2. Trujillo. Trujillo contends that the district court incorrectly applied the Guidelines by refusing an adjustment for his minimal role in the offense and for his acceptance of responsibility. Neither of these claims has merit. The district judge gave Trujillo a two-point reduction for “minor” participation. Not satisfied with this reduction, Trujillo asserts that because his “role cannot be discerned from the record, it would be inappropriate to consider him anything more than a ‘minimal’ participant.” In requesting such a reduction, the defendant bears the burden of proving by a preponderance of the evidence that his role in the offense was a minor one. See United States v. Garcia, 920 F.2d 153, 156 (2d Cir.1990) (per curiam). To the extent that the defendant’s role cannot be discerned from the record, he has not carried his burden. Trujillo offers no basis for his assertion that any ambiguity as to his role in the conspiracy should be resolved in his favor, and certainly the district judge “is not bound to accept a defendant’s own declarations, made with the purpose of reducing his sentence, about the circumstances of his crime.” United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). Furthermore, the Guidelines are clear that “the downward adjustment for a minimal participant will be used infrequently”. U.S.S.G. § 3B1.2, comment, (n. 2). We have held that a “steerer” in a drug transaction—an individual who directs buyers to furtive sellers—was not a “minimal participant” because he “demonstrated his knowledge of the [drug] scheme and of the activities" }, { "docid": "9332430", "title": "", "text": "a “minor participant” in the activity. U.S.S.G. § 3B1.2. The application notes to the commentary to this section state that the downward “adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” Id., application note 2. Application note 3 states that “a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal.” The record fully supports the district court’s finding that there was “no basis for making a determination that any one of them was either a minor or minimal participant ...” Cacho knew that all four women were attempting to bring into the United States a substantial amount of cocaine. She travelled together with the other three and all were obvious participants in a plan to smuggle a substantial amount of drugs. Contrary to Cacho’s contention, the fact that the cocaine she had was slightly less in amount and of a lower degree of purity than the drugs carried by the other conspirators did not make her the least culpable of them. All were equally culpable. Although she was a courier who carried the drugs into the United States, that fact alone does not establish that she was either a minimal or a minor participant in the conspiracy. United States v. Smith, 918 F.2d 1551, 1564 (11th Cir.1990); United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.1989) (citing United States v. Buenrostro, 868 F.2d 135, 138-39 (5th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990)). III. Cacho also argues that the district court should have made a downward departure from the Guidelines to reflect her status as the mother of four small children. She contends that in denying such a downward departure, the district court acted on the erroneous belief" }, { "docid": "22792457", "title": "", "text": "Furthermore, the presentence report stated that “[although Ms. Headley may have had full knowledge of the scope of this crime, it appears that her actual involvement may have been limited to that of being a courier on several occasions.” This certainly put counsel on notice that it might have been fruitful to seek a downward adjustment ranging from two to four levels based on Headley’s minimal or minor role in the offense. The Commentary to Section 3B1.2 explains that the role in offense adjustment is designed “for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, comment. One of the examples contained in the Commentary to this section illustrating an appropriate downward adjustment for a minimal participant involves a defendant who was hired by a marijuana importation conspiracy to offload part of a single shipment of marijuana or a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs. U.S.S.G. § 3B1.2 comment, (n. 2). There is no rational basis to believe that Headley’s trial counsel’s failure to argue adjustment was a strategic choice. Clearly it falls outside the prevailing professional norms. Given the scope of SNO and the district court’s express willingness to consider departure, it is reasonable to believe that the outcome of the proceeding may have been different had counsel argued for adjustment. We do not suggest that an adjustment for role in the offense was required. The fact that a defendant’s participation in a drug operation was limited to that of courier is not alone indicative of a minor or minimal role. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989) (determination of minor or minimal role status “turns upon culpability, not courier status”), cert. denied, — U.S. -, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); see also United States v. White, 875 F.2d 427, 434 (4th Cir.1989). As the Second Circuit recently said, “the culpability of a defendant courier must depend necessarily on such factors as the nature" }, { "docid": "14813212", "title": "", "text": "a single smuggling transaction involving a small amount of drugs,” § 3B1.2, comment, (n.2), a courier can play as active and culpable a part in a drug offense as another participant, whether or not that participant is another courier. In reaching this conclusion, we fall in line with all of the circuits that have addressed this issue. See United States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Garcia, 920 F.2d 153 (2d Cir.1990); United States v. Headley, 923 F.2d 1079 (3d Cir.1991); United States v. White, 875 F.2d 427, 434 (4th Cir.1989); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989); United States v. Zweber, 913 F.2d 705 (9th Cir.1990); United States v. Maldonado-Campos, 920 F.2d 714, 717 (10th Cir.1990); United States v. Smith, 918 F.2d 1551, 1556 (11th Cir.1990). Although we conclude that Caballero could be considered a “minor” participant, we remand the case to the trial court for resentencing because it appears that it did not apply the proper legal standard. In determining that Caballero was a minor participant, the court reasoned: I think it is really unfortunate, to say the least, that Congress has seen fit to have these extraordinarily high mandatory minimum sentences for people like this defendant who really are just couriers and do not have major responsibility for the drug plague that plagues this country. This statement manifests that the court adjusted Caballero’s sentence solely because of his status as a courier. Because this basis is by itself inadequate to support a downward adjustment under section 3B1.2, we are compelled to remand the sentencing portion of this case for clarification and application of the correct legal standard. See United States v. Lam Kwong-Wah, 924 F.2d 298 (D.C.Cir.1991) (remand is appropriate when trial court makes error of law in application of sentencing guidelines). It is so ordered. . At trial Caballero contested these facts and" }, { "docid": "23096252", "title": "", "text": "participant” or a “minor participant” is among these sophisticated factual determinations, and these findings “enjoy the protection of the clearly erroneous standard.” Although we encourage judges to supply more specific factual findings, a simple statement that the defendant was not a “minor participant” will suffice as a factual finding. United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989). See also United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.1989). Madrid-Mutio places great emphasis upon the second application note accompanying Guideline 3B1.2. That note first observes that the “minimal participant” adjustment should be used infrequently. It goes on to state that the adjustment “would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” Madrid-Mutio contends that he is the sort of courier mentioned in the last phrase of the application note. We have held, however, that a defendant may be a courier without being either a minimal participant or a minor participant. Buenrostro, 868 F.2d at 139. Minimal participant status is not a legal conclusion derived by applying the guidelines to factual determinations. It, like “manager” status within the meaning of § 3B1.1, is itself a factual determination. That determination turns upon culpability, not courier status. As we said in Buenrostro, a defendant may be a courier without being substantially less culpable than the average participant. Culpability is a determination requiring sensitivity to a variety of factors. The example which the defendant relies upon is part of an application note restricting use of the minimal participant adjustment. The example suggests that some couriers may appropriately receive the reduction; it does not suggest that all couriers are entitled to a downward adjustment. Buenrostro, 868 F.2d at 138. If the Sentencing Commission wished to establish a special downward adjustment for all drug couriers, it could easily have done so. It could have included courier status as a specific offense characteristic in" }, { "docid": "22215598", "title": "", "text": "package to the undercover officer whom he had never met; and Monsalve was to receive $150 for his part whereas Garcia and Pala-da were to receive, respectively, $1000 and from $500 to $700 for theirs. In short, Monsalve asserts: “Garcia was the coordinator, Palacio the steerer and Monsalve the courier.” Under such circumstances, Mon-salve maintains, the district court’s refusal to find that he was a “minor” participant pursuant to § 3B1.2 and to reduce his offense level by two levels was clearly erroneous. To the extent that Monsalve claims that one who is simply a courier is automatically entitled to a § 3B1.2 minor role adjustment based on that status, we reject his argument. Whether a defendant may be accorded the benefit of a “minor” or “minimal” role adjustment under § 3B1.2 does not turn solely upon his status or his assigned task in the criminal enterprise. Such a cramped view of “role” is inconsist-• ent with the prescription in the Guidelines that this determination is to be made not with regard to status in the abstract but rather with regard to the defendant’s culpability in the context of the facts of the case. See § 3B1.2 Background Commentary, stating that the range of adjustments in § 3B1.2 are “for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant” and that the determination “is heavily dependent upon the facts of the particular case.” Our sister circuits, when faced with the argument that the district court erred in not awarding courier status with a downward adjustment for a minor or minimal role in the offense, have similarly rejected it. United States v. Paz-Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989); United States v. Williams, 890 F.2d 102, 104 (8th Cir.1989); United States v. Hewin, 877 F.2d 3, 4-5 (5th Cir.1989); United States v. White, 875 F.2d 427, 434 (4th Cir.1989); United States v. Buenrostro, 868 F.2d 135, 138 (5th" }, { "docid": "23443601", "title": "", "text": "preponderance of the evidence that his role in the offense was a minor one. See United States v. Garcia, 920 F.2d 153, 156 (2d Cir.1990) (per curiam). To the extent that the defendant’s role cannot be discerned from the record, he has not carried his burden. Trujillo offers no basis for his assertion that any ambiguity as to his role in the conspiracy should be resolved in his favor, and certainly the district judge “is not bound to accept a defendant’s own declarations, made with the purpose of reducing his sentence, about the circumstances of his crime.” United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). Furthermore, the Guidelines are clear that “the downward adjustment for a minimal participant will be used infrequently”. U.S.S.G. § 3B1.2, comment, (n. 2). We have held that a “steerer” in a drug transaction—an individual who directs buyers to furtive sellers—was not a “minimal participant” because he “demonstrated his knowledge of the [drug] scheme and of the activities of other participants.” United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, — U.S.-, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). In the present case, there was clear evidence to indicate that Trujillo was more than the type of minimal participant contemplated by the Guidelines: he knew of the plan to sell 50 kilograms of cocaine; he travelled from Miami to New York to help with the transaction; and there was testimony that he expected a large payment for his services. This is hardly minimal participation, and the district court’s conclusion to refuse an adjustment on this basis was not erroneous. See United States v. Parker, 903 F.2d 91, 103-04 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). Trujillo also argues that he should have received an adjustment for his acceptance of responsibility. Prior to sentencing, Trujillo acknowledged that he had travelled to New York City to assist in a one-kilogram transaction, but he continued to maintain that he had no involvement in the 50-kilogram transaction." }, { "docid": "23603808", "title": "", "text": "minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. 2. It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs. Sentencing Guidelines § 3B1.2, Commentary, Application Notes 1, 2. Depending on his culpability, a drug courier is not necessarily a minor or minimal participant within the meaning of the Sentencing Guidelines. United States v. Velasquez, 868 F.2d 714, 715 (5th Cir.1989); United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.1989); see United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.1989) (A one-time courier of eighteen kilograms of cocaine was not a minimal participant; “§ 3B1.2 turns upon culpability, not courier status.” A defendant “may be a courier without being substantially less culpable than the average participant.”), cert. denied, — U.S. -, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). King was convicted of conspiracy to import 162 kilograms of cocaine. He was sentenced under the Sentencing Guidelines formula for only the fifty kilograms with which he was directly involved, and he was given the minimum sentence for that amount. Obviously, the district court did consider King’s culpability in sentencing him and we cannot find that his sentence was clearly erroneous given the record evidence of his knowledge and involvement in the subject Panamanian cocaine importation operation. D. Conclusion For the reasons stated above, we AFFIRM the rulings of the district court and the convictions of defendants-appellants Oscar Smith, Regina Smith and Gary King. . The testimony revealed that Regina Smith and Bigelow" }, { "docid": "14813211", "title": "", "text": "defendant convicted of this offense can be a “minor” participant. Before it may find that a defendant was a minor participant in the offense, however, the evidence available to the court at sentencing must, at a minimum, show (i) that the “relevant conduct” for which the defendant would, within the meaning of section 1B1.3(a)(1), be otherwise accountable involved more than one participant (as defined in section 3B1.1, comment, (n.l)) and (ii) that the defendant’s culpability for such conduct was relatively minor compared to that of the other participant(s). The application of section 3B1.2 is inherently fact-bound and largely committed to the discretion of the trial judge. Here the trial court appears to have based its downward adjustment solely on the basis of Caballero’s courier status. We disagree that Caballero’s status as a courier, by itself, is enough to support a finding that he was a “minor” participant. Notwithstanding the fact that the Guidelines use as an example of a “minimal” participant (a level of participation less culpable than “minor”) someone “recruited as a courier for a single smuggling transaction involving a small amount of drugs,” § 3B1.2, comment, (n.2), a courier can play as active and culpable a part in a drug offense as another participant, whether or not that participant is another courier. In reaching this conclusion, we fall in line with all of the circuits that have addressed this issue. See United States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Garcia, 920 F.2d 153 (2d Cir.1990); United States v. Headley, 923 F.2d 1079 (3d Cir.1991); United States v. White, 875 F.2d 427, 434 (4th Cir.1989); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989); United States v. Zweber, 913 F.2d 705 (9th Cir.1990); United States v. Maldonado-Campos, 920 F.2d 714, 717 (10th Cir.1990); United States v. Smith, 918 F.2d 1551, 1556 (11th Cir.1990). Although we conclude that Caballero" } ]
195010
Anderson’s testimony was material to the issues before the jury in the Marine trial. Judge Anderson finally contends that the district court’s finding that his testimony at the Marine trial was material is inconsistent with the jury’s acquittal of Judge Anderson on Count 3 of the indictment. According to Judge Anderson, the jury, in finding him not guilty of the crime of obstructing justice as charged in Count 3, “necessarily had to determine that the Defendant did not endeavor to ‘influence, obstruct, and impede’ the administration of justice by giving false and misleading testimony under oath.” Although specific intent to impede the administration of justice is an essential element of a violation of 18 U.S.C. § 1503 (obstruction of justice), REDACTED see also McComb, 744 F.2d at 561, the question of the materiality of an allegedly false statement under 18 U.S.C. § 1623 is separate and distinct from the question of whether a defendant had specific intent to impede the administration of justice. For an allegedly false statement to be material pursuant to § 1623, it must be “capable of influencing the tribunal on the issue before it,” Scivola, 766 F.2d at 44, but § 1623 provides: “whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury or permitted under § 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes
[ { "docid": "22815956", "title": "", "text": "to that jury’s investigation. Intent to obstruct justice is normally something that a jury may infer from all of the surrounding facts and circumstances. See United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); cf. United States v. Dibrizzi, 393 F.2d 642, 644 (2d Cir.1968) (dealing with intent to embezzle). Were it not for the fact that the documents were subpoenaed, such an inference would doubtless have been permissible in this case. But here the ledger and loan agreements were produced pursuant to subpoena and even though there was ample proof of their being falsely backdated, there was no evidence of Kamiyama’s corrupt intent in producing them. Whether or not Kamiyama could have resisted production, as the government argues, evidence of this government theory was not before the trial jury. Without it, a reasonable doubt as to Kamiyama’s mens rea exists. Therefore, his Count Seven conviction must be reversed. B. False Declarations Before the Grand Jury Kamiyama also attacks his convictions under Counts Eleven, Twelve and Thirteen of the main indictment and the only count of the additional indictment (No. 194). As earlier noted, those counts charged Kamiya ma with making false declarations to a grand jury, in violation of 18 U.S.C. § 1623 (Supp. V 1981). That statute provides in pertinent part that “[wjhoever under oath ... in any proceeding before or ancillary to any ... grand jury of the United States knowingly makes any false material declaration” shall be guilty of a crime. 18 U.S.C. § 1623(a). Before addressing the precise issues raised some background information is necessary. In March 1981 Kamiyama appeared before the June 1980 Additional Grand Jury for the Southern District of New York (Grand Jury) but refused, on Fifth Amendment grounds, to testify. In July 1981 Kamiyama changed his mind and testified before both the Grand Jury and a substitute grand jury which was filling in for the Grand Jury while its members were on vacation. Counts Eleven, Twelve, Thirteen and No. 194 involve statements initially made and recorded before this substitute" } ]
[ { "docid": "8060562", "title": "", "text": "of the Government’s case in chief. Cross, 335 F.2d at 988 n. 2. In this case, however, we can find no evidence in the record that defendant renewed his motion to sever after trial began, even though he was explicitly invited to do so by the district court. . In this appeal, defendant argues that his prosecution for perjury should have been barred because, by pleading guilty to the charge of receiving stolen property before the conclusion of trial, he had admitted to having given false testimony in time to take advantage of the recantation defense of 18 U.S.C. § 1623(d). See infra part III. . See supra, note 1. . Defendant was indicted for committing perjury, in violation of 18 U.S.C. § 1623(a). That section states: “§ 1623. False declarations before grand jury or court “(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.\" 18 U.S.C. § 1623(a) (1982). . The court did not permit the jury to determine whether either of the alleged false statements by defendant were material within the meaning of 18 U.S.C. § 1623(a). The court concluded that, as a matter of law, both statements were material. The court stated to the jury: \"When I quoted to you from the statute, paraphrased the statute, I did tell you that the false statements, if they were made, would have had to be material false statements, and then I did not say anything further about materiality. That’s because I am satisfied that if the other requirements of the crime of perjury has [sic] been proven beyond a reasonable doubt, and I’m not suggesting either that" }, { "docid": "14031414", "title": "", "text": "cross-examination (from his drug-trafficking trial) were played to the jury to demonstrate the appellant’s ability to speak English. Moreover, numerous witnesses testified that Judge Newblatt did not tell the jury that Gomez-Vigil was guilty of drug-trafficking. Gomez-Vigil took the stand and indicated that he could not speak English very well, adding that a jailhouse lawyer “prepared the motion and ‘Declaration in Support’ which Appellant signed and filed directly with Judge Newblatt who presided over his previous trial.” Appellant’s Brief at 3. Moreover, “Appellant further explained that he believed that the jury’s request during deliberations to replay the testimony angered Judge Newblatt. He interpreted Judge Newblatt’s leaving the court while the tape of the testimony was played as proof of his anger. When the tape broke in the middle of the testimony, Appellant interpreted Judge Newblatt’s not ordering the balance of the testimony to be played as a purposeful attempt to influence the jury against him.” Id. On February 13, 1990, the jury found Gomez-Vigil guilty of both perjury counts. On May 7, 1990, Gomez-Vigil was sentenced to concurrent 24-month terms (which represented a downward departure from the 51-63 month Sentencing Guidelines’ range recommended in the presen-tence report). Gomez-Vigil thereafter filed a timely notice of appeal. II. Gomez-Vigil’s April 3, 1989 statements were deemed perjurious by the district court because the appellant offered the untruthful statements “under the penalty of perjury.” See Appellant’s April 3, 1989 “Declaration in Support.” 18 U.S.C. § 1623 (“False declarations before grand jury or court”) provides: (a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,-000 or imprisoned not more than five years, or both. 18 U.S.C. § 1623. Pursuant to the incorporation by" }, { "docid": "6487516", "title": "", "text": "eye contact with Brown, Brown began to run, and the white officer followed. Eventually, the white officer caught Brown and arrested him. At trial, Brown testified that the arresting officer was the same tall white officer he had made eye contact with through the fence. On August 14,1997, Conley was charged in a three-count indictment arising from his grand jury testimony. Count One charged that Conley committed perjury, in violation of 18 U.S.C. § 1623, by denying that he saw Cox chase, pursue, and grab hold of a suspect as that suspect ran toward and climbed the fence at Woodruff Way. Count Two charged that Conley also committed perjury by denying that he saw Boston police officers strike and kick Cox. Count Three charged that Conley obstructed and endeavored to obstruct the grand jury investigation by giving false, evasive, and misleading testimony and withholding information, in violation of 18 U.S.C. § 1503. On June 10, the jury returned verdicts of guilty on Counts One and Three and not guilty on Count Two. DISCUSSION On appeal, Conley raises several challenges to his conviction. We address each of his challenges in turn. 1. The Testimony of the Grand Juror Title 18 U.S.C. § 1623 states, in relevant part: Whoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1623. It is uncontested that a conviction under § 1623 requires that the statements made be “material” to the proceeding, here a grand jury investigation. See id. It is also uncontested that “materiality” is an element that the government bears the burden of proving. The question presented by defendant-appellant Conley is whether the district court erred in allowing the government to prove this element by calling Jeanne LaBelle, a member of the grand jury that investigated the Cox incident, to testify as to the scope and purpose of the grand jury’s investigation. Conley contends that the district court" }, { "docid": "5094522", "title": "", "text": "these instances he is charged with violations of 18 U.S.C. § 1623, which makes it a crime knowingly to make a false material declaration under oath in any proceeding before a Court or Grand Jury. In addition, he is also charged, based upon the very same alleged false testimony before the Grand Jury and the Trial Court, in two separate Counts, Nine and Ten, with violations of Section 1503 of Title 18, the obstruction of justice statute. This section provides in pertinent part that one who corruptly ... endeavors to influence ... or impede any grand or petit juror, or officer in or of any court of the United States, ... in the discharge of his duty, ... or corruptly ... impedes, or endeavors to influence, obstruct, or impede, the due administration of justice [commits a crime]. The thrust of the statute extends to investigative activities by authorized agencies, such as the Federal Bureau of Investigation, to a Grand Jury proceeding, or to a trial following indictment. The law is designed to prevent a miscarriage of justice by corrupt methods. It is aimed at the widest variety of means and conduct that impede the functioning of the judicial process, whether it be an investigation, a Grand Jury inquiry, or a trial proper. Here the Government contends that Marshall, by his alleged willful and knowing false testimony with respect to the $20,000 in currency found on his premises, corruptly endeavored to influence, obstruct, or impede the due administration of justice in one instance before the Grand Jury and in another upon the trial proper. It is also alleged that by giving false testimony Marshall committed overt acts in furtherance of the conspiracy charged in Count One. That count charges a conspiracy to commit various crimes related to the Sentry theft, including obstruction of justice and false swearing. Marshall first moves to dismiss the conspiracy count upon the grounds that his indictment thereunder was obtained through the use of his immunized testimony and that such testimony will be used against him at trial. He testified before the Grand Jury and upon the" }, { "docid": "18563627", "title": "", "text": "the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned more than five years or both.” 18 U.S.C. § 1623(a). Thus § 1623 fails to contain any requirement that the defendant making the false statement have the specific intent to impede the administration of justice. The fact that the jury found Orval Anderson not guilty of obstruction of justice in Count 3 is not inconsistent with the court’s finding that his testimony in the Marine trial that he never disposed of DUI cases in his chambers without the presence of prosecutors was material. We hold the district court properly determined that Judge Orval Anderson’s false statement in the Marine trial concerning the disposition of DUI cases was material. C. The Falsity of Judge Orval Anderson’s Testimony The defendant-appellant maintains that his answers to the government’s questions were not false and therefore were insufficient to support a conviction on the charge of perjury. Judge Anderson emphasizes that prior to the alleged false material testimony, the government asked him seven questions using the word “hearing”: “Q Mr. Thiros talked to you about who was present in court when you had hearings in court, do you remember those questions by him? A Did he say something about that? Q Well, do you recall telling him that one of the three girls was present in court when you had the hearings in court? A Yes. Yes. Q Who else would be present in court when you would have hearings in court? A You would have the bailiffs, the court reporters, clerk and myself. Q Were your hearings always held in court during the period of January 1st, 1980 through April of 1983? A Except in unusual circumstances. Q In those unusual circumstances, where would the hearings be held? A In the chambers. Q And who would be present at that time? A Court reporter, prosecutor, also in the courtroom prosecutor — court reporter, prosecutor. If the court reporter wasn’t available, why we would tape record the proceedings. Q To your knowledge were any proceedings ever" }, { "docid": "13461057", "title": "", "text": "GARWOOD, Circuit Judge: Anthony J. Vesich, Jr. appeals from a judgment of conviction for corruptly endeavoring to influence, obstruct and impede the due administration of justice (18 U.S.C. § 1503) and for perjury before a grand jury (18 U.S.C. § 1623). Following a jury trial, Vesich was sentenced to eighteen months’ imprisonment on the obstruction charge and eighteen months’ imprisonment, twelve of which were suspended, on the perjury charge. The obstruction charge was that on or about January 6,1982, Vesich advised, urged and attempted to persuade a potential grand jury witness, Robert Fragale, to testify falsely before the United States Grand Jury for the Eastern District of Louisiana. The perjury charge was that during an October 21,1982 grand jury appearance, Vesich falsely denied advising anyone to lie to a federal grand jury. Vesich’s motion for judgment of acquittal was denied by the trial judge. United States v. Vesich, 558 F.Supp. 1192 (E.D.La.1983). Vesich argues on appeal that the evidence was insufficient to establish that a judicial proceeding was “pending” as required to constitute a violation of the “due administration” clause of 18 U.S.C. § 1503 or that he knew of such a proceeding. Vesich also contends that his perjury conviction must be reversed for evidential insufficiency and other grounds. He finally argues that trial testimony referring to “case fixing” and the bribery of a state judge substantially prejudiced his defense and requires a new trial as to both counts. Rejecting these contentions, we affirm. OBSTRUCTION OF JUSTICE Section 1503 is designed to protect individuals involved in federal judicial proceedings, as well as to prevent “miscarriage[s] of Justice by corrupt methods.” Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). The language of section 1503 in effect in January 1982 was divisible into two parts. Its beginning and more specific language forbade corrupt endeavors to influence, intimidate or impede any witness, juror, or court official, while its concluding omnibus clause punished corrupt endeavors to influence, obstruct, or impede the “due administration of justice.” United States v. Howard, 569" }, { "docid": "23644536", "title": "", "text": "United States Grand Jury---- Appendix at 34. Appellants urge reversal of their conviction under Count 5 on two grounds: (1) the indictment does not meet this circuit’s specificity requirements in false statements cases, and (2) Kate Edelman was not a “witness” within the meaning of § 1503. In support of their first contention, appellants cite this court’s decisions in United States v. Slawik, 548 F.2d 75 (3d Cir. 1977), and United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978). Each of these cases involved a challenge to an indictment under 18 U.S.C. § 1623, which provides in part: Whoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both. Because materiality and falsity are expressly included as elements of an offense under § 1623, this court imposed a requirement of specificity in the indictment: We find the same prosecutorial deficiency which undermined the Slawik conviction — -the failure to specifically allege in the indictment the precise falsehoods charged — exists here. Tonelli, 577 F.2d at 196. Appellants contend that the same specificity requirement should be imposed on an indictment under 18 U.S.C. § 1503. We cannot agree. Although the method employed by appellants in violating § 1503 consisted of an attempt “to cause Kate Edelman to render false and misleading testimony,” this case is not thereby transformed into a “false statements case,” as appellants contend. Rather, it is an obstruction of justice case. Materiality and falsity are not elements of the crime charged here. We conclude that an indictment under § 1503 for endeavoring to obstruct justice, which is based upon an attempt to induce the rendering of false testimony, need not satisfy the specificity requirements imposed by Slawik and Tonelli for a § 1623 violation. Appellants’ second contention is that Kate Edelman was not a “witness” within the meaning of § 1503. While this may be true, it is entirely irrelevant. Appellants were charged" }, { "docid": "18563624", "title": "", "text": "attempt to do so. We further note that the trial court did not place “sole reliance” on the testimony of the defendant Judge Orval Anderson in the Marine trial. Rather the district judge considered “matters submitted on the issue of materiality, which included but is not limited to the testimony Mr. Nick Thiros given on this date together the testimony of Judge Anderson, the indictment and matters submitted to the court for review but not made available to the jury.” In light of the matters properly determined to be relevant and thus considered by the district court, the court properly concluded that John Marine’s defense was, inter alia, that he was unable to affect the outcome of the cases he allegedly “fixed” because of the strict procedures employed in the Lake County Court system as purportedly established by Judge Anderson’s testimony. Judge Anderson’s testimony that he never disposed of DUI cases in his chambers without prosecutors being present increased the credibility of Marine’s defense that he (Marine) was unable to “fix” cases as it would be more difficult to fix a DUI case if the prosecutor were always advised of its disposition (unless the prosecutors participated in the miscarriage of justice of fixing cases as well as the judge). Thus Judge Anderson’s testimony that he never disposed of DUI cases in chambers without the presence of a prosecutor “was capable of influencing the tribunal on the issue before it [the ability of the Marine defendants’ to fix tickets in the Lake County Court]” Scivola, 766 F.2d at 44. We hold that there is more than ample relevant evidence in the record to support the district court’s ruling that Judge Orval Anderson’s testimony was material to the issues before the jury in the Marine trial. Judge Anderson finally contends that the district court’s finding that his testimony at the Marine trial was material is inconsistent with the jury’s acquittal of Judge Anderson on Count 3 of the indictment. According to Judge Anderson, the jury, in finding him not guilty of the crime of obstructing justice as charged in Count 3, “necessarily" }, { "docid": "18563626", "title": "", "text": "had to determine that the Defendant did not endeavor to ‘influence, obstruct, and impede’ the administration of justice by giving false and misleading testimony under oath.” Although specific intent to impede the administration of justice is an essential element of a violation of 18 U.S.C. § 1503 (obstruction of justice), United States v. Moon, 718 F.2d 1210, 1236 (2nd Cir.1983); see also McComb, 744 F.2d at 561, the question of the materiality of an allegedly false statement under 18 U.S.C. § 1623 is separate and distinct from the question of whether a defendant had specific intent to impede the administration of justice. For an allegedly false statement to be material pursuant to § 1623, it must be “capable of influencing the tribunal on the issue before it,” Scivola, 766 F.2d at 44, but § 1623 provides: “whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury or permitted under § 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned more than five years or both.” 18 U.S.C. § 1623(a). Thus § 1623 fails to contain any requirement that the defendant making the false statement have the specific intent to impede the administration of justice. The fact that the jury found Orval Anderson not guilty of obstruction of justice in Count 3 is not inconsistent with the court’s finding that his testimony in the Marine trial that he never disposed of DUI cases in his chambers without the presence of prosecutors was material. We hold the district court properly determined that Judge Orval Anderson’s false statement in the Marine trial concerning the disposition of DUI cases was material. C. The Falsity of Judge Orval Anderson’s Testimony The defendant-appellant maintains that his answers to the government’s questions were not false and therefore were insufficient to support a conviction on the charge of perjury. Judge Anderson emphasizes that prior to the alleged false material testimony, the government asked" }, { "docid": "21596089", "title": "", "text": "been arrested? A: No. Q: Have you ever been charged by State or Federal authorities with any crime? A: No. Q: Really, I’m not asking whether you’ve been convicted; Pm asking whether you’ve been charged? A: No, not that I remember. At trial, the government presented testimony to show that Kross was aware of the use and cultivation of the marijuana by Park residents. Evidence also showed that Kross had been charged with felonies in Vermont state court in 1980 and 1990. II. Discussion Kross argues that the district court erred in denying her pretrial motion to dismiss the indictment on the grounds that the information sought in the deposition was immaterial to the underlying forfeiture proceeding, that the deposition questions at issue were fundamentally ambiguous and that her statements were literally true. A. Materiality Section 1623(a) of Title 18 of the United States Code provides, in relevant part: Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. (Emphasis supplied). Kross contends that the indictment should have been dismissed because none of her allegedly false declarations were material to the civil forfeiture action. We disagree. We have consistently held in the grand jury context that a false declaration is “material” within the meaning of § 1623 when it has “‘a natural effect or tendency to influence, impede or dissuade the grand jury from pursuing its investigation.’ ” United States v. Kiszewski 877 F.2d 210, 218 (2d Cir.1989) (quoting United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980)). We have pointed out that in a § 1623 prosecution for false declarations to a grand jury, [mjatters arguably cumulative or collateral to the grand jury’s objective in a given case are considered for" }, { "docid": "18563625", "title": "", "text": "be more difficult to fix a DUI case if the prosecutor were always advised of its disposition (unless the prosecutors participated in the miscarriage of justice of fixing cases as well as the judge). Thus Judge Anderson’s testimony that he never disposed of DUI cases in chambers without the presence of a prosecutor “was capable of influencing the tribunal on the issue before it [the ability of the Marine defendants’ to fix tickets in the Lake County Court]” Scivola, 766 F.2d at 44. We hold that there is more than ample relevant evidence in the record to support the district court’s ruling that Judge Orval Anderson’s testimony was material to the issues before the jury in the Marine trial. Judge Anderson finally contends that the district court’s finding that his testimony at the Marine trial was material is inconsistent with the jury’s acquittal of Judge Anderson on Count 3 of the indictment. According to Judge Anderson, the jury, in finding him not guilty of the crime of obstructing justice as charged in Count 3, “necessarily had to determine that the Defendant did not endeavor to ‘influence, obstruct, and impede’ the administration of justice by giving false and misleading testimony under oath.” Although specific intent to impede the administration of justice is an essential element of a violation of 18 U.S.C. § 1503 (obstruction of justice), United States v. Moon, 718 F.2d 1210, 1236 (2nd Cir.1983); see also McComb, 744 F.2d at 561, the question of the materiality of an allegedly false statement under 18 U.S.C. § 1623 is separate and distinct from the question of whether a defendant had specific intent to impede the administration of justice. For an allegedly false statement to be material pursuant to § 1623, it must be “capable of influencing the tribunal on the issue before it,” Scivola, 766 F.2d at 44, but § 1623 provides: “whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury or permitted under § 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of" }, { "docid": "18563633", "title": "", "text": "a full, explanatory sentence, the truthfulness of which would be determined without reference to the question. Here, the answer was simply ‘No’; the truthfulness of that answer can be determined only by first looking to the question. Bronston simply did not deal with a yes or no answer given to a question susceptible to more than one interpretation.” 623 F.2d 1136. The court in Bell also stated, “The defendant’s understanding of the question is a matter for the jury to decide,” and “if after conviction the defendant offers ‘a contrived hypertechnical or lame interpretation of his answer’ the jury’s decision must be left undisturbed.” Id. (citations omitted). In the present case, the defendant’s explanation, offered after conviction, is a “contrived hypertechnical [and] lame interpretation” of his response to the government’s question that is almost unworthy of a legal response. The government asked Anderson, “Did you ever dispose of a case in chambers where a prosecutor wasn't present?” Anderson answered “No.” Anderson then clarified the question, asking the government attorney, “I assume you’re talking about misdemeanors. You are not talking about traffic infractions?” The government attorney explained “No, I’m talking about DUIs.” After obtaining this explanation, Anderson stated, “No, no. Always prosecutors there.” Judge Anderson’s response clearly was sufficiently explicit, direct, and responsive to the government’s question to satisfy the jury beyond a reasonable doubt that the defendant-appellant Orval Anderson knowingly made a false material statement. We hold that Judge Orval Anderson’s testimony in the Marine trial that he never disposed of a DUI case in his chambers without the presence of prosecutors was a false material statement within the meaning of § 1623 and thus supports his conviction for knowingly making a false material declaration before a United States District Court. III. The judgment of the district court is Affirmed. . \"§ 1623. False declarations before grand jury or court. (a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under § 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of" }, { "docid": "18563634", "title": "", "text": "You are not talking about traffic infractions?” The government attorney explained “No, I’m talking about DUIs.” After obtaining this explanation, Anderson stated, “No, no. Always prosecutors there.” Judge Anderson’s response clearly was sufficiently explicit, direct, and responsive to the government’s question to satisfy the jury beyond a reasonable doubt that the defendant-appellant Orval Anderson knowingly made a false material statement. We hold that Judge Orval Anderson’s testimony in the Marine trial that he never disposed of a DUI case in his chambers without the presence of prosecutors was a false material statement within the meaning of § 1623 and thus supports his conviction for knowingly making a false material declaration before a United States District Court. III. The judgment of the district court is Affirmed. . \"§ 1623. False declarations before grand jury or court. (a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under § 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,-000 or imprisoned more than 5 years, or both.” 18 U.S.C. § 1623. . Orval W. Anderson is not related to Kenneth Anderson, the defendant in the Marine trial. . During the relevant time period (January 1, 1980 through April 1983) it was a Class A misdemeanor to operate a motor vehicle while intoxicated. Ind.Code § 9-4-l-54(b)(l) (repealed 1983). A misdemeanor is a criminal offense in Indiana. Ind.Code § 35-41-1-6. . In addition, none of these eight individuals had a distinct recollection of a court reporter being present in Judge Anderson’s chambers when he handled their DUI offenses or that a tape recorder recorded the proceedings in his chambers. . The Code of Judicial Conduct and Ethics was the predecessor to the Indiana Code of Judicial Conduct, which was adopted in 1975. The court’s" }, { "docid": "2140593", "title": "", "text": "of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life. 18 U.S.C. § 242 (1982). . Section 371, Conspiracy to commit offense or to defraud United States, provides in pertinent part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. 18 U.S.C. § 371 (1982). Section 1503 defines the underlying offense at issue in this appeal. That section, labelled “Influencing or injuring officer or juror generally,” provides in pertinent part: Whoever ... corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years or both. 18 U.S.C. § 1503 (1982). .Section 1623, False declarations before grand jury or court, provides in pertinent part: (a) Whoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. (e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence. 18 U.S.C. § 1623 (1982). .Mangione and Slattery were also charged separately with obstruction of justice and making false declarations. See 1 Joint Appendix of Defendants-Appellants Harry H. Messerlian and Henry F. Wolkowski in Support of Briefs on Appeal (\"Jt. App.”) at 18a-20a. Each was acquitted on all counts. . Honorable Anne E. Thompson, United States District Judge for the District of New" }, { "docid": "18563614", "title": "", "text": "or the indictments returned by the grand jury might be examined.” Id. (citations omitted). Relying on McComb, the defendant Orval Anderson asserts: 1) that there is no authority for calling Nick Thiros, counsel for defendant John Marine in the Marine trial, to establish the scope of that trial; 2) that the Marine indictment does not allege any wrong-doing by the Marine defendants in Judge Anderson’s court; 3) that the closing argument of Nick Thiros is not evidence and thus could not be considered by the district court in establishing the materiality of Judge Orval Anderson’s testimony; 4) and that it was error for the court to consider only partial transcripts from the Marine trial, citing language from United States v. Cosby, 601 F.2d 754, 756 (5th Cir.1979), that the court has “generally looked with disfavor on prosecutions under Section 1623 that have not used complete transcripts or testimony of the grand jury.” Judge Anderson was prosecuted for making a false material declaration at a criminal trial rather than in a grand jury proceeding, thus the citation to a grand jury proceeding is distinguishable from the present case. “To be punishable under § 1623(a), a false statement must be ‘material’ to the court proceeding in which it is made.” United States v. Scivola, 766 F.2d 37, 44 (1st Cir.1985). “The materiality of a false statement ... is a question of law for the court to decide.” United States v. Raineri, 670 F.2d 702, 718 (7th Cir.1982). The test for materiality is broad: “A statement is material if it is ‘capable of influencing the tribunal on the issue before it.’ The statement need not be material to any particular issue in the case, but rather may be material to any proper matter of the jury’s inquiry, including the issue of credibility.” Scivola, 766 F.2d at 44 (citations omitted). Although the court in McComb approved the use of certain evidence in establishing the materiality of an allegedly false statement (for example, calling a member of the grand jury or the attorney who prosecuted the government case to testify as to the scope of" }, { "docid": "23644535", "title": "", "text": "Cf. Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975) (trial court given broad discretion to control closing remarks); Draper v. Aireo, Inc., 580 F.2d 91, 94 (3d Cir. 1978) (same). The trial court carefully supervised all phases of the trial, including the opening; we cannot say that he abused his discretion in finding these remarks unprejudicial. Count 5: The Obstruction of Justice Charge Count 5 of the indictment charged appellants with violating 18 U.S.C. § 1503, which provides in relevant part: Whoever . . . corruptly or by threats of force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both. Count 5 charged that appellants did corruptly endeavor to influence, obstruct and impede the due administration of justice in that the defendants endeavored to cause Kate Edelman to render false and misleading testimony before a duly empanelled United States Grand Jury---- Appendix at 34. Appellants urge reversal of their conviction under Count 5 on two grounds: (1) the indictment does not meet this circuit’s specificity requirements in false statements cases, and (2) Kate Edelman was not a “witness” within the meaning of § 1503. In support of their first contention, appellants cite this court’s decisions in United States v. Slawik, 548 F.2d 75 (3d Cir. 1977), and United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978). Each of these cases involved a challenge to an indictment under 18 U.S.C. § 1623, which provides in part: Whoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both. Because materiality and falsity are expressly included as elements of an offense under § 1623, this court imposed a requirement of specificity in the indictment: We find the same prosecutorial deficiency" }, { "docid": "19837752", "title": "", "text": "to the trial in the case at bar, turned out to be erroneous. So is the model form. In a perjury prosecution under 18 U.S.C. § 1623(a), materiality is an element of the crime and must be submitted to the jury. In United States v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), we held that the element of materiality in a prosecution for making false statements on loan documents under 18 U.S.C. § 1001 is a question of fact for the jury. The Supreme Court affirmed, in United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (U.S.1995) (No. 94-514). The ratio decidendi of the Supreme Court decision requires that Gaudin be extended to perjury prosecutions under 18 U.S.C. § 1623(a), not limited to 18 U.S.C. § 1001 cases. In Gaudin, Justice Scalia writing for a unanimous Court laid down a syllogism: The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality. Id., — U.S. at -, 115 S.Ct. at 2314. This syllogism applies with equal force to the perjury statute at issue in this case, 18 U.S.C. § 1623. Section 1623(a) provides: Whoever under oath (or in any declaration, certification, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or malees or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000' or imprisoned not more than five years, or both. 18 U.S.C. § 1628(a) (emphasis added). Materiality is an element of penury under section 1623, so the defendant is entitled to have a jury decide whether his false statement was material. Keys’ attorney, quite" }, { "docid": "18563601", "title": "", "text": "grand jury, together with other evidence demonstrating that his testimony in the Marine trial was false. The grand jury returned a three-count indictment against Judge Orval Anderson charging him with giving false material testimony at the Marine trial and obstructing justice. Count 1, based on the testimony set forth above, charged that Orval Anderson violated 18 U.S.C. § 1623 in making a false material declaration that he knew was false in that he had disposed of numerous criminal cases between January 1, 1980 and April 1983 involving the charge of Driving Under the Influence of an intoxicant in the Lake County, Indiana, County Court, in his chambers without the presence of a prosecutor. Count 2 of the indictment also alleged that Orval Anderson knowingly made a false material declaration in his testimony during the Marine trial when he “did knowingly declare ... that during any hearings in misdemeanor cases he conducted in his chambers, either a court reporter was present or a tape recording of the proceeding was made during the period January 1, 1980 through April, 1983.” Count 3 of the indictment charged Judge Anderson with obstructing the administration of justice in giving false and misleading testimony under oath in the Marine trial. The government’s evidence at Judge Orval Anderson’s trial included, inter alia, the testimony of eight individuals arrested and charged with Driving Under the Influence of intoxicants (DUI) whose cases were disposed of by Judge Anderson in his chambers without the presence of a prosecutor. The government also introduced the testimony of Nick Thiros (John Marine’s defense counsel), the transcript of John Marine’s testimony from his own trial, the transcript of Nick Thiros’ closing argument in the Marine trial, the transcript of Judge Anderson’s testimony at the Marine trial, and the indictment charging John Marine and Kenneth Anderson. Following a jury trial the defendant Orval Anderson was found guilty of the false material declaration charged in Count 1, but not guilty of the false material declaration and the obstruction of justice charges contained in Counts 2 and 3. Orval Anderson appeals his conviction on Count I, raising" }, { "docid": "18563602", "title": "", "text": "through April, 1983.” Count 3 of the indictment charged Judge Anderson with obstructing the administration of justice in giving false and misleading testimony under oath in the Marine trial. The government’s evidence at Judge Orval Anderson’s trial included, inter alia, the testimony of eight individuals arrested and charged with Driving Under the Influence of intoxicants (DUI) whose cases were disposed of by Judge Anderson in his chambers without the presence of a prosecutor. The government also introduced the testimony of Nick Thiros (John Marine’s defense counsel), the transcript of John Marine’s testimony from his own trial, the transcript of Nick Thiros’ closing argument in the Marine trial, the transcript of Judge Anderson’s testimony at the Marine trial, and the indictment charging John Marine and Kenneth Anderson. Following a jury trial the defendant Orval Anderson was found guilty of the false material declaration charged in Count 1, but not guilty of the false material declaration and the obstruction of justice charges contained in Counts 2 and 3. Orval Anderson appeals his conviction on Count I, raising the following issues: 1) whether the trial court erred in giving its instruction No. 23 and in refusing to give the defendant’s tendered instruction No. 24; 2) whether the court erred in determining that Judge Anderson’s false statements were material; and 3) whether the defendant-appellant’s response to the question asked by the prosecutor was “not responsive to the question asked and [was] literally true” and thus could not be the basis of a conviction for violating § 1623. II. A. Jury Instructions The trial court’s jury instruction No. 23 provided: “In the operation of their courts and carrying out their judicial duties, Indiana state court judges are governed by a Code of Judicial Conduct adopted by the Indiana Supreme Court. As applicable to this case the Code of Judicial Conduct provides in part: A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law ... and, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." }, { "docid": "5094521", "title": "", "text": "defendants in the prior indictment, which were also affirmed upon appeal. Nicholas Gregory was apprehended on September 4, 1984, following which the Grand Jury returned an indictment charging him, Gerassimos Vinieris, Howard Marshall, and Richard DiBella with conspiracy and various substantive crimes arising out of the December 12, 1982 Sentry theft. These defendants, except for Gregory, now make various motions with respect to the latter indictment. MOTIONS BY MARSHALL AND DiBELLA Marshall attacks the indictment on various grounds. The charges against him in the various counts in which he is named center essentially about a claim that, with respect to $20,000 in currency found during a search under warrant of a jewelry premises owned by him, he gave false information when he appeared before a Grand Jury and again upon the trial of Eddie Argitakos, Christos Potamitis, and two others. Thus, Counts Seven and Eight charge that he gave false material testimony when he appeared before a Grand Jury on April 8, 1983 and when he testified at the trial on November 9, 1983. In these instances he is charged with violations of 18 U.S.C. § 1623, which makes it a crime knowingly to make a false material declaration under oath in any proceeding before a Court or Grand Jury. In addition, he is also charged, based upon the very same alleged false testimony before the Grand Jury and the Trial Court, in two separate Counts, Nine and Ten, with violations of Section 1503 of Title 18, the obstruction of justice statute. This section provides in pertinent part that one who corruptly ... endeavors to influence ... or impede any grand or petit juror, or officer in or of any court of the United States, ... in the discharge of his duty, ... or corruptly ... impedes, or endeavors to influence, obstruct, or impede, the due administration of justice [commits a crime]. The thrust of the statute extends to investigative activities by authorized agencies, such as the Federal Bureau of Investigation, to a Grand Jury proceeding, or to a trial following indictment. The law is designed to prevent a miscarriage" } ]
215961
Warden William Stephens were liable as supervisors. He maintains that Castillo was aware of many inmate complaints about Officer Salazar and of Salazar’s “proclivity to bring false charges against inmates in retaliation for reporting his various abuses.” He asserts that Castillo “employed a wholly inadequate and impotent disciplinary system that permitted officer[]s like Officer Salazar to continue to employ their bullish methods without sanction.” Rivera has not, however, described the history of complaints against Salazar or explained how Castillo’s disciplinary system was “inadequate and impotent.” Although he asserts that Castillo created a “policy or custom under which unconstitutional practices occurred,” he describes neither the policy or custom nor the “unconstitutional practices.” These conclusory allegations are insufficient to establish supervisory liability. See REDACTED Thompkins v. Belt, 828 F.2d 298, 305 (5th Cir.1987). The district court did not err in concluding that Rivera had failed to state a cognizable constitutional claim against either Castillo or Stephens. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.1999); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); 28 U.S.C. § 1915A(b). The January 27, 2005, judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined, that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
[ { "docid": "22805995", "title": "", "text": ". The Supreme Court has applied a more lenient standard where the named representatives' claims are mooted but the class will suffer repeated constitutional violations without judicial intervention. Then, the class members’ live claims can justify exercising Article III jurisdiction. E.g., Bell v. Wolfish, 441 U.S. 520, 527 n. 5, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). . Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.1998) (extending Eleventh Amendment to TDCJ); Aguilar v. TDCJ, 160 F.3d 1052, 1054 (5th Cir.1998) (extending immunity to TDCJ’s officers acting in official capacity). .Alton v. Tex. A & M Univ., 168 F.3d 196, 200 (5th Cir.1999) (\"Only the direct acts or omissions of government officials, not the acts of subordinates, will give rise to individual liability under § 1983.”); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.1987) (\"Under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.”). . We could justify looking beyond the pleadings by converting the Rule 12(b)(6) order into a dismissal at summary judgment. Letcher v. Turner, 968 F.2d 508, 510 (5th Cir.1992). That is not necessary in this case. We look only to the specific administrative directive in an effort to construe the complaint liberally. The complaint itself is deficient. . Because CCA no longer operates Dawson, and Oliver does not allege that CCA controls the privacy policies at other state institutions, only Oliver's request for damages remains pending against CCA. . Some courts have held that cross-sex searches and monitoring can violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Jordan v. Gardner, 986 F.2d 1521, 1530-31 (9th Cir.1993) (finding that male guards' pat-down searches of female inmates violated the Eighth Amendment); Johnson v. Phelan, 69 F.3d 144, 152-53 (Posner, J., dissenting) (declaring cross-sex monitoring a violation of the Eighth Amendment). Oliver did not raise this argument in the district court, and he mentions the Eighth Amendment only once in his appellate brief. His decision to forego this argument is wise, given that we have refused to extend the Eighth Amendment to strip searches. Moore v. Carwell," } ]
[ { "docid": "22692660", "title": "", "text": "a later date. Reyes allegedly “kept [Salazar] abreast of [his] new phone numbers ... and [his] new address,” but Salazar did not communicate with Reyes in the months preceding the final deportation hearing from which he was absent. On October 23, 2001, the IJ denied Reyes’s motion to reopen on two grounds: first, Reyes failed to furnish a personal affidavit outlining his agreement with Salazar and describing Salazar’s alleged misconduct; and second, the IJ found no evidence that Reyes had notified Salazar of his ineffective assistance allegations or that Salazar accepted responsibility for failing to notify Reyes of the final deportation hearing. Citing Lozada and related Ninth Circuit decisions, the IJ denied Reyes’s motion to reopen. On May 9, 2002,. the Board summarily affirmed the IJ’s decision, and Reyes filed a timely petition for review. II. We review the Board’s ruling on a motion to reopen for an abuse of discretion. Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). Questions of law are reviewed de novo, Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999), as are claims of due process violations in deportation proceedings, Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). Because the Board summarily affirmed the IJ’s ruling on Reyes’s motion to reopen, we look to the IJ’s decision in deciding whether the Board abused its discretion. Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000). A. The Board may rescind the in absentia deportation order of Reyes if he demonstrates that he failed to appear due to “exceptional circumstances.” Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). The INA defines exceptional circumstances as “circumstances (such as a serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). Ineffective assistance of counsel qualifies as an exceptional circumstance warranting rescission pursuant to section 1229a(b)(5)(C)(i). Lo v. Ashcroft, 341 F.3d 934, 936-37 (9th Cir.2003), citing In re Rivera-Claros, 21 I. & N. Dec. 599, 602, 1996 WL 580694 (BIA 1996), and" }, { "docid": "2470520", "title": "", "text": "assertions are insufficient, though; Quinn did not identify specific deficiencies in the City’s training procedures. See id. He suggests the search of his home could have been intended to exact retribution for his earlier filing of a lawsuit against the police department. If true, that does not show a custom by the City of constitutional abuse. Quinn argues the police engage in a code of silence, under which officers are tacitly encouraged to use excessive force by the department’s failure to discipline its members for incidents like these. In support, he argues the officers involved in the search of his home have yet to be disciplined for their alleged misconduct. A theory , of ratification is limited to “extreme factual situations.” Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009). “[I]t is nearly impossible to impute lax disciplinary policy to the City without showing, a, pattern of abuses that transcends the error made in a single case.” Piotrowski v. City of Houston, 237 F.3d 667, 582 (5th Cir. 2001). Here, Quinn failed to allege a “pattern of complaints by other citizens.” See id. The City’s failure to discipline the officers does not establish an unconstitutional policy or custom. Quinn further argues that City, .officials know of a privately hosted website that glorifies the SWAT Team with “an obscene ballad with lyrics about murder and drugs.” As the district court noted, though, Quinn failed to show that any City officials had either actual or constructive knowledge of the website or its host. Finally, Quinn takes issue with the City’s use of a “threat matrix” to determine when SWAT personnel should be employed in a given situation. He argues the City should be liable if the officers failed to implement the matrix correctly. Regardless, Quinn wholly failed to link the City’s use of the matrix to the alleged constitutional violation. His allegations are thus insufficient to establish Monell liability, and the district court correctly dismissed his federal claims against the City. Quinn requests a period of discovery, after which he intends to replead to cure any defects in" }, { "docid": "12332361", "title": "", "text": "Smith challenges the district court’s ruling that he did not allege that he had suffered any actual injury. “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correction facility, for mental or emotional injury while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). As Smith did not allege any physical injury stemming from his confinement in administrative segregation or in Camp J, the district court did not err in dismissing Smith’s claims that he was confined to a cell with inadequate sunlight and fresh air pursuant to Rule 12(b)(6). Smith maintains that he stated a valid claim that all of the defendants had conspired to retaliate against him. A conspiracy claim requires showings that an actual violation of § 1983 occurred and that the defendants agreed to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir.1995); Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). As no § 1983 violation was established, Smith’s claim of civil conspiracy was properly dismissed under Rule 12(b)(6). See Hale, 45 F.3d at 920. Finally, the district court determined that Smith’s claim relating to the filing of a July 2006 disciplinary report was prescribed and that his claim that Voorhies and Barrere destroyed his property in December 2007 failed because Smith had an adequate state remedy for that claim. Smith has abandoned any appeal of these issues by failing to challenge them in this court. See Yohey, 985 F.2d at 225; Brinkmann, 813 F.2d at 748. The judgment of the district court is, in all respects, AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "7953578", "title": "", "text": "a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. , Rogers does not appeal the dismissal of his claims for violations of his Fourteenth Amendment right to due process, his Texas Whistleblower Act claims, or his defamation claims, except his defamation claim against Coleman. . Other allegations include: \"Chief Rogers was terminated ... in retaliation for the legitimate pursuit of his duties as the chief law enforcement officer of the City of Yoakum \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties and \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties....” . His allegations under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, are simply a repackaging of these same claims. The Declaratory Judgment Act is a procedural device and does not create an independent private right of action. Harris Cty. v. MERSCORP Inc., 791 F.3d 545, 553 (5th Cir. 2015); Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1178-79 (5th Cir. 1984). Thus, this claim fails for the same reason as the 1983 claim. . Rogers contends that because Coleman was not acting in his official capacity when he made his allegedly defamatory remarks he is not entitled to official immunity. Rogers conflates official immunity with the statutory immunity provided by Section 101.106 of the Texas Civil Practice and Remedies Code. See Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 356-57, 357 n.6 (Tex. 2013); see also Poland v. Willerson, No. 01-07-00198-CV, 2008 WL 660334, at *9 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). . We assume without deciding that Rogers can bring a stand-alone claim for a violation of Section 614,023. . In determining whether a plaintiff has stated a claim under" }, { "docid": "12526262", "title": "", "text": "Cordero, 993 So.2d 203, 206 (La.2008). In its decision, on a writ application filed by a prisoner affected by the alleged constitutional violations of the Louisiana Fifth Circuit Court of Appeal, the Louisiana Supreme Court adopted the court of appeal’s resolution. Cordero, 993 So.2d at 205. In his complaint, Severin claimed that he was denied his constitutional rights by the failure of the judges and employees of the Louisiana Fifth Circuit Court of Appeal to follow the applicable provisions of state law when denying his pro se post-conviction writ application. State v. Seve-rin, No. 06-KH0305 (La.App. 5th Cir. May 1, 2006). He does not allege that he sought relief pursuant to Cordero. In his report and recommendation, the magistrate judge recommended that all of Seve-rin’s claims against the judges and employees of the Louisiana Fifth Circuit Court of Appeal be dismissed as frivolous, for failure to state a claim on which relief may be granted, and/or for seeking monetary damages against defendants who are immune from such relief. The district court adopted the magistrate judge’s report and recommendation. II. DISCUSSION A. Standard of Review A prisoner’s civil rights complaint should be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(l). We review a district court’s § 1915A dismissal de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998). A complaint brought by a prisoner proceeding informa pauperis may also be dismissed as frivolous when it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(e)(2)(B)(i); Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir.2007). Such dismissals are reviewed for abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.1999). Because the magistrate judge referred to both § 1915A and § 1915(e) when he recommended dismissing Severin’s suit as frivolous, the court will review the issues raised on appeal de novo. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). To avoid dismissal for failure to state a claim, a plaintiffs complaint must plead enough facts to “state a claim to" }, { "docid": "7787757", "title": "", "text": "the error is not harmless because he is being denied his right to an appeal. Rule 11 requires the district court to follow certain procedures in determining whether a guilty plea is made knowingly and voluntarily. United States v. Johnson, 1 F.3d 296, 298-300 (5th Cir.1993) (en banc). Rule 11 ensures that the district court addresses three core concerns: “(1) whether the guilty plea was coerced; (2) whether the defendant understands the nature of the charges; and (3) whether the defendant understands the consequences of his plea.” Johnson, 1 F.3d at 300. There is no right to appeal from a guilty plea in the absence of a jurisdictional defect. Barrientos v. United States, 668 F.2d 838, 842 (5th Cir.1982). Appeal is limited to a review of Rule 11 errors. Id. at 843. Although the district court asked many of the Rule 11 questions to the defendants as a group and the record does not identify individual responses to some of the Rule 11 inquiries, the transcript of Salazar-Olivares’s guilty plea contains questions specifically directed toward him regarding the nature of the charge against him, his guilt on the charge, his age, and the nature of his plea agreement. Salazar-Olivares answered appropriately. Salazar-Olivares does not argue that the district court varied from the required Rule 11 procedures or that he did not understand any of the rights he was waiving. Moreover, his counsel was silent when the court asked if anyone had objections to its procedure. Under these circumstances, Salazar-Oli-vares waived any error he might have asserted about the district court’s Rule 11 group guilty plea procedure. United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc) (a waived error “results in no error”). In any event, he cannot even describe how the court’s procedure, as utilized in this case, denied him the opportunity to enter a knowing and voluntary guilty plea. We can envision dangers arising from a court’s failure to attend to details in a group guilty plea setting, but there are two sure safeguards.against error: careful judicial practice and vigilant counsel. As Salazar-Olivares raises this issue," }, { "docid": "6549228", "title": "", "text": "motion for an abuse of discretion. A motion to alter or amend under Rule 59(e) must clearly establish either a manifest error of law, present newly discovered evidence, or rely on an intervening change in controlling law. In denying Buck’s motion, the district court rejected any claims that it relied on Respondent’s alleged misrepresentations in reaching a decision. Instead, the district court stated its denial was based on the record and controlling law. Buck’s Rule 59(e) motion fails to cite a manifest error of law, present newly discovered evidence, nor does it rely on an intervening change in controlling law. Because we conclude that jurists of reason could not disagree with the district court’s resolution of Buck’s Rule 59(e) motion, we deny his COA. We treat Buck’s request for a COA on the issue of whether his due process and equal protection claims should be reconsidered as an application for permission to file a successive habeas petition, and that application is DENIED. We DENY Buck’s application for a COA as to his contention that reasonable jurists could debate the district court’s disposition of his motion to reconsider judgment. We DENY the request for a stay of execution. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Buck v. Thaler, 345 Fed.Appx. 923 (5th Cir.2009). . Buck v. Thaler, No. 72, 810 (Tex.Crim.App. Apr. 28, 1999). . Buck, 345 Fed.Appx. 923. . Id. . 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). .See id. at 530, 125 S.Ct. 2641. . 28 U.S.C. § 2244(b)(3)(A). . Id. § 2244(b)(2). . Id. § 2244(b)(2)(B)(i). . Id. § 2244(b)(2)(B)(ii) . 28 U.S.C. § 2244(a)-(b)(2). . Id. . Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. . 28 U.S.C. § 2253(c)(1). . 302 F.3d 491, 492 (5th Cir.2002). . Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.2007); see also Williams v. Quarterman, 293 Fed.Appx. 298, 315 (5th Cir.2008). . Jackson v. Thaler, 348 Fed.Appx. 29," }, { "docid": "608444", "title": "", "text": "asserting conelusionally that his “injuries were caused by the unlawful policies and practices of the Shreveport Police Department.” Brown never identified any policy or custom, and, failing that first step, also failed to show a policymaker’s actual or constructive knowledge of the same and to link the constitutional violation to that policy or custom. His appellate brief is likewise deficient. The district court properly granted summary judgment. To support his claim that Chief White-horn failed to train his subordinate officers adequately, Brown had to show that: (1) the training policies were inadequate; (2) Chief Whitehorn was deliberately indifferent to the inadequacy; and (3) the inadequate policy directly caused Brown’s constitutional injury. Yet Brown sought to survive summary judgment with more eon-clusional allegations that fail to raise a genuine issue of material fact as to these elements. He claimed only that “Chief Whitehorn failed to train and supervise employees .of the Shreveport Police Department and plaintiff has suffered a deprivation of his constitutional rights[ ] as a result of it.” As regards the second required element, for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all" }, { "docid": "19006537", "title": "", "text": "liable “by formulating a policy, or engaging in a custom, that leads to the challenged occurrence.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). Thus, a supervisor may be liable “for the foreseeable consequences of such conduct in he would have known of it but for his deliberate indifference or wilful blindness, and if he has the power and authority to alleviate it.” Id. The defendants’ motion to dismiss asserts that plaintiffs do not state a claim of supervisory liability under section 1983 against Superintendent Toledo-Davila and police officer Donate and that the claims against defendant Toledo-Davila should be dismissed because he is protected by the non-respondeat superior liability doctrine. As mentioned above, all remaining named defendants joined the motion to dismiss without adding any analysis to these grounds for dismissal. Plaintiffs assert three causes of action which all fall under the umbrella of supervisory liability. These include claims that supervisors failed to supervise members of the PRPD properly; that supervisors permitted PRPD officers to engage in an unlawful practice or custom; that supervisors failed to take remedial action against rogue police officers; that supervisors failed to monitor and evaluate the performance of PRPD officers; and that supervisors failed to train and retain PRPD officers properly. Plaintiffs fail to identify the “supervisory defendants” in them causes of action other than Superintendent Pedro Toledo-Davila. Instead, at the outset of their complaint, plaintiffs describe the positions held by each defendant. Some of these defendants have titles indicating that they hold a supervisory position: ToledoDavila as “Superintendent” of the PRPD; Rivera-Miranda as “Commander of the Drug Division” of the PRPD in Bayamon; Bermudez-Ortiz as “Commander” of the PRPD in Bayamon; and Velazquez-Gonzalez as “Commander” of the PRPD in Guaynabo. Thus the Court infers that those defendants with supervisory position are those targeted by plaintiffs for supervisory liability. Despite the fact that these titles indicate that the individuals holding them may have acted as supervisors in the PRPD, their names appear nowhere else in the complaint, therefore no facts are alleged linking them to the alleged violations. Further, the plaintiffs’ causes of action" }, { "docid": "7953577", "title": "", "text": "contends the district court erred in refusing to grant him leave to amend his complaint rather than dismissing his case. District courts have wide latitude to consider requests for leave to amend. In deciding whether to permit an amendment, a district court may consider factors such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously! allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). We conclude that the district court gave Rogers sufficient prior opportunity to plead his best case and amend his complaint, and the district court did not abuse its discretion in dismissing Rogers’s case without permitting Rogers to file a third complaint. See, e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403-04 (5th Cir. 2004) (holding that the district court did not abuse its discretion in denying leave to file a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. , Rogers does not appeal the dismissal of his claims for violations of his Fourteenth Amendment right to due process, his Texas Whistleblower Act claims, or his defamation claims, except his defamation claim against Coleman. . Other allegations include: \"Chief Rogers was terminated ... in retaliation for the legitimate pursuit of his duties as the chief law enforcement officer of the City of Yoakum \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties and \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties....” . His allegations under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, are simply" }, { "docid": "1281972", "title": "", "text": "of character -witnesses to mitigate punishment. However, they were also aware of Williams’s juvenile crime record, drug and alcohol abuse history, gang association, violence against his family, and, as they put it, various other problems. They were legitimately concerned that any mitigating testimony would have been presented by witnesses whose knowledge would have opened the door to more damaging evidence under cross-examination. This court has upheld decisions of counsel not to put on evidence in mitigation of culpability when the decision results from a strategic choice. See King, 1 F.3d at 284. In Williams’s case, these decisions by counsel were well thought through tactical decisions. A court might even disagree with such a decision, viewing the case in hindsight, and still determine that the decision was not so seriously inept as to have been professionally unreasonable. In this case, we do not gainsay the decision of Williams’s attorneys. Their decision to forego the presentation of mitigation witnesses cannot be said to be professionally deficient performance. The first prong of the Strickland analysis is not satisfied. b. Failure to Object During Voir Dire Regarding Strikes for Cause Williams also claims that he received ineffective assistance of counsel because venire members Salazar, Flores, and Castillo were improperly excused for cause and counsel did not object. During voir dire, venire member Salazar stated that she was opposed to the death penalty and would be unable to set aside her personal beliefs in order to answer the special issues based on the evidence presented at Williams’s trial. Venire member Flores stated that she would not be able to inflict the death penalty in any case. Similarly, venire member Castillo stated that she would not be able to impose the death penalty under any circumstances. A venire member is properly excused for cause in a capital case when his “views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.) (quotations and footnotes omitted) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844," }, { "docid": "19006536", "title": "", "text": "respectively. 1. Supervisory Liability Under section 1983, a supervisory official may be held liable for his subordinates’ behavior only if (1) his subordinates’ behavior results in a constitutional violation; and (2) the official’s action or inaction was affirmatively linked to that behavior such that “it could be characterized as supervisory encouragement, condo-nation or acquiescence or gross negligence amounting to deliberate indifference.” Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (quoting Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir.1988)) (internal quotation marks omitted). Supervisory liability may be found either where the supervisor directly participated in the unconstitutional conduct or where the supervisor’s conduct amounts to “tacit authorization.” See Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir.1999). Plaintiffs must show that each individual defendant was involved personally in the deprivation of constitutional rights because no respondeat superi- or liability exists under section 1983. Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir.1984). A supervisor need not have actual knowledge of the offending conduct to be liable; a supervisor’s behavior may be deemed liable “by formulating a policy, or engaging in a custom, that leads to the challenged occurrence.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). Thus, a supervisor may be liable “for the foreseeable consequences of such conduct in he would have known of it but for his deliberate indifference or wilful blindness, and if he has the power and authority to alleviate it.” Id. The defendants’ motion to dismiss asserts that plaintiffs do not state a claim of supervisory liability under section 1983 against Superintendent Toledo-Davila and police officer Donate and that the claims against defendant Toledo-Davila should be dismissed because he is protected by the non-respondeat superior liability doctrine. As mentioned above, all remaining named defendants joined the motion to dismiss without adding any analysis to these grounds for dismissal. Plaintiffs assert three causes of action which all fall under the umbrella of supervisory liability. These include claims that supervisors failed to supervise members of the PRPD properly; that supervisors permitted PRPD officers to engage in an unlawful practice or custom; that supervisors" }, { "docid": "22058578", "title": "", "text": "of supervised release can follow the prison term, while the higher statutory maximum of § 1326(b)(1) means that the imposition of up to three years of supervised release is permitted. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). . Salazar-Lopez's other sentencing contentions, that we ought to limit Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), to its facts under the doctrine of constitutional doubt, that Almendarez-Torres has been overruled, and that § 1326(b) is unconstitutional, are foreclosed by Ninth Circuit precedent. United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006) (citing United States v, Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005)). . The Government argues that we should not follow Covian-Sandoval because it conflicts with other Circuit precedent. We see no conflict with the first case the Government cites, United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001). Castillo-Rivera addressed only the continuing viability of the Almendarez-Torres exception for prior convictions, not whether the date of removal (as opposed to the date of the conviction) had to be found by a jury. See id. The second case cited by the Government, United States v. Lopez, 469 F.3d 1241 (9th Cir.2006), did initially contain some potentially confusing language on this issue, but that opinion was amended, 500 F.3d 840 (9th Cir.2007), in a way that clarified the vitality of Covian-Sandoval and its application to that case, id. at 848-49. . To the extent Du Bo was premised on indictment errors being jurisdictional, see Du Bo, 186 F.3d at 1180; see also United States v. Omer, 429 F.3d 835, 836 (9th Cir.2005) (Graber, J., dissenting from denial of rehearing en banc), that rationale has been overruled by the Supreme Court in Cotton, 535 U.S. at 629-31, 122 S.Ct. 1781; see also Omer, 429 F.3d at 837 (Graber, J., dissenting from denial of rehearing en banc). . As we noted in Jordan, when the indictment fails to make the requisite allegation: [W]e would" }, { "docid": "23214756", "title": "", "text": "hair because his great spirit told him not to mutilate his hair. In January 2005, Longoria told prison officials, that, due to his religious beliefs, he would not cut his hair. In response to his grievance, Longoria was informed that the Chaplaincy Department could not authorize him an exemption to the grooming policy. According to Longoria, he was disciplined for violating the grooming policy, by which all inmates in the Robertson Unit are required to abide. The district court granted Longoria leave to proceed in forma pauperis, and a magistrate judge conducted the Spears hearing. Without requiring defendants to answer, the district court dismissed Lon-goria’s claim as frivolous and for failure to state a claim, citing 28 U.S.C. §§ 1915 (governing proceedings in forma pauper-is), 1915A (governing screening of prisoner complaints against governmental entities), and 42 U.S.C. § 1997e(c) (governing dismissal of frivolous actions by prisoners). The district court granted Longoria permission to proceed in forma pauperis on appeal, which he pursues pro se. II. The dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)© is reviewed for abuse of discretion. E.g., Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999) (citations omitted). On the other hand, dismissals under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. 1997e(c)(l) are reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). Because the district court referred to all of these statutes in dismissing Longoria’s action, the issues at hand are reviewed de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). A. Longoria fails to contend defendants violated his rights under the Free Exercise Clause of the First Amendment. His brief provides only cursory reference to the First Amendment in the “Statement of Subject Matter Jurisdiction” and in the “Statement of the Proceedings”, and these references merely refer to what he alleged in district court. Although we liberally construe pro se briefs, such litigants must still brief contentions in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25" }, { "docid": "3554620", "title": "", "text": "the threshold specificity required to avoid a plain error review, a party’s claim of error or objection must alert the district court to the nature of the alleged error and provide an opportunity for the court to identify and correct it. Id. (citing United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.1994)). The parties dispute the appropriate standard of review. The government urges this court to review for plain error because Salazar’s objection- — -that the conditions of supervised release were overly burdensome — was insufficient' to give the district court the opportunity to resolve the issues he now raises before this court. The government argues that when the district court told counsel to be more specific as to Salazar’s objections, she continued with a general objection to the broadness of all imposed conditions. By failing to object to Condition No. 6 with specificity, the government contends, Salazar waived his right to preserve an objection which this court could review for abuse of discretion. Salazar asks this court to apply an abuse of discretion standard, claiming that the district court “cut off’ counsel’s attempts to respond by interrupting her and overruling her objections mid-sentence and before she could specify her objections on the grounds raised in this appeal. Salazar argues that any future attempts to object to his supervised release conditions with specificity were futile because the court failed to give his counsel a reasonable opportunity to explain her objections or ask for the rationale behind the court’s refusal to sustain them. The court agrees with Salazar. A party’s failure to raise a claim or objection with specificity does not result in plain error review if “the party made its position clear to the district court and to have objected would have been futile.” United States v. Castillo, 430 F.3d 230, 242 (5th Cir.2005); see also United States v. Mendiola, 42 F.3d 259, 260 n. 2 (5th Cir.1994). In Castillo, for example, a federal prosecutor inadvertently disclosed a defendant’s HIV-positive status during a sentencing hearing in the presence of several prisoners. Id. at 235. The court interrupted the prosecutor’s" }, { "docid": "12526263", "title": "", "text": "report and recommendation. II. DISCUSSION A. Standard of Review A prisoner’s civil rights complaint should be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(l). We review a district court’s § 1915A dismissal de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998). A complaint brought by a prisoner proceeding informa pauperis may also be dismissed as frivolous when it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(e)(2)(B)(i); Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir.2007). Such dismissals are reviewed for abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.1999). Because the magistrate judge referred to both § 1915A and § 1915(e) when he recommended dismissing Severin’s suit as frivolous, the court will review the issues raised on appeal de novo. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). To avoid dismissal for failure to state a claim, a plaintiffs complaint must plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The factual allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. While pro se complaints are held to less stringent standards than those drafted by lawyers, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002). B. Claim Against the Parish of Jefferson In the caption of his complaint, Severin named the Parish of Jefferson as a defendant but stated no claim against the parish in the body of his complaint. Even if Severin had stated claims in the body of his complaint against the Parish of Jefferson, those claims would not have been cognizable because the parish government has no authority or control over the state" }, { "docid": "22090012", "title": "", "text": "reckless or callous indifference to the rights of those with whom Soto would come into contact. The affirmative link between Alvarez’ conduct toward Soto and the shooting of Gutierrez is plain. With even the minimal amount of proper supervision and discipline it is unlikely that Soto would have been in command on December 9, 1983. Had Alvarez not been recklessly indifferent to his duties, the Soto problem would have been remedied well before that date. Desiderio Cartagena Cartagena maintains that the evidence presented at trial was insufficient to impose liability upon him. Plaintiff argues that Cartagena is liable because: (1) he had knowledge of the numerous complaints against Soto yet took no action concerning them other than dismissing the charges; and (2) he employed a wholly inadequate and impotent disciplinary system that permitted officers like Soto to continue to employ their bullish methods without sanction. See, e.g., McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir.1979) (noting similar grounds for supervisory liability under § 1983). We believe the evidence adduced by plaintiff was sufficient to sustain the jury’s imposition of liability upon Cartagena. The jury could have found the following: —On December 9, 1983, Cartagena was the Superintendent of the Police Department of Puerto Rico and had held that position since December 11, 1978. He retired from that post on December 30, 1983. —As Superintendent, he was responsible for establishing all policies and procedures of the Police Department. He had the authority to issue “General Orders,” which, along with the Personnel Regulations, served as the governing guidelines for the department. —He was ultimately responsible for the supervision of all of the officers under his command. It was his duty to ensure that the General Orders and the Personnel Regulations were carried out by the police force. —Cartagena was at the head of the department’s disciplinary system. Every complaint filed against an officer went to Cartagena for disposition. He made the final decision, based upon the department’s investigation of the matter, as to whether an officer was guilty or not guilty of misconduct. —He was the only one with the authority" }, { "docid": "61272", "title": "", "text": "to impute to Officers Larsen (and Mata) the particular allegations against Officer DeLaPaz, citing Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.1985), does not comport with the heightened pleading standard applicable in cases involving qualified immunity defenses. B. State Law Malicious Prosecution Claim Officers Larsen and Mata assert that any federal cause of action for malicious prosecution by DeLeon is foreclosed by circuit precedent. See Castellano v. Fragozo, 352 F.3d 939 (5th Cir.2003) (en banc). His malicious prosecution claim, however, is founded in state law, to which Castellano is inapplicable. Because the Officers have not briefed state law, we decline to rule on an inadequately briefed issue. CONCLUSION Based on the foregoing discussion, this court REVERSES the district court’s denial of immunity to Officers Larsen and Mata for DeLeon’s false arrest and detention claims, and we REMAND WITH INSTRUCTIONS TO DISMISS these claims. The appeal is DISMISSED insofar as it relates to the Officers’ inadequately briefed challenge to the sufficiency of pleading of DeLeon’s state law claims. REVERSED IN PART, REMANDED IN PART, and DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . We take as true the facts alleged by DeLeon’s Complaint, see R. at 86-100. . Although Officers Larsen and Mata do not appear to appeal directly the district court’s denial of their Rule 7(a) motion, the district court should have ordered a Rule 7(a) reply in this case. As we have consistently held, “trial courts ought routinely require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). Despite the district court’s error, we need not remand this case for a Rule 7(a) reply as we are convinced, especially after oral argument, that DeLeon has pled his \"best case.” see Morin, 77 F.3d at 121. . Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action No. 3:02-CV-0649-K, on appeal to this Court in" }, { "docid": "22417230", "title": "", "text": "refused to shave — a requirement of all inmates at the Stiles Unit. Berry also alleges that Brady violated Berry’s Fourteenth Amendment due process rights by punishing him when he was in fact exempted from the clean-shaven requirement for medical reasons. Berry stated that the true reason for Brady’s not permitting him to attend the evening meals and to visit his mother was retaliation for Berry’s having — some time after October 6, 1996— written letters to Assistant Warden Williams and Judge Don Floyd, complaining of Brady’s treatment. Following the Spears hearing, the magistrate judge dismissed Berry’s complaint as frivolous and for failing to state a claim. In the alternative, the magistrate judge ruled that even if Berry had presented cognizable constitutional claims, he was barred from recovery under 42 U.S.C. § 1997e(e), which requires proof of a physical injury for the recovery of emotional or mental damages. In response, Berry filed a combined “objection to the memorandum opinion and a request for reconsideration.” The magistrate judge treated Berry’s objection as a Rule 59(e) motion to alter or amend judgment. See Fed R. Civ. P. 59(e). The magistrate judge denied the motion, because it failed to allege any new facts or assert any different legal argument. Discussion A prisoner’s complaint against a governmental entity or an officer or employee of a governmental entity may be dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b). Dismissal of an IFP complaint on similar grounds is likewise authorized by 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). A complaint is frivolous “if it lacks an arguable basis in law or fact.” Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.1998). “A complaint lacks an arguable basis in law if it is based on an indisputably merit-less legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999). “A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional" }, { "docid": "22058577", "title": "", "text": "result would have been obtained had the question been properly placed before the grand and petit juries, this particular question concerning the date of one of Salazar-Lopez’s removals is not one of them. In light of the record here, “we are satisfied beyond a reasonable doubt that ... the result ‘would have been the same absent the error.’ ” Zepeda-Martinez, 470 F.3d at 913-14 (quoting Neder, 527 U.S. at 19, 119 S.Ct. 1827). III. Conclusion Although the temporal relationship between Salazar-Lopez’s removal and his prior conviction should have been alleged in the indictment and proved to the jury, we nevertheless affirm the sentence imposed because we find that this error was harmless in his case. AFFIRMED. . In this opinion we address only Salazar-Lopez’s sentencing contentions. We resolve his challenge to his conviction in an accompanying memorandum disposition. . This difference in statutory maximum sentences also results in a difference as to the maximum term of supervised release that can be imposed. Because § 1326(a) has a maximum sentence of two years, only one year of supervised release can follow the prison term, while the higher statutory maximum of § 1326(b)(1) means that the imposition of up to three years of supervised release is permitted. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). . Salazar-Lopez's other sentencing contentions, that we ought to limit Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), to its facts under the doctrine of constitutional doubt, that Almendarez-Torres has been overruled, and that § 1326(b) is unconstitutional, are foreclosed by Ninth Circuit precedent. United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006) (citing United States v, Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005)). . The Government argues that we should not follow Covian-Sandoval because it conflicts with other Circuit precedent. We see no conflict with the first case the Government cites, United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001). Castillo-Rivera addressed only the continuing viability of" } ]
531289
on the government the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The circuits universally apply this “harmless beyond a reasonable doubt” standard to Doyle violations. See, e.g., United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir.1985); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1869, 85 L.Ed.2d 162 (1985); Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir.1980); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); REDACTED United States v. Disbrow, 768 F.2d 976, 980 (8th Cir. 1985); United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985); United States v. Remigio, 767 F.2d 730, 735 (10th Cir.1985); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985). This circuit is no exception, see, e.g., United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (Wood, J.). In this circuit alone, however, the possibility has been raised that a less stringent harmless error standard may be appropriate to Doyle situations. Concurring opinions to our en banc decision in Phelps v. Duckworth addressed the issue, although the majority there expressly declined to reach it. 722 F.2d 1410, 1414 (7th Cir.1985). Moreover, the state pressed this position during oral
[ { "docid": "7490439", "title": "", "text": "Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), by stating in its charge that malice may be implied. (F) Whether Martin’s fourteenth amendment due process rights were violated by the admission of evidence that Martin had given false exculpatory evidence. II. A. DOYLE ISSUE Martin further argues that his fourteenth amendment due process rights under Doyle were violated by the prosecutor’s elicitation of testimony that he was silent during the search for the blue Ford and the prosecutor’s later use of this testimony during arguments on petitioner’s motion for a directed verdict and during closing arguments. Although Martin did not object to this evidence, the cause and prejudice standard is inapplicable because the state courts reached the merits in deciding this issue and did not rely on the procedural default. See Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). Although the prosecutor’s use of petitioner’s silence following the reading of his Miranda rights, at the very least, approached the outer limits of fundamental fairness, see Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) (per curiam), we decline to reach this question because any error was harmless beyond a reasonable doubt. Numerous cases have held that a Doyle error may be harmless. See, e.g., United States v. Blankenship, 746 F.2d 233, 238 (5th Cir.1984); Young v. Rees, 707 F.2d 935, 935-36 (6th Cir.1983) (per curiam); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Meeks v. Havener, 545 F.2d 9, 10 (6th Cir.1976) (per curiam), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977). The truly incriminating part of the transaction was the police officers’ inability to find the blue car in the second floor area Martin indicated. Also, the presence of Martin’s identification (after Martin had told police he had left it at home) in the van containing the coveralls, handcuffs, sharpened screwdrivers and a gun, along with the presence of" } ]
[ { "docid": "8584575", "title": "", "text": "already have been a suspect in the murder because he had been seen leaving the tavern with Gorsuch, Miller was never even implicated in the crime until Williams gave his formal statement to the police later that day. It is not in the least bit “natural” for a person to try to exculpate himself of a crime of which he has not been accused. Indeed, the statement — “I did not kill anybody” — upon being arrested for unlawful use of weapons, drunken driving, or running a red light, would tend only to inculpate, rather than exculpate, the ar-restee. We conclude, as did the courts before us, that Miller was advised of his right to remain silent for purposes of Doyle when he was given the Miranda warnings at the time of his arrest for the offenses charged at trial. See People v. Miller, 96 Ill.2d at 394, 70 Ill.Dec. at 883, 450 N.E.2d at 326. The prosecutor’s reference to Miller’s silence at the time of his arrest therefore violated his constitutional right to a fair trial. Id. III. The conclusion that there was a Doyle violation in this case does not end the inquiry, however, since constitutional trial errors of this sort can in certain circumstances constitute harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Supreme Court has imposed on the government the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The circuits universally apply this “harmless beyond a reasonable doubt” standard to Doyle violations. See, e.g., United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir.1985); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1869, 85 L.Ed.2d 162 (1985); Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir.1980); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d" }, { "docid": "2230580", "title": "", "text": "III. HARMLESS ERROR At oral argument, for the first time, the State suggested that the admission of Christopher’s confession was at worst harmless error. The appropriate standard for determining whether this error was harmless is set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Martin, 770 F.2d at 932-33; Hernandez, 574 F.2d at 1372. In order for an error to be deemed “harmless” under Chapman the state must prove beyond a reasonable doubt that the admission of the confession did not contribute to the verdict obtained. Chapman, 386 U.S. at 24, 87 S.Ct. at 828; Martin, 770 F.2d at 932 n. 23. The state must show that the evidence that remains after the unlawful confession is excluded not only is sufficient to support the verdict, but overwhelmingly establishes the defendant’s guilt beyond a reasonable doubt. Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.) (en banc), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980); see Brown v. United States, 411 U.S. 223, 230-32, 93 S.Ct. 1565, 1569-70, 36 L.Ed.2d 208 (1973); Milton v. Wainwright, 407 U.S. 371, 372-73, 377-78, 92 S.Ct. 2174, 2175-76, 2178, 33 L.Ed.2d 1 (1972). Because confessions carry “extreme probative weight,” Hernandez, 574 F.2d at 1372, the admission of an unlawfully obtained confession rarely is “harmless error.” In fact, we have ruled the admission of an unlawful confession harmless only in limited instances, such as where there was in evidence at least one other lawful confession by the defendant. Compare Martin, 770 F.2d 932-33 & n. 24 (harmless error where a lawful confession was admitted at trial) and United States v. Davidson, 768 F.2d 1266, 1271-72 (11th Cir.1985) (same) with Hernandez, 574 F.2d at 1372 & n. 22 (admission of confession not harmless despite defendant’s presence at scene of major marijuana unloading operation because there was insufficient direct evidence connecting the defendant to the truck or its contents) and United States v. Blair, 470 F.2d 331, 338 (5th Cir.1972) (admission statement not harmless where it “provided the Government with a key link in the" }, { "docid": "127413", "title": "", "text": "to which the prosecution puts the post-arrest silence. 2. Who elected to pursue the line of questioning. 3. The quantum of other evidence indicative of guilt. 4. The intensity and frequency of the reference. 5. The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.” Id. (quoting Williams v. Zahradnick, 632 F.2d 353, 361-62 (4th Cir.1980)); see also Schmitt, at 559; United States v. Remigio, 767 F.2d 730, 735 (10th Cir.), cert. denied, — U.S. —, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985). In determining whether defendant was prejudiced, the key factors often will be the purpose for which the government used defendant’s silence and the quantum of other evidence of defendant’s guilt. The government admits here that the purpose of its questioning was “to establish defendant’s knowledge of his obligation to file a tax return.” Brief of Appellee at 12. This was a clear violation of Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), which forbade the government from drawing meaning from a defendant’s silence. Id. at 409, 100 S.Ct. at 2182. The error is particularly serious here because defendant’s knowledge of his tax liability was the central issue in this case; his defense was that he did not know he owed laxes. In addition, the government used defendant’s silence to impeach his testimony that he was unaware that he had violated the tax laws. Although the error in this case was egregious, it still can be deemed harmless if the defendant’s theory was “transparently frivolous” and the evidence of guilt was overwhelming. See United States v. Meneses-Davila, 580 F.2d 888, 894 (5th Cir.1978); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). In light of the quantum and nature of other evidence at trial indicative of defendant’s knowledge of his tax obligations, we are convinced that the jury would have found defendant’s good-faith defense frivolous even without the government’s impermissible questions. The government demonstrated that defendant was involved in the" }, { "docid": "8584597", "title": "", "text": "See Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368; Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705. . District Court order reproduced in petitioner’s App. A p. 3. . The instruction was “to ignore the last question, for the time being” unless the judge’s checking while Miller was on the witness stand on cross-examination showed that the prosecutor’s question was permissible (petitioner’s App. A p. 2). Since the judge did not so find, the instruction remained in effect and was augmented by the fourth instruction to the jury upon the completion of the closing arguments. EASTERBROOK, Circuit Judge, dissenting. The majority identifies a violation of the principles of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 44 L.Ed.2d 91 (1976), and inquires whether this violation is harmless “beyond a reasonable doubt,” the standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). It concludes that the error is not harmless under this exacting standard and holds that the writ of habeas corpus must issue. I do not quarrel with the majority’s conclusion that there was a violation, which is not harmless if the Chapman standard governs. But I disagree with the basis of the majority’s holding — the conclusion that Chapman applies to all violations of the constitution. The court should apply the standard of United States v. Lane, — U.S. —, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), under which a violation requires a new trial only if it “had substantial influence” on the course of the trial. See Phelps v. Duckworth, 772 F.2d 1410, 1421-22 (7th Cir. 1985) (en banc) (concurring opinion). This means “actual prejudice” (Lane, supra, 106 S.Ct. at 732), a significant likelihood of altering the verdict. Under that test the prosecutor’s misconduct in this case is harmless. The standard of “harmlessness” has never been a unitary one. It varies with the nature" }, { "docid": "1025633", "title": "", "text": "States v. Rivera Pedin, 861 F.2d 1522, 1529 n. 13 (11th Cir.1988), and at least once in a case before us on habeas review, see Carr v. Schofield, 364 F.3d 1246, 1255 (11th Cir.2004), that the harmless-error inquiries required by Giglio and by Chapman are indistinguishable. Although this is the law of our Circuit, it is not clearly established federal law as determined by the Supreme Court, since no majority has ever held that the Giglio standard is equivalent to the Chapman standard, and since the Supreme Court's decision in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), casts substantial doubt on whether Chapman is ever the appropriate standard for harmless-error analysis conducted on collateral review. In concluding that the two standards are equivalent, we have drawn on Justice Black-mun's opinion in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), which observed that Giglio's \"any reasonable likelihood” standard \"may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.” Id. at 678-80, 105 S.Ct. 3375. Thus, Justice Blackmun concluded, \"the standard of review applicable to the knowing use of perjured testimony is equivalent to the Chapman harmless-error standard.” Id. at 680 n. 9, 105 S.Ct. 3375. Although Justice Blackmun clearly equated the Giglio and Chapman standards, this portion of his opinion was joined only by Justice O'Connor and, consequently, does not constitute a holding of the Court. The Chapman Court itself suggested some similarity between the standards, stating: \"There is little, if any, difference between our statement in Fahy v. State of Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. 824 (quoting Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171" }, { "docid": "18789892", "title": "", "text": "test is of “then-existing mental illness,” the prosecutor cannot rely on an irrebuttable presumption that “once unavailable, always unavailable.” In sum, the burden on the State to prove unavailability is a continuing one. In conclusion, our independent review of the state court finding of unavailability in this case leads us to agree with the district court assessment. The finding was made on a confused and “stale” record. The circuit court erred as a matter of law by finding L.L. unavailable as a witness. The resulting use of her previous testimony instead of her live appearance at trial deprived the petitioner of his sixth amendment right to confront a witness against him. Therefore, we affirm the district court holding that petitioner’s sixth amendment right to confrontation was violated. II Our conclusion that there was a violation of petitioner’s right of confrontation does not end our inquiry because constitutional errors of this sort can in certain circumstances constitute harmless error. Finding of a federal constitutional error does not require an automatic reversal of a conviction; there may be some such errors which, in the setting of a particular case, are so unimportant and insignificant that they may be deemed harmless, consistent with the Constitution. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966). The Supreme Court has imposed on the prosecution the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Id. 386 U.S. at 24, 87 S.Ct. 828. In the context of trial, the issue is whether absent the constitutionally-forbidden evidence, honest and fair-minded jurors might very well have brought in not-guilty verdicts. Id. at 26, 87 S.Ct. at 829. The fact that there was some incrimination or circumstantial evidence does not render the error harmless. U.S. ex rel. Burke v. Greer, 756 F.2d 1295, 1302 (7th Cir.1985). Rather, the case against the defendant must be “overwhelming” in order to apply the harmless error rule. United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (amended opinion). The Court does not vary the harmless error standard" }, { "docid": "16442159", "title": "", "text": "592 F.2d 1297, 1300 (5th Cir. 1979), approved in, 626 F.2d 396 (5th Cir. 1980) (en banc), and we do so again today. “No jury from which even one person has been excused on . .. [grounds broader than Wither-spoon] may impose a death penalty or sit in case where it may be imposed, regardless of whether an available peremptory challenge might have reached him.” 592 F.2d at 1300. THOMAS A. CLARK, Circuit Judge, concurring in part and dissenting in part: I respectfully dissent with respect to Part II of the majority opinion. There is apparently no dispute between the members of the majority and myself that it was error for GBI agent Keadle to testify that during his questioning of Alderman the latter decided to exercise his right to an attorney and to remain silent. The majority holds that the error is harmless beyond a reasonable doubt and that the district court misconstrued our holding in Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). I find the discussion of the harmless error point by District Judge B. Avant Edenfield very helpful: Even though Doyle and Hale were violated, this can be a basis for reversal only when the error is not “harmless.” For an error to be harmless, it must appear to the Court beyond reasonable doubt that the evidence complained of did not contribute to the Petitioner’s conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This difficult standard was found met by the Fifth Circuit in Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977). In that case, the court relied upon several factors. There was only a single reference at trial to defendant’s silence. That reference was neither made nor elicited by the prosecution, but instead resulted from a witness’s spontaneous remark. The reference was neither repeated nor linked to defendant’s exculpatory story. Furthermore, the court found that this story was “transparently frivolous” and the evidence of guilt was otherwise overwhelming. 547 F.2d, at 1250. See also" }, { "docid": "9335776", "title": "", "text": "remedy of seeking a continuance in what would have been a desperate attempt, apparent to the jury, to mitigate the damage inflicted by the devastating rebuttal testimony of the State’s surprise witness. III. Notwithstanding its finding that the State’s procedural error violated Mauricio’s constitutional right to due process, the district court went on to hold that that error, when viewed in the context of the trial record as a whole, was “harmless beyond a reasonable doubt.” See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). We disagree. In United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987), we held that in assessing whether errors of constitutional magnitude, such as the one at issue here, are harmless beyond a reasonable doubt, “we must determine ‘whether there is a reasonable possibility that the [errors] complained of might have contributed to the conviction.’ ” Id. at 1019 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)). In essence, the inquiry comes down to the question, “whether absent the constitutionally-forbidden evidence, honest and fair-minded jurors might very well have brought in not-guilty verdicts.” Burns v. Clusen, 798 F.2d 931, 943 (7th Cir.1986) (citing Chapman, 386 U.S. at 25-26, 87 S.Ct. at 828-29). Typically, we require other evidence of guilt to be “overwhelming” before concluding a constitutional error was harmless. Savory, 832 F.2d at 1020; United States v. Shue, 766 F.2d 1122, 1132-33 (7th Cir.1985); United States ex rel. Burke v. Greer, 756 F.2d 1295, 1302 (7th Cir.1985). Any recapitulation of the evidence adduced at Mauricio’s trial must begin with an acknowledgment that, as the Indiana Supreme Court stated, evidence of Mauricio’s identification was “circumstantial.” 476 N.E.2d at 91. In fact, neither of the witnesses to the crimes for which Arnold Mauricio was convicted could positively identify him as having been at the crime scene. Whoever accompanied Mark Mauricio on the night of February 3, 1982 was wearing a ski mask. If this fact alone were not sufficient to demonstrate that the State’s evidence falls short of being" }, { "docid": "23338245", "title": "", "text": "386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to determine whether constitutional error is harmless error or whether reversible error has resulted from improper evidence or improper argument to the jury. In Chapman, the Supreme Court held that errors at trial, even federal constitutional errors, do not require automatic reversal of a conviction if the error can be classified as harmless. It is incumbent upon the government to demonstrate that such constitutional error, resulting from the admission of highly prejudicial evidence or comment, is harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828. If there is a reasonable possibility that the evidence or comment complained of might have contributed to the conviction, then such error cannot be harmless beyond a reasonable doubt. See id. at 23-24, 87 S.Ct. at 827-28 (relying on Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)); Coury v. Livesay, 868 F.2d 842, 845-46 (6th Cir.1989) (applying the Chapman harmless error analysis to determine whether the error affected the result). The result of a harmless error analysis depends on the circumstances of the particular case. Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.) (en banc), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985); United States v. Shue, 766 F.2d 1122, 1132 (7th Cir.1985). Determining whether an error is reversible necessitates examination of the entire record. See United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Hasting reiterated the Supreme Court’s recognition that “given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error free, perfect trial, and that the Constitution does not guarantee such a trial.” Id. at 508-09, 103 S.Ct. at 1980. 2. The government urges us to find that the prosecutor’s comments were fair comment based upon the evidence and were cured by an admonition from the trial judge. Prosecutorial missteps have been held harmless in light of the relative strength of" }, { "docid": "8644738", "title": "", "text": "that impermissible use of a defendant’s post-arrest silence may be plain error, see, e.g., United States v. Edwards, 576 F.2d 1152, 1154 (5th Cir.1978) (per curiam); United States v. Lopez, 575 F.2d 681, 685 (9th Cir.1978), and we so hold. Constitutional error is reversible error unless it is harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The burden of proving a constitutional error harmless rests upon the government. Chapman, 368 U.S. at 24, 87 S.Ct. at 828. While the result of a harmless error analysis depends on the circumstances of the particular case, we note that post-arrest silence due process violations often have been held reversible error. See, e.g., United States ex rel. Allen v. Franzen, 659 F.2d 745, 748 (7th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 444 (1982); Williams v. Zahradnick, 632 F.2d 353, 360-65 (4th Cir.1980) (citing cases); Edwards, 576 F.2d at 1155; Morgan v. Hall, 569 F.2d 1161, 1168 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1142 (1978). In this case, the evidence against appellant is not so overwhelming as to convince us that the government’s comments could not have played a role in the jury’s guilty verdicts. As we read the transcript, the prosecutor was trying to cultivate in the jurors’ minds the idea that Shue’s exculpatory story to the effect that Raduazzo framed him was a recent fabrication. If so, then the prosecutor’s conduct is relevant to Shue’s convictions on Counts II and III, charging the robbery of Colonial Bank and Trust Company and the attempted robbery of Argo State Bank, the only robberies as to which Raduazzo testified. Apart from Raduazzo’s testimony, the evidence linking Shue to these crimes was thin indeed. No eyewitness (other than Raduazzo) identified Shue as a participant in either crime. Other circumstantial evidence was not strong enough to be an independent basis for conviction. Thus the verdict on Counts II and III depended primarily on the" }, { "docid": "18789893", "title": "", "text": "be some such errors which, in the setting of a particular case, are so unimportant and insignificant that they may be deemed harmless, consistent with the Constitution. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966). The Supreme Court has imposed on the prosecution the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Id. 386 U.S. at 24, 87 S.Ct. 828. In the context of trial, the issue is whether absent the constitutionally-forbidden evidence, honest and fair-minded jurors might very well have brought in not-guilty verdicts. Id. at 26, 87 S.Ct. at 829. The fact that there was some incrimination or circumstantial evidence does not render the error harmless. U.S. ex rel. Burke v. Greer, 756 F.2d 1295, 1302 (7th Cir.1985). Rather, the case against the defendant must be “overwhelming” in order to apply the harmless error rule. United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (amended opinion). The Court does not vary the harmless error standard with the type of constitutional right at issue, but rather prescribes one standard — the Chapman standard. Once a trial error has been identified as one of constitutional magnitude, then the Chapman standard is applied to determine whether the conviction must be reversed. U.S. ex rel. Miller v. Greer, 789 F.2d 438, 443-444 (7th Cir.1986) (en banc). Confrontation Clause violations are subject to this same analysis. Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); Harrington v. California, 395 U.S. 250, 252, 89 S.Ct. 1726, 1727, 23 L.Ed.2d 284 (1969); United States v. Key, 725 F.2d 1123, 1125-27 (7th Cir.1984); Mattes v. Gagnon, 700 F.2d 1096, 1104-06 (7th Cir.1983). The inquiry we must conduct is whether an error is harmless in light of a host of factors. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence of absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and," }, { "docid": "6417521", "title": "", "text": "128 F.3d 1085, 1096 (7th Cir.1997) (finding Doyle error harmless under Brecht upon consideration of similar factors, where the evidence of defendant’s guilt was overwhelming, defendant’s credibility had already been substantially undermined by physical evidence showing his alibi to be false, and the improper references were limited in intensity and frequency). Although the harmless error standard has changed, our cases applying the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) — whether the error was harmless beyond a reasonable doubt — nevertheless inform and assist us in our analysis under Brecht. Turning to those cases, we first observe that we have repeatedly held Doyle error harmless where the violation consisted of only a single reference to the defendant’s post-Miranda silence during the course of a trial at which the government’s evidence was otherwise overwhelming. See United States v. Gabay, 923 F.2d 1536, 1541 (11th Cir. 1991); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985); Sullivan v. Alabama, 666 F.2d 478, 485 (11th Cir.1982). In so holding, we have often emphasized both that the improper reference was “isolated” or “unintentional” or promptly addressed by a curative instruction from the trial court, and that the prosecutor made no effort to further “highlight” the defendant’s exercise of Miranda rights either in questioning other witnesses or during closing argument. See United States v. Gonzalez, 921 F.2d 1530, 1549-50 (11th Cir.1991) (finding the prosecutor’s single reference to defendant’s post-Miranda silence harmless where “[t]he prosecutor did not return to this testimony either while questioning other witnesses or upon closing argument,” the state’s evidence was “otherwise strong to clearly indicate [the defendant’s] involvement,” and the improper comment “was quickly objected to and a curative instruction was promptly given to the jury”); United States v. Smith, 635 F.2d 411, 413-14 (5th Cir. Unit B 1981) (finding a single comment on defendant’s silence harmless where the prosecutor “did not ‘focus on’ or ‘highlight’ the defendant’s silence in his examination of the witnesses or in his closing remarks,” the court immediately gave a curative instruction, and the evidence of guilt" }, { "docid": "18075412", "title": "", "text": "objection had been preserved—could ever be considered harmless beyond a reasonable doubt. See, e.g., Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963). Thus, the language in question, read in context, means only that, with respect to this sort of bevue, the Court perceived that there would always be “a reasonable possibility that the [error] complained of might have contributed to the conviction.” See Fahy, 375 U.S. at 86-87, 84 S.Ct. at 230-31. But, an error, to be “unplain,” need not be harmless beyond all reasonable doubt. More—considerably more, we suggest—is needed to breach the sturdy fortifications surrounding the raise-or-waive rule. In effect, appellants' second line of attack is tantamount to a declamation that the right to have an Article III judge preside at empanelment is so essential to the fairness of a felony trial that it cannot be waived. But, that dog will not hunt. Time and again, courts—including this one— have upheld waivers of rights which strike us as equivalent to, or more basic than, this one. See, e.g., United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987) (lack of timely objection foreclosed apprehended defendant’s argument that he was not brought before magistrate without unnecessary delay); United States v. Bayko, 774 F.2d 516, 517 (1st Cir.1985) (ex post facto defense pretermitted by failure to raise); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir.1984) (failure to object at second trial waives double jeopardy defense), cert. denied, 472 U.S. 1017, 1021, 105 S.Ct. 3476, 3488, 87 L.Ed.2d 613, 622 (1985); United States v. Coleman, 707 F.2d 374, 376 (9th Cir.) (fifth amendment claim waived if not raised at trial), cert. denied, 464 U.S. 854, 104 S.Ct. 171, 78 L.Ed.2d 154 (1983); Paul v. Henderson, 698 F.2d 589, 592 (2d Cir.) (same as Bascaro; collecting cases), cert. denied, 464 U.S. 835, 104 S.Ct. 120, 78 L.Ed.2d 118 (1983); United States v. Surridge, 687 F.2d 250, 255 (8th Cir.) (fourth amendment objection waived if not seasonably raised), cert." }, { "docid": "8584576", "title": "", "text": "fair trial. Id. III. The conclusion that there was a Doyle violation in this case does not end the inquiry, however, since constitutional trial errors of this sort can in certain circumstances constitute harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Supreme Court has imposed on the government the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The circuits universally apply this “harmless beyond a reasonable doubt” standard to Doyle violations. See, e.g., United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir.1985); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1869, 85 L.Ed.2d 162 (1985); Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir.1980); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); United States v. Disbrow, 768 F.2d 976, 980 (8th Cir. 1985); United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985); United States v. Remigio, 767 F.2d 730, 735 (10th Cir.1985); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985). This circuit is no exception, see, e.g., United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (Wood, J.). In this circuit alone, however, the possibility has been raised that a less stringent harmless error standard may be appropriate to Doyle situations. Concurring opinions to our en banc decision in Phelps v. Duckworth addressed the issue, although the majority there expressly declined to reach it. 722 F.2d 1410, 1414 (7th Cir.1985). Moreover, the state pressed this position during oral argument in this case, as does Judge East-erbrook in his dissent. Proponents of the lesser standard make several arguments. First, they urge that the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), adopted a two-level harmless" }, { "docid": "6417520", "title": "", "text": "a subsequent probation revocation hearing. Id. at 787-88. The prosecution then returned to the subject of the defendant’s silence in closing argument, reminding the jury that although the defendant had heard the substance of the state’s case on several occasions prior to trial, “today ... is the very first time [the defendant] has ever told you — or told anyone — the truth about what happened.” Id. at 788. After concluding that the prosecution’s improper references “amounted to blatant and egregious Doyle error,” the court proceeded to evaluate the effect of the improper references upon the jury under the Brecht standard. Id. at 789. The eourt held that the Doyle violations had a substantial influence on the jury “due to the facts of the case and the egregiousness of the prosecutor’s misconduct.” Id. In reaching this conclusion, the court emphasized the frequency of the prosecutor’s improper references, the weight of the state’s permissible evidence against the defendant, and the significance of the defendant’s credibility to his defense. Id, at 789-90. See also Lieberman v. Washington, 128 F.3d 1085, 1096 (7th Cir.1997) (finding Doyle error harmless under Brecht upon consideration of similar factors, where the evidence of defendant’s guilt was overwhelming, defendant’s credibility had already been substantially undermined by physical evidence showing his alibi to be false, and the improper references were limited in intensity and frequency). Although the harmless error standard has changed, our cases applying the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) — whether the error was harmless beyond a reasonable doubt — nevertheless inform and assist us in our analysis under Brecht. Turning to those cases, we first observe that we have repeatedly held Doyle error harmless where the violation consisted of only a single reference to the defendant’s post-Miranda silence during the course of a trial at which the government’s evidence was otherwise overwhelming. See United States v. Gabay, 923 F.2d 1536, 1541 (11th Cir. 1991); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985); Sullivan v. Alabama, 666 F.2d 478, 485 (11th Cir.1982). In so" }, { "docid": "16506955", "title": "", "text": "matter of minutes after Passman had offered the story and denied committing the crime. This plainly offends the principles enunciated in Doyle. C. Our inquiry does not end here, however. A Doyle violation may constitute harmless error. Shaw, 701 F.2d at 382. The general harmless error test is set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which requires “the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” in order for error to be harmless. Id. 386 U.S. at 24, 87 S.Ct. at 828. As stated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963), the issue is not “whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of.” Rather, the “question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id. See United States ex rel. Miller v. Greer, 789 F.2d 438, 443 (7th Cir.1986) (en banc) (“harmless beyond a reasonable doubt” is appropriate standard to apply in collateral proceedings challenging Doyle violation); see also Alston v. Garrison, 720 F.2d 812, 817 (4th Cir.1983) (“because the nature of a Doyle error is so egregious and so inherently prejudicial, reversal is the norm rather than the exception”), cert. denied, 468 U.S. 1219, 104 S.Ct. 3589, 82 L.Ed.2d 886 (1984); United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir.1978) (circumstances under which comment upon silence of defendant will not result in reversal “are few and discrete”). See generally Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). In Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 481 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), we described three general types of Doyle violations in an attempt to weigh the effects of a Doyle error: When the prosecution uses defendant’s post arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly" }, { "docid": "8584577", "title": "", "text": "393 (1977); Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); United States v. Disbrow, 768 F.2d 976, 980 (8th Cir. 1985); United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985); United States v. Remigio, 767 F.2d 730, 735 (10th Cir.1985); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985). This circuit is no exception, see, e.g., United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (Wood, J.). In this circuit alone, however, the possibility has been raised that a less stringent harmless error standard may be appropriate to Doyle situations. Concurring opinions to our en banc decision in Phelps v. Duckworth addressed the issue, although the majority there expressly declined to reach it. 722 F.2d 1410, 1414 (7th Cir.1985). Moreover, the state pressed this position during oral argument in this case, as does Judge East-erbrook in his dissent. Proponents of the lesser standard make several arguments. First, they urge that the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), adopted a two-level harmless error standard: the Chapman standard for direct violations of rights specifically enumerated in the Bill of Rights, and a standard requiring the defendant to demonstrate that the violation had a substantial influence on the trial for fourteenth amendment violations. As a variant of this position, it has been suggested that the latter standard is applicable because Doyle is not an innocence-protecting rule but, rather, a prophylactic rule designed only to buttress Miranda, another prophylactic doctrine. A third variant argues that, no matter what the standard applied to direct appeals of Doyle violations, constitutional rules are enforced less strictly on habeas corpus review. Analysis of these arguments is aided by the Supreme Court’s recent pronouncement in Wainwright v. Greenfield, — U.S. —, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). There, in its review of a habeas petition, the Court affirmed the Eleventh Circuit’s decision that Doyle is violated when a prosecutor uses post-Miranda warnings silence as evidence of sanity. Although the harmless error issue was not before the Court, Greenfield is particularly notable for its strong" }, { "docid": "9811476", "title": "", "text": "which reasonable persons can disagree — have disagreed. The district judge and the three judges of the state’s appellate court believe that the error was not harmless under this standard. Six justices of the Supreme Court of Wisconsin reached the contrary conclusion. (The seventh, Justice Ceci, did not participate in the decision.) The district judge thought her inability to deem the evidence “overwhelming” dispositive on the question. Some opinions of this court support such a perspective. E.g., United States ex rel. Savory v. Lane, 832 F.2d 1011, 1020 (7th Cir.1987); Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988). “Beyond a reasonable doubt” is an exacting standard. See Yates v. Evatt, — U.S.-, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991); Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 1257-61, 113 L.Ed.2d 302 (1991). The state, by contrast, submits that errors are harmless when their marginal effect is slight even though the evidence leaves room for debate. This position, too, has some support in our decisions. E.g., Phelps v. Duckworth, 772 F.2d 1410, 1413-15 (7th Cir.1985) (in banc); Fencl v. Abrahamson, 841 F.2d 760, 769 (7th Cir.1988). We could trudge through the record and add to the score, making the count anywhere from 9-4 for harmlessness (if we should agree with the Supreme Court of Wisconsin) to 7-6 for the opposite conclusion. The antecedent question, however, is whether collateral review of state convictions in federal court is nothing more than a replay of the direct appeal, as one federal district judge and then three federal appellate judges duplicate the work of the more numerous state judges. Although arguing that duplication of effort should end in its favor, Wisconsin also urges us to revisit the question whether a federal court should apply the “reasonable doubt” standard, derived from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), on collateral review of Doyle violations. United States ex rel. Miller v. Greer, 789 F.2d 438 (7th Cir.1986) (in banc), used the reasonable doubt test, but the Supreme Court reversed our judgment on other grounds under the name Greer v." }, { "docid": "22084580", "title": "", "text": "a defendant has made statements to the police after receiving Miranda warnings, he is deemed to have maintained his silence, unless the post-arrest statements are inconsistent with the defendant’s testimony at trial. See Anderson, 447 U.S. at 407 n. 2, 100 S.Ct. at 2182 n. 2 (in Doyle, defendant deemed to have remained silent for due process purposes despite his having made statements to arresting officer, since his statements did not contradict later testimony); Phelps v. Duckworth, 772 F.2d 1410, 1412 (7th Cir.) (en banc) (for Doyle purposes, defendant deemed not to have remained silent after arrest since “[bjefore trial ... he denied he had been sexually involved with Mrs. Clem, whereas at the trial he told a completely different story that he ... had sexual intercourse with her”), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985). Here, since Mazzurco’s post-arrest statement was not inconsistent with his trial testimony, we conclude that for Doyle purposes he remained silent. Therefore, we conclude that, under Doyle, the district court violated Mazzurco’s due process rights by allowing the prosecutor’s inquiry. Although we find the district court erred, we also conclude that the error was harmless. An error of constitutional dimension may be held to have been harmless if the government can show “ ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). Appraisal of an error’s impact depends on the nature of the violation in the context of a given factual setting. Haw kins v. LeFevre, 758 F.2d 866, 878 (2d Cir.1985). In Hawkins, this court held that the Doyle-type violation which occurred in that case was of a “grievous nature.” Id. at 879. In Hawkins, the trial judge, rather than the prosecutor, made the inquiry which violated the defendant’s rights. Id. at 875. Moreover, the inquiry concerned the defendant’s silence not only at the time of his arrest, but also" }, { "docid": "8432484", "title": "", "text": "were made throughout rebuttal closing argument, and the only instruction given which could be considered curative was the standard instruction given at the end of the trial that the fact that the defend ant did not testify should not be considered in arriving at a verdict.” On appeal, the respondent admits that some of the prosecutor’s remarks constitute direct comment on the petitioner’s failure to testify at trial. Petitioner correctly states that when a constitutional violation is established, the government must demonstrate beyond a reasonable doubt that the petitioner would have been convicted absent the prosecutor’s alleged unconstitutional remarks. United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96, 107 (1983). In other words, “such extreme prosecutorial misconduct calls for reversal unless the government can demonstrate that the error was harmless beyond a reasonable doubt.” United States v. Pirovolos, 844 F.2d 415, 425 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988) (citing Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 709-11 (1967)); Williams v. Lane, 826 F.2d 654, 666 (7th Cir.1987); Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.) (en banc), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985). In order to prove that the error in this case was harmless, the government must show that the case against Dortch was so overwhelming that “it would not have likely changed the re-suit of the trial.” United States v. Perez-Leon, 757 F.2d 866, 876 (7th Cir.), cert. denied, 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed. 2d 80 (1985). See also United States ex rel. Burke v. Greer, 756 F.2d 1295, 1302 (7th Cir.1985) (citations omitted). The district court found that the evidence against Dortch was overwhelming and despite the impropriety of the prosecutor’s comment, that the fifth amendment violation was harmless beyond a reasonable doubt. In making this finding, the district court focused on Ethel Collins’ unequivocal identification of Dortch and the admission by Dortch to Barbara Stewart that he had shot the man in Church’s Fried Chicken." } ]
607358
that exhaustion of administrative remedies is not a prerequisite to filing a § 1983 claim. Plaintiff further claims that pursuant to SCDC Policy GA 01.12, the issues before the court are non-grievable and are therefore properly before the court. Plaintiff claims that exhaustion of administrative remedies is not required where the reme dies are inadequate and that exhaustion is not required under the Prison Litigation Reform Act (“PLRA”) when monetary relief is not available through a state’s inmate grievances system. As noted above, 42 U.S.C. § 1997e(a) requires a prisoner to exhaust administrative remedies before bringing action with respect to prison conditions under § 1983. Exhaustion pursuant to this section is mandatory, and courts have no discretion to waive the requirement. REDACTED Even where exhaustion may be considered futile or inadequate, this requirement cannot be waived. Id.; Womack v. Donald, No. CV 306-59, 2006 WL 2598211, at *1 (S.D.Ga. Sept.8, 2006). Furthermore, exhaustion is required regardless of the relief sought. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (“[W]e think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.”). “[Section] 1997e(a)’s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Accordingly, before Plaintiff may proceed with his claims in this court, he must first have exhausted the administrative remedies available to him
[ { "docid": "22053888", "title": "", "text": "cases brought by Federal inmates contesting any aspect of their incarceration be submitted to administrative remedy process before proceeding to court.” Id. See also Garrett, 127 F.3d at 1265. In short, PLRA section 1997e(a) now applies to both federal and state prisoners. C. Futility and Inadequacy Doctrines Alexander’s next contention is that the BOP’s administrative remedies are futile and inadequate in his case because the BOP has no authority to award him monetary damages or to declare the Ensign Amendment unconstitutional. As a result, Alexander asserts that there were no administrative remedies “available” to him and that the mandatory exhaustion requirement of section 1997e(a) does not apply to his type of claims. We disagree for several reasons. First, Alexander’s complaint sought an injunction not only against the Ensign Amendment, but also against the BOP’s interpretation and implementation of that statute through its regulations and Program Statement. Even prior to the PLRA, this Court held that prisoners seeking monetary damages and injunctive relief should exhaust administrative grievance procedures that were arguably futile and inadequate before filing a section 1983 action regarding prison conditions. Irwin v. Hawk, 40 F.3d 347, 348-49 (11th Cir.1994). The Irwin Court acknowledged McCarthy’s holding “that a federal prisoner who initiates a Bivens claim solely for money damages need not exhaust the grievance procedure before seeking judicial review of his claim. 503 U.S. at-, 112 S.Ct. at 1088.” Irwin, 40 F.3d at 348 (emphasis supplied). This Court in Irwin then noted that “[t]he Court in McCarthy, however, explicitly reserved ruling on whether an exhaustion of remedies requirement is appropriate in a case such as Irwin’s, where the inmate seeks both monetary and injunc-tive relief.” Id. This Court in Irwin then agreed with the Seventh Circuit’s conclusion that exhaustion should be required even if it appears futile, as follows: No doubt denial is the likeliest outcome but that is not sufficient reason for waiving the requirement of exhaustion. Lightening may strike: and even if it doesn’t, in denying relief the Bureau may give a statement of its reasons that is helpful to the district court in considering the merits" } ]
[ { "docid": "6682304", "title": "", "text": "II. ANALYSIS The PLRA’s Exhaustion Requirement Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal citations omitted). The law seeks to alleviate the burden of this litigation by requiring prisoners to exhaust all administrative remedies before they can file suit in federal court. See 42 U.S.C. § 1997a. The “dominant concern” of the PLRA is “to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court.” Porter v. Nussle, 534 U.S. 516, 528, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (making the exhaustion requirement mandatory). Specifically, the law provides that “[n]o 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.” 42 U.S.C. § 1997e(a). This requirement is a strong one. To further the purposes behind the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is not available, Brock v. Kenton County, 93 Fed.Appx. 793, 798 (6th Cir.2004); even when the state cannot grant the particular relief requested, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); and “even where [the prisoners] believe the procedure to be ineffectual or futile....” Pack v. Martin, 174 Fed.Appx. 256, 262 (6th Cir.2006). Because he was clearly a “prisoner” at the time he filed suit, Napier was subject to the PLRA’s requirements. And because it applies to a person “in any jail, prison, or other correctional facility,” this is true whether he was housed at the LCDC or the Marion facility. The only question is whether the LCDC’s grievance procedure was “available” to Napier. Availability of an Administrative Remedy The applicable portions of LCDC’s grievance procedure read: POLICY: An inmate shall be allowed to file a grievance at such time as the inmate believes he or she has been subject to abuse, harassment," }, { "docid": "20265230", "title": "", "text": "176 L.Ed.2d 934 (2010); Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990) (concluding that the court had no basis for asserting personal jurisdiction over the warden of a BOP facility in Springfield, Missouri because he “surely does not transact any business in the District of Columbia”). Defendants neither reside in the District of Columbia, nor fall within the scope of the long-arm statute, nor maintain minimum contacts in this forum. For these reasons, the Court concludes that it lacks personal jurisdiction over the defendants in their individual capacities. C. Exhaustion of Administrative Remedies Under the PLRA In relevant part, the Prison Litigation Reform Act (“PLRA”) provides that: No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Defendants move to dismiss the complaint on the ground that plaintiff “has failed to exhaust his administrative remedies with regard to [the] claims raised in this lawsuit.” Defs.’ Mem. at 7. The PLRA exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir.2008); see also Kim v. United States, 632 F.3d 713, 718 (D.C.Cir.2011) (discussing requirement that a prisoner exhaust prison grievance procedures under the PLRA before filing a lawsuit). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply with all procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Typically, then, a prisoner may file a civil action concerning conditions of confinement under federal law" }, { "docid": "6212314", "title": "", "text": "remedies were unavailable to him .... ”); see also Opp. at 7 (Plaintiff himself acknowledging that “if the trier of fact found that the grievance process was available to Plaintiff, Plaintiffs § 1983 claim would necessarily fail”). Plaintiff seeks to excuse his failure to exhaust, accordingly, by establishing that the facility’s grievance process was unavailable to him because of 1) his mental incompetency and 2) the failure of staff to inform him of the process. See Opp. at 4. The Court ultimately finds that there is no material factual dispute as to the availability of the grievance process to Plaintiff under either of these arguments and will thus dismiss Count I. Having dispensed with Plaintiffs only federal claim, the Court will next determine whether to exercise supplemental jurisdiction over Plaintiffs remaining state-law claims. As the Court declines to do so, it will dismiss the case without prejudice. A. Count I: Administrative Exhaustion In relevant part, the PLRA provides: “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.” 42 U.S.C. § 1997e(a). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Id. at 520, 122 S.Ct. 983; see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Exhaustion under the PLRA requires that a prisoner comply with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. See Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Chumer, 532 U.S. 731, 741, 121 S.Ct. 1819, 149" }, { "docid": "20440308", "title": "", "text": "Litigation Reform Act of 1995 (“PLRA”), codified at 42 U.S.C. § 1997e(a). In relevant part, the PLRA provides that: 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 to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a) is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Id. at 524-25, 122 S.Ct. 983. A prisoner must complete the administrative process “regardless of the relief offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Thus, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted his administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001); Sample v. Lappin, 424 F.Supp.2d 187, 190-91 (D.D.C.2006). A A Genuine Issue Exists on Plaintiffs Exhaustion of the DOC Claim Plaintiff alleges that he was sexually assaulted by a DOC corrections officer. Compl. at 7. DOC’s Inmate Grievance Procedure (“IGP”) is set forth in the Inmate Handbook. See District of Columbia Defs’ Mot., Ex. 1 [Dkt. No. 17-2] at 10-11. In a separate section of the Handbook entitled “Prevention and Elimination of Sexual Abuse,” inmates who have been sexually assaulted by an employee or another inmate are directed to “[t]ell a staff member” and/or “[c]all the Confidential Sexual Misconduct Hotline ... from any inmate telephone,” which is monitored by the Office of Internal Affairs (“OIA”). Id. at 15. The OIA then is required to interview the accuser and to “take action,” such as transferring the employee from the accuser’s housing unit and forbidding any contact, placing the accuser in segregated" }, { "docid": "5750761", "title": "", "text": "The Magistrate Judge found that, to the extent this cause of action was one against the RCI officers under § 1983, it challenged the conditions of Wagner’s confinement. Under the PLRA a prisoner is required to exhaust his administrative remedies before filing a § 1983 action concerning his confinement. See 42 U.S.C. § 1997e(a) (“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.”). This provision is mandatory, and prisoners must exhaust all available remedies, even those where the relief requested — monetary damages-— cannot be granted administratively. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Nicholas v. White, 2006 WL 2583765, *2 (D.S.C. Sept. 7, 2006). Exhaustion is also now required in all suits challenging prison conditions, not just suits brought under § 1983. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As such, Wagner was required by the PLRA to exhaust all “available” administrative remedies prior to bringing this suit in federal court. Therefore, the Magistrate Judge correctly found that Wagner’s failure to exhaust the relevant prison grievance procedures barred this claim. Wagner does not object to the Magistrate Judge’s finding that he did not satisfied the PLRA’s exhaustion requirements; rather, Wagner objects that the exhaustion requirement obstructs his “freedom to petition my government for redress” and is therefore unconstitutional. The Supreme Court, however, has repeatedly enforced and upheld the PLRA’s exhaustion requirements. Woodford v. Ngo, — U.S. --, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12; Booth, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958. The court therefore finds that Wagner’s contention that the PLRA is unconstitutional is without merit. Having reviewed the entire record, including Plaintiffs objections, the court concludes that the R & R accurately summarizes the facts and law applicable to this matter, and correctly finds that Wagner’s Complaint fails to state" }, { "docid": "17412036", "title": "", "text": "1055, 137 L.Ed.2d 170 (1997) (citation omitted). 2. Administrative Exhaustion The PLRA requires an inmate to exhaust all available administrative remedies before filing suit in federal court. Specifically, 42 U.S.C. § 1997e(a) provides that “[n]o 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.” a. When Is Exhaustion Required? As the Supreme Court ruled last year, the exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). b. What Constitutes Exhaustion? It is well established that to exhaust — literally, to draw out, to use up completely, see Oxford English Dictionary (2d ed.1989) — “a prisoner must grieve his complaint about prison conditions up through the highest level of administrative review” before filing suit. Porter v. Goord, No. 01 Civ. 8996(NRB), 2002 WL 1402000, at *1 (S.D.N.Y. June 28, 2002) (citing Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001) (“[Grievances must now be fully pursued prior to filing a complaint in federal court.”), and Fletcher v. Haase, No. 99 Civ. 9549(GEL), 2002 WL 313799, at *1 (S.D.N.Y. Feb. 27, 2002) (“This lawsuit ... therefore, can only proceed after [plaintiff] has exhausted any available administrative remedies, including all appellate remedies provided within the system.”)); see also Booth, 532 U.S. at 735, 121 S.Ct. 1819 (noting Booth, who conceded nonexhuastion below, “did not, however, go beyond the first step, and never sought intermediate or final administrative review after the prison authority denied relief’); Gibson v. Goord, 280 F.3d 221, 223 (2d Cir.2002) (noting plaintiff “had not pursued the available remedy of filing a ‘level two grievance’ ”). “Complete exhaustion” is therefore required. Graham v. Cochran, No. 96 Civ. 6166(LTS)(RLE), 2002 WL 31132874," }, { "docid": "6212315", "title": "", "text": "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.” 42 U.S.C. § 1997e(a). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Id. at 520, 122 S.Ct. 983; see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Exhaustion under the PLRA requires that a prisoner comply with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. See Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Chumer, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). A prisoner may thus file a § 1983 action concerning the conditions of his confinement only after he has exhausted the prison’s administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001). As Plaintiff notes, however, see Opp. at 5, the PLRA requires that an inmate exhaust only those administrative remedies “as are available.” 42 U.S.C. § 1997e(a). “We have recognized that the PLRA therefore does not require exhaustion when circumstances render administrative remedies ‘effectively unavailable.’ ” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.2010) (internal citations omitted). In this case, Plaintiff argues that both his mental incompetence and his ignorance of the administrative processes render the remedies “unavailable.” The Court will address each contention in turn. 1. Mental Incompetence Plaintiff first maintains that his “mental incompetence and ongoing victimization and humiliation by Defendant demonstrate that the prison grievance process was absolutely unavailable to him.” Opp. at 6. In so arguing, however, Plaintiff relies on language from distinguishable, non-binding authorities. See id. at 4-7. The two cases that" }, { "docid": "6739843", "title": "", "text": "in their official capacities are dismissed on the grounds of sovereign immunity. See id. Defendants argue that Williams’s remaining claims against the federal officers acting in their individual capacities should be dismissed because Williams failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act (“PLRA”). (Def.Mem.4.) Section 1997e(a) of the PLRA states: 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, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a) (2005). The requirement applies to all prison suits, whether they concern ongoing prison conditions or individual episodes that have already occurred, and applies equally to Bivens claims. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that the exhaustion requirement applies to all inmate suits about prison life including allegations of excessive force); Thomas v. Ashcroft, No. 02-CV-5746, 2004 WL 1444735, at *7 (S.D.N.Y.2004) (“[Fjederal prisoners suing under Bivens must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to initiating a § 1983 suit”). The statute also requires that prisoners seeking monetary damages exhaust available prison remedies regardless of the actual availability of the requested damages through the administrative process. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (holding that Congress has made it clear that exhaustion is required even if the plaintiff seeks damages not available as relief in the administrative procedure). The exhaustion requirement is not jurisdictional in nature, but is an affirmative defense. McCoy v. Goord, 255 F.Supp.2d 233, 247 (S.D.N.Y.2003). “ ‘An affirmative defense may be raised by a ... motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.’ ” Brito v. Vargas, No. 01-CV-7753, 2003 WL 21391676, at *2 (E.D.N.Y. June 16, 2003) (quoting McCoy, 255 F.Supp.2d at 249.). The failure of a complaint to show that the exhaustion requirement has been" }, { "docid": "13993113", "title": "", "text": "of summary judgment de novo. McCoy v. Gilbert, 270 F.3d 503, 508 (7th Cir.2001). “Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court.” Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In 1996, however, as part of the Prison Litigation Reform Act (“PLRA”), Congress made exhaustion a mandatory prerequisite for a prisoner’s suit concerning the conditions of his confinement brought under section 1983. Porter, 534 U.S. at 524, 122 S.Ct. 983. The PLRA’s exhaustion provision now reads: “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 administra tive remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,” Porter, 534 U.S. at 532, 122 S.Ct. 983, and “an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). An inmate’s perception that exhaustion would be futile does not excuse him from the exhaustion requirement. Id.; Perez v. Wisc. Dep’t of Corrections, 182 F.3d 532 (7th Cir.1999). “Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.” Porter, 534 U.S. at 524, 122 S.Ct. 983 (citing Booth, 532 U.S. at 741, 121 S.Ct. 1819); see also Riccardo v. Rausch, 375 F.3d 521, 523 (7th Cir.2004). The Illinois Department of Corrections has an established grievance process. See 20 Ill. Admin. Code §§ 504.800 et seq. An inmate can submit a written grievance to a designated grievance officer, who submits his recommendation to the institution warden. 20 Ill. Admin. Code §§ 504.810, 504.830. The warden “shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, where reasonably feasible.” 20 Ill. Admin. Code § 504.830(d). Alternatively, an inmate can" }, { "docid": "23434422", "title": "", "text": "before a jury on October 30, 31, and November 1, 2006. Espinal was represented by counsel at trial. The jury returned a verdict in favor of the defendants. Espi-nal’s counsel moved for a new trial pursuant to Federal Rule of Civil Procedure 59(a). The district court denied the motion for a new trial in an oral decision. Espinal filed a timely appeal of the September 1, 2005 order granting summary judgment in part and the January 11, 2007 order denying the motion for a new trial. DISCUSSION I. Exhaustion of Administrative Remedies A. The Scope of the PLRA Exhaustion Requirement The Prison Litigation Reform Act of 1995 (“PLRA”) states that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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.” 42 U.S.C. § 1997e(a). The PLRA exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Prisoners must utilize the state’s grievance procedures, regardless of whether the relief sought is offered through those procedures. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In Woodford v. Ngo, the Supreme Court held that “the PLRA exhaustion requirement requires proper exhaustion.” 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The prisoner in Woodford argued that administrative remedies were unavailable once the prison rejected his grievance as untimely. Id. at 87, 126 S.Ct. 2378. The Supreme Court rejected this argument. The Court held that “[pjroper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules” as a precondition to filing a federal lawsuit. Id. at 90, 126 S.Ct. 2378. Woodford explained that compliance with state procedural rules is necessary to achieve “[t]he benefits of exhaustion [that] can be realized only if the prison grievance system is given a fair opportunity" }, { "docid": "20083871", "title": "", "text": "to less (in the evaluation of the court) than a preponderance.’ ” Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir.1989)). III. Discussion In their motion for summary judgment, Defendants assert that Mitchell failed to exhaust his administrative remedies with respect to all but two of his claims, as required by the Prison Litigation Reform Act of 1995 (“PLRA”), Pub.L. No. 104-134, 110 Stat. 1321 (1996). Further, Defendants argue that Mitchell’s exhausted claims fail on the merits. The court will address these arguments in turn. A. Exhaustion of Administrative Remedies Defendants seek an entry of judgment in their favor because Mitchell failed to exhaust his administrative remedies with respect to his claims relating to the March 20, 2008 incident in the SMU and to the claims relating to the conditions of the SMU. The PLRA requires a prisoner to present his claims through an administrative grievance process before seeking redress in federal court. The act specifically provides as follows: 42 U.S.C. § 1997e(a). A prisoner must exhaust administrative remedies as to any claim that arises in the prison setting, regardless of any limitations on the kind of relief that may be gained through the grievance process. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). “[I]t is beyond the power ... of any ... [court] to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y.1998) (citing Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)).) The PLRA “completely precludes a futility exception to its mandatory exhaustion requirement.” Nyhuis, 204 F.3d at 71. The PLRA also mandates that an inmate “properly” exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “Proper exhaustion demands" }, { "docid": "3707028", "title": "", "text": "at the administrative level and “to improve the quality of suits that are filed by producing a useful administrative record.” Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Exhaustion is the “general rule” for litigation within Section 1997e(a)’s compass. Porter, 534 U.S. at 525 n. 4, 122 S.Ct. 983. Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process. Booth v. Churner, 532 U.S. 731, 739, 741 & n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). But a prisoner must exhaust only “such administrative remedies as are available,” 42 U.S.C. § 1997e(a), that is, those prison grievance procedures that provide “the possibility of some relief for the action complained of,” Booth, 532 U.S. at 738, 121 S.Ct. 1819. The statutory requirement of an available remedy presupposes authority to take some action in response to a complaint. Booth, 532 U.S. at 736, 121 S.Ct. 1819. Thus, if “the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint,” then a prisoner is left with nothing to exhaust and the PLRA does not prevent the prisoner from bringing his or her claim directly to the district court. Id.; see Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir.2001) (prisoner must exhaust any prison administrative process that “was empowered to consider his complaint and ... .could take some action in response to it”); Snider v. Melindez, 199 F.3d 108, 113 n. 2 (2d Cir.1999) (“If ... the inmate’s suit complains that he was beaten by prison guards, and the institution provides a grievance proceeding for inmate complaints about food ... but none for complaints about beatings,” the inmate would not be required to pursue the griev-anee procedure having “no application whatsoever to the subject matter of his complaint.”). This case is the rare one" }, { "docid": "22902346", "title": "", "text": "the mail constituted exhaustion under the PLRA, then ■ any prisoner could circumvent the exhaustion requirement by claiming that he mailed a complaint. The court also rejected Dole’s analogy to cases that hold that prison officials cannot exploit the exhaustion requirement by indefinitely delaying' response to grievances, ruling that there was no evidence that prison officials destroyed or mishandled the grievance. The district court also refused to grant Dole’s motion to compel responses to discovery. Dole now appeals. II. Discussion A. Exhaustion under the PLRA The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are' exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is necessary even if the prisoner is requesting relief that the relevant administrative review board has no power to grant, such as monetary damages, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), or if the prisoner believes that exhaustion is futile, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). “The sole objective of § 1997e(a) is to permit the prison’s administrative process to run its course before litigation begins.” Cannon v. Washington, 418 F.3d 714, 719 (7th Cir.2005) (per curiam). The Supreme Court has also noted that corrective action taken in response to a grievance might satisfy the prisoner, thus obviating the need for the litigation, or alert prison authorities to an ongoing problem that they can correct. Porter, 534 U.S. at 524-25, 122 S.Ct. 983. The Supreme Court has stated that so long as the administrative authority has the ability to take some action in response to the complaint (even if not the requested action), an administrative remedy is still “available” under the PLRA. Booth, 532 U.S. at 741, 121 S.Ct. 1819; see also Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir.2001) (inmate must exhaust prison remedies if the administrative body (1) was empowered to consider the complaint and (2) could take some action in response to it). Prison officials may not take unfair advantage of the exhaustion requirement, however," }, { "docid": "22637828", "title": "", "text": "v. Menghini, 213 F.3d 1244, 1246 (10th Cir.2000) overruled on other grounds by Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that “available” administrative remedies be exhausted prior to filing an action with respect to prison conditions under § 1983. Even where the “available” remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available. Booth, 532 U.S. at 740, 121 S.Ct. 1819 (holding that even where an inmate sought money damages and the grievance process did not permit such awards, exhaustion was required as long as there was authority to take some responsive action). The Court held that Congress had eliminated both discretion to dispense with administrative exhaustion and the condition that it be “ ‘plain, speedy, and effective.’ ” Id. See also Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (“PLRA’s exhaustion requirement applies to all inmate suits about prison life”). An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001). In Wright, an inmate alleged that he had substantially complied with the administrative procedures but did not see the process to its conclusion. The court noted that the PLRA does not “enable[ ] judges, by creative interpretation of the exhaustion doctrine, to prescribe or oversee prison grievance systems.” Id. Mr. Wright’s suit was dismissed so that he could “exhaust ‘available’ remedies ' whatever they may be.” Id. For the same reasons, we reject Mr. Jernigan’s assertion that “[ijnmates do not have to properly complete the grievance process, and they do not have to correct deficiencies.” R. Doc. 24 at 9 (emphasis in original). Nor is his argument that he gave notice of his claims to various Defendants by means other than the grievance process persuasive — the doctrine of substantial compliance does not apply. Mr. Jernigan contends" }, { "docid": "3707027", "title": "", "text": "(denying plaintiff Daniel Siler’s motion for injunction because he “failed to note an appeal in this action”). On appeal, Kaemmerling argues that the district court erred in dismissing his case because the PLRA’s exhaustion requirement does not apply and that it erred in denying his motion for a preliminary injunction. The BOP defends the district court’s PLRA decision and further argues that, even if Kaemmerling is not required to exhaust administrative remedies, we should dismiss his complaint for failure to state a claim. II The PLRA provides that “[n]o 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.” 42 U.S.C. § 1997e(a). The exhaustion requirement affords prison officials time and opportunity to resolve complaints concerning the exercise of their responsibilities before allowing the initiation of a federal case. Exhaustion thus “has the potential to reduce the number of inmate suits” by resolving problems at the administrative level and “to improve the quality of suits that are filed by producing a useful administrative record.” Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Exhaustion is the “general rule” for litigation within Section 1997e(a)’s compass. Porter, 534 U.S. at 525 n. 4, 122 S.Ct. 983. Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process. Booth v. Churner, 532 U.S. 731, 739, 741 & n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). But a prisoner must exhaust only “such administrative remedies as are available,” 42 U.S.C. § 1997e(a), that is, those prison grievance procedures that provide “the possibility of some relief for the action complained of,” Booth, 532 U.S. at 738, 121 S.Ct. 1819. The statutory requirement of an available remedy presupposes" }, { "docid": "20440307", "title": "", "text": "opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Rule 56(e), Fed. R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party is “required to provide evidence that would permit a reasonable jury to find” in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the non-movant’s evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505. To defeat summary judgment, then, plaintiff must have more than “a scintilla of evidence to support his claims.” Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001); accord Ben-Kotel v. Howard University, 319 F.3d 532, 536 (D.C.Cir.2003). III. DISCUSSION Caulfield and the District of Columbia defendants claim that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”), codified at 42 U.S.C. § 1997e(a). In relevant part, the PLRA provides that: 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 to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a) is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Id. at 524-25, 122 S.Ct. 983. A prisoner must complete the administrative process “regardless of the relief offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Thus, a prisoner may file a civil action" }, { "docid": "22893909", "title": "", "text": "U.S.C. § 1292(b). II.ISSUE Whether the PLRA’s exhaustion requirement, codified in 42 U.S.C. § 1997e(a), requires prisoners to meet timely the deadlines or the good cause standard of Georgia’s administrative grievance procedures before filing a federal claim. III.STANDARD OF REVIEW This court reviews de novo a district court’s interpretation and application of 42 U.S.C. § 1997e(a)’s exhaustion requirement. Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir.2000). IV.DISCUSSION Section 1997e(a) provides that “[n]o 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.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). This provision entirely eliminates judicial discretion and instead mandates strict exhaustion, “irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 1825 n. 6, 149 L.Ed.2d 958 (2001). Congress intended to afford prison officials time to address grievances internally before allowing a prisoner to initiate a federal lawsuit. See Porter, 534 U.S. at 525, 122 S.Ct. at 988. Thus, whatever the precise contours of what exhaustion requires, it plainly is procedural in nature: While the modifier “available” requires the possibility of some relief for the action complained of ..., the word “exhausted” has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered .... [0]ne “exhausts” processes, not forms of relief, and the statute provides that one must. Booth, 532 U.S. at 738-39, 121 S.Ct. at 1824. “In other words, the modifier ‘available’ in the PLRA means that inmates must exhaust administrative remedies so long as there is the possibility of at least some kind of relief.” Ross v. County of Bernalillo, 365 F.3d" }, { "docid": "20647104", "title": "", "text": "Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-l et seq., and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-l et seq. Compl. ¶¶ 1, 15-22 (Count I). Further, he alleges that BOP’s Director “failed to train, supervise, and promulgate policies requiring his subordinates to comply with RFRA and RLUI-PA.” Id. ¶ 23 (Count II). He demands declaratory and injunctive relief. Id. ¶ 24. II. DISCUSSION A. Plaintiff Need Not Exhaust Administrative Remedies Regarding Request for Staff Member to Administer Wine In relevant part, the Prison Litigation Reform Act provides that: 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 to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a) is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Id. at 524-25, 122 S.Ct. 983. A prisoner must complete the administrative process “regardless of the relief offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Thus, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted the BOP’s administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001). In his inmate grievance, plaintiff challenges the Warden’s decision to prohibit inmates’ consumption of wine on the ground that the decision violates federal law, and requests permission to drink wine during Sabbath services and the Passover seder. See Defs.’ Mot., Attach. A (Request for Administrative Remedy dated August 20, 2004). He neither suggests a procedure by which the wine could be provided to him, nor identifies a person to administer the wine. In" }, { "docid": "23061197", "title": "", "text": "prison administrative grievance process for his RLUIPA claim. The District Court accepted the Magistrate’s Report and Recommendation to dismiss and DeHart now appeals. We exercise plenary review over a district court’s decision to grant a motion to dismiss, and to the extent that our review turns on the statutory construction of the exhaustion requirement in Section 1997e(a), our review is also plenary. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.2004) (citations omitted). Section 1997(e)(a) provides that “[n]o action shall be brought with respect to prison conditions under Section 1983 ... 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.” 42 U.S.C. § 1997e(a) (1996). This stringent exhaustion requirement was established by the Prison Litigation Reform Act of 1995 (“PLRA”), replacing language that required prisoners to exhaust only those “plain, speedy, and effective remedies as are available.” Civil Rights of Institutionalized Persons Act, Pub.L. No. 96-247, 94 Stat. 349, § 7(a) (1980), amended by Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 at 66 (1996). The PLRA was enacted with a two-fold purpose: to limit the number of prison condition lawsuits then flooding the courts and to return control over prison policies and decision-making to local prison officials. See Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). This Court has repeatedly held that Section 1997e(a) makes exhaustion of prison administrative remedies mandatory, regardless of the efficacy of the grievance process. See, e.g., Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir.2000) (holding that “the PLRA amended § 1997e(a) in such a way as to make exhaustion of all administrative remedies mandatory-whether or not they provide the inmate-plaintiff with the relief he says he desires”); Booth v. Churner, 206 F.3d 289 (3d Cir.2000) (finding exhaustion mandatory in Eighth Amendment claim brought by prisoner under § 1983 even though plaintiff sought monetary damages), aff'd 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). We held that an across-the-board, mandatory exhaustion requirement serves the underlying" }, { "docid": "22068772", "title": "", "text": "rights cases. Porter v. Nussle, 534 U.S. 516, 525 n. 4, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 1997e(a) provides: “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.” The question before us is whether Brown and Hall properly exhausted “such administrative remedies as are available” before proceeding to the district court. Two Supreme Court decisions, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), and Porter v. Nussle, provide substantial guidance in discerning the meaning of § 1997e(a) as it pertains to this question. In Booth, a prisoner sought injunctive relief and monetary compensation for alleged Eighth Amendment violations. 532 U.S. at 734, 121 S.Ct. 1819. The issue addressed was whether the PLRA required Booth to exhaust the prison grievance process even though it promised no hope of the monetary relief he sought. Couched in terms of the statutory language, the question was “whether or not a remedial scheme is ‘available’ where the administrative process has authority to take some action in response to a complaint, but not the remedial action an inmate demands to the exclusion of all other forms of redress.” Id. at 736, 121 S.Ct. 1819 (emphasis added). Booth concluded that prisoner plaintiffs must pursue a remedy through a prison grievance process as long as some action can be ordered in response to the complaint. The Court, construing the statutory language, considered that “[i]t makes no sense to demand that someone exhaust ‘such administrative [redress]’ as is available; one ‘exhausts’ processes, not forms of relief, and the statute provides that one must.” Id. at 739, 121 S.Ct. 1819 (altera tion in original). In light of this mandate, the Court determined, prisoners are obligated to navigate all a prison’s administrative review process “regardless of the fit between a prisoner’s prayer for relief and the administrative remedies possible.” Id. at 739-41, 121 S.Ct. 1819. By thus enacting “an obviously broader" } ]
799334
an amount in controversy which exceeds $10,000.00, see 28 U.S.C. §§ 1332 and 1441, the court’s dismissal of Counts II, III and IV and of the plaintiffs’ claim for attorney’s fees resolves the facets of the case upon which the court’s subject matter jurisdiction is premised. Because the court’s jurisdictional basis has vanished and because there has been no substantial commitment of judicial resources to this matter, the court deems it appropriate to remand the case to the state court from which it was removed. See Murphy v. Kodz, 351 F.2d 163, 167 (9th Cir. 1965); Pisciotta v. Ferrando, 428 F.Supp. 685, 688 (S.D.N.Y.1977); Smith v. Rivest, 396 F.Supp. 379, 383 (E.D.Wis.1975); REDACTED Upon the foregoing, IT IS ORDERED That the plaintiffs’ motion for leave to amend their complaint be and hereby is granted, and the plaintiffs’ amended complaint shall be filed. IT IS FURTHER ORDERED That the defendant’s motion for partial summary judgment be and hereby is granted. IT IS FURTHER ORDERED That Counts II, III, IV, the plaintiffs’ claim for attorney’s fees and their claim for exemplary damages be and hereby are dismissed with prejudice. IT IS FURTHER ORDERED That, based upon the court’s express determination that there is no just reason for delay, the Clerk shall enter judgment accordingly. IT IS FURTHER ORDERED That this matter be and hereby is remanded to the District Court of Hennepin County, Minnesota. IT
[ { "docid": "381342", "title": "", "text": "STEPHENSON, Circuit Judge. This cause initially was filed in the Circuit Court of the City of St. Louis, Missouri. It was removed to federal court by United States Steel pursuant to removal jurisdiction under 28 U.S.C. § 1441(c) based upon plaintiff-appellant Rotermund’s separate and independent claim against Steel in Count I of the complaint. Rotermund now appeals from entry of summary judgment which was entered May 26, 1972. The district court’s opinion is reported at 346 F.Supp. 69 (E.D.Mo.1972). The original action was for specific performance of an alleged agreement entered into between defendants-appellees, Powell and United States Steel under date of June 28, 1965. Count I of Rotermund’s complaint sought specific performance against USS which would require USS to purchase shares of Basic Materials common stock owned by Rotermund. Count II alleged a conspiracy by all defendants to induce USS to violate its alleged obligation to purchase stock from Rotermund under the 1965 agreement and that Rotermund was discharged from Basic in furtherance of the al leged conspiracy. Count III alleged a violation of the Missouri Service Letter Statute by Basic. The trial court determined as a matter of law that U. S. Steel under the agreement was not obligated to purchase Rotermund’s stock and entered summary judgment accordingly on Count I. In view of its finding that USS did not violate the agreement, the court further ruled there could be no conspiracy to induce USS to breach the agreement and therefore entered judgment in favor of all defendants on Count II. See, Howe v. St. Louis Union Trust Co., 392 S.W.2d 625, 628 (Mo.1965). Because the remaining Count III, a non-removable claim, required construction of a Missouri statute, the trial court exercised its discretion and remanded it to the state court for disposition. See, Murphy v. Kodz, 351 F.2d 163, 167-168 (9th Cir. 1965). Since the factual circumstances together with the relevant portions of the 1965 agreement, the 1968 option, and the 1968 amendment are set out in detail by the trial court in its opinion at 346 F.Supp. 69, we shall confine our statement to those facts" } ]
[ { "docid": "14461469", "title": "", "text": "based upon pendent jurisdiction. Upon the foregoing, IT IS ORDERED That the motion of the defendants MHRA and the City of Minneapolis to dismiss the fifteenth and sixteenth causes of action in the plaintiffs’ amended complaint for failure to state a claim upon which relief can be granted (F.R.Civ.P. 12(b)(6)) be and hereby is granted. The court further finds, pursuant to Rule 54(b) of the F.R.Civ.P., that there is no just reason for delay of entry of judgment. Accordingly, the clerk shall enter judgment dismissing with prejudice the fifteenth and sixteenth causes of action. IT IS FURTHER ORDERED That the motion of the defendants MHRA and the City of Minneapolis to dismiss the seventeenth and eighteenth causes of action in the plaintiffs’ amended complaint for failure to state a claim upon which relief can be granted (F.R.Civ.P. 12(b)(6)) be and hereby is granted. The court further finds pursuant to Rule 54(b) of the F.R.CÍV.P. that there is no just reason for delay of entry of judgment. Accordingly, the clerk shall enter judgment dismissing with prejudice the seventeenth and eighteenth causes of action. IT IS FURTHER ORDERED That the motion of the defendants MHRA and the City of Minneapolis to dismiss the nineteenth cause of action in the plaintiffs’ amended complaint for failure to state a claim upon which relief can be granted (F.R.Civ.P. 12(b)(6)) be and hereby is denied. IT IS FINALLY ORDERED That the motions of the defendants MHRA and the City of Minneapolis to dismiss the twelfth and thirteenth causes of action in the original complaint for lack of subject-matter jurisdiction (F.R.Civ.P. 12(b)(1)) be and hereby are denied, with leave granted to these defendants to renew this motion at a later date if circumstances change." }, { "docid": "21103744", "title": "", "text": "for poor performance or for a personality clash with management is not a legally important distinction; what matters is whether there is any evidence of discrimination to undermine the stated reasons for termination. No evidence of pretext based upon race or disability has been presented. Although defendants have several non-discriminatory reasons for terminating Plaintiff, employers in Florida do not have to have a reason to fire at will employees; they just cannot fire them for particular reasons, such as race or disability. E. State Claims With the grant of summary judgment and dismissal of the federal claims, this Court declines to exercise jurisdiction over the remaining state claims. The asserted basis for this Court’s jurisdiction over the state claims is 28 U.S.C. § 1367, supplemental jurisdiction as to the Plaintiffs state law claims. However, 28 U.S.C. § 1367(c)(3) allows a district court to decline to exercise supplemental jurisdiction when all claims over which it has original jurisdiction have been dismissed, as is now the case herein. Therefore, the Court, pursuant to Section 1367(c)(3), will exercise its discretion and DISMISS the state law claims set forth in Counts XIII through XIV, as the federal claims presented here are dismissed. CONCLUSION Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Defendants’ Motion for Summary Judgment [DE 31] is hereby GRANTED in part as to Counts I, II, III, IV, V, VI, and VII of the Plaintiffs Complaint; 2. Counts I, II, III, IV, V, VI, and VII of the Plaintiffs Complaint are hereby DISMISSED WITH PREJUDICE for the reasons stated above; 3. Counts VIII, IX, X, XI, XII, XIII and XIV of the Plaintiffs Complaint are hereby DISMISSED WITHOUT PREJUDICE in that this Court declines to exercise supplemental jurisdiction over these remaining state claims; 4. All pending motions are hereby DENIED AS MOOT; 5. The Clerk shall close this case. . Where Section 1981 is used as a parallel remedy for race discrimination which violates the equal protection clause of the Fourteenth Amendment, the elements of such a claim are the same as the elements of a Title VII action. See Turnes" }, { "docid": "20344983", "title": "", "text": "supra at 465, that the plaintiff therein was entitled to an award of attorneys' fees, binds this Court to allow such relief. Subsequent to the Polito decision, however, the Appellate Division of the New Jersey Superior Court reversed the Miller v. New Jersey Insurance Underwriting Assn., 177 N.J.Super. 584, 427 A.2d 135 (Law Div. 1981), decision upon which the Polito court had relied. 188 N.J.Super. 175, 193-94, 457 A.2d 23 (App.Div.1983); certif. denied, 94 N.J. 508, 468 A.2d 169 (1983). In view of this reversal, and having the benefit of the recent New Jersey Superior Court decision in Ellmex Construction Co., supra at 349-50 (affirming the denial of counsel fees), this Court holds that counsel fees are not recoverable in New Jersey in an action by an insured to compel payment under an insurance policy. See also Enright v. Lubow, 202 N.J.Super. 58, 493 A.2d 1288 (App.Div.1985). Accordingly, defendant’s motion for summary judgment with respect to this portion of plaintiffs’ complaint shall be granted. The Court shall enter an appropriate order. ORDER This matter having come before the Court on a motion by the defendant, Aetna Casualty and Surety Company, for partial summary judgment; and For the reasons set forth in this Court’s opinion filed this date; and For good cause shown; IT IS On this 9th day of January, 1986, ORDERED that said motion be and the same is hereby DENIED with respect to Counts II, III and IV of the Complaint; and it is FURTHER ORDERED that said motion be and the same is hereby GRANTED with respect to the claim for counsel fees contained in the Complaint. . The negligence claim is based on the failure to name the Beneficial Business Credit Corporation as a mortgagee on the insurance contract. Since plaintiffs have indicated a willingness to consent to an order dismissing these allegations, see Plaintiffs’ Brief at 30, we shall not consider Count V in our opinion. . The motion originally included a request for summary judgment on the plaintiffs’ claim for prejudgment interest. In light of the very recent Ellmex Construction Co. v. Republic Ins." }, { "docid": "9994017", "title": "", "text": "the claims of the remaining plaintiffs do not. Since the Court may no longer divide claims where the Court’s jurisdiction is based on § 1332, the Court finds that the entire action must be remanded to the state court. III. Defendants’ Motion to Sever Claims and Deny Class Status Based on the reasons set forth in Part II of this opinion, the Court finds that the defendants’ motion to sever claims and deny class status should be denied as moot. IV. Conclusion In summary, the Court finds that the plaintiffs’ suit must be remanded in its entirety to state court. Each plaintiff in a Rule 23 class action, where subject matter jurisdiction is founded on diversity of citizenship, must independently meet the § 1332 jurisdictional amount requirement. Furthermore, 28 U.S.C. § 1367 does not give this Court the authority to exercise supplemental jurisdiction over the plaintiffs’ claims which do not exceed $50,000. Even if § 1367 did grant this Court such discretion, the plaintiffs’ claims are not so related that they form part of the same case or controversy under Article III. Furthermore, under § 1441(c) this Court has no authority to retain jurisdiction over the claims of Riverside and AnsweRite, while remanding the remaining claims to state court. Finally, even if the Court denied class action status, the Court would not have jurisdiction since the Palazzotto claim does not exceed $50,000. The entire action must be remanded to state court pursuant to 28 U.S.C. § 1447(c). The defendants’ motion to sever claims and deny class status is denied as moot. Therefore: IT IS ORDERED that the plaintiffs’ motion to remand be and it is hereby GRANTED. This action shall be remanded to the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana. Judgment shall be entered accordingly. IT IS FURTHER ORDERED that the defendants’ motion to sever claims and deny class status be and it is hereby DENIED as moot. . Plaintiffs filed this suit individually, and on behalf of numerous class members seeking damages for the defendants’ failure to publish plaintiffs' advertisements in various Louisiana" }, { "docid": "20113523", "title": "", "text": "for the seller’s liabilities. E. THE COURT FINDS NO MERIT IN DEFENDANTS’ “LACK OF JURISDICTION” ARGUMENTS. In their Brief in Response to Plaintiffs Motion for Summary Judgment, the Metamora Settling Defendants raised for the first time an argument that this Court does not have jurisdiction over Plaintiffs declaratory judgment Complaint, while arguing that the Court does have jurisdiction over the Defendants’ counterclaim which seeks, in essence, the same kind of relief sought by Plaintiff — declaratory judgment. Plaintiff filed, with the Court’s permission, a supplemental Brief responding to Defendants’ lack of jurisdiction contentions, which brief Defendants subsequently moved to strike, requesting in the alternative that they be allowed to file a brief of their own on the jurisdiction issue. The Court finds no merit in Defendants lack of jurisdiction arguments. Essentially, Defendants want this Court to construe Plaintiffs declaratory judgment complaint for a ruling on the successor liability issue as one seeking review of a “removal or remedial action”. The terms of CERCLA limit only review of EPA administrative decisions regarding removal or remedial actions. 42 U.S.C. § 9613(h). Plaintiff here is clearly not seeking review of a removal or remedial action. CONCLUSION For all of the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment be and hereby is GRANTED and all of the Defendants’ separately-filed Motions — the motions of the Metamora Settling Defendants, the Navistar Defendants and the Peripheral Defendants — are DENIED. Accordingly, IT IS FURTHER ORDERED that summary judgment shall be entered in favor of Plaintiff on Count I of Plaintiffs Complaint, and Defendants’ Counterclaim shall be DISMISSED with prejudice. IT IS FURTHER ORDERED Counts II and III of Plaintiffs Complaint — having been pled in the alternative to Count I — are dismissed as MOOT. IT IS FURTHER ORDERED that the Court having no independent subject matter jurisdiction over Count IV of Plaintiffs Complaint, that Court IV shall be DISMISSED pursuant to 28 U.S.C. § 1367(c)(3). Each party shall bear their own costs and fees. Let Judgment be entered accordingly. JUDGMENT The Court having this date entered an Opinion and Order" }, { "docid": "12936879", "title": "", "text": "of ordinary prudence, and which, if followed up, would lead to the discovery of the fraud.” Industrial Finance and Thrift, Inc. v. Shenandoah Life Ins. Co., 291 Ala. 389, 396, 281 So.2d 636, 642 (Ala.1973). Because any claim of suppression against the Distributor defendants would be barred by the applicable statute of limitations, there is no possibility that plaintiffs could prevail on the claim. It can not, therefore, defeat a claim of fraudulent joinder. III. AMOUNT IN CONTROVERSY The complaint seeks compensatory and punitive damages in an unspecified amount. Upon examination of the allegations made in the complaint, the court finds that the complaint places more than $75,000 in controversy. Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir.1996) (“preponderance of the evidence” standard is appropriate when complaint seeks unspecified damages). IV. CONCLUSION AND ORDER For the reasons set forth in the foregoing Memorandum Opinion, the court concludes that the Distributor defendants are fraudulently joined to this action and therefore complete diversity is present in this case. The court further finds that the amount in controversy exceeds the sum of $75,000, exclusive of costs and attorney’s fees. This court therefore, possesses subject matter jurisdiction over this civil action pursuant to U.S. Const. Art. Ill, § 2 and United States Code, Title 28, section 1332(a). Accordingly, it is CONSIDERED and ORDERED: 1. That plaintiff’s motion to remand (Doc. 7) is DENIED; 2. That the following defendants and/or their successors, by merger or otherwise, are due to be and are hereby DISMISSED from this action: The Lewis Bear Company; Del-champs, Inc.; Harco, Inc.; K & B Drug Stores, Inc.; and Tobacco Shack of Alabama, Inc., # 5; 3. That defendants, motion for leave to file a sur-reply (Doc. 35) is MOOT. . These defendants will be referred to collectively as the \"Distributor defendants.” . While the complaint is not specific as to the domicile of Delchamps, Harco, K & B, and Tobacco Shack, it alleges that Lewis Bear is an Alabama Corporation. The Notice of Removal avers that Lewis Bear and K & B are both foreign corporations with" }, { "docid": "20113524", "title": "", "text": "42 U.S.C. § 9613(h). Plaintiff here is clearly not seeking review of a removal or remedial action. CONCLUSION For all of the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment be and hereby is GRANTED and all of the Defendants’ separately-filed Motions — the motions of the Metamora Settling Defendants, the Navistar Defendants and the Peripheral Defendants — are DENIED. Accordingly, IT IS FURTHER ORDERED that summary judgment shall be entered in favor of Plaintiff on Count I of Plaintiffs Complaint, and Defendants’ Counterclaim shall be DISMISSED with prejudice. IT IS FURTHER ORDERED Counts II and III of Plaintiffs Complaint — having been pled in the alternative to Count I — are dismissed as MOOT. IT IS FURTHER ORDERED that the Court having no independent subject matter jurisdiction over Count IV of Plaintiffs Complaint, that Court IV shall be DISMISSED pursuant to 28 U.S.C. § 1367(c)(3). Each party shall bear their own costs and fees. Let Judgment be entered accordingly. JUDGMENT The Court having this date entered an Opinion and Order Regarding Four Motions for Summary Judgment in which granted the Plaintiffs Motion for Summary Judgment and denied the Defendants’ Motions; NOW, THEREFORE, for the reasons stated by the Court in its Opinion and Order of this date, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that summary judgment be, and hereby is, entered in favor of Plaintiff on Count I of Plaintiffs Complaint IT IS FURTHER ORDERED that Defendants’ Counterclaim be, and hereby is, DISMISSED with prejudice. IT IS FURTHER ORDERED Counts II and III of Plaintiffs Complaint — having been pled in the alternative to Count I — be, and hereby are, dismissed as MOOT. IT IS FURTHER ORDERED that the Court having no independent subject matter jurisdiction over Count IV of Plaintiffs Complaint, that Court IV be, and hereby is, DISMISSED pursuant to 28 U.S.C. § 1367(c)(3). Each party shall bear their own costs and fees. . These four motions are essentially \"cross-motions for summary judgment”, Plaintiff, on the one hand, and the three groups of Defendants on the other hand, respectively seeking entry" }, { "docid": "20784898", "title": "", "text": "or more non-removable claims, the district court may determine the issues therein or, in its discretion, may remand all matters not otherwise within its original jurisdiction. Having determined that summary judgment is appropriate as to Counts I and II, so that the removing defendant is no longer in the case, we have concluded in the exercise of our discretion that Count III should be remanded. “Where the federal head of jurisdiction has vanished from the case, and there has been no substantial commitment of judicial resources to the nonfederal claims” federal courts are reluctant to adjudicate the non-removable claims. See Murphy v. Kodz, 9 Cir., 351 F.2d 163. The remand of Count III is particularly appropriate under the instant facts for the reason that the issue for decision on Count III necessarily involves the construction of the Missouri statute and the determination of whether the letter furnished to plaintiff complies with the purpose, intent, meaning and language of that statute. We believe it desirable that the Missouri courts to the extent possible decide such questions of Missouri law. Accordingly, it is hereby ordered that the motions for summary judgment and each of them as to Counts I and II be and the same are hereby sustained and the Clerk is directed to enter judgment in favor of defendants and against plaintiff on Counts I and II. It is further ordered that Count III of this cause be and the same is hereby remanded to the Circuit Court of the City of St. Louis, Missouri. . It is, therefore, unnecessary to decide whether under the terms of the 1965 agreement, the parties signatory thereto have the right to amend that agreement without plaintiff’s consent insofar as it affects the rights of plaintiff thereunder. Another question left open is what effect is to be given to the fact that the stock plaintiff seeks to have USS purchase is owned by plaintiff and his wife as joint tenants with right of survivorship." }, { "docid": "23649425", "title": "", "text": "state claim. Consequently, the Court will refuse to allow plaintiff to amend his third cause of action to add a pendant state claim for intentional infliction of emotional distress. Accordingly, it is ordered that defendants’ motion to strike the subject of plaintiff’s discharge from the complaint be, and hereby is, denied; It is further ordered that defendants’ motions to dismiss defendants O’Neill and Noren are, and each of them is, hereby denied; while defendants’ motions to dismiss defendants McColough, La Hue, Hurley, Judd, Erickson, Sutter and Weinrich are, and each of them is, hereby granted with prejudice, and the action is hereby dismissed with prejudice as to each and all of the seven above-named defendants; It is further ordered that defendants’ motion to strike plaintiff’s claims for compensatory and punitive damages under Count One be, and hereby is, granted, and the allegations and claims set forth in paragraphs XVI, XVII, XVIII, and parts F and G of XXVI are hereby stricken from the complaint; It is further ordered that defendants’ motions to strike Count Two, wherein plaintiff alleges a cause of action under 42 U.S.C. § 1981 be, and hereby is, granted, and Count Two is hereby stricken from the complaint; It is further ordered that leave to amend Count Three by plaintiff be, and hereby is, denied, and Count Three is hereby stricken from the complaint. . Although plaintiff-intervenor EEOC is now appealing this Court’s interlocutory order of September 10, 1973, which limited the EEOC’s intervention to support of plaintiff Van Hoomissen’s claims under 28 U.S.C. § 1292(a)(1), this Court still has jurisdiction over other matters in the case which are not on appeal. Phelan v. Taitano, 233 F.2d 117 (9th Cir. 1956); Janousek v. Doyle, 313 F. 2d 916 (8th Cir. 1963); O’Brien v. Avco Corp., 309 F.Supp. 703 (S.D.N.Y.1969). Thus the Court can and will now decide the motions to dismiss and to strike. . The Amendment states in full: “Plaintiff’s charge filed with the Equal Employment Opportunity Commission was duly deferred by that Commission to the California Pair Em ployment Practices Commission. Upon termination of proceedings" }, { "docid": "15477952", "title": "", "text": "also McCracken v. City of Chinook, et al, 652 F.Supp. 1300 (D.Mont. 1987). Thus, plaintiffs will not be prejudiced by dismissal of the state claims. ORDER Based upon the foregoing opinion, IT IS HEREBY ORDERED: 1. Plaintiffs’ motion for summary judgment is DENIED. 2. The motion for summary judgment on behalf of defendants David S. Rutledge, Janette G. Rutledge, and David Rutledge Distributing Company, Inc., as to Counts IV and V of the amended complaint is GRANTED on the ground that such claims are barred by the doctrine of claim preclusion. 3. The motions of all defendants for summary judgment as to Count I of the amended complaint (all federal antitrust claims) are GRANTED. 4. Counts II and III of the amended complaint are DISMISSED without prejudice for want of jurisdiction. Judgment shall enter accordingly, all parties to bear their own costs. . The facts are drawn from the complaint, from Conoco’s Statement of Material Facts, from plaintiffs’ Statement of Material Facts, and from copies of the court file in Case No. 26818, in the District Court of the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin, of which the Court takes judicial notice. Fed.R.Evid. 201. Where disputed, the facts are construed in plaintiffs’ favor. See T. W. Electrical Service, Inc., et al v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-31 (9th Cir.1987). . Article IV, Sec. 1, provides in pertinent part: Full faith and credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. . 28 U.S.C. § 1738 provides in pertinent part: [The] Acts, records and judicial proceedings [of the legislature or any court of any State, Territory, or Possession of the United States] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. . Plaintiffs claim that they never even filed a responsive pleading in the state action. The" }, { "docid": "8962859", "title": "", "text": "state PHRA claims, and the court will leave it to Beaver to adjudicate the merits of the case, including the resolution of the objections raised by the defendants in their initial motion to dismiss. An appropriate Order will be entered. ORDER OF COURT AND NOW, this 20th day of December, 1993, IT IS HEREBY ORDERED that the Defendant’s Supplemental Motion to Dismiss the Complaint (Document No. 7) is GRANTED for lack of subject matter jurisdiction, and the case is dismissed. IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss the Complaint (Document No. 2) is DENIED AS MOOT. IT IS FURTHER ORDERED that this case is remanded to the Court of Common Pleas of Beaver County, Pennsylvania, in accordance with 28 U.S.C. § 1447(e). . The Eleventh Amendment provides: \"The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. Amend. XI. . The Court recently declined an invitation to reconsider and overrule Hans. Dellmuth v. Muth, 491 U.S. 223, 229 n. 2, 109 S.Ct. 2397, 2401 n. 2, 105 L.Ed.2d 181 (1989). . As amended, the removal statutes now provide: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). Plaintiff has not requested costs or attorney fees under this section nor has he cited this section of the removal statutes as requiring remand in the event the court determined it lacked subject matter jurisdiction. Accordingly, the court will not award attorney fees or costs. . 29 U.S.C. § 626(c); Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195, 200 (4th Cir.1990), citing Jacobi v. Highpoint Label, Inc., 442 F.Supp. 518 (M.D.N.C.1977)." }, { "docid": "352638", "title": "", "text": "the EEOC issued a to-sue letter a mere eleven days after the plaintiff filed her charge of discrimination. Failure of the plaintiff to defer to the EEOC for 180 days after filing her complaint with the Commission is a jurisdictional defect requiring dismissal of her action brought in this court. Budreck v. Crocker National Bank, 407 F.Supp. 635 (N.D.Cal.1976) and Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975). The court is of the view that this result is dictated not only by the express conditional language of the statute itself, but also by the legislative history surrounding Title VII. The 180-day requirement was mandated by Congress in an attempt to promote the resolution of disputes by informal conciliation rather than by litigation and to expedite the handling of complaints. This judgment on the part of Congress ought to be followed by the courts. Upon the foregoing, IT IS ORDERED That the plaintiff’s motion under Rule 15 of the Fed.R.Civ.P. for an order granting her leave to file an amended complaint herein be and hereby is denied in all respects. IT IS FURTHER ORDERED That the motion of the defendants to dismiss plaintiff’s § 1981 cause of action, contained in Count III of the complaint, for failure to state a claim upon which relief can be granted (Fed.R.Civ.P. 12(b)(6)) be and hereby is granted and such cause of action is hereby dismissed. IT IS FURTHER ORDERED That the motion of the defendants to dismiss plaintiff’s Title VII causes of action, contained in Counts I and II of the complaint, for lack of subject matter jurisdiction (Fed.R.Civ.P. 12(b)(1)) be and hereby is granted and such causes of action are hereby dismissed for lack of subject matter jurisdiction. IT IS FINALLY ORDERED That the motion of the defendants to dismiss plaintiff’s remaining pendent state claims on the ground that there is no basis for the initial exercise of federal jurisdiction be and hereby is granted and such claims are hereby dismissed for lack of subject matter jurisdiction." }, { "docid": "17917994", "title": "", "text": "F.2d 334, 340 (6th Cir.1990) (quoting Beighley v. FDIC, 676 F.Supp. 130, 132 (N.D.Tex.1987), aff'd, 868 F.2d 776 (5th Cir.1989)). Under section 1823(e)(2), the Court finds that the subject of Plaintiff's Counterclaim, the Agreement, was not executed contemporaneously with the Note and Equity Line. Because the Agreement does not meet all four requirements set forth under the statute, Defendant’s Counterclaim is not enforceable against Fleet Bank. Therefore, the Court will grant summary judgment on behalf of Plaintiff, thereby dismissing the Counterclaim. IV. Conclusion Accordingly, it is ORDERED that Plaintiffs Motion for Summary Judgments on Counts I and III be, and it is hereby, GRANTED. It is FURTHER ORDERED that Plaintiffs Motion for Summary Judgment on Defendant Steeves’ Counterclaim be, and it is hereby, GRANTED. The request for certification of final judgment under Federal Rule of Civil Procedure 54(b) is hereby DENIED without prejudice to its reassertion on a showing of a proper basis therefor. See Santa Maria, et al. v. Johns-Manville Sales Corp., et al., 808 F.2d 848 (1st Cir.1986). It is FURTHER ORDERED that judgment shall enter against Defendant Steeves for foreclosure and sale of the realty subject to the mortgage in conformity with Title 14 M.R.S.A. section 6322. It is FURTHER ORDERED that Fleet Bank has first priority on the proceeds of sale and is entitled to any proceeds from the public foreclosure sale. It is FURTHER ORDERED that, if Defendant does not redeem the Mortgage before the expiration of the ninety-day redemption period, Plaintiff shall then be immediately entitled to exclusive possession of the premises, and the Clerk shall issue a Writ of Possession therefor at the request of Plaintiff. It is FURTHER ORDERED that judgment shall enter against Defendant Steeves for the amounts due under the First Note and the First Mortgage. Plaintiff’s counsel shall propose, on or before February 22, 1992, an order entering final judgment in accordance with the foregoing order for the amount of principal, interest, charges, and attorneys’ fees due on the Notes. Counsel shall confer forthwith and attempt to agree upon collection costs, including reasonable attorneys’ fees. If they are unable" }, { "docid": "11536437", "title": "", "text": "foregoing. Such order shall include a provision mandating payment of the award by the defendant within thirty days next following the date of entry thereof; and shall further provide that, to the extent that the client has heretofore paid all of the fees and costs in question, the amounts herein awarded shall forthwith be tendered to UNC as reimbursement for its periodic fee payments on account. Sargeant v. Sharp, 579 F.2d 645, 648-49 (1st Cir.1978). APPENDIX A JUDGMENT This matter was submitted to the Court on Cross-Motions for Partial Summary Judgment with regard to plaintiff United Nuclear Corporation’s Complaint for Declaratory Judgment and Other Relief with respect to S. 924, entitled “An Act Relating to Radioactive Contamination”, which statute was enacted by the Rhode Island General Assembly on May 20, 1981. In accordance with the conclusions of law contained in the Opinion and Order of the Court issued on December 13,1982 by Selya, D.J., it is hereby ORDERED and ADJUDGED as follows: 1. Subject matter jurisdiction is conferred upon this Court pursuant to 28 U.S.C. §§ 1331,1332,1343(a)(3), 2201, and 2202. 2. Plaintiff’s Motion for Partial Summary Judgment is granted as to Counts I and V of the Complaint, and defendant’s Motion for Partial Summary Judgment is granted as to Counts II and III of the Complaint. All other counts are moot and, therefore, are dismissed. 3. S. 924, entitled “An Act Relating to Radioactive Contamination”, which statute was enacted by the Rhode Island General Assembly on May 20, 1981, is hereby declared to be unconstitutional, both on its face and as applied to plaintiff United Nuclear Corporation, because it violates both the Supremacy Clause and the Fourteenth Amendment of the United States Constitution. 4. Defendants Joseph E. Cannon, M.D., D.P.H., in his capacity as Director of the Department of Health of the State of Rhode Island, Dennis J. Roberts II, in his capacity as Attorney General of the State of Rhode Island, and J. Joseph Garrahy, in his capacity as Governor of the State of Rhode Island are permanently restrained and enjoined from enforcing the said S. 924 and/or from" }, { "docid": "20113525", "title": "", "text": "Regarding Four Motions for Summary Judgment in which granted the Plaintiffs Motion for Summary Judgment and denied the Defendants’ Motions; NOW, THEREFORE, for the reasons stated by the Court in its Opinion and Order of this date, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that summary judgment be, and hereby is, entered in favor of Plaintiff on Count I of Plaintiffs Complaint IT IS FURTHER ORDERED that Defendants’ Counterclaim be, and hereby is, DISMISSED with prejudice. IT IS FURTHER ORDERED Counts II and III of Plaintiffs Complaint — having been pled in the alternative to Count I — be, and hereby are, dismissed as MOOT. IT IS FURTHER ORDERED that the Court having no independent subject matter jurisdiction over Count IV of Plaintiffs Complaint, that Court IV be, and hereby is, DISMISSED pursuant to 28 U.S.C. § 1367(c)(3). Each party shall bear their own costs and fees. . These four motions are essentially \"cross-motions for summary judgment”, Plaintiff, on the one hand, and the three groups of Defendants on the other hand, respectively seeking entry of a declaratory judgment in their favor on the legal issue of the alleged \"successor liability” of Plaintiff for the CERCLA liabilities of Defendant U.S. Chemical. .Count III of Plaintiff's Amended Complaint, captioned \"Recission”, is pled in the alternative to Counts I and II, and is directed only to Defendants U.S. Chemical, and William P. Greenway and Leonard F. Coraci, who each own/owned 50% of U.S. Chemical. In that count, Plaintiff requests that, if City Environmental is held to be U.S. Chemical’s successor and responsible for its CERCLA liabilities, the Court enter an order rescinding the City Environmental/U.S. Chemical Asset Purchase Agreement. Count IV, captioned \"Setoff\", is also directed only to Defendants U.S. Chemical, William Greenway and Leonard Coraci. This count is predicated upon express provisions in the Asset Purchase Agreement providing that City Environmental is entitled to set off against its purchase price obligations all costs and attorneys’ fees incurred as a result of U.S. Chemical’s, Green-way’s and Coraci’s breaches of warranties, representations and agreements. . Not only are Greenway and Coraci the sole" }, { "docid": "15477951", "title": "", "text": "under state law. The remaining claims being asserted against all defendants, there is no independent basis for jurisdiction based upon diversity of citizenship between the parties. Once a plaintiff’s federal claims have been dismissed, exercise of pendent jurisdiction over purely state claims is within the court’s discretion. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1362 (9th Cir.1985) (en banc). The Supreme Court has indicated a preference for dismissal of remaining state claims on the ground that “[njeedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of state law.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Under Montana law, parties have one year from the date of dismissal of a federal action for want of jurisdiction within which to bring suit in state court. See Mont. Code Ann. § 27-2-407 (1985); Cassidy v. Finley, 173 Mont. 475, 568 P.2d 142, 144 (1977). See also McCracken v. City of Chinook, et al, 652 F.Supp. 1300 (D.Mont. 1987). Thus, plaintiffs will not be prejudiced by dismissal of the state claims. ORDER Based upon the foregoing opinion, IT IS HEREBY ORDERED: 1. Plaintiffs’ motion for summary judgment is DENIED. 2. The motion for summary judgment on behalf of defendants David S. Rutledge, Janette G. Rutledge, and David Rutledge Distributing Company, Inc., as to Counts IV and V of the amended complaint is GRANTED on the ground that such claims are barred by the doctrine of claim preclusion. 3. The motions of all defendants for summary judgment as to Count I of the amended complaint (all federal antitrust claims) are GRANTED. 4. Counts II and III of the amended complaint are DISMISSED without prejudice for want of jurisdiction. Judgment shall enter accordingly, all parties to bear their own costs. . The facts are drawn from the complaint, from Conoco’s Statement of Material Facts, from plaintiffs’ Statement of Material Facts, and from copies of the court file in Case No. 26818, in the" }, { "docid": "2347159", "title": "", "text": "Court similarly dismissed the third-party claim against the Government and held that the exclusive liability provisions of the FECA eliminated any tort liability of the Government to its employees and, therefore, undercut the third-party claim. See also, Maddox, v. Cox, 384 F.2d 119 (8th Cir. 1967); Newport Airpark, Inc. v. United States, supra; Wien Alaska Airlines v. United States, supra. As demonstrated by the case law, actions for contribution are precluded by the exclusive remedy provision of FECA, since the Government has no underlying tort liability, and, consequently, the third-party action should be dismissed. This resolution of the Government’s motion completely resolves the federal facet upon which this action was originally removed from the state court. All that remains of this case is plaintiffs’ cause of action against the defendants, both of whom are residents of Wisconsin. This cause of action was not within the original jurisdiction of this court. Thus, within this court’s discretion under 28 U.S.C. § 1441(c), I believe it to be appropriate to remand plaintiffs’ original cause of action to the state court from which it was removed. Based on the foregoing reasons, It is therefore ordered that the United States of America be and it hereby is substituted as third-party defendant for Quentin G. Lloyd. It is further ordered that Quentin G. Lloyd and his insurer, The Home Indemnity Company, be and they hereby are dismissed. It is further ordered that the third-party defendant United States Postal Service be and it hereby is dismissed. It is further ordered that the motion of the United States to dismiss the third-party action for failure to state a claim upon which relief can be granted be and it hereby is granted. It is further ordered that the cause of action of Joanne J. Smith and James M. Smith against William A. Rivest and Heritage Mutual Insurance Company be and it hereby is remanded to the Circuit Court of Racine County for further proceedings." }, { "docid": "670354", "title": "", "text": "claims against the Omaha Service Corporation and the Credit Bureau. Subsequent to the defendants’ filing of the removal petition and prior to the Omaha Bank’s serving of an answer, the plaintiff entered a voluntary dismissal as to the Omaha Bank pursuant to Rule 41(a)(l)(i), Fed.R.Civ.P. Because the claim against the Omaha Bank is the only one which arguably arises under the laws of the United States, there is no longer any claim arising under federal law before the court. Because no claim arising under federal law is still before the court, the court is persuaded that the remaining claims should be remanded. It appears to this court inappropriate to retain jurisdiction “where the federal head of jurisdiction has vanished from the case, and there has been no substantial commitment of judicial resources to the nonfederal claims.” See Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965); Botermund v. United States Steel Corp., 346 F.Supp. 69 (E.D.Mo.1972), aff’d, 474 F.2d 1139 (8th Cir. 1973). In this instance, it would make little sense to retain jurisdiction and to determine the non-federal claims even though the claim which served as a basis for federal jurisdiction is no longer at issue in the case and the defendant against whom that claim was asserted is no longer before the court. Upon the foregoing, IT IS ORDERED That the claims against the Omaha Service Corporation and the Credit Bureau be and the same hereby are remanded to the District Court of Hennepin County, Minnesota. . Minn.Stat.Ann. § 48.185 provides in pertinent part: (1) Any bank organized under the laws of this state, any national banking association doing business in this state, and any savings bank organized and operated pursuant to Minnesota Statutes, Chapter 50, may extend credit through an open end loan account arrangement with a debtor, pursuant to which the debtor may obtain loans from time to time by cash advances, purchase or satisfaction of the obligations of the debtor incurred pursuant to a credit card plan, or otherwise under a credit card or overdraft checking plan. * * * * * * (3) A" }, { "docid": "2136102", "title": "", "text": "that the need for such deterrence is not the sort of need contemplated by the courts in Hewitt and its progeny. Deterrence of disobedience toward orders can be accomplished as well through swift, accurate disciplinary proceedings which comport with the due process rights of the inmates. Defendants’ argument that there was an institutional need for immediate disciplinary detention rendering Hewitt applicable fails. There is no genuine issue of material fact as to Counts I, II, III, and IV of plaintiff’s second amended complaint; plaintiff is entitled to judgement as a matter of law. See Fed.R.Civ.P. 56; United Steelworkers of America v. Phelps Dodge Corp., 833 F.2d 804, 805 (9th Cir.1987). Partial summary judgment shall be granted. This will leave the merits of Count V of plaintiff’s complaint for further litigation. Also, the issue of damages remains on Counts I-IV. The case shall be assigned to the United States Magistrate for all further proceedings consistent with her jurisdiction. Specifically, it appears that a settlement conference may be appropriate. Also, if a settlement cannot be reached, it should be determined whether the parties will consent to a jury trial before the United States Magistrate. See LR 505-1. IT IS, THEREFORE, HEREBY ORDERED that plaintiffs Motion for Partial Summary Judgment Upon Civil Rights Complaint (docket # 23) is GRANTED. Summary judgment is thus GRANTED in favor of plaintiff as to Counts I, II, III, and IV of his second amended complaint. IT IS FURTHER ORDERED that defendants’ Cross Motion for Partial Summary Judgment (docket # 25) is DENIED. IT IS FURTHER ORDERED that this case is referred to the United States Magistrate for further proceedings consistent with her jurisdiction. Specifically, it appears that a settlement conference is in order; if settlement cannot be reached, it should be determined whether the parties will consent to a trial before the Magistrate." }, { "docid": "5018939", "title": "", "text": "of Bodi & Wachs and INA on these two claims contained in Count II and Count IV of the complaint. ORDER Accordingly and for the foregoing reasons, it is CONSIDERED and ORDERED that Defendants Insurance Company of North America, Inc., and Bodi & Waehs Aviation Insurance Agency’s motions for summary judgment on Plaintiff Brown Machine Works & Supply, Inc.’s claims for breach of contract (Count I) and fraud (Count III) be and the same are hereby DENIED. It is further CONSIDERED and ORDERED that Defendants Insurance Company of North America, Inc., and Bodi & Wachs Aviation Insurance Agency’s motions for summary judgment on Plaintiff Brown Machine Works & Supply, Inc.’s claims for bad faith failure to pay (Count II) and the tort of outrage (Count IV) be and the same are hereby GRANTED. . Section 1441 states in part that \"... any civil action brought in a State court of which district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending....” 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1332(a), a district court has original jurisdiction over all cases where citizens of different states are involved and the amount in controversy exceeds $50,000, exclusive of interest and costs. . Exclusion 12 provides as follows: \"[This Policy Does Not Apply:] \"As respects Coverage A, to loss due to conversion, embezzlement, or secretion by any person in lawful possession of the aircraft under a lease or rental agreement, conditional sale, mortgage or other encumbrances....” Coverage A provides that INA agrees with the insured \"To pay for any loss of or damage to the aircraft while in flight or not in flight; also disappearance if the aircraft is missing and not reported for sixty (60) days after commencing flight.” . Section 27-14-19 of the Alabama Code (1975) provides: (a) Subject to the insurer's requirements as to payment of premium, every policy shall be mailed or delivered to the insured or to the person" } ]
226085
also agree that the showing of “good cause” required by Rule 34 of the Rules of Civil Procedure means, under the applicable cases, that defendant must show a “particular compelling need” for disclosure before the discretionary power to disclose matters occurring before a grand jury should be exercised. Rule 6(e) of the Rules of Criminal Procedure, providing that matters occurring before a grand jury may be disclosed only when “directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court,” recognizes the existence of power to order disclosure. That rule does not, however, set forth the criteria for the exercise of that discretionary power. Judge Robson in REDACTED upp. 729, at 734, stated: The legal principles pertaining to the disclosure of grand jury proceedings are fairly well established. Fundamentally, it is established that the secrecy of the proceedings must not be broken absent compelling necessity. The burden is on the movant to show particularized need or that the ends of justice require the disclosure of grand jury minutes which consideration outweighs the policy of secrecy. The revealing of the proceedings lies in the court’s discretion. Footnotes 4 through 7 on page 734 of 211 F.Supp. cite the applicable cases, most of which have been called to our attention in the excellent briefs submitted by the parties in this case. Judge Robson’s opinion was written in one of the electrical anti-trust treble damage cases.
[ { "docid": "3997021", "title": "", "text": "Electric Corp., (No. 29810, E.D.Pa., 11/9/61); In re Grand Jury Proceedings, 29 F.R.D. 151 (D.C.Pa., 1961).) No “compelling necessity” has been shown by the plaintiffs for the disclosure. Neither the voluntary production by other defendants, nor the unprecedented number of related antitrust cases justifies, it maintains, the ignoring of well-established principles of law. It is plaintiffs’ position that the category of “grand jury documents” was inserted in Pre-Trial Order No. 4 as a “shorthand description” of documents which plaintiffs should have in connection with the National Deposition Program. They contend that Pre-Trial Order No. 4 does not call for disclosure of matters occurring before the grand jury proscribed by Rule 6(e) of the Federal Rules of Criminal Procedure. Nor, plaintiffs contend, does the order call for the actual documents submitted to the grand jury as in Application of the State of California, 195 F.Supp. 37 (D.C. Pa., 1961) and In re Grand Jury Proceedings, 29 F.R.D. 151 (D.C.Pa., 1961), nor attempt to elicit testimony given before the grand jury as in Arlington Glass Co. v. Pittsburgh Plate Glass Co., 24 F.R.D. 50 (D.C.N.D.Ill., 1959). Even if the documents be deemed grand jury proceedings, they are not necessarily “sacrosanct” and that the policy of secrecy will yield to other considerations. (United States v. Procter & Gamble Co., 356 U.S. 677, 7 S.Ct. 983, 2 L.Ed.2d 1077 (1958); United States v. Smith, 22 F.R.D. 482 (D.C.N.D.Ill., 1958); United States v. Ben Grunstein & Sons Co., 137 F.Supp. 197 (D.C.N.J., 1955); In re Hearings Before Committee on Banking and Currency, United States Senate, 19 F.R.D. 410 (D.C.N.D.Ill., 1956); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (C.A.2, 1960)). The legal principles pertaining to the disclosure of grand jury proceedings are fairly well established. Fundamentally, it is established that the secrecy of the proceedings must not be broken absent compelling necessity. The burden is on the movant to show particularized need or that the ends of justice require the disclosure of grand jury minutes which consideration outweighs the policy of secrecy. The revealing of the proceedings lies in the court’s discretion. When" } ]
[ { "docid": "23668212", "title": "", "text": "Criminal Procedure in relevant parts states: (2) General Rule of Secrecy. A grand jur- or, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court. (3) Exceptions. (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or (ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time and under such conditions as the court may direct. . Some courts, following United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), have required that the “particularized” need also be “compelling.” See, e.g., In re Disclosure of Evidence, 650 F.2d 599, 601 (5th Cir. 1981). The Court has specifically refrained from dealing with the continuing validity of the “compelling need” requirement of Procter & Gamble. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 224 n.14, 99 S.Ct. 1667, 1675 n.14, 60 L.Ed.2d 156 (1979). We do not deal with this question since our decision would be unchanged even if a weaker standard of need were imposed. . The material also includes draft indictments prepared by the U. S. Attorney. Although these were prepared after the grand jury deliberations began and might be based on knowledge of the grand jury proceeding, they do not reveal any grand jury information on" }, { "docid": "18322990", "title": "", "text": "The theory that either the Jencks decision, Jencks v. United States, supra, or the Jencks Act, Section 3500, encompasses grand jury testimony was discarded in Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. Unlike the appellant in that case, however, appellant here moved the court for inspection of the grand jury minutes as a matter or right and alternatively to have the minutes produced for the court’s examination and determination whether inconsistencies appeared between the witness’ testimony before the grand jury and his testimony at trial. Thus, the question here is the one particularly left undecided by the Pittsburgh Plate Glass case: Whether the trial court may, in the discretion granted him under Rule 6(e), Fed.Rules Crim. Procedure, 18 U.S.C.A., refuse to examine the transcript of the grand jury when requested to do so. Rule 6(e) provides: “Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. * * * It has been held that instances when the need for disclosure of grand jury proceedings outweighs the countervailing policy maintaining the secrecy of such proceedings must be shown with particularity, United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077. The burden is on the defense to show that “a particularized need” exists for the minutes which outweighs the policy of secrecy, Pittsburgh Plate Glass Co. v. United States, supra. Thus, where some portion of a defendant’s testimony was impeached by the government’s use of her grand jury testimony, it has been held that the trial" }, { "docid": "11198447", "title": "", "text": "is a request for the grand jury minutes regarding certain counts in his Indictment. Def.’s Mot. 7-8. Specifically, Defendant argues that “[i]f the Gov ernment elects to pursue ... distinct legal theories [in Counts Four, Five, and Six], it is requested that it be ordered to produce the grand jury minutes and validate the grand jury proceedings in this case, as well as to insure Governmental compliance with grand jury referral obligations.” Def.’s Mot. 8. “Federal courts long have recognized that secrecy is essential to maintaining the integrity of the grand jury system.” In re Grand Jury Testimony, 832 F.2d 60, 62-63 (5th Cir.1987) (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). However, such se crecy “is not an absolute,” id., and Federal Rule of Criminal Procedure 6 states, in relevant part, that “[t]he Court may authorize disclosure — at a time, in a manner, and subject to any other conditions that it directs — of a grand jury matter: ... (ii) at the request of the defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury[.]” Fed. R.Crim.P. 6(e)(3)(E). Moreover, “case law has established that a district court may properly order release of grand jury materials where a party demonstrates with particularity a ‘compelling necessity’ for the materials.” Izen v. Catalina, 256 F.3d 324, 329-30 (5th Cir.2001) (quoting In re Grand Jury Testimony, 832 F.2d at 62-63 (quoting Procter & Gamble, 356 U.S. at 682, 78 S.Ct. 983)). Disclosure of grand jury minutes falls to the court’s discretion. Id. at 329. To demonstrate “compelling necessity” for grand jury materials under Rule 6(e), a party must show (1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding, (2) that the need for disclosure is greater than the need for continued secrecy, and (3) that their request is structured to cover only material so" }, { "docid": "22812982", "title": "", "text": "under Rule 6(e)(2). McDonnell bases this argument on Rule 6(e)(3)(E), which establishes a procedure for disclosure in cases in which “the judicial proceeding giving rise to the petition is in a federal district court in another district.” Fed.R.Crim.P. 6(e)(3)(E). In such cases, [T]he court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. The court shall order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy. The court to which the matter is transferred shall afford the aforementioned persons a reasonable opportunity to appear and be heard. Id. ■ The plain language of this subsection establishes guidelines for transferring grand jury materials between district courts only when disclosure is otherwise permitted. It does not, in and of -itself, establish an exception to the general rale of secrecy upon which the Government relied to withhold the requested information. Before a court must evaluate the need for continued secrecy under subsection (e)(3)(E), the party- seeking disclosure must establish that the grand jury material sought falls within one of the six exceptions to the general rule of secrecy enumerated in Rule 6(e)(3)(A)(C). See Fund for Constitutional Gov’t, 656 F.2d at 868. Under subsection (e)(3), disclosure otherwise prohibited by Rule 6(e)(2) of matters occurring before the grand jury may be made: (1) To a government attorney for use in the performance of his duty. Fed.R.Crim.P. 6(e)(3)(A)(i); (2) to such government personnel as a government attorney deems necessary to assist him in the performance of his duty to enforce federal criminal law, id. 6(e)(3)(A)(ii); (3) when so directed by a court preliminarily to or in connection with a judicial proceeding, id. 6(e)(3)(C)(i); (4) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury, id. 6(e)(3)(C)(ii); (5) when disclosure is made by a government attorney to another federal" }, { "docid": "3593365", "title": "", "text": "the allegation that the extortionate payments were induced by the wrongful use of fear of economic harm. The superceding indictment was returned by the same grand jury and without the presentation of additional evidence. Lisinski speculates that there was insufficient evidence to support his indictment and moved the district court for disclosure of grand jury transcripts. The district court, after examining the grand jury transcripts in camera, refused Lisinski’s requests for disclosure of the transcripts. Fed.R.Crim.P. 6(e)(3)(C)(i) & (ii) detail the circumstances under which grand jury proceedings may be disclosed: (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or (ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. (emphasis supplied). Lisinski relies upon Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) as authority that disclosure is appropriate in this case since the need for disclosure outweighs the need for continued secrecy. We disagree. “Rule 6(e) codifies the traditional practice of grand jury secrecy.” Matter of Grand Jury Proceedings, Miller Brewing Company, 687 F.2d 1079, 1088 (7th Cir.1982). “There is a presumption of regularity which attaches to such proceedings and the defendants have a difficult burden to prove any irregularity.” United States v. Battista, 646 F.2d 237, 242 (6th Cir.1981). Additionally, disclosure of grand jury proceedings will be had only upon demonstration by the party seeking disclosure of a “compelling necessity” or “a particularized need.” Miller Brewing Company, supra at 1088 citing Douglas Oil Co., 441 U.S. at 222-23, 99 S.Ct. at 1674-75. The standard of review of a district court’s determination not to disclose grand jury" }, { "docid": "13987409", "title": "", "text": "of grand jury' testimony to persons other than attorneys for the Government “preliminarily to or in connection with a judicial proceeding.” We recently reviewed the standards to be applied by district courts in deciding whether to disclose grand jury testimony upon request: “The Supreme Court has declared that the secrecy protected by Rule 6(e) ‘must not be broken except where there is a compelling necessity,’ which ‘must be shown with particularity.’ United States v. Procter & Gamble Co. [356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077]; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 79 S.Ct. 1237, 3 L.Ed.2d 1323. . . . [T]here still exists in cases in which disclosure is not provided for as a matter of right in 18 U.S.C. § 3500(e)(3) and Rule 16(a)(1)(A), Fed.R.Crim.P., a requirement that the party seeking disclosure show a need commensurate with the degree of secrecy remaining and the policy reason that justifies that secrecy.” Illinois v. Sarbaugh, 552 F.2d 768, 774 (7th Cir. 1977). Inasmuch as Clavey was not entitled to a transcript of his testimony as a matter of right, the analysis set forth in Sarbaugh is applicable here. In the circumstances of this case, we agree with Judge Robson that Clavey did not establish a sufficiently “compelling” need for disclosure that outweighed the need to preserve grand jury secrecy. We find significant, as did the district court, that Clavey refused to verify his petition as the district court requested. Though the purpose for which Clavey sought the transcript is no doubt a proper one, in that the transcript was sought in aid of his right to recant his prior testimony, we believe the district court was appropriately skeptical of Clavey’s unverified claim that he was unable to recall his prior testimony because of a poor memory attributable to physical impairments. Absent verification of Clavey’s ailments, there was no reason for the district court to assume that a transcript was essential to facilitate effective attorney-client deliberations concerning the possibility of Clavey’s recanting his pri- or testimony. Cf. United States v. Cowsen, 530 F.2d 734," }, { "docid": "1214584", "title": "", "text": "at the hearing ordered by the Court except for certain bank records of an individual. The Supreme Court of Pennsylvania in Commonwealth of Pennsylvania v. DeJohn, - Pa. -, 403 A.2d 1283, 1307 (1979), has held that under the Pennsylvania Constitution a bank customer has a legitimate expectation of privacy in his or her bank record which cannot be obtained without due process, including notice to the customer. The highest Court of the State has imposed a standard for the process which is due under Pennsylvania law beyond the standard imposed by the Supreme Court under the Constitution of the United States. To permit recourse to federal grand jury subpoena powers in this case would make the Court the instrument by which State Constitutional requirements as to due process are avoided. To allow State due process restrictions to create the compelling particularized need necessary to meet the requirements of F.R.Crim.P. 6(e) cannot be in the interests of justice. In summary, there is a long-established policy of maintaining secrecy of grand jury proceedings; U. S. v. Proctor & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). However, F.R.Crim.P. 6(e)(2)(C)(i) permits disclosure “when so directed by a court preliminarily to or in connection with a judicial proceeding.” The requirement of a court order makes clear that even when the literal requirements of Rule 6(e) are met, a court must carefully balance the interest of continued grand jury secrecy against the goal of a just result in a judicial proceeding: (1) the burden is on the applicant to show that a “particularized need” exists for the grand jury material which outweighs the policy of secrecy; (2) the indispensable secrecy “must not be broken except where there is a compelling necessity;” and (3) disclosure is proper where there is a compelling need for it and such disclosure is required by the ends of justice. In The Matter of Disclosure of Testimony, Etc., 580 F.2d 281, 286 (8th Cir. 1978); U. S. v. Rockwell International Corporation, Cr. No. 78-325 (E.D.Pa. August 9, 1979). The Court in exercising the duty to weigh" }, { "docid": "6551895", "title": "", "text": "the second question arises. That question is: Do the circumstances presently before the Court in taking the deposition of the witness Allen under the national discovery program warrant disclosure of the testimony of the deponent before the Grand Jury investigating the same subject matter? Assuming that the Court would order the disclosure, under what conditions, procedure and considerations should disclosure of any part or the whole of the deponent’s testimony be ordered? After careful consideration, the Court has come to the conclusion that the first question must be answered in the affirmative. The opening of Grand Jury testimony in this instance lies within the sound discretion of the deposition Judge. The traditional rule of Grand Jury secrecy and the occasions upon which that secrecy can be dropped have been stated .in Rule 6(e) of the Federal Rules of Criminal Procedure: “Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may fee made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. * * *” All cases in this area agree that disclosure of Grand Jury testimony is a matter left to the considered discretion of the trial Judge, e. g. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); United States v. Rose, 215 F.2d 617 (3 Cir., 1954); In re Grand Jury Proceedings, 4 F.Supp. 283 (E.D. Pa.1933). The discretion of the Court in" }, { "docid": "5434399", "title": "", "text": "district court: The Freedom of Information Act . does not affect the traditional rule of grand jury secrecy, set out at Fed.R. Crim.P. 6(e), Hiss v. Department of Justice, 441 F.Supp. 69 (S.D.N.Y.1977); cf. Chamberlain v. Alexander, 419 F.Supp. 235 (S.D.Ala.1976) .... [T]he Act ‘does not apply to matters that are . specifically exempt from disclosure by statute.’ 5 U.S.C. § 552(b)(3); cf. Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975). See also Librach v. Federal Bureau of Investigation, 587 F.2d 372, 373 (8th Cir. 1978). (B) Rule 6(e) of the Rules of Criminal Procedure provides for secrecy in and nondisclosure of grand jury proceedings with certain exceptions. Rule 6(e)(2)(C) provides that grand jury matters may be disclosed “when so directed by a court preliminarily to or in connection with a judicial proceeding,” or “when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” Courts have expressed the balance between the policy of secrecy which is to be afforded grand jury proceedings and the limited exceptions in which disclosure may be made by recognizing that the party moving for disclosure must establish a “particularized need.” See, e. g., Matter of Disclosure of Testimony, 580 F.2d 281, 286 (8th Cir. 1978) (and cases cited therein); United States v. English, 501 F.2d 1254, 1257 (7th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Leonelli, 428 F.Supp. 880, 883 (S.D.N.Y.1977) (and cases cited therein). See also United States v. Weinstein, 511 F.2d 622, 627 (2d Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 793 (1975); United States v. Bass, 472 F.2d 207, 210 (8th Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). Before the district court petitioner indicated he wanted to pursue post-conviction relief pursuant to 28 U.S.C. § 2255 and that the “Issues of which I desires to Raise Must be Prove by the Jury Minuits”" }, { "docid": "6551897", "title": "", "text": "this case is to be found in the second sentence which allows the Court to direct disclosure of Grand Jury matters preliminarily to or in connection with a judicial proceeding. Defendants have argued that the second sentence allows disclosure only to the defendant. It is urged that the phrase “upon a showing that grounds may exist for a motion to dismiss the indictment * * * ” was intended to modify all of the preceding part of the sentence. This position is without merit. To read the Rule as so qualified is- to ignore the grammatical construction of Rule 6(e) as finally adopted. Even if the draftors of the Rule were, as defense counsel urges, primarily concerned with insuring disclosure to certain defendants, the Rule as adopted is more encompassing. The grant of power to order disclosure is stated in broad terms without expressed restrictions upon the Court’s discretion. None of the many cases have read this Rule to the contrary. Thus, the question is squaxely presented whether the circumstances presently before this Court warrant the disclosure of the Grand Jury testimony of the deponent Allen. From the outset, it must be accepted that we are dealing with policies. As Judge Kirkpatrick, of this Court, said in one of the first eases to confront this sort of issue “ * * the court is called upon to balance two policies, the one requiring secrecy, the other disclosure.” In re Grand Jury Proceedings, supra, at 285. The Supreme Court has quite clearly stated in United States v. Procter & Gamble Co., supra, 356 U.S. at 682-683, 78 S.Ct. 983, that the policy of secrecy accorded to Grand Jury proceedings can only be outweighed by this countervailing policy upon the showing of a particular need, compelling necessity, or that the ends of justice require it. This position was reemphasized in Pittsburgh Plate Glass Co. v. United States, supra. These cases have been equally clear in deciding that relevancy and usefulness of the testimony are not enough to satisfy these standards of necessity and justice. United States v. Procter & Gamble Co., supra," }, { "docid": "22812983", "title": "", "text": "must evaluate the need for continued secrecy under subsection (e)(3)(E), the party- seeking disclosure must establish that the grand jury material sought falls within one of the six exceptions to the general rule of secrecy enumerated in Rule 6(e)(3)(A)(C). See Fund for Constitutional Gov’t, 656 F.2d at 868. Under subsection (e)(3), disclosure otherwise prohibited by Rule 6(e)(2) of matters occurring before the grand jury may be made: (1) To a government attorney for use in the performance of his duty. Fed.R.Crim.P. 6(e)(3)(A)(i); (2) to such government personnel as a government attorney deems necessary to assist him in the performance of his duty to enforce federal criminal law, id. 6(e)(3)(A)(ii); (3) when so directed by a court preliminarily to or in connection with a judicial proceeding, id. 6(e)(3)(C)(i); (4) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury, id. 6(e)(3)(C)(ii); (5) when disclosure is made by a government attorney to another federal grand jury, id. 6(e)(3)(C)(iii); and (6) when permitted by a court at the request of an attorney for the government, upon a showing that'such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law, id. 6(e)(3)(C)(iv). The first two exceptions involve disclosure to government attorneys and other government personnel. See Rule 6(e)(3)(A)(i), (ii). These exceptions have no application to this case because McDonnell fits neither of these descriptions. The remaining four exceptions are found under subsection (e)(3)(C). McDonnell does not cite any of them as- applicable, and the only one of them that could conceivably apply is (e)(3)(C)(i). It permits disclosure when a court so directs preliminarily to or in connection with a judicial proceeding. It is well established, however, that a FOIA plaintiff may not obtain disclosure by relying on Rule 6(e)(3)(C)(i) as an exception to the general rule of secrecy under Rule 6(e)(2), because “an examination of the language and legislative history of [6(e)(3)(C)(i) ]" }, { "docid": "7808293", "title": "", "text": "depends upon the secrecy of the grand jury proceedings.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Secrecy, however, is not absolute. Rule 6(e) of the Federal Rules of Criminal Procedure provides exceptions to the general rule. Under Fed.R.Crim.P. 6(e)(3)(C)(i), grand jury materials may be disclosed “when so directed by a court preliminarily to or in connection with a judicial proceeding.” A district court may properly order release of grand jury materials after a party demonstrates the necessity for them “with particularity.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-87, 2 L.Ed.2d 1077 (1958). The determination involves balancing competing interests that differ from ease-to-case: Specifically, a party seeking grand jury materials must show (1) the materials are needed to avoid a possible injustice in' another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only material so needed. Relevance alone is not sufficient; secrecy will not be broken absent a compelling necessity for the materials. Further, the request must amount to more than a request for authorization to engage in a fishing expedition: In re Grand Jury 95-1, 118 F.3d at 1437 (citations and quotations omitted). The grand jury’s supervisory court is “in the best position to determine the continuing need for grand jury sécrecy.” Douglas Oil, 441 U.S. at 226, 99 S.Ct. at 1676. The court in which the civil case is pending, however, has the expertise to consider need for the requested materials' and to structure the disclosure. See id. at 229-30, 99 S.Ct. at 1678-79. The discussion below addresses the three elements of the disclosure burden in isolation. It should be kept in mind that, as in any balancing test, the relevant factors are interrelated. Competing interests, cannot be weighed without the identification of a recognizable need and an estimate of the interests in secrecy. “[AJs the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a" }, { "docid": "13748864", "title": "", "text": "280 F.2d 74 (7th Cir. 1960), cert. denied 364 U.S. 914, 81 S.Ct. 271, 5 L.Ed.2d 228, rehearing denied 364 U.S. 944, 81 S.Ct. 458, 5 L.Ed.2d 375 (1961), where the District Court, citing Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323, said: “It is established that the burden is on the defense to show that a particularized need exists for the minutes which outweighs the policy of secrecy.” 280 F.2d at page 79. And see Herman Schwabe, Inc. v. United Shoe Machinery Corp., D.C., 21 F.R.D. 233. In the case before us, there was no compelling necessity for the production of the grand jury proceedings nor any showing that the application of the rule of secrecy would defeat the ends of justice. We have examined the other contention raised by defendant and find it without merit. Affirmed. . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d (1957). . Rule 6(e). Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.” . United States v. Proctor & Gamble Co., 356 U.S. 677, 78" }, { "docid": "1214585", "title": "", "text": "Proctor & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). However, F.R.Crim.P. 6(e)(2)(C)(i) permits disclosure “when so directed by a court preliminarily to or in connection with a judicial proceeding.” The requirement of a court order makes clear that even when the literal requirements of Rule 6(e) are met, a court must carefully balance the interest of continued grand jury secrecy against the goal of a just result in a judicial proceeding: (1) the burden is on the applicant to show that a “particularized need” exists for the grand jury material which outweighs the policy of secrecy; (2) the indispensable secrecy “must not be broken except where there is a compelling necessity;” and (3) disclosure is proper where there is a compelling need for it and such disclosure is required by the ends of justice. In The Matter of Disclosure of Testimony, Etc., 580 F.2d 281, 286 (8th Cir. 1978); U. S. v. Rockwell International Corporation, Cr. No. 78-325 (E.D.Pa. August 9, 1979). The Court in exercising the duty to weigh carefully competing interests in light of the relevant circumstances and standards which obtain cannot justify disclosure on this record. . Federal Rule of Criminal Procedure 6(e) provides: “(e) Secrecy of Proceedings and Disclosure.— (1) General Rule.— . . any person to whom disclosure is made under paragraph (2) (A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. (2) Exceptions.— (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand jury, may be made to— (i) any attorney for the government for use in the performance of such attorney’s duty; and (ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce Federal criminal law. (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made— (i) when so directed by a court preliminarily" }, { "docid": "18594786", "title": "", "text": "explanation, the District Court ordered disclosure of “the material contained in Exhibit 3 ... (other than grand jury transcripts) which has inherent value outside of the grand jury proceedings and which does not reveal what occurred before the grand jury.” Id. at 3. On April 24,1986, appellant filed a notice of appeal. Shortly thereafter, this court granted appellant’s motion for a stay of the District Court’s order pending expedited appeal. II Rule 6(e)(2) of the Federal Rules of Criminal Procedure codifies the traditional practice of grand jury secrecy. It provides that disclosure of “matters occurring before the grand jury” is prohibited unless specifically permitted by one of the exceptions set forth in Rule 6(e)(3). Here, the government sought disclosure under the Rule 6(e)(3)(C)(i) exception, which states that a court may direct disclosure “preliminarily to or in connection with a judicial proceeding.” The Supreme Court has firmly established that a petitioner seeking Rule 6(e)(3)(C)(i) disclosure must make a “strong showing of particularized need for grand jury materials.” United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 743 (1983); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble, 356 U.S. 677, 682-83, 78 S.Ct. 983, 986-87, 2 L.Ed.2d 1077 (1958). This “particularized need” standard governs disclosure to governmental parties as well as private parties, though a district court may take into account “any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case.” Sells Engineering, Inc., 463 U.S. at 445, 103 S.Ct. at 3149. The showing required under the standard is that (1) “ ‘material [sought] is needed to avoid a possible injustice in another judicial proceeding’ ”; (2) “ ‘the need for disclosure is greater than the need for continued secrecy’ ”; and (3) the “ ‘request is structured to cover only material so needed.’ ” Id. at 443,103 S.Ct. at 3148 (quoting Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. at 1674). The determination to disclose grand jury" }, { "docid": "13987408", "title": "", "text": "admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.” In the petitions, Clavey alleged that he could not recall the substance or detail of his testimony because of an illness and a skull fracture that adversely affected his memory. Chief Judge Robson of the District Court for the Northern District of Illinois denied both petitions on the ground that Clavey had failed “to demonstrate with particularity a ‘compelling necessity’ for disclosure.” Approximately four months later the same grand jury returned the indictment in this case. After the indictment was returned, Cla-vey moved to suppress it on the ground that he was denied the effective assistance of counsel in asserting his right to recant under 18 U.S.C. § 1623(d) by Judge Robson’s refusal to release a transcript of Clavey’s grand jury testimony to his counsel. Judge Lynch denied the motion, and Clavey reasserts the claim here. Federal Rule of Criminal Procedure 6(e) permits district courts to order the disclosure of grand jury' testimony to persons other than attorneys for the Government “preliminarily to or in connection with a judicial proceeding.” We recently reviewed the standards to be applied by district courts in deciding whether to disclose grand jury testimony upon request: “The Supreme Court has declared that the secrecy protected by Rule 6(e) ‘must not be broken except where there is a compelling necessity,’ which ‘must be shown with particularity.’ United States v. Procter & Gamble Co. [356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077]; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400, 79 S.Ct. 1237, 3 L.Ed.2d 1323. . . . [T]here still exists in cases in which disclosure is not provided for as a matter of right in 18 U.S.C. § 3500(e)(3) and Rule 16(a)(1)(A), Fed.R.Crim.P., a requirement that the party seeking disclosure show a need commensurate with the degree of secrecy remaining and the policy reason that justifies that secrecy.” Illinois v. Sarbaugh, 552 F.2d 768, 774 (7th Cir. 1977). Inasmuch as Clavey was not entitled" }, { "docid": "22159110", "title": "", "text": "recalculation of McDowell’s sentence because without the grand jury testimony it would be impossible to prove the perjury in his son’s testimony. As a matter of public policy, grand jury proceedings generally must remain secret except where there is a compelling necessity. United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1957). As Federal Rule of Criminal Procedure 6(e) notes: A grand juror, an interpreter, a stenographer of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made ... shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. Although government attorneys are entitled to disclosure of grand jury proceedings, except for deliberation and the votes of the jurors, because of their presence in the grand jury room during the presentation of evidence, Fed.R.Crim.P. 6(e) advisory committee’s note, more extensive disclosure is also permitted “when so directed by a court preliminary to or in connection with a judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(C)®. To support a motion for a judicially ordered disclosure of grand jury testimony, a party must show a particularized need for that information which outweighs the public interest in secrecy. United States v. Proctor & Gamble Co., supra at 683, 78 S.Ct. at 986. Once such a need is shown, the district court “must weigh the competing interests and order so much disclosure as needed for the ends of justice.” In re Grand Jury Matter (Catania), 682 F.2d 61, 62 (3d Cir.1982). In balancing the competing interests, the district court “necessarily is infused with substantial discretion.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979). This court must analyze a district court’s decision to disclose grand jury information only to determine if there was an abuse of that discretion. 682 F.2d at 65. In this case, the Government was able to show a particularized need for the information; it believed it would prove that McDowell III had committed perjury and aid in" }, { "docid": "5869225", "title": "", "text": "v. American Med. Ass’n, [26 F.Supp. 429] supra; In re Grand Jury Proceedings, D.C., 4 F.Supp. 283. Schmidt v. United States, 115 F.2d 394, 397 (6th Cir. 1940). However, the discretion of the trial judge in ruling on a motion for disclosure is not absolute. The Supreme Court has established requirements which must be met before the strong policy of maintaining secrecy of grand jury proceedings may be overcome. United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), was a civil action brought under § 4 of the Sherman Act. There had been a grand jury investigation, but no indictment had been returned. The defendants sought disclosure of the grand jury transcript pursuant to F.R.Civ.P. Rule 34 (one also moved under Criminal Rule 6(e)). The district court found that since the government was using the transcript in preparation for trial, it would be useful to the defendants as well and that a disclosure order was the only way it could be made available. The Supreme Court reversed the order directing disclosure, holding that there had been no showing by the defendants of the “compelling necessity” required for breaking the “indispensible secrecy of grand jury proceedings.” 356 U.S. at 681— 82, 78 S.Ct. at 985-86. This compelling necessity must be demonstrated by establishing a “particularized need” rather than a general one. Id. at 683, 78 S.Ct. at 986. The requirement of a particularized need for disclosure was reaffirmed by the Court in Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959), a criminal antitrust case where the motion for disclosure was made pursuant to Criminal Rule 6(e): “The burden, however, is on the defense to show that ‘a particularized need’ exists for the minutes which outweighs the policy of secrecy.” Id. at 400, 79 S.Ct. at 1241. In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the Court held that a defendant in a conspiracy case had shown the required “particularized need” for a grand jury transcript. Factors which" }, { "docid": "14474111", "title": "", "text": "opinions to be that, while the secrecy of grand jury proceedings is to be preserved against wholesale revelation, the needs of justice may require that limited portions of grand jury testimony be made available in particular instances to show inconsistencies and to refresh recollection. Whether in any given situation such testimony should be disclosed is left largely to the discretion of the trial judge. Only when there is a clear abuse of discretion in either giving or withholding disclosure will the trial judge’s determination be reversed. Rule 6(e) of the Rules of Criminal Procedure provides for disclosure upon direction of the court “preliminarily to or in connection with a judicial proceeding.” Although appellants suggest that this Rule is not applicable to private civil litigation, the language is certainly broad enough to cover such litigation. While the Courts of Appeals of the Second and Third Circuits have refused in companion cases to grant leave for interlocutory appeals and denied applications for mandamus, the reasons given for their action reveal to some extent the views of these Courts on the issue upon which we have granted the appeal. In Atlantic City Elec. Co. v. A. B. Chance Co., 313 F.2d 431, at p. 434 (2d Cir., 1963) the Court said: “The principles enunciated by the Supreme Court in Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959), and United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), seem to us clearly to establish that a court may order the disclosure of grand jury minutes when there is a showing of special and compelling circumstances sufficient to overcome the policy against disclosure. See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 231-234, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Although in none of those cases was grand jury testimony released to a plaintiff in a civil action, there is nothing in either the policy favoring secrecy or the reasons underlying it, see Procter & Gamble, supra, 356 U.S. at 681, n. 6, 78 S.Ct. at" }, { "docid": "14474102", "title": "", "text": "the record of previous testimony was made available to the opposition the witness’s “memory became sharper and keener than it had been up to that time” (City of Philadelphia v. Westinghouse Elec. Corp., supra, 210 F.Supp. at pp. 487-488). The real nub of the controversy is to be found in the delicate task of balancing the policy which requires secrecy for the proceedings of the grand jury with the policy which requires that there be full disclosure of all available evidence in order that the ends of justice may be served. While the pronouncements of the Supreme Court on this issue do not give us a specific answer in each individual situation, they do provide guidance for the solution of the problem. In United States v. Procter & Gamble, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), the defendants moved under Rule 34 of the Rules of Civil Procedure, for disclosure of the grand jury minutes. The Supreme Court held that “ ‘good cause,’ as used in Rule-34, was not established.” The Court, said, 356 U.S. at 681-682, 683, 78 S.Ct. at 986-987, 2 L.Ed.2d 1077: “[W]e start with a long established policy that maintains the secrecy of the grand jury proceedings in the federal courts.* See United States, “* Rule 6(e) of the Rules of Criminal Procedure provides in part: “ ‘Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror-may be made to the attorneys for the-government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer-may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or-when permitted by the court at the-request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because-of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in. accordance with this rule.’ ” v. Johnson, 319 U.S. 503, 513 [63. S.Ct. 1233, 87 L.Ed. 1546]; Costello v. United" } ]
5281
total allowance for the services rendered by petitioners ought not to exceed $30,-000. Following petitioners’ request for reconsideration of his original order, he reaffirmed this conclusion in a second opinion, in which he amplified his previously expressed views and dealt specifically with the points which are raised by petitioners on this petition for review. It is the universal rule that the fixing of attorneys’ fees in bankruptcy is peculiarly within the discretion of the referee and that the referee’s judgment, if sufficiently supported by evidence and free from error of law, ought not to be disturbed unless it is so manifestly inadequate as to constitute an obvious miscarriage of justice. Roth v. Reich, 164 F.2d 305, 309, 311 (2d Cir. 1947); REDACTED In re Higgin Mfg. Co., 19 F.Supp. 120, 123 (E.D.Ky.1937); In the Matter of E. S. Brown Co., 9 Am.Bankr.R.,N.S., 439 (D.Mass.1927); In re Am. Range & Foundry Co., 41 F.2d 845, 847-848 (D.Minn.1926); 3 Collier, op.cit. supra, para. 62.12(4); cf. Klein v. Rancho Montana DeOro, Inc., 263 F.2d 764, 770 (9th Cir. 1959). The Court has no hesitation in holding that the referee’s award is amply supported by the evidence. Petitioners contend, however, that it suffers from three errors of law. The first error alleged is that in determining the compensation to be awarded petitioners the referee improperly used as a guide the minimum hourly charge of $15 recommended by the local county bar association for attorneys practicing in
[ { "docid": "17341419", "title": "", "text": "less than when the services were rendered; but that is true also of the dollars the creditors will receive, and neither a referee nor a judge should favor counsel whom he sees and hears over creditors whom he does not see and hear, but who are equally entitled to the protection of the court; As a rule discretion in the fixing of fees will be exercised primarily by the referee, subject, however, to review and reconsideration by the district judge. The referee’s discretion and judgment, if free from error of law and sufficiently supported by evidence, is entitled to great weight, even though he was not in office when the services were rendered. Collier on Bankruptcy, 14th ed., sec. 62.12, pages 1481-1483. In Re American Range & Foundry Co., D.C.Minn., 41 F.2d 845, 847, 7 Am. Bankr.Rep.,N.S., 170, the judge said: “ * * * it is not the business of this court to retry this question or to substitute its judgment for that of the referee, where there is nothing to show that he did not fairly pass on the question in view of the evidence before him, or that there is any mistake of law. * * * The business of fixing attorneys’ fees in bankruptcy matters is one peculiarly for the referee. If this court should make it a practice to pass upon the question of the reasonableness of the allowances made by referees for attorneys’ fees, it would mean that it would have to pass upon the question in connection with almost every large bankruptcy matter and a great many of the small ones. To leave the question to the referees tends to create uniformity of charges and allowances, while to repass upon the question here and substitute the judgment of this court for that of the referee would tend to create inequality and confusion. There is nothing more difficult nor embarrassing than to appraise the value of professional services. The appraisal must be based largely upon the personal opinion of the one who makes it. Even though an occasional injustice be done, the policy of" } ]
[ { "docid": "23565509", "title": "", "text": "OPINION PER CURIAM: In an earlier appeal, we reversed the trial court and dismissed the petition of U.S.A. Motel Corporation for reorganization under Chapter X of the Bankruptcy Act on the ground that it was not filed in good faith. We found that U.S.A. Motel Corporation was not insolvent and that the proceedings were filed for two improper purposes: the liquidation of corporate assets and the resolution of internal disputes among shareholders. In re U.S.A. Motel Corporation, 450 F.2d 499 (9th Cir. 1971). Upon remand, the District Court awarded: $11,650 to the attorney for the petitioner; $12,500 to the trustee; $10,500 to the trustee’s attorney; $2,500 to the referee/special master. The District Court ordered these amounts to be paid by U.S.A. Motel Corporation, which is solvent. The board of U.S.A. Motel Corporation is now controlled by a group of stockholders who opposed the Chapter X proceedings and who now contend that no compensation should be awarded because of this Court’s holding that the proceedings were not filed in good faith. In the alternative, they contend that the allowances were excessive. The dismissal of a Chapter X petition for lack of good faith will not necessarily bar the award of compensation. See 6A Collier ¶ 13.03[1] at 924, Smith v. Central Trust Co., 139 F.2d 733 (4th Cir. 1944), on remand from, Fidelity Assurance Association v. Sims, 318 U.S. 608, 63 S.Ct. 807, 87 L.Ed. 1032 (1943). We believe that compensation was appropriate in this case. When the petition was filed, the directors believed, although erroneously, that U.S.A. Motel Corporation was insolvent and could not meet its unsecured obligations. In addition, both the referee special master and the District Court denied motions to dismiss. Nevertheless, the attorney for the debtor in a Chapter X proceeding is entitled to compensation from the estate only for services which benefited the estate. 6A Collier f 13.04 at 940; In re Porto Rican American Tobacco Co., 117 F.2d 599 (2d Cir. 1941). The trustee, his attorney, and the referee/special master are entitled to reasonable compensation. 11 U.S.C. § 641. In our view, the $2,500 awarded" }, { "docid": "3113609", "title": "", "text": "uation in each case. 2 Remington on Bankruptcy, 4th Ed., p. 655, § 1111. The exercise of such discretion is reviewable. Woodford v. Cosden & Co., 289 F. 67, 69, this Court, and see cases above cited where review was had. Disputed questions of fact are reviewable only to ascertain “whether or not there was any substantial evidence” to sustain the ruling of the trial court. Good v. Kane, 211 F. 956, 958, this Court. Where the bankruptcy court acts in a matter of appointment or removal of trustee, “there must be a clear showing of abuse [of discretion] to warrant the appellate court in interfering”. Woodford v. Cosden & Co., 289 F. 67, 68, this Court Finding of a referee on conflicting evidence adopted by the trial court will not be disturbed “unless manifestly erroneous.” Platt v. Schmitt, 87 F.2d 437, 440, this Court, and see Rule 52(a) Rules of Civil Procedure, 28 U.S.C.A. following section 723c. “The court may, in its discretion, withhold all compensation from any * * * trustee, attorney * * * who has been removed from office or dismissed because of the unlawful sharing of fees or for any other cause.” Title 11 U.S.C.A. § 76, sub. e. Second. As to the facts. In the order referring the present petition to the referee, it was provided: “The said Referee may in his discretion limit the scope of said hearing to the new matter only, set up by the petitioners, and the issues thereby created, counsel for the petitioners having heretofore advised the court. that the essential parts are embodied in paragraphs 33 to 45 and in photostat exhibits ‘E’ to ‘H’ of said petition.” In the answer of respondents, one defense was that all of the matters set forth in the present petition were contained in the petition in the first removal proceedings ; had been determined therein adversely to these petitioners; and such determination has become final and the matters res judicata, wherefore these peti •tioners “are thereby barred and estopped from asserting said claims anew.” On the hearing, respondents moved “to limit" }, { "docid": "12935409", "title": "", "text": "within five days after notice to him of the entry of such order, a trustee shall be appointed as provided in section 72 of this title.” The Referee proceeded on the theory that his authority unilaterally to appoint a trustee, under the circumstances, was derived from § 378(2). Underlying the Referee’s application of § 378(2) was his holding that the Chapter XI petition filed by Dejay was an original petition filed pursuant to § 322 of the Act, 11 U.S.C.A. § 722, i. e., a petition for an arrangement filed when no ordinary bankruptcy proceeding is pending. Section 321 of the Act, 11 U.S.C.A. § 721, provides that “A debtor may file a petition under this chapter in a pending bankruptcy proceeding either before or after his adjudication.” The Referee, in directing that bankruptcy be proceeded with pursuant to § 778(2), held, in effect, that Dejay’s Chapter XI petition was not filed in a pending bankruptcy for he questioned “whether the filing of an involuntary bankruptcy, minutes before the filing of the Chapter XI petition, justifies considering this case as one arising under § 321.” The Referee’s Findings of Fact are not contested and the dispute involves only his legal conclusions to which the “clearly erroneous” rule does not pertain. See 11 U.S.C.A. § 67, sub. c as amended, 11 U.S.C.A. § 67, sub. c (Supp.1962). In the Matter of Transatlantic and Pacific Corp., 216 F.Supp. 546 (S.D.N.Y.1963); In re Hot Springs Broadcasting, Inc., 210 F.Supp. 533 (W. D.Ark.1962); In re Novelty Belts Mfg. Co., 173 F.Supp. 461 (S.D.N.Y.1959). And the presumption of correctness which applies to a Referee’s Findings of Fact does not apply to his Conclusions of Law. In the Matter of Tauber on Broadway, Inc., 271 F.2d 766, 79 A.L.R. 2d 752 (7th Cir. 1959); Walker v. Commercial Nat. Bank, 217 F.2d 677 (8th Cir. 1954); In re Hot Springs Broadcasting, Inc., supra; In re Novelty Belts Mfg. Co., supra. The petitioners contend that the appointment of a trustee by the Referee, pursuant to Section 378(2), without affording the petitioners and other creditors the opportunity to nominate" }, { "docid": "10318050", "title": "", "text": "of this estate was not a reasonable and necessary expense to this bankruptcy estate. 9. In Omaha, Nebraska, the minimum fee schedule of the Douglas County Bar Association provided for a minimum hourly rate of $15.00 per hour from approximately January 1, 1958, to approximately November 30, 1958, and for a minimum hourly rate of $18.00 per hour at all times since November 30,1958. 10. A fair and reasonable fee for the Attorney for the Trustee, under all the circumstances of this case is $18,500. The reasonable and necessary expense to this estate for the services of the Attorney for the Trustee is $18,500. CONCLUSIONS OF LAW Fees for the Trustee’s attorney are allowable as an expense of administration under Section 62 of the Bankruptcy Act. (11 U.S.C.A. § 102). The quantum of such fees is left by the Bankruptcy Act to the sound discretion of the Court. Where the proceeding has been referred, the quantum is for the sound discretion of the Referee, and this is so, even though as in this instance, the Referee was not in office during all of the time in which the services of the Attorney were rendered. As was held by the Court in In re Valentine, 139 F.Supp. 576, 577 (D.C.Md.1956): “As a rule discretion in the fixing of fees will be exercised primarily by the referee, subject, however, to review and reconsideration by the district judge. The referee’s discretion and judgment, if free from error of law and sufficiently supported by the evidence, is entitled to great weight, even though he was not in office when the services were rendered. Collier on Bankruptcy, 14th ed., sec. 62.12, pages 1481-1483.” The reasons why such discretion is lodged in the Referee were stated by Judge Sanborn, then a District Judge, in In re American Range & Foundry Co., 41 F.2d 845, 847-848 (D.C.Minn.1926): “ * * * The business of fixing attorneys’ fees in bankruptcy matters is one peculiarly for the referee. If this court should make it a practice to pass upon the question of the reasonableness of the allowances made by" }, { "docid": "23565510", "title": "", "text": "that the allowances were excessive. The dismissal of a Chapter X petition for lack of good faith will not necessarily bar the award of compensation. See 6A Collier ¶ 13.03[1] at 924, Smith v. Central Trust Co., 139 F.2d 733 (4th Cir. 1944), on remand from, Fidelity Assurance Association v. Sims, 318 U.S. 608, 63 S.Ct. 807, 87 L.Ed. 1032 (1943). We believe that compensation was appropriate in this case. When the petition was filed, the directors believed, although erroneously, that U.S.A. Motel Corporation was insolvent and could not meet its unsecured obligations. In addition, both the referee special master and the District Court denied motions to dismiss. Nevertheless, the attorney for the debtor in a Chapter X proceeding is entitled to compensation from the estate only for services which benefited the estate. 6A Collier f 13.04 at 940; In re Porto Rican American Tobacco Co., 117 F.2d 599 (2d Cir. 1941). The trustee, his attorney, and the referee/special master are entitled to reasonable compensation. 11 U.S.C. § 641. In our view, the $2,500 awarded the referee/special master is reasonable. We also hold that the award of $10,500 to the trustee’s attorney, for almost 350 hours work, is reasonable. We have considered the work performed by the trustee. The award of $12,500 for 200 hours work ($62.50 an hour) is grossly excessive. We hold that a fee of $35.00 an hour, or a total of $7,000, is adequate considering the nature of his responsibilities, and reduce the award to that amount. We find that the award of $11,-650 to the petitioner’s attorney is grossly excessive. His services were of questionable benefit to the petitioner. He devoted 326.75 hours to the proceedings, but most of his compensable hours were spent filing the petition and defending the motion to dismiss. He argues that the abortive proceedings gave U.S.A. Motel Corporation “breathing time” and established that U.S.A. Motel Corporation’s land was extremely valuable. U.S.A. Motel Corporation has always been able to meet its obligations, and the value of the land could have been established without the proceedings. When a Chapter X proceedings is" }, { "docid": "15770828", "title": "", "text": "maximum and within that limit the allowance is to be adjusted to the services performed, consistent with economical administration and in the light of the results accomplished. Remington, § 2754. As to the allowances made to Benton, Benton, Smith & Luedeke, and James M. De Camp for services as attorneys for trustee, I find no ground to disagree with the conclusions reached by the referee. It is doubtful whether the petitions filed with the referee by these attorneys are in full compliance with General Order • No. 42. See In re National Accessories (D.C.) 13 F.Supp. 278, 281, in which it is said: “It will not do to state in a general way services performed, and then ask a bulk allowance.” Nevertheless, the opinion filed by the referee evidences careful consideration of the nature and extent of the services rendered. He correctly points out that the services to the trustees involved little more than merely routine matters, presenting no intricate legal problems and calling for no extraordinary professional efforts. Ip Remington, § 3669, p. 48, it is said: “Thus, in discretionary matters, such as allowances of attorney’s fees, the referee’s discretion will'not be disturbed in the absence of clear mistake of fact or law.” In re American Range & Foundry Co. (D.C.) 41 F.(2d) 845. After careful consideration of each of the petitions for review and the briefs filed in support of them, I am of the opinion that the relief sought by each of them should be denied and the action of the,referee in respect to the questioned allowances should be approved and confirmed. Let a decree be entered in accordance herewith." }, { "docid": "1862908", "title": "", "text": "Mayo S. Levenson, Robert Schwarz, Frank Linnell, and Morris Greenberg from voting claims represented by them in the election of a trustee of their choice — namely, Morris Greenberg. (2) Error in denying motions for continuance in order to permit creditors originally represented by Mayo S. Levenson, Robert D. Schwarz, and Morris Greenberg to seek other counsel, or appear personally to vote for a trustee. (3) Error in permitting the following claims to be voted for Frank M. Coffin, as Trustee, of the bankrupt — namely, Great American Indemnity Insurance Company— Connelly Containers Corporation. — Wing’s Express — Crompton & Knowles — H. F. Livermore Corp. — Crompton, Knowles, Jacquard Supply Company — Howard Bros. Mfg. Co. Oral argument on the petition, supplemented by briefs, was had before this Court on July 10, 19S3. All attorneys, who represented claims that were in issue in this proceeding, were in attendance, except Mr. Frank Linnell who represented the claims of the Tarmy Wool Stock Company, Ida Katz, and Isaac Tarmy. At the outset of the hearing on this petition, question was raised concerning the standing before this Court of the petitioner, those objecting to the petition asserting that the petitioner was not aggrieved by the ruling of the Referee. Under section 39, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 67, sub. c, only “A person aggrieved by an order of a Referee may * * * file with the Referee a petition for review * * (Emphasis supplied.) Unless the petitioner first shows itself to be “a party aggrieved”, it obviously has no standing and the Court would be justified in dismissing its petition for review. No case directly in point on this phase of the proceeding has been cited to this Court. However, in a recent case decided since 1938, a creditor whose claim was disallowed, neither side having a majority in number and amount, was held to have no standing in review. In re State Thread Co., 6 Cir., 126 F.2d 296, 301. The Court in that case, stating that the creditor therefore suffered no actual damage, said:" }, { "docid": "12935410", "title": "", "text": "justifies considering this case as one arising under § 321.” The Referee’s Findings of Fact are not contested and the dispute involves only his legal conclusions to which the “clearly erroneous” rule does not pertain. See 11 U.S.C.A. § 67, sub. c as amended, 11 U.S.C.A. § 67, sub. c (Supp.1962). In the Matter of Transatlantic and Pacific Corp., 216 F.Supp. 546 (S.D.N.Y.1963); In re Hot Springs Broadcasting, Inc., 210 F.Supp. 533 (W. D.Ark.1962); In re Novelty Belts Mfg. Co., 173 F.Supp. 461 (S.D.N.Y.1959). And the presumption of correctness which applies to a Referee’s Findings of Fact does not apply to his Conclusions of Law. In the Matter of Tauber on Broadway, Inc., 271 F.2d 766, 79 A.L.R. 2d 752 (7th Cir. 1959); Walker v. Commercial Nat. Bank, 217 F.2d 677 (8th Cir. 1954); In re Hot Springs Broadcasting, Inc., supra; In re Novelty Belts Mfg. Co., supra. The petitioners contend that the appointment of a trustee by the Referee, pursuant to Section 378(2), without affording the petitioners and other creditors the opportunity to nominate and vote was in contravention of the Act. They urge that the Referee’s construction of Dejay’s petition for an Arrangement, as an “original petition” under § 322, was erroneous since the filing of an involuntary petition two minutes prior to the voluntary petition should not have been ignored. Therefore, the petitioners claim that the Referee should have considered Dejay’s petition as a petition in a pending bankruptcy proceeding pursuant to § 321 of the Act and further, that the Referee should have followed the procedure of § 378(1) rather than the procedure of § 378(2). And they contend that if the § 378(1) procedure had been followed the administration of the Bankrupt’s estate would have proceeded as an ordinary bankruptcy proceeding and thus a first meeting of creditors would have had to have been convened for the purpose of providing creditors with an opportunity to nominate and appoint a trustee. Bankruptcy Act, § 55, sub. a, as amended, 11 U.S. C.A. § 91, sub. a (Supp.1962); § 44, sub. a, 11 U.S.C.A. § 72, sub." }, { "docid": "4192802", "title": "", "text": "of the referee. Under such circumstances, those proceeds would seem to be “moneys disbursed [by the trustee] to any persons” and therefore a basis for statutory commissions. Moreover, there is additional support for this view. When a secured creditor joins in a bankruptcy proceeding to have property sold free of liens, the trustee’s commission is usually based on the total sales price. In re Lowell Textile Co., 288 F. 989 (D.Mass. 1923). In this situation, according to 2 Collier, supra |f 48.07 [2.1], at 1802: The crucial test seems to be, however, whether or not the particular property or fund has been justifiably administered in the bankruptcy court, or whether or not the trustee has properly performed services in relation thereto. See In re Sanford Furniture Mfg. Co., 126 F. 888 (E.D.N.C.1903). Much of the litigation deals with the correlative, more difficult question of who pays the trustee’s fee, the lienholder or the general estate. See, e. g., In re Pioneer Sample Book Co., 374 F.2d 953, 961 (3d Cir. 1967); In re Cheyenne Wells Elevator Corp., 266 F.Supp. 927 (D.Colo.1967). See generally 4A Collier, Bankruptcy ff 70.99 [6] (14th ed. Moore 1967) ; Note, Allocation of Expenses Incurred in a Bankruptcy Sale Free of Liens, 53 Colum. L.Rev. 845 (1953). Since the trustee has already agreed, with the approval of the referee, that Mrs. Schautz’s interest should not be charged with any part of his fee, that problem is not before us; the issue here is the basis on which to compute the trustee’s fee, not who bears it. Applying the quoted test, no one has ever contradicted the trustee’s claim that his decision to sell the entire property free of all liens created substantial benefit to the general estate. Moreover, the trustee, with the approval of the referee, was required to supervise Mrs. Schautz’s interest to an appreciable extent. While it was not intended that that interest be a permanent part of the bankrupt’s estate, this should not be controlling. See In re Mellor, 32 Am.Bankr.R. (n. s.) 725 (D. Hawaii 1936); 2 Collier, supra H 48.07. Thus," }, { "docid": "21268516", "title": "", "text": "Lux signed a conditional sales contract covering almost all the equipment included in the purchase order of October 29, 1959. The conditional sales contract was made with Kendall at the request of Commercial Credit Corporation, the other Petitioner, to whom it was subsequently assigned. On December 9, 1959, Lux’s Superette opened for business. Although the original down payments and one installment probably were made by Balliet and Lux, the remaining payments were made by the corporation. On January 3,1961, the corporation was adjudicated a bankrupt. The Trustee then took possession of the equipment and the Petitioners filed the present reclamation petition. The Referee dismissed the petition and the case was certified to us. The findings of fact of the Referee may not be disturbed unless they are shown to be “clearly erroneous” (General Order 47), even though in the first instance we might have found otherwise. In re Chatham Jewelers, Inc., 108 F.Supp. 385, 386 (S.D.N.Y.1952). The burden was on the Petitioners to establish their ownership of the property. Hagan v. Gardner, 283 F.2d 643 (9th Cir. 1960); see Salkind v. Dubois, 105 F.2d 640 (3d Cir. 1937). If the precise relationship of the rival claimants is left uncertain the Petitioners have failed to meet their burden. National Silver Co. v. Nicholas, 205 F.2d 52 (5th Cir. 1953); In re Meagher, 35 F.Supp. 58 (E.D.Pa.1940). A careful review of the record convinces us that the Referee’s findings of fact are supported by competent evidence. Indeed, the inconsistencies in Petitioners’ case make it clear that they have failed to sustain their burden. The purchase order of October 29th (Petitioners’ Exhibit No. 7) for example, indicates a sale to the corporation although the signatures show no corporate designation. The same purchase order was filed as a financing statement with the Prothonotary of Lehigh County in December, 1959, but another financing statement (Petitioners’ Exhibit No. 8) filed with the Prothonotary of Northampton County on January 15, 1960, indicates as the debtor “Donald M. BallietLambert Lux, Lux’s Superette.” The conditional sales contract of November 19, 1959 provides that the “purchaser shall * * *" }, { "docid": "21372240", "title": "", "text": "made by the referee during the pendency of the review proceeding. . Appellee does not contend that this court is without jurisdiction because the appeal involves an interlocutory district court order in a controversy arising in proceedings in bankruptcy. See section 24, sub. a, as amended, of the Bankruptcy Act, 11 U.S.C. § 47, sub. a (1958). Nor does appellee argue that appellant is without standing to appeal because he is not “aggrieved” by the district court order, within the meaning of section 25, sub. a, as amended, of the Act, 11 U.S.C. § 48, sub. a. See Klein v. Rancho Montana De Oro, Inc., 9 Cir., 263 F.2d 764, 771. . During the course of the hearing on the objection to the exercise of summary jurisdiction, the referee orally overruled the objection, citing Hannah v. Swift, 9 Cir., 61 F.2d 307, and In re Cummings, D.C. S.D.Cal., 84 F.Supp. 65. In neither of these cases is the question of summary jurisdiction involved. The referee also said, in further explanation of his ruling: “I don’t think there is any doubt as to the jurisdiction of this Court, that where a bankrupt has an interest in the property this Court can determine what that interest is.” As indicated earlier in this opinion, citing Martoff v. Elliott, Trustee, this is not the test to be applied in determining whether the bankruptcy court has summary jurisdiction to determine interests in property. . See Thompson, Trustee v. Magnolia Petroleum Co., 309 U.S. 478, 483, 60 S.Ct. 628, 84 L.Ed. 876; Briskin v. White, 9 Cir., 296 F.2d 132, 135; 1 Collier on Bankruptcy, 14th ed. § 2.07, pages 156-167. The fact that the referee opposed the continuance of the state action did not preelude the district court, in the exercise of discretion, from taking a contrary position. The broad powers vest ed in the district court under General Order 47, 11 U.S.C.A. following section 53, in proceedings to review orders of referees have been heretofore commented on by this court. See Rosehedge Corporation v. Sterett, 9 Cir., 274 F.2d 786, 790; Powell v. Wumkes," }, { "docid": "12192470", "title": "", "text": "F. 318, 319 (7 Cir. 1914); Neustadter v. Chicago Dry Goods Co., 96 F. 830 (E.D.Wash.1899); see 3 Collier, Bankruptcy 69.34, p. 658-60 (1966), or because the petition is fatally defective on its face. Zlot v. San Jose Fashions, Inc., 284 F.2d 469 (9 Cir. 1960); In re Lande, 20 F.Supp. 26 (S.D.N.Y.1937); In re Smith, 14 F.2d 464 (E.D.Ill.1926). Similarly, intervention which could have saved a petition that was dismissed after hearing for lack of the statutory number of creditors comes too late, and the dismissal may not be set aside for want of notice. Mutual Bldg. & Loan Ass’n. v. King, 83 F.2d 798 (9 Cir. 1936). Thus, notice is not required for a petition to be dismissed where the petitioning creditors fail to prove their case after a hearing. In re Chalfen, 223 F. 379 (D.Mass. 1915). But unless the matter has been submitted to the court and it has determined that the petitioners can not sustain their petition, notice is required. See Neustadter v. Chicago Dry Goods Co., supra. In the Chalfen case, supra, the court was presented with a unique situation not unlike the one before us. The parties went to trial, but at trial the petitioning creditors failed to produce any evidence in support of their petition. The alleged bankrupt moved to have the petition dismissed without notice to creditors. The court held that if the petitioner’s failure to adduce any - evidence resulted from its inability to do so and not from an agreement or collusion between the parties, the movant was entitled to have the petition dismissed without notice to creditors. It therefore remanded the case to the referee to hold hearings and determine whether the failure to adduce evidence resulted from an agreement or collusion. The appellant asserts that Chalfen stands for the proposition that collusion is required before the notice provisions of § 59(g) are applicable. We do not agree. The court in Chalfen observed that “If upon a mere failure of the petitioners to produce evidence at a hearing, an order of dismissal may be entered up without notice" }, { "docid": "1932929", "title": "", "text": "the order of October 21. All that order recites on this matter is: “The sum of $250.00 is allowed to David Blonder for his services rendered.” The authority for the allowance of fees for the bankrupt’s attorney is found in § 64 of the Bankruptcy Act, 11 U.S.C.A. § 104, and General Order 42, General Orders in Bankruptcy, 11 U.S.C.A. following § 53. Th„ services here claimed to have been rendered are of the kind for which a bankrupt’s attorney may be compensated. See In re Owl Drug Co., supra, at page 146. It was the duty of the court to allow a reasonable compensation for the service rendered. We will not disturb the allowance unless we determine that there has been an obvious miscarriage of justice. Roth v. Reich, 2 Cir., 164 F.2d 305, 311. For present purposes, we assume without deciding that findings of fact are required where a petition for allowance of fees is contested. There was here no question as to the kind and extent of the service rendered by Blonder, but only as to the reasonable compensation to be awarded for that service. Finding nothing in the record to the contrary, we assume that the bankruptcy court understood that this was the sole issue. It therefore seems to us that the quoted recital concerning Blonder’s claim amounts to a finding of fact that $250 constitutes reasonable compensation for the services indisputably rendered. This is an adequate finding of fact to support the decretal provision of the order dealing with Blonder’s claim. The allowance of $250 for the services rendered is indeed modest. Examination of the record, however, convinces us that the amount allowed is not so out of proportion to the services rendered as to warrant the conclusion that, there has been an obvious miscarriage, of justice. It is entirely possible that the court’s appraisal of Blonder’s esti mate as to the value of his services was adversely affected by what the court may have considered an obviously excessive claim. At any rate, the bankruptcy court was in a much better position than are we" }, { "docid": "21853634", "title": "", "text": "RULING ON REVIEW DAWKINS, Chief Judge. L. E. Creel III, Trustee in Bankruptcy for J’Ville Homes, Inc., has filed this petition for review of the judgment of the Referee on his application to reclaim, on petition and rule by Kenneth D. Boatman individually to sell five J’Ville units and refer the conflicting claims of title, liens, etc., to the proceeds, and for ranking of liens. The foregoing reaches us on a certificate of review. Basically, petitioner requests that we find additional facts besides those found by the Referee and also to find facts contrary to those found by the Referee. This is not the Court’s function in bankruptcy matters on review. General Order 47 provides that this Court shall accept the findings of the Referee unless they are clearly erroneous, or that the Referee’s decision will not be set aside unless there is plain error or abuse of discretion. 2 Collier § 27.05, pp. 1097 through 1100. We carefully have studied the entire record and are convinced that the Referee’s findings of fact are not clearly erroneous, but, on the contrary, amply are supported by the evidence presented. Petitioner contends that the units involved could not become immovable by nature unless the owner places the object upon the property. This would be true if we were concerned with Louisiana Civil Code Article 467. However, the applicable Article is 464: “Land and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.” The following jurisprudence stands for the proposition that, under Article 464, the owner need not place the object but anyone may do so, including the lessee, and if such is done, the building or other construction becomes immovable by nature. Lighting Fixtures Supply Co. v. Pacific Fire Insurance Co. of N. Y., 176 La. 499, 146 So. 35 (1933); Westwego Canal and Terminal Company v. Pizanie, 174 La. 1068, 142 So. 691 (1932), citing Vaughn v. Kemp, 4 La.App. 682; State Department of Highways v. Illinois Central RR Co., 256 So.2d 819 (La.App. 2d Cir., 1972). In answer to petitioner's" }, { "docid": "23267393", "title": "", "text": "Bankruptcy Court. Although we have jurisdiction to review the compensation, 11 U.S.C.A. § 47, we are reluctant to overturn the determination unless it can be shown that the allowance was arbitrary and unreasonable. See Silver v. Rosenberg, 2 Cir., 1944, 139 F.2d 1020; In re Ernst, 2 Cir., 1939, 107 F.2d 760; 3 Collier, Bankruptcy, § 62.12, pp. 1483— 1485 (14th Ed. 1941). We will not normally substitute our judgment for that of the referee and the Bankruptcy Court, see Silver v. Rosenberg, supra; In re Valentine, D.C.Md.1956, 139 F.Supp. 576, and we are not persuaded that we should reject their determinations of the proper fees. In recommending attorney’s fees, the referee, with knowledge of the difficulties encountered during the course of the bankruptcy proceedings, made a judgment based on various factors. In many instances, the application for allowance before us presents no more than a vague summary of the services rendered. We know little of the extent of the negotiations and obstacles overcome; we know nothing of the total amount of time devoted by the attorneys to the case during the period of receivership, an item of some significance. See Hammer v. Tuffy, 2 Cir., 1944, 145 F.2d 477. We are informed that the dividend accruing to unsecured creditors will be less than 30%, an amount which hardly permits gen erous fees. See Rosenberg v. United States, 2 Cir., 1957, 242 F.2d 141. We cannot say on this record that the rulings of the referee and the Bankruptcy Court with reference to these allowances were clearly erroneous rulings. Affirmed. . The referee and Bankruptcy Court in effect surcharged the auctioneer by setting compensation at a lesser amount than that withheld by the auctioneer when he turned over the gross receipts to the assignee for transmittal to the receiver and by requiring that the difforence be refunded. It is clear that the question before the referee and Bankruptcy Court was that of compensation in the first instance, not the question of whether the commissions withheld were within the bounds of propriety." }, { "docid": "16986722", "title": "", "text": "L.Ed. 777 (1930); Florida Trailer and Equipment Co. v. Deal, 284 F.2d 567, 94 A.L.R.2d 638 (5th Cir. 1960), 2 Collier, Bankruptcy, 1091,14th ed. ¶27.05. In the absence of a finding of abuse of discretion, this court may not substitute its own judgment for that of the Referee. In re Prudence Co., 98 F.2d 559 (2d Cir. 1938), cert. denied sub nom. Stein v. McGrath, 306 U.S. 636, 59 S.Ct. 485, 83 L.Ed. 1037 (1939). The findings of fact and conclusions of law made by the Referee in the order here under review adequately support the order, and there is nothing in the record to show that any of his findings of fact were clearly erroneous. Therefore, his findings may not be disturbed by the court. General Order 47 of the General Orders in Bankruptcy. See In re G. E. C. Securities, Inc., 223 F.Supp. 861, 863 (S.D.N.Y.1963), aff’d, 331 F.2d 655 (2d Cir. 1964); Margolis v. Nazareth Fair Grounds & Farmers Market, Inc., 249 F.2d 221, 223 (2d Cir. 1957). The order of the Referee dated December 6, 1965 is affirmed, and the petition of One Estate, Inc., for review of said order is hereby denied. It is so ordered. . Three quarters of petitioner’s 100-page brief is devoted to an attack on the Trustee on the ground that he was elected by and is subservient to the banks. If there is any merit to this contention, which does not appear from the record, it is sufficient to say that the question is not before the court in this proceeding. . No testimony was taken before the Referee and none was offered by anyone, including the petitioner. However, the uneontradicted history of the events which led up to the Agreement was fully set forth in the record in the Bankruptcy Court." }, { "docid": "14700530", "title": "", "text": "have at least ten days’ notice by mail of “all applications by receivers, ancillary receivers, marshals, trustees, committees, and attorneys for compensation from the estate for services rendered, specifying the amount and by whom made: * * * ”, such quoted provision makes an order awarding attorney’s fees subject to review only under the provisions of the 1960 amendment to § 39(c) of the Bankruptcy Act. From such premise appellants argue that since no petition for review of Referee Charleville’s order was taken within the ten day period, his order became final. Appellants concede that they have been unable to find any decision of trial or appellate courts supporting their views as to the effect of the 1938 amendment to § 58(a). Appellants likewise concede that the authorities cited and relied upon by the appellee support his position that the order in question is an administrative order subject to reconsideration and reexamination by the referee until the estate is closed. See Matter of Pottasch Bros. Co., Inc., 79 F.2d 613, 101 A.L.R. 1182 (2nd Cir. 1937); Fazakerly v. E. Kahn’s Sons Co., 75 F.2d 110 (5th Cir. 1935). As above noted, the hearing by Referee Charleville on appellants’ petition for compensation was informal. No issues of fact or law were framed, no testimony was taken, and no findings of fact or conclusions of law were made. In our view such order was purely an administrative order subject to reconsideration and rexamination by Referee Charleville or his successor in office, Referee Seymour, until the bankruptcy estates were closed. Referee Charleville’s order was not a final one to which the 1960 amendment to § 39(c) of the Bankruptcy Act applies. Appellants further contend that should we find that Referee Charleville’s order did not become final and was subject to reconsideration by Referee Seymour, that the orders made by Referee Seymour constitute an abuse of discretion. We are unable to agree. We have examined the record in this case. We find that the findings of fact of Referee Seymour are fully supported. We are bound by the rule that the findings of fact" }, { "docid": "17885447", "title": "", "text": "Court will not be disturbed on appeal except on a clear showing of mistake, is of such universal recognition and uniform application in the federal courts as not to require citation of authority.” Clements v. Cop-pin, 9 Cir., 72 F.2d 796, 798. “Appellants concede that concurrent findings of master and judge upon conflicting evidence will not be set aside on appeal on anything less than a demonstration of plain mistake * * In re Nathanson Bros. Co., 6 Cir., 64 F.2d 912, 913. “Under such circumstances, the findings of fact of the special master, so far as they depend ‘upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, * * * must be treated as unassailable.’ Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 239, 39 L.Ed. 289.” Southern Pac. Co. v. Western Pacific California R. Co., 9 Cir., 61 F.2d 732, 734. In Ott v. Thurston, 9 Cir., 1935, 76 F.2d 368, 369, the court had before it an appeal from the District Court confirming a referee’s report, and overruling and denying appellant’s petition for review. Citing from the opinion: “Another error stressed by appellant is that the judge of the District Court erred in holding that where the evidence introduced before the referee in bankruptcy was conflicting, he was not at liberty to disregard the referee’s findings. In that connection, the District Court stated in its opinion: ‘The evidence was at least conflicting, the District Court is not at liberty to disregard the Referee’s finding for they find sufficient support in the evidence.’ The court was here expressing the general rule of practice on review or appeal. “ ‘It is the recognized rule of the federal courts — and especially in matters of bankruptcy — that on review of the decision of a referee, based upon his conclusions on questions of fact, the court will not reverse his findings unless the same are so manifestly erroneous as to invoke the sense of justice of the court.’ In re Stout, D.C.Mo., 109 F. 794. See" }, { "docid": "10318051", "title": "", "text": "Referee was not in office during all of the time in which the services of the Attorney were rendered. As was held by the Court in In re Valentine, 139 F.Supp. 576, 577 (D.C.Md.1956): “As a rule discretion in the fixing of fees will be exercised primarily by the referee, subject, however, to review and reconsideration by the district judge. The referee’s discretion and judgment, if free from error of law and sufficiently supported by the evidence, is entitled to great weight, even though he was not in office when the services were rendered. Collier on Bankruptcy, 14th ed., sec. 62.12, pages 1481-1483.” The reasons why such discretion is lodged in the Referee were stated by Judge Sanborn, then a District Judge, in In re American Range & Foundry Co., 41 F.2d 845, 847-848 (D.C.Minn.1926): “ * * * The business of fixing attorneys’ fees in bankruptcy matters is one peculiarly for the referee. If this court should make it a practice to pass upon the question of the reasonableness of the allowances made by referees for attorneys’ fees, it would mean that it would have to pass upon the question in connection with almost every large bankruptcy matter and a great many of the small ones. To leave the question to the referee tends to create uniformity of charges and allowances, while to repass upon the question here and substitute the judgment of this court for that of the referee would tend to create inequality and confusion. There is nothing more difficult nor embarrassing than to appraise the value of professional services.' The appraisal must be based largely upon the personal opinion of the one who makes it. Even though an occasional injustice be done, the policy of the court must be to leave the determination of the question of the reasonable value of such services to the judgment of the referee.” The discretion of the Referee in fixing the quantum of fees is limited in that the fees which he allows must be “reasonable.” In re Owl Drug Co., 16 F.Supp. 139 (D.C.Nev.1936). But the term “reasonable” when" }, { "docid": "17885448", "title": "", "text": "from the District Court confirming a referee’s report, and overruling and denying appellant’s petition for review. Citing from the opinion: “Another error stressed by appellant is that the judge of the District Court erred in holding that where the evidence introduced before the referee in bankruptcy was conflicting, he was not at liberty to disregard the referee’s findings. In that connection, the District Court stated in its opinion: ‘The evidence was at least conflicting, the District Court is not at liberty to disregard the Referee’s finding for they find sufficient support in the evidence.’ The court was here expressing the general rule of practice on review or appeal. “ ‘It is the recognized rule of the federal courts — and especially in matters of bankruptcy — that on review of the decision of a referee, based upon his conclusions on questions of fact, the court will not reverse his findings unless the same are so manifestly erroneous as to invoke the sense of justice of the court.’ In re Stout, D.C.Mo., 109 F. 794. See also In re Noyes Bros., 1 Cir., 127 F. 286. “As stated in O’Brien’s Manual of Federal Appellate Procedure (1934 Cum.Supp., p. 63): ‘The Court of Appeals for the Ninth Circuit, quotes with approval the language of Remington on Bankruptcy, footnote to Sec. 3871, 4th Ed., Vol. 8, p. 227: “And it is especially true that the reviewing courts will not disturb findings of fact except for manifest error, where both the referee and the district judge have coincided.” And the findings of a chancellor, based on testimony taken in open court, are presumptively correct and will not be disturbed on appeal, save for obvious error of law or serious mistake of fact.’ Neece v. Durst, 9 Cir., 61 F.2d 591, 593; Swift v. Higgins, 9 Cir., 72 F.2d 791, 796; Exchange Nat. Bank [of Spokane] v. Meikle, 9 Cir., 61 F.2d 176, 179.” It is interesting to note that appellants’ counsel concludes his discussion of these cases with this statement: “The foregoing citations declare for the principle that an honest bankrupt shall not be" } ]
661720
Peterson understood the risks associated with prescribing Adde-rall and voluntarily proceeded with an educated course of conduct.” Because Shire adequately warned Dr. Peterson of the risks associated with Adderall, and because Ehlis is unable to establish Adde-rall’s allegedly insufficient warnings proximately caused his symptoms, the learned intermediary doctrine bars legal responsibility for the effect Adderall had on Ehlis. See Christopher, 53 F.3d at 1192. D. Other Claims Because we conclude the learned intermediary doctrine bars all recovery, we do not address Moreno’s preemption argument or Shire’s cross-appeal arguments. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (a fundamental rule of judicial restraint is courts must consider nonconstitutional grounds for decisions before reaching constitutional questions); REDACTED Shire’s motion to dismiss the appeal is otherwise denied. See 8th Cir. R. 47B. III. CONCLUSION For the reasons stated herein, we affirm the district court’s grant of summary judgment to Shire. . The appellants state that, because Ehlis assigned his claims to Moreno to hold in trust for Tyra Lynn Ehlis's siblings, only Moreno is pursuing this appeal. . The Honorable Karen K. Klein, United States Magistrate Judge for the District of North Dakota, to whom this case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c) (2000). .According to the appellee, Shire Richwood Inc., the defendant in the district court, is now known as Shire US, Inc. . This
[ { "docid": "7021786", "title": "", "text": "predicate offense upon which Doe bases her VAWA claim is defined by Iowa Code section 709.15. Doe claims that Father Hartz’s alleged sexual advances violated Iowa’s criminal law against sexual exploitation by a counselor or therapist. See Iowa Code Ann. § 709.15 (West 1993). Iowa law prohibits a counselor or therapist who provides mental health services from engaging in any sexual conduct with a patient or client. See id. II. The defendants are appealing the District Court’s order denying their motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). We review de novo a district court’s denial of a motion to dismiss, viewing the allegations in the complaint in the light most favorable to the plaintiff. See Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1081, 137 L.Ed.2d 216 (1997). We will reverse the district court if it is clear that no relief could be granted even though the plaintiff could prove facts consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). Thus, only if there is some “insuperable bar to relief’ will we reverse the District Court’s denial of the motion to dismiss. See Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974). Defendants argue that the District Court should have granted their motion to dismiss based upon the First Amendment, the unconstitutionality of VAWA, and Doe’s failure to state a claim. A fundamental rule of judicial restraint requires us to consider nonconstitu-tional grounds for a decision prior to reaching any constitutional questions. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996-97, 86 L.Ed.2d 664 (1985). Accordingly, we will first consider whether Doe has stated a claim under VAWA. We reach the constitutional questions only if we determine Doe has properly stated a claim under the Act. A. To state a claim for a civil cause of action under VAWA, a plaintiff must allege that the defendant committed a predicate offense — a crime of violence. See 42 U.S.C. § 13981(c). Doe" } ]
[ { "docid": "17813966", "title": "", "text": "with increased suicidality and violence. Thus, the Court believes that there are genuine issues of material fact whether Eli Lilly acted with reckless disregard for the rights of Mark Rimbert, or with willfulness, wantonness, maliciousness, oppressiveness, or fraudulently. A factfinder may infer from Eli Lilly’s internal documents that it was aware of an alleged problem with Prozac, suicidality, and violence in 1990 before the 2003 Prozac warnings were issued and before events in 2003 underlying this lawsuit occurred. Because there is a genuine issue of material fact whether Eli Lilly acted with the requisite intent, Eli Lilly is not entitled to summary judgment on Mark Rimbert’s claims for punitive damages. IT IS ORDERED that Defendant Eli Lilly and Company’s Motion to Summary Judgment on All Claims is granted in part and denied in part. Eli Lilly and Company is entitled to summary judgment on Plaintiff Mark Gilbert Rimbert’s warranty and negligence per se claims. The Court will deny Eli Summary Judgment on all of Mark Rimbert’s remaining claims for negligence, strict liability, and punitive damages. . Mark Rimbert objects to Eli Lilly's \"statements about Dr. Hochstadt’s knowledge from other sources about the risks of Prozac-induced suicidality” as \"irrelevant.\" Plaintiff's Response Memorandum in Opposition to Defendant's Motion for Summary Judgment on All Claims at 2, filed April 17, 2008 (Doc. 74)(\"Response”). Mark Rimbert asserts that, “[i]n this failure to warn case, the key is whether there was any warning whatsoever from Lilly itself that their [sic] drug could trigger or increase suicidality in any person.” Id. . The Court’s citations to the transcript of the hearing refer to the Court Reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers. . Eli Lilly also cites Ehlis v. Shire Richood, Inc. 367 F.3d 1013, 1017 (8th Cir.2004)( North Dakota has adopted section 402A of the Restatement (Second.) of Torts, from which the learned intermediary evolves.'’)(underlining added); Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001)(explaining that the Supreme Court of Oklahoma relied upon comment k to § 402A of the Restatement (Second) of Tons" }, { "docid": "6634242", "title": "", "text": "a groundless claim does not invoke federal jurisdiction, Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1145 (7th Cir.1997), the district judge must dismiss that defendant before ruling on the plaintiffs motion to remand. Taking the first of the plaintiffs two arguments for why complete diversity is absent, we consider whether the judge was right to think that the claim against Niemann had so little merit that Niemann’s joinder as a defendant was fraudulent in the sense just explained. The answer turns on the applicability to a pharmacy of the “learned intermediary” doctrine, a common law doctrine, in force as of 2002 in all but two states, Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016-17 (8th Cir.2004); In re Norplant Contraceptive Products Liability Litigation, 215 F.Supp.2d 795, 806-09 (E.D.Tex.2002) — and Illinois is not one of the two. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (1987); Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 262 Ill.Dec. 815, 766 N.E.2d 1118, 1127 (2002). As usually formulated (the significance of the qualification “usually” will become clear shortly), the doctrine excuses the manufacturer of a prescription drug from having to warn consumers of the drug’s adverse side effects; it need warn only physicians, so that armed with the warning they can make a medical decision to pre scribe or not to prescribe the drug for a particular patient. E.g., Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 207 (5th Cir.2008); In re Prempro Products Liability Litigation, 514 F.3d 825, 830 (8th Cir.2008); Pittman v. Upjohn Co., 890 S.W.2d 425, 429 (Tenn.1994). The prescribing physician is the “learned intermediary” — the medical professional who, equipped with the knowledge imparted to him by the drug’s manufacturer, determines, weighing benefit against risk, the drug’s suitability for a particular patient. Niemann is (so far as bears on this case) a pharmacy, and the plaintiff argues that therefore, since it is not a manufacturer, it is not insulated by the doctrine" }, { "docid": "23401649", "title": "", "text": "dangerous weapon. We find no support for that contention. The plain wording of § 3559(c)(3)(A) cannot reasonably be interpreted to preclude a district court from considering a defendant’s testimony before it, under oath, regarding the defendant’s commission of prior offenses. We are aware of no court that has held or suggested that the statute contains such a limitation. Nor does the Constitution bar a court from considering a defendant’s trial testimony about prior offenses when imposing sentence for the present offense. Defendant had the right to remain silent but instead chose to testify, and he did not object to the questions quoted at the beginning of this opinion. A district court constitutionally can rely on a defendant’s volunteered trial testimony during the sentencing phase of a trial. Therefore, the district court did not err as Defendant claims. The dissent faults us for not reaching the constitutional issue of whether the “clear and convincing” burden established by § 3559(c)(3) infringes on Defendant’s due process rights. The dissent’s argument contravenes two well-established jurisprudential doctrines. First, to decide the constitutional question here would violate the maxim that courts are not “to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905). “Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision. This is a fundamental rule of judicial restraint.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (citation and internal quotation marks omitted); see also Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.”); Meinhold v. United States Dep’t of Defense, 34 F.3d 1469, 1474 (9th Cir.1994) (stating those principles and holding that it is error to pass over a noncon-stitutional claim). A corollary also is well established: that harmless-error" }, { "docid": "22136986", "title": "", "text": "filing- by such State action.” Lott contends that the denial of access to his legal files amounts to a due process violation under the Fourteenth Amendment. The state contends that Lott’s statutory tolling argument is not cognizable on appeal because he never raised this issue below. But, as we observed in United States v. Flores-Payon, 942 F.2d 556 (9th Cir.1991), an argument not presented to the district court can nonetheless still be raised on appeal under certain limited circumstances, including when “the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” Id. at 558; accord United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.2001). In this case, the issue of equitable tolling was squarely raised in the district court, and both the equitable and statutory tolling arguments must rely on the same set of operative facts. The only question left, therefore, is whether Lott’s allegations amount to a due process violation. This court has held that a “temporary deprivation of an inmate’s legal materials does not, in all cases, rise to a constitutional deprivation.” Vigliotto v. Terry, 873 F.2d 1201, 1202-03 (9th Cir.1989) (ruling that a “three day deprivation does not rise to constitutional proportions”). However, until the issue of equitable tolling has been resolved by the district court, we are hesitant to conclude that a prisoner subject to a temporary transfer for an appearance in a civil proceeding has a constitutional right to maintain ready access to all of his legal files pertaining to unexhausted habeas claims. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (“Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision. This is a fundamental rule of judicial restraint.” (quotations and citations omitted)); United States v. Kaluna, 192 F.3d 1188, 1197 (9th Cir.1999) (en banc) (restating the “well-established” maxim that “courts are not ‘to decide questions of a constitutional nature unless absolutely necessary to a decision of the case’ ”) (quoting Burton v." }, { "docid": "17730988", "title": "", "text": "SUMMARY ORDER Appellant Barry McClamrock, proceeding pro se, appeals from the district court’s judgment granting the summary judgment motion of Eli Lilly and Company (“Eli Lilly”) in his products liability action. The panel has reviewed the briefs and the record in this appeal and agrees unanimously that oral argument is unnecessary because “the facts and legal arguments [have been] adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Fed. R.App. P. 34(a)(2)(c). We assume the parties’ familiarity with the facts, the procedural history of the case, and the issues on appeal. We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Here, for substantially the same reasons as those stated in its decision, the district court properly applied North Carolina law to McClamrock’s claims, and properly concluded that, under the learned intermediary doctrine, McClamrock could not establish that Eli Lilly’s alleged failure to warn proximately caused any injuries resulting from Dr. James Cockerill’s decision to prescribe Zyprexa to McClamrock in December 1998. Additionally, while we agree with McClamrock that the court should have conducted a similar analysis with respect to Dr. Warren Williams’s decision to prescribe Zyprexa, we conclude that this omission was harmless. See Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir.2010) (“We may affirm the district court’s decision on any ground appearing in the record.”). Because McClamrock would have the burden of establishing proximate cause at trial, see N.C. Gen.Stat. § 99B-5(a), his failure to offer any evidence that Dr. Williams was unaware that diabetes was a risk associated with Zy-prexa when he prescribed it warranted granting summary judgment in favor of Eli Lilly, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (D.C.Cir.1986). Moreover, there was indirect evidence suggesting that Dr. Williams was, in fact," }, { "docid": "19955037", "title": "", "text": "to meet in February 2004 to discuss the possible relationship between antidepressants and suicidal thinking in pediatric patients. (UF ¶ 61.) Following that meeting and in conformance with the committee’s final recommendations of September 2004 for class-wide labeling changes, on October 15, 2004, the FDA issued a Public Health Advisory and letter directing all manufacturers to add a “black box” warning and expanded warning statements to the labeling of all antidepressant medications describing the increased risk of suicidality in children and adolescents. (UF ¶ 68.) Thus, it was not until over seven years after Benjamin’s death that the FDA required labeling changes to warn of the risk plaintiffs assert SB/GSK should have implemented prior to February 1997. Thus, the record indicates that the type of warning which plaintiffs claim SB/GSK should have included in its Paxil label had been considered and rejected by the FDA because such a warning was not supported by reasonable evidence at the time of Benjamin’s death. A state law determination, to the contrary, that such a warning was required creates a conflict between federal and state law and imposes inconsistent federal and state obligations, thus warranting a finding of preemption. A number of other courts have found similarly. For example, in Tucker v. SmithKline Beecham Corp., 2007 WL 2726259, at *10 (S.D.Ind. Sept. 19, 2007), the court held that “[bjecause [plaintiffs] state law [failure-to-warn] claims seeking to impose liability on GSK represent an obstacle to the FDA’s efforts to ensure the proper use of Paxil, [the] claims are preempted;” see also Sykes v. Glaxo-SmithKline, 484 F.Supp.2d 289, 318 (E.D.Pa.2007) (holding the plaintiffs’ failure-to-warn claims, regarding certain pediatric vaccines, conflict with the FDCA, because the warnings “[were] not scientifically supported and would have been false and misleading under federal law”); accord Dobbs v. Wyeth Pharmaceuticals, 530 F.Supp.2d at 1289 (W.D.Okla.2008) (same Effexor); Colacicco v. Apotex, Inc., 432 F.Supp.2d 514 (E.D.Pa.2006) (same Paxil); Dusek v. Pfizer, Inc., 2004 WL 2191804, at *8-10 (S.D.Tex. Feb. 20, 2004) (same Zoloft); Needleman v. Pfizer, Inc., 2004 WL 1773697, at *5 (N.D.Tex. Aug. 6, 2004) (same Zoloft); Ehlis v. Shire Richwood," }, { "docid": "17813967", "title": "", "text": ". Mark Rimbert objects to Eli Lilly's \"statements about Dr. Hochstadt’s knowledge from other sources about the risks of Prozac-induced suicidality” as \"irrelevant.\" Plaintiff's Response Memorandum in Opposition to Defendant's Motion for Summary Judgment on All Claims at 2, filed April 17, 2008 (Doc. 74)(\"Response”). Mark Rimbert asserts that, “[i]n this failure to warn case, the key is whether there was any warning whatsoever from Lilly itself that their [sic] drug could trigger or increase suicidality in any person.” Id. . The Court’s citations to the transcript of the hearing refer to the Court Reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers. . Eli Lilly also cites Ehlis v. Shire Richood, Inc. 367 F.3d 1013, 1017 (8th Cir.2004)( North Dakota has adopted section 402A of the Restatement (Second.) of Torts, from which the learned intermediary evolves.'’)(underlining added); Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001)(explaining that the Supreme Court of Oklahoma relied upon comment k to § 402A of the Restatement (Second) of Tons in adopting the learned intermediary doctrine), . The Court notes that other courts have rejected New Jersey’s exception to the learned- intermediary doctrine. See Beale v. Biomet, Inc., 492 F.Supp.2d 1360, 1376 (S.D.Fla.2007); Colacicco v. Apotex, Inc., 432 F.Supp.2d 514, 547 n. 30 (E.D.Pa.2006), aff'd on other grounds, 521 F.3d 253 (3d Cir.2008); Cowley v. Abbott Labs., Inc., 476 F.Supp.2d 1053, 1060 n. 4 (W.D.Wis.2007); In re Meridia Prods. Liab. Litig., 328 F.Supp.2d 791, 812 n. 19 (N.D.Ohio2004); In re Norplant Contraceptive Prods. Liab. Litig., 215 F.Supp.2d at 811-12. The Court notes other courts have limited the application of New Jersey’s rule. See Appleby v. Glaxo Wellcome, Inc., No. Cv-0062 (RBK), 2005 WL 3440440 at *5 (D.N.J. December 13, 2005); Heindel v. Pfizer, Inc., 381 F.Supp.2d 364, 384 (D.N.J.2004). . The Court notes that Eli Lilly argues other jurisdictions have cited Perfetti v. McGhan Med., 99 N.M. 645, 662 P.2d 646, 651 (Ct.App.1983), and Hines v. St. Joseph's Hosp., 86 N.M. 763, 764, 527 P.2d 1075, 1076 (Ct.App.1974), for the proposition that New Mexico has" }, { "docid": "13120257", "title": "", "text": "an action for negligent failure to warn, this court has held, “if a user is already aware of the dangers, the lack of warning is not the proximate cause of the injury.” Crook v. Kaneb Pipe Line Operating P’ship, 231 F.3d 1098, 1103 (8th Cir.2000). As such, the focus is on whether or not Rush was aware of the dangers posed by the Wyeth drugs, Premarin (with progestin) and Prempro. Arkansas recognizes the existence of the Learned Intermediary Doctrine. See Hill v. Searle Labs., 884 F.2d 1064, 1070 (8th Cir.1989). Under this doctrine, a physician acts as a learned intermediary between a pharmaceutical manufacturer and the physician’s patient. As such, “a warning to the physician is deemed a warning to the patient.” Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016 (8th Cir.2004) (internal brackets omitted). “[Ajdequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly.” Id. While the Learned Intermediary Doctrine provides that adequate warning to a patient’s physician can suffice to defeat a patient’s failure to warn claim,' this doctrine does not preclude informing a patient directly. “[I]f.a user is already aware of the dangers, the lack of warning is not the proximate cause of the injury.” Crook, 231 F.3d at 1103. The goal is to assure either the patient or the patient’s physician, as a proxy for the patient, is aware of the dangers. If the patient is independently aware of the dangers, then a failure of the manufacturer to warn adequately of the danger is irrelevant. The district court’s instruction accurately reflects Arkansas law and did not prejudice Rush. Rush’s assertion, that this portion of the law created “a total bar to recovery” under the doctrines of assumption of risk and contributory negligence, is incorrect. Rush’s claim is a negligence claim based upon Wyeth’s failure to warn. The district court’s jury instruction accurately reflected Arkansas law because the jury was only directed to find for Wyeth if the jury determined Rush was aware of the dangers before her diagnosis with breast cancer. The trial court did not abuse" }, { "docid": "21227808", "title": "", "text": "irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest.” Shire U.S. Inc. v. Barr Labs. Inc., 329 F.3d 348, 352 (3d Cir.2003). We review the denial of a preliminary injunction for abuse of discretion. However, “any determination that is a prerequisite to the issuance of an injunction is reviewed according to the standard applicable to that particular determination.” Id. (internal ellipses and citation omitted). Thus, we review a district court’s factual findings for clear error and its legal conclusions de novo. The District Court denied injunctive relief only on the basis that McNeil did not demonstrate a likelihood of success on the merits, and McNeil raises appellate arguments limited to that basis, so we shall similarly limit our analysis in this opinion. III. The Lanham Act, 15 U.S.C. § 1125(a), establishes a cause of action for trade dress infringement. TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 28-29, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). “ ‘Trade dress’ refers to the design or packaging of a product which serves to identify the product’s source.” Shire US, 329 F.3d at 353. It is “the total image or overall appearance of a product, and includes, but is not limited to, such features as size, shape, color or color combinations, texture, graphics, or even a particular sales technique.” Rose Art Indus., Inc. v. Swanson, 235 F.3d 165, 171 (3d Cir.2000). The purpose of trade dress protection is to “secure the owner of the trade dress the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.” Shire US, 329 F.3d at 353 (internal brackets and citation omitted). To establish trade dress infringement under the Lanham Act, a plaintiff must prove that (1) the allegedly infringing design is non-functional; (2) the design is inherently distinctive or has acquired secondary meaning; and (3) consumers are likely to confuse the source of the plaintiffs product with that of the defendant’s product. Id. In the case at bar, the District Court" }, { "docid": "17730989", "title": "", "text": "McClamrock’s claims, and properly concluded that, under the learned intermediary doctrine, McClamrock could not establish that Eli Lilly’s alleged failure to warn proximately caused any injuries resulting from Dr. James Cockerill’s decision to prescribe Zyprexa to McClamrock in December 1998. Additionally, while we agree with McClamrock that the court should have conducted a similar analysis with respect to Dr. Warren Williams’s decision to prescribe Zyprexa, we conclude that this omission was harmless. See Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir.2010) (“We may affirm the district court’s decision on any ground appearing in the record.”). Because McClamrock would have the burden of establishing proximate cause at trial, see N.C. Gen.Stat. § 99B-5(a), his failure to offer any evidence that Dr. Williams was unaware that diabetes was a risk associated with Zy-prexa when he prescribed it warranted granting summary judgment in favor of Eli Lilly, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (D.C.Cir.1986). Moreover, there was indirect evidence suggesting that Dr. Williams was, in fact, aware of the risk of diabetes associated with Zyprexa. Namely, there was evidence demonstrating that Dr. Cockerill was aware of the risk at issue when he prescribed Zyprexa but concluded that the drug’s benefits outweighed its risks in McClamrock’s case, and that Dr. Cockerill discussed his initial decision to prescribe Zyprexa to McClamrock with Dr. Williams. We have considered McClamrock’s remaining arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED. Additionally, McClamrock’s motion “seek[ing] his unenumerated rights of jury trial per Amendment 7 and 14 in the U.S. Constitution” is DENIED. To the extent that this motion is premised on McClamrock’s assertion that he was deprived of his Seventh Amendment right to a jury trial, that right is not violated by an award of summary judgment where, as here, there are no disputed issues of material fact. See Benjamin v. Traffic Exec. Ass’n E. R.R., 869 F.2d 107, 115 n. 11 (2d Cir.1989)." }, { "docid": "6634241", "title": "", "text": "requirement of complete diversity. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 763 n. 9 (7th Cir.2009); Schwartz v. State Farm Mutual Automobile Ins. Co., 174 F.3d 875, 878-79 (7th Cir.1999); Mayes v. Rapoport, 198 F.3d The plaintiffs third, and principal, ground for remanding this case to state court is absence of complete diversity of citizenship. She makes two alternative arguments. The first is that the judge erred in dismissing Niemann as a defendant (if Niemann is retained, diversity is not complete); the second argument is that if he didn’t err in this respect the case falls into an exception to an exception to the requirement of complete diversity: the “common defense” exception to the “fraudulent joinder” exception to that requirement. 457, 461 (4th Cir.1999). Like many legal doctrines, “fraudulent joinder” is misnamed, since, as the cases we’ve just cited point out, proof of fraud, though sufficient, is not necessary for retention of federal jurisdiction — all that’s required is proof that the claim against the nondiverse defendant is utterly groundless, and as a groundless claim does not invoke federal jurisdiction, Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1145 (7th Cir.1997), the district judge must dismiss that defendant before ruling on the plaintiffs motion to remand. Taking the first of the plaintiffs two arguments for why complete diversity is absent, we consider whether the judge was right to think that the claim against Niemann had so little merit that Niemann’s joinder as a defendant was fraudulent in the sense just explained. The answer turns on the applicability to a pharmacy of the “learned intermediary” doctrine, a common law doctrine, in force as of 2002 in all but two states, Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016-17 (8th Cir.2004); In re Norplant Contraceptive Products Liability Litigation, 215 F.Supp.2d 795, 806-09 (E.D.Tex.2002) — and Illinois is not one of the two. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (1987); Happel" }, { "docid": "14924181", "title": "", "text": "the district court accepted — that her claims of battery, assault, cruel treatment, and unlawful search and seizure were excessive force claims under both state tort law and federal constitutional law. Because the validity of Curran’s conviction for battery might have affected the merits of at least some of her claims, the district court stayed the case while she unsuccessfully appealed her conviction. When this federal case resumed, Ale-shire moved for summary judgment on all of Curran’s claims. Although it granted the motion on most of the claims, the district court denied summary judgment to Aleshire on (1) the Section 1983 excessive force claims, (2) the parallel state law claims of excessive force and battery and assault, and (3) punitive damages. As to the excessive force claims under federal law, the district court rejected Ale-shire’s arguments that the claims were foreclosed by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Even if the state criminal proceeding established for purposes of this federal civil case that Curran struck Aleshire (an issue on which we express no opinion for lack of jurisdiction), the district court found that a fact issue existed on whether sufficient time had passed between Cur-ran’s battery and Aleshire’s first use of force to render the latter unreasonable. The district court next found that Curran’s alleged injuries were not de minimis, although it noted this question was a “close call.” ROA 1890-91. The district court then conducted the qualified immunity analysis to assess whether Aleshire violated clearly established law. It concluded that the qualified immunity defense required the resolution of disputed fact issues, a task the district court could not perform on summary judgment. These disputed fact issues included whether Cur-ran was resisting, threatening others, or attempting to escape when Aleshire used force against her. In the context of this interlocutory appeal, Aleshire challenges only the last of these rulings: that Ale-shire’s qualified immunity defense turns on fact issues which cannot be resolved through summary judgment. III. Aleshire argues that he is entitled to qualified immunity, even assuming the existence of disputed facts, because" }, { "docid": "19955038", "title": "", "text": "a conflict between federal and state law and imposes inconsistent federal and state obligations, thus warranting a finding of preemption. A number of other courts have found similarly. For example, in Tucker v. SmithKline Beecham Corp., 2007 WL 2726259, at *10 (S.D.Ind. Sept. 19, 2007), the court held that “[bjecause [plaintiffs] state law [failure-to-warn] claims seeking to impose liability on GSK represent an obstacle to the FDA’s efforts to ensure the proper use of Paxil, [the] claims are preempted;” see also Sykes v. Glaxo-SmithKline, 484 F.Supp.2d 289, 318 (E.D.Pa.2007) (holding the plaintiffs’ failure-to-warn claims, regarding certain pediatric vaccines, conflict with the FDCA, because the warnings “[were] not scientifically supported and would have been false and misleading under federal law”); accord Dobbs v. Wyeth Pharmaceuticals, 530 F.Supp.2d at 1289 (W.D.Okla.2008) (same Effexor); Colacicco v. Apotex, Inc., 432 F.Supp.2d 514 (E.D.Pa.2006) (same Paxil); Dusek v. Pfizer, Inc., 2004 WL 2191804, at *8-10 (S.D.Tex. Feb. 20, 2004) (same Zoloft); Needleman v. Pfizer, Inc., 2004 WL 1773697, at *5 (N.D.Tex. Aug. 6, 2004) (same Zoloft); Ehlis v. Shire Richwood, Inc., 233 F.Supp.2d 1189, 1197 (D.N.D.2002) (same Adderall); In re Bextra and Celebrex Mktg. Sales Pracs. & Prods. Liab. Litig., 2006 WL 2374742, at *9 (N.D.Cal. Aug. 16, 2006) (same Celebrex); Conte v. Wyeth, Inc., 2006 WL 2692469, at *6 (Cal.Sup.Ct. Sept. 14, 2006) (same metroclopramide). Here, plaintiffs assert claims based on the failure to include a warning unsubstantiated by reasonable evidence, and thus, create a direct conflict with federal law. Because plaintiffs assert claims based on a type of warning which the FDA considered and rejected due to lack of reasonable evidence during the relevant time period, this case presents the precise conflict that courts have previously identified. Nevertheless, plaintiffs maintain that the FDA did not appreciate the necessity for a suicidality warning earlier because SB obscured or falsely stated its data submitted to the FDA in 1989 and 1991. According to plaintiffs, when analyzed correctly, without including pre-baseline run-in events as if they were post-baseline events, the net result is that patients on Paxil have a statistically significant greater than eight-fold increase in" }, { "docid": "22116931", "title": "", "text": "712, 713 (3d Cir.1939)); Contractor Industries v. Zerr, 241 Pa.Super. 92, 97, 359 A.2d 803, 805 (1976); J. Calamaria J. Perillo, The Law of Contracts ch. 22 (3d ed. 1987); Restatement (Second) of Contracts § 178 et seq. (1979). We need not dwell on this form of relief, however, because ETI has, despite the import of the relief sought in its complaint, unequivocally rejected any relief that would require rescinding or voiding the agreements. See Appellant’s Supplemental Memorandum at 20. However, before we arrive at the ultimate relief to which ETI may be entitled, it would appear prudent to determine the validity of ETI’s claims. If, as we have intimated, the release which ETI executed in concluding the Teleprompter litigation bars ETI’s claims, it will be unnecessary to reach the issue of what relief may be granted. III. Because this matter arises on summary judgment, ETI and the City having moved and cross-moved, and the district court having granted summary judgment for the City, we are obliged to examine the summary judgment motion and supporting documents as they pertain to the release issue. We do so for two reasons. First and foremost, the release, having been pleaded as an affirmative defense by the City, is obviously a nonconstitutional ground for resolving this case. As such, we should, if possible, focus on such a ground for disposition of this proceeding. We have been instructed as a matter of established federal jurisprudence, that a court faced with both constitutional and nonconstitutional claims must address the nonconstitutional claims first, if doing so will enable the court to avoid a constitutional confrontation. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2998, 86 L.Ed.2d 664 (1985); Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 2199, 68 L.Ed.2d 693 (1981); Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297 U.S. 288, 346-49, 56 S.Ct. 466, 482-84, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); United States v. Clemons, 843 F.2d 741, 749-50 (3d Cir.1988). As Justice Bran-déis stated over half" }, { "docid": "23028215", "title": "", "text": "relevant to the district court’s summary judgment determination involved his own understanding and perception of the warning label as Stahl’s treating physician. In that capacity, Dr. Claiborne was testifying as to whether the Lamisil package insert made him aware of the risks involved in prescribing Lamisil at the time that he treated Stahl. This portion of Dr. Claiborne’s testimony does not constitute an expert assessment and is related to matters within the scope of Dr. Claiborne’s personal knowledge. It is appropriate for a district court to consider such testimony in evaluating a motion for summary judgment. See Fed.R.Civ.P. 56(e). We turn now to the substance of Stahl’s inadequate warning claims. Louisiana applies the “learned intermediary doctrine” to products liability claims involving prescription drugs. Under this doctrine, a drug manufacturer discharges its duty to consumers by reasonably informing prescribing physicians of the dangers of harm from a drug. Anderson, 831 F.2d at 93. This court has acknowledged that there is a two-prong test governing inadequate-warning claims under the LPLA when the learned intermediary doctrine is applicable. First, the plaintiff must show that the defendant failed to warn (or inadequately warned) the physi cian of a risk associated with the product that was not otherwise known to the physician. Willett v. Baxter Int’l Inc., 929 F.2d 1094, 1098 (5th Cir.1991). Second, the plaintiff must show that this failure to warn the physician was both a cause in fact and the proximate cause of the plaintiffs injury. Id. Because we find that Stahl has failed to raise a genuine issue of material fact regarding the adequacy of the warnings contained in the Lamisil package insert, we reach only the first of these questions. The Adequacy of the Warnings Addressing Liver Dysfunction and Cholestatic Hepatitis Stahl’s first inadequate warning claim is that the Lamisil package insert inadequately informed his treating physician of the risk of liver dysfunction and hepatitis associated with Lamisil use. While Stahl acknowledges that the “WARNINGS” section of the 1997 package insert specifically indicated that “[r]are cases of symptomatic hepatobiliary dysfunction including choles-tatic hepatitis have been reported” and that “treatment with" }, { "docid": "22860640", "title": "", "text": "Cir.1996). In sum, Gaul does not meet his burden under Shiring because his proposed accommodation was unreasonable as a matter of law. Therefore, Gaul is not a “qualified individual” under the ADA, and AT & T’s alleged failure to investigate into reasonable accommodation is unimportant. See Mengine, 114 F.3d at 420 (quoting Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997)). Accordingly, the district court properly granted summary judgment as to Gaul’s ADA claim. Having concluded that Gaul’s proposed accommodation was unreasonable as a matter of law under the ADA, it follows that his NJLAD claim must also fail. See Ensslin v. Township of North Bergen, 275 N.J.Super. 352, 364, 646 A.2d 452, 458 (App.Div.1994) (New Jersey courts considering reasonable accommodation under NJLAD look to case law interpreting federal law on same point) (citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 497 n. 3, 446 A2d 486, 493 n. 3 (1982)). It also follows that plaintiffs remaining state law claims (i.e., breach of contract, breach of implied covenant of good faith and fair dealing, and constructive discharge) must also fail because they too are based on defendant’s alleged failure to provide reasonable accommodations. Accordingly, the district court properly granted summary judgment as to plaintiffs state law claims. IV. The February 21, 1997, order of the district court will be affirmed. . The district court rejected AT & T’s alternative argument that Gaul’s NJLAD claim must fail because he did not present any competent expert medical evidence that he was handicapped at the time he stopped working at AT & T. The court found that, for purposes of the summary judgment motion, \"the testimony and documentary evidence by plaintiff's treating physician, including that by defendant's own physicians, [was] sufficient to establish that Gaul does in fact suffer from stress and depressive disorders.” Gaul, 955 F.Supp. at 349. Although AT & T continues to press this argument on appeal, we need not reach it because we also conclude that Gaul’s proposed accommodation was unreasonable as a matter of law. See infra. . Although Shiring interpreted the Rehabilitation Act of 1973," }, { "docid": "13120256", "title": "", "text": "overly restrictive. In any event, England does not apply directly to the facts of this case and is not controlling. Even if giving the assumption of ordinary care instruction was erroneous under England’s logic, this instruction did not affect Rush’s substantial rights. The instruction did not direct the jury to find Wyeth was not negligent if Rush did not read the warnings. Instead, the instruction only explained Wyeth was not negligent in assuming Rush would read the warnings. The jury could still have found Wyeth negligent and Wyeth’s warnings were inadequate. Thus, assuming this instruction was given in error, the instruction was not unfairly prejudicial and any error was harmless. The district court’s decision to include this instruction was not an abuse of discretion. 2. Failure to Warn Instruction Rush challenges Instruction 14, regarding the failure to warn, because this in- struetion directed the jury that it must find for Wyeth if the jury found Rush was aware of the dangers posed by using Pre-marim (with progestin) or Prempro before Rush’s breast cancer diagnosis. In an action for negligent failure to warn, this court has held, “if a user is already aware of the dangers, the lack of warning is not the proximate cause of the injury.” Crook v. Kaneb Pipe Line Operating P’ship, 231 F.3d 1098, 1103 (8th Cir.2000). As such, the focus is on whether or not Rush was aware of the dangers posed by the Wyeth drugs, Premarin (with progestin) and Prempro. Arkansas recognizes the existence of the Learned Intermediary Doctrine. See Hill v. Searle Labs., 884 F.2d 1064, 1070 (8th Cir.1989). Under this doctrine, a physician acts as a learned intermediary between a pharmaceutical manufacturer and the physician’s patient. As such, “a warning to the physician is deemed a warning to the patient.” Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016 (8th Cir.2004) (internal brackets omitted). “[Ajdequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly.” Id. While the Learned Intermediary Doctrine provides that adequate warning to a patient’s physician can suffice to defeat a patient’s failure" }, { "docid": "22567158", "title": "", "text": "OPINION OF THE COURT ROSENN, Circuit Judge. Terry Shiring, formerly employed as a mail carrier by the United States Postal Service, appeals from the decision of the United States District Court for the Western District of Pennsylvania, granting summary judgment for the Postal Service on Shiring’s claim of discrimination in violation of the federal Rehabilitation Act of 1973. Shiring, whose medical problems made it impossible for him to continue at his job of postal carrier, contends that the Postal Service was obligated to find a new job for him that he was capable of performing within his physical limitations. Because Shiring made no showing that such a position exists, or that he properly applied for transfer, we will affirm the grant of summary judgment in favor of the Postal Service. I. In 1984, the United States Postal Service hired Shiring as a part-time flexible (PTF) letter carrier. This position meant that Shir-ing was not guaranteed a regular route or a full forty-hour work week. The position is entry level, with the least amount of seniority of all postal employees. At Shiring’s request, the Postal Service transferred him several times to different locations, employing him as a PTF carrier in each location. In 1987, Shiring was reassigned to the Oak-mont, Pennsylvania Post Office. In early 1990, Shiring began to experience severe foot pain when delivering the mail along his routes. In May of that year, he sought treatment from Dr. Lewis Stein. Dr. Stein diagnosed Shiring’s condition as hallux rígidas limites and a possible sesemold bone fracture of his right foot. Stein fitted Shir-ing for protective orthopedic devices and informed him that he was restricted from excessive walking before the devices arrived. Shiring notified the Postal Service, which placed him on light duty work. The Postal Service assigned Shiring to “casing” mail, which meant sorting the mail before delivery. Normally, each letter carrier is responsible for casing the mail for his or her own route; however, during the period Shiring was on light duty, the Post Office had him case the mail for all eight carrier routes. Also during this time," }, { "docid": "13473352", "title": "", "text": "HUGHES, Circuit Judge. This ease returns to us on remand from the Supreme Court. In Shire Development, LLC v. Watson Pharmaceuticals, Inc., 746 F.3d 1326 (Fed.Cir.2014), we decided an appeal by defendant-appellants (collectively, Watson) from a decision of the United States District Court for the Southern District of Florida. The district court found, among other things, that Watson infringed plaintiffs-appellees’ (collectively, Shire’s) patent under the district court’s constructions of the asserted claims. We reversed the district court’s constructions of two claim terms and remanded for further proceedings. Following our decision in this case, the Supreme Court issued Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., — U.S. —, 135 S.Ct. 831, — L.Ed.2d — (2015), which clarified how this court should review a district court’s construction of a claim term. The Court also vacated and remanded our Shire decision for further consideration in light of this new standard of review. Shire Dev., LLC v. Watson Pharm., Inc., — U.S. —, 135 S.Ct. 1174, 191 L.Ed.2d 130 (2015). Because this case does not involve factual findings to which we owe deference under Teva, we again reverse the district court’s constructions of the disputed claim terms and subsequent findings of infringement, and remand for further proceedings. I Shire owns U.S. Patent No. 6,773,720, which claims a controlled-release oral pharmaceutical composition for treating inflammatory bowel diseases. Shire markets these oral pharmaceutical compositions under the brand name LIALDA®. After Watson submitted an Abbreviated New Drug Application (ANDA) seeking approval to sell the bioequivalent of LIAL-DA®, Shire sued for infringement of the '720 patent. After construing certain relevant claim language, the district court found that Watson’s product infringed the '720 patent. The '720 patent — entitled “Mesalazine Controlled Release Oral Pharmaceutical Composition” — concerns controlled-release oral pharmaceutical compositions for treating inflammatory bowel diseases, such as Crohn’s disease and ulcerative colitis. '720 patent col. 1 11. 9-13. The active ingredient in these compositions is 5-ami-no-salicylic acid, which is also known as mesalazine or mesalamine (hereinafter, mesalamine). Mesalamine treats inflamed areas in the bowel by direct contact with the intestinal mucosal tissue. J.A. 9054. Thus, mesala-mine must pass" }, { "docid": "585310", "title": "", "text": "SUFFICIENCY OF ALBERS’ CLAIMS Each motion offers a grab bag of legal theories that supposedly command dismissal of the case, or at least the dismissal of certain parties or claims. Some of those theories go to the merits of Albers’ constitutional claims, some go to the merits of the common-law and statutory claims, and still others address procedural or technical flaws in Albers’ case. As a matter of sound jurisprudence this Court must take up the non-constitutional defenses first, so as to avoid unnecessary consideration of constitutional issues (Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996, 86 L.Ed.2d 664 (1985)). By analogy the procedural or technical defenses must also be considered before taking up the substantive, nonconstitutional defenses. This opinion now considers each motion in turn. Although there is no special principle that dictates the order of treatment, the effort here has been to establish and follow what seems the most logical sequence of handling. 1. P & A Defendants P & A and Michael Richardson have filed a joint motion to dismiss Counts I through IV pursuant to Rule 12(b)(6), and Naiditch has filed a separate but virtually identical motion. This section of the opinion discusses the issues common to both motions. Naiditch raises only one unique issue— whether she was timely served—which is taken up below under the heading “Naiditch.” P & A Defendants argue that Joshua and Amy lack standing to bring their federal claims, that all the claims are time-barred, that proximate cause is lacking as to Counts III and IV and that neither the Constitution nor the common law recognizes the 1988-vintage Albers as a “family.” STANDING P & A Defendants concede that if Albers had a constitutional right to family association then Ron, Cameron, Lynne and Herman have standing to litigate such a right. But they argue that Joshua and Amy do not, because siblings have no enforceable rights of family association under Section 1983. Siblings are undoubtedly “family members” within the general protection of the Supreme Court’s cases on family rights. Bell v. City of Milwaukee, 746 F.2d 1205, 1246-47" } ]
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not address the issue. Ante, at 718, n. 7. The parties’ contentions on this point, however, are fairly included in the question presented, which asks “[w]hether Congress violated the Establishment Clause by enacting [RLUIPA].” Pet. for Cert. i. Further, both parties have briefed the federalism understanding of the Clause, Brief for Respondents 25-33; Reply Brief for Petitioners 12-16, and neither suggests that a remand on it would be useful or that the record in this Court lacks relevant facts, Good News Club v. Milford Central School, 533 U. S. 98, 119, n. 9 (2001). Also, though RLUIPA is entirely consonant with the Establishment Clause, it may well exceed Congress’ authority under either the Spending Clause or the Commerce Clause. See REDACTED concurring in judgment) (for a Spending Clause condition on a State’s receipt of funds to be “Necessary and Proper” to the expenditure of the funds, there must be “some obvious, simple, and direct relation” between the condition and the expenditure of the funds); United States v. Lopez, 514 U. S. 549, 587 (1995) (Thomas, J., concurring) (“The Constitution not only uses the word ‘commerce’ in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that ‘substantially affect’ interstate commerce”). The Court, however, properly declines to reach those issues, since they are outside the question presented and were not addressed by the Court of Appeals.
[ { "docid": "22231894", "title": "", "text": "in an area historically of state concern. In upholding the constitutionality of the law, we mean to express no view as to its soundness as a policy matter. Justice Kennedy, with whom Justice Scalia joins, concurring in part. I join all but Part III of the Court’s opinion. I do not join Part III but do make this comment with reference to it. The Court in Part III does not specifically question the practice we have followed in cases such as United States v. Lopez, 514 U. S. 549 (1995), and United States v. Morrison, 529 U. S. 598 (2000). In those instances the Court did resolve the basic question whether Congress, in enacting the statutes challenged there, had exceeded its legislative power under the Constitution. Justice Thomas, concurring in the judgment. Title 18 U. S. C. § 666(a)(2) is a valid exercise of Congress’ power to regulate commerce, at least under this Court’s precedent. Cf. Perez v. United States, 402 U. S. 146, 154 (1971). I continue to doubt that we have correctly interpreted the Commerce Clause. See United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); United States v. Lopez, 514 U. S. 549, 584-585 (1995) (Thomas, J., concurring). But until this Court reconsiders its precedents, and because neither party requests us to do so here, our prior case law controls the outcome of this case. I write further because I find questionable the scope the Court gives to the Necessary and Proper Clause as applied to Congress’ authority to spend. In particular, the Court appears to hold that the Necessary and Proper Clause authorizes the exercise of any power that is no more than a “rational means” to effectuate one of Congress’ enumerated powers. Ante, at 605. This conclusion derives from the Court’s characterization of the seminal case McCulloch v. Maryland, 4 Wheat. 316 (1819), as having established a “means-ends rationality” test, ante, at 605, a characterization that I am not certain is correct. In McCulloch, the Court faced the question whether the United States had the power to incorporate a national bank." } ]
[ { "docid": "22368455", "title": "", "text": "that it compels state law enforcement officers to “administer or enforce a federal regulatory program.” See ante, at 935. Although I join the Court’s opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitútion, the Federal Government is one of enumerated, hence limited, powers. See, e. g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) (“This government is acknowledged by all to be one of enumerated powers”). “[T]hat those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States, 505 U. S. 144 (1992). In my “revisionist” view, see post, at 941 (Stevens, J., dissenting), the Federal Government’s authority under the Commerce Clause, which merely allocates to Congress the power “to regulate Commerce ... among the several States,” does not extend to the regulation of wholly intrastate, point-of-sale transactions. See United States v. Lopez, 514 U. S. 549, 584 (1995) (concurring opinion). Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must “temper our Commerce Clause jurisprudence” and return to an interpretation better rooted in the Clause’s original understanding. Id., at 601 (concurring opinion); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 620 (1997) (Thomas, J., dissenting). Even if we construe Congress’ authority to regulate interstate commerce to encompass those intrastate transactions that “substantially affect” interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’ regulatory authority. The First Amendment, for example, is fittingly célebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging" }, { "docid": "22737888", "title": "", "text": "enact a new inter state scheme exclusively for the sake of reaching intrastate activity, see ante, at 25, n. 84; ante, at 38-39 (Scalia, J., concurring in judgment). I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. See Morrison, 529 U. S., at 657 (Breyer, J., dissenting) (given that Congress can regulate “‘an essential part of a larger regulation of economic activity,’ ” “can Congress save the present law by including it, or much of it, in a broader ‘Safe Transport’ or ‘Worker Safety’ act?”). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U. S., at 557; id., at 578 (Kennedy, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers. The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents’ own activities. Otherwise, individual litigants could always exempt themselves from Commerce Clause regulation merely by pointing to the obvious — that their personal activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U. S. 183, 193 (1968); Wickard, 317 U. S., at 127-128. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the terms of analysis). The analysis may not be the same in" }, { "docid": "6843657", "title": "", "text": "the DOC, an amount substantially higher than the 14.5 million dollars it received in 2001) of its budget from federal funds. If a State wishes to receive any federal funding, it must accept the related, unambiguous conditions in their entirety. Accordingly, we find that the conditions imposed by RLUIPA are properly related to an important federal interest. 4. Independent Constitutional bar The final part of the Dole test recognizes that “other constitutional provisions may provide an independent bar to the conditional grant of federal funds.” Dole, 483 U.S. at 208, 107 S.Ct. 2793. The DOC’s remaining arguments are that RLUIPA violates Congress’ Commerce Clause authority, the Tenth Amendment, and the Establishment Clause. Because we find that RLUIPA is valid under the Spending Clause, we need not involve ourselves in arguments concerning the Commerce Clause. Whether or not the Commerce Clause provides an independent justification for RLUIPA does not impact its constitutionality under the Spending Clause. Accordingly, the Commerce Clause could not provide an independent bar to the enactment of RLUIPA. Similarly, when Congress engages in a constitutional use of its delegated Article I powers, the Tenth Amendment does not reserve that power to the States. U.S. Const. amend. X; New York, 505 U.S. at 156, 112 S.Ct. 2408; United States v. Wilson, 159 F.3d 280, 287 (7th Cir.1998). In other words, the Tenth Amendment does not restrict the range of conditions Congress can impose on the receipt of federal funds, even if Congress could not achieve the goal(s) of those conditions directly. Dole, 483 U.S. at 210, 107 S.Ct. 2793. The Supreme Court’s reference to an independent constitutional bar “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” Id. The DOC’s final hope, therefore, is that we find that RLUIPA violates the First Amendment’s Establishment Clause, thereby providing an independent bar to RLUIPA’s conditions. B. Establishment Clause Violation The Establishment Clause provides that, “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. The Supreme Court developed a three-part test" }, { "docid": "22737908", "title": "", "text": "Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can reg ulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers. I Respondents’ local cultivation and consumption of marijuana is not “Commerce . . . among the several States.” U. S. Const., Art. I, § 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct. A As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange — not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112-125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not" }, { "docid": "22791401", "title": "", "text": "25-33; Reply Brief for Petitioners 12-16, and neither suggests that a remand on it would be useful or that the record in this Court lacks relevant facts, Good News Club v. Milford Central School, 533 U. S. 98, 119, n. 9 (2001). Also, though RLUIPA is entirely consonant with the Establishment Clause, it may well exceed Congress’ authority under either the Spending Clause or the Commerce Clause. See Sabri v. United States, 541 U. S. 600, 613 (2004) (Thomas, J., concurring in judgment) (for a Spending Clause condition on a State’s receipt of funds to be “Necessary and Proper” to the expenditure of the funds, there must be “some obvious, simple, and direct relation” between the condition and the expenditure of the funds); United States v. Lopez, 514 U. S. 549, 587 (1995) (Thomas, J., concurring) (“The Constitution not only uses the word ‘commerce’ in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that ‘substantially affect’ interstate commerce”). The Court, however, properly declines to reach those issues, since they are outside the question presented and were not addressed by the Court of Appeals. Ohio claims the benefit of the federalism aspect of the Clause, yet simultaneously adheres to the view that the Establishment Clause was incorporated against the States through the Fourteenth Amendment. Brief for Respondents 25-26. These positions may be incompatible. The text and history of the Clause may well support the view that the Clause is not incorporated against the States precisely because the Clause shielded state establishments from congressional interference. Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50-51 (2004) (Thomas, J., concurring in judgment). I note, however, that a state law that would violate the incorporated Establishment Clause might also violate the Free Exercise Clause. Id., at 58, n. 4, 54, n. 5." }, { "docid": "22791390", "title": "", "text": "Cf. Gillette v. United States, 401 U. S. 437, 457 (1971) (“ ‘[T]he “truth” of a belief is not open to question’; rather, the question is whether the objector’s beliefs are ‘truly held.’” (quoting United States v. Seeger, 380 U. S. 163, 185 (1965))). See supra, at 723, n. 12. Justice Thomas, concurring. I join the opinion of the Court. I agree with the Court that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is constitutional under our modern Establishment Clause case law. I write to explain why a proper historical understanding of the Clause as a federalism provision leads to the same conclusion. I — I The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” Amdt. 1. As I have explained, an important function of the Clause was to “ma[ke] clear that Congress could not interfere with state establishments.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (opinion concurring in judgment). The Clause, then, “is best understood as a federalism provision” that “protects state establishments from federal interference.” Ibid.; see also Zelman v. Simmons-Harris, 536 U. S. 639, 677-680 (2002) (Thomas, J., concurring); Lee v. Weisman, 505 U. S. 577, 641 (1992) (Scalia, J., dissenting). Ohio contends that this federalism understanding of the Clause prevents federal oversight of state choices within the “ ‘play in the joints’ ” between the Free Exercise and Establishment Clauses. Locke v. Davey, 540 U. S. 712, 718-719 (2004). In other words, Ohio asserts that the Clause protects the States from federal interference with otherwise constitutionally permissible choices regarding religious policy. In Ohio’s view, RLUIPA intrudes on such state policy choices and hence violates the Clause. Ohio’s vision of the range of protected state authority overreads the Clause. Ohio and its amici contend that, even though “States can no longer establish preferred churches” because the Clause has been incorporated against the States through the Fourteenth Amendment, “Congress is as unable as ever to contravene constitutionally permissible State choices regarding religious policy.” Brief for Respondents 26 (emphasis added); Brief for Commonwealth" }, { "docid": "22231888", "title": "", "text": "“was designed to extend federal bribery prohibitions to bribes offered to state and local officials employed by agencies receiving federal funds,” id., at 58, thereby filling the regulatory gaps. Congress’s decision to enact §666 only after other legislation had failed to protect federal interests is further indication that it was acting within the ambit of the Necessary and Proper Clause. Petitioner presses two more particular arguments against the constitutionality of § 666(a)(2), neither of which helps him. First, he says that § 666 is all of a piece with the legislation that a majority of this Court held to exceed Congress’s authority under the Commerce Clause in United States v. Lopez, 514 U. S. 549 (1995), and United States v. Morrison, 529 U. S. 598 (2000). But these precedents do not control here. In Lopez and Morrison, the Court struck down federal statutes regulating gun possession near schools and gender-motivated violence, respectively, because it found the effects of those activities on interstate commerce insufficiently robust. The Court emphasized the noneconomic nature of the regulated conduct, commenting on the law at issue in Lopez, for example, “that by its terms [it] has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” 514 U. S., at 561. The Court rejected the Government’s contentions that the gun law was valid Commerce Clause legislation because guns near schools ultimately bore on social prosperity and productivity, reasoning that on that logic, Commerce Clause authority would effectively know no limit. Cf. Morrison, supra, at 615-616 (rejecting comparable congressional justification for Violence Against Women Act of 1994). In order to uphold the legislation, the Court concluded, it would be necessary “to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Lopez, 514 U. S., at 567. No piling is needed here to show that Congress was within its prerogative to protect spending objects from the menace of local administrators on the take. The power to keep" }, { "docid": "15812313", "title": "", "text": "allowing application of RLUIPA, then RLUIPA does not apply if defendants “demonstrate[ ] that all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.” 42 U.S.C. § 2000cc-2(g). Rather than shifting any burden to the government, this section of RLUIPA further protects governments trying to effectively manage their institutions. The Court notes that Congress’ omission of the word substantial in its prohibition of regulations that affect, rather than substantially affect, interstate commerce is not problematic. The Supreme Court determined that when Congress uses the unqualified phrase “affect on commerce,” it is invoking its full authority under the Commerce Clause. Jones, 529 U.S. at 854, 120 S.Ct. 1904. The section of Lopez that discusses triggering language which would prompt protection of a particular statute upon a showing of an effect on interstate commerce did not include the qualifier substantial. Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Therefore, this Court finds that omission of the word substantial has no impact on the constitutionality of RLUIPA. D. Congress’ Power to Enact RLUI-PA Pursuant to the Spending Clause Defendants contend that Congress cannot impose the restrictions of RLUIPA pursuant to the Spending Clause because the federal funding received by MDOC is not specifically related to religious activity or practice. Rather, the funds are targeted for education grants, substance abuse programs, and to incarcerate youthful offenders. Therefore, according to Defendants, Congress exceeded its authority under the Spending Clause in enacting RLUIPA because the purpose of the money is different from the intention of the conditions on its receipt. RLUIPA contains two limitations on its application. One was discussed earlier and involves regulations that affect interstate commerce. The second states RLUIPA applies where “the substantial burden [on religious activity] is imposed in a program or activity that receives Federal financial assistance.” 42 U.S.C. § 2000cc-1(b)(1). The Constitution permits Congress to “lay and collect Taxes, Duties, Imposts, and Excises to pay the Debts and provide for the Common Defense and general Welfare of" }, { "docid": "22791384", "title": "", "text": "a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” 403 U. S., at 612-613 (citations and internal quotation marks omitted). We resolve this case on other grounds. Respondents argued below that RLUIPA exceeds Congress’ legislative powers under the Spending and Commerce Clauses and violates the Tenth Amendment. The District Court rejected respondents’ challenges under the Spending Clause, Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 839-849 (SD Ohio 2002), and the Tenth Amendment, id., at 850-851, and declined to reach the Commerce Clause question, id., at 838-839. The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents’ further arguments. See 349 F. 3d 257, 259-260, 269 (2003). Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States’ choices are not subject to congressional oversight. See Brief for Respondents 9, 25-33; cf. Madison v. Riter, 355 F. 3d 310, 322 (CA4 2003). Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here. See F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 175 (2004); United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001). But cf. post, at 727, n. 2 (Thomas, J., concurring). Directed at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an inmate’s devotional accessories. See, e. g., Charles v. Verhagen, 348 F. 3d 601, 605 (CA7 2003) (overturning prohibition on possession of Islamic prayer oil but leaving inmate-plaintiff with responsibility for purchasing the oil). See, e. g., ibid. (prison’s regulation prohibited Muslim prisoner from possessing ritual cleansing oil); Young v. Lane, 922 F. 2d 370, 375-376 (CA7 1991) (prison’s regulation restricted wearing of yarmulkes); Hunafa v. Murphy, 907 F. 2d 46, 47-48 (CA7 1990)" }, { "docid": "22737863", "title": "", "text": "at 204. He termed the Clause “perfectly harmless,” for it merely confirmed Congress’ implied authority to enact laws in exercising its enumerated powers. Id., at 205; see also Lopez, 514 U. S., at 597, n. 6 (Thomas, J., concurring) (discussing Congress’ limited ability to establish nationwide criminal prohibitions); Cohens v. Virginia, 6 Wheat. 264, 426-428 (1821) (finding it “clear, that Congress cannot punish felonies generally,” except in areas over which it possesses plenary power). According to Hamilton, the Clause was needed only “to guard against cavilling refinements” by those seeking to cripple federal power. The Federalist No. 33, at 205; id., No. 44, at 303-304 (J. Madison). Justice Scalia, concurring in the judgment. I agree with the Court’s holding that the Controlled Substances Act (CSA) may validly be applied to respondents’ cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. Since Perez v. United States, 402 U. S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Id., at 150; see United States v. Morrison, 529 U. S. 598, 608-609 (2000); United States v. Lopez, 514 U. S. 549, 558-559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. It is misleading because, unlike the channels, instrumen-talities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least" }, { "docid": "22390281", "title": "", "text": "State and Local Governments by Function, Agency, and Program: 1940-2013, http://www.whitehouse.gov/omb/budget/Historicals. In that fiscal year, total federal outlays for grants to state and local governments amounted to over $608 billion, see Table 12.1, and state and local government expenditures from their own sources amounted to $1.6 trillion, see Table 15.2. Using these numbers, 44.8% of all federal outlays to both state and local governments was allocated to Medicaid, amounting to 16.8% of all state and local expenditures from their own sources. The Federal Government reports a higher percentage. According to Medicaid.gov, in Fiscal Year 2010, the Federal Government made Medicaid payments in the amount of nearly $260 billion, representing 67.79% of total Medicaid payments of $383 billion. See www.medicaid.gov/Medicaid-CHIP-Program-Information/By-State/By-State.html. Justice Thomas, dissenting. I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and The Chief Justice correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584-602 (same); Gonzales v. Raich, 545 U. S. 1, 67-69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point." }, { "docid": "5568119", "title": "", "text": "United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256-257, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). Second, Congress may regulate to protect the instrumentalities of interstate commerce, or persons or things involved in interstate commerce, even though the threat being regulated against arises from intrastate activities. Lopez, 514 U.S. at 558, 115 S.Ct. 1624; Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Finally, Congress may regulate activities which have a “substantial [e]ffect” on interstate commerce. Lopez, 514 U.S. at 558-559, 115 S.Ct. 1624; Morrison, 529 U.S. at 608-609, 120 S.Ct. 1740. Plaintiffs concede that Congress enacted RLUIPA as an example of this last class of activities, seeking to remove substantial burdens on religious practices by prisoners which “affect” commerce. 42 U.S.C. § 2000cc-l(b)(2). In order for a statute constitutionally to regulate activities which have a substantial effect on interstate commerce, one of three prerequisites must be satisfied: (1) the relationship between the regulated activities and interstate commerce must be readily apparent; (2) Congress must have made specific and supportable factual findings concerning that relationship; or (3) the statute must place the burden on the party seeking enforcement to allege and demonstrate that relationship. See Lopez, supra; Harrison, supra; see also United States v. Riddle, 249 F.3d 529, 536 (6th Cir.2001). The parties’ briefs focus on the third prerequisite, and raise issues both about the sufficiency of the statutory language and the likelihood that ODRC’s limitations on inmates’ religious exercise could ever be shown to have a substantial effect on interstate commerce. Congress also enacted RLUIPA pursuant to its authority under the Spending Clause. In the Court’s view, the Commerce Clause issues are the more difficult, requiring substantial construction of the statutory language and raising serious questions about the relationship between the internal operation of state prisons and interstate commerce. Because RLUIPA can be found to be constitutional if it was a valid exercise of Congress’ authority under either the Spending Clause or the Commerce Clause," }, { "docid": "22791400", "title": "", "text": "nor inhibits religion,” and it “must not foster an excessive government entanglement with religion.” 403 U. S., at 612-613 (internal quotation marks omitted). Under the first and second prongs, RLUIPA — and, indeed, any accommodation of religion — might well violate the Clause. Even laws disestablishing religion might violate the Clause. Disestablishment might easily have a religious purpose and thereby flunk the first prong, or it might well “strengthen and revitalize” religion and so fail the second. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2206-2207 (2003) (hereinafter McConnell). The Court dismisses the parties’ arguments about the federalism aspect of the Clause with the brief observation that the Court of Appeals did not address the issue. Ante, at 718, n. 7. The parties’ contentions on this point, however, are fairly included in the question presented, which asks “[w]hether Congress violated the Establishment Clause by enacting [RLUIPA].” Pet. for Cert. i. Further, both parties have briefed the federalism understanding of the Clause, Brief for Respondents 25-33; Reply Brief for Petitioners 12-16, and neither suggests that a remand on it would be useful or that the record in this Court lacks relevant facts, Good News Club v. Milford Central School, 533 U. S. 98, 119, n. 9 (2001). Also, though RLUIPA is entirely consonant with the Establishment Clause, it may well exceed Congress’ authority under either the Spending Clause or the Commerce Clause. See Sabri v. United States, 541 U. S. 600, 613 (2004) (Thomas, J., concurring in judgment) (for a Spending Clause condition on a State’s receipt of funds to be “Necessary and Proper” to the expenditure of the funds, there must be “some obvious, simple, and direct relation” between the condition and the expenditure of the funds); United States v. Lopez, 514 U. S. 549, 587 (1995) (Thomas, J., concurring) (“The Constitution not only uses the word ‘commerce’ in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that ‘substantially affect’ interstate commerce”). The Court," }, { "docid": "22791398", "title": "", "text": "restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000cc-l(a)(l)-(2). This provision does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion. In addition, RLUIPA’s text applies to all laws passed by state and local governments, including “rule[s] of general applicability,” ibid., whether or not they concern an establishment of religion. State and local governments obviously have many laws that have nothing to do with religion, let alone establishments thereof. Numerous applications of RLUIPA therefore do not contravene the Establishment Clause, and a facial challenge based on the Clause must fail. See United States v. Booker, 543 U. S. 220, 314 (2005) (Thomas, J., concurring in part and dissenting in part); United States v. Salerno, 481 U. S. 739, 745 (1987). It also bears noting that Congress, pursuant to its Spending Clause authority, conditioned the States’ receipt of federal funds on their compliance with RLUIPA. §2000cc-1(b)(1) (“This section applies in any case in which . . . the substantial burden is imposed in a program or activity that receives Federal financial assistance”). As noted above, n. 2, supra, RLUIPA may well exceed the spending power. Nonetheless, while Congress’ condition stands, the States subject themselves to that condition by voluntarily accepting federal funds. The States’ voluntary acceptance of Congress’ condition undercuts Ohio’s argument that Congress is encroaching on its turf. The Court properly declines to assess RLUIPA under the discredited test of Lemon v. Kurtzman, 403 U. S. 602 (1971), which the Court of Appeals applied below, 349 F. 3d 257, 262-268 (CA6 2003). Lemon held that, to avoid invalidation under the Establishment Clause, a statute “must have a secular legislative purpose,” “its principal or primary effect must be one that neither advances" }, { "docid": "22791399", "title": "", "text": "and dissenting in part); United States v. Salerno, 481 U. S. 739, 745 (1987). It also bears noting that Congress, pursuant to its Spending Clause authority, conditioned the States’ receipt of federal funds on their compliance with RLUIPA. §2000cc-1(b)(1) (“This section applies in any case in which . . . the substantial burden is imposed in a program or activity that receives Federal financial assistance”). As noted above, n. 2, supra, RLUIPA may well exceed the spending power. Nonetheless, while Congress’ condition stands, the States subject themselves to that condition by voluntarily accepting federal funds. The States’ voluntary acceptance of Congress’ condition undercuts Ohio’s argument that Congress is encroaching on its turf. The Court properly declines to assess RLUIPA under the discredited test of Lemon v. Kurtzman, 403 U. S. 602 (1971), which the Court of Appeals applied below, 349 F. 3d 257, 262-268 (CA6 2003). Lemon held that, to avoid invalidation under the Establishment Clause, a statute “must have a secular legislative purpose,” “its principal or primary effect must be one that neither advances nor inhibits religion,” and it “must not foster an excessive government entanglement with religion.” 403 U. S., at 612-613 (internal quotation marks omitted). Under the first and second prongs, RLUIPA — and, indeed, any accommodation of religion — might well violate the Clause. Even laws disestablishing religion might violate the Clause. Disestablishment might easily have a religious purpose and thereby flunk the first prong, or it might well “strengthen and revitalize” religion and so fail the second. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2206-2207 (2003) (hereinafter McConnell). The Court dismisses the parties’ arguments about the federalism aspect of the Clause with the brief observation that the Court of Appeals did not address the issue. Ante, at 718, n. 7. The parties’ contentions on this point, however, are fairly included in the question presented, which asks “[w]hether Congress violated the Establishment Clause by enacting [RLUIPA].” Pet. for Cert. i. Further, both parties have briefed the federalism understanding of the Clause, Brief for Respondents" }, { "docid": "22747804", "title": "", "text": "but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles. The Port Preference Clause also suggests that the term “commerce” denoted sale and/or transport rather than business generally. According to that Clause, “[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” U. S. Const., Art. I, § 9, cl. 6. Although it is possible to conceive of regulations of manufacturing or farming that prefer one port over another, the more natural reading is that the Clause prohibits Congress from using its commerce power to channel commerce through certain favored ports. The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause does not state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation. Art. V. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” Clause had that been their objective. In addition to its powers under the Commerce Clause,' Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States. U. S. Const., Art. I, § 8, cl. 18. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, § 8, are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin" }, { "docid": "9873939", "title": "", "text": "does not violate the Establishment Clause or the Tenth Amendment. Charles v. Verhagen, 348 F.3d 601 (7th Cir.2003); Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.2002). The Fourth Circuit has also upheld section 3 under the Establishment Clause. Madison v. Riter, 355 F.3d 310 (4th Cir.2003). Only the Sixth Circuit has held that section 3 violates the Establishment Clause. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir.2003). Georgia argues that Congress, in enacting section 3 of RLUIPA, exceeded its authority under Article I, section 8, and, alternatively, violated either the First Amendment or the Tenth Amendment. Although both Benning and the United States argue that Congress acted within its authority under both the Spending Clause and the Commerce Clause, we need not address both arguments so long as Congress validly exercised either source of authority. We address the authority of Congress under the Spending Clause before turning to the objections Georgia raises under both the First and Tenth Amendments. A. Congress Properly Exercised Its Spending Power. The Constitution empowers Congress to \"lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.\" U.S. Const. Art. I, § 8, cl. 1. It is well-settled that \"[i]ncident to this power, Congress may attach conditions on the receipt of federal funds.\" South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 2795-96, 97 L.Ed.2d 171 (1987). This power can be exercised to achieve goals not within the other enumerated powers of Congress in Article I, id. at 207, 107 S.Ct. at 2796, but this power is also limited. The Supreme Court has identified four restrictions on the spending power of Congress. First, conditions attached by Congress on the expenditure of federal funds must promote the general welfare, and not be in the service of narrow and private interests. Id. Second, conditions on the state receipt of federal funds must be unambiguous, and enable \"the States to exercise their choice knowingly, cognizant of the consequences of their participation.\" Id. Third, the Supreme Court has \"suggested (without significant elaboration) that" }, { "docid": "22389982", "title": "", "text": "premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept. The Government claims that Congress has power under the Commerce and Necessary and Proper Clauses to enact this solution. 1 The Government contends that the individual mandate is within Congress’s power because the failure to purchase insurance “has a substantial and deleterious effect on inter state commerce” by creating the cost-shifting problem. Brief for United States 34. The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549, 552-559 (1995), but it is now well established that Congress has broad authority under the Clause. We have recognized, for example, that “[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,” but extends to activities that “have a substantial effect on interstate commerce.” United States v. Darby, 312 U. S. 100, 118-119 (1941). Congress’s power, moreover, is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others. See Wickard, 317 U. S., at 127-128. Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product. Legislative novelty is not necessarily fatal; there is a first time for everything. But sometimes “the most telling indication of [a] severe constitutional problem ... is the lack of historical precedent” for Congress’s action. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omit ted). At the very least, we should “pause to consider the implications of the Government’s arguments” when confronted with such new conceptions of federal power. Lopez, supra, at 564. The Constitution grants Congress the power to" }, { "docid": "6843647", "title": "", "text": "compelling governmental interest. 42 U.S.C. § 2000cc-l(a) (2000). Rather than rely on the Fourteenth Amendment, Congress invoked the Spending and Commerce Clauses and hinged the applicability of RLUIPA on whether: “(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or (2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.” 42 U.S.C. § 2000cc-1(b). If the sole basis for the applicability of RLUIPA rests in the Commerce Clause power, a defendant can assert an affirmative defense that RLUIPA is inapplicable if the burden at issue “would not lead in the aggregate to a substantial effect on interstate commerce.” 42 U.S.C. § 2000cc-2(g). Finally, RLUI-PA creates a private right of action for individual prisoners and grants the United States power to enforce the statute through injunctive or declaratory relief. 42 U.S.C. § 2000cc-2(a), (f). ANALYSIS We undertake a de novo review of the district court’s grant of summary judgment in favor of Charles, because the parties do not dispute any material facts and present only questions of law for our consideration. O’Kane v. Apfel, 224 F.3d 686, 688 (7th Cir.2000). Rather than argue the merits of Charles’ prayer oil claim under RLUIPA, the DOC urges this Court to determine that Congress’ enactment of RLUIPA runs afoul of its Spending and Commerce Clause powers, the Tenth Amendment, and the Establishment Clause of the First Amendment. We review each claim in turn. A. Spending Clause Authority As a starting point, we note that the parties do not dispute that if RLUIPA is constitutional it would apply in this case because the DOC receives federal funding. 42 U.S.C. § 2000ec-1(b). The United States Constitution gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. The Supreme Court has held that Congress may attach conditions to the receipt of federal money incident to its Spending" }, { "docid": "5568120", "title": "", "text": "between the regulated activities and interstate commerce must be readily apparent; (2) Congress must have made specific and supportable factual findings concerning that relationship; or (3) the statute must place the burden on the party seeking enforcement to allege and demonstrate that relationship. See Lopez, supra; Harrison, supra; see also United States v. Riddle, 249 F.3d 529, 536 (6th Cir.2001). The parties’ briefs focus on the third prerequisite, and raise issues both about the sufficiency of the statutory language and the likelihood that ODRC’s limitations on inmates’ religious exercise could ever be shown to have a substantial effect on interstate commerce. Congress also enacted RLUIPA pursuant to its authority under the Spending Clause. In the Court’s view, the Commerce Clause issues are the more difficult, requiring substantial construction of the statutory language and raising serious questions about the relationship between the internal operation of state prisons and interstate commerce. Because RLUIPA can be found to be constitutional if it was a valid exercise of Congress’ authority under either the Spending Clause or the Commerce Clause, the undersigned will forego further discussion of the Commerce Clause as being unnecessary to the Court’s resolution of defendants’ motion to dismiss. D. Spending Clause The Constitution also explicitly empowers Congress to “provide for the ... general Welfare of the United States.” U.S. CONST. Art. I, § 8, cl. 1. The Supreme Court has long made clear that Congress may expend funds in areas or enterprises even though its constitutional power to legislate that area or enterprise may be limited: “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 80 L.Ed. 477 (1936). In making such expenditures, however, Congress may constitutionally condition receipt of federal funds “upon compliance by the recipient with federal statutory and administrative directives” by the states “to further broad policy objectives” Congress might not otherwise be able to effect through direct legislation. Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758," } ]
856930
words, there must be “something close to an actual intent to aid in fraud” or “scienter of the ‘conscious intent’ variety.” Ross v. Bolton, 639 F.Supp. 323, 327 (S.D.N.Y.1986) aff'd, 904 F.2d 819 (2d Cir.1990) (quoting Edwards & Hanly v. Wells Fargo Sec. Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979) and IIT, an Int’l Inv. Trust v. Cornfeld, 619 F.2d 909, 925 (2d Cir.1980)). It is well-settled that, when a clearing firm acts merely as a clearing agent, it owes no fiduciary duty to the customers of its introducing broker and cannot be held liable for the acts of an introducing firm. See Greenberg, 220 F.3d at 29; Carlson v. Bear, Stearns & Co., 906 F.2d 315, 318 (7th Cir.1990); REDACTED Cromer, 137 F.Supp.2d at 470; Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y.1990); Stander, 730 F.Supp. at 1286. As the Second Circuit clearly stated: The simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker. Greenberg, 220 F.3d at 28 (quotation marks omitted). Moreover, courts have refused to hold clearing firms liable for the practices of introducing brokers even where the clearing firm continued to provided clearing services after it knew or should have known of the introducing broker’s fraudulent scheme. See Ross, 639 F.Supp. at 327 (dismissing claim against Bear
[ { "docid": "2050127", "title": "", "text": "any evidence that they would have obtained in discovery would overcome the panel’s decision. Petitioners are not entitled to costly full-blown discovery when it would not change the outcome and the claim could be decided on a pre-hearing motion. Furthermore, Petitioners did have a “hearing.” Petitioners were given adequate opportunity to respond to Bear Stearns motion to dismiss and they did so. They were represented by counsel at oral arguments. Plaintiffs cite no authority that they are automatically entitled to a full-blown evidentiary hearing following discovery, and the court is aware of none. Petitioners also seek to vacate the award by claiming the arbitrators displayed a “manifest disregard for the law.” To prove this theory, Petitioners must show that: 1) the arbitrators knew of a governing legal principle, yet refused to apply it or ignored it altogether and 2) the law ignored by the arbitrators was a well-defined, explicit and clearly applicable to the case. See DiRussa v. Dean Witter Reynolds, 121 F.3d 818, 821 (2nd Cir.1997). “(Manifest disregard of the law means more than a mere error in interpretation or application of the law.” Federated Dep’t Stores, Inc. v. J.V.B. Indus., Inc., 894 F.2d 862, 866 (6th Cir.1990). The court will give great deference to the panel’s determination of the legal issues. The legal principle that Petitioners rely on is that NASD arbitrators lack the authority to dismiss claims without full-blown discovery and a full evidentiary hearing on the merits. As stated previously, the arbitrators do have such authority. Clearing firms are generally not responsible to customers for the actions of an introducing broker and do not owe fiduciary duties to the customer, and courts have confirmed pre-hearing dismissals on these grounds. See, e.g., Stander v. Financial Clearing & Servs. Corp., 730 F.Supp. 1282 (S.D.N.Y.1990); Carlson v. Bear, Stearns & Co., 906 F.2d 315 (7th Cir.1990). Petitioners have not demonstrated that they are entitled to overturn the award because of this narrow exception. An appropriate order shall issue. ORDER A petition having been filed, Respondent Bear Stearns having filed a response, and upon consideration by the Court, IT IS" } ]
[ { "docid": "18100637", "title": "", "text": "9 F.3d 259, 267 (2d Cir.1993) (“[A]n omission is actionable under the securities laws only when the [defendant] is subject to a duty to disclose the omitted facts.”). Finally, an omission of a material fact by a defendant with a duty to disclose establishes a rebut-table presumption of reliance upon the omission by investors to whom the duty was owed. Affiliated Ute, 406 U.S. at 153-54, 92 S.Ct. 1456. III. Duty of a Clearing Broker (Generally) We have previously said that “a clearing agent[ ] is generally under no fiduciary duty to the owners of the securities that pass through its hands.” Ed wards & Hanly v. Wells Fargo Sec. Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979); see also Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 599 (2d Cir.1991) (holding that a clearing broker did not owe a fiduciary duty under New York law to a customer of an introducing broker). Nor does the “simple providing of normal clearing services to a primary broker who is acting in violation of the law ... make out a ease of aiding and abetting against the clearing broker.” We made this latter point in Greenberg v. Bear, Steams & Co., 220 F.3d 22, 29 (2d Cir.2000), which dealt with claims against Bear Stearns arising out of the very same ML Direct IPO at issue in the present case. There, we affirmed the district court’s denial of a petition to vacate an NASD arbitration award that had in turn dismissed securities fraud and state-law claims brought against Bear Stearns by an investor in the IPO. As relevant here, we noted that “there was ample evidence for the arbitrators to conclude that Bear Stearns’ participation [in the ML Direct IPO] was insufficient to constitute substantial assistance” under New York aiding and abetting law. Id. at 29. Applying these principles, district courts in this Circuit have distinguished two categories of cases. First, in cases where a clearing broker was simply providing normal clearing services, district courts have declined to “impose[ ] liability on the clearing broker for the transgressions of the introducing" }, { "docid": "4323691", "title": "", "text": "it.” Ross v. Bolton, 904 F.2d 819, 824 (2d Cir.1990). Where, as here, there is no fiduciary duty, “the scienter requirement increases, so that [plaintiffs] need to show that [defendant] acted with actual intent.” Ross, supra, 904 F.2d at 824; see also Stander, supra, 730 F.Supp. at 1286 (“Where there is no fiduciary duty, plaintiffs must allege actual knowledge of the fraudulent activity.”). With respect to SSC, ‘Tilt is clear that the simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Stander, supra, 730 F.Supp. at 1286 (citing Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1518 (S.D.N.Y.1986), aff'd, 867 F.2d 776 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 114, 107 L.Ed.2d 75 (1989)). The complaint alleges at most recklessness on the part of SSC, and not actual knowledge, and thus plaintiffs have failed to plead scienter adequately. See Ross, supra, 904 F.2d at 824 (absent a fiduciary duty, allegations of recklessness insufficient to plead aiding and abetting violation). In addition, absent a fiduciary duty between a clearing broker and the introducing broker’s customers, the clearing broker’s failure to disclose cannot constitute the requisite “substantial assistance.” See IIT, International Investment Trust v. Cornfeld, 619 F.2d 909, 927 (2d Cir.1980); Dillon, supra, 731 F.Supp. at 639 (“SSC owed no compensable duty to the investors and the inaction of a clearing broker is not enough to constitute the ‘substantial assistance' that aiding and abetting liability requires.”). Thus, plaintiffs have failed to plead adequately that element of aiding and abetting as well. Accordingly, SSC’s motion to dismiss the fourth claim of the complaint is granted. With respect to Nadel, it appears that the complaint attempts to allege an aiding and abetting claim in connection with the underwriting and “hyping” of the Recognition securities. Complaint 1163. However, there is no allegation that Nadel owed any fiduciary duty to plaintiffs, that Nadel knew (or even that Nadel should have known) of the primary wrongdoers’ actions, or that Nadel’s publication" }, { "docid": "4323690", "title": "", "text": "voluntary agreement to leave the securities industry to the public or plaintiffs. Complaint 1135. Likewise, in the case of Recognition, it is merely alleged that Nadel did not disclose the fact that he was paid $6,000 to recommend Recognition stock. However, in both instances there is no allegation that Nadel owed any duty of disclosure to plaintiffs; no allegation of materiality; no allegation of facts from which an inference of scienter can be drawn; no allegation that the omission was “in connection with” the purchase or sale of a security; no allegation that plaintiffs were damaged by the omission; and no allegation of the use of jurisdictional means. Therefore, plaintiffs have also failed to state a claim for a primary violation of § 10(b) and Rule 10b-5 by Nadel. B) Aiding and Abetting In order to state an aiding and abetting claim unaer § íU(,dj ana rcuie íud-o, a plaintiff must allege “in addition to the securities law violation by the primary wrongdoer, that [the defendant] knew of the wrong and substantially assisted in perpetrating it.” Ross v. Bolton, 904 F.2d 819, 824 (2d Cir.1990). Where, as here, there is no fiduciary duty, “the scienter requirement increases, so that [plaintiffs] need to show that [defendant] acted with actual intent.” Ross, supra, 904 F.2d at 824; see also Stander, supra, 730 F.Supp. at 1286 (“Where there is no fiduciary duty, plaintiffs must allege actual knowledge of the fraudulent activity.”). With respect to SSC, ‘Tilt is clear that the simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Stander, supra, 730 F.Supp. at 1286 (citing Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1518 (S.D.N.Y.1986), aff'd, 867 F.2d 776 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 114, 107 L.Ed.2d 75 (1989)). The complaint alleges at most recklessness on the part of SSC, and not actual knowledge, and thus plaintiffs have failed to plead scienter adequately. See Ross, supra, 904 F.2d at 824 (absent a fiduciary duty," }, { "docid": "6207798", "title": "", "text": "give rise to an inference of fraud. It reflects nothing more than the standard practice of clearing brokers to look first to the introducing broker’s customer for payment and, in the event of non-payment, to inform the introducing broker. The insufficiency of the allegations is highlighted by the fact that the Complaint does not allege that Bear Steams caused or directed trading by Blech & Co.’s customers or solicited or induced them to buy Blech Securities at inflated prices. Nor are there any allegations that Bear Steams did anything in an attempt to affect the price of such securities. This Court confronted a similar situation in Dillon v. Militano, 731 F.Supp. 634 (S.D.N.Y.1990). There the market-maker defendants had allegedly “cornered the market” in certain stock shares by using customer accounts without authorization, purchasing shares from short sellers, and obtaining extensions of time to meet margin requirements. The clearing broker for the defendants cleared all of the trades at issue and was charged with primary liability under § 10(b). The court dismissed the Rule 10b-5 manipulation claim against the clearing broker because the complaint did not “plead that [the clearing broker] was making decisions regarding the accounts.” Id. at 636; see also Faturik v. Woodmere Secs., Inc., 442 F.Supp. 943, 945 (S.D.N.Y.1977) (“Certainly, one requirement for direct liability under § 10(b), namely ‘control’ over plaintiff’s account would be lacking as to [the clearing broker]”). Here, as in Dillon the plaintiffs have failed to allege facts showing that Bear Steams did anything more than act as Blech & Co.’s' clearing broker. Even if Bear Stearns knew but failed to disclose a material fact, no plaintiff can claim to have been defrauded by that omission, because, as a matter of law, a clearing broker owes no duty of disclosure to the clients of an introducing broker. See, e.g., Connolly v. Havens, 763 F.Supp. at 10 (dismissing action against clearing broker because “such firms generally have no duty to disclose”); Dillon, 731 F.Supp. at 634 (dismissing Section 10(b) claim against clearing agent because the clearing agent was not in a fiduciary relationship with- the" }, { "docid": "19677745", "title": "", "text": "F.Supp. 1518 (S.D.N.Y.), aff'd, 867 F.2d 776 (2d Cir.1989). . Stander, 730 F.Supp. at 1287 (quoting IIT v. Cornfeld, 619 F.2d 909, 922 (2d Cir.1980)). . Id. at 1288 (citation omitted). . Comply ¶ 209. . See Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 471 (S.D.N.Y.2001) (“A failure to enforce margin requirements, or continuing to execute trades despite margin violations, however, does not constitute substantial assistance.”) (citing Dillon v. Militano, 731 F.Supp. 634, 637, 639 (S.D.N.Y.1990); Stander, 730 F.Supp. at 1287). . McDaniel v. Bear Stearns & Co., Inc., 196 F.Supp.2d 343, 353 (S.D.N.Y.2002). Accord Lesavoy v. Lane, No. 02 Civ. 10162, 2008 WL 2704393, at *11 (S.D.N.Y. July 10, 2008) (rejecting the plaintiff's argument that \" '[e]n-abling Lane to continue trading in commodities [was] precisely the substantial assistance that is required to sustain the claim' \") (quoting the plaintiff’s brief). Cf. Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt., LLC, 479 F.Supp.2d 349, 373 (S.D.N.Y.2007) (declining to dismiss where clearing broker’s “alleged activity ... was anything but routine”). . The Complaint also alleges that certain defendants are liable as \"control persons.” Section 13(b) of the CEA provides that \"[a]ny person who, directly or indirectly, controls any person who has violated any provision of this chapter or any of the rules, regulations, or orders issued pursuant to this chapter may be held liable for such violation in any action brought by the Commission to the same extent as such controlled person.” 7 U.S.C. § 13c(b). The plain language of this provision limits its application to actions brought by the CFTC. Plaintiffs did not address this issue in their memorandum of law. . Commercial Union Ins. Co., 347 F.3d at 462 (citations omitted). . Amaranth Advisors contend that because Hunter had a duty not to \"knowingly violate any law or NYMEX trading rule,” if he violated any such rule, he could not have been authorized to do so. Advisors Mem. at 37. The Court cannot consider evidence as to the scope of Hunter’s employment on a motion to dismiss. . See Advisors Mem. at 32. . See id. . PL" }, { "docid": "4323688", "title": "", "text": "the introducing broker with which it has contracted to perform clearing services. See Edwards & Hanly v. Wells Fargo Securities Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979) (“a clearing agent ... is generally under no fiduciary duty to the owners of the securities that pass through its hands.”), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y.1990); Stander v. Financial Clearing & Services Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990) (Leisure, J.); Ross v. Bolton, 639 F.Supp. 323, 326-27 (S.D.N.Y.1986). The services that SSC allegedly performed for Equities were ordinary clearing house functions. The allegation, without more, that SSC was also allegedly “responsible for compliance with securities laws and regulations” by Equities, without any allegation or legal authority that SSC owed any such duty to the plaintiffs, cannot create a fiduciary duty where none existed. Plaintiffs have not alleged any false or misleading statements by SSC. Because plaintiffs have not adequately alleged a fiduciary relationship between SSC and themselves, SSC owed plaintiffs no duty of disclosure, see Chiarella v. United States, 445 U.S. 222, 232, 100 S.Ct. 1108, 1116-17, 63 L.Ed.2d 348 (1980), and “[sjilence, absent a duty to disclose, is not misleading under Rule 10b-5.” Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 17, 108 S.Ct. 978, 987 n. 17, 99 L.Ed.2d 194 (1988). Accordingly, in similar cases courts have consistently held that clearing firms cannot be primarily liable under Rule 10b-5 for nondisclosure because such firms generally have no duty to disclose. See, e.g., Dillon, supra, 731 F.Supp. at 636; Ross v. Bolton, 1989 WL 80428, 1989 U.S.Dist. LEXIS 7704 (S.D.N.Y.1989). Thus, plaintiffs have failed to state a claim for a primary violation of § 10(b) and Rule 10b-5 by SSC. With respect to Nadel, it is alleged that he participated in the manipulation of the securities of two companies, Holistic Services, Inc. (“Holistic”) and Recognition Technologies, Inc. (“Recognition”). In the case of Holistic, there is no allegation that Nadel made any false or misleading statements; rather, it is alleged that he did not disclose his" }, { "docid": "19677744", "title": "", "text": "plausible than the inference of innocence.'') (Scalia, J., concurring) (emphasis added). In other words, in close cases, ties go to the plaintiff. . See Compl. ¶¶ 194, 196. . See id. ¶ 197. . See id. ¶ 199. . See id. ¶ 204. . See id. ¶ 211. . Id. ¶215 (quoting an internal \"JPM” memorandum). There is no indication as to which J.P. Morgan entity is meant by \"JPM.” . See Combined Memorandum of Defendants TFS Energy Futures, LLC, ALX Energy, Inc., and James DeLucia in Support of Their Respective April 28, 2008 Motions to Dismiss (“Floor Brokers Mem.”) at 5. . See, e.g., Compl. ¶¶ 29, 250. . See Memorandum of Law in Support of the JPMorgan Defendants' Amended Motion to Dismiss at 18. . Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000) (quoting Stander v. Financial Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990)). Accord Connolly v. Havens, 763 F.Supp. 6, 11 (S.D.N.Y.1991) (citing Stander, 730 F.Supp. at 1286); Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1518 (S.D.N.Y.), aff'd, 867 F.2d 776 (2d Cir.1989). . Stander, 730 F.Supp. at 1287 (quoting IIT v. Cornfeld, 619 F.2d 909, 922 (2d Cir.1980)). . Id. at 1288 (citation omitted). . Comply ¶ 209. . See Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 471 (S.D.N.Y.2001) (“A failure to enforce margin requirements, or continuing to execute trades despite margin violations, however, does not constitute substantial assistance.”) (citing Dillon v. Militano, 731 F.Supp. 634, 637, 639 (S.D.N.Y.1990); Stander, 730 F.Supp. at 1287). . McDaniel v. Bear Stearns & Co., Inc., 196 F.Supp.2d 343, 353 (S.D.N.Y.2002). Accord Lesavoy v. Lane, No. 02 Civ. 10162, 2008 WL 2704393, at *11 (S.D.N.Y. July 10, 2008) (rejecting the plaintiff's argument that \" '[e]n-abling Lane to continue trading in commodities [was] precisely the substantial assistance that is required to sustain the claim' \") (quoting the plaintiff’s brief). Cf. Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt., LLC, 479 F.Supp.2d 349, 373 (S.D.N.Y.2007) (declining to dismiss where clearing broker’s “alleged activity ... was anything but routine”). . The Complaint also alleges" }, { "docid": "6418998", "title": "", "text": "but only that Gatullo-Wilson and SSB knew or should have known that the hedge loan proceeds were not being used by Lane for the purposes intended. However, monthly statements on the SSB accounts and monthly account transaction statements for the Petit Trust during the year 2000 disprove that the SSB Defendants aided and abetted Lane and Land “by transferring funds from the Petit Trust to the Keefer Trust.” SSB Keefer account statements from the period in question reveal transfers into the Keefer Trust on. the dates alleged by Lesavoy (August 28, 2000 and September 5, 2000) from First South Bancorp, not from Petit Trust. Account statements further show transfers between sub-accounts ■ of the same Trust, and not any transfers between the Petit and Keefer Trusts. The SSB Petit account statements also confirm that there were no transfers to the Keefer accounts. Fourth, the SSB Defendants are not responsible for the riskiness of trades placed by the Trustee. The Trust Agreement states, “any such person ... or firm shall be fully protected in making disposition of any assets of the trust created hereby in accordance with the directions of the Trustees.” (Compl., Ex. A at 13-14; Ex. B at 15.) Moreover, Lesavoy claims that the SSB Defendants owed the Trust Managers a fiduciary duty to execute trades according to instructions. 2. Substantial Assistance Lesavoy further alleges that the SSB Defendants “enabled” the Trust Managers to commit breaches of their fiduciary duty by providing routine clearing services in accordance with the Trust Managers’ instructions. However, the SSB Defendants owed no fiduciary duty to the Trust, and as held by the Second Circuit, “the simple providing of normal clearing services to a primary broker [, even one] who is acting in violation of the law [,] does not make out a case of aiding and abetting against the clearing broker.” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000) (quoting Stander v. Fin. Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990)). New York courts have further refused to hold clearing brokers liable for the practices of others even" }, { "docid": "15862922", "title": "", "text": "recommendations or accepting customer orders, they rely upon the clearing firm to settle and complete the trades for the customers. Henry F. Minnerop, The Role and Regulation of Clearing Brokers, 48 Bus.Law. 841, 842-43 (1993) (“Minnerop”). A “fully disclosed agreement” is one type of clearing agreement. In those agreements, “the introducing customer’s name and address are disclosed to the clearing firm to enable the firm, among other things, to prepare and furnish trade confirmations and monthly statements of account directly to the customer.” Id. at 843. As a general rule, a clearing firm is not liable for losses occasioned by an introducing broker because the clearing firm does not have a fiduciary relationship with the customers of that broker. See, e.g., Edwards & Hanly v. Wells Fargo Securities, Inc., 602 F.2d 478, 484 (2d Cir.1979) (“a clearing agent, is generally under no fiduciary duty to the owners of securities that pass through its hands”) (citing Woodward v. Metro Bank of Dallas, 522 F.2d 84, 97 n. 29 (5th Cir.1975)), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991) (same); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y. 1990) (same); Stander v. Financial Clearing & Services Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990) (same). See also Lester v. Basner, 676 F.Supp. 481, 483-84 (S.D.N.Y. 1987) (clearing broker is not the agent of introducing broker); Ahn v. Rooney, Pace, Inc., 624 F.Supp. 368, 370-71 (S.D.N.Y.1985) (same). That rule applies here because debtor performed limited services for Stratton Oakmont and Datek pursuant to identical “Fully Disclosed Clearing Agreements” (the “Clearing Agreements”). In substance, the agreements provide, among other things, that the introducing broker is not debtor’s agent, debtor has no control over introduced accounts and debtor acts subject to the introducing broker’s instructions. For example, the agreement states: The Clearing Agent shall limit its services pursuant to the terms of this Agreement to that of clearing functions and related services expressly set forth herein and the Introducing Firm shall not hold itself out as an agent of the Clearing Agent____ Neither this Agreement" }, { "docid": "23656440", "title": "", "text": "not for all transactions. In addition, there is no well-settled law imposing a duty upon a clearing broker, who is unaware of an introducing broker’s undisclosed and excessive profit, to inquire into the matter and then inform the latter’s customers of such self-dealing. Third, Greenberg contends that Bear Stearns failed to comply with 17 C.F.R. § 230.174, which requires delivery of a prospectus in connection with the sale of newly issued securities. But the regulation imposes this requirement only on underwriters and dealers, not on clearing brokers, and nothing in the agreement between Bear Stearns and Sterling Foster unambiguously shifted the burden of complying with this requirement onto Bear Stearns. Finally, Greenberg asserts that Bear Stearns should be held liable as an aider and abetter under New York law because it participated in the fraudulent scheme and provided substantial assistance to Sterling Foster. See S & K Sales Co. v. Nike, Inc., 816 F.2d 843, 847-48 (2d Cir.1987). However, there was ample basis for the arbitrators to conclude that Bear Stearns’s participation was insufficient to constitute substantial assistance. “[T]he simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Stander v. Financial Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990); cf. Edwards & Hanly v. Wells Fargo Sec. Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979) (clearing brokers owe no separate duty to customers of an introducing broker). In sum, the arbitrators did not ignore or refuse to apply well-defined and clearly applicable law in rejecting any of the appellant’s claims in such a way that would amount to manifest disregard. CONCLUSION For the foregoing reasons, we hold that: (1) where, as here, a § 10 petitioner complains principally and in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition; and (2) the district court in this case properly rejected the petitioner’s claim for failure to demonstrate that the arbitrators had manifestly disregarded" }, { "docid": "2998231", "title": "", "text": "in the light most favorable to plaintiff, as the Court must for this motion, the Court will accept the uncontested assertion that sufficient facts have been alleged to meet the first requirement for aiding and abetting liability. The Court, then, must focus on whether plaintiff has sufficiently alleged that FiCS had knowledge of Domestic’s and Czin’s securities law violations, and that FiCS provided substantial assistance to Domestic and Czin in their achievement of the violation. It is clear that the simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker. Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1518 (S.D.N.Y.1986), aff'd, 867 F.2d 776 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 114, 107 L.Ed.2d 75 (1989). Plaintiff must allege that the clearing broker had knowledge of the primary broker’s fraudulent activity and gave substantial, knowing assistance to that illegal activity. Before the Court can determine whether FiCS had knowledge of the securities law violation alleged, it is necessary to examine just what that alleged violation is. Plaintiff asserts that Domestic and Czin misled Stander as to their intent with regard to her account, misled her as to the meaning of the agreements she signed with FiCS, and then manipulated her account in a way designed to maximize Domestic’s and Czin’s profits, while continuing to mislead Stander as to the status of her account. Plaintiff appears to allege that FiCS, through its clearing activities knew, or should have known, that Domestic and Czin were engaged in illegal activity. “[A] clearing agent [ ] is generally under no fiduciary duty to the owners of securities that pass through its hands.” Edwards & Hanly v. Wells Fargo Securities Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980), citing Woodward v. Metro Bank of Dallas, 522 F.2d 84, 97 & n. 29 (5th Cir.1975). Where there is no fiduciary duty, plaintiff must allege actual knowledge of the fraudulent" }, { "docid": "6207799", "title": "", "text": "claim against the clearing broker because the complaint did not “plead that [the clearing broker] was making decisions regarding the accounts.” Id. at 636; see also Faturik v. Woodmere Secs., Inc., 442 F.Supp. 943, 945 (S.D.N.Y.1977) (“Certainly, one requirement for direct liability under § 10(b), namely ‘control’ over plaintiff’s account would be lacking as to [the clearing broker]”). Here, as in Dillon the plaintiffs have failed to allege facts showing that Bear Steams did anything more than act as Blech & Co.’s' clearing broker. Even if Bear Stearns knew but failed to disclose a material fact, no plaintiff can claim to have been defrauded by that omission, because, as a matter of law, a clearing broker owes no duty of disclosure to the clients of an introducing broker. See, e.g., Connolly v. Havens, 763 F.Supp. at 10 (dismissing action against clearing broker because “such firms generally have no duty to disclose”); Dillon, 731 F.Supp. at 634 (dismissing Section 10(b) claim against clearing agent because the clearing agent was not in a fiduciary relationship with- the broker’s customer). Silence, absent a duty to disclose, is not actionable under the federal securities laws. Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 17, 108 S.Ct. 978, 987 n. 17, 99 L.Ed.2d 194 (1988). In Ross v. Bolton, No. 83 Civ. 8244 (WK), 1989 WL 80428 (S.D.N.Y. Apr. 4, 1989), aff'd, 904 F.2d 819 (2d Cir.1990), a similar case, Bear Steams, there too accused of Section 10(b) manipulation, had acted as the clearing broker for R.E. Bolton & Co., an “introducing broker”. Bear Stearns had processed a materially large and unauthorized trade by Bolton in Bolton’s client’s account. The client had allegedly called Bear Stearns’ managing partner to discuss the trade (though he apparently never expressly stated that the trade was fictitious). There, as here, Bear Stearns purportedly demanded that the client honor the trade. The Complaint was dismissed with prejudice as to Bear Stearns because the facts pleaded demonstrated that Bear Stearns had not acted other than as a normal clearing agent, had not possessed sufficient knowledge of the fraud, and had" }, { "docid": "4323687", "title": "", "text": "Rule 10b-5, a plaintiff must allege 1) damage to plaintiff; 2) caused by reliance on the defendant’s misrepresentations or omissions of material facts, or on a scheme by defendant to defraud; 3) made with scienter; 4) in connection with the purchase or sale of securities; 5) promulgated through the use of the mails, an instrument of interstate commerce, or a securities exchange facility. See Royal American Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1015 (2d Cir.1989); Goodridge v. Harvey Group Inc., 728 F.Supp. 275, 280 (S.D.N.Y.1990). With respect to SSC, there is no specific allegation that it directly violated § 10(b) and Rule 10b—5; indeed, ¶ 23 of the complaint clearly states that the Individual Defendants engaged in the scheme to manipulate securities prices, and that SSC “aided and abetted these activities.” Complaint 1123. Moreover, even if plaintiffs have attempted to allege primary violations by SSC, such a claim must fail. It is well-established that a clearing firm, such as SSC, does not have a fiduciary relationship with the customers—such as plaintiffs herein—of the introducing broker with which it has contracted to perform clearing services. See Edwards & Hanly v. Wells Fargo Securities Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979) (“a clearing agent ... is generally under no fiduciary duty to the owners of the securities that pass through its hands.”), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y.1990); Stander v. Financial Clearing & Services Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990) (Leisure, J.); Ross v. Bolton, 639 F.Supp. 323, 326-27 (S.D.N.Y.1986). The services that SSC allegedly performed for Equities were ordinary clearing house functions. The allegation, without more, that SSC was also allegedly “responsible for compliance with securities laws and regulations” by Equities, without any allegation or legal authority that SSC owed any such duty to the plaintiffs, cannot create a fiduciary duty where none existed. Plaintiffs have not alleged any false or misleading statements by SSC. Because plaintiffs have not adequately alleged a fiduciary relationship between SSC and themselves, SSC owed plaintiffs no duty" }, { "docid": "23656441", "title": "", "text": "constitute substantial assistance. “[T]he simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Stander v. Financial Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990); cf. Edwards & Hanly v. Wells Fargo Sec. Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979) (clearing brokers owe no separate duty to customers of an introducing broker). In sum, the arbitrators did not ignore or refuse to apply well-defined and clearly applicable law in rejecting any of the appellant’s claims in such a way that would amount to manifest disregard. CONCLUSION For the foregoing reasons, we hold that: (1) where, as here, a § 10 petitioner complains principally and in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition; and (2) the district court in this case properly rejected the petitioner’s claim for failure to demonstrate that the arbitrators had manifestly disregarded the law in their treatment of his securities claims. We have considered the petitioner’s other arguments and find them to be without merit. Accordingly, we affirm the judgment of the district court." }, { "docid": "14839983", "title": "", "text": "‘close the joint.’ Compl. H 13. DISCUSSION Rule 12(b)(6) Plaintiffs’ first claim, on the registration issue, fails to state a claim for relief under Fed.R.Civ.P. 12(b)(6). A clearing broker performing merely its processing functions cannot be held liable for fraudu lent misrepresentations made by an introducing broker to that introducing broker’s customers. Ross v. Bolton, 904 F.2d 819 (2d Cir.1990). An introducing broker is not acting as an agent of the clearing broker when the introducing broker makes fraudulent misrepresentations to its customers. Dillon v. Militano, 731 F.Supp. 634, 639 (S.D.N.Y.1990) (clearing broker does not owe a fiduciary duty to the customers of an introducing broker). Neither primary nor aiding and abetting liability under the securities laws attaches to a clearing broker who merely clears trades for an introducing broker. Dillon v. Militano, supra; Lester v. Basner, 676 F.Supp. 481, 484 (S.D.N.Y.1987); Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1618, n. 18 (S.D.N.Y.1986), aff'd Asch v. Phillips, Appel & Walden, Inc., 867 F.2d 776 (2d Cir.), cert. denied, 493 U.S. 835, 110 S.Ct. 114, 107 L.Ed.2d 75 (1989). No facts have been pled which would create an exception to this general rule. The allegation that Simon Katz, at an unspecified time, saw Financial Clearing employees visiting the offices of Brown Knapp screaming they would “close the joint,” is insufficient to show that Financial Clearing was in a special position with respect to knowledge of Brown Knapp. No misrepresentations by defendant have been alleged. The fact that certain of Brown Knapp’s brokers may have had someone else take the Series 7 exam for them is not the type of fraud that a clearing broker is in a position to discover during the ordinary course of business. Cf. Faturik v. Woodmere Securities, Inc., 431 F.Supp. 894, 896-97 (S.D.N.Y.1977) (denying a clearing broker’s motion to dismiss because facts alleged, indicating a close relationship between introducing and clearing broker, suggested the clearing broker may have had notice of churning by virtue of its executive and record keeping function). Plaintiffs’ conclusory allegations of scienter are also insufficient under Fed.R.Civ.P. 9(b), because plaintiffs have" }, { "docid": "14839982", "title": "", "text": "in The Wall Street Journal of criminal investigation of BK’s principals, was false, and FICS, upon information and belief, either knew of that falsehood or recklessly disregarded indications thereof. 3. The accounts were purportedly liquidated by FICS on October 22, 1987— without consent of the Katzes, notwithstanding that the accounts had a substantial equity balance, and in an arbitrary and senseless manner, causing the Katzes a substantial loss. The only allegation in the complaint relating to the relationship between Brown Knapp and Financial Clearing is the allegation that Financial Clearing, knew or was reckless in failing to have discovered that early in 1985, when it entered into an agreement with BK establishing a clearing arrangement, in which BK represented that it was duly licensed, it was not licensed at all; upon information and belief, FICS knew or was reckless in failing to have discovered that BK had been terminated by its former clearing broker; and Simon Katz, on several occasions, saw FICS employees visiting the offices of BK, and heard them screaming that they would ‘close the joint.’ Compl. H 13. DISCUSSION Rule 12(b)(6) Plaintiffs’ first claim, on the registration issue, fails to state a claim for relief under Fed.R.Civ.P. 12(b)(6). A clearing broker performing merely its processing functions cannot be held liable for fraudu lent misrepresentations made by an introducing broker to that introducing broker’s customers. Ross v. Bolton, 904 F.2d 819 (2d Cir.1990). An introducing broker is not acting as an agent of the clearing broker when the introducing broker makes fraudulent misrepresentations to its customers. Dillon v. Militano, 731 F.Supp. 634, 639 (S.D.N.Y.1990) (clearing broker does not owe a fiduciary duty to the customers of an introducing broker). Neither primary nor aiding and abetting liability under the securities laws attaches to a clearing broker who merely clears trades for an introducing broker. Dillon v. Militano, supra; Lester v. Basner, 676 F.Supp. 481, 484 (S.D.N.Y.1987); Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1618, n. 18 (S.D.N.Y.1986), aff'd Asch v. Phillips, Appel & Walden, Inc., 867 F.2d 776 (2d Cir.), cert. denied, 493 U.S. 835, 110 S.Ct." }, { "docid": "18100638", "title": "", "text": "law ... make out a ease of aiding and abetting against the clearing broker.” We made this latter point in Greenberg v. Bear, Steams & Co., 220 F.3d 22, 29 (2d Cir.2000), which dealt with claims against Bear Stearns arising out of the very same ML Direct IPO at issue in the present case. There, we affirmed the district court’s denial of a petition to vacate an NASD arbitration award that had in turn dismissed securities fraud and state-law claims brought against Bear Stearns by an investor in the IPO. As relevant here, we noted that “there was ample evidence for the arbitrators to conclude that Bear Stearns’ participation [in the ML Direct IPO] was insufficient to constitute substantial assistance” under New York aiding and abetting law. Id. at 29. Applying these principles, district courts in this Circuit have distinguished two categories of cases. First, in cases where a clearing broker was simply providing normal clearing services, district courts have declined to “impose[ ] liability on the clearing broker for the transgressions of the introducing broker.” Fezzani v. Bear, Stearns & Co., 592 F.Supp.2d 410, 425-26 (S.D.N.Y.2008); see also, e.g., Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 470 (S.D.N.Y.2001) (“A clearing broker does not provide ‘substantial assistance’ to or ‘participate’ in a fraud when it merely clears trades.”); In re Blech Sec. Litig., 961 F.Supp. 569, 584 (S.D.N.Y.1997) (“[P]rimary liability [under § 10(b)] cannot attach when the fraudulent conduct that is alleged is no more tha[n] the performance of routine clearing functions.”). The district courts have so held even if the clearing broker was alleged to have known that the introducing broker was committing fraud, Fezzani, 592 F.Supp.2d at 425; even if the clearing broker was alleged to have been clearing sham trades for the introducing broker, In re Blech, 961 F.Supp. at 584; and even if the clearing broker was alleged to have failed to enforce margin requirements against the introducing broker — thereby allowing the introducing broker’s fraud to continue — in violation of Federal Reserve and NYSE rules, Cromer, 137 F.Supp.2d at 471-72. In the second," }, { "docid": "5530554", "title": "", "text": "first and second prongs of these tests. Bear Stearns does not deny the existence of an underlying fraud or that Berger breached his fiduciary duty to the plaintiffs, nor does it contest for the purposes of these motions that it had actual knowledge of those wrongs. Rather, the parties disagree as to whether the plaintiff has adequately alleged the “substantial assistance” and “participation” elements which, as discussed above, share largely identical requirements. A clearing broker does not provide “substantial assistance” to or “participate” in a fraud when it merely clears trades. “The simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000). The plaintiffs have attempted to allege that Bear Stearns did more than just clear trades. To meet their obligation to plead that Bear Stearns provided substantial assistance to the fraud, the plaintiffs have alleged that, in violation of the margin regulations of the FED, the NYSE, and its own institutional rules, it over-extended margin credit to Berger and permitted him to violate the concentration limitations ordinarily applied by Bear Stearns and described in the Offer Memo, and instead of freezing the Fund’s account when it was required by regulations to do so, it allowed Berger to continue to trade. A failure to enforce margin requirements, or continuing to execute trades despite margin violations, however, does not constitute substantial assistance. Dillon v. Militano, 731 F.Supp. 634, 637, 639 (S.D.N.Y.1990); Stander v. Fin. Clearing & Serv. Corp., 730 F.Supp. 1282, 1287 (S.D.N.Y.1990). Similarly, executing trades in order to reduce “a loan of money under margin” is insufficient to create liability. Ross v. Bolton, 639 F.Supp. 323, 327 (S.D.N.Y.1986). None of the cases on which the plaintiffs rely are sufficient to overcome these long established principles. Neither IIT v. Cornfield, 619 F.2d 909, 922 (2d Cir.1980), nor the other cases cited by the plaintiffs permit allegations of heightened scienter to substitute for adequately alleged substantial assistance. Even" }, { "docid": "6418999", "title": "", "text": "of any assets of the trust created hereby in accordance with the directions of the Trustees.” (Compl., Ex. A at 13-14; Ex. B at 15.) Moreover, Lesavoy claims that the SSB Defendants owed the Trust Managers a fiduciary duty to execute trades according to instructions. 2. Substantial Assistance Lesavoy further alleges that the SSB Defendants “enabled” the Trust Managers to commit breaches of their fiduciary duty by providing routine clearing services in accordance with the Trust Managers’ instructions. However, the SSB Defendants owed no fiduciary duty to the Trust, and as held by the Second Circuit, “the simple providing of normal clearing services to a primary broker [, even one] who is acting in violation of the law [,] does not make out a case of aiding and abetting against the clearing broker.” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000) (quoting Stander v. Fin. Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990)). New York courts have further refused to hold clearing brokers liable for the practices of others even when the clearing broker continued to provide clearing services after it knew or should have known of a third party’s fraudulent scheme. Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 471-72 (S.D.N.Y.2001); Schwarz v. Bear Stearns & Co., No. 603795/97, 1998 WL 672708 (N.Y.Sup. 1998), aff'd, 266 A.D.2d 133, 698 N.Y.S.2d 855 (1st Dep’t 1999) (dismissing plaintiffs claims against Bear Stearns, the clearing broker, even though Bear Stearns was alleged to have had knowledge of fraud by introducing broker). Here, the Trust instruments themselves provided that the SSB Defendants had no duty to investigate trades directed by the Trust Managers. (Compl., Ex. A at 13, Ex. B at 15.) Aiding and abetting liability only arises when a defendant affirmatively assists a breach and “when plaintiffs injury was ‘a direct or reasonably foreseeable result’ of the complained of conduct.” Kolbeck, 939 F.Supp. at 249; Cromer, 137 F. Supp.2d at 471-72 (dismissing an action against Bear Stearns because, while the “scheme may only have been possible because of Bear Stearns’ actions, or inaction, Bear Stearns’ conduct was" }, { "docid": "15862923", "title": "", "text": "S.Ct. 734, 62 L.Ed.2d 731 (1980); Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991) (same); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y. 1990) (same); Stander v. Financial Clearing & Services Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990) (same). See also Lester v. Basner, 676 F.Supp. 481, 483-84 (S.D.N.Y. 1987) (clearing broker is not the agent of introducing broker); Ahn v. Rooney, Pace, Inc., 624 F.Supp. 368, 370-71 (S.D.N.Y.1985) (same). That rule applies here because debtor performed limited services for Stratton Oakmont and Datek pursuant to identical “Fully Disclosed Clearing Agreements” (the “Clearing Agreements”). In substance, the agreements provide, among other things, that the introducing broker is not debtor’s agent, debtor has no control over introduced accounts and debtor acts subject to the introducing broker’s instructions. For example, the agreement states: The Clearing Agent shall limit its services pursuant to the terms of this Agreement to that of clearing functions and related services expressly set forth herein and the Introducing Firm shall not hold itself out as an agent of the Clearing Agent____ Neither this Agreement nor any operation hereunder shall create a general or limited partnership, association or joint venture relationship between the Clearing Agent and Introducing Firm. The Clearing Agent shall not be bound to make any investigation into the facts surrounding any transaction that it may have with the Introducing Firm on a principal or agency basis or that the Introducing Firm may have with its customers or other persons, nor will the Clearing Agent be under any responsibility for compliance by the Introducing Firm with any laws, rules or regulations which may be applicable to the Introducing Firm. Clearing Agreements, ¶ 4. Among the “Services to be Performed by the Clearing Agent” are to “[cjlear and settle, and if requested to do so, execute transactions in the Introduced Accounts, and release or deposit monies or securities to or for the Introduced Accounts, but only upon the Introducing Firm’s instructions.” Clearing Agreements, ¶ 3(a)(i) (emphasis added). Notice of debt- or’s limited role in the clearing process appears in its Disclosure Statement pursuant to Rules 382 and 405 of" } ]
575555
"and history, to be substantive, at least apart, from whatever procedural connotations “unusual"" may have. The latter may be consistent with the procedural approach of Gregg and of Justices Douglas, Stewart, and White in Fur-man. But the then unprecedented procedural reading of the Eighth Amendment given by Lockett thrusts entirely in the opposite direction. That the Court has since embraced such a Lockett-type procedural requirement as a component of its current Eighth Amendment jurisprudence cannot be doubted. Nor can it be doubted, however, that such a component is not only opposite from that of Gregg and the Fur-man three, but is also distinct from the traditional procedural due process approach exemplified, among the post-Gregg capital punishment cases, by decisions such as REDACTED Thus, though we know that the Lockett-type procedural component exists, there are fewer of the normal guideposts by which to make a principled gauging of its limits and contours."
[ { "docid": "22614880", "title": "", "text": "petitioner had no opportunity to respond. A procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the “character and record of the individual offender,” id., at 304, fails to meet the “need for reliability in the determination that death is the appropriate punishment” which the Court indicated was required in Woodson, supra, at 305. This conclusion stems solely from the Eighth Amendment’s ban on cruel and unusual punishments on which the Woodson decision expressly rested, and my conclusion is limited, as was Woodson, to cases in which the death penalty is imposed. I thus see no reason to address in this case the possible application to sentencing proceedings—in death or other cases—of the Due Process Clause, other than as the vehicle by which the strictures of the Eighth Amendment are triggered in this case. For these reasons, I do not join the plurality opinion but concur in the judgment. Mr. Justice Blackmun, concurring in the judgment. Given the judgments of the Court in Woodson v. North Carolina, 428 U. S. 280 (1976), and in Roberts v. Louisiana, 428 U. S. 325 (1976), each attained by a plurality opinion of Justices Stewart, Powell, and Stevens, in combination with respective concurrences in the judgment by Justices Brennan and Marshall, I concur in the judgment the Court reaches in the present case. See also Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); and Gregg v. Georgia, 428 U. S. 153 (1976). Mr. Justice Brennan. I agree for the reasons stated in the plurality opinion that the Due Process Clause of the Fourteenth Amendment is violated when a defendant facing a death sentence is not informed of the contents of a presentence investigation report made to the sentencing judge. However, I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting). I therefore would vacate the death sentence, and I dissent from the" } ]
[ { "docid": "23538381", "title": "", "text": "decision essentially holds that the state cannot execute a defendant unless it establishes, according to constitutionally sufficient criteria of aggravation and according to constitutionally mandated procedures, that capital punishment is appropriate for that defendant. Nothing in Gregg, however, requires the state to execute defendants for whom such a finding is made. The sentencing authority can'find that mitigating circumstances established by defense evidence outweigh such aggravating factors. It can also invoke whatever standards it wishes—objective or otherwise—to nullify the significance of any state proof of aggravation. Id. at 375 (footnote omitted). In this view, Lockett does indeed create an asymmetry in the channeling of jury sentencing discretion. That asymmetry is offensive, however, only if one assumes that the grant of mercy to some based on their particularized circumstances, somehow abridges the constitutional rights of others whose particular circumstances do not inspire mercy. It may well be that the Lockett plurality does not share that assumption with Justices White and Rehnquist. 655 F.2d at 1376 n. 57. Hertz & Weisberg, supra note 3, conclude that “there is a central distinction for eighth amendment purposes between the decision to impose a death sentence and the decision to afford mercy.” Id. at 375. But see Gillers, supra note 3, at 29, 30 (arguing that perhaps “recognizing that an ‘arbitrariness’ theory is useful at the fringes, but weaker at the core, Lockett shifted the inquiry from the avoidance of arbitrariness to what may be called its opposite, the recognition of ‘uniqueness’ ... Lockett, while acknowledging the arbitrariness analysis of Furman and Gregg (insofar as it relied on Furman), had to sidestep both”); Berns, For Capital Punishment 184 (1979) (“Thus, having begun in 1972 in Furman v. Georgia by complaining of the capriciousness of the sentences imposed in capital cases and suggesting that to prevent this capriciousness statutes must limit the distinction available to judges or juries when imposing sentences, the Court [in Lockett ] .. . has now begun to complain of, in effect, the absence of discretion. As a result, we are likely to see more of what the Court calls ‘capriciousness’ ”). ." }, { "docid": "10099156", "title": "", "text": "S.Ct. at 3452-53 (quoting Gregg, 428 U.S. at 192, 96 S.Ct. at 2934) (brackets in original) (emphasis in original). By the time of Adams’ trial, however, the Supreme Court had placed some substantive limitations on the factors that a capital sentencing jury could consider in determining whether death was appropriate: In Gregg itself the joint opinion suggested that excessively vague sentencing standards might lead to the arbitrary and capricious sentencing patterns condemned in Furman. 428 U.S. at 195 n. 46 [96 S.Ct. at 2935 n. 46]. Moreover, in Woodson v. North Carolina, 428 U.S. 280 [96 S.Ct. 2978, 49 L.Ed.2d 944] (1976), the plurality concluded that a State must structure its capital sentencing procedure to permit consideration of the individual characteristics of the offender and his crime. This principle of individualization was extended in Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] (1978), where the plurality determined that “the Eighth and Fourteenth Amendments require that the sentencer [in a capital case] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Finally, in Gardner v. Florida, 430 U.S. 349 [97 S.Ct. 1197, 51 L.Ed.2d 393] (1977), a plurality of the Court held that a death sentence may not be imposed on the basis of a presentence investigation report containing information that the defendant has had no opportunity to explain or deny. Ramos, 463 U.S. at 1000-01, 103 S.Ct. at 3452-53 (brackets in original) (emphasis in original) (footnotes omitted). Beyond these limitations, however, the Court’s Eighth Amendment jurisprudence “deferred to the State’s choice of substantive factors relevant to the penalty determination.” Id. at 1001, 103 S.Ct. at 3453. None of these cases indicated that prosecutorial comments or statements by a trial judge to the jury, other than those that limited the mitigating factors that could be considered, implicated the Eighth Amendment prohibition against cruel and unusual punishment. Further, critical to the Court’s analysis in Caldwell is its conclusion that" }, { "docid": "2139207", "title": "", "text": "valid penological purpose is fostering predictability, consistency, objectivity, rationality, and reviewa-bility in capital sentencing. That purpose would seem to be fostered by not affording the jurors a vehicle by which to give decisive effect to the sort of considerations advanced by Penry, insofar only as the jurors may deem those considerations wholly irrelevant to either of the two Texas capital sentencing special issues. Accordingly, while there is indeed a tension between Jurek and expressions in other recent decisions of the Court, it is by no means clear that Jurek has been or should be fatally undermined. In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), the Court held it was not ««constitutional to grant the jury \"absolute discretion” to impose or not to impose the death sentence on one committing murder in the first degree. Id. at 1456. Interestingly, in the companion case of Crampton v. Ohio, the Court noted, but suggested no error in, the instruction to the jury that it \" ‘must not be influenced by any consideration of sympathy.’ ” Id. at 1461. By the next year, during which Justices Harlan and Black departed the Court, McGautha's \"absolute discretion” holding was substantially rendered a dead letter by Furman, as was confirmed four years later in Gregg, 96 S.Ct. at 2936 n. 47. This may reflect the rapidity, or perhaps the ambiguity, of \"the evolving” of \"standards of decency” referenced in Chief Justice Warren’s opinion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), which had likewise proclaimed the constitutionality of capital punishment. Id. at 597-98. Now, a few years still later, has McGautha returned, though in the altered form of a mandatory requirement? To some extent, the answer, in light of the Court’s post-Gregg opinions, must be \"yes,” but just to what extent is not fully clear. Answering the latter question is particularly difficult in light of the fact that the Eighth Amendment's proscription of “cruel and unusual punishments appears, from its text, context, and history, to be substantive, at least apart, from whatever procedural connotations" }, { "docid": "22686001", "title": "", "text": "9 (1950), a condemned prisoner claimed a due process right to a judicial determination of his sanity, yet the Court did not consider the possible existence of a right under the Eighth Amendment, which had not yet been applied to the States. The sole question the Court addressed was whether Georgia’s procedure for ascertaining sanity adequately effectuated that State’s own policy of sparing the insane from execution. See also Caritativo v. California, 357 U. S. 549 (1958); United States ex rel. Smith v. Baldi, 344 U. S. 561 (1953); Phyle v. Duffy, 334 U. S. 431 (1948); Nobles v. Georgia, 168 U. S. 398 (1897). Now that the Eighth Amendment has been recognized to affect significantly both the procedural and the substantive aspects of the death penalty, the question of executing the insane takes on a wholly different complexion. The adequacy of the procedures chosen by a State to determine sanity, therefore, will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State’s power to take the fife of an insane prisoner. There is now little room for doubt that the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. See Solem v. Helm, 463 U. S. 277, 285-286 (1983); id., at 312-313 (Burger, C. J., joined by White, Rehnquist, and O’Connor, JJ., dissenting); Fur-man v. Georgia, 408 U. S. 238, 264 (1972) (Brennan, J., concurring); McGautha v. California, 402 U. S. 183, 226 (1971) (Black, J., concurring). “Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection . . . .” Solern v. Helm, supra, at 286. Moreover, the Eighth Amendment’s proscriptions are not limited to those practices condemned by the common law in 1789. See Gregg v. Georgia, 428 U." }, { "docid": "8574704", "title": "", "text": "failure to detail the precise nature of the selection process itself constitutes unconstitutional arbitrary and capricious action. Upon consideration, the court finds that this claim of error is invalid. In support of his arguments, Cooey cites the important Supreme Court decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978). Neither Furman, Gregg, nor Lockett, however, effectively compels Cooey’s position. For example, in Furman, the Court held that the imposition of the death penalty in the cases before it constituted cruel and unusual punishment in violation of the due process protections of the Eighth and Fourteenth Amendments. Admittedly, as Cooey argues here, in a concurring opinion, Justice Doug las did observe that “[a] penalty ... should be considered ‘unusually1 imposed if it is administered arbitrarily or discriminatorily.” Id. at 249, 92 S.Ct. at 2731-2732 (citation omitted). But Justice Douglas, along with the others who also concurred in the per curiam opinion, addressed the specific issue of how states impose the death penalty itself, not the more general question of applying procedural rules in death penalty cases. Id. at 255, 92 S.Ct. at 2734-2735 (“We have, I fear, taken in practice the same position, partially as a result of making the death penalty discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.”); cf. Gregg, 428 U.S. at 168, 96 S.Ct. at 2922-2923; Lockett, 438 U.S. at 597, 98 S.Ct. at 2960-2961. Moreover, even if a trial court’s violation of § 2945.06 implicates a defendant’s rights to due process and equal protection, this court remains unconvinced that any such violation ever took place.. First, Cooey offers no affirmative evidence to support his assertion that Judge Winter selected his eo:panelists himself. Instead, the record simply reflects that, after accepting Cooey’s wavier of a jury, the judge initiated the process of" }, { "docid": "22221994", "title": "", "text": "safeguard that complements Furman, but Eddings cannot promote consistency, much less rationality. Quite the opposite, as Penry demonstrates. It is imperative, therefore, that we give full effect to the standards designed by state legislatures for focusing the sentencer’s deliberations. This Court has long since settled the question of the constitutionality of the death penalty. We have recognized that “capital punishment is an expression of society’s moral outrage at particularly offensive conduct” and that a process for “ ‘channeling th[e] instinct [for retribution] in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.’” Gregg, 428 U. S., at 183 (joint opinion) (quoting Furman, supra, at 308 (Stewart, J., concurring)). If the death penalty is constitutional, States must surely be able to administer it pursuant to rational procedures that comport with the Eighth Amendment’s most basic requirements. In my view, we should enforce a permanent truce between Eddings and Furman. We need only conclude that it is consistent with the Eighth Amendment for States to channel the sentencer’s consideration of a defendant’s arguably mitigating evidence so as to limit the relevance of that evidence in any reasonable manner, so long as the State does not deny the defendant a full and fair opportunity to apprise the sen-tencer of all constitutionally relevant circumstances. The three Texas special issues easily satisfy this standard. “In providing for juries to consider all mitigating circumstances insofar as they bear upon (1) deliberateness, (2) future dangerousness, and (3) provocation, . . . Texas had adopted a rational scheme that meets the two concerns of our Eighth Amendment jurisprudence.” Penry, 492 U. S., at 358-359 (Scalia, J., concurring in part and dissenting in part). As a predicate, moreover, I believe this Court should leave it to elected state legislators, “representing organized society,” to decide which factors are “particularly relevant to the sentencing decision.” Gregg, supra, at 192. Although Lockett and Eddings indicate that as a general matter, “a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant’s ‘character,’ ‘record,’ or the ‘circumstances" }, { "docid": "22221946", "title": "", "text": "at 276. ' The joint opinion’s ultimate conclusion was: “Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution. Furman v. Georgia, 408 U. S., at 310 (Stewart, J., concurring).” Ibid. It is plain enough, we think, that the joint opinion could reasonably be read as having arrived at this conclusion only after being satisfied that the mitigating evidence introduced by the defendant, including his age, would be given constitutionally adequate consideration in the course of the jury’s deliberation on the three special issues. Three other Justices concurred in the holding that the Texas procedures for imposing the death penalty were constitutional. Id,., at 278-279 (White, J., concurring in judgment). Two years after Jurek, in another splintered decision, Lockett v. Ohio, 438 U. S. 586 (1978), the Court invalidated an Ohio death penalty statute that prevented the sentencer from considering certain categories of relevant mitigating evidence. In doing so, a plurality of the Court consisting of Chief Justice Burger and Justices Stewart, Powell, and Stevens stated that the constitutional infirmities in the Ohio statute could “best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek.” Id., at 606. This the plurality proceeded to do, recounting in the process that the Texas statute had been" }, { "docid": "22127891", "title": "", "text": "be weighed and the procedures to be followed in deciding when to impose a capital sentence,” or (ii) “ma[de] the death penalty mandatory for certain crimes.” Gregg, supra, at 179-180 (opinion of Stewart, Powell, and Stevens, JJ.). In the five cases, the controlling joint opinion of three Justices reaffirmed the principle of Furman that “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” 428 U. S., at 189; accord, Proffitt, supra, at 258 (opinion of Stewart, Powell, and Stevens, JJ.). Based upon this principle, it might have been thought that statutes mandating imposition of the death penalty if a defendant was found guilty of certain crimes would be consistent with the Constitution. But the joint opinions of Justices Stewart, Powell, and Stevens indicated that there was a second principle, in some tension with the first, to be considered in assessing the constitutionality of a capital sentencing scheme. According to the three Justices, “consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson, supra, at 304 (plurality opinion); accord, Gregg, supra, at 189-190, n. 38 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek, supra, at 273-274 (opinion of Stewart, Powell, and Stevens, JJ.); Roberts, supra, at 333 (plurality opinion of Stewart, Powell, and Stevens, JJ.). Based upon this second principle, the Court struck down mandatory imposition of the death penalty for specified crimes as inconsistent with the requirements of the Eighth and Fourteenth Amendments. See Woodson, supra, at 305; Roberts, supra, at 335-336. Two Terms later, a plurality of the Court in Lockett v. Ohio, 438 U. S. 586 (1978), refined the requirements related to the consideration of mitigating evidence by a capital sentences Unlike the mandatory schemes struck down in Woodson and Roberts in which all mitigating evidence was excluded, the Ohio system at issue in Lockett permitted a limited range of mitigating circumstances to be considered by the sentences The plurality nonetheless found this system to be" }, { "docid": "22217589", "title": "", "text": "concurring in part and in the judgment and dissenting in part); id. at 631, 98 S.Ct. at 2974-75 (Rehnquist, J., concurring in part and dissenting in part). Some commentators have concluded from Lockett that “[t]he concern with capriciousness, the worry that when most offenders receive mercy the condemned few will die senselessly, no longer figures significantly in the Court’s decisions.” The Supreme Court, 1977 Term, 92 Harv.L.Rev. 57, 106-07 (1978). However, the Gregg plurality was careful to note that “[njothing in any of our [death penalty cases] suggests that the decision to afford an individual defendant mercy violates the Constitution.” 428 U.S. at 199, 96 S.Ct. at 2937. The exercise of mercy, of course, can never be a wholly rational, calculated, and logical process. From these premises, other commentators have argued that “Lockett is entirely consistent with Furman and the 1976 Cases, because it grants broad sentencer discretion only on the mitigating and not on the aggravating side of the sentencing equation.” Hertz & Weisberg, supra note 51, at 374. To amplify: The Gregg decision essentially holds that the state cannot execute a defendant unless it establishes, according to constitutionally sufficient criteria of aggravation and according to constitutionally mandated procedures, that capital punishment is appropriate for that defendant. Nothing in Gregg, however, requires the state to execute defendants for whom such a finding is made. The sentencing authority can find that mitigating circumstances established by defense evidence outweigh such aggravating factors. It can also invoke whatever standards it wishes — objective or otherwise — to nullify the significance of any state proof of aggravation. Id. at 375 (footnote omitted). In this view, Lockett does indeed create an asymmetry in the channeling of jury sentencing discretion. That asymmetry is offensive, however, only if one assumes that the grant of mercy to some, based on their particularized circumstances, somehow abridges the constitutional rights of others whose particular circumstances do not inspire mercy. It may well be that the Lockett plurality does not share that assumption with Justices White and Rehnquist. In the case at bar, we need not decide whether the Lockett" }, { "docid": "23538380", "title": "", "text": "no longer tell the sentencing body how to treat the mitigating evidence that it does receive). . As the fifth circuit explained in Washington v. Watkins: Equally as important may be the jury’s subjective, unarticulable perceptions of Washington. In their separate opinions in Lockett, Justices White and Rehnquist argued that the plurality was returning to the unguided jury discretion condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)... . However, the Gregg plurality was careful to note that “[njothing in any of our [death penalty cases] suggests that the decision to afford an individual defendant mercy violates the Constitution.” 428 U.S. at 199, 96 S.Ct. at 2937. The exercise of mercy, of course, can never be a wholly rational, calculated, and logical process. From these premises, other commentators have argued that “Lockett is entirely consistent with Furman and the 1976 Cases, because it grants broad sentencer discretion only on the mitigating and not on the aggravating side of the sentencing equation.” Hertz & Weisberg, [supra]. To amplify: The Gregg decision essentially holds that the state cannot execute a defendant unless it establishes, according to constitutionally sufficient criteria of aggravation and according to constitutionally mandated procedures, that capital punishment is appropriate for that defendant. Nothing in Gregg, however, requires the state to execute defendants for whom such a finding is made. The sentencing authority can'find that mitigating circumstances established by defense evidence outweigh such aggravating factors. It can also invoke whatever standards it wishes—objective or otherwise—to nullify the significance of any state proof of aggravation. Id. at 375 (footnote omitted). In this view, Lockett does indeed create an asymmetry in the channeling of jury sentencing discretion. That asymmetry is offensive, however, only if one assumes that the grant of mercy to some based on their particularized circumstances, somehow abridges the constitutional rights of others whose particular circumstances do not inspire mercy. It may well be that the Lockett plurality does not share that assumption with Justices White and Rehnquist. 655 F.2d at 1376 n. 57. Hertz & Weisberg, supra note 3, conclude that “there is" }, { "docid": "23032553", "title": "", "text": "contrast, have undergone substantial evolution in the wake of Furman v. Georgia. The thrust of Furman and its progeny is that the risk of arbitrary imposition of the death penalty inherent in sentencing determinations made without substantive and procedural standards conflicts with the eighth amendment prohibition on cruel and unusual punishment. Because the death penalty, unlike other punishments, is permanent and irrevocable, the procedures by which the decision to impose a capital sentence is made bring into play constitutional limitations not present in other sentencing decisions. See Enmund v. Florida, - U.S. -, -, 102 S.Ct. 3368, 3375-76, 73 L.Ed.2d 1140 (1982); Lockett v. Ohio, 438 U.S. at 605, 98 S.Ct. at 2965; Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977); Woodson v. North Carolina, 428 U.S. 280, 303-04, 305, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U.S. 153, 181-88, 96 S.Ct. 2909, 2928-32, 49 L.Ed.2d 859 (opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408 U.S. at 286-91, 92 S.Ct. at 2750-53 (Brennan, J., concurring); id. at 306, 92 S.Ct. at 2760 (Stewart, J., concurring); id. at 314-71, 92 S.Ct. at 2764-2793 (Marshall, J., concurring). The Supreme Court has adhered to the traditional concept of individualized sentencing, see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. at 303-04, 96 S.Ct. at 2990, but has imposed procedural, as well as substantive, limitations on capital sentence decisionmaking. The view, once prevalent, that the procedural requirements applicable to capital sentencing are no more rigorous than those governing noncapital sentencing decisions, see, e.g., McGautha v. California, 402 U.S. at 217, 91 S.Ct. at 1472; Williams v. New York, 337 U.S. at 251-52, 69 S.Ct. at 1085, is no longer valid. Gardner v. Florida, 430 U.S. at 357-58, 97 S.Ct. at 1204. Although the Court has held capital sentencing proceedings must meet certain procedural requirements, it has not yet delineated the exact scope of constitutional procedural protection to which capital defendants are" }, { "docid": "21584625", "title": "", "text": "at 1764-65 (footnotes omitted). While the language in Godfrey reflected the views of three justices, two years before, a majority of the Court, in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), considered the constitutionality of the Ohio death sentencing procedures and expressed the need to implement special safeguards in capital sentencing proceedings: “Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital eases.” Id. at 605, 98 S.Ct. at 2965. The Court reiterated this position in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982): By requiring that the sentencer be permitted to focus “on the characteristics of the person who committed the crime,” Gregg v. Georgia, supra, [428 U.S.] at 197 [96 S.Ct. at 2936], the rule in Lockett recognizes that “justice ... requires ... that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania v. Ashe, 302 U.S. 51, 55 [58 S.Ct. 59, 61, 82 L.Ed. 43] (1937). Eddings, 455 U.S. at 112, 102 S.Ct. at 875 (emphasis supplied). In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court again reviewed Georgia’s sentencing scheme to determine whether it satisfied the edicts set forth in the above cases. It described the role played by a state court in narrowing the class of capital defendants who can be sentenced to death and stated: This conclusion [the Gregg court’s approval of the Georgia sentencing scheme] rested, of course, on the fundamental requirement that each statutory aggravating circumstance must satisfy a constitutional standard derived from the principles of Fur-man itself. For a system “could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of" }, { "docid": "2139167", "title": "", "text": "before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death. Id. at 273-74, 96 S.Ct. at 2957 (footnotes omitted). We have no doubt that the Texas statute sufficiently narrows the circumstances in which death is imposed. Instead, we are concerned with Gregg’s second part; the individual consideration of the circumstances of the crime and the character of the individual. That law has not been stagnant since Gregg. The Supreme Court has developed what is meant by individualized consideration. Two years after Gregg, the Court considered an Ohio capital punishment statute that required the death penalty unless one of three narrowly drawn mitigating circumstances was present. Lockett v. Ohio, 438 U.S. 586, 593-94, 98 S.Ct. 2954, 2959, 57 L.Ed.2d 973 (1978). The Court found the statute unconstitutional, holding that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 604, 98 S.Ct. at 2964-65 (emphasis in original). In Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982), the defendant, 16 years old at the time of the murder, offered evidence of his trou bling family background and his emotional disturbance. In sentencing Eddings to death, the trial judge stated that “ ‘in following the law,’ he could not ‘consider the fact of this young man’s violent background.’ ” Id. at 112-13, 102 S.Ct. at 876. The Court found that the sentencing violated the rule in Lockett: Just as the State may not by statute preclude the sentencer" }, { "docid": "8574703", "title": "", "text": "Ohio courts do not apply the doctrine of res judicata to claims relying upon such outside evidence. Furthermore, those courts that require applicants to demonstrate a modicum of such evidence appear to presume inherently that the applicant was provided either a hearing or an opportunity upon motion for summary judgment. Thus, the court finds that the res judicata, and consequently, the procedural default doctrine, do not apply to Cooey’s second claim. Under § 2945.06, a three-judge panel in a death penalty case shall consist “of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge or chief justice of that court, and in case there is neither a presiding judge nor a chief justice, by the chief justice of the supreme court.” Cooey argues that the trial judge acted in a manner contrary to the statute by securing the remaining members of his panel for the trial. Furthermore, he points to the paucity of the record and effectively argues that the court’s failure to detail the precise nature of the selection process itself constitutes unconstitutional arbitrary and capricious action. Upon consideration, the court finds that this claim of error is invalid. In support of his arguments, Cooey cites the important Supreme Court decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978). Neither Furman, Gregg, nor Lockett, however, effectively compels Cooey’s position. For example, in Furman, the Court held that the imposition of the death penalty in the cases before it constituted cruel and unusual punishment in violation of the due process protections of the Eighth and Fourteenth Amendments. Admittedly, as Cooey argues here, in a concurring opinion, Justice Doug las did observe that “[a] penalty ... should be considered ‘unusually1 imposed if it is administered arbitrarily or discriminatorily.” Id. at 249, 92 S.Ct. at 2731-2732 (citation omitted). But Justice Douglas, along with" }, { "docid": "22221977", "title": "", "text": "of such schemes. The significant point for present purposes is that Woodson and Sumner's, invalidation of the mandatory death penalty guaranteed that sentencers would exercise some degree of discretion in every capital case. And under our precedents, in turn, any such exercise of discretion is unavoidably bound up with the two requirements of Furman, as identified in Gregg: first and foremost, that the sentencing authority be “provided with standards to guide its use of the information” developed at sentencing, and second, in support of this principle, that the sentencer be “apprised of the information relevant to the imposition of sentence.” Gregg, 428 U. S., at 195. By discovering these two requirements in the Constitution, and by ensuring in Woodson and its progeny that they would always be in play, the Court has put itself in the seemingly permanent business of supervising capital sentencing procedures. While the better view is that the Cruel and Unusual Punishments Clause was intended to place only substantive limitations on punishments, not procedural requirements on sentencing, see Hudson v. McMillian, 503 U. S. 1, 18-20 (1992) (Thomas, J., dissenting); Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting), stare decisis requires that we make efforts to adhere to the Court’s Eighth Amendment precedents, see Walton v. Arizona, supra, at 672 (Scalia, J., concurring in part and concurring in judgment). The mitigating branch of our death penalty jurisprudence began as an outgrowth of the second of the two Furman/Gregg requirements. The plurality’s conclusion in Lockett v. Ohio, 438 U. S. 586 (1978) — that the sentencer in a capital case must “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense,” id., at 604 (opinion of Burger, C. J.) (emphasis deleted) — effectively guarantees the sentencer’s access to categories of information favorable to the defendant. Thus, Lockett was built on the premise, given credence in Gregg, that “where sentencing discretion is granted, it generally has been agreed that the sentencing judge’s possession of the fullest information possible concerning the" }, { "docid": "23658033", "title": "", "text": "and unusual punishment in violation of the eighth and fourteenth amendments.” Id. at 239, 92 S.Ct. at 2727. While this issue was not resolved by the various concurring opinions presented in that decision, the Court later recognized in Gregg v. Georgia, supra, that the residue of those concurring opinions was that, because of the uniqueness of the death penalty as a form of sentence, it could not be imposed under circumstances which presented a substantial risk that it would be inflicted in an “arbitrary or capricious manner.” 428 U.S. at 188, 96 S.Ct. at 2932. The Court further noted that the mandate of Furman was that any discretion afforded a sentencing body in imposing the death penalty must be narrowly channeled so as to minimize the risk of arbitrariness and capriciousness. Id. at 189, 96 S.Ct. at 2932. This mandate has guided the Court’s subsequent death penalty jurisprudence. Four years after the decision in Fur-man, the Court considered the eighth amendment issues posed by five post-Fur-man death penalty statutes. In each of these cases, the Court’s decision as to whether the statute was unconstitutional turned on the nature of the “sentencing procedures” prescribed by the particular statute and the extent to which those procedures focused the sentencing authority’s attention on the particularized nature of the crime and the particularized characteristics of each defendant. The first of these cases was Gregg v. Georgia, supra, in which the Court upheld the constitutionality of the Georgia death penalty statute. Under the scheme as it existed in Georgia in 1976, the class of murderers eligible for capital punishment was narrowed through the statute’s specification of ten statutory aggravating circumstances, one of which must have been determined by the jury to exist beyond a reasonable doubt before a death sentence could be imposed. Georgia Code Ann. § 27-2534.1 (Supp.1975). In addition, the jury was authorized to consider any appropriate aggravating or mitigating circumstances. § 27-2534.1(b). Believing that these procedural requirements would assure that the jury’s attention would be focused “on the particularized nature of the crime and the particularized characteristics of the individual defendant”, the" }, { "docid": "2139208", "title": "", "text": "of sympathy.’ ” Id. at 1461. By the next year, during which Justices Harlan and Black departed the Court, McGautha's \"absolute discretion” holding was substantially rendered a dead letter by Furman, as was confirmed four years later in Gregg, 96 S.Ct. at 2936 n. 47. This may reflect the rapidity, or perhaps the ambiguity, of \"the evolving” of \"standards of decency” referenced in Chief Justice Warren’s opinion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), which had likewise proclaimed the constitutionality of capital punishment. Id. at 597-98. Now, a few years still later, has McGautha returned, though in the altered form of a mandatory requirement? To some extent, the answer, in light of the Court’s post-Gregg opinions, must be \"yes,” but just to what extent is not fully clear. Answering the latter question is particularly difficult in light of the fact that the Eighth Amendment's proscription of “cruel and unusual punishments appears, from its text, context, and history, to be substantive, at least apart, from whatever procedural connotations “unusual\" may have. The latter may be consistent with the procedural approach of Gregg and of Justices Douglas, Stewart, and White in Fur-man. But the then unprecedented procedural reading of the Eighth Amendment given by Lockett thrusts entirely in the opposite direction. That the Court has since embraced such a Lockett-type procedural requirement as a component of its current Eighth Amendment jurisprudence cannot be doubted. Nor can it be doubted, however, that such a component is not only opposite from that of Gregg and the Fur-man three, but is also distinct from the traditional procedural due process approach exemplified, among the post-Gregg capital punishment cases, by decisions such as Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Thus, though we know that the Lockett-type procedural component exists, there are fewer of the normal guideposts by which to make a principled gauging of its limits and contours." }, { "docid": "22705051", "title": "", "text": "death penalty statute, and by its direction to the jury to consider “any mitigating circumstances,” the Georgia statute properly confined and directed the jury’s attention to the circumstances of the particular crime and to “the characteristics of the person who committed the crime . . . .” Id., at 197. Similarly, in Woodson v. North Carolina, 428 U. S. 280 (1976), the plurality held that mandatory death sentencing was not a permissible response to the problem of arbitrary jury discretion. As the history of capital punishment had shown, such an approach to the problem of discretion could not succeed while the Eighth Amendment required that the individual be given his due: “the fundamental respect for humanity underlying the Eighth Amendment. . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id., at 304. See Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977); Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976). Thus, the rule in Lockett followed from the earlier decisions of the Court and from the Court’s insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all. By requiring that the sentencer be permitted to focus “on the characteristics of the person who committed the crime,” Gregg v. Georgia, supra, at 197, the rule in Lockett recognizes that “justice . . . requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania v. Ashe, 302 U. S. 51, 55 (1937). By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency. HH HH H-l We now apply the rule in Lockett to the circumstances of this case. The trial judge stated that “in following the law,” he could not “consider the fact of this young man’s violent background.” App. 189. There" }, { "docid": "10099155", "title": "", "text": "In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its companion cases, the Supreme Court considered Eighth Amendment issues posed by five of the post-Furman death penalty statutes. The Court’s principal concern in these cases, however, was “more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty.” Ramos, 463 U.S. at 999, 103 S.Ct. at 3452 (emphasis in original). Thus, Gregg “did not undertake to dictate to the State the particular substantive factors that should be deemed relevant to the capital sentencing decision,” stating instead that “ ‘the problem [of channeling jury discretion] will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.’ ” Ramos, 463 U.S. at 999-1000, 103 S.Ct. at 3452-53 (quoting Gregg, 428 U.S. at 192, 96 S.Ct. at 2934) (brackets in original) (emphasis in original). By the time of Adams’ trial, however, the Supreme Court had placed some substantive limitations on the factors that a capital sentencing jury could consider in determining whether death was appropriate: In Gregg itself the joint opinion suggested that excessively vague sentencing standards might lead to the arbitrary and capricious sentencing patterns condemned in Furman. 428 U.S. at 195 n. 46 [96 S.Ct. at 2935 n. 46]. Moreover, in Woodson v. North Carolina, 428 U.S. 280 [96 S.Ct. 2978, 49 L.Ed.2d 944] (1976), the plurality concluded that a State must structure its capital sentencing procedure to permit consideration of the individual characteristics of the offender and his crime. This principle of individualization was extended in Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] (1978), where the plurality determined that “the Eighth and Fourteenth Amendments require that the sentencer [in a capital case] not be precluded from considering, as a mitigating factor, any" }, { "docid": "8582635", "title": "", "text": "2990, Justice Stewart reiterated that the existence of unbridled discretion in a death penalty scheme was intolerable, without intimating that any showing of actual arbitrariness was required: Central to the limited holding in Fur-man was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. Similarly, in Roberts, supra, Justice Stevens’s critical plurality opinion condemned the Louisiana mandatory death sentence statute without any consideration of the actual results of sentencing under the new provision, because it failed to comply with Furman’s requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences. Id. at 3007. Finally, the plurality in Gregg recognized that the Furman conclusion that untrammeled discretion to impose the death penalty violated the eighth amendment was in “substantial tension” with the holding in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). The Court in McGautha had found that standardless jury discretion in capital sentencing did not violate the due process clause of the fourteenth amendment. Nonetheless, the plurality announced adherence to its reading of Furman. See Gregg, supra, 96 S.Ct. at 2936, n.47. The plurality also attempted to settle the standards which are to guide judicial review of a penalty under the cruel and unusual punishments clause. The constitutional prohibition comprehends contemporary public standards of decency, see Gregg, supra, 96 S.Ct. at 2925, which may be reflected in the actions of legislatures and juries as well as in the society’s history and traditions. Id. at 2928-29. The eighth amendment, however, also incorporates a standard of human dignity not subject to majoritarian whim. See id. at 2925. That standard prohibits the unnecessary and wanton infliction of pain, as well as gross disproportion between punishment and crime. Id. While the plurality clearly rejected a “least restrictive alternative” analysis, its notion of unnecessary severity definitely embraced the principle that any punishment must demonstrably serve some valid penological justification in order to withstand constitutional scrutiny. See id. at 2929-30. In light of this statement of general eighth amendment principles the" } ]
865875
"denial of his motion to suppress, Polite entered a conditional guilty plea, reserving a right to appeal the denial of his motion to suppress. The court sentenced Polite to time served. This appeal followed. II. Discussion We review de novo the district court's denial of a motion to suppress evidence and ""the factual determinations underlying the district court's decision for clear error."" United States v. Harris, 747 F.3d 1013, 1016 (8th Cir. 2014). ""We affirm unless the denial of the motion is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made."" United States v. Gunnell, 775 F.3d 1079, 1083 (8th Cir. 2015) (quoting REDACTED Under Terry v. Ohio, an officer may stop an individual if the officer has reasonable suspicion that ""criminal activity may be afoot."" 39 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop is justified when a police officer is ""able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."" Terry, 392 U.S. at 21, 88 S.Ct. 1868 ; United States v. Davison, 808 F.3d 325, 329 (8th Cir. 2015). We determine whether reasonable suspicion exists based on ""the totality of the circumstances, in light of the officer's experience."" United States v. Stigler, 574 F.3d 1008, 1010 (8th Cir. 2009) (quoting United States v."
[ { "docid": "16348601", "title": "", "text": "saw Douglas fire the shotgun. The district court entered judgment and sentenced Douglas to 240 months imprisonment. Douglas timely appealed his conviction. II. DISCUSSION Douglas challenges the district court’s denial of his motion to suppress, arguing the officers’ search for, and seizure of, the shotgun violated his Fourth Amendment rights. “In an appeal from a district court’s denial of a motion to suppress evidence, this court reviews factual findings for clear error, and questions of constitutional law de novo.” United States v. Hollins, 685 F.3d 703, 705 (8th Cir.2012). “We affirm unless the denial of the motion ‘is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made.’ ” United States v. Payne, 534 F.3d 948, 951 (8th Cir.2008) (quoting United States v. Stachowiak, 521 F.3d 852, 854 (8th Cir.2008)). The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (quoting Katz, 389 U.S. at 360, 88 S.Ct. 507 (Harlan, J., concurring)). To meet his “burden of proving he had a legitimate expectation of privacy that was violated by the challenged search and seizure,” Douglas must establish (1) he himself “asserted a subjective expectation of privacy” “in the place searched or object seized,” and (2) his “subjective expectation is objectively reasonable.” United States v. Kiser, 948 F.2d 418, 423 (8th Cir.1991). The first question is a question of fact, the second is a question of law. See id. In denying Douglas’s motion to suppress, the district court determined the open-fields doctrine was relevant to determining whether Douglas had a reasonable expectation of privacy in a plastic bag that “was visible to anyone standing near" } ]
[ { "docid": "6190293", "title": "", "text": "S.Ct. 1868, 20 L.Ed.2d 889 (1968). In conducting a Terry stop, the officer may make a protective pat-down search “if he has a reasonable, articulable suspicion that the person may be armed and presently dangerous.” United States v. Roggeman, 279 F.3d 573, 577 (8th Cir.2002), citing Terry, 392 U.S. at 30, 88 S.Ct. 1868. Davison argues that his Fourth Amendment rights were violated because Officer Pickens lacked reasonable suspicion to make an investigatory stop and to frisk Davison for weapons; therefore, all evidence obtained from the illegal stop and frisk must be suppressed. We review determinations of reasonable suspicion de novo, “takfing] care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A. The Stop. The government concedes that Officer Pickens conducted a Terry stop of Davison and Hall; it was not merely a consensual encounter to which Fourth Amendment protections typically do not apply. See United States v. Jones, 606 F.3d 964, 965 (8th Cir.2010). To justify a Terry stop, a “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. A reviewing court must look at the totality of the circumstances, allowing “officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Innocent actions can give rise to reasonable suspicion when considered as part of the totality of the circumstances. United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir.1995). Officer Pickens was dispatched to investigate persons seen operating a stolen truck. Davison argues that, when stopped, he “was merely walking around a city block, on the public sidewalk, with a companion,” which is" }, { "docid": "23676960", "title": "", "text": "(containing the cocaine base and money) at the motel for them. Early the next morning, Garcia left in Navarrete-Barron’s car and was later arrested. When Ibarra arrived at the motel to pick up Navarrete-Barron the next morning, Ibarra made a call to Dianne Cervantes before they left. Ibarra told her that Garcia had taken some money and cocaine. Ibarra and Navarrete-Barron then left-in Ibarra’s truck and were arrested soon after. II. Discussion A. Denial of Motion to Suppress Navarrete-Barron contends that the district court erred in denying his motion to suppress the evidence obtained from the stop of the pickup truck in which he was a passenger. The district court found that the police officers made a valid investigatory stop of the truck based on reasonable suspicion that the occupants of the vehicle were engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 25-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Navarrete-Barron claims that the police officers who stopped the truck actually made an illegal arrest without probable cause, and thus his motion to suppress should have been granted. We review the district court’s factual findings for clear error and its determinations of probable cause and reasonable suspicion de novo. See United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998). An investigatory, or Terry, stop without a warrant is valid only if police officers have a reasonable and articulable suspicion that criminal activity may be afoot. See Terry, 392 U.S. at 25-31, 88 S.Ct. 1868. When justifying a particular stop, police officers “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” See id. at 21, 88 S.Ct. 1868. A Terry stop may turn into an arrest if the stop lasts for an unreasonably long time or if officers use unreasonable force. See Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). During a Terry stop, officers can check for weapons and may take any additional steps that are “reasonably necessary to protect their personal safety and to" }, { "docid": "7037364", "title": "", "text": "entirety. On July 7,1997, by way of an Alford plea, TK made a conditional guilty plea to count one (robbery) of the juvenile delinquency information, reserving his right to appeal the denial of his suppression motion. On August 8, 1997, TK received a juvenile disposition of 30 months probation and restitution of two dollars. An officer may conduct a Fourth Amendment stop to investigate a crime only if the officer has a reasonable suspicion that that person had committed or was committing a crime. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968) (A police officer may “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ”). “ ‘[T]he police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer’s experience, create a reasonable suspicion of criminal activity.’ ” Marti v. City of Maplewood, 57 F.3d 680, 685 (8th Cir.1995) (Marti) (quoting United States v. Weaver, 966 F.2d 391, 394 (8th Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992)). This court reviews the district court’s findings of historical fact for clear error and reviews the determination of whether there was reasonable suspicion de novo. See Ornelas v. United States, 517 U.S. 690,-, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Payne, 119 F.3d 637, 642 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 454, 139 L.Ed.2d 389 (1997). In conducting its de novo review, this court must give due weight to inferences drawn by resident judges and local law enforcement officers from historical facts. Ornelas, 517 U.S. at-, 116 S.Ct. at 1663. In the instant case, the district court made eight express findings of fact and considered the entire record before it, including the evidence presented at the suppression hearing. District Order at 1 (June 19,1997). In his reply brief, TK contests the government’s reliance on certain evidence presented at the" }, { "docid": "8032636", "title": "", "text": "Following an evidentiary hearing, the magistrate judge recommended that the district court deny the motion. In its recommendation, the magistrate judge acknowledged that while “timing and location of a slow-moving car probably do not rise above the level of a hunch ... adding evidence of flight tips the balance in favor of the stop.” The district court adopted the magistrate judge’s recommendation and denied Bas-kin’s motion, explaining that its decision was based upon timing, location, and the fact that “when Deputy Uhan turned on her headlights, the car accelerated quickly.” Baskin appealed the court’s decision. II. Discussion In considering a district court’s denial of a motion to suppress, we review its legal conclusions de novo and its findings of fact for clear error. United States v. McGee, 280 F.3d 803, 805 (7th Cir.2002). The Fourth Amendment protects people from unreasonable searches and seizures. See U.S. CONST, amend. IV. However, a brief, investigatory stop that demands only a limited intrusion into an individual’s privacy is permitted under the Constitution when it is based upon “specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). So, police can conduct a so-called Terry stop if they have reasonable suspicion, supported by articulable facts, that criminal activity is afoot. United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000). Reasonable suspicion amounts to something less than probable cause but more than a hunch. Id. The officer’s decision to make the Terry stop must have been justified at its inception, and the stop must have been reasonably related in scope to the circumstances known to the officer at the time of the stop. United States v. Quinn, 83 F.3d 917, 921 (7th Cir.1996). These circumstances might include the behavior and characteristics of the person detained, as well as the experience of the officer. United States v. Odum, 72 F.3d 1279, 1284 (7th Cir.1995). Ultimately, a court’s determination of reasonable suspicion “must be based on common-sensical judgments and inferences about human behavior.” Illinois v. Wardlow," }, { "docid": "19942567", "title": "", "text": "the magistrate judge’s report and recommendation and denied Stachowiak’s motion to suppress. He thereafter plead guilty to one count of possession with intent to distribute approximately 213 grams of methamphetamine, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B), while reserving his right to appeal all pretrial matters. He was sentenced to 124 months in prison. II In considering an appeal from the denial of a motion to suppress, we review the district court’s factual findings for clear error and its legal determinations de novo. United States v. Wells, 223 F.3d 835, 838 (8th Cir.2000). We are required to affirm the district court’s denial of a motion to suppress “unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made.” United States v. Gladney, 48 F.3d 309, 312 (8th Cir.1995) (quotation omitted). A stop of a motor vehicle is a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). As such, an officer must have “at least articulable and reasonable suspicion” of illegal activity to stop a motor vehicle. Id. at 663, 99 S.Ct. 1391. It is well established a minor traffic violation provides probable cause for a traffic stop, even if it is mere pretext for a narcotics search. United States v. Williams, 429 F.3d 767, 771 (8th Cir.2005). Stachowiak concedes he made an illegal turn, which objectively justified the stop. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Thomas, 93 F.3d 479, 485 (8th Cir.1996) (“[S]o long as police have probable cause to believe that a traffic violation has occurred, the stop is valid even if the police would have ignored the traffic violation but for their suspicion that greater crimes are afoot.”) In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first considered the constitutional limitations on the power of police officers to “stop and frisk” suspicious persons. The" }, { "docid": "20909166", "title": "", "text": "judge issued a report and recommendation denying Quinn’s motion. The district court adopted the report and recommendation over Quinn’s objection. After the court denied his suppression motion, Quinn conditionally pleaded guilty to being a felon in possession of a firearm. Quinn’s presentence investigation report included a four-level increase under USSG § 2K2.1(b)(6)(B) for possession of the firearm in connection with another felony, possession of methamphetamine. The district court applied the enhancement over Quinn’s objection. II. Quinn presents two challenges on appeal. First, he argues that the district court erred by denying his motion to suppress the evidence obtained during the search incident to his arrest because Officer Madera did not have reasonable suspicion to stop him. Second, he argues that the district court erred in assessing a sentencing guidelines enhancement under USSG § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony offense. A. Quinn argues that Officer Madera violated his Fourth Amendment rights because Madera did not have reasonable suspicion to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He does not challenge the manner or duration of the stop, and he does not challenge the search incident to his arrest. In reviewing the denial of a motion to suppress, we review the district court’s findings of fact for clear error and review de novo the ultimate conclusion of whether the stop and search violated the Fourth Amendment. United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). The district court’s denial of a motion to suppress will be upheld unless it is not supported by substantial evidence, is based on an erroneous interpretation of applicable law, or is clearly mistaken in light of the entire record. United States v. Hastings, 685 F.3d 724, 727 (8th Cir.2012). A police officer can stop and briefly detain a person for investigatory purposes if the officer has a reasonable suspicion that criminal activity “may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. 1868. To establish that a Terry stop was supported by reasonable suspicion, “the police officer must be" }, { "docid": "21449063", "title": "", "text": "the remainder of the confiscated funds and, thereafter, through monthly installments from Mr. Riley’s prison earnings or income earned while on supervised release. Mr. Riley did not object to the imposition of a fine. II ANALYSIS A. Motion to Suppress Mr. Riley first challenges the district court’s denial of his motion to suppress. We review a district court’s legal conclusions on a motion to suppress, including the question whether reasonable suspicion existed to justify a stop, de novo. United States v. Lenoir, 318 F.3d 725, 728 (7th Cir.2003). The district court’s underlying findings of fact, however, are reviewed for clear error. Id. “[A] brief investigatory stop that demands only a limited intrusion into an individual’s privacy is permitted under the Constitution when it is based upon ‘specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion.’ ” United States v. Baskin, 401 F.3d 788, 791 (7th Cir.2005) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Officers, therefore, “may conduct an investigatory stop of a person when they have a reasonable, articulable suspicion that criminal activity is afoot.” United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.2006). “Reasonable suspicion amounts to something less than probable cause but more than a hunch.” Baskin, 401 F.3d at 791 (citations omitted). “When determining whether an officer had reasonable suspicion, courts examine the totality of the circumstances known to the officer at the time of the stop, including the experience of the officer and the behavior and characteristics of the suspect.” Lawshea, 461 F.3d at 859. “Ultimately, a court’s determination of reasonable suspicion ‘must be based on commonsensical judgments and inferences about human behavior.’ ” Baskin, 401 F.3d at 791 (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). Given these standards, we believe that Detective Reyna had a reasonable, articulable suspicion to justify the stop of Mr. Riley’s car. The information in De tective Reyna’s possession, as assessed by an experienced officer, supported the reasonable suspicion that Mr. Riley had committed a crime" }, { "docid": "20909167", "title": "", "text": "88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He does not challenge the manner or duration of the stop, and he does not challenge the search incident to his arrest. In reviewing the denial of a motion to suppress, we review the district court’s findings of fact for clear error and review de novo the ultimate conclusion of whether the stop and search violated the Fourth Amendment. United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). The district court’s denial of a motion to suppress will be upheld unless it is not supported by substantial evidence, is based on an erroneous interpretation of applicable law, or is clearly mistaken in light of the entire record. United States v. Hastings, 685 F.3d 724, 727 (8th Cir.2012). A police officer can stop and briefly detain a person for investigatory purposes if the officer has a reasonable suspicion that criminal activity “may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. 1868. To establish that a Terry stop was supported by reasonable suspicion, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. The concept of reasonable suspicion is not “readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Instead, in evaluating the validity of a Terry stop, we must consider the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). “Factors that may reasonably lead an experienced officer to investigate include time of day or night, location of the suspect parties, and the parties’ behavior when they become aware of the officer’s presence.” United States v. Dawdy, 46 F.3d 1427, 1429 (8th Cir.1995). In addition, a person’s temporal and geographic proximity to a crime scene, combined with a matching description of the suspect, can support a finding of reasonable suspicion. United States v. Juvenile TK, 134 F.3d 899, 903-04 (8th Cir.1998). We agree" }, { "docid": "22047356", "title": "", "text": "issue on appeal. The district court, after considering the parties’ arguments, rejected Johnson’s argument that he should nonetheless be awarded the third-level adjustment because he timely pled guilty and thus permitted the government to avoid preparing for a trial. The court then sentenced Johnson to thirty months incarceration followed by three years of supervised release. This appeal followed. II Johnson first appeals the district court’s denial of his suppression motion, which we review de novo. See United States v. Bautista, 362 F.3d 584, 588-89 (9th Cir.2004). Whether there is reasonable suspicion to justify an investigatory stop is a mixed question of law and fact also reviewed de novo. See United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992). We review factual findings for clear error. See United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.2004). Contrary to Johnson’s argument that the seizure of the firearm stemmed from a violation of his Fourth Amendment rights, we think the record amply supported a “stop and frisk” under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” United States v. Enslin, 327 F.3d 788, 795 (9th Cir.2003) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Police may detain or seize an individual for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion “that criminal activity may be afoot.” United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). If an officer reasonably suspects the individual may be armed and dangerous, the officer may “frisk” the person he has stopped to determine if the individual is carrying any weapons. United States v. Washington, 387 F.3d 1060, 1067 (9th Cir.2004) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). This frisk is limited to a patdown of the exterior clothing. Id. “Reasonable suspicion ‘is formed by specific, articulable facts which, together with objective and reasonable" }, { "docid": "3942258", "title": "", "text": "sentence of 96 months’ imprisonment in light of Sanford’s “serious criminal history.” Sanford timely appealed. II Sanford raises three issues on appeal. First, he argues the district court erred by denying his motion to suppress the evidence Officer Muhlenbruch discovered in his search of the vehicle. Second, he argues the district court erred when it applied a four-level increase to his offense level under U.S.S.G. § 2K2.1(b)(6)(B). Third, he argues the district court’s'sentence was substantively unreasonable. A Sanford first argues the district court erred in denying his motion to suppress because Officer Muhlenbruch’s stop exceeded the scope of a Terry investigative stop and amounted to a de facto arrest without probable cause. When a defendant appeals a district court’s order denying a motion to suppress evidence, we review the district court’s “factual findings for clear error, and questions of constitutional law de novo.” United States v. Long, 797 F.3d 558, 564 (8th Cir.2015) (citing United States v. Douglas, 744 F.3d 1065, 1068 (8th Cir.2014)). ‘We affirm unless the denial of the motion is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made.” United States v. Gunnell, 775 F.3d 1079, 1083 (8th Cir.2015) (citing Douglas, 744 F.3d at 1068). Sanford concedes Officer Muhlenbruch had reasonable suspicion to support a Terry stop, but he argues the scope of the stop exceeded Terry and amounted to a de facto arrest. The United States does not argue Officer Muhlenbruch had probable cause to arrest Sanford, but rather the search of the vehicle was merely a Terry stop supported by reasonable suspicion. The only issue on appeal, therefore, is whether the stop was a de facto arrest or merely a Terry stop. There is no clear line between investigative stops and de facto arrests. United States v. Guevara, 731 F.3d 824, 831 (8th Cir.2013). A de facto arrest occurs when the officer’s conduct is more intrusive than necessary for a Terry investigative stop. United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.1994). During a Terry stop, officers" }, { "docid": "6190292", "title": "", "text": "the neighborhood and narcotics activity at the private residence, the recent shooting at police, and the suspects’ evasive behavior. He testified that he frisked Davison before questioning the pair because, “if I feel like I’ve generated enough reasonable suspicion to execute a frisk, then I’m going to generally do that before [questioning] because the whole premise of the frisk is to make sure that we’re in a safe environment to conduct ... the investigation.” The district court denied Davison’s motion to suppress, concluding that “[t]he totality of these circumstances constitute reasonable suspicion for a Terry stop,” and that Pickens had reasonable suspicion to conduct a protective frisk for weapons because he suspected Davison had stolen a truck, and Davison avoided eye contact with police when encountered in a high-crime area. II. Discussion. A police officer may briefly stop an individual to make reasonable inquiries when the officer “has reasonable suspicion that criminal activity may be afoot.” United States v. Hughes, 517 F.3d 1013, 1016 (8th Cir.2008), citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In conducting a Terry stop, the officer may make a protective pat-down search “if he has a reasonable, articulable suspicion that the person may be armed and presently dangerous.” United States v. Roggeman, 279 F.3d 573, 577 (8th Cir.2002), citing Terry, 392 U.S. at 30, 88 S.Ct. 1868. Davison argues that his Fourth Amendment rights were violated because Officer Pickens lacked reasonable suspicion to make an investigatory stop and to frisk Davison for weapons; therefore, all evidence obtained from the illegal stop and frisk must be suppressed. We review determinations of reasonable suspicion de novo, “takfing] care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A. The Stop. The government concedes that Officer Pickens conducted a Terry stop of Davison and Hall; it was not merely a consensual encounter to which Fourth" }, { "docid": "23519908", "title": "", "text": "Motion We review de novo the district court’s determination that reasonable suspicion and probable cause existed. United States v. Maltais, 403 F.3d 550, 554 (8th Cir.2005), cert. denied, —U.S. —, 126 S.Ct. 1345, 164 L.Ed.2d 59 (2006); United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998). We review the district court’s factual findings under a clearly erroneous standard. United States v. Lebrun, 261 F.3d 731, 733 (8th Cir.2001). We will affirm the denial of a suppression motion “unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.” United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir.1998) (citation and internal quotation marks omitted). i. Reasonable Suspicion for Contraband Questions and a Drug-Dog Sniff Donnelly contends that by questioning him about contraband and by requiring him to wait for a drug-sniffing dog, Fitzer unreasonably prolonged his detention. We disagree. To establish an unreasonably prolonged detention, the defendant must show that the officer detained him beyond the amount of time otherwise justified by the purpose of the stop and did so without reasonable suspicion. See United States v. Martin, 411 F.3d 998, 1002 (8th Cir.2005); see also United States v. Jones, 269 F.3d 919, 926 (8th Cir.2001) (“investigative detention must remain within the scope of the traffic stop to be reasonable”). We must consider, then, whether Fitzer had a reasonable suspicion of criminal activity sufficient to expand the scope of his accident investigation to include the potential presence of contraband. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For an investigative Terry-type seizure to be constitutional under the Fourth Amendment, an officer must be aware of “particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); see also Terry, 392 U.S. at 20-21, 88 S.Ct. 1868. Although a reasonable suspicion requires more than an “inchoate hunch,” the officer need" }, { "docid": "19943809", "title": "", "text": "In the report and recommendation on Hughes’s motion to suppress, the magistrate found that because Hughes matched the description given by dispatch, the officer had “reasonable, articulable suspicion that defendant Hughes may have been engaged in criminal activity.” The magis trate ruled that the frisk was “reasonable under the circumstances” because the officer was in a high crime area on a call of suspicious parties trespassing, and at some point became aware of Hughes’s gang affiliation and domestic assault supervision. The magistrate concluded that the officer was “justified in removing the objects from Hughes’s pocket to ensure his personal safety.” The district court adopted the magistrate’s report and recommendation. II. This court reviews the factual findings underlying the denial of a motion to suppress for clear error, and the determination that the Fourth Amendment was not violated de novo. See United States v. Janis, 387 F.3d 682, 686 (8th Cir.2004). The Fourth Amendment protects against unreasonable searches and seizures by the government. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Where a police officer has reasonable suspicion that criminal activity may be afoot, the officer may briefly stop an individual and make reasonable inquiries aimed at confirming or dispelling the suspicion. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop may also be justified if an officer has reasonable suspicion that a crime has previously been committed by an individual. See United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (Terry stop permitted where police have reasonable suspicion that individual was involved in a completed felony). Reasonable suspicion must be supported by “specific and articulable facts.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. In determining whether an officer had a “ ‘particularized and objective basis’ for suspecting legal wrongdoing,” this court must look at the totality of the circumstances, allowing officers to draw on their experience and training. See Arvizu, 534 U.S. at" }, { "docid": "19999666", "title": "", "text": "residents also stated that no one had been at their apartment that morning. Officers then arrested Horton for interference with official acts at approximately 9:35 a.m. A search of the backpack incident to the arrest revealed a loaded handgun. Horton then denied ownership of the backpack. Horton was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the handgun as the fruit of an illegal seizure, and the district court denied his motion. Horton entered a conditional guilty plea, reserving his right to appeal the denial of the motion to suppress. II. Horton argues on appeal that the initial stop was an illegal seizure within the meaning of the Fourth Amendment. Horton also claims that even assuming the officers had justification for the initial seizure, they exceeded the permissible scope of the stop when they conducted a frisk for weapons and continued to detain and question him. We review the district court’s legal conclusions de novo and its factual findings for clear error. United States v. Griffith, 533 F.3d 979, 982 (8th Cir.2008). We also must “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” United States v. Gomez, 312 F.3d 920, 923 (8th Cir.2002) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The parties agree that this police encounter was a Terry stop and therefore a seizure within the meaning of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Police may conduct a brief investigative stop when they have reasonable, articulable suspicion that a person is committing or is about to commit a crime. Id. at 21, 88 S.Ct. 1868. This standard requires that officers be able to point to specific, articulable facts justifying the seizure. Id. Reasonable, articulable suspicion for a Terry stop requires less than probable cause of criminal activity, but the suspicion cannot be based on an “inarticulate hunch[].” See Terry, 392 U.S. at 22, 88 S.Ct. 1868." }, { "docid": "17111645", "title": "", "text": "the police station after officers informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On January 3, 2012, the district court denied Cotter’s motion, with the exception of the statement made at the scene prior to any Miranda warnings. Two days after the denial of his motion, Cotter entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. In reviewing a motion to suppress, we review questions of law de novo but review the “underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials.” United States v. Mabery, 686 F.3d 591, 595 (8th Cir.2012). “We will affirm the district court ‘unless the denial of the motion “is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made.” ’ ” United States v. Zamora-Lopez, 685 F.3d 787, 789 (8th Cir.2012) (quoting United States v. Payne, 534 F.3d 948, 951 (8th Cir.2008)). “[A]n officer may, consistent with the Fourth Amendment conduct a brief investigatory stop when the officer has reasonable articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In addition, if the officer reasonably believes the person with whom he is dealing is armed and dangerous, he is permitted to conduct a protective search of the person’s outer clothing, and any weapons seized as the result of such a search “may properly be introduced in evidence against the person from whom they were taken.” Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, such a search requires more than an officer’s “inchoate and unparticularized suspicion or ‘hunch.’ ” Id. at 27, 88 S.Ct. 1868. Instead, the officer conducting the search “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. “In determining whether reasonable suspicion exists," }, { "docid": "3774613", "title": "", "text": "criminal activity underway.” The district court adopted the report and recommendation of the magistrate judge following a de novo review. Walker now brings the present appeal. I. When reviewing a district court’s denial of a motion to suppress, we examine the findings of fact for clear error and review de novo whether the investigatory stop and search violated the Fourth Amendment. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Morgan, 270 F.3d 625, 630 (8th Cir.2001). Walker contests the legality of the investigatory stop and subsequent search. He argues that the police officers did not have reasonable suspicion to stop the vehicle. For an officer to perform an investigatory stop of a vehicle, there must be reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007) (applying the Terry standard of reasonable suspicion to an investigatory traffic stop). Under the Terry standard, law enforcement officers are permitted to detain an individual for a brief period of time if they have a reasonable suspicion that criminal activity is afoot. See 392 U.S. at 30, 88 S.Ct. 1868. In order for such a stop to be constitutional under the Fourth Amendment, the officer must be aware of “particularized, objective facts, which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983). “Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.” United States v. Halls, 40 F.3d 275, 276 (8th Cir.1994) (quotation marks omitted). “While ‘reasonable suspicion’ must be more than an inchoate ‘hunch,’ the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory stop.” United States v. Fuse, 391 F.3d 924, 929 (8th Cir.2004). The district court cited the' following facts in concluding that Officer Ungurian possessed a reasonable" }, { "docid": "6559627", "title": "", "text": "two suppression hearings, issuing a report and recommendation after each hearing. The magistrate judge recommended denying Smith’s motions to suppress because (1) the officers’ initial stop and detention of Smith was a “lawful investigatory detention” under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (2) the information known to the officers provided probable cause for Smith’s arrest, and (3) Smith abandoned the Cadillac when he fled the scene. After de novo review, the district court adopted the magistrate judge’s recommendation and denied Smith’s motions to suppress. On August 13, 2010, Smith conditionally pled guilty to the felon-in-possession charge, reserving the right to appeal the denial of his motions to suppress. On appeal, Smith argues (1) “the district court erred in finding the stop and seizure of the white Cadillac was a justifiable Terry stop,” (2) “Smith was under de facto arrest, without probable cause, from the moment of his first interaction with law enforcement,” and (3) the abandonment exception did not justify the search of the Cadillac. II. DISCUSSION A. Standard of Review In reviewing a denial of a motion to suppress, we review the district court’s findings of fact for clear error, “giving due weight to the inferences police drew from those facts.” United States v. Newell, 596 F.3d 876, 879 (8th Cir.2010) (quoting United States v. Ramires, 307 F.3d 713, 716 (8th Cir.2002) (internal quotation marks omitted)). We “review[ ] de novo the district court’s legal conclusion that reasonable suspicion or probable cause existed.” Id. “We will affirm the denial of a suppression motion unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.” Id. (quoting United States v. Donnelly, 475 F.3d 946, 951 (8th Cir.2007) (internal quotation marks omitted)). We review the district court’s factual finding that Smith abandoned the Cadillac for clear error and the district court’s legal conclusion of abandonment de novo. See, e.g., United States v. James, 534 F.3d 868, 873 (8th Cir.2008). B. Reasonable" }, { "docid": "20280142", "title": "", "text": "after observing his right hand reaching for something was justified by officer safety. Finally, the district court determined that probable cause existed to arrest Newell when Officer Baudler saw, in plain view, a bag of cocaine sticking out of Newell’s pocket. In reviewing a ruling on a motion to suppress, this court reviews “for clear error the district court’s findings of fact, giving due weight to the inferences police drew from those facts.” United States v. Ramires, 307 F.3d 713, 716 (8th Cir.2002). This court reviews de novo the district court’s legal conclusion that reasonable suspicion or probable cause existed. United States v. Donnelly, 475 F.3d 946, 951 (8th Cir.2007). “We will affirm the denial of a suppression motion unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.” Id. (internal quotation marks omitted). “An investigatory, or Terry, stop without a warrant is valid only if police officers have a reasonable and articulable suspicion that criminal activity may be afoot.” United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999), citing Terry v. Ohio, 392 U.S. 1, 25-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officers must use “the least intrusive means of detention and investigation, in terms of scope and duration, that are reasonably necessary to achieve the purpose of the Terry stop.” Id. A Terry stop may become an arrest, requiring probable cause, “if the stop lasts for an unreasonably long time or if officers use unreasonable force.” Id. However, as part of a lawful Terry stop, officers may take any measures that are “reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.” United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Newell does not argue that the officers lacked reasonable suspicion to conduct an investigative detention on the night of March 18. Rather, he contends the officers’ conduct of opening the car doors, ordering him to place" }, { "docid": "20162175", "title": "", "text": "and in close proximity to the border. According to the district court, those facts, combined with the pickup’s near accident with Staunton and the UPS driver’s gesturing, put Staunton on notice that Palos-Marquez “could be a load driver.” Taking into account Staunton’s initial suspicions, coupled with the UPS driver’s “highly reliable” report to Border Patrol agents that he had seen the pickup driver “taking on a load of individuals by the side of the road,” the district court held there was “more than reasonable suspicion” to justify the stop, and denied the motion to suppress. Pursuant to a plea agreement, PalosMarquez pled guilty to one count of the indictment, reserving the right to appeal the district court’s ruling that there was reasonable suspicion for agents to conduct the stop of his vehicle. Judgment was entered and this timely appeal followed. II We review de novo whether there is reasonable suspicion to justify a stop, United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir.2002), and the district court’s denial of a motion to suppress, United States v. Bautista, 362 F.3d 584, 588-89 (9th Cir.2004). The district court’s underlying factual findings are reviewed for clear error. United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.2004). III An investigatory stop does not violate the Fourth Amendment “if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). To determine whether a stop was supported by reasonable suspicion, “we eon sider whether, in light of the totality of the circumstances, the officer had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir.2007) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). A An officer may justify an investigatory stop based solely or substantially on an informant’s tip, depending on its reliability." }, { "docid": "3252259", "title": "", "text": "sever. The record on appeal establishes (1) Blaylock’s “mere presence” defense was not incompatible with the defenses of his co-defendants; and (2) the jury was able to compartmentalize the trial evidence as it related to each of the co-defendants. The jury actually acquitted Blaylock of two of three indicted offenses, which persuades us the jury proved itself quite capable of compartmentalizing the evidence. We find no abuse of discretion in the district court’s denial of Blaylock’s motion to sever. 2. Suppression Motion Blaylock next contends the district court erred in denying his motion to suppress evidence obtained during an illegal search and seizure. We review de novo the district court’s conclusions of law and review for clear error the district court’s factual findings. See United States v. Welerford, 356 F.3d 932, 935 (8th Cir.2004). We will affirm the district court’s order denying Blaylock’s motion to suppress the fruits of the vehicle search, “unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” United States v. Barry, 394 F.3d 1070, 1074 (8th Cir.2005) (quoting Welerford, 356 F.3d at 935). Traffic stops constitute “seizures” within the meaning of the Fourth Amendment, see United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir.2004), and must be reasonable under the principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Generally, a traffic “stop must be supported by at least a reasonable, articulable suspicion that criminal activity” has occurred or is occurring. United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). A traffic violation, no matter how minor, creates probable cause for a law enforcement officer to stop the vehicle. See United States v. Barry, 98 F.3d 373, 376 (8th Cir.1996). In performing a traffic stop, an officer may conduct investigatory procedures reasonably related in scope to the circumstances that initially justified the interference. United States v. McCoy, 200 F.3d 582, 584 (8th Cir.2000) (per curiam). The" } ]
6112
evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Spencer v. Jackson Cnty. Mo., 738 F.3d 907, 911 (8th Cir.2013). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. REDACTED C. Whether The Motion For Summary Judgment Is Premature ITT argues that the summary judgment motion is premature because discovery has not been completed. Rule 56(b) provides that “a party may file a motion for summary judgment at any time until 30 days after the close of all discovery” unless the court provides otherwise. Fed. R. Civ. P. 56(b). “Although discovery need not be complete before a case is dismissed, summary judgment is proper only if the nonmovant has had adequate time for discovery.” Robinson v. Terex Corp., 439 F.3d 465, 467 (8th Cir.2006). The nonmoving party must make a showing, however, that discovery has been inadequate. Rule 56(f) allows a party to request a delay in granting summary judgment
[ { "docid": "11615725", "title": "", "text": "for summary judgment. The district court granted summary judgment to BMA, finding Pedersen failed to show she engaged in statutorily-protected activity. Pedersen appeals. II “We review a district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences that can be drawn from the record.” Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 541 (8th Cir.2014) (internal quotation marks and citation omitted). Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. • 56(a). The moving party bears the burden of establishing a lack of genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the nonmoving party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunst-ing v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir.2010) (internal quotation marks and citations omitted). The MWA provides “[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee” because the employee, in good faith, reported a violation or suspected violation of law to an employer, governmental body, or law enforcement official or reported a situation in which the quality of health care services “violates a standard established by federal or state law or a professionally recognized national clinical or ethical standard and potentially places the public at risk of harm.... ” Minn.Stat. § 181.932, subd. 1(1), (4) (2007). “Retaliation claims under the MWA ... may be proven either by direct evidence or, in" } ]
[ { "docid": "14398762", "title": "", "text": "judgment. B. Summary Judgment Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Id. at 323, 106 S.Ct. 2548. In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party and- shall accept the nonmoving party’s evidence as true. Anderson v. Liberty Lobby, Inc. (“Liberty Lobby ”), 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court is only required to consider the materials explicitly cited by the parties, but may on its own- accord consider “other materials in the record.” Fed. R. Crv. P. 56(c)(3). For a factual dispute to be “genuine,” the nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in support of [its] position,1\"Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505, and cannot rely on “mere allegations” or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir. 1993); accord Fed. R. Civ. P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See, e.g., Fed. R. Crv. P. 56(c)(1); Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n. 3 (D.C.Cir. 2011) (noting that at summary judgment stage, plaintiff “can no longer rest on" }, { "docid": "21595626", "title": "", "text": "to Dismiss Defendant’s Motion for Summary Judgment,” ECF No. 39, that consists of 103 pages, including a number of exhibits already provided by Amtrak with its motion, compare, e.g., PL’s Suppl. Opp’n Exs. E, G, J, K, and L, with Def.’s Mot. Exs. Y, K, Broadus Decl. Ex. 1, Def.’s Mot. Exs. Q, and V. Amtrak’s motion for summary judgment is now ripe for consideration. II. LEGAL STANDARD Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element' essential to that party’s case, and on which, that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, id. at 323, 106 S.Ct. 2548, while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby ”), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C.Cir.2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a verdict for the nonmoving party”) (internal quotations and citation omitted); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir.2007) (“[Sjheer hearsay counts for nothing on summary judgment”) (internal quotation marks omitted); Fed. R. Civ. P. 56(c) and (e)(2), (3). “Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury is as much art as science.” Estate of Parsons v. Palestinian" }, { "docid": "10614154", "title": "", "text": "& Order Denying Dismissal, ECF No. 12, the parties engaged in extended discovery for over a year. See Minute Orders, dated March 20, 2014; June 30, 2014; July 21, 2014; September 15, 2014 (granting requests for extensions of discovery from April 15, 2014 until October 17, 2014). Pending before the Court are the parties’ cross-motions for summary judgment. See generally Pl.’s Mot; Defs.’ Mot. II. LEGAL STANDARDS A. Summary Judgment Under Federal Rule of Civil Procedure 56 Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, id. at 323, 106 S.Ct. 2548, while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby ”), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Johnson, 795 F.3d 34 (D.C.Cir.2015) (noting that, on summary judgment, appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a verdict for the nonmoving party” (internal quotations and citation omitted)); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir.2007) (“[Sjheer hearsay ... counts for nothing on summary judgment.” (internal quotation marks omitted)); Fed. R. Civ. P. 56(c) and (e)(2), (3). “Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury,” is “as much" }, { "docid": "10561962", "title": "", "text": "Constitution. The University Defendants have filed a cross-motion for summary judgment asserting that the LSA’s use of race as a factor in admissions decisions is, as a matter of law, constitutional. Defendant-Intervenors have filed responses to both motions, supporting the University Defendants’ assertion that the LSA’s admissions policies are constitutional. Standard of Review Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir.2000); see also FED. R. CIV. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could “return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. 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 nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994). The nonmov-ing party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339-40 (6th Cir.1993). If, after adequate time for discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at" }, { "docid": "8542578", "title": "", "text": "with the analysis of the merits requirements under the Lanham Act, the Court denies Mieroware’s Motion for a Preliminary Injunction. III. Summary Judgment on Fair Use Apple’s fair use defense, codified at 15 U.S.C. § 1115(b), is the subject of its Motion for Summary Judgment. The purpose of summary judgment is to “pierce the boilerplate of the pleading and assay the parties’ proof in order to determine whether trial is actually required.” 11 Moore’s Federal Practice 3d, § 56.02 at 56-20 (Matthew Bender 3d ed.1997)(citing Wynne v. Tufts Univ. School of Medicine, 976 F.2d 791, 794 (1st Cir.1992), cert denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993)). “The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Handeen v. Lemaire, 112 F.3d 1339, 1345 (8th Cir.1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Thus, summary judgment is properly granted when the record, viewed in the light most favorable to the nonmov-ing party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). In a motion for summary judgement, the court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253-54, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “As to materiality, the substantive law will identify which facts are material.” Id. By statute, an incontestible trademark is subject to the" }, { "docid": "23435422", "title": "", "text": "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). However, “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A motion for summary judgment may not be defeated by evidence that is “merely colorable” or “is not sufficiently probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Summary judgment is inappropriate “even where there is no dispute as to the evidentiary facts but only as to the conclusions to be drawn therefrom.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)). However, respondents must show that the inferences they suggest are “reasonable in light of the competing inferences_” Matsushi-ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). ? any other nonmoving party that will bear the burden of proof at trial, M & M is entitled to have the credibility of [its] evidence as forecast assumed, [its] version of all that is in dispute accepted, all internal conflicts in it resolved favorably to [it], the most favorable of possible alternative inferences from it drawn in [its] behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered. Charbonnages, 597 F.2d at 414. The appellate standard for" }, { "docid": "8884718", "title": "", "text": "district court erred in granting Bankers’ renewed summary judgment motion, when Bankers’ first summary judgment motion had been denied previously. Second, plaintiff-appellant argues that the district court erred in granting Bankers’ renewed summary judgment motion without permitting discovery of pertinent documents from Bankers. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). The Supreme Court has held: [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmov-ing party’s case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The Court has instructed that “the substantive law will identify which facts are material” and that the trial judge “must view the evidence presented through the prism of the substantive evidentiary burden” in ruling on a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 254, 106 S.Ct. 2505, 2510, 2513, 91 L.Ed.2d 202 (1986). Aligning a summary judgment decision with directed verdict analysis, the Court has defined a factual dispute as genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 477 U.S. at 248, 106 S.Ct. at 2510. When a motion for summary judgment has been made properly, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine" }, { "docid": "5018915", "title": "", "text": "the parties’ arguments and the record as a whole, the court finds that the defendants’ motions are due to be granted in part and denied, in part. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Supreme Court has stated: [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The Supreme Court has noted, on the other hand, that “there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (citations omitted). Summary judgment is improper “if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. at 2510. See Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). At the summary judgment stage, the court must construe the evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The party asking for summary judgment “always bears" }, { "docid": "324679", "title": "", "text": "plaintiff then submitted her first amended complaint. Thereafter, the plaintiff submitted a third and fourth amended complaint. On March 13, 2001, the defendant moved for summary judgment. To date, no discovery has taken place. III. DISCUSSION A. Legal Standard Summary judgment is appropriate when the pleadings and evidence demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See 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); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine what facts are “material,” a court must look to the substantive law on which each claim rests. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense, and therefore, affect the outcome of the action. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. All evidence and the inferences drawn therefrom must be considered in the light most favorable to the nonmov-ing party. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “failfed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and in which that party will bear the ultimate burden of proof at trial.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. See id. 1. Pre-Discovery Summary Judgment A party against" }, { "docid": "18991643", "title": "", "text": "U.S.C. § 12101, et seq. Discovery has been completed. Heise moves for partial summary judgment; Genuine Parts moves for summary judgment. DISCUSSION The court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). This standard mirrors the standard for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), which requires the trial court to enter judgment as a matter of law if there can be but one reasonable conclusion as to the verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at 249, 106 S.Ct. at 2510-11. On a motion for summary judgment, the court views the evidence in favor of the nonmoving party and gives that party the benefit of all justifiable inferences that can be drawn in its favor. Id. at 250, 106 S.Ct. at 2511. The nonmoving party, however, cannot rest upon mere denials or allegations in the pleadings. Nor may the nonmoving party simply argue facts supporting its claim will be developed later or at trial. Rather the nonmoving party must set forth specific facts, by affidavit or otherwise, sufficient to raise a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted. See Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511-12. If a plaintiff fails to support an essential element of a claim, however, summary judgment must issue because a complete failure of proof regarding an essential element renders all other facts immaterial. Celotex, 477 U.S. at 322-23, 106" }, { "docid": "23158727", "title": "", "text": "The district court concluded that Sallis failed to show UM’s reasons were pretextual. The district court also determined that Sallis failed to establish a prima facie case in each of his other claims. Sallis now appeals. II. Discussion A. Standard, of Review We review a district court’s decision to grant summary judgment de novo. Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir.2005). Fed.R.Civ.P. 56(c): mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law1 because the nonmov-ing party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must demonstrate that there are no disputed material facts. Id. The court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep’t of Fin. & Admin., 229 F.3d 721, 723 (8th Cir.2000). The nonmoving party must show by admissible evidence that specific facts remain which create a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir.1995). B. Dismissal of Sallis’s Title . VII Race Claim Sallis argues that -he proffered enough evidence to defeat summary judgment and that the district court misapplied Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Specifically, Sallis contends that the" }, { "docid": "324680", "title": "", "text": "248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. All evidence and the inferences drawn therefrom must be considered in the light most favorable to the nonmov-ing party. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “failfed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and in which that party will bear the ultimate burden of proof at trial.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. See id. 1. Pre-Discovery Summary Judgment A party against whom a claim is alleged may move for summary judgment at any time. See fed. R. Civ. P. 56(b). In Celotex, the Supreme Court explained that there must be “adequate time for discovery” to determine whether summary judgment is appropriate. See 477 U.S. at 322, 106 S.Ct. 2548. If there is insufficient evidence indicating that a jury could return a favorable verdict for the nonmoving party, however, then summary judgment is proper. See National Geographic Soc’y v. International Media Assoc., Inc., 732 F.Supp. 4, 4 (D.D.C.1990). Appellate courts disagree on the meaning of “adequate time for discovery” and, more specifically, whether pre-discovery summary-judgment motions are necessarily premature. Some circuits hold that discovery does not have to be complete to grant a motion for summary judgment. See Alholm v. American Steamship Co., 144 F.3d 1172, 1176-1177 (8th Cir.1998) (the district court did not abuse its discretion by hearing a motion for summary judgment before discovery was scheduled to end, because the plaintiff did not move for a continuance and had “ample opportunity” to secure the information" }, { "docid": "18474490", "title": "", "text": "motion for summary judgment. Plaintiff filed a response to Defendant’s motion on April 6, 2001. Discussion Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir.2000); see also Fed. R. Civ. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could “return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. 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 nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339-40 (6th Cir.1993). If, after adequate time for discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. Defendant contends that it is entitled to summary judgment because this Court lacks jurisdiction over a majority of Plaintiffs claims, and because the statutory provisions relied upon by Plaintiff do not apply to the facts of" }, { "docid": "467389", "title": "", "text": "and factual inferences arising therefrom in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown “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). As the Supreme Court has explained the summary judgment standard: [T]he plain language of Rule 56(c) mandates ihe entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c)). The trial court’s function at this juncture is not “to weigh the evidence and determine the truth of the matter but to deter mine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Barfield v. Brierton, 888 F.2d 923, 938 (11th Cir.1989). The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ ” that there is no genuine issue of material fact and that the moving party" }, { "docid": "4729845", "title": "", "text": "action taken by Wilkes University had a disparate impact upon older workers. (Sisken Report at 2.) Plaintiffs dispute the accuracy, reliability, and conclusions contained in the report. (PSMF, ¶¶ 41-44.) II. DISCUSSION A. Summary Judgment Standard Summary judgment should be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. Cont’l Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party’s favor. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. Mere conclusory allegations taken from the pleadings are insufficient to withstand a motion for summary judgment. Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Summary judgment is to be entered “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Age Discrimination Claims The ADEA declares it unlawful “to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1); see also" }, { "docid": "15799817", "title": "", "text": "B. Motion for Summary Judgment To obtain summary judgment, the moving party must 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(a). When cross-motions for summary judgment are filed, “the fact that both parties simultaneously are arguing that there is no genuine issue of fact does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit.” Podberesky v. Kirwan, 38 F.3d 147, 156 (4th Cir.1994) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2720 (2d ed. 1983)). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. III. DISCUSSION Defendant’s motion to dismiss and cross-motion for summary judgment have overlapping legal arguments. The Court will therefore address these motions simultaneously." }, { "docid": "21821468", "title": "", "text": "Id. at 11. Fannie Mae’s motion for summary judgment is now ripe for consideration. II. LEGAL STANDARD Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, id. at 323, 106 S.Ct. 2548, while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C.Cir.2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a verdict for the nonmoving party”) (citation and internal quotation marks omitted)); see also Fed. R. Civ. P. 56(c). and (e)(2)-(3). “Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.Cir.2011). This evaluation is guided by the related principles that “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, - U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014), and “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby, 477" }, { "docid": "3418697", "title": "", "text": "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,” or by pointing to “an absence of evidence to support the nonmov-ing party’s case.” Id. at 322, 325, 106 S.Ct. 2548; see also Exigent Tech. v. Atrana Solutions, Inc., 442 F.3d 1301, 1307-1308 (Fed. Cir. 2006) (discussing Celotex Corp.). The court must view the evidence in the light most favorable to the nonmov-ant and may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See Anderson, 477 U.S. at 249, 255, 106 S.Ct. 2505; Netscape Comm’s Corp. v. Konrad, 295 F.3d 1315, 1319 (Fed. Cir. 2002) (“When ruling on a motion for summary judgment, all of the nonmovant’s evidence is to be credited and all justifiable inferences are to be drawn in the nonmovant’s favor.”) (citations omitted). In a case such as this, when discovery is ongoing, courts must also evaluate whether “adequate time for discovery” has elapsed so that the nonmovant is not “railroaded by a premature motion for summary judgment.” Celotex Corp., 477 U.S. at 322, 326, 106 S.Ct. 2548 (internal quotation marks omitted). A party opposing summary judgment because “it cannot present facts essential to justify its opposition” may ask the court to defer consideration of or deny the motion while it continues discovery. USCIT Rule 56(d) (allowing the court .to defer or deny the motion, grant further time for discovery, or issue any other appropriate order); see also Celotex Corp., 477 U.S. at 326, 106 S.Ct. 2548; Baron Servs., Inc. v. Media Weather Innovations LLC, 717 F.3d 907 (Fed. Cir. 2013) (addressing Federal Rule of Civil Procedure 56(d) and noting that the rule applies when party opposing summary judgment has been unable to obtain responses to discovery requests and discovery sought would be relevant to issues presented for summary judgment). Rule 56(d) may not be used to aid a party that has been “lazy or dilatory” or has “failed to make use of the various discovery mechanisms” at its disposal. Exigent Tech. v. Atrana Solutions," }, { "docid": "21693821", "title": "", "text": "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) (Emphasis supplied). ... [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by “showing ... that there is an absence of evidence to support the nonmoving party’s ease.” Celotex Corp., supra at 323 and 325, 106 S.Ct. at 2552-53 and 2554. Issues of fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the non-moving party. Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir.1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Material facts are those which \"will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable" }, { "docid": "5157665", "title": "", "text": "any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Facts that could alter the outcome are material facts.” Charlton v. Paramus Bd. of Educ., 25 F.3d 194,197 (3d Cir.), cert. denied, — U.S. —, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. There is no issue for trial unless sufficient evidence favors the nonmoving party so that a jury could return a verdict for that party. Id. at 249, 106 S.Ct. at 2510-11. Rule 56 requires the entry of summary judgment after adequate time for discovery, where a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex, 477 U.S. at 329, 106 S.Ct. at 2555-56. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir.1982). Once the moving party has satisfied its burden, the nonmoving party “must present affirmative evidence to defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 257, 106 S.Ct. at 2514. The affirmative evidence must consist of verified or documented materials. Mere conclusory allegations or denials taken from the pleadings" } ]
659664
two prongs. Thus, plaintiffs must show that: (a) the Site is a CERCLA facility at which there was a release or threatened release of hazardous substances; and (b) each defendant is a covered person responsible for clean-up costs at the Site. A. Release or Threatened Release of Hazardous Substances at the Site Plaintiffs must prove that the Site is a CERCLA “facility,” and that there was a release or threatened release of hazardous substances at the Site. CERCLA defines a “facility” to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9)(B); see also, 42 U.S.C. § 9601(14) (defining “hazardous substance”); REDACTED A “release” of hazardous substances at a facility includes “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers or other closed receptacles containing any substance or pollutant or contaminant).” 42 U.S.C. § 9601(22). Plaintiffs have presented considerable evidence that hazardous materials were disposed of and found at the Site, and that there was a release of those hazardous materials. In particular, many opened and deteriorating drums containing hazardous substances were found at the site. See U.S. Ex. 3 (Harper Affidavit); U.S. Exh. 1 (RI Report) at § 6.4,
[ { "docid": "22799669", "title": "", "text": "House version containing the causation language, see 126 Cong. Rec. 26,786-87, reprinted in 2 CERCLA Legislative History, supra, at 359-61, on which Shore relies, are inapposite. Furthermore, as the State points out, accepting Shore’s arguments would open a huge loophole in CERCLA’s coverage. It is quite clear that if the current owner of a site could avoid liability merely by having purchased the site after chemical dumping had ceased, waste sites certainly would be sold, following the cessation of dumping, to new owners who could avoid the liability otherwise required by CERCLA. Congress had well in mind that persons who dump or store hazardous waste sometimes cannot be located or may be deceased or judgment-proof. See, e.g., Senate Report, supra, at 16, reprinted in 1 CERCLA Legislative History, supra, at 323. We will not interpret section 9607(a) in any way that apparently frustrates the statute’s goals, in the absence of a specific congressional intention otherwise. See Capitano v. Secretary of Health and Human Services, 732 F.2d 1066, 1076 (2d Cir.1984); Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 947 (2d Cir. 1975). Finally, we need not address whether Shore is also subject to liability under section 9607(a)(2) because some 90,000 gallons of waste were disposed of, apparently by unauthorized tenants, after Shore took title on October 13, 1983. Nor need we decide whether hazardous substances have been “disposed of” after Shore employees entered the property in January, 1984. 2. Release or Threat of Release. We reject Shore’s repeated claims that it has put in dispute whether there has been a release or threat of release at the Shore Road site. The State has established that it was responding to “a release, or a threatened release” when it incurred its response costs. We hold that the leaking tanks and pipelines, the continuing leaching and seepage from the earlier spills, and the leaking drums all constitute “releases.” 42 U.S.C. § 9601(22). Moreover, the corroding and deteriorating tanks, Shore’s lack of expertise in handling hazardous waste, and even the failure to license the facility, amount to a threat of release. In addition," } ]
[ { "docid": "11212312", "title": "", "text": "that Defendant is an “owner” under CERCLA. 3. Release or a threatened release of a hazardous substance Defendant’s first argument on this element is that the government has not produced any evidence showing that the chemicals in question were “hazardous.” (Def's Memo in Opposition, Dkt. 110, at 2-4.) His argument is that the government has not shown that the substances in question could cause an imminent and substantial danger to public health. Again, Defendant is arguing that the government must meet an obligation that the CERCLA statute itself does not impose. Under CERCLA 101(14)(A), 42 U.S.C. § 9601(14)(A), the term “hazardous substance” covers any substance designated under 33 U.S.C. § 1321(b)(2)(A). And under that provision, the EPA has designated numerous substances found at the Crescent Plating site, including cadmium, chromic acid, chromium, copper, cyanide, mercury, nickel, zinc, and wastewater treatment sludge. 40 C.F.R. §§ 261.20-24, 261.31, 302.4. Before so designating a substance, the EPA must find that it presents “an imminent and substantial danger,” 33 U.S.C. § 1321(b)(2)(A), but requiring the government to support that finding in every enforcement action would make little sense. There would be no value in identifying substances in the federal code as hazardous if the government were nevertheless required to prove the danger in every enforcement action. Defendant’s argument to the contrary relies on selectively quoting from § 1321(b)(2)(A) in such a way that hides the involvement of the EPA’s rulemaking function. There is no genuine dispute here; chemicals found at the site have been designated as hazardous by the EPA. Next, Defendant argues that the government’s evidence does not show a release or threatened release of a hazardous substance. (Def's Memo in Opposition, Dkt. 110, at 5-9.) CERCLA defines “release” very broadly to include “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).” 42 U.S.C. § 9601(22). The government’s evidence on this element is ample: at the time of the cleanup, the Crescent Plating building held" }, { "docid": "1423952", "title": "", "text": "§ 9607(a)(l)-(3). CERCLA defines a facility as: any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located. 42 U.S.C. § 9601(9). In turn, the term “hazardous substance” is defined in 42 U.S.C. § 9601(14) as being any substance designated under any one or more of the statutes listed therein, or having the characteristics identified under Section 3001 of the Solid Waste Disposal Act (Hereinafter, the (“RCRA”), 42 U.S.C. § 6921, except for those substances which are listed in Section 9601(14) as being specifically excluded). The substances found at the Northernaire site by the EPA and the MDNR included 5400 gallons of waste cyanide and 140 barrels of waste cyanide mix. These are listed as hazardous wastes F007 and F008 under regulations issued pursuant to the RCRA, at 40 C.F.R. § 261.31, and are not specifically excluded by Section 9601(14). Given the presence of these substances at the Northernaire site, there is no question that it is a “facility” within the meaning of CERCLA. The second element which the plaintiff must prove is that there was a release or a threat of release of a hazardous substance at the Northernaire site. United States v. Wade, 577 F.Supp. 1326, 1334 (E.D.Pa.1983). CERCLA defines a release as “[a]ny spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment” of a hazardous substance. 42 U.S.C. § 9601(22). The evidence presently before this court demonstrates that a release did in fact occur. The reports prepared by MDNR and EPA investigators, some of which are in evidence and some of which are discussed in the affidavit or Robert Bowden, show that cyanide, lead, cadium and other hazardous substances were found in the soil at the Northernaire site. Defendants have failed to set forth any evidence which could lead to the conclusion that" }, { "docid": "15880594", "title": "", "text": "261 (1987) and its appendices. Chemical wastes found at the Mottolo site by EPA included substances listed in 40 C.F.R. Part 261 as being hazardous: inter alia, acetone, toluene, trichloroethylene, xylene, butyl acetate, methanol, methylene chloride, methyl methacrylate, methyl ethyl ketone, and methyl isobutyl ketone. Because hazardous substances were deposited at the Mottolo site, it is a “facility” within the meaning of CERCLA. b.Releases and Threatened Releases Occurred at the Site CERCLA defines “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment” of a hazardous substance. 42 U.S.C. § 9601(22). “Environment” is defined as “surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air.” Id. § 9601(8). The contents of at least two tanktrucks of hazardous chemicals were discharged directly onto the Mottolo site’s surface, and numerous corroded and leaking containers at the site contained hazardous materials. Investigating EPA field personnel found that the site’s soil, surface water, and groundwater had been contaminated by hazardous substance discharges. Such conditions constitute “releases” and “threatened releases” within the meaning of CERCLA. See, e.g., New York v. Shore Realty Corp., supra, 759 F.2d at 1045. Defendants argue that plaintiffs have failed to establish the existence of threatened releases because plaintiffs lack evidence of off-site pollution. There is no such requirement in the Act; moreover, the corollary to defendants’ proposition is that polluting one’s own property is acceptable. This contention is both unrealistic and untenable. See United States v. String-fellow, No. CV 83-2501 (JMI) (Mx), slip op. at 20-21, 27-28 (C.D.Cal.Sept. 23, 1986) (Special Master’s Report) (“flies in the face of all reason”). c.Plaintiffs Incurred Response Costs It is undisputed that the United States and New Hampshire have incurred and face future response costs as a result of the actual and threatened releases at the Mottolo site. d.Defendants are Potentially Responsible Parties Plaintiffs must show that each defendant falls within at least one of the four classes of potentially responsible parties described in the Act. These include: the owner or operator of the facility; the owner or operator at" }, { "docid": "16486412", "title": "", "text": "1983, the EPA added Douglassville to CERCLA’s National Priorities List, a list of the nation’s worst environmental sites. Solvent recovery and oil recycling operations at the Doug-lassville site ceased in 1985. . Under 42 U.S.C. § 9607(a), these categories are: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances; and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.... . Under 42 U.S.C. § 9601(8), a facility is defined as: (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of; or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. . Under 42 U.S.C. § 9601(22), a \"release” is defined as: any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions form the engine" }, { "docid": "23544335", "title": "", "text": "vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located____ 42 U.S.C. § 9601(9) (1982). As has already been discussed, PCBs are hazardous substances within the definition of section 101(14) of CERCLA. 42 U.S.C. § 9601(14) (1982). The definition of facility is broad enough to encompass the North Carolina roadside sites where Burns spread the PCB oil, as the definition includes virtually any place at which hazardous wastes have been dumped, or otherwise disposed of. Id. Through their contract with Burns both WTC and Ward personally arranged for disposal of hazardous wastes at a hazardous waste facility as those terms are de fined in CERCLA. This element of section 107(a)(3) liability is therefore established. 4. Release or Threatened Release. There was clearly a “release” of hazardous substances when Burns sprayed the PCB oil on the North Carolina roadsides. The term “release” is defined as: any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment____ 42 U.S.C. § 9601(22) (1982). Spraying PCBs along state-owned roadsides comes squarely within this broad definition. 5. Incurrence of Response Costs. There can also be little dispute that both the United States and the State of North Carolina incurred “response costs” under CERCLA. “Response” means the “removal” or “remedial action.” 42 U.S.C. § 9601(25) (1982). Remedial costs include costs for: those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations," }, { "docid": "14569660", "title": "", "text": "the third prong of the above-described standard is not at issue in this case. While the consistency of the expended costs with the National Contingency Plan is an issue ultimately to be resolved in this litigation, it is not at issue in Phase I. Therefore, resolution of these motions for summary judgment depends only upon the first two prongs. Thus, plaintiffs must show that: (a) the Site is a CERCLA facility at which there was a release or threatened release of hazardous substances; and (b) each defendant is a covered person responsible for clean-up costs at the Site. A. Release or Threatened Release of Hazardous Substances at the Site Plaintiffs must prove that the Site is a CERCLA “facility,” and that there was a release or threatened release of hazardous substances at the Site. CERCLA defines a “facility” to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9)(B); see also, 42 U.S.C. § 9601(14) (defining “hazardous substance”); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n. 15 (2d Cir.1985) (“facility” is defined broadly to include any property where a hazardous substance is present). A “release” of hazardous substances at a facility includes “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers or other closed receptacles containing any substance or pollutant or contaminant).” 42 U.S.C. § 9601(22). Plaintiffs have presented considerable evidence that hazardous materials were disposed of and found at the Site, and that there was a release of those hazardous materials. In particular, many opened and deteriorating drums containing hazardous substances were found at the site. See U.S. Ex. 3 (Harper Affidavit); U.S. Exh. 1 (RI Report) at § 6.4, Table 7-1 (listing hazardous substances found at the Site); U.S. Exh. 2 (Phase II Drum Removal Close Out Report) at pp. 2-4 through 2-9, Table 1. Blosenski argues that there are “flaws and contradictions” in the evidence presented by the moving parties which" }, { "docid": "2153671", "title": "", "text": "follows: The term \"release\" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).... 42 U.S.C. § 9601(22). .Response actions are divided into two broad categories: (1) removal — aimed at preventing environmental damage in the short-term {see 42 U.S.C. § 9601(23)) and (2) remedial — focused on permanently cleaning up a site (see, supra, note 2). CERCLA explicitly includes enforcement activities in its definition of response actions. Section 101(25) of CERCLA, as amended by SARA, defines response as follows: The terms “respond” or “response” means (sic) remove, removal, remedy, and remedial action, all such terms (including the terms \"removal\" and \"remedial action\") include enforcement activities related thereto. 42 U.S.C. § 9601(25). . The EPA relied on section 107 in stating that VPG is a responsible party. VPG asserted that such reliance was misplaced. The relevant portion of section 107 provides as follows: (a) Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall" }, { "docid": "22839736", "title": "", "text": "is a “facility”). Unquestionably, the CCC site is a “site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9). For approximately twenty years, the CCC site was operated as a waste disposal facility. During that time, four major types of wastes were disposed of or treated at the site: acidic wastes (including metal finishing wastes and “pickle liquor” from steel finishing operations); alkaline wastes (including wastes containing cyanides); organic wastes (including trichloroethylene and toluene); and miscellaneous wastes (including arsenic). As indicated previously, any number of hazardous substances, within the meaning of CERCLA Section 101(14), 42 U.S.C. § 9601(14) have “come to be located” at the CCC site. Given the presence of these hazardous substances at the site, the CCC site is a “facility” within the meaning of CERCLA. b. There has been a release or threatened release of hazardous substance from the CCC site CERCLA Section 101(22) defines “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment ...” 42 U.S.C. § 9601(22). This definition has been construed broadly. See Missouri v. Independent Petrochemical Corp., 22 E. R.C. 1167 (E.D.Mo. Jan. 8, 1985). A “release” occurs, for example, when asbestos fibers are blown from a site by the wind, United States v. Metate Asbestos Corp., supra 584 F.Supp. at 1149, or when hazardous substances leach into soil and groundwater. See United States v. Wade, 577 F. Supp. 1326, 1334 (E.D.Pa.1983); United States v. Northeastern Pharmaceutical and Chemical Company, 579 F.Supp. 823 (W.D.Mo.1984) (“NEPACCO”). The release or threatened release “of a or any hazardous substance” is sufficient to establish liability. See United States v. South Carolina Recycling and Disposal, Inc., 14 Env’tl L.Rep. 20272 (D.S.C. Feb. 23, 1984); United States v. Wade, supra, 577 F.Supp. at 1333 (“the release which results in the incurrence of response costs and liability need only be of ‘a’ hazardous substance and not necessarily one contained in the defendant’s waste.”). In their response to the plaintiff’s motion, the four generator defendants dis" }, { "docid": "388177", "title": "", "text": "by the parties that AR-TRA was an owner of the property that is the subject of this litigation. Furthermore, the property is a “facility,” as that term is broadly defined in CERCLA, because the definition includes “any building, structure, installation, equipment, pipe ... or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located ....” 42 U.S.C. § 9601(9). It is undisputed that hazardous substances were stored on ARTRA’s property and have been detected throughout the soil and groundwater at the Hollins Ferry Road site. ARTRA does not dispute that it was an owner of a facility. Rather, ARTRA challenges the other elements necessary to establish its liability — that there was a disposal of a hazardous substance at the time it owned the facility, that there was a release or threatened release of a hazardous substance from the facility, that the release resulted in the incurrence of response costs,, and that the costs incurred were consistent with the National Contingency Plan. A. Disposal and Release CERCLA has adopted the definition of “disposal” found in the Solid Waste Disposal Act, 42 U.S.C. § 6903(3). 42 U.S.C. § 9601(29). It is defined as: the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3). Disposal includes depositing hazardous waste into enclosed containers such as drums or USTs. Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 846 (4th Cir.1992). Furthermore, a disposal may occur by spiffing or leaking “without any active human participation.” Id. at 845. “Release” is defined in CERCLA as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment .... ” 42 U.S.C. § 9601(22). The evidence demonstrates that there was both a disposal and a release during the time" }, { "docid": "22209174", "title": "", "text": "contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4)any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.... (emphasis supplied). As courts have observed, Congress intended that the underscored language relate not only to § 9607(a)(4), but also to § 9607(a)(1) — (3), but apparently misdrafted the language. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1151 n. 4 (1st Cir.1989); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n. 16 (2d Cir.1985). . Unfortunately, CERCLA was passed in great haste during the waning days of the 96th Congress. As a result, the statute is riddled with inconsistencies and redundancies. See A Legislative History, Vol. I, pp. 785-87. . See, e.g., Exec. Order No. 12,580 (January 23, 1987). . See supra n. 4. . A facility is defined as: any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. 42 U.S.C. § 9601(a). The parties have agreed that the Site is a \"facility\" within the meaning of CERCLA. .A release is defined as: any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)," }, { "docid": "14569661", "title": "", "text": "New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n. 15 (2d Cir.1985) (“facility” is defined broadly to include any property where a hazardous substance is present). A “release” of hazardous substances at a facility includes “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers or other closed receptacles containing any substance or pollutant or contaminant).” 42 U.S.C. § 9601(22). Plaintiffs have presented considerable evidence that hazardous materials were disposed of and found at the Site, and that there was a release of those hazardous materials. In particular, many opened and deteriorating drums containing hazardous substances were found at the site. See U.S. Ex. 3 (Harper Affidavit); U.S. Exh. 1 (RI Report) at § 6.4, Table 7-1 (listing hazardous substances found at the Site); U.S. Exh. 2 (Phase II Drum Removal Close Out Report) at pp. 2-4 through 2-9, Table 1. Blosenski argues that there are “flaws and contradictions” in the evidence presented by the moving parties which create a genuine issue of material fact as to the presence of hazardous materials at the Site. Blosenski also claims that certain documents in the EPA administrative record cast doubt on the contention that hazardous substances were at the Site. Blosenski’s arguments and the evidence he presents establish, at most, that there were certain locations at the Site where no hazardous substances were found, or that there is some uncertainty about the exact level of contamination at the Site. They do not cast doubt on the conclusion that hazardous substances were disposed of and were released at the Site. Therefore, the court finds as a matter of law that the Site is a facility and that there was a release of hazardous substances at the Site. It is undisputed that the moving plaintiffs have incurred response costs in its effort to clean up the Site. Therefore, the only issue possibly remaining for the Phase I trial is whether each Phase I defendant is responsible for those costs as a “covered person” under CERCLA. B. Covered" }, { "docid": "11463496", "title": "", "text": "915 F.2d 1355, 1357 (9th Cir.1990); see 42 U.S.C. § 9607(a). To do so, private parties “must establish that 1) the site on which the hazardous substances are contained is a ‘facility’ under CERCLA’s definition of that term; 2) a ‘release’ or ‘threatened release’ of any ‘hazardous substance’ from the facility has occurred; 3) such ‘release’ or ‘threatened release’ has caused the plaintiff[s] to incur response costs that were ‘necessary* and ‘consistent with the national contingency plan’; and 4) the defendant is within one of four classes of persons subject to the Lability provisions of Section 107(a).” 3550 Stevens Creek Assocs. at 1358 (internal citations omitted). Section 107(a) of CERCLA, as codified by 42 U.S.C. § 9607(a), defines those four categories of responsible parties as follows: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which cause the incurrence of response costs, of hazardous substance, shall be liable. First, under CERCLA, 42 U.S.C. § 9601(9)(B). Vista Ray clearly falls within this definition since there is ample evidence in the record showing the existence of high levels of arsenic throughout the property and since the EPA included the entire subdivision within the Site. Next, CERCLA defines a “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22). The term is liberally construed. Lincoln Prop., Ltd.," }, { "docid": "5718836", "title": "", "text": "reasonable likelihood that UTC will be required to pay more than its pro rata or fair share of the common liability. Davis, 20 F.Supp.2d 326, at 331-33, 1998 WL 682980 (citations omitted). See also Boeing, 920 F.Supp. at 1140. II. The Defendants’ Common Liability In order to establish that a defendant shares liability for future response costs, UTC must prove that: 1. The Davis Site is a “facility;” 2. There was an actual or threatened “release” of a “hazardous substance” from the Site; 3. The release or threatened release resulted in or will result in “response costs” being incurred; and 4. The defendant is within one of the four categories of liable parties described in 42 U.S.C. § 9607(a)(l)(4). Davis, 20 F.Supp.2d 326, 332-33, 1998 WL 682980 (citing In re Hemingway Transport, Inc., 993 F.2d 915, 931 (1st Cir.1993); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989); Davis, 882 F.Supp. at 1220.). In this case, there is no question that the first three elements have been proven. CERCLA defines a “facility” as “ay site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located....” 42 U.S.C. § 9601(9)(B). As already noted, a number of hazardous substances were found in containers, the soil and/or the groundwater at the Davis Site. Nor is there any question that those hazardous substances were “released” within the meaning of 42 U.S.C. § 9601(22). That subsection defines a “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).” Here, large volumes of liquid wastes containing hazardous substances were poured or leaked onto the ground and leached into the soil and barrels and other containers containing solid and semi-solid hazardous substances were abandoned and/or buried at the Site. Finally, it is clear that the release and threatened release of those hazardous substances has required and will continue to require response costs to" }, { "docid": "22839735", "title": "", "text": "pit, pond, lagoon, impoundment, [or] landfill ...,” but also “any site or area where a hazardous waste substance has been deposited ... or placed, or otherwise come to be located.” CERCLA § 101(9), 42 U.S.C. § 9601(9) (emphasis added). Simply put, the term “facility” includes every place where hazardous substances come to be located: [T]he legislative history makes clear Congress’ intent to address the problem of hazardous wastes rather than merely a particular category of disposal sites. Indeed, it appears that Congress sought to deal with every conceivable area where hazardous substances come to be located New York v. General Electric Company, 592 F.Supp. 291, 296 (N.D.N.Y.1984) (drag-strip to which contaminated oil had been applied is a “facility”). In order to show that an area is a “facility,” the plaintiff need only show that a hazardous substance, as defined by CERCLA, has been placed there or has “otherwise come to be located” there. See United States v. Me-tate Asbestos Corp., 584 F.Supp. 1143, 1148 (D.Ariz.1984) (a real estate subdivision having asbestos fibers on the ground is a “facility”). Unquestionably, the CCC site is a “site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9). For approximately twenty years, the CCC site was operated as a waste disposal facility. During that time, four major types of wastes were disposed of or treated at the site: acidic wastes (including metal finishing wastes and “pickle liquor” from steel finishing operations); alkaline wastes (including wastes containing cyanides); organic wastes (including trichloroethylene and toluene); and miscellaneous wastes (including arsenic). As indicated previously, any number of hazardous substances, within the meaning of CERCLA Section 101(14), 42 U.S.C. § 9601(14) have “come to be located” at the CCC site. Given the presence of these hazardous substances at the site, the CCC site is a “facility” within the meaning of CERCLA. b. There has been a release or threatened release of hazardous substance from the CCC site CERCLA Section 101(22) defines “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping," }, { "docid": "17030226", "title": "", "text": "disposal at the Site. (Bailen depo., August 7, 1995, at 58-75). Lead is a “hazardous substance” under CERCLA. See 40 C.F.R. § 302.4; Gould, Inc. v. A & M Battery & Tire Serv., 232 F.3d 162, 167 (3rd Cir.2000); Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 411 (4th Cir.1999). As a matter of law, the USLC Site qualifies as a “facility,” because it is a “site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located ....” 42 U.S.C. § 9601(9). The Government also has established, as a matter of law, the existence of a “release” or “threatened release” of a hazardous substance from the facility. Although some of the Defendants dispute this issue, the record reveals no genuine issue of material fact for trial. Indeed, uncontroverted evidence reveals the existence of both a “release” and a “threatened release” of a hazardous substance from the USLC Site. CERCLA defines the term “release” to mean “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)[.]” 42 U.S.C. § 9601(22). As noted above, Bailen and others discharged, dumped or disposed lead-contaminated battery casings at the USLC Site. As a matter of law, such conduct constitutes the “release” of a hazardous substance at the facility. In addition, the uncontroverted evidence establishes the existence of a “release” or “threatened release” from the facility, as required by 42 U.S.C. § 9607(a). John J. O’Grady, an environmental scientist employed by the U.S. EPA, has provided the Court with a declaration in which he explains that the Government has replaced contaminated off-Site soil with clean soil. (Doe. #333 at Exh. 11, ¶ 22). In addition, a June, 1997, Superfund Record of Decision (“ROD”) Amendment published by the U.S. EPA addresses the release and threatened release of lead from the USLC Site. In relevant part, that Amendment recognizes that “[ajctual or threatened releases of hazardous substances" }, { "docid": "571793", "title": "", "text": "tank trucks. On the property there were, among other things, an above-ground tank and two underground tanks used to store mineral spirits. Deposition of R. Thomas, at 69-70, and Ex. RT2; Draft Remedial Investigation Report, Attachment to Quinn Affidavit, at 25. Therefore, the Raymond Road, Annex and Marshalling Yard sites—all of which contain buildings, structures and equipment—are “facilities” within the definition provided in section 101(9)(A) of CERCLA. Moreover, as demonstrated infra, numerous hazardous substances, including PCE, TCE; 1, 1, 1 TCA; 1, 1 DCA; 1, 2 DCA; xylene and toluene have been found to exist in the soil and groundwater at the Raymond Road facility and the Annex facility. These locations are thus “sites or areas” at which “hazardous substances” have been “deposited, stored, disposed of, placed, or otherwise came to be located.” It is apparent, and defendants do not dispute, that the Raymond Road site and the Annex are facilities within the context of section 101(9) of CERCLA. The second factor for liability under section 107 is thus met. 3. Releases or Threatened Releases of Hazardous Substances a. Releases/Threatened Releases Proof of liability under CERCLA must also include evidence of a release or threatened release of hazardous substances at a site. CERCLA defines “release” to include any of the following: “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22). The term “environment” refers to “surface wa ter, groundwater, drinking water supply, land surface or subsurface strata, or ambient air.” 42 U.S.C. § 9601(8). In this case, the governments have provided extensive proofs as to the releases on the Raymond Road site and the Annex. Defendants provide no contrary evidence. The element of “hazardous substances” is likewise supported by plaintiffs without serious dispute on the part of defendants. (1) Raymond Road site Storage tanks were used on the Raymond Road facility. By Richard Thomas’s own testimony, the facility was used, in part, to store solvents. Deposition of R. Thomas, at 14. During the period of 1971 to 1984, there were twenty-one underground storage tanks in pace at the" }, { "docid": "4068673", "title": "", "text": "phenanthrene, and methylene chloride. . Section 517 of the Superfund Amendments and Reauthorization Act of 1986 (\"SARA”), Pub. L. 99-499, § 517, 100 Stat. 1772 (1986), established the Hazardous Substances Superfund, which is in effect a continuation of the Hazardous Substance Response Trust Fund established by section 221 of CERCLA, 42 U.S.C. § 9631 (repealed). . 42 U.S.C. § 9601(9) defines \"facility\" as follows: The term \"facility\" means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. . 42 U.S.C. § 9601(22) defines \"release\" as follows: The term \"release\" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).... 42 U.S.C. § 9602(a) provides that the EPA shall promulgate regulations designating materials as hazardous substances. The regulations at 40 C.F.R. § 302.4 designate substances found at the Taylor site as hazardous substances. . “Response\" means \"remove, removal, remedy and remedial action,” including \"enforcement activities related thereto.\" 42 U.S.C. § 9601(25). . \"Owner” means “in the case of an onshore facility ..., any person owning or operating such facility....” 42 U.S.C. § 9601(20). The term \"person\" includes an individual and a partnership. 42 U.S.C. § 9601(21). . Earlier in this litigation, the court applied Federal Rule of Civil Procedure 36(b) to another party’s failure to respond to requests for admissions, and held that matters as to which unanswered admissions were requested are conclusively established for purposes of this litigation. The discussion of Rule 36(b) in the court’s September 25, 1987 order need not be repeated here. . For example, the government could have submitted affidavits from real estate developers stating" }, { "docid": "15880593", "title": "", "text": "expenditures unless such expenditures complied with applicable CWA provisions is irrelevant and will not be addressed. Additionally, the Court need not address defendants’ argument that preCERCLA expenses are unrecoverable because plaintiffs’ negligent planning and handling of the cleanup was responsible both for the length of time it took to clean up the site and for expenses being incurred after December 11, 1980. These contentions go to the amount of pre-CERCLA response costs plaintiffs may recover, not to whether such costs are recoverable at all. Quinn’s defensive counterclaim against New Hampshire, the viability of which the Court has already recognized adequately, addresses the issue. See United States v. Mottolo, supra, 605 F.Supp. at 910-11. 2. The Elements of CERCLA Liability a. The Mottolo Site is a Facility As defined by CERCLA, a “facility” is essentially any site where a hazardous substance is located. See, e.g., Bliss, supra, 667 F.Supp. at 1305. The term “haz ardous substance” is defined in 42 U.S.C. § 9601(14), and numerous hazardous substances have been listed or described in 40 C.F.R. Part 261 (1987) and its appendices. Chemical wastes found at the Mottolo site by EPA included substances listed in 40 C.F.R. Part 261 as being hazardous: inter alia, acetone, toluene, trichloroethylene, xylene, butyl acetate, methanol, methylene chloride, methyl methacrylate, methyl ethyl ketone, and methyl isobutyl ketone. Because hazardous substances were deposited at the Mottolo site, it is a “facility” within the meaning of CERCLA. b.Releases and Threatened Releases Occurred at the Site CERCLA defines “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment” of a hazardous substance. 42 U.S.C. § 9601(22). “Environment” is defined as “surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air.” Id. § 9601(8). The contents of at least two tanktrucks of hazardous chemicals were discharged directly onto the Mottolo site’s surface, and numerous corroded and leaking containers at the site contained hazardous materials. Investigating EPA field personnel found that the site’s soil, surface water, and groundwater had been contaminated by hazardous substance discharges. Such conditions constitute" }, { "docid": "13082872", "title": "", "text": "APU objects to the absence of direct evidence linking the box to any of APU’s predecessors, there is nothing objectionable in basing findings solely on circumstantial evidence, especially where the passage of time has made direct evidence difficult or impossible to obtain. We accord great deference to the district court’s factual findings, which in this case were meticulously drawn from a record that may have supported competing conclusions. Because there is no clear error, we affirm. D. APU argues that the court erred in concluding that CFA qualifies for CERCLA’s “innocent landowner” defense, set forth at 42 U.S.C. § 9607(b). As discussed above, CERCLA § 107(a) imposes liability on four classes of parties, including the present owner and operator of a vessel or a facility. CERCLA defines a “facility” as including “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.... ” 42 U.S.C. § 9601(9). An otherwise liable facility owner or operator can escape liability by demonstrating that the release or threatened release was caused solely by an act or omission of a third party. See 42 U.S.C. § 9607(b)(3); United States v. 150 Acres of Land, 204 F.3d 698, 703-04 (6th Cir.2000). CERCLA defines a “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).... ” 42 U.S.C. § 9601(22). APU contends that CFA is not an innocent landowner because CFA’s contractor split open the box, releasing the hazardous substance. Additionally, APU asserts that CFA did not exercise due care once the material was released because CFA failed to erect a barrier to prevent the creosote from spreading. APU supports its position that CFA should have erected a barrier with expert testimony that a barrier was required to meet the standard of care in the industry. APU also cites several cases from other circuits which suggest that a party responsible for “moving” a hazardous substance throughout a" }, { "docid": "5718837", "title": "", "text": "a “facility” as “ay site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located....” 42 U.S.C. § 9601(9)(B). As already noted, a number of hazardous substances were found in containers, the soil and/or the groundwater at the Davis Site. Nor is there any question that those hazardous substances were “released” within the meaning of 42 U.S.C. § 9601(22). That subsection defines a “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).” Here, large volumes of liquid wastes containing hazardous substances were poured or leaked onto the ground and leached into the soil and barrels and other containers containing solid and semi-solid hazardous substances were abandoned and/or buried at the Site. Finally, it is clear that the release and threatened release of those hazardous substances has required and will continue to require response costs to be incurred. “Response costs” include both “removal” activity and “remedial” activity. 42 U.S.C. § 9601(23). Davis, 882 F.Supp. at 1220 n. 5. Removal activity encompasses “the cleanup or removal of released hazardous substances from the environment,” and “remedial” activity extends to actions that “prevent or mini mize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.” Id. Here, EPA’s three-pronged cleanup plan includes both kinds of activity. The only issue is whether the defendants are liable for those response costs on the grounds that they either operated the facility, transported the hazardous substances to the site, or arranged for the hazardous substances to be disposed of at the Site. A. Owner/Operator Liability CERCLA imposes liability on “the owner and operator of ... a facility” and on “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of....” 42 U.S.C. §§ 9607(a)(1) & (2). In" } ]
232638
2A. Has plaintiff proved by a preponderance of the evidence that race was a discernible or motivating factor in his discharge? Answer: Yes. 2B. Has defendant proved by a preponderance of the evidence that plaintiff would have been fired in any event, regardless of his race? Answer: Yes. In accordance with the verdict, judgment was entered for the defendants on all claims. Foster moved for judgment n.o.v. or, in the alternative, for a new trial. The district court denied the motion. Foster now appeals the judgment. II. Initially, we note that at the time of the trial in this matter, termination of employment on the basis of race was still actionable under § 1981 in the Eighth Circuit. See REDACTED Since then, this court, sitting en banc, has held that the Supreme Court’s decision in Patterson v. McLean Credit Union bars such a cause of action. Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947, 948 (8th Cir.1991) (en banc). We must still consider Foster’s arguments, however, because his claims are founded on Title VII as well as on § 1981. Foster first argues that he is entitled to judgment under the mixed-motive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), because the defendants presented no objective evidence that he would have been fired even if he were white. Since the jury found that his firing was motivated in
[ { "docid": "21564584", "title": "", "text": "Brown Group, Inc., would have terminated plaintiff Kenneth Hicks from employment, even had plaintiffs race and age not been a discernible or motivating factor or a determining factor in the decision to terminate? Answer: Yes. Hicks argues that Special Interrogatories numbers 5 and 10 ask the same question, namely whether Hicks’ race was the “but for” cause of his termination. Hicks argues that Special Interrogatory No. 10 should be disregarded as surplusage, and requests this court to grant him reinstatement and related equitable relief. In the alternative, Hicks requests a partial new trial in order for the jury to determine, given that race played a role in his discharge, whether it made a difference in determining the outcome of that decision. Brown Group does not respond to the apparent conflict between Special Interrogatories Nos. 5 and 10, but instead argues that Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion) (Price Water-house ), requires that judgment be entered in its favor because the jury’s answer to Special Interrogatory No. 10 established that Hicks would have been discharged even if his race was not taken into account. Price Waterhouse is a mixed-motive Title VII case decided by the Supreme Court while this appeal and cross-appeal were pending. In Price Waterhouse, the plurality held that once a plaintiff proves that a prohibited factor “played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [impermissible factor] into account.” Id. 109 S.Ct. at 1795 (emphasis added). Brown Group argues that Price Waterhouse implicitly overruled Bibbs v. Block, 778 F.2d 1318, 1324 (8th Cir.1985) (en banc), which held that an employer who shows that it would have made the same decision may avoid promotion or reinstatement, but not liability under Title VII. Brown Group further argues, without discussing the different purposes and legislative histories of Title VII and Section 1981, that Price Waterhouse also undermines this court’s Section" } ]
[ { "docid": "23274557", "title": "", "text": "at 3012. On its face, defendant’s suspension letter admits that defendant considered the subject matter of plaintiffs deposition in its decision to terminate him, a deposition which included testimony about his Title VII race discrimination claim. The termination letter explicitly references plaintiffs communication of his dissatisfaction with his compensation. Taken in the light most favorable to plaintiff, we must conclude the letters, coupled with the close temporal proximity between plaintiffs deposition and firing, directly support the jury’s finding that defendant terminated-plaintiff in retaliation for his pursuit of his Title VII race discrimination claim. . ■ Defendant argues that, notwithstanding the language in its letters to Medlock, it is entitled to JMOL because no reasonable jury could reject the nondiscriminatory reasons on which it purportedly relied to terminate plaintiff. According to defendant, it only decided to discharge plaintiff after learning during his deposition and the discovery process that: (1) he had secretly taped numerous private telephone conversations with coworkers; (2) he had thoughts about doing serious bodily harm to his supervisors; (3) he frequently used vulgarities and was prone to excessive anger; (4) he had made disparaging remarks about the company to customers; and (5) he had disclosed confidential information to OBI’s competitors. The jury rejected these arguments, finding that defendant would not have terminated plaintiff in the absence of retaliatory animus. Once plaintiff presented evidence that retaliation played a motivating part in defendant’s decision to discharge him, it became defendant’s burden to prove by a preponderance that it “would have made the same decision” notwithstanding its retaliatory motive. Denny’s, 111 F.3d at 1511 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), overruled in part by 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (providing broader remedies for plaintiff who demonstrates unlawful criterion was “motivating factor” in adverse employment decision)). If the defense does not carry that burden, the plaintiff will prevail. See NFLPA, 131 F.3d at 203 (citing Price Waterhouse, 490 U.S. at 276, 109 S.Ct. 1775 (O’Connor, J., concurring)). It is true that defendant presented numerous grounds at trial upon which it claims it" }, { "docid": "3058292", "title": "", "text": "jury was Plaintiffs claim that the Jail had retaliated against him, in violation of Title VII and 42 U.S.C. § 1981, by terminating his employment because he had filed a charge against the Jail with the EEOC. At trial, Defendant introduced testimony and documentary evidence of many disci plinary acts taken against Plaintiff during the course of Plaintiffs employment. Defendant presented evidence that Pulliam was fired because of his poor work performance and that Plaintiffs EEOC charge did not enter into the decision to fire Plaintiff. According to Defendant, Plaintiff was fired only for legitimate reasons. Plaintiff presented evidence to try to prove that Defendant’s proffered reasons for discharge were pretext for unlawful retaliation. At the close of the evidence, these special interrogatories were submitted to the jury: 1. Do you find, by preponderance of the evidence, that the defendant, acting through its employees, terminated the plaintiffs employment in retaliation because the plaintiff had filed an EEOC charge of race discrimination and retaliation? 2. Do you find, by preponderance of the evidence, that the retaliation was a determining factor in defendant’s decision to terminate the plaintiffs employment? 3. Do you find, by preponderance of the evidence, that the defendant would have made the same decision to terminate the plaintiffs employment notwithstanding the fact that he filed a charge of race discrimination and retaliation? The jury answered “yes” to all three interrogatories. Following the jury verdict, the district court entered judgment for Defendant, stating, “[b]y reason of the jury’s affirmative answer to Interrogatory No. 3, [Defendant] is entitled to judgment.” Plaintiff then filed a motion to alter or amend the judgment or in the alternative for new trial. The court denied Plaintiffs motion, and Plaintiff appeals. Discussion In an employment discrimination or retaliation case, even if the plaintiff provides evidence that the defendant, in making an adverse employment decision, was motivated in part by an impermissible consideration, the defendant can prevail if it can prove by a preponderance of the evidence that it would have made the same decision even in the absence of the discriminatory consideration. Price Waterhouse v. Hopkins," }, { "docid": "22122718", "title": "", "text": "that employment decisions motivated by both legitimate and discriminatory reasons — so-called “mixed-motive” decisions — are actionable under Title VII, see Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), Congress amended the Civil Rights Act to provide explicitly for liability in mixed-motive cases. See 42 U.S.C.A. § 2000e-2(m) (West 2003); Desert Palace, 539 U.S. at 94, 123 S.Ct. 2148. Pursuant to the 1991 amendments (also known as the Civil Rights Act of 1991), a plaintiff succeeds on a mixed-motive claim if she “demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C.A. § 2000e-2(m). Once such a showing has been made, the employer cannot escape liability. However, through use of a limited affirmative defense, if an employer can demonstrate that it “would have taken the same action in the absence of the impermissible motivating factor,” it can restrict a plaintiffs damages to injunctive and declaratory relief, and attorney’s fees and costs. 42 U.S.C.A. § 2000e-5(g)(2)(B). In the wake of Price Waterhouse and the 1991 Act, several courts of appeals, including this one, required Title VII plaintiffs to present direct evidence of discrimination to succeed on a mixed-motive theory. See Desert Palace, 539 U.S. at 95, 123 S.Ct. 2148; Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.1999) (en banc). In Desert Palace, however, the Supreme Court abrogated these holdings, concluding on the basis of the plain language of § 2000e-2(m) that “direct evidence of discrimination is not required in mixed-motive cases.” 539 U.S. at 101-02, 123 S.Ct. 2148. As in criminal cases and other civil cases, the Court held, circumstantial evidence is sufficient. Id. at 99-100,123 S.Ct 2148. Diamond argues that the Desert Palace holding means that all employment discrimination cases should be analyzed as mixed-motive cases and that Title VII plaintiffs can survive summary judgment simply by presenting a “prima facie case.” She further argues that our en baric deci sion in Hill recognized this dual effect of Desert Palace. These" }, { "docid": "23491744", "title": "", "text": "to the defendants on Baca’s Title VII and §§ 1981 and 1983 discrimination claims. We REVERSE the district court’s order granting summary judgment to the defendants on Baca’s First Amendment retaliation claim and REMAND for further proceedings. . Baca presumably could have argued that he suffered mixed-motive discrimination and urged the court to analyze his claim under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). He did not raise this theory either below or in his briefs before us. Accordingly, we will review his claims under McDonnell Douglas. In re Walker, 959 F.2d 894, 896 (10th Cir.1992) (except in extraordinary circumstances, this court will not consider an issue that was not before the trial court); State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994) (failure to raise an issue in the opening appellate brief waives that issue). . Baca argues that working from home on a single project without supervisory responsibilities constituted a \"demotion/' which is an adverse employment action distinct from wrongful termination. Baca did not raise this argument below and we decline to address it here. . \"[I]n racial discrimination suits, the elements of a plaintiff’s case are the same ... whether that case is brought under §§ 1981 or 1983 or Title VII.” Drake v. Ft. Collins, 927 F.2d 1156, 1162 (10th Cir.1991); see also Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (applying McDonnell Douglas framework to § 1981 suit); Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1226 n. 4 (10th Cir.2000) (\"A plaintiff who alleges discrimina-toiy discharge on the basis of race pursuant to Title VII, 42 U.S.C. § 1983, or § 1981 would have to establish the same elements in order to make out a prima facie case under the McDonnell Douglas burden-shifting analysis.”). Therefore, Baca's §§ 1981 and 1983 racial discrimination claims fail for the same reason that his Title VII claim fails, and accordingly we affirm the district court's dismissal of Baca's §§ 1981 and 1983 claims. . After granting" }, { "docid": "3630957", "title": "", "text": "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 that evidence comes from disinterested witnesses.’” Id. Therefore, I may not substitute my judgment for the jury’s, even if I believe the jury’s verdict is incorrect. Plaintiff’s evidence need not be “overwhelming.” David, 324 F.3d at 858. So long as a reasonable view of the evidence (not necessarily the most reasonable) supports the jury’s findings, then defendant’s motion for judgment as a matter of law must be denied. Before addressing the merits of defendant’s motion, it is important to take note of the Supreme Court’s recent decision, Desert Palace, Inc. v. Costa, - U.S. -, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), which was decided after the trial in this case. In Desert Palace, the Court clarified what a plaintiff must do to prove that an employer “discriminate!)!]” against her “because of’ sex (or race, etc.). Under 42 U.S.C. § 2000e-2(m), which was enacted as part of the Civil Rights Act of 1991, to establish liability in a sex discrimination case, a plaintiff must “demonstrate” by a preponderance of the evidence that her sex was a “motivating factor” in the adverse employment decision. Once a plaintiff has done this, the burden shifts to the employer to prove, also by a preponderance, that it would have taken the same action regardless of the plaintiffs gender. Id. If the employer proves this, the plaintiffs relief is limited to “declaratory relief, certain types of injunctive relief and attorney’s fees and costs.” Desert Palace, 123 S.Ct. at 2151. The question the Supreme Court answered in Desert Palace was whether a plaintiff must present direct evidence that sex was a “motivating factor” in order to establish partial liability and shift the burden of persuasion to the defendant. Relying on Justice O’Connor’s concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), many courts, including the Court of Appeals for the Seventh Circuit in some cases, had held or implied" }, { "docid": "21564585", "title": "", "text": "No. 10 established that Hicks would have been discharged even if his race was not taken into account. Price Waterhouse is a mixed-motive Title VII case decided by the Supreme Court while this appeal and cross-appeal were pending. In Price Waterhouse, the plurality held that once a plaintiff proves that a prohibited factor “played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [impermissible factor] into account.” Id. 109 S.Ct. at 1795 (emphasis added). Brown Group argues that Price Waterhouse implicitly overruled Bibbs v. Block, 778 F.2d 1318, 1324 (8th Cir.1985) (en banc), which held that an employer who shows that it would have made the same decision may avoid promotion or reinstatement, but not liability under Title VII. Brown Group further argues, without discussing the different purposes and legislative histories of Title VII and Section 1981, that Price Waterhouse also undermines this court’s Section 1981 decisions and the Special Interrogatories in this case. While the Special Interrogatories in this case were indeed confusing, we need not address whether they constitute reversible error. Hicks’ counsel failed to object to Special Interrogatory No. 10 at trial despite having the opportunity to do so. Consequently, the issue was not preserved for appellate review. United States v. Carey, 898 F.2d 642 at 644 (8th Cir.1990); United States v. Elem, 845 F.2d 170, 173 (8th Cir.1988); Patterson v. United States, 361 F.2d 632, 636 (8th Cir.1966). We need not address the merits of Hicks’ cross-appeal and Brown Group’s response, and leave for another day the determination of the precise effect (if any) that Price Waterhouse has on this court’s Section 1981 and Title VII precedent. CONCLUSION To summarize, we hold that (1) racially discriminatory discharge continues to be actionable under Section 1981 after Patterson; (2) the district court did not err in denying Brown Group’s motion for a JNOV because the jury’s finding of race discrimination was supported by sufficient evidence; (3) the jury" }, { "docid": "3693580", "title": "", "text": "to foster, and to reflect the norms and standards of the community it serves.” Appellant’s App. at 903. Allowing one student to call another a “fucking bitch” and a “whore” in front of the rest of the class, and allowing a student to read aloud a poem that describes sexual encounters in the most graphic detail, as the students did in Lacks’s classroom, hardly promotes these shared social standards. We consider the matter too plain for argument. As a matter of law, the school board had the right to establish and require the enforcement of a rule which prohibits classroom profanity in any context, and it provided Lacks with enough notice of its disciplinary policies. Therefore, the judgment in the plaintiffs favor on her First Amendment claim is reversed. C. At trial, Lacks set out to prove her race discrimination case by “direct” evidence of discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), rather than the indirect, burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Appellee’s Br. at 51-52. The jury found that Lacks had proved by a preponderance of the evidence that race was a motivating factor in the school board’s decision to terminate her, and that the school board did not prove by a preponderance of the evidence that it would have discharged Lacks regardless of her race. We reverse, and hold as a matter of law that race was not a motivating factor in the school board’s decision to terminate Lacks. In reaching that conclusion, we are mindful that the evidence must be viewed in the light most favorable to the jury’s verdict, and that all reasonable inferences in support of the verdict must be allowed. Lacks points to a statement made by Vernon Mitchell, her principal and supervisor. Mitchell admitted that when he saw the videotape with the students performing their plays, his reaction was that it was “black students acting a fool and white folks videotaping it.” Trial Tr. at 1392. Lacks also elicited testimony from" }, { "docid": "18809507", "title": "", "text": "attempt to secure a job elsewhere in the company) indicating age-based animus existed. Sharply contrasting testimony was presented to the jury, and the jury chose to believe Glover; there is nothing in the record that demonstrates, as a matter of law, this decision was improper or unfounded. The jury simply found Glover to be more credible, and we cannot disturb this determination on appeal. C. Jury Instructions The district court instructed the jury that it should find for Glover if it found First, that plaintiff has proved that his age was, more likely than not, a motivating factor in defendant’s decisions as to discharge and/or re-employment; and second, that defendant has failed to prove that plaintiff would have been discharged and/or not re-employed regardless of his age. In showing that plaintiff’s age was a motivating factor, plaintiff is not required to prove that his age was the sole motivation or the primary motivation for defendant’s decision as to discharge and/or re-employment. This instruction is based on the Supreme Court’s plurality opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Price Water-house applies to mixed-motive cases; that is, “cases in which the employer had both legitimate and illegitimate reasons for its actions.” Gray v. University of Ark. at Fayetteville, 883 F.2d 1394, 1398 (8th Cir.1989). If direct evidence of age discrimination has been presented, the Price Waterhouse -based instruction may properly be given. Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir.1991). Once the plaintiff presents evidence that age was a motivating factor in the employer’s decision, the employer “ ‘may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [illegitimate criterion] into account.’ ” Id. (quoting Price Waterhouse, 490 U.S. at 258, 109 S.Ct. at 1794). McDonnell Douglas contends the “mixed motive” instruction should not have been given and, even if it was proper in this case, it is improperly worded. We reject both contentions. As a general rule, we would expect that" }, { "docid": "13430469", "title": "", "text": "here anyway.” Rodriguez denies that he made the discriminatory-sounding statements, and Quevedo substantiates Rodriguez’s version of events. Defendant moved for summary judgment, arguing that even if it had not discriminated against Plaintiff, her employment would still have been terminated for poor job performance. The district judge agreed, concluding that Defendant met its burden of persuasion under the “same decision” affirmative defense. II. Discussion We review the grant of a motion for summary judgment de novo and resolve all reasonable factual doubts in favor of the non-movant. Van Voorhis v. Hillsborough County Bd. of County Comm’rs, 512 F.3d 1296, 1299 (11th Cir.2008). A. Procedural Background and Gross The district court considered the Defendant’s motion for summary judgment under the burden-shifting standard set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Price Waterhouse, the Supreme Court set out a “burden shifting” procedure for “mixed motive” discrimination claims under Title VII. Briefly stated, under Price Waterhouse, once a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to demonstrate by a preponderance of the evidence that the employer would have made the “same decision” in the absence of the discriminatory motive. See id. at 1795; see also Steger v. Gen. Elec. Co., 318 F.3d 1066, 1075 (11th Cir.2003). Defendant argued in district court that summary judgment was appropriate pursuant to this “same decision” affirmative defense. It contended that, given Plaintiffs poor work, more than a preponderance of evidence showed that Defendant would have fired her, regardless of a discriminatory motive. Plaintiff countered by contending that the burden of persuasion in a motion for summary judgment — that no reasonable juror could find in the nonmovant’s favor — was inconsistent with the Price Waterhouse preponderance standard. The district court disagreed with Plaintiff and concluded that no reasonable juror would dispute that Defendant had met its affirmative defense burden. The district judge wrote that Defendant had demonstrated that Plaintiffs termination was inevitable, given the number and severity of her workplace" }, { "docid": "14608779", "title": "", "text": "§§ 1981 and 1983 and 29 U.S.C. § 623. In her supplementary brief, filed pro se, she claims that the district court erred in granting summary judgment on all the allegations. We review the denial of a summary judgment motion de novó. Summary judgment is proper when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A court must enter summary judgment against “a party, who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. II. Defendants argued to the district court that Richmond could not bring a claim for discriminatory discharge under section 1981. The court recognized that the Supreme Court has held that section 1981 cannot be the basis for a claim for racial harassment in the employment relationship. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), superseded in part by the Civil Rights Act of 1991. The court, however, found itself bound by a previous Eighth Circuit case which had concluded that Patterson did not bar section 1981 suits for racially discriminatory discharges. See Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990), vacated and remanded, — U.S.-, 111 S.Ct. 1299, 113 L.Ed.2d 234 remanded with instructions to dismiss with prejudice, 946 F.2d 1344 (1991). Defendants renew their argument here, stating that because Hicks has now been vacated, this issue is controlled by Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947 (8th Cir.1991) (en banc) (claim for racially discriminatory termination not actionable under section 1981). However, since the briefs were filed in this matter, Congress has passed the Civil Rights Act" }, { "docid": "9877755", "title": "", "text": "to this Court, as it was to the District Court, that Rheem management was entitled to consider Miner more qualified than Chaffin for promotion to group coordinator. Chaffin has failed to demonstrate that Rheem’s decision not to promote him in April 1988 was a violation of Title VII. Chaffin next argues that the District Court erred in failing to consider this case a “mixed-motive” case under this court’s holding in Bibbs v. Block, 778 F.2d 1318, 1323-24 (8th Cir.1985) (en banc). We note, however, that the mixed-motive analysis of Bibbs recently has been modified by the United States Supreme Court. The Court held that once a plaintiff proves that an employer considered a factor prohibited by Title VII in an employment decision, the employer may avoid liability by proving by a preponderance of the evidence that its decision would have been the same absent any impermissible considerations. Price Waterhouse v. Hopkins, — U.S. —, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268 (1989). The District Court found in any event that a mixed-motive analysis was not warranted in this case because Chaffin failed to demonstrate that race played any part in Rheem’s decision not to promote him. The court found that Chaffin’s race and his prior claims of racial discrimination were known and considered by Rheem management. Rheem’s awareness of these factors, however, worked only to Chaffin’s advantage as it gained him special consideration and a second chance at a promotion for which he was not originally recommended. We agree with the District Court’s finding that the facts of this ease do not support a mixed-motive analysis and, thus, Price Waterhouse is inapplicable. III. Chaffin’s final claim is that the District Court erred in not allowing him to maintain a class action on behalf of all past, present, and future black employees of Rheem allegedly adversely affected by Rheem’s promotion procedure. We review a district court’s denial of class certification under the abuse of discretion standard. Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir.1983). After holding a certification hearing, the Magistrate concluded that Chaffin failed to meet the typicality requirement" }, { "docid": "22428617", "title": "", "text": "employer has offered more than one reason for the action that it took. Rather, the relevant inquiry in a “mixed motive” case is distinct from that of a “single motive” or pretext case. We articulated the proper framework in our en banc opinion Costa v. Desert Palace: [I]n cases in which the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate, the jury should be instructed to determine first whether the discriminatory reason was “a motivating factor” in the challenged action. If the jury’s answer to this question is in the affirmative, then the employer has violated Title VII. 299 F.3d at 856-57. Similarly, our opinion in Sischo-Noume-jad v. Merced Community College District summarizes the test as follows: The analysis in a case involving mixed motives is somewhat different. The Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)] plurality found the [Texas Dep’t of Community Affairs v.] Burdine, [450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981),] formula unsuitable for mixed motive cases.... Instead, it adopted a simpler approach. Under Price Water-house, the plaintiff must show that it is more likely than not that a protected characteristic “played a motivating part in [the] employment decision.” Once that is done, the employer may escape liability only by proving by way of an affirmative defense that the employment decision would have been the same even if the characteristic had played no role, 934 F.2d 1104, 1110 (9th Cir.1991) (citations omitted). In the end, the inquiry is straightforward: “[p]ut simply, the plaintiff in any Title VII case may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played ‘a motivating factor.’ ” Costa, 299 F.3d at 853-54. Even at summary judgment, it is important not to lose sight of the ultimate question that will be before the court, should the plaintiff survive summary judgment. See Costa, 299 F.3d at 857(“The employee’s ultimate burden of proof in all cases remains the same: to" }, { "docid": "11113893", "title": "", "text": "racial issue in the union negotiations. Consequently, although firing Canup was not a desirous outcome, Osborne and the president felt that the best thing to do was to act consistently with past practice and terminate Canup’s employment. Canup brought suit, alleging seven causes of action: race discrimination, retaliation, tortious interference with contracts, bad faith and “stubborn litigiousness,” defamation, and invasion of privacy. The case ultimately went to trial on only Count I of the complaint, with Canup requesting damages for lost wages in the amount of $590,000 and additional unspecified amounts for compensatory and punitive damages. Following trial, the jury found that Canup’s race was a factor in CUI’s decision to terminate his employment, but that CUI would have terminated Canup for his violation of company policy even if Canup’s race had not been considered. This resulted in a verdict in Canup’s favor, but by operation of law entitled him to recover no damages. Canup then filed a motion for attorney fees and costs, requesting fees in the amount of $110,779.50 and costs in the amount of $12,-553.20. The District Court concluded that the appropriate amount of fees in this case would be no fees at all. The District Court did award costs in the amount of $6,768.43; this aspect of the award is not appealed by either party. II. DISCUSSION In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court held that in Title VII cases, once the plaintiff establishes an impermissible factor played a motivating part in an employment decision,' “the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would: have made the same decision even if it had not taken the [impermissible factor] into account.” 490 U.S. at 258, 109 S.Ct. at 1795. In response, Congress passed the 1991 Civil Rights Act which, inter alia, altered the effect of a finding of liability under this subset of mixed motive eases. Now, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national" }, { "docid": "2289617", "title": "", "text": "VII. The court cannot construe a plausible claim under Title VII to establish federal question jurisdiction over this lawsuit. b. A Claim Under 42 U.S.C. § 1981? The “substantive allegations” and citation of 42 U.S.C. § 1981 in the jurisdictional statement could be construed as a woefully inartful attempt to state a federal cause of action upon which to base subject matter in this case. The court concludes that a federal cause of action under 42 U.S.C. § 1981 is a more plausible claim than one under Title VII in light of the procedural and pleading flaws identified in the preceding section that block Thomas’s assertion of a claim under Title VII. The court must therefore consider whether Thomas may pursue his claim of constructive discharge and disparate treatment in employment on the basis of race under 42 U.S.C. § 1981. In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the United States Supreme Court concluded that § 1981 cannot be the basis for a claim for racial discrimination in the employment relationship. Patterson, 491 U.S. at 182, 109 S.Ct. at 2875. The Court held that § 1981 is limited to claims involving “a refusal to enter into an employment contract on the basis of race.” Id. Thus, after Patterson, § 1981 “extendfed] only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Id. at 176, 109 S.Ct. at 2372; Williams ¶. KETV Television, Inc., 26 F.3d 1439, 1444 (8th Cir.1994). The Eighth Circuit Court of Appeals followed Patterson by holding that racially-discriminatory-discharge claims may not be brought under § 1981. Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947, 948 (8th Cir.1991) (en banc); see also Valdez v. Mercy Hosp., 961 F.2d 1401, 1403-04 (8th Cir.1992) (citing Taggart); Hicks v. Brown Group, Inc., 952 F.2d 991, 992 (8th Cir.1991) (citing Taggart), rev’d on other grounds and remanded, — U.S.-, 112 S.Ct. 1255, 117 L.Ed.2d 485 (1992). However, effective November 21, 1991, that portion of Patterson relied on in Taggart" }, { "docid": "23103099", "title": "", "text": "Given these facts, the court’s decision was not “a clear error of judgment,” nor did it “exceed[ ] the bounds of permissible choice in the circumstances.” Id. at 1331 (quotation omitted). Furthermore, because the District Court did not consider the May 23 letter, we also decline to consider the letter on appeal. We therefore proceed to review Ms. Fye’s retaliation claim on the basis of the March 6 termination letter, as well as Mr. Daxon’s deposition testimony. B. Title VII Retaliation Claim Under 42 U.S.C. § 2000e-3(a), it is unlawful “for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII].” To prevail on a Title VII retaliation claim, a plaintiff must establish that retaliation played a part in the employment decision and may choose to satisfy this burden in two ways. Under what is often characterized as a “mixed-motive” theory, the plaintiff may directly show that retaliatory animus played a “motivating part” in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), superseded in part by 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir.1999). Once the plaintiff proves that retaliatory animus was a motivating factor, the burden of persuasion shifts to the defendant to prove that it would have taken the same action absent the retaliatory motive. See Price Water-house, 490 U.S. at 252, 109 S.Ct. 1775 (plurality opinion); id. at 261, 109 S.Ct. 1775 (O’Connor, J., concurring in the judgment) (agreeing with plurality that the burden of persuasion should shift to the employer once the plaintiff proves that an unlawful motive was a motivating factor); see also Medlock, 164 F.3d at 550 (“Once plaintiff presented evidence that retaliation played a motivating part in [the employer’s] decision to discharge him, it became [the employer’s] burden to prove by a preponderance that it would have made the same decision notwithstanding its retaliatory motive.” (quotation omitted)). If, however, the plaintiff is unable to directly establish that retaliation played" }, { "docid": "1436877", "title": "", "text": "(“CRA”) permits injunctive relief and an award of attorney’s fees and/or costs in a mixed-motive retaliation ease. We conclude that it does not and therefore vacate the order of the district court. Congress enacted the CRA in part to overrule the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). That case held that an employer was not liable for sex discrimination under Title VII if it could prove by a preponderance of the evidence that it would have made the same disputed employment decision in the absence of the alleged discrimination. Id. at 258, 109 S.Ct. at 1794-95. Before enactment of the CRA, this Court had extended the Pnce Water-house principle to bar mixed-motive retaliation claims. See, e.g., Adler v. Madigan, 939 F.2d 476, 479 (7th Cir.1991) (rejecting plaintiffs retaliation claim because his employer “would have made the same decision even if it had not allowed [the plaintiff’s whistle-blowing] to play a role in its decision”) (quotation omitted). This Circuit also had applied the Price Waterhouse rationale in non-Title VII mixed-motive discrimination cases. See, e.g., Visser v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 658 (7th Cir.1991) (en banc) (applying Price Waterhouse to a claim brought under the Age Discrimination in Employment Act (ADEA) and stating that “[t]he forbidden motive, age in this case, must be a sufficient condition, or but-for cause, of the employee’s termination”). By 1991, our Circuit and courts across the country had begun to adopt the Price Waterhouse approach in all mixed-motive discrimination cases. See generally Neuman v. GHS Osteopathic, Inc., 60 F.3d 153, 157-58 (3d Cir. 1995) (discussing courts’ application of Title VII concepts in cases involving the ADEA, the Americans with Disabilities Act, and the Rehabilitation Act of 1973). The Civil Rights Act of 1991 rolled back the Price Waterhouse holding in certain types of discrimination cases. The crucial provision in this regard—Section 107(a) of the CRA—is codified at 42 U.S.C. § 2000e-2(m): Except as otherwise provided in this sub-chapter, an unlawful employment practice is established when the complaining party demonstrates that race, color," }, { "docid": "20051562", "title": "", "text": "one. Accordingly, we affirm the jury’s verdict. I. In January, 1992, Fuller applied for a position as a correctional officer in the Montgomery County Sheriffs Department. By the end of 1992, three temporary positions became available. After considering several candidates, including Fuller, Sheriff Phipps chose three other individuals. Fuller then brought suit, alleging racial discrimination in the refusal to hire. The case was tried to a jury. The district judge instructed the jury as follows: In determining whether the Plaintiff Fuller is entitled to recover any damages, you must decide one issue, whether Fuller has proved by a preponderance of the evidence that his race was the determinative factor in Defendant Phipps not rehiring him. In other words, for Fuller to recover, he must prove by the preponderance of the evidence that but for the fact that he is black he would have been reappointed by Phipps. If Phipps chose not to hire Fuller for any other reason, then Fuller cannot recover, and you must find for Phipps. If, however, you find that race was a determinative factor in Fuller not being hired, you must consider the issue of damages. Fuller objected to this charge, claiming that he was entitled to an instruction under Section 107 of the Civil Rights Act of 1991, which reads: “an unlawful employment practice is established when the complaining party demonstrates that race ... was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). The district judge disagreed. In his view, Section 107 was meant to apply only in mixed-motive cases, not in pretext eases such as this one. The jury then returned a verdict for Sheriff Phipps. II. Fuller appeals the refusal of the district court to give his requested instruction. We think, however, that the refusal to give a mixed-motive instruction in this typical pretext ease was proper. Employment discrimination law recognizes an important distinction between mixed-motive and pretext cases. Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n. 12, 109 S.Ct. 1775, 1789 n. 12, 104 L.Ed.2d 268 (1989) (plurality opinion); see" }, { "docid": "23539184", "title": "", "text": "of the complaint. Judgment affirmed. . McCarthy points out that the district court wrongly obligated him to prove that “but for\" the alleged discrimination, he would not have been dismissed. It is true that the plaintiff need not show “but for” causation to prevail in a Title VII case. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1785-1786, 104 L.Ed.2d 268 (1989). Even under the proper Price Water-house standard, however, the plaintiff was not entitled to survive Kemper's summary judgment motion because he did not show that Kemper relied on his race in deciding to discharge him. Of course, this Court can affirm on any ground that is supported by the record. Sally Beauty Co. v. Nexxus Products, Co., 801 F.2d 1001, 1004-1005 (7th Cir.1986). . Hybert v. Hearst Corp., 900 F.2d 1050 (7th Cir.1990), an age discrimination case cited by plaintiff at the oral argument, does not help his cause for there Hearst’s sales manager gave \"direct evidence \" that some people in their sixties were going to be replaced by younger salesmen of magazine advertising space. Id. at 1053. . Kemper does not deny that the article existed. . We do not suggest that race-based remarks in the workplace never can be convincing evidence of a discriminatory employment decision. The plurality opinion in Price Waterhouse held only that stray remarks \"do not inevitably prove that gender [here race] played a part in a particular employment decision.\" 109 S.Ct. at 1791 (emphasis supplied). The plurality opinion also carefully noted that it did not mean to \"suggest a limitation of the possible ways of proving that stereotyping played a motivating role in an employment. decision.” Id. In this case the comments in the workplace were wholly unrelated to the decision to fire McCarthy, which was motivated by the intervening event of the discovery of McCarthy’s expense account fraud. Other cases may present closer questions." }, { "docid": "6620666", "title": "", "text": "elements of plaintiffs prima facie case are: (1) that he or she is within a protected age group, (2) that he or she met applicable job qualifications, (3) that despite these qualifications, he or she was discharged, and (4) that, after the discharge the position remained open and the employer continued to seek applications from persons with similar qualifications. Dace v. ACF Industries, Inc., 722 F.2d 374, 377 (8th Cir.1983) (quoting Cova v. Coca-Cola Bottling Co., 574 F.2d 958, 959 (8th Cir.1978)). . See Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the \"Pretext-Plus\" Rule in Employment Discrimination Cases, 43 Hastings L.J. 59, 64-68 (1991). . Direct evidence is also used in \"mixed motive” cases. See Price Waterhouse v. Hopkins, 490 U.S. 228, 259, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268 (1989). . Submission of the discriminatory discharge claim under section 1981 may have given Williams more than he would have been entitled to at certain periods during the past several years. Such a case was submissible at the time of trial but later was not. See Hicks v. Brown Group, Inc., 902 F.2d 630, 635-48 (8th Cir. 1990), cert. granted, — U.S. -, 111 S.Ct. 1299, 113 L.Ed.2d 234 (1991) (remanded for further consideration in light of Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947 (8th Cir.1991)); Hicks, 946 F.2d 1344 (8th Cir. 1991) (overruling original decision in light of Taggart and Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)). The Civil Rights Act of 1991 now allows such an action under section 1981, but we have recently held the Act to be nonretroactive. Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992). As the jury rejected his claim, this issue needs no further discussion. . Foster v. University of Arkansas, 938 F.2d 111, 115 (8th Cir.1991), while stating that Price Waterhouse superseded Grebin, discusses only the phrase “a determining factor” in a jury instruction, and does not deal with the issue before us." }, { "docid": "3058293", "title": "", "text": "was a determining factor in defendant’s decision to terminate the plaintiffs employment? 3. Do you find, by preponderance of the evidence, that the defendant would have made the same decision to terminate the plaintiffs employment notwithstanding the fact that he filed a charge of race discrimination and retaliation? The jury answered “yes” to all three interrogatories. Following the jury verdict, the district court entered judgment for Defendant, stating, “[b]y reason of the jury’s affirmative answer to Interrogatory No. 3, [Defendant] is entitled to judgment.” Plaintiff then filed a motion to alter or amend the judgment or in the alternative for new trial. The court denied Plaintiffs motion, and Plaintiff appeals. Discussion In an employment discrimination or retaliation case, even if the plaintiff provides evidence that the defendant, in making an adverse employment decision, was motivated in part by an impermissible consideration, the defendant can prevail if it can prove by a preponderance of the evidence that it would have made the same decision even in the absence of the discriminatory consideration. Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). “Defendants in Title VII [and section 1981] cases may prove as an affirmative defense that they would have reached the same employment decision even in the absence of bias.” Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084 (11th Cir.1996) (citing Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775). Plaintiffs arguments on appeal focus mainly on Defendant’s assertion of the Price Waterhouse /mixed-motives defense to liability. 1. Plaintiff first contends that Defendant waived the defense by failing properly to assert it affirmatively, pursuant to Fed.R.Civ.P. 8(c), by pleading it or otherwise asserting it during the presentation of evidence. According to Plaintiff, Defendant never raised the mixed-motives defense in its answer, in the jointly submitted pretrial order, or at any other time before the close of evidence. So, Plaintiff contends that Defendant waived the defense and that it was, therefore, error for the district court to submit interrogatory number three to the jury. That Defendant failed to plead the defense" } ]
235254
rest are without merit. McDonald filed a reply brief, which the court considers. 1. Unlawful arrest McDonald first claims that his conviction was the result of evidence obtained pursuant to an arrest that was not based on probable cause. Respondent argues, and the court agrees, that this claim is based on the Fourth Amendment, and cannot be the basis for federal habeas relief. In REDACTED Stone does not define “full and fair litigation,” but the Seventh Circuit has announced a three part test to determine the question. See Weber v. Murphy, 15 F.3d 691, 694 (7th Cir.1994) (citing Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992)). A petitioner had a full and fair opportunity to litigate a Fourth Amendment claim if: (1) the petitioner clearly informed the state court of the factual basis for the claim and argued that those facts violate his Fourth Amendment rights; (2) the state court carefully and thoroughly analyzed the facts; and (3) the state court applied the proper constitutional case law to the case. See id.; see also Turentine v. Miller 80 F.3d 222, 224-26 (7th Cir.1996) (noting a split of
[ { "docid": "22608332", "title": "", "text": "demands identification. See ante, at 469 n. 1. It is no crime in a free society not to have “identification papers” on one’s person, and the statute is a palpable effort to enable police to arrest individuals on the basis of mere suspicion and to facilitate detention even when there is no probable cause to believe a crime has been or is likely to be committed. See 405 U. S., at 168-170. Without elaborating on the various arguments buttressing this result, including the self-incrimination aspects of the ordinance and its attempt to circumvent Fourth Amendment safeguards in a situation that, under Terry v. Ohio, 392 U. S. 1 (1968), would at most permit law enforcement officials to conduct a protective search for weapons, I would note only that the ordinance, due to the Court’s failure to address its constitutionality today, remains in full force and effect, thereby affirmatively encouraging further Fourth Amendment violations. Moreover, the fact that only a single state judge ever addressed the validity of the ordinance, and the lack of record evidence as to why or how he rejected respondent’s claim, gives me pause as to whether there is any real content to the Court’s “exception” for bringing Fourth Amendment claims on habeas in situations in which state prisoners were not accorded an opportunity for a full and fair state-court resolution of those claims; that fact also makes irrelevant the Court’s presumption that deterrence is not furthered when there is federal habeas review of a search- and-seizure claim that was erroneously rejected by “two or more tiers of state courts.” Ante, at 491. Even more violative of constitutional safeguards is the manner in which the Nebraska courts dealt with the merits in respondent Rice’s case. Indeed, the manner in which Fourth Amendment principles were applied in the Nebraska Supreme Court is paradigmatic of Congress’ concern respecting attempts by state courts to structure Fourth Amendment jurisprudence so as not to upset convictions of the “guilty” or the “unworthy.” As Judge Urbom fully detailed in two thorough and thoughtful opinions in the District Court on Rice’s petition for ha-beas," } ]
[ { "docid": "10439700", "title": "", "text": "present his Payton argument to the Indiana Court of Appeals, but for whatever reason he did not take advantage of it. Thus, federal collateral review of his Fourth Amendment claims is foreclosed by Stone. Because Turentine did not clearly present this claim to the state courts, we need not discuss his argument that the Indiana Court of Appeals denied him a full and fair opportunity under Weber by failing to discuss Pay-ton. The State of Indiana, however, implicitly urges us to dispense with the Weber framework altogether. The State argues that by reviewing Fourth Amendment claims for whether the state court applied the proper constitutional case law, we are essentially engaging in substantive review of every Fourth Amendment claim raised in a § 2254 petition. Several circuits appear to have adopted a stricter standard, holding that federal courts should not review Fourth Amendment claims raised in § 2254 petitions unless the defendant was prevented from litigating his claims in state court “because of an unconscionable breakdown in the underlying [state judicial] process.” Willett v. Lockhart, 37 F.3d 1265, 1271 (8th Cir.1994) (en banc)(quoting Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992)), cert. denied, 115 S.Ct. 1432 (1995). The Weber standard is not a “subversion of the Stone rule,” see Willett, 37 F.3d at 1271, as the Eighth Circuit suggests. Weber does not require substantive review of every Fourth Amendment claim raised in a habeas petition. Rather, in Weber and the eases that preceded it, we have sought to explicate what the Supreme Court recognized in Stone as a very narrow exception to the general rule that a habeas petitioner may not bring Fourth Amendment claims. We have consis tently held that a claim is Stone-barred if the petitioner simply argues that the state court made a mistake in applying Fourth Amendment law. See Pierson, 959 F.2d at 1392; Dortch, 863 F.2d at 1342; United States ex rel. Maxey v. Morris, 591 F.2d 386, 390 (7th Cir.), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979); cf. United States ex rel. Shiflet v. Lane, 815 F.2d 457," }, { "docid": "10439697", "title": "", "text": "F.3d 691 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 1865, 128 L.Ed.2d 486 (1994), we established a test for determining when a § 2254 petitioner has received a full and fair opportunity to litigate a Fourth Amendment claim in state court. First, the petitioner must “clearly inform[ ] the state court of the factual basis for ... [his] claim and ... argue[ ] that those facts constitute a violation of ... [his] fourth amendment rights.” Id. at 694 (quoting Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.), cert. denied, 506 U.S. 857, 113 S.Ct. 168, 121 L.Ed.2d 115 (1992)). If he has clearly presented the issue, we then consider whether “the state court has carefully and thoroughly analyzed the facts and ... applied the proper constitutional case law to the facts.” Id.; see also United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027 (7th Cir.1993); cf. Dortch v. O’Leary, 863 F.2d 1337, 1341-42 (7th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 429 (1989). If so, the petitioner has received a full and fair opportunity to litigate his Fourth Amendment claim in state court, and federal habeas corpus review is barred by Stone. Turentine argues that the Indiana Court of Appeals denied his Fourth Amendment claims without applying the proper constitutional case law. The officers who arrested Turentine entered his home without a warrant, and the state has not argued that any exigent circumstances justified the entry. Consequently, Turentine now argues, the entry and arrest were illegal, and the drags and money seized from his house should not have been admitted at trial. See Payton v. New York, 445 U.S. 573, 583-87, 100 S.Ct. 1371, 1378-81, 63 L.Ed.2d 639 (1980); see also New York v. Harris, 495 U.S. 14, 20, 110 S.Ct. 1640, 1644, 109 L.Ed.2d 13 (1990). He contends that the Indiana Court of Appeals deprived him of a full and fair opportunity to litigate his Fourth Amendment claims because it did not discuss the Payton requirement that the home search be supported by either a warrant or exigent circumstances. We" }, { "docid": "15425575", "title": "", "text": "a closing argument on his behalf. Mr. Edison, however, clarified petitioner’s argument concerning the illegality of the arrest in his own closing argument with the court. (Id. at pp. 12-13). The trial court subsequently denied petitioner’s motion to suppress, finding petitioner’s arrest to have been legal. On appeal, the Michigan Court of Appeals found that petitioner’s statement to the police that he wanted to turn himself in for a bank robbery, the red dye found on petitioner’s hands and clothes, and the police officers’ confirmation that a robbery had, in fact, occurred, was sufficient to give the police probable cause to arrest petitioner. People v. Monroe, Slip. Op. at * 4. A federal habeas review of a petitioner’s arrest or search by state police is barred where the state provided a full and fair opportunity to litigate an illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-495, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir.2000); Gilbert v. Parke, 763 F.2d 821, 823 (6th Cir.1985). For such an opportunity to have existed, the state must have provided, in the abstract, a mechanism by which the petitioner could raise the claim, and presentation of the claim must not have been frustrated by a failure of that mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir.1982). Thus, on federal habe-as review, a federal court cannot reexamine a petitioner’s fourth amendment claim that post-arrest statements should have been suppressed as “poisonous fruit” of his illegal arrest, where the state provided an opportunity for full and fair litigation of petitioner’s Fourth Amendment claim prior to trial. Jones v. Johnson, 171 F.3d 270, 277-278 (5th Cir.1999); Pierson v. O’Leary, 959 F.2d 1385, 1391-1392 (7th Cir.1992). In the present case, petitioner is precluded from raising a Fourth Amendment claim that his confession was the product of an illegal arrest when he raised the factual basis for this claim in the state trial and appellate courts, and the state courts thoroughly analyzed the facts and applied the proper constitutional law in rejecting his" }, { "docid": "18098059", "title": "", "text": "lack the fair support of the record, we cannot say that the court carefully and thoroughly analyzed the facts. Weber v. Murphy, 15 F.3d 691, 694 (7th Cir.1994); contra Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir.1994) (en banc) (“We conclude that under Stone a federal habeas court considering a state prisoner’s claim alleging a Fourth Amendment violation should abstain from reviewing the state court records to determine if the state court’s factual findings are fairly supported by the record as a whole .... ”); see also Turentine, 80 F.3d at 225-26 (declining to overrule Weberin light of Willett). Of course, we presume that a state court’s factual determinations are correct. 28 U.S.C. § 2254(e)(1); see Weber, 15 F.3d at 694-95. We have also made clear that mistakes in a state court’s treatment of a petitioner’s Fourth Amendment claim are not sufficient, in and of themselves, to surmount the Stone bar. Turentine, 80 F.3d at 225-26; see also Hampton, 296 F.3d at 563-64. Stone does not guarantee a correct outcome on a Fourth Amendment claim but rather an adequate opportunity to pursue the claim in the state court system; thus, only if we are convinced that a habeas petitioner was deprived of that opportunity may we reach the merits of the claim. Cabrera, 324 F.3d at 531-32. An “egregious error” in a state court’s Fourth Amendment decision may suffice for this purpose, Turentine, 80 F.3d at 226, but not for the flaw it exposes in the state court’s analysis but rather for what it reveals about the bona fides of the state court’s handling of the Fourth Amendment claim, Hampton, 296 F.3d at 564. As we explained in Hampton, “a blunder, no matter how obvious, matters only in conjunction with other circumstances that imply refusal by the state judiciary to take seriously its obligation to adjudicate claims under the fourth amendment.” Id. We shall assume, without deciding, that if the Illinois Appellate Court’s determination that Chavez was not arrested lacked any basis in the record, Miranda may have, been deprived of a full and fair opportunity to litigate his" }, { "docid": "22454443", "title": "", "text": "effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), we apply the provisions of 28 U.S.C. § 2254, as amended by AEDPA. See, e.g., Hooks v. Ward, 184 F.3d 1206 (10th Cir.1999). Under these provisions, a federal court is precluded from granting habeas relief on any claim adjudicated on the merits by the state court, unless the state proceeding “resulted in a decision that was contrary to, or involved an unrea sonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “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,” id. § 2254(d)(2). In addition, we presume the factual findings of the state court are correct unless petitioner can rebut this presumption by clear and convincing evidence. See id. § 2254(e)(1). Discussion I. Fourth Amendment Violation Petitioner first argues that his conviction stemmed from evidence obtained as the result of an unconstitutional detention. The district court found that the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), barred petitioner’s claim. Under Stone, habeas relief shall not be granted on the ground that the trial court admitted evidence obtained in violation of the Fourth Amendment despite the judicially-created exclusionary rule, provided that the defendant had an opportunity for full and fair litigation of the Fourth Amendment claim. See id. at 481-82, 96 S.Ct. 3037. We review de novo whether a petitioner had an opportunity for full and fair litigation of his or her Fourth Amendment claim in state court. See Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir.1992). Nothing in the record indicates that Mr. Smallwood was deprived of such an opportunity. To the contrary, petitioner filed a motion to suppress the evidence resulting from his alleged unlawful seizure and repeatedly objected to the admission of this evidence before the Oklahoma County District Court. Petitioner’s trial counsel adequately apprised the court of the factual basis for" }, { "docid": "10439696", "title": "", "text": "in petitions for transfer [to the Indiana Supreme Court].” Id. Turentine had no duty under Indiana law to present his claims to the Indiana Supreme Court; therefore, his failure to file a timely transfer petition does not constitute a procedural default. II. Stone v. Powell In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court established a general rule that criminal defendants may not seek collateral review of Fourth Amendment exclusionary rule claims under § 2254 if they received “an opportunity for full and fair litigation of’ their Fourth Amendment claims in state court. Id. at 494. The Court based its decision on a concern for judicial economy, stating that the “justification [for the exclusionary rule] becomes minimal where ... a prisoner ... previously has been afforded the opportunity for full and fair consideration of his search-and-seizure claim at trial and on direct review.” Id. at 486. The Supreme Court has not elaborated on the meaning of “opportunity for full and fair litigation.” In Weber v. Murphy, 15 F.3d 691 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 1865, 128 L.Ed.2d 486 (1994), we established a test for determining when a § 2254 petitioner has received a full and fair opportunity to litigate a Fourth Amendment claim in state court. First, the petitioner must “clearly inform[ ] the state court of the factual basis for ... [his] claim and ... argue[ ] that those facts constitute a violation of ... [his] fourth amendment rights.” Id. at 694 (quoting Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.), cert. denied, 506 U.S. 857, 113 S.Ct. 168, 121 L.Ed.2d 115 (1992)). If he has clearly presented the issue, we then consider whether “the state court has carefully and thoroughly analyzed the facts and ... applied the proper constitutional case law to the facts.” Id.; see also United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027 (7th Cir.1993); cf. Dortch v. O’Leary, 863 F.2d 1337, 1341-42 (7th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 429 (1989). If so, the" }, { "docid": "8424879", "title": "", "text": "context of habeas petitions, the benefit of the exclusionary rule is minimal compared to the substantial societal costs of applying it. Therefore, “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” At 494. It sounds simple but has, in fact, caused considerable consternation over what exactly “full and fair” means. The only help in Stone is a footnote to a prior case: “Cf. Townsend v. Sam, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).” And of course the value, generally, of “Cf.” citations is often only revealed in the eye of the beholder. Recently, we have waded again into the debate in an attempt to clarify some of our earlier cases. Our traditional formulation was that a petitioner had a full and fair opportunity to litigate if (1) he has clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of his fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and (3) applied the proper constitutional case law to the facts. Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992). This test spawned many arguments, including one that the litigation was “full and fair” only if the state court decided the issue correctly. This erroneous interpretation of Stone was pretty clearly sent packing by our decision last year in Hampton. In Hampton we observed that the Pierson approach nullifies the holding of Stone and leads to collateral relief whenever the search violates the fourth amendment. Even an egregious error would not by itself justify habeas relief: [A] blunder, no matter how obvious, matters only in conjunction with other circumstances that imply refusal by the state judiciary to take seriously its obligation to adjudicate claims under the fourth amendment. 296 F.3d at 564. Unsatisfied by this formulation, the State wants us to take this opportunity" }, { "docid": "16655879", "title": "", "text": "[ (3) ] applied the proper constitutional case law to the facts.” Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 168, 121 L.Ed.2d 115 (1992) (citing Dortch v. O’Leary, 863 F.2d 1337, 1342 (7th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 429 (1989)). We first address the question of whether the petitioner was afforded an opportunity to inform the state court of the factual basis of his claim. The trial court conducted an extensive suppression hearing, during which both the petitioner and the state were given the opportunity to present evidence concerning the playing of the cassette tape during the police search. There were no limitations placed on the petitioner’s ability to present evidence that the audio contents of the tape were illegally obtained. Additionally, he not only had the opportunity, but actually took advantage of that opportunity by arguing that he was denied his Fourth Amendment rights. Under these circumstances, we cannot say that the petitioner was denied the opportunity to inform the state trial court of the factual basis of his claim or to argue that those facts constituted a denial of his Fourth Amendment right to be free from an unlawful search. Next, we must decide whether the facts were “carefully and thoroughly” analyzed in the state court proceedings. The petitioner argues that the trial court made factual determinations that are not fairly supported by the record and that the Wisconsin Supreme Court incorporated some of the trial court’s faulty factual determinations in its opinion. Thus, the petitioner argues, the state court failed to “carefully and fully analyze the facts.” In support of his position, the petitioner refers us to the Eighth Circuit case of Howard v. Pung, 862 F.2d 1348, 1350 (8th Cir.1988), cert. denied, 492 U.S. 920, 109 S.Ct. 3247, 106 L.Ed.2d 593 (1989), which comments that “a state court evidentiary hearing may be less than full and fair if it yields factual determinations not fairly supported by the record as a whole.” (citations omitted). Without citing to any relevant case law, the" }, { "docid": "21669066", "title": "", "text": "Pierson, and have repeated since, that an accused receives a full and fair opportunity to litigate if (1) he has clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of his fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and (3) applied the proper constitutional case law to the facts. Illinois wonders how the third of these considerations can be appropriate, given the way Stone itself handled a claim of error. The state’s concern supposes, however, that Pierson required the state to decide the issue correctly. But this is not what we meant. What a state has to do is look to the appropriate body of decisional law. Faced with a claim that the police lacked probable cause to make an arrest, a state court could not respond that in Illinois it is proper to arrest without probable cause. Failure to apply applicable law would show that the accused lacked a full opportunity to prevail on direct appeal. A court that has made up its mind not to enforce the fourth amendment rarely says so directly, though it may leave clues in its treatment of the merits. It is impossible to see how the problem could be identified without paying some attention to how the state court dealt with the merits. But as we said in Turentine this must not be confused with a search for error. It takes an “egregious error” (80 F.3d at 226) to imply that the state judges have closed their ears and minds to argument — and it is the latter circumstance, not the error itself, that would justify relief under Stone. Even an “egregious error” thus is not enough to support a writ of habeas corpus (that’s what it means to say that the exclusionary rule does not apply on collateral attack); a blunder, no matter how obvious, matters only in conjunction with other circumstances that imply refusal by the state judiciary to take seriously its obligation to adjudicate claims under the fourth amendment. So" }, { "docid": "1799992", "title": "", "text": "is relevant in the unique circumstances of a capital sentencing hearing.” Booth, 482 U.S. at 504, 107 S.Ct. at 2533. Booth was expressly overruled by Payne v. Tennessee, — U.S. -, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). II. Pierson argues that his statement to police must be suppressed as the fruit of an illegal seizure. We must first determine whether Pierson’s fourth amendment claim falls within the substantive scope of the habeas corpus writ. “[Wjhere the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone, 428 U.S. at 482, 96 S.Ct. at 3046. A habeas corpus petitioner has received an opportunity for full and fair litigation of his or her fourth amendment claim when (1) the petitioner has clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of the petitioner’s fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and applied the proper constitutional case law to the facts. See, Dortch v. O’Leary, 863 F.2d 1337, 1342 (7th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 429 (1989). Pierson argues that he was not provided an opportunity for full and fair litigation of his fourth amendment claim because the state courts did not apply the proper constitutional case law. In determining whether the taint of an unlawful seizure has sufficiently dissipated so as to allow admission of a subsequently acquired statement, a court must consider four factors: (1) the presence of Miranda warnings, (2) the temporal proximity of the arrest to the confession, (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). The state appellate court listed the foregoing factors as the appropriate standard and cited Brown. Pierson," }, { "docid": "16655878", "title": "", "text": "claim in the state court proceedings. If so, we must deny his petition under the doctrine announced in Stone v. Powell. In that case, the Supreme Court held that where the state has provided such an opportunity, “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494, 96 S.Ct. at 3052. This decision was based on the Court’s belief that the incremental benefits associated with applying the exclusionary rule on collateral review was outweighed by its costs. Id. at 493, 96 S.Ct. at 3052. The Supreme Court did not define the phrase “opportunity for full and fair litigation”; however, we have held that the petitioner has been provided that opportunity when: (1) he has “clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of ... [his] fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and [ (3) ] applied the proper constitutional case law to the facts.” Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 168, 121 L.Ed.2d 115 (1992) (citing Dortch v. O’Leary, 863 F.2d 1337, 1342 (7th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 429 (1989)). We first address the question of whether the petitioner was afforded an opportunity to inform the state court of the factual basis of his claim. The trial court conducted an extensive suppression hearing, during which both the petitioner and the state were given the opportunity to present evidence concerning the playing of the cassette tape during the police search. There were no limitations placed on the petitioner’s ability to present evidence that the audio contents of the tape were illegally obtained. Additionally, he not only had the opportunity, but actually took advantage of that opportunity by arguing that he was denied his Fourth Amendment rights. Under these circumstances, we cannot say that the petitioner was denied the opportunity to inform" }, { "docid": "18098057", "title": "", "text": "Full and Fair Opportunity So long as a habeas petitioner enjoyed an “opportunity for full and fair litigation of a Fourth Amendment claim” in state court, federal habeas review of the claim is barred. Stone v. Powell, supra, 428 U.S. at 481-82, 96 S.Ct. at 3046. A petitioner has had the benefit of such an opportunity so long as (1) he clearly apprised the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts. Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992); see also Cabrera v. Hinsley, 324 ,F.3d 527, 531-32 (7th Cir.), cert. denied, 540 U.S. 873, 124 S.Ct. 220, 157 L.Ed.2d 133 (2003); Hampton v. Wyant, 296 F.3d 560, 563-64 (7th Cir.2002). The full and fair hearing requirement applies not only at the trial-court level in state court but also on direct review of the petitioner’s conviction. See Stone, 428 U.S. at 489, 96 S.Ct. at 3050 (“The question is whether state prisoners — who have been afforded the opportunity for full.and fair consideration of their reliance on the exclusionary rule ... by the state courts at the trial level and on direct review — may invoke their claim again on federal habeas corpus review.”) (emphasis supplied); see also, e.g., Hampton, 296 F.3d at 563-64; Turentine v. Miller, 80 F.3d 222, 225-26 (7th Cir.1996). Miranda contends that the Illinois Appellate Court deprived him of a full and fair opportunity to litigate his Fourth Amendment claim in that it failed to carefully and thoroughly analyze the facts. That failure, in Miranda’s view, is evidenced by the appellate court’s determination, without any explanation, that Chavez was not under arrest. Summary Order at 3. Whether an individual was seized by the police is a highly fact-specific assessment that requires consideration of the totality of the circumstances. United States v. McCarthur, 6 F.3d 1270, 1275-76 (7th Cir.1993). We have indicated that when a state court’s Fourth Amendment analysis turns on factual determinations that" }, { "docid": "1799993", "title": "", "text": "constitute a violation of the petitioner’s fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and applied the proper constitutional case law to the facts. See, Dortch v. O’Leary, 863 F.2d 1337, 1342 (7th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 429 (1989). Pierson argues that he was not provided an opportunity for full and fair litigation of his fourth amendment claim because the state courts did not apply the proper constitutional case law. In determining whether the taint of an unlawful seizure has sufficiently dissipated so as to allow admission of a subsequently acquired statement, a court must consider four factors: (1) the presence of Miranda warnings, (2) the temporal proximity of the arrest to the confession, (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). The state appellate court listed the foregoing factors as the appropriate standard and cited Brown. Pierson, 117 Ill.Dec. at 22, 519 N.E.2d at 1189. The state court then proceeded to evaluate the factual support for each of the four factors. Id. 117 Ill.Dec. at 22-23, 519 N.E.2d at 1189-90. Pierson argues that the state court ignored case law relevant to the fourth factor and, thus, applied an incorrect standard. Pierson argues that the state court should have applied Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), in determining the flagrancy of the officers’ misconduct. In Taylor (a direct appeal from the Supreme Court of Alabama), the U.S. Supreme Court did not create an independent standard for finding flagrancy under the fourth Brown factor; the Court merely applied the Brown standard to the facts in that case. Id. 457 U.S. at 691-93, 102 S.Ct. at 2667-68. In fact, the Court stated that the Taylor case was “a virtual replica of ... Brown.\" Id. 457 U.S. at 690, 102 S.Ct. at 2667. Thus, in applying the Brown standard to the facts of Pierson’s case the state court applied" }, { "docid": "18098058", "title": "", "text": "S.Ct. at 3050 (“The question is whether state prisoners — who have been afforded the opportunity for full.and fair consideration of their reliance on the exclusionary rule ... by the state courts at the trial level and on direct review — may invoke their claim again on federal habeas corpus review.”) (emphasis supplied); see also, e.g., Hampton, 296 F.3d at 563-64; Turentine v. Miller, 80 F.3d 222, 225-26 (7th Cir.1996). Miranda contends that the Illinois Appellate Court deprived him of a full and fair opportunity to litigate his Fourth Amendment claim in that it failed to carefully and thoroughly analyze the facts. That failure, in Miranda’s view, is evidenced by the appellate court’s determination, without any explanation, that Chavez was not under arrest. Summary Order at 3. Whether an individual was seized by the police is a highly fact-specific assessment that requires consideration of the totality of the circumstances. United States v. McCarthur, 6 F.3d 1270, 1275-76 (7th Cir.1993). We have indicated that when a state court’s Fourth Amendment analysis turns on factual determinations that lack the fair support of the record, we cannot say that the court carefully and thoroughly analyzed the facts. Weber v. Murphy, 15 F.3d 691, 694 (7th Cir.1994); contra Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir.1994) (en banc) (“We conclude that under Stone a federal habeas court considering a state prisoner’s claim alleging a Fourth Amendment violation should abstain from reviewing the state court records to determine if the state court’s factual findings are fairly supported by the record as a whole .... ”); see also Turentine, 80 F.3d at 225-26 (declining to overrule Weberin light of Willett). Of course, we presume that a state court’s factual determinations are correct. 28 U.S.C. § 2254(e)(1); see Weber, 15 F.3d at 694-95. We have also made clear that mistakes in a state court’s treatment of a petitioner’s Fourth Amendment claim are not sufficient, in and of themselves, to surmount the Stone bar. Turentine, 80 F.3d at 225-26; see also Hampton, 296 F.3d at 563-64. Stone does not guarantee a correct outcome on a Fourth Amendment" }, { "docid": "18098056", "title": "", "text": "had forfeited argument that Article III judge was required to conduct extradition proceeding, when at time of extradition hearing they contended the opposite). For these reasons, we conclude that the Illinois Appellate Court’s disposition of Miranda’s Fourth Amendment claim rests on an adequate and independent state ground, namely that he waived the claim when he failed to assert it in a post-trial motion for a new trial, ,as required by Illinois law. Miranda has not argued that an equitable exception would permit us to reach the merits of his claim notwithstanding the procedural default. Consequently, federal review of this claim is barred. However, in an abundance of caution, and recognizing the inconsistency in Illinois cases as to the availability of appellate review for constitutional claims not preserved in post-trial motions, we have gone on to consider whether Miranda enjoyed a full and fair opportunity to litigate his Fourth Amendment claim in state court. Lest there be any doubt, our analysis as to the full and fair opportunity represents an alternative basis for our decision. B. Full and Fair Opportunity So long as a habeas petitioner enjoyed an “opportunity for full and fair litigation of a Fourth Amendment claim” in state court, federal habeas review of the claim is barred. Stone v. Powell, supra, 428 U.S. at 481-82, 96 S.Ct. at 3046. A petitioner has had the benefit of such an opportunity so long as (1) he clearly apprised the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts. Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992); see also Cabrera v. Hinsley, 324 ,F.3d 527, 531-32 (7th Cir.), cert. denied, 540 U.S. 873, 124 S.Ct. 220, 157 L.Ed.2d 133 (2003); Hampton v. Wyant, 296 F.3d 560, 563-64 (7th Cir.2002). The full and fair hearing requirement applies not only at the trial-court level in state court but also on direct review of the petitioner’s conviction. See Stone, 428 U.S. at 489, 96" }, { "docid": "15425576", "title": "", "text": "823 (6th Cir.1985). For such an opportunity to have existed, the state must have provided, in the abstract, a mechanism by which the petitioner could raise the claim, and presentation of the claim must not have been frustrated by a failure of that mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir.1982). Thus, on federal habe-as review, a federal court cannot reexamine a petitioner’s fourth amendment claim that post-arrest statements should have been suppressed as “poisonous fruit” of his illegal arrest, where the state provided an opportunity for full and fair litigation of petitioner’s Fourth Amendment claim prior to trial. Jones v. Johnson, 171 F.3d 270, 277-278 (5th Cir.1999); Pierson v. O’Leary, 959 F.2d 1385, 1391-1392 (7th Cir.1992). In the present case, petitioner is precluded from raising a Fourth Amendment claim that his confession was the product of an illegal arrest when he raised the factual basis for this claim in the state trial and appellate courts, and the state courts thoroughly analyzed the facts and applied the proper constitutional law in rejecting his claim. United States ex. rel. Rice v. Washington, 987 F.Supp. 659, 661 (N.D.Ill.1997). Moreover, even assuming that this Court could review petitioner’s Fourth Amendment claim, petitioner has failed to establish that the police lacked probable cause to arrest him for the bank robbery. The Fourth Amendment permits a duly authorized law enforcement officer to make a warrantless felony arrest in a public place after developing probable cause for an arrest. United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Anderson, 42 F.Supp.2d 713, 719 (E.D.Mich.1999)(Gadola, J.). The standard for determining probable cause to make an arrest is whether the facts and circumstances were sufficient to warrant a prudent officer in believing that the suspect had committed or was committing a crime. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In the present case, Detroit police received a police run to meet a man named Paul Monroe, who wanted to turn himself in for committing a bank robbery. Petitioner is correct" }, { "docid": "21669065", "title": "", "text": "search was invalid because of deficiencies in the affidavits, and that a warrantless entry was unconstitutional because the police lacked probable cause. In all of these respects the federal tribunals disagreed with contrary holdings- of the state courts. Stone reversed both the eighth and the ninth circuits, not because the Justices thought that the state courts had handled the fourth amendment issues correctly, but because error on a fourth amendment issue does not support a writ of habeas corpus. So if all that occurred in Hampton’s case is error, then here too there is no justification for federal collateral relief. Illinois contends that, having reached this conclusion, we should overrule (or at least modify) a series of opinions that have made the existence of error part of the inquiry into full and fair adjudication. See, e.g., Terry v. Martin, 120 F.3d 661, 663 (7th Cir.1997); Turentine v. Miller, 80 F.3d 222, 224 (7th Cir.1996); Weber v. Murphy, 15 F.3d 691, 694 (7th Cir.1994); Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992). We wrote in Pierson, and have repeated since, that an accused receives a full and fair opportunity to litigate if (1) he has clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of his fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and (3) applied the proper constitutional case law to the facts. Illinois wonders how the third of these considerations can be appropriate, given the way Stone itself handled a claim of error. The state’s concern supposes, however, that Pierson required the state to decide the issue correctly. But this is not what we meant. What a state has to do is look to the appropriate body of decisional law. Faced with a claim that the police lacked probable cause to make an arrest, a state court could not respond that in Illinois it is proper to arrest without probable cause. Failure to apply applicable law would show that the accused lacked a full opportunity to prevail on" }, { "docid": "8424880", "title": "", "text": "factual basis for that claim and has argued that those facts constitute a violation of his fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and (3) applied the proper constitutional case law to the facts. Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992). This test spawned many arguments, including one that the litigation was “full and fair” only if the state court decided the issue correctly. This erroneous interpretation of Stone was pretty clearly sent packing by our decision last year in Hampton. In Hampton we observed that the Pierson approach nullifies the holding of Stone and leads to collateral relief whenever the search violates the fourth amendment. Even an egregious error would not by itself justify habeas relief: [A] blunder, no matter how obvious, matters only in conjunction with other circumstances that imply refusal by the state judiciary to take seriously its obligation to adjudicate claims under the fourth amendment. 296 F.3d at 564. Unsatisfied by this formulation, the State wants us to take this opportunity to further clarify the standard. The concern is that Hampton’s focus continues to be on the quality of the hearing. The State says that a focus on the quality of the hearing cannot be what Stone envisioned; rather, the exception must turn on whether the State provides a mechanism under which to litigate a Fourth Amendment claim. If it does, Stone precludes habeas review. Unlike the State, we do not read Hampton as implying federal courts must examine in any significant detail the quality of the hearing. Quality, after all, is a word which can lead us right back to confusion as to whether the state judge had to arrive at the right decision in order for the hearing to pass muster. But it is true that Hampton stops just short of what the State urges. Hampton means that even if the State provides a mechanism under which to litigate a claim, Stone would not block habeas review if the mechanism was in some way a sham. For instance, Stone would not block habeas review" }, { "docid": "21669064", "title": "", "text": "interpretation of § 2254(a) that treats inaccurate administration of the exclusionary rule as outside the scope of that statute. What Stone requires is that states provide full and fair hearings so that the exclusionary rule may be enforced with reasonable (though not perfect) accuracy at trial and on direct appeal. A competent and intellectually honest judicial system is a personal right of the accused, and a system that acts with reasonable accuracy is essential to deterrence. Aware of Stone, the district judge in this case suggested that the appellate court’s error shows that Hampton had not received a full and fair opportunity for litigation. That approach, however, nullifies the holding of Stone and leads to collateral relief whenever the search violates the fourth amendment. It cannot be right, for then Stone was itself wrongly decided. Stone resolved two consolidated cases. In one the ninth circuit had held a- particular search unconstitutional because the statute under which it had been conducted was unconstitutional. In the other the eighth circuit had held that the warrant supporting a search was invalid because of deficiencies in the affidavits, and that a warrantless entry was unconstitutional because the police lacked probable cause. In all of these respects the federal tribunals disagreed with contrary holdings- of the state courts. Stone reversed both the eighth and the ninth circuits, not because the Justices thought that the state courts had handled the fourth amendment issues correctly, but because error on a fourth amendment issue does not support a writ of habeas corpus. So if all that occurred in Hampton’s case is error, then here too there is no justification for federal collateral relief. Illinois contends that, having reached this conclusion, we should overrule (or at least modify) a series of opinions that have made the existence of error part of the inquiry into full and fair adjudication. See, e.g., Terry v. Martin, 120 F.3d 661, 663 (7th Cir.1997); Turentine v. Miller, 80 F.3d 222, 224 (7th Cir.1996); Weber v. Murphy, 15 F.3d 691, 694 (7th Cir.1994); Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.1992). We wrote in" }, { "docid": "16655877", "title": "", "text": "appeals court and reinstated the trial court’s judgment of conviction on all eighteen counts. The petitioner then filed this petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in federal district court. The district court determined that it could not reach the merits of the petitioner’s claim because under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), federal courts may only entertain Fourth Amendment challenges on habeas corpus review if the petitioner has not been afforded a full and fair opportunity to litigate his claim in state court. In so ruling, it held that the petitioner was not denied such an opportunity in his state proceedings even though the Wisconsin Supreme Court upheld the playing of the cassette tape during the execution of the search warrant on grounds not discussed by either party in their supreme court briefs or at oral argument. Discussion The only issue presented for our review is whether the petitioner was afforded an opportunity for full and fair litigation of his Fourth Amendment claim in the state court proceedings. If so, we must deny his petition under the doctrine announced in Stone v. Powell. In that case, the Supreme Court held that where the state has provided such an opportunity, “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494, 96 S.Ct. at 3052. This decision was based on the Court’s belief that the incremental benefits associated with applying the exclusionary rule on collateral review was outweighed by its costs. Id. at 493, 96 S.Ct. at 3052. The Supreme Court did not define the phrase “opportunity for full and fair litigation”; however, we have held that the petitioner has been provided that opportunity when: (1) he has “clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of ... [his] fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and" } ]
468987
by counsel, but which lurks in the record, as to whether Werner and Wagner were not entitled to the patent, because the device of the patent in suit was “in public use or on sale in this country, more than one year prior to the date of the application for patent. * * * ” See 35 U.S.C., 1946 Ed., § 31 and 35 U.S.C.A. § 102. The judgment is affirmed. . Hereinafter called Iron Works. . Hereinafter called Shawnee. . Hereinafter called Henry. . Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 257, 48 S.Ct. 474, 479, 72 L.Ed. 868; Philip Sitton Septic Tank Co. v. Ploner, 10 Cir., 274 F.2d 811, 813. . REDACTED S. Ct. 899, 82 L.Ed. 1402; Doran Coffee Koasting Co. v. Wyott Manufacturing Co., 10 Cir., 267 F.2d 200, 202. . Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 8, 9, 67 S.Ct. 6, 10, 91 L.Ed. 3; General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 371, 58 S.Ct. 899, 82 L.Ed. 1402.
[ { "docid": "22623572", "title": "", "text": "useful life for such a lamp or other device.” Merrill v. Yeomans, 94 U. S. 568, 570. Cf. The Incandescent Lamp Patent, 159 U. S. 465, 474 ff. See Brooks v. Fiske, 15 How. 212, 215. Permutit Co. v. Graver Corp., 284 U. S. 52, 60; Grant v. Raymond, 6 Pet. 218, 247. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 419. “When this crystallization becomes excessive the crystals may,-in the case of a filament, become so large as to' extend across the entire •section of the filament and thereupon the sections may move laterally upon each other and produce the condition known as ‘offsetting.’- T shall hereinafter describe more in detail the special method which I employ for minimizing the loss in ductility and.for preventing this offsetting effect.” Coolidge Patent, No. 1,082,933. “Such crystals seem to increase in size in much the same manner as crystals formed in liquid solutions, and, if the crystals become large enough to extend almost or entirely across the filament, adjacent crystals tend to slip along their cleavage planes thereby giving the filament the offset or faulted appearance above, referred to.” Myers and Hall patent, No. 1,363,162. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 256-258, and cases cited. 277 U. S. at 258. Presumably that court would have assented to the condemnation of other product claims of the patent in suit, containing even less description than the ones under discussion: “28. A coiled filament. composed substantially of tungsten and capable of use in an electric incandescent lamp without either substantial sagging or offsetting during a normal or commercially useful life. “29. A coiled filament composed mainly of drawn tungsten and capable of use in an electric incandescent lamp without substantial sagging and without substantial offsetting during a normal or com-mercially useful life.” See Gynex Corp. v. Dilex Institute, 85 F. 2d 103; 105; Davis Co. v. New Departure Co., 217 F. 775, at 782. There is no showing whether, under established principles in the science, the language indicated grains extending across the width of filament," } ]
[ { "docid": "3120119", "title": "", "text": "and since the District Court’s findings emphasized this fact, the circumstance that the District Court was absent when the tests were conducted is immaterial. We are not impressed by the appellant’s contention that the substantially identical results secured by the operation of these various manifolds demonstrates infringement. All of the inter partes tests were conducted upon manifolds which were equipped with and employed appellee’s heating device, and the claims in suit do not provide for the use of any heating means. It is settled law that a claim for a result will not support a patent. Mitchell v. Tilghman, 19 Wall. 287, 86 U.S. 287, 22 L.Ed. 125; Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868. Cf. General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. The securing of substantially the same result is only one element entering into the question. In absence of evidence that the result was secured by the same or equivalent means, the fact that the result is similar or even identical does not justify a holding of infringement. It is not inconceivable that the same desirable result in vaporization of the heavy particles of gasoline secured by Swan’s peculiar form of manifold might be achieved by totally different means. The fact that Matheson and Fiat, which did not use heat, were classed as failures because they did not solve the problem does not require the conclusion that the problem never could be solved by the application of heat to Matheson and Fiat and that it has not been solved by appellee. The holding of this court that Swan solved the problem in one way does not exclude the conclusion that with the rapid advance of the automotive arts a similar result could be and was achieved through forms of manifolds theretofore found to be failures in handling a wet fuel mixture, to which an efficient and carefully controlled heating means is applied. The District Court found that appellee’s manifolds follow the prior art instead of Swan, that they secure efficient" }, { "docid": "23642983", "title": "", "text": "moral duty to call the Andrews patent to the attention of the Patent Office while the application which resulted in 025 was pending. Little need be said on the question of infringement. The court found that the Admiral Son-R was a direct copy of the Zenith Space Command. No other finding was possible in view of the testimony of the Admiral engineers that pursuant to directions from Admiral management they made a straight copy of the Zenith system. Admiral justified this conduct on the ground that the Zenith patents were not valid. Our decision that they are valid disposes of the contention. One point remains to be considered. Admiral urges that the 1960 model remote-control transmitter used in Son-R does not infringe on patent 956 relating to the mounting of the resonator. Non-infringement is claimed on the ground that the 1960 mounting used a circumferential groove rather than diametrically opposed flat-bottomed grooves with a resulting two-point suspension rather than four-point as employed in the preferred 956 design. The trial court held that this was an imperfect utilization of the 956 patent with the hope of evading infringement while enjoying the major benefits of the teachings of 956. A device may infringe a patent even when it does not utilize fully the best mode of practicing the invention. We have said that impairment of function and lessening of result in degree only does not avoid infringement. Appellant’s motion to dismiss the appeal from those parts of the judgment relating to United States Patents Nos. 2,498,333, 2,915,583, and 2,814,671 is granted. The appeal is dismissed as to those patents. On all remaining issues the judgment is affirmed. . 35 U.S.C. § 282. . Bewal, Inc. v. Minnesota Mining and Manufacturing Company, 10 Cir., 292 F.2d 159, 164. . Philip Sitton Septic Tank Company v. Honer, 10 Cir., 274 F.2d 811, 813; Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811, 815. . 35 U.S.C. § 103; Wagner Iron Works v. Koehring Company, 10 Cir., 282 F.2d 317, 322; Doran Coffee Roasting Co. v. Wyott Manufacturing Co., 10 Cir., 267" }, { "docid": "6831800", "title": "", "text": "settling of the waste matter in the tank,” thus making it “superior to a circular tank of equal capacity because of the increased flow travel distance between inlet and outlet openings.” The shape and design of this tank was said to also provide greater strength against ground pressure after installation. The patent in suit (No. 564) is said to represent a combination of elements, all cooperating together to produce a new and unexpected result over the septic ■tank of the prior patent. And see Consolidated Electrodynamics Corp. v. Midwestern Instruments, 10 Cir., 260 F.2d 811; Doran Coffee Roasting Co. v. Wyott Mfg. Co., 10 Cir., 267 F.2d 200. The trial court’s judgment of invalidity is based, in part at least, upon the admissions of the patentee on the record to the effect that the latter patent performed substantially the same operation in substantially the same way as the former. And, the patentee concedes as much in his brief. He insists, however, that his claim in the latter patent is not to the function or process, but to the structure or product itself; and that the trial court misconceived the claim and the result achieved by the patent which forms the basis for his invention. It is of course true that “product patents or patents of compositions of matter are distinct from patents of the process by which the product may be produced * * And, that “the former, if sufficiently described, may exist and be sustained independently of the latter.” Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 478, 72 L.Ed. 868. But, it is equally true that the product patent may not be enlarged by describing it “exclusively in terms of its use or function.” Holland Furniture Co. v. Perkins Glue Co., supra. The new and unexpected result which gives this structure patentable invention is said to lie in providing “a phenomenal increase in the strength of the tank as well as providing the necessary twice the length as width for adequate digestive action.” This patentable result is said to be achieved by progressing" }, { "docid": "10508111", "title": "", "text": "has substance and strength to it.’ For ‘strength’ ‘we have this rough and ready test: Does it survive under gentle rubbing of the fingers? I would not say that it is ah adequate test to predicate rubber behavior on, but it is a rough and ready test’; and if it responds to that test it is a pellet within the meaning of the claim. Finally, what on first impression appears to be reasonable certainty of dimension disappears when we learn that ‘approximately one-sixteenth of an inch in diameter’ includes a variation from approximately l/4th to l/100th of an inch. “So read, the claims are but inaccurate, suggestions of the functions of the product, and fall afoul of the rule that a patentee may not broaden his claims by describing the product in terms of function. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 256-258, 48 S.Ct. 474, 478, 479, 72 L.Ed. 868; General Electric Co. v. Wabash Corp., supra, 304 U.S. at pages 371, 372, 58 S.Ct. at pages 902, 903, 82 L.Ed. 1402. “Respondent urges that the claims must be read in the light of the patent specification, and that as so read they are sufficiently definite. Assuming the propriety of this method of construction, cf. General Electric Co. v. Wabash [Appliance] Corp., supra, 304 U.S. at pages 373-375, 58 S.Ct. at pages 903, 904, 82 L.Ed. 1402, it does not have the effect claimed, for the description in the specification is itself almost entirely in terms of function. It is therefore unnecessary to consider whether the rejection of certain claims by the Patent Office might in turn deprive the specification of any curative effect in this regard, * * * ” It will thus be seen that the Supreme Court found the claims too indefinite in virtually all important respects, namely (1) purity; (2) size; (3) shape; (4) strength; (5) porosity; and (6) uniformity. Defendant claims that in none of these respects have the invalidating defects been cured by the language employed in the reissued claims now before us. With this we cannot agree, and" }, { "docid": "8127048", "title": "", "text": "in the art, having the benefit of the teaching of the Drew patent, would have no difficulty in arriving at the proper proportions in any given case. We think such indefiniteness, if it can be called such, is fully warranted by the ruling of the Supreme Court in Minerals Separation, Ltd. v. Hyde, 242 U.S. 261, 37 S.Ct. 82, 61 L.Ed. 286. Appellant relies strongly upon Halliburton Oil Well Cementing Company v. Walker et al., 67 S.Ct. 6, which held that the claims there in issue failed to make the “full, clear, concise, and exact” description of the alleged invention required by Rev.Stat.4888, 35 U.S.C. sec. 33, as that statute was interpreted in General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. In the Walker case, the specification of the patent disclosed only one means for accomplishing the objective of the patentee, while the claim covered all means by which his purpose could be accomplished. Every structural element of the Walker claim, apart from the preamble was expressed by a “means” clause including the specific contribution of the patentee. In distinguishing the claim of the Walker patent from the claim of the Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 28 S. Ct. 748, 52 L.Ed. 1122, the Court in the Walker case said [67 S.Ct. 12] ; “In that case, however, the claims structurally described the physical and operating relationship of all the crucial parts of the novel combination.” The Court in the Walker case held that the invention in the Paper Bag case was adequately described. We are convinced that the claims here in issue cannot be said to consist with the claims of the Walker patent but they are in every respect similar to the claims in the Paper Bag case. See also O’Reilly v. Morse, 56 U.S. 62, claim 8, at page 112, 14 L.Ed. 601. It is urged by appellant that some of the claims are functional. If so, such language is in words of limitation which express the relationship of the structural elements" }, { "docid": "1400736", "title": "", "text": "application was filed, he was required to disclose his invention “in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains or with which it is most nearly connected to make, construct, compound and use the same; * * * and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” 35 U.S.C. § 33 (1946 Ed.). See General Electric Co. v. Wabash Appliance Corp., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; United Carbon Co. v. Binney & Smith Co., 1942, 317 U.S. 228, 63 S.Ct. 165, 87 L.Ed. 232. The claims in issue clearly and intelligibly set out the elements of the claimed patentable combination and therefore meet the statutory requirement of particularity and distinctness. A more formidable attack upon the validity of the Henderson patent is grounded upon Coats’ contention that there was a public use of the device covered by the claims in issue more than a year before the first disclosure thereof to the Patent Office. At the time of Henderson’s application the law provided that “Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, * * * not in public use or on sale in this country for more than one year prior to his application * * * may * * * obtain a. patent therefor.” 35 U.S.C. § 31 (1946 Ed.); cf. 35 U.S.C.A. § 102(b). Henderson’s original application was filed December 10, 1946. Early in 1947 Big Four began to sell commercial embodiments of the Henderson device. Considerably more than one year later, on January 28, 1949, Henderson filed an amendment to his application, and the patent finally issued on September 2, 1952. The theory of the argument made by Coats is that Henderson’s 1949 amendment represented a complete departure from his original disclosure, and that not until the date of that amendment did Henderson disclose the invention of the" }, { "docid": "3120118", "title": "", "text": "comparison with manifolds constructed in exact conformity with the prior art, namely, Matheson and Fiat, all equipped with exhaust heaters similar to those used in the accused devices. Dynamometer tests for power, torque and volumetric efficiency were also conducted by appellee upon an original Matheson engine, and an original Fiat engine using the original manifolds in comparison with manifolds of Swan’s preferred form, appellee’s heating means being applied in every case. In these tests all the manifolds compared are agreed by both parties to have achieved substantially the same results in performance and to have given good commercial distribution. This general statement must be qualified by the fact found by the District Court, that the volumetric efficiency of appellee’s engines decreased about ten per cent at the higher speeds with the application of heat. We think that under this record the court’s absence from the tests in no way impairs the validity of its conclusions as to their significance. Since both parties admit that substantially identical performance was secured under all the inter partes tests, and since the District Court’s findings emphasized this fact, the circumstance that the District Court was absent when the tests were conducted is immaterial. We are not impressed by the appellant’s contention that the substantially identical results secured by the operation of these various manifolds demonstrates infringement. All of the inter partes tests were conducted upon manifolds which were equipped with and employed appellee’s heating device, and the claims in suit do not provide for the use of any heating means. It is settled law that a claim for a result will not support a patent. Mitchell v. Tilghman, 19 Wall. 287, 86 U.S. 287, 22 L.Ed. 125; Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868. Cf. General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. The securing of substantially the same result is only one element entering into the question. In absence of evidence that the result was secured by the same or equivalent means, the fact that the" }, { "docid": "11151258", "title": "", "text": "moisture free borate coating. Its principal use seems to be in connection with the Dumet leading-in wire covered 'by the Fink patent hereinafter discussed and had wide use in the “bread and butter” lamps. 4. Pacz Patent, No. 1,140,499 This patent, expiring March 21, 1939, covered the so-called “sagless” tungsten filament. Certain claims to it were held valid in Anraku v. General Electric Co., 9 Cir., 80 F.2d 958, and other claims were eventually held invalid in General Electric Co. v. Wabash Appliance Corporation, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402, rendered shortly before the patent expired. This patent had wide application in the “bread and butter” lamps. 5. Mitchell and White Patent, No. 1,-423,956 This patent, expiring July 25, 1939, covered the commercial form of the so-called “tipless” bulb. General Electric claimed this to be a lamp but an examination of the patent claims show that it refers to the construction of the bulb, General Electric Co. v. Eisler, 3 Cir., 20 F.2d 33. 6. Fink Patent, No. 1,498,908 This patent, expiring June 24, 1941, covered the Dumet leading-in wire. Dumet wire is composed of special metals having a heat expansion characteristic of glass which General Electric takes credit for developing. The Government charged General Electric with bad faith in the procurement of this patent, particularly in the institution of a suit under 35 U.S.C.A. § 63. However, the proof shows its contentions that General Electric failed to notify the Commissioner of Patents of General Electric’s interest are without merit since the Commissioner was notified by the reference to the bill of complaint (Ex. 229-G at p. 1515 and Ex. GE-158). Further, the Commissioner expressly acknowledged receipt of the bill of complaint in which was found reference to General Electric’s conflicting interests (Ex. GE-159). 7. Pipkin Patent, No. 1,687,510 This patent, expiring October 16, 1945, related to the inside frosted bulb. It was held valid in General Electric Co. v. Save Sales Co., 6 Cir., 82 F.2d 100, and General Electric Co. v. Wabash Appliance Corporation, 2 Cir., 93 F.2d 671, but invalid in General Electric Co." }, { "docid": "6105646", "title": "", "text": "Office, that the conception of a preprinted sausage casing was not an inventive thought, and that the product or end result did not itself involve invention. It may be that invention resides in some of the claims in the description of the ink required to bring about the result; but these claims are not before us. To uphold the claims in suit would extend the patent to cover all preprinted casings bearing characters capable of withstanding the curing operations, and this, we think, would violate the rule that a patentee may not broaden a product claim by describing the product in terms of its use or function so as to include methods not described in the patent. Holland Furnace Co. v. Perkins Glue Co., 277 U.S. 245, 247, 48 S.Ct. 474, 72 L.Ed. 868; General Electric Co. v. Wabash Co., 304 U.S. 364, 370, 58 S.Ct. 899, 82 L.Ed. 1402; Demco, Inc. v. Doughnut Mach. Corp., 4 Cir., 62 F.2d 23, 25. It appears from the evidence that the great commercial success of the plaintiff was not due primarily to the preprinting of the sausage casing; but even if It contributed to the result, it could not save claims so clearly invalid as claims 1, 2 and 3 of the Freund patent. McClain v. Ortmayer, 141 U.S. 419, 427, 428, 12 S.Ct. 76, 35 L.Ed. 800. DeCressey Patent: The specification shows that the patent relates to a sausage casing with holes in it. During the process of manufacturing sausages in cellulose casings water or fat pockets may develop; and if an attempt is made to puncture the casings to permit the escape of these substances, the casings usually split. To meet this difficulty the patent proposes a sausage casing provided with a number of prepunctured holes at each end. Any suitable means may be used for making the holes, preferably a punch like that used in punching railroad tickets, so that the holes will be clean and not ragged. Of the six claims in suit, the following are typical: “1. The method of preparing a sausage casing for stuffing which" }, { "docid": "11299544", "title": "", "text": "merely in terms of what the desired viscosity would cause the softener to do. That is insufficient since it would create an unlawful extension of coverage by permitting a patentee to adopt the expedient of describing his product in the terms of function. Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868. As was said in General Electric Co. v. Wabash Appliance Corp., supra [304 U.S. 364, 58 S.Ct. 903, 82 L.Ed. 1402], “The difficulty of making adequate description may have some bearing on the sufficiency of the description attempted, but it cannot justify a claim describing nothing new except perhaps in functional terms.” And unless the word “high” has an accepted meaning in the art or is defined in the specifications, claim 2 is left too vague to be valid. Moreover, claims 1, 19, 20 and 21 also are tied to the term “high viscosity nitrocellulose” or “high viscosity cellulose derivative.” The trial court found on somewhat disputed, but clearly sufficient, evidence that the art knew no definite meaning for the expression “high viscosity” as applied to nitrocellulose. We must, therefore, turn to the specifications to find whether Wedger there defined these expressions used in his claims. The importance of this flows from the statutory requirement of R.S. Sec. 4888, 35 U.S.C.A. § 33, that a patent application must not only so describe the invention or discovery that one skilled in the art may learn how to practice it but “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” And this has been emphasized within the last few years in General Electric Co. v. Wabash Appliance Corp., supra, as follows: “Patents, whether basic or for improvements, must comply accurately and precisely with the statutory requirement as to claims of invention or discovery. * * * The statute seeks to guard against unreasonable advantages to the patentee and disadvantages to others arising from uncertainty as to their rights. The inventor must ‘inform the public during the life of the patent of the" }, { "docid": "8920465", "title": "", "text": "upon the question are cases in. which the applicant seeks to broaden his claims. But is is clear that the reason for requiring prompt action may be just as great in a case where the patentee seeks to 'narrow his claims as where he seeks to broaden them. In the latter case he may have misled the public into the belief that the unclaimed portion of the invention was dedicated to the public for its use. In the former case by his unwarranted claim of monopoly he has deprived the public of the unrestricted use of that which he has claimed. In effect, what Bedell .and his assignee, the plaintiff, did in this case was to maintain a “no trespassing” sign for eight years upon property which was not theirs. The public has an interest in seeing that such a situation is corrected promptly. The privilege of correcting an acknowledged error in the original patent may in the public interest be validly conditioned upon the patentee proceeding promptly. We conclude that the reissue patent was improperly granted and that the district court erred in not holding it invalid on that ground. This conclusion makes it unnecessary to consider whether, the patent was anticipated or disclosed invention over the prior art. The judgment of the district court is reversed. Holland Fur Co. v. Perkins Glue Co., 1927, 277 U.S. 245, 256-258, 48 S.Ct. 474, 72 L.Ed. 868; Gen. Electric Co. v. Wabash Appliance Corp., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. “Whenever any patent is wholly or partly inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a patent for the same invention, and in accordance with the corrected specification, to be reissued * * R.S. §" }, { "docid": "23642984", "title": "", "text": "imperfect utilization of the 956 patent with the hope of evading infringement while enjoying the major benefits of the teachings of 956. A device may infringe a patent even when it does not utilize fully the best mode of practicing the invention. We have said that impairment of function and lessening of result in degree only does not avoid infringement. Appellant’s motion to dismiss the appeal from those parts of the judgment relating to United States Patents Nos. 2,498,333, 2,915,583, and 2,814,671 is granted. The appeal is dismissed as to those patents. On all remaining issues the judgment is affirmed. . 35 U.S.C. § 282. . Bewal, Inc. v. Minnesota Mining and Manufacturing Company, 10 Cir., 292 F.2d 159, 164. . Philip Sitton Septic Tank Company v. Honer, 10 Cir., 274 F.2d 811, 813; Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811, 815. . 35 U.S.C. § 103; Wagner Iron Works v. Koehring Company, 10 Cir., 282 F.2d 317, 322; Doran Coffee Roasting Co. v. Wyott Manufacturing Co., 10 Cir., 267 F.2d 200, 202. . Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., supra, 274 F.2d p. 816, quoting Oliver United Filters v. Silver, 10 Cir., 206 F.2d 658, 662, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416; Hutchinson Mfg. Co. v. Mayrath, 10 Cir., 192 F.2d 110, 112, certiorari denied 343 U.S. 914, 72 S.Ct. 647, 96 L.Ed. 1329. . Great Atlantic and Pacific Tea Company v. Supermarket Equipment Corp., 340 U.S. 147, 151, 152, 71 S.Ct. 127, 95 L.Ed. 162. . Consolidated Electrodynamic Corp. v. Midwestern Instruments, Inc., supra, 274 F.2d p. 817. . Bewal, Inc., v. Minnesota Mining and Manufacturing Company, supra, 292 F.2d p. 164. . Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 330, 65 S.Ct. 647, 89 L.Ed. 973. . Oliver United Filters v. Silver, supra, 206 F.2d pp. 663-664. . Jamco, Incorporated v. Carlson, 10 Cir., 274 F.2d 338, 341-342. . Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 819, 65 S.Ct. 993, 89 L.Ed. 1381; Hazel-Atlas Glass Co." }, { "docid": "17107715", "title": "", "text": "this time accepted the suggestion instead of appealing from the decision. So far as appears, there was nothing to forbid the amendment of the first application, nor do we understand that the examiner denied the applicant that privilege; he merely held inadequate the amendment actually made. However that may be, the new application was not a “continuation,” as we have said, because the original disclosure as it stood had not been enough to support any claims whatever. The whole coil of procedure does not impress as having been necessary, and, as we have said, we do not quite see why the second application did not disclose “a substantial part of the subject-matter” of the first; on the other hand, whatever injustice the applicant may have suffered, we cannot see why the examiner’s remark should help out the patent. In the first place his ruling, if he did make any ruling that a second application would be a “continuation,” was not authoritative, for he had no authority in the premises. But even if he had had, we cannot see that he meant to exercise it. To tell the applicant that his “only recourse” was “to file a continuation” was not to assure him that the new application would be valid as such. All that the applicant could fairly infer was that that was the only possible escape for him; and that he might try it if he chose. The applicant knew, or at least he was charged with knowledge, that the examiner’s ruling was subject to review, and he chose to abandon his right to review it. If the result is harsh and over strict, it arises from the law as to “continuations.” Judgment affirmed. . D.C., 72 F.Supp. 865. . Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868; General Electric Co. v. Wabash Co., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3. . § 33, Title 35 U.S.C.A. . 317 U.S. 228, 63 S.Ct. 165," }, { "docid": "11861237", "title": "", "text": "claims under attack: “An asteriated massive nongranular single crystal of synthetic corundum of gem quality containing a precipitate of oxide of titanium, and characterized by having curved growth lines internally thereof.” Defendants place considerable emphasis on Holland Furniture Co. v. Perkins Glue Co., 1928, 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868, wherein the Supreme Court condemned “the attempt to broaden product claims by describing the product exclusively in terms of its use or function”. 277 U.S. at page 257, 48 S.Ct. at page 479 (emphasis supplied.) That case is clearly inapposite here. Not only is the term gem quality a definite term, -but its use in the product claims operates not to broaden the claims, as in the Holland case, but actually to narrow them. Gem quality is defined in the specification as a crystal “sufficiently perfect to warrant cutting, polishing, and offering for sale as an ornament.” The testimony of an expert in the jewelry trade is that this term has a definite meaning in the trade. Further, we are convinced that the effect of the term is to restrict the claims of the invention to the field of ornamentation rather than to industrial uses. It is highly unlikely that star sapphires would possess any additional utility to industrial users; hence, the term gem quality merely limits the product claims to the area of usefulness. Cf. Dennis v. Pitner, 7 Cir., 1939, 106 F.2d 142, 146 certiorari denied 308 U.S. 606, 60 S.Ct. 143, 84 L.Ed. 507; Smith, Kline & French Laboratories v. Clark & Clark, 3 Cir., 1946, 157 F.2d 725, 729 certiorari denied 329 U.S. 796, 67 S.Ct. 482, 91 L.Ed. 681. The significance of the language in the Holland Furniture case was brought into, sharper focus in General Electric Co. v. Wabash Appliance Co., 1938, 304 U.S. 364, at pages 371-372, 58 S.Ct. 899, at page 903, 82 L.Ed. 1402, where the court declared: “A limited use of terms of effect or result, which accurately define the essential qualities of a product to one skilled in the art, may in some instances be permissible" }, { "docid": "8920466", "title": "", "text": "improperly granted and that the district court erred in not holding it invalid on that ground. This conclusion makes it unnecessary to consider whether, the patent was anticipated or disclosed invention over the prior art. The judgment of the district court is reversed. Holland Fur Co. v. Perkins Glue Co., 1927, 277 U.S. 245, 256-258, 48 S.Ct. 474, 72 L.Ed. 868; Gen. Electric Co. v. Wabash Appliance Corp., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. “Whenever any patent is wholly or partly inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a patent for the same invention, and in accordance with the corrected specification, to be reissued * * R.S. § 4916, 35 U.S.C.A. § 64. In Heidbrink v. Charles H. Hardessen Co., 7 Cir., 1928, 25 F.2d 8, certiorari denied, 278 U.S. 629, 49 S.Ct. 29, 73 L.Ed. 548, Judge Evans, speaking of an attempt to cure the error of a functional claim by reissue, said at page 10 of 25 F.2d: “If the applicant deliberately and skillfully drafted his claims so as to cover any means which any one ever may discover of producing the result, could it be said that his action was inadvertent or accidental? Accidental or inadvertent action cannot be predicated upon conduct properly characterized as deliberate or designed.” Dobson v. Lees, 1890, 137 U.S. 258, 11 S.Ct. 71, 34 L.Ed. 652; Arnheim v. Finster, C.C.N.Y.1885, 24 F. 276; Grand Rapids Show Case Co. v. Baker, 6 Cir., 1914, 216 F. 341; In re Murray, Cust. & Pat.App., 1935, 77 F.2d 651; Cf. Perfection Disappearing Bed Co. v. Murphy Wall Bed Co., 9 Cir., 1920, 266 F. 698, certiorari denied, 254 U.S. 652, 41 S.Ct. 149, 65 L.Ed. 458. Moneyweight Scale" }, { "docid": "5366102", "title": "", "text": "contrary to that reached by the court below, that Perry’s contribution was not inventive in iis nature. The only other argument of the appellant upon which we feel inclined to comment in iis contention that Perry’s claims are functional, in the sense of the claims considered by the Supreme Court and held invalid for that reason in Corning v. Burden, 1853, 15 How. 252, 14 L.Ed. 683: Holland Furniture Co. v. Perkins Glue Co., 1928, 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868; General Electric Co. v. Wabash Appliance Corp., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; aud even more recently in Halliburton Oil Well Cementing Co. v. Walker, 1946, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3. The functional claims doctrine stems from the statutory requirement of long standing that an applicant for a patent must particularly point out and distinctly claim what he regards as his invention. See R.S. § 4888, 35 U.S.C. § 33, and now Title 35 U.S.C. § 112. This requirement, the courts have repeatedly held, prevents a patentee from staling his invention in terms of the result he achieves instead of in terms of his method of achievement. But it does not forbid all statements of function, result or means in patent claims. What it forbids is the description of the “crucial element” of a claim in terms of accomplishment raiher than in terms of physical characteristics; it forbids a statement of function or result at the precise point of novelty. Sec Halliburton Oil Well Cementing Co. v. Walker, supra. The obvious purpose of the doctrine is to prevent a patentee from obtaining a monopoly over a wider area than he has pioneered. Tested by these principles, Perry’s claims do not seem to us “functional.” Particularity of identification and clarity of statement are relative terms when applied to an invention. Some inventions are capable of description in terms of meticulous accuracy; others are not. And this is one of the latter class, for there are a great many polymeric, potentially viscid, substances of a resinous nature, and there are" }, { "docid": "17107716", "title": "", "text": "we cannot see that he meant to exercise it. To tell the applicant that his “only recourse” was “to file a continuation” was not to assure him that the new application would be valid as such. All that the applicant could fairly infer was that that was the only possible escape for him; and that he might try it if he chose. The applicant knew, or at least he was charged with knowledge, that the examiner’s ruling was subject to review, and he chose to abandon his right to review it. If the result is harsh and over strict, it arises from the law as to “continuations.” Judgment affirmed. . D.C., 72 F.Supp. 865. . Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868; General Electric Co. v. Wabash Co., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3. . § 33, Title 35 U.S.C.A. . 317 U.S. 228, 63 S.Ct. 165, 87 L.Ed. 232. . § 40, Title 35 U.S.C.A. . § 33, Title 35 U.S.C.A. . 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868. . 33 C.C.P.A. (Patents) 1023, 154 F.2d 522. . 29 C.C.P.A. (Patents) 1235, 129 F.2d 883. . Ex parte Hall (1920), Dec.Com.Pats. 56, 57. “A continuing application is an application filed subsequently to another application while the prior application is pending, disclosing all or a substantial part of the subject-matter of tbe prior application and containing claims to tbe subject-matter common to both applications. * * * a continuing application is a development of an applicant’s earlier application, and (sic) which is entitled to tiie filing date of bis earlier application for a constructive reduction to practice of tbe common embodiment of bis invention in the two applications.” . 33 C.C.P.A.(Patents) 1023, 154 F.2d 522." }, { "docid": "19067661", "title": "", "text": "may be expressed as a means or step for performing a specified function, without the recital of structure, material or acts in support thereof. P.J. Federico, Commentary on the New Patent Act, in 35 U.S.C.A. 1, 25 (West 1954), reprinted in 75 J. Pat. & Trademark Off. Soo’y 161 (1993). The Commentary made clear that the statute was intended to overrule some Court decisions: It is unquestionable that some measure of greater liberality in the use of functional expressions in combination claims is authorized than had been permitted by some court decisions and that decisions such as that in Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3 (1946), are modified or rendered obsolete, but the exact limits of the enlargement remain to be determined. Id. Federico explained that paragraph 6 enlarges the opportunity to claim a function, but limits how that function is supported and construed: The paragraph ends by stating that such a claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. This relates primarily to the construction of such claims for the purpose of determining when the claim is infringed (note the use of the word “cover”), and would not appear to have much, if any, applicability in determining the patentability of such claims over the prior art, that is, the Patent Office is not authorized to allow a claim which “reads on” the prior art. Id. at 26. Thus this paragraph of the 1952 Act overruled the Halliburton case, which had been supported by earlier precedent, as the Court discussed. Halliburton, 329 U.S. at 10, 67 S.Ct. 6 (citing General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371, 58 S.Ct. 899, 82 L.Ed. 1402 (1938) for the proposition that claims are indefinite for using “conveniently functional language at the exact point of novelty.”). This paragraph established that an inventor could claim a function, and the “means for” signal entered the patent lexicon, where it has reposed ever since, as a universally understood signal of a functional claim." }, { "docid": "11299543", "title": "", "text": "specifications. But it was not enough to avoid dedicating his invention to the public to teach those skilled in the art how to practice it; he was required to state clearly what he claimed to be new in his invention. General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. To secure a good patent, he had to secure valid claims for they are the meas ure of the grant to a patentee. Smith v. Snow, 294 U.S. 1, 55 S.Ct. 279, 79 L.Ed. 721. All the claims in suit were held valid below because it was found that they did sufficiently define what he claimed. We are, however, unable to agree. The viscosity of the softener of claims 1, 20 and 21 is whatever will cause it to remain, when not under pressure, substantially where placed on dried pyroxylin cement and that of claim 2 is merely “high”. Despite the fact that viscosity could be measured and stated accurately in terms of known definite symbols, Wedger described it merely in terms of what the desired viscosity would cause the softener to do. That is insufficient since it would create an unlawful extension of coverage by permitting a patentee to adopt the expedient of describing his product in the terms of function. Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868. As was said in General Electric Co. v. Wabash Appliance Corp., supra [304 U.S. 364, 58 S.Ct. 903, 82 L.Ed. 1402], “The difficulty of making adequate description may have some bearing on the sufficiency of the description attempted, but it cannot justify a claim describing nothing new except perhaps in functional terms.” And unless the word “high” has an accepted meaning in the art or is defined in the specifications, claim 2 is left too vague to be valid. Moreover, claims 1, 19, 20 and 21 also are tied to the term “high viscosity nitrocellulose” or “high viscosity cellulose derivative.” The trial court found on somewhat disputed, but clearly sufficient, evidence that the art knew no" }, { "docid": "5366101", "title": "", "text": "nothing but what anyone else might do if so inclined. But if patents were to be held invalid on such reasoning few would survive. Even the greatest invention of all time, the wheel, had, we are told, iis prior art of unnumbered savages slipping on round stones. Plow many slipped before some bruised genius among them literally fell upon the principle of the roller, and how many more years, or centuries, passed before some succeeding genius, building upon the prior art of rollers, thought of a fixed pivot and invented the wheel, can only be surmised. Each case has to be considered on its own facts and in relation to its particular setting. Sometimes, it is true, the prior art as it appears in earlier patents and elsewhere points so obviously to a patentee’s sHp that invention is clearly negatived. See McCord Corp. v. Beacon Auto Radiator Co., 1 Cir., 1952, 193 F.2d 985. This, however, is not such a case. The indications of the pi ior art are too obscure to warrant our conclusion, contrary to that reached by the court below, that Perry’s contribution was not inventive in iis nature. The only other argument of the appellant upon which we feel inclined to comment in iis contention that Perry’s claims are functional, in the sense of the claims considered by the Supreme Court and held invalid for that reason in Corning v. Burden, 1853, 15 How. 252, 14 L.Ed. 683: Holland Furniture Co. v. Perkins Glue Co., 1928, 277 U.S. 245, 48 S.Ct. 474, 72 L.Ed. 868; General Electric Co. v. Wabash Appliance Corp., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; aud even more recently in Halliburton Oil Well Cementing Co. v. Walker, 1946, 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3. The functional claims doctrine stems from the statutory requirement of long standing that an applicant for a patent must particularly point out and distinctly claim what he regards as his invention. See R.S. § 4888, 35 U.S.C. § 33, and now Title 35 U.S.C. § 112. This requirement, the courts have repeatedly" } ]
495524
"that Debtor had filed a petition for relief under Chapter 7 of the Bankruptcy Code. Present at the hearing as trial counsel were James A. Coutinho and J. Matthew Fisher, representing Debtor, and Percy Squire representing himself and Sterling A. Williams. Upon the evidence presented, the Court makes the following findings of fact and conclusions of law. JURISDICTION This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and General Order 05-02 entered by the District Court for the Southern District of Ohio, referring all bankruptcy matters to this Court. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(A) & (O) ; see also REDACTED An order awarding damages under § 362(k)(1) is a final order. Wicheff v. Baumgart (In re Wicheff) , 215 B.R. 839, 843 (6th Cir. BAP 1998). The Court has constitutional authority to enter a final order in this matter because a claim under § 362(k)(1) for an automatic stay violation ""derives directly from the Bankruptcy Code"" and ""necessarily stems from the bankruptcy itself."" WD Equipment v. Cowen (In re Cowen) , 849 F.3d 943, 948 (10th Cir. 2017) (internal quotation marks omitted). FINDINGS OF FACT Debtor is the successful author of multiple urban fiction novels. She wrote her first novel in 1998 and became a published author with"
[ { "docid": "18198428", "title": "", "text": "157(b)(2). Further, the bankruptcy court correctly concluded that the automatic stay in bankruptcy, 11 U.S.C. § 362(a), applies to the Louisiana action. A. Amedisys first argues that, in globally staying the Louisiana action, the bankruptcy court exceeded its jurisdiction. The bankruptcy court held that it had jurisdiction to enforce the stay because the matter was a core proceeding. JA 554. Amedisys argues that in order for jurisdiction to be proper, the bankruptcy court was required to find that the Louisiana action was “related to” the bankruptcy case. See 28 U.S.C. § 1334(b). Further, Amedisys urges, in the event of a judgment against JP Morgan in the Louisiana action, JP Morgan likely would not obtain indemnity from NCFE or its subsidiaries; therefore the Louisiana action is not related to the bankruptcy case. The bankruptcy court had jurisdiction to enforce the stay, because NCFE’s motion to enforce constituted a core proceeding. 28 U.S.C. § 1334(b) provides exclusive district court jurisdiction over “all cases under title 11,” and concurrent jurisdiction over “civil proceedings arising under title 11, or arising in or related to cases under title 11.” In turn, 28 U.S.C. § 157(a) permits district courts to refer bankruptcy cases brought under their original jurisdiction to bankruptcy courts. Section 157(b) of the same chapter defines “core proceedings arising under title 11, or arising in a case under title 11” to include “matters concerning the administration of the estate,” “motions to terminate, annul, or modify the automatic stay,” and “other proceedings affecting the liquidation of as sets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship.... ” 28 U.S.C. § 157(b)(2)(A), (G), (0). Amedisys concedes in its jurisdictional statement, “This matter is a core proceeding pursuant to § 157(b)(2)(G).” Appellant’s Br. at 1. Therefore, NCFE’s motion to enforce the automatic stay by definition met a narrower jurisdictional test than the “related to” basis for jurisdiction over non-core proceedings. See In re Combustion Eng’g, Inc., 391 F.3d 190, 225-26 (3d Cir.2004) (“Cases under title 11, proceedings arising under title 11, and proceedings arising in a case under title 11" } ]
[ { "docid": "11254531", "title": "", "text": "MEMORANDUM OPINION A. BENJAMIN GOLDGAR, Bankruptcy Judge. Timothy K. Liou is one of the most active consumer bankruptcy attorneys in this district, filing nearly 8,000 cases from mid-1996 to the present. More than once, though, Liou’s efforts to get paid have drawn the court’s attention and resulted in sanctions. Now he faces sanctions again. Earlier this year, seven bankruptcy judges issued orders asserting that Liou had filed false applications for compensation as counsel for the debtors in 317 pending chapter 13 cases. The applications were false, the orders said, because in them Liou represented that he had entered into the court’s form retention agreement with the debtor, entitling him to receive a fixed fee of $3,500 (a “flat” or “no look” fee), when in fact he had modified the agreement to charge additional fees. The orders required him to show cause why he should not be sanctioned for violating Bankruptcy Rule 9011(b). The Rule 9011 proceedings were consolidated for hearing before the undersigned judge. Based on the evidence adduced at the hearing and on the court’s own records in the 317 chapter 13 cases, the court makes the following findings of fact and conclusions of law pursuant to Bankruptcy Rules 7052 and 9014(c). For the reasons discussed below, Liou will be sanctioned for his multiple misrepresentations to the court in violation of Rule 9011(b). 1. Jurisdiction The court has subject matter jurisdiction over these cases pursuant to 28 U.S.C. § 1334(a) and the district court’s Internal Operating Procedure 15(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A). See In re Tbyrd Enters. LLC, 354 Fed.Appx. 837, 839 (5th Cir.2009), cert. denied, — U.S. -, 131 S.Ct. 323, 178 L.Ed.2d 146 (2010); In re Letourneau, 422 B.R. 132, 135 (Bankr.N.D.Ill.2010). 2. Background a. Attorney Compensation in Chapter 13 Compensation of debtors’ attorneys is a matter critical to “the integrity of the bankruptcy process.” In re Nelson, 424 B.R. 361, 363 (Bankr.N.D.Ill.2009); see also In re Kindhart, 160 F.3d 1176, 1177 (7th Cir.1998) (calling the question of attorney’s fees “an important matter not only to attorneys, but also to the" }, { "docid": "1148631", "title": "", "text": "ORDER MARGARET A. MAHONEY, Bankruptcy Judge. This matter is before the Court on the complaint of the Plaintiffs/Debtors, the Matthews (the “Debtors,” the “Plaintiffs” or the “Matthews”), against the United States (the “Internal Revenue Service” or the “IRS”), for civil contempt, for damages for violation of the automatic stay under 11 U.S.C. § 362(h), for violation of the discharge injunction under 11 U.S.C. § 524(a), for injunc-tive relief and for relief under 5 U.S.C. § 504. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (C) and (O) and, therefore, the Court can enter a final order in this matter. For the reasons indicated below, the Matthews are awarded a judgment in the amount of $3,000.00 against the United States of America. FACTS The Matthews’ bankruptcy case and this adversary proceeding became necessary because Mr. Matthews worked in Saudi Arabia in 1983 and 1984. When a taxpayer returns from foreign employment, he or she has one year to file an IRS Form 911. If this form is timely filed, no tax is due to the United States on the foreign income. The Matthews did not file this form, apparently due to bad or no advice. They consequently owed the government $62,930.64 in federal taxes. There was no evidence that the Matthews knowingly disobeyed the tax laws. They appeared genuinely mortified by their predicament. The Matthews obtained counsel prebank-ruptcy and attempted to negotiate a compromise of the tax debt owed based upon the equities of the case and the assets the Matthews had which were available for payment of the debt. No compromise could be reached and so the Matthews decided that they had no choice but to file bankruptcy. The Debtors filed a joint Chapter 7 bankruptcy ease on May 4, 1992. They listed debts to the Internal Revenue Service for federal income taxes for 1983 and 1984 in their bankruptcy schedules. These debts, at the filing of their petition, were at" }, { "docid": "1996190", "title": "", "text": "United States Bankruptcy Court Southern District of Ohio Western Division Entered Oct. 18, 1989 In re: Bennett A. Bodine and Amanda Bodine, Debtors. Bankruptcy Case No. 3-88-04005 Rent-A-Center, Movant -VS-Bennett A. Bodine and Amanda Bodine, Respondents. Contested Matter “A” DECISION AND ORDER GRANTING MOTION OF RENT-A-CENTER TO LIFT AUTOMATIC STAY Dated at Dayton, Ohio this 16th day of October, 1989. Before the court is a motion of Rent-A-Center for relief from the automatic stay provisions of Section 362 of the Bankruptcy Code. The court has jurisdiction pursuant to 28 U.S.C. Section 1334 and the standing order of reference entered in this district. This matter is a core proceeding under 28 U.S.C. Section 157(b)(2)(G). This decision shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. FACTS On November 30, 1988 Bennett A. Bo-dine and Amanda Bodine filed a petition in bankruptcy under chapter 13 of the Bankruptcy Code and listed Rent-A-Center as a creditor with a claim of $500.00, secured by a television and VCR of the same value. The debtors proposed to pay the claim (including yearly interest of 8%) over a period of 20 months at the rate of $26.79 per month. Rent-A-Center filed the instant motion for relief from the automatic stay on January 10, 1989 on the ground that the debtors had “rented” the TV and VCR from Rent-A-Center and had not made the agreed rental payments. The following “Stipulation of Facts” (Doc. 17) was entered into by the parties: 1. The Rent-A-Center and the Debtors, Bennett and Amanda Bodine, entered into the Agreement (attached as Exhibit A) on August 17, 1988, concerning a 25 inch Magnavox, color television and a Zenith VCR. 2. The laws in Ohio as to Lease Purchase Agreements, to wit, Ohio Revised Code Sections 1301.01; 1347.01 and 1351.01 and 1351.04 were amended with the effective date of the amendments being June 28, 1988. 3. The Debtors filed for protection under Chapter 13 of the Federal Bankruptcy laws on November 30, 1988. 4. The Debtors had paid a total of $236.86 on the agreement from August 17, 1988" }, { "docid": "759454", "title": "", "text": "and Consumer Protection Act of 2005 (“BAPCPA”), what rate of interest must a chapter 13 debtor pay to the holder of a claim secured by a vehicle purchased for personal use within 910 days prior to the bankruptcy filing where the debtor proposes to pay the secured claim by making periodic installment payments? II. JURISDICTION AND STANDARD OF REVIEW The United States District Court for the Northern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel of the Sixth Circuit (“Panel”) and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). The parties to this appeal have not raised any issues regarding the Panel’s jurisdiction; however, we must independently assess whether we have jurisdiction. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (federal appellate court must satisfy itself that it has jurisdiction over appeal even if the parties concede it). 28 U.S.C. § 158(a)(1) confers jurisdiction on the Panel to hear appeals from “final judgments, orders, and decrees ....” (emphasis added); see id. at §§ 158(b)(1) & (c)(1). “[A] decision is ordinarily considered final and appealable under § 1291 [and § 158(a)] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945)); Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839 (6th Cir. BAP 1998). The bankruptcy court’s order neither confirmed the Debtors’ plan nor dismissed the chapter 13 case. The order simply overruled the Appellant’s objection to the Debtors’ proposed plan and scheduled a confirmation hearing. Subsequently, the bankruptcy court granted the chapter 13 trustee’s motion to disburse funds prior to confirmation. The court’s order further prohibited the trustee from paying allowed unsecured claims until a final order of this Panel has been issued determining this appeal. The confirmation hearing has" }, { "docid": "18968895", "title": "", "text": "DECISION CARLA E. CRAIG, Chief United States Bankruptcy Judge This matter comes before the Court on the motion of Jean S. Jean-Franeois (the “Debtor”) for sanctions against Church Avenue Partners LLC (“Church Avenue”) pursuant to § 362(k) for willful violation of the automatic stay. Church Avenue opposed the Debtor’s motion, and the Court held a trial on April 27, 2015 on the issue of whether Church Avenue violated the automatic stay by evicting the Debtor after he filed for bankruptcy, whether the violation was willful, and whether the Debtor is entitled to actual or punitive damages. For the following reasons, the Court finds that Church Avenue violated the automatic stay, and awards the Debtor $50,000 in punitive damages. JURISDICTION This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. § 1334(b), and the Eastern District of New York standing order of reference dated August 28, 1986, as amended by order dated December 5, 2012. This is a core proceeding under § 157 of the Judicial Code. 28 U.S.C. § 157; see Calderon v. Bank of America Corp. (In re Calderon), 497 B.R. 558, 564 (Bankr.E.D.Ark.2013) (“A proceeding under section 362(k) is a proceeding arising under title 11 and is a core proceeding under § 157 of the Judicial Code.”) (quotations and alterations omitted). This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052. BACKGROUND The following facts are undisputed unless otherwise indicated. The Debtor is a pastor of Eglise de Dieu church (the “Church”) (Trial Tr. 18:10-15, 101:13-14, April 27, 2015, ECF No. 130.) In February, 2007, the Debtor purchased a three-story building at 3502 Church Avenue, in Brooklyn, New York, which includes a basement, a commercial space on the first floor, and seven residential apartments on the second and third floors (the “Building”). (Pre-Trial Order 2, ECF No. 129.) To finance the purchase, the Debtor borrowed $562,500 from Flushing Savings Bank, which took a mortgage on the Building. (Pre-Trial Order 2, ECF No. 129.) The Debtor used the first floor and basement of the Building" }, { "docid": "13810140", "title": "", "text": "ORDER ON MOTION FOR VIOLATION OF THE AUTOMATIC STAY DONALD E. CALHOUN, Jr., Bankruptcy Judge. The matter is before the Court on the “Motion for Order Holding in Contempt, ALAC for Violation of the Automatic Stay of Bankruptcy Code § 362” filed by Debtor Sherron L. Cepero (“Debtor”). By her Motion, Debtor requests that the Court hold Auto Lenders Acceptance Corporation (“ALAC”) in contempt for violating the automatic stay, and that Debtor be awarded damages for actual pecuniary loss, legal fees and punitive damages. This Court is vested with jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this district. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (0). I. Findings of Fact The facts with respect to this proceeding are not in dispute. Debtor filed her petition for relief under Chapter 13 of the Bankruptcy Code on March 24, 1998. Debtor listed ALAC on her Schedule of Creditors Holding Secured Claims, indicating that ALAC’s claim was fully secured by a 1993 Honda Accord (“the Accord”), and was two months in arrears. The Accord had been repossessed by or on behalf of ALAC prior to the filing of this bankruptcy proceeding, and a “Repossession Certificate of Title” was issued showing ALAC as the owner of the Accord on or about March 16,1998. Debtors had received a notice of repossession and intent to sell the Accord, listing a proposed sale date of March 27, 1998, at Ohio Auto Auction. Debtor attempted to contact representatives of ALAC by telephone with regard to the repossession, and testified that she had called Joe Carter, a representative of ALAC, to advise him of her bankruptcy filing. ALAC did not return Debtor’s telephone call regarding the bankruptcy filing. Debtor testified that personal property with a value of approximately $142.00, in addition to a family bible were in the Accord at the time of its repossession, and had not been returned to Debtor as of the time of the June 15,1998 hearing. ALAC was further notified of Debtor’s bankruptcy filing by Kelly Story, a legal" }, { "docid": "21134959", "title": "", "text": "faith, the Court denies his motion to convert this case'to Chapter 7. II. Jurisdiction and Constitutional Authority The Court has jurisdiction to hear and determine this contested matter pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference entered in this district. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(A) and (O). There is some question whether an order denying a Chapter 11 debtor’s motion to convert his case to Chapter 7 is a final order. Compare United Phosphorus Ltd. v. Fox (In re Fox), 241 B.R. 224, 229-30 (10th Cir. BAP 1999) (holding that an order denying a creditor’s motion to convert an individual Chapter 11 debtor’s case to Chapter 7 was not final) with Copper v. Copper (In re Copper), 314 B.R. 628, 630 (6th Cir. BAP 2004) (holding that an order denying a debtor’s request to convert a Chapter 7 case to Chapter 13 is a final order), aff'd, 426 F.3d 810 (6th Cir.2005). But even if this order is final, the Court has the constitutional authority to enter it after Stern v. Marshall, 564 U.S. 462, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), because the decision whether or not to convert a case “stems from the bankruptcy itself.” Stern, 131 S.Ct. at 2618. As a result, in an opinion affirming an order converting a Chapter 11 case to Chapter 7, one federal court of appeals stated that “nothing in Stem v. Marshall ... affects our analysis.” In re USA Baby, Inc., 674 F.3d 882, 883 (7th Cir.2012). “The Supreme Court held in [Stem] that bankruptcy judges may not enter final judgments on common law claims that are independent of federal bankruptcy law; we cannot fathom what bearing that principle might have on the present case.” Id. at 883-84. The Court therefore concludes that it has the constitutional authority to adjudicate the Debtor’s conversion motion. III. Procedural Background On October 7, 2014 (the “Petition Date”), the Debtor filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Five months later, on March 5, 2015, he filed a motion" }, { "docid": "12792524", "title": "", "text": "Colorado law, and therefore did not effectively terminate Mr. Cowen’s “ownership interest in the Trucks,” (id. at 252). And so, the bankruptcy court concluded, “[flailing to return the Trucks violated § 362(a)(3) of the Bankruptcy Code,” (id.), and it imposed actual and punitive damages under 11 U.S.C. § 362(k)(l). Defendants timely appealed this decision to the district court, which reversed on the calculation of damages but otherwise affirmed the bankruptcy court’s order. Defendants then appealed to this Court, arguing, among other things, that the bankruptcy court exceeded its jurisdiction, that it lacked constitutional authority to enter a final judgment in this adversary proceeding, and that the bankruptcy court misinterpreted § 362 — the automatic stay provision. “[TJhough this appeal comes to us from the district court, we review a bankruptcy court’s decisions independently, examining legal determinations de novo and factual findings for clear error.” FB Acquisition Prop. I, LLC v. Gentry (In re Gentry), 807 F.3d 1222, 1225 (10th Cir. 2015). “In doing so, we treat the bankruptcy appellate panel or district court as a subordinate appellate tribunal whose rulings are not entitled to any deference (although they may certainly be persuasive).” Nelson v. Long (In re Long), 843 F.3d 871, 873 (10th Cir. 2016) (internal quotation marks omitted). “A bankruptcy court’s legal conclusions are reviewed de novo, while its factual findings are reviewed for clear error.” Id. We address first the bankruptcy court’s jurisdiction. “The jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in, and limited by, statute.” Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). By statute, bankruptcy courts have jurisdiction to “enter final judgments in ‘all core proceedings arising under title 11, or arising in á case under title 11.’ ” Stern v. Marshall, 564 U.S. 462, 474, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) (quoting 28 U.S.C. § 157(b)(1)). As we have explained, a claim for damages under § 362(k)(l) for a violation of an automatic stay is a core proceeding. Johnson v. Smith (In re Johnson), 575 F.3d 1079, 1083 (10th Cir. 2009)" }, { "docid": "10323605", "title": "", "text": "on August 8, 2002, debtor filed an emergency motion to vacate the order, asserting that the lien had been satisfied during the prior Chapter 13 case. On August 13, 2002, this court entered an order that granted the request to vacate the order modifying the stay, reinstated Wells Fargo’s motion to modify the stay, and allowed the parties to brief the question of the effect of the prior Chapter 13 case on the lien asserted by Wells Fargo. Jurisdiction Jurisdiction over bankruptcy cases is placed exclusively in the district courts. 28 U.S.C. § 1334(a). Pursuant to 28 U.S.C. § 157(a), district courts may generally refer bankruptcy cases to the bankruptcy judges of their district, and, by Internal Operating Procedure 15(a), the District Court for the Northern District of Illinois has made such a reference. Pursuant to 28 U.S.C. § 157(b)(1), the bankruptcy judge presiding over a referred case has jurisdiction to enter appropriate orders and judgments in “core proceedings” within the case. A motion to modify the automatic stay is a core proceeding under 28 U.S.C. § 157(b)(2)(G). This court therefore has jurisdiction to enter a final ruling on the pending matter. Conclusions of Law The automatic stay, imposed by § 362(a) of the Bankruptcy Code, prevents, among other things, actions by secured creditors to enforce their pre-bankruptcy liens. 11 U.S.C. § 362(a)(5). However, § 362(d)(2) requires the bankruptcy court to grant relief from this stay if the debtor does not have equity in property subject to a lien, and the property is not necessary to an effective reorganization. Under this provision, if Wells Fargo has a valid lien on Clarence Booth’s automobile, it is clearly entitled to relief from the automatic stay to pursue its remedies against that automobile, including any right to repossession, under applicable nonbankruptcy law. Booth acknowledges that the value of his automobile is less than the lien claimed by Wells Fargo, and Chapter 7 involves liquidation, not reorganization. In re Rosemond, 105 B.R. 8, 10 (Bankr.W.D.Pa.1989) (holding that if there is no equity in collateral, relief from stay must be granted in Chapter 7). Booth’s" }, { "docid": "759455", "title": "", "text": "“final judgments, orders, and decrees ....” (emphasis added); see id. at §§ 158(b)(1) & (c)(1). “[A] decision is ordinarily considered final and appealable under § 1291 [and § 158(a)] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945)); Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839 (6th Cir. BAP 1998). The bankruptcy court’s order neither confirmed the Debtors’ plan nor dismissed the chapter 13 case. The order simply overruled the Appellant’s objection to the Debtors’ proposed plan and scheduled a confirmation hearing. Subsequently, the bankruptcy court granted the chapter 13 trustee’s motion to disburse funds prior to confirmation. The court’s order further prohibited the trustee from paying allowed unsecured claims until a final order of this Panel has been issued determining this appeal. The confirmation hearing has since been repeatedly continued by the bankruptcy court. Generally, an order which neither confirms a plan nor dismisses the underlying case is not final. Lewis v. United States, 992 F.2d 767, 772 (8th Cir.1993); see also Jefferson Fin. Servs. v. Hance (In re Hance), 234 F.3d 1268, 2000 WL 1478390 (6th Cir.2000) (unpub. table decision) (finding lack of jurisdiction where confirmation of plan denied and notice of appeal filed before plan was confirmed). However, in appropriate circumstances, we may consider the notice of appeal as a motion for leave to appeal and decide the appeal. See Wicheff, 215 B.R. at 843; Bankruptcy Rule 8003(c); 28 U.S.C. §§ 158(a)(3) and (b). While we are not constrained by the standards set forth in 28 U.S.C. § 1292(b), which define the courts of appeals’ jurisdiction to review interlocutory orders, they are instructive. See Wicheff, 215 B.R. at 844; Moix-McNutt v. Coop (In re Moix-McNutt), 212 B.R. 953 (8th Cir. BAP 1997). Section 1292(b) provides for discretionary appellate review of interlocutory orders that involve a controlling question of law" }, { "docid": "14787095", "title": "", "text": "OPINION G. HARVEY BOSWELL, Bankruptcy Appellate Panel Judge. James Mark Wengerd and Cheryl Sue Wengerd (“Debtors”) appeal an order of the bankruptcy court sustaining the Trustee’s objection to their homestead exemption and granting the Trustee’s motion for turnover of proceeds from the sale of the Debtors’ residence. I.ISSUE ON APPEAL The issue raised by this appeal is whether the bankruptcy court erred in sustaining the Trustee’s objection to the Debtors’ homestead exemption and granting the Trustee’s motion for turnover of proceeds from the sale of the Debtors’ residence. II.JURISDICTION AND STANDARD OF REVIEW We have jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and neither party timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). An order on an objection to a debtor’s claim of exemption is final for purposes of appeal. See Menninger v. Schramm (In re Schramm), 431 B.R. 397, 399 (6th Cir. BAP 2010) (citing Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998)). The bankruptcy court’s order granting the Trustee’s motion for turnover is also a final, appealable order. Bailey v. Suhar (In re Bailey), 380 B.R. 486, 488 (6th Cir. BAP 2008). The bankruptcy court’s conclusions of law are reviewed de novo. Darrohn v. Hildebrand (In re Darrohn), 615 F.3d 470, 474 (6th Cir.2010). The bankruptcy court’s application or interpretation of state law is a conclusion of law. In re Schramm, 431 B.R. at 399. “Interpretation of a state’s exemption statute involves a question of law and is reviewed de novo.” Id. “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). Essentially, the reviewing court decides the issue “as if it had not been heard before.” Mktg. & Creative Solutions," }, { "docid": "12792525", "title": "", "text": "subordinate appellate tribunal whose rulings are not entitled to any deference (although they may certainly be persuasive).” Nelson v. Long (In re Long), 843 F.3d 871, 873 (10th Cir. 2016) (internal quotation marks omitted). “A bankruptcy court’s legal conclusions are reviewed de novo, while its factual findings are reviewed for clear error.” Id. We address first the bankruptcy court’s jurisdiction. “The jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in, and limited by, statute.” Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). By statute, bankruptcy courts have jurisdiction to “enter final judgments in ‘all core proceedings arising under title 11, or arising in á case under title 11.’ ” Stern v. Marshall, 564 U.S. 462, 474, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) (quoting 28 U.S.C. § 157(b)(1)). As we have explained, a claim for damages under § 362(k)(l) for a violation of an automatic stay is a core proceeding. Johnson v. Smith (In re Johnson), 575 F.3d 1079, 1083 (10th Cir. 2009) (holding that a “§ 362(k)(l) proceeding ... is a core proceeding because it derives directly from the Bankruptcy Code and can be brought only in the context of a bankruptcy case.” (internal quotation marks and brackets omitted)). Accordingly, bankruptcy courts can exercise jurisdiction and adjudicate such claims to final judgment. Id. Defendants contend, however, that the bankruptcy court erred in retaining jurisdiction over the § 362(k)(l) adversary proceeding after the underlying bankruptcy was dismissed. But this argument is foreclosed by Johnson. There it was argued that “dismissal of the underlying Chapter 13 case divested the bankruptcy court of jurisdiction over the § 362(k)(l) proceeding.” Id. at 1081. We disagreed: “Nothing in the Bankruptcy Code mandates dismissal of the § 362(k)(l) proceeding when the bankruptcy case is closed,” and “[n]o part of § 362(k)(l) suggests that a claim exists only while the bankruptcy case remains pending.” Id. at 1084. We explained that “[rjequiring the dismissal of a § 362(k)(l) proceeding simply because the underlying bankruptcy case has been dismissed would not make sense. A court must" }, { "docid": "21181495", "title": "", "text": "OPINION AUG, Chief Judge. The chapter 7 trustee (“Appellant”) appeals an order of the bankruptcy court overruling his objection to the debtors’ claim of exemption. The bankruptcy court held that Shah M. Alam’s investment funds originating from a settlement of litigation against his disability insurance carrier were exempt in their entirety. For the reasons set forth below, we affirm the bankruptcy court’s decision insofar as it finds that the investment funds were exempt “benefits under policies of sickness and accident insurance” pursuant to Ohio Revised Code §§ 2329.66(A)(6)(e) and 3923.19.However, we reverse and remand for further proceedings the bankruptcy court’s decision that the investment funds were exempt in their entirety. I. ISSUES ON APPEAL The issues in this appeal are (1) whether the bankruptcy court correctly construed Ohio law in its determination that the exemption claim made by the debtors, Shah M. Alam and Nuzhat M. Alam (“Debtors”) pursuant to Ohio Revised Code §§ 2329.66(A)(6)(e) and 3923.19 was proper and (2) whether the bankruptcy court made sufficient findings of facts to conclude that the investment funds were exempt in their entirety. Under the facts presented, this is a case of first impression. II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). An order on an objection to a debtor’s claim of exemption is a final order for purposes of appeal. Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998). Findings of fact are reviewed under the clearly erroneous standard. Fed. R. Bankr.P. 8013; Fed.R.Civ.P. 52(a). “If the bankruptcy court’s factual findings are" }, { "docid": "14787096", "title": "", "text": "Schramm (In re Schramm), 431 B.R. 397, 399 (6th Cir. BAP 2010) (citing Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998)). The bankruptcy court’s order granting the Trustee’s motion for turnover is also a final, appealable order. Bailey v. Suhar (In re Bailey), 380 B.R. 486, 488 (6th Cir. BAP 2008). The bankruptcy court’s conclusions of law are reviewed de novo. Darrohn v. Hildebrand (In re Darrohn), 615 F.3d 470, 474 (6th Cir.2010). The bankruptcy court’s application or interpretation of state law is a conclusion of law. In re Schramm, 431 B.R. at 399. “Interpretation of a state’s exemption statute involves a question of law and is reviewed de novo.” Id. “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). Essentially, the reviewing court decides the issue “as if it had not been heard before.” Mktg. & Creative Solutions, Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Solutions, Inc.), 338 B.R. 300, 302 (6th Cir. BAP 2006) (citation omitted). “No deference is given to the trial court’s conclusions of law.” Id. (citations omitted). III.FACTS On July 3, 2009, James Mark Wengerd and Cheryl Sue Wengerd (“Debtors”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. At that time, the Debtors resided at 14654 Du-quette Ave., N.E., Hartville, Ohio 44632 in a home that they had owned since March 14, 1995. The fair market value of the home was listed on Schedule A as $205,000.00 with secured debt of $164,978.92. Pursuant to Ohio Revised Code § 2329.66(A)(1), the Debtors claimed a homestead exemption in the amount of $40,400.00. On May 27, 2009, prior to filing their petition for relief, the Debtors entered into a contract to sell their home for $205,000. They did not disclose the pending sale of their home in their petition, nor did they list the contract to sell on Schedule E, which requires the" }, { "docid": "21181496", "title": "", "text": "funds were exempt in their entirety. Under the facts presented, this is a case of first impression. II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). An order on an objection to a debtor’s claim of exemption is a final order for purposes of appeal. Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998). Findings of fact are reviewed under the clearly erroneous standard. Fed. R. Bankr.P. 8013; Fed.R.Civ.P. 52(a). “If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the [reviewing court] may not engage in its own fact-finding but, instead, must remand the case to the bankruptcy court for the necessary factual determination.” Helfrich v. Thompson (In re Thompson), 262 B.R. 407, 408 (6th Cir. BAP 2001) (internal quotations and citations omitted). A bankruptcy court’s conclusions of law are reviewed de novo. Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg. Co.), 439 F.3d 248, 254 (6th Cir.2006); In re Downs, 103 F.3d 472, 476-77 (6th Cir.1996). “De novo review means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). III. FACTS Co-debtor Shah Alam was employed as a mechanical engineer for twenty years with Chemstress Consultant Company. Through his employment, he was offered a voluntary long term disability policy with Continental Casualty Company (“CNA”). The policy provided for approximately sixty percent of Mr. Alam’s take-home income from" }, { "docid": "19896050", "title": "", "text": "OPINION PARSONS, Bankruptcy Judge. In this preference action under 11 U.S.C. § 547, the bankruptcy court granted summary judgment in favor of the defendant, concluding that the alleged preferential payments had not been property of the debtor because they were trust funds under Michigan law. For the reasons that follow, the decision will be reversed and the proceeding remanded. I. ISSUES ON APPEAL The issues on appeal are: (1) whether the defendant in a preference action who claims that it was paid with trust funds under the Michigan Building Contract Fund Act (“MBCFA”) has the burden of tracing the trust funds through the debtor’s commingled bank account; (2) whether the bankruptcy court erred in concluding as a matter of law that monies loaned to the debtor were trust funds under the MBCFA; and (3) whether the bankruptcy court erred in ruling that no issues of fact existed regarding whether the payments by the debtor to the defendant constituted the property of the debtor under § 547(b) of the Bankruptcy Code. II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel (“BAP”) has jurisdiction to decide this appeal. The United States District Court for the Western District of Michigan has authorized appeals to the BAP, and a final order of the bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). An order, for the purpose of an appeal, is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). The bankruptcy court’s order granting summary judgment was a final order. “An order granting summary judgment is a final order for purposes of appeal.” Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998); see also Belfance v. Bushey (In re Bushey), 210 B.R. 95, 98 (6th Cir. BAP 1997). “A grant of summary judgment is reviewed de novo.” SPC Plastics Corp. v. Griffith (In re Structurlite Plastics Corp.), 224 B.R. 27, 29 (6th Cir. BAP" }, { "docid": "8622261", "title": "", "text": "asserting claims against parties related to the Debtor. RFF ultimately obtained an arbitration award containing a finding that it has a perfected security interest in the Debtor’s player contract and other findings that would defeat the Debtor’s claims against RFF. By obtaining these findings and a state court order confirming the arbitration award, RFF attempted to exercise control over the Debtor’s bankruptcy estate—both his salary and his counterclaims—to the detriment of the Debtor and his other creditors. And RFF sought these findings intentionally and with full knowledge of the Debtor’s bankruptcy, in willful violation of the automatic stay. The Court accordingly grants the Debt- or’s motion to enforce the automatic stay and sets a hearing on the issues of (1) the amount of the Debtor’s attorneys’ fees that RFF must pay and (2) whether punitive damages should be imposed against RFF and if so, in what amount. II. Jurisdiction and Constitutional Authority The Court has jurisdiction to hear and determine this contested matter pursuant to 28 U.S.C. §§ 157 and Í334 and the general order of reference entered in this district. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(A) and (0); Amedisys, Inc. v. Nat’l Century Fin. Enters., Inc. (In re Nat’l Century Fin. Enters., Inc.), 423 F.3d 567, 573 (6th Cir.2005) (A “motion to enforce [the automatic stay] constitutes a ‘core proceeding’____”). There is disagreement about the circumstances under which an order holding an entity liable for violating the automatic stay while deferring an award of damages under § 362(k) is a final order. In a case where the debtor sought only attorneys’ fees and expenses for “contempt” by creditors in violating the automatic stay, the Bankruptcy Appellate Panel for the Sixth Circuit held that a bankruptcy court order granting a motion to enforce the automatic stay, but deferring its decision on the amount of attorneys’ fees and expenses that should be awarded under § 362(k), was not a final order. See In re Webb, No. BAP 11-8016, 2012 WL 2329051, at *5 (6th Cir. BAP Apr. 9, 2012). Because the Court is deferring an award of" }, { "docid": "20198005", "title": "", "text": "the dismissal of the underlying case divests the bankruptcy court of jurisdiction to proceed with a § 362(k)(l) adversary proceeding is a question of law. Our review is therefore de novo. See Johnson I, 501 F.3d at 1169. District courts have jurisdiction to hear “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b). In turn, 28 U.S.C. § 157(a) allows the district courts to refer such matters to the bankruptcy courts. “Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11 ... and may enter appropriate orders and judgments, subject to review” by the district court or the bankruptcy appellate panel. Id. § 157(b)(1). In addition, “[a] bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11,” in which situations the bankruptcy court submits proposed findings of fact and conclusions of law to assist the district court to make a final decision. Id. § 157(c)(1). Some types of core proceedings are listed in 28 U.S.C. § 157(b)(2), but the list is not exclusive. In general, “[c]ore proceedings are proceedings which have no existence outside of bankruptcy. Actions which do not depend on the bankruptcy laws for their existence and which could proceed in another court are not core proceedings.” Gardner v. United States (In re Gardner), 913 F.2d 1515, 1518 (10th Cir.1990) (per curiam) (citation omitted). Categorizing a § 362(k)(l) proceeding is not difficult. Section 362, which establishes the automatic stay, is the central provision of the Bankruptcy Code. When a debtor files for bankruptcy, section 362 prevents creditors from taking further action against him except through the bankruptcy court. The stay protects debtors from harassment and also ensures that the debtor’s assets can be distributed in an orderly fashion, thus preserving the interests of the creditors as a group. Price v. Rochford, 947 F.2d 829, 831 (7th Cir.1991). Section 362(k)(l) protects against violations of the stay by" }, { "docid": "4652789", "title": "", "text": "AMENDED OPINION AND ORDER ON MOTION FOR SANCTIONS R. GUY COLE, Jr., Bankruptcy Judge. I. Preliminary Statement This matter is before the Court upon the Motion for Sanctions (“Motion”) filed by Kelli S. Holman, the debtor in this Chapter 7 case. Debtor’s Motion seeks an order of this Court citing Cash Cars in contempt for allegedly violating the automatic stay imposed by 11 U.S.C. § 362(a). Debtor requests that the Court award her compensatory and punitive damages as well as attorney’s fees. The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding which the Court is empowered to hear and determine in accordance with 28 U.S.C. § 157(b)(1) and (2)(A), (E) and (G). See, Budget Service Company v. Better Homes of Virginia, 804 F.2d 289 (4th Cir.1986). The following Opinion and Order shall constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule (“B.R.”) 7052. II. Factual Findings 1. On November 12,1987, debtor filed a voluntary petition with this Court under Chapter 7 of the Bankruptcy Code. As of the petition date, debtor was employed by the Sears Distribution Center in Columbus, Ohio, on a full-time basis. In addition, debtor worked part-time for Cash Cars. Prior to filing her bankruptcy petition, debtor had purchased a 1984 Chevrolet Cavalier (the “Automobile”) from Cash Cars. Cash Cars also financed the purchase of the Automobile. 2. After Holman failed to make a series of regularly scheduled payments pursuant to the financing arrangement between debtor and Cash Cars, the Automobile was repossessed by Cash Cars on April 5, 1988. 3. Cash Cars was not listed as a creditor in the schedules which the debtor filed along with her bankruptcy petition. Thus, at the time the Automobile was repossessed, Cash Cars did not have notice or actual knowledge of the filing of debtor’s bankruptcy case. 4. On April 7, 1988, Lawrence B. Landon, counsel for the debtor, telephoned Richard Cash, the owner of Cash Cars, to advise him that Holman had filed a" }, { "docid": "8310489", "title": "", "text": "MEMORANDUM OPINION LYNNE RIDDLE, Bankruptcy Judge. Plaintiff Gale Ann Sansone (hereinafter referred to as Sansone or the debtor) filed a complaint seeking the recovery of compensatory and punitive damages under 11 U.S.C. § 362(h), (unless otherwise indicated, all citations are to 11 U.S.Code) alleging that during the pendency of her bankruptcy proceeding, defendants, who knew of her Chapter 13 case, willfully violated the automatic stay, provided by § 362(a), by commencing or continuing state court civil litigation against her. JURISDICTIONAL STATEMENT This court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (authorizing the district courts to refer all Title 11 cases and proceedings to the bankruptcy judges for the district) and General Order No. 266, dated October 9, 1984 (referring all Title 11 cases and proceedings to the bankruptcy judges of the Central District of California). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0), which the court may hear and determine. Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289 (4th Cir.1986). Further authority that the bankruptcy court may hear and decide matters under § 362(h) is found under 28 U.S.C. § 157(b)(2)(G). In Re Zumbrun, 88 B.R. 250 (9th Cir. BAP 1988). FACTS Debtor and Michael Sansone, her non-debtor husband, were the managing and operating partners of the Irvine Health Center from 1982 through 1987. In or about 1983, Sansone formed Kokua Management, Inc., to carry out the management of the Irvine Health Center. James R. Wooley (hereinafter referred to as Wooley), Daniel Sigler (hereinafter referred to as Sigler), William Fagan (hereinafter referred to as Fagan), and Gordon H. Grannis (hereinafter referred to as Gran-nis), were, at times prior to the bankruptcy, chiropractors rendering services at the Irvine Health Center facility. In 1985, Sigler, by his attorney Jeffrey P. Walsworth, Esq. (hereinafter referred to as Walsworth), filed an action in Orange County Superior Court (Sigler Action) against debtor and Kokua Management, Inc., alleging wrongful withholding of monies" } ]
353803
of this payment was extended to him as a courtesy. The questioning at the station house was limited to his identity and address. Plaintiff failed to prove involuntary detention there by defendants. Plaintiff drove his car to the station, rather than having it towed by the police. This, without more, was no arrest and detention. There are two specifications which plaintiff must prove by a preponderance of evidence in order to recover under § 1983: (1) The conduct complained of must have been done by some person acting under color of law; and (2) Such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. REDACTED In this case, the first specification has been stipulated to by defendants. The second specification, which requires proof that a particular defendant’s conduct caused or subjected plaintiff to a deprivation of any constitutionally protected right, has not been established by plaintiff at trial by a preponderance of the evidence. In his testimony, plaintiff was unable to identify with particularity which defendant searched his person, or the trunk of his car, or which defendant, if any, detained him on Forest Park Boulevard (after the legally justified stop and frisk), or which defendant, if any, detained him at the police station. John Doe pleadings will not suffice. Tolefree v. Ritz, 382 F.2d 566 (9th Cir. 1967). On the whole record, the court
[ { "docid": "22764720", "title": "", "text": "also that Smith drove the patrol car when Basista was arrested for wife-beating. Chief Weir took no part in the arrest. The impact of these facts here is not too apparent. They are included herein by way of background material as a possible explanation of the cause of some of Basista’s difficulties with the police. II. Was There a' Cause op Action Under the Civil Rights Act? The Civil Rights Act, § 1983, provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The Act prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. Marshall v. Sawyer, 301 F.2d 639, 646 (9 Cir. 1962). Of what rights was Basista deprived? Basista asserts that he was denied the right to bail for a bailable offense, a right secured to him by the Eighth Amendment of the Constitution of the United States. Chief Weir in his testimony indicated that he, at Ba'sista’s request, telephoned a Mr. Pucci with regard to obtaining bail. It is undisputed that Chief Weir was told, and that this was relayed to Basista, that bail would be furnished Basista the next day. In addition, it is not disputed that no one acting on Basista’s behalf came to the jail and tendered bond or bail to the desk sergeant, who was in charge. It thus appears that if Basista remained in jail overnight, it was not because he was denied bail by any of these defendants, but because no one appeared" } ]
[ { "docid": "12433265", "title": "", "text": "defendants, two John Doe “bounty hunters” and two John Doe Detention Center guards. This motion, which is unopposed, is hereby granted. See A/S Kredit Pank v. Chase Manhattan Bank, 155 F.Supp. 30 (S.D.N.Y. 1957) (interpleader of John Doe permitted). The motions to dismiss advance, as their only argument of colorable worth, the contention that the complaint fails to state a claim on which relief can be granted. The Civil Rights Act, 42 U.S. C. § 1983, provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Thus, the Act prescribes, as elements prerequisite to recovery, (1) that the conduct complained of must have been performed or caused by some person acting under color of law, and (2) that such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. See Basista v. Weir, 340 F.2d 74, 79 (C.A.3, 1965). Taking the allegations of the complaint and the inferences to be drawn therefrom most favorably to the plaintiff, as we must on a motion to dismiss, Valle v. Stengel, 176 F.2d 697, 701 (C.A.3, 1949), we conclude that plaintiff has stated a claim under § 1983 as to all defendants. A. Southern’s Motion to Dismiss Southern, acting through its agents, arrested the complainant. This arrest was carried out pursuant to 19 Pa.Stat. Ann. § 53. Valle v. Stengel, 176 F.2d 697, 701 (C.A.3, 1949). That statute reads, in pertinent part: “All sureties, mainpernors, and bail in criminal cases, whether bound in recognizance for a particular matter or for all charges whatsoever, shall be entitled to have a bail piece, duly certified by the proper officer or person before whom or in" }, { "docid": "7273819", "title": "", "text": "for summary judgment, the Court is mindful of the clearly established summary judgment standard. Rule 56(c) of the Federal Rules of Civil Procedure provides that, upon motion of a party, summary judgment shall be granted if the record before the court shows that there is 'no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden of proving that the standard has been met is on the moving party. In the instant case, where both sides have moved for summary judgment, the record reveals no material factual disputes between the parties. Requirements for a 1983 Action In any section 1983 action, the initial inquiry must focus on two elements: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether the conduct deprived the person of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535-36, 101 S.Ct. 1908, 1912-1913, 68 L.Ed.2d 420 (1981). In this case, Feeney, as director of the state mental hospital, was clearly acting under color of state law. Thus, the Court’s inquiry must focus on whether his conduct deprived the Plaintiff of any rights protected by the Constitution or laws of the United States. The Plaintiff has alleged violations of procedural and substantive due process rights under the fourteenth amendment. The Court will first address his procedural claim. Procedural Due Process In order to prevail in an action alleging a violation of the fourteenth amendment right to procedural due process, a plaintiff must show: (1) that the interest deprived was protected under the fourteenth amendment; (2) that the deprivation was without due process; and (3) that the charged defendant subjected the plaintiff or caused him to be subjected to the deprivation. Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420. Both sides agree that the Plaintiff had a constitutionally protected liberty interest in remaining free from unwarranted hospitalization in a state mental hospital. Also, there is no dispute" }, { "docid": "14830024", "title": "", "text": "at the Berkeley residence hotel. Two entered the Berkeley residence hotel and approximately five or six other Berkeley police officers, including defendants Tom Hood, Edward McBride and John Houpt, detained Rutherford. Rutherford alleges that, without any provocation and without placing him under arrest, the officers detaining him threw him to the ground, punched, kicked, and handcuffed him. Defendants Officers Hood, McBride, and Houpt deny that they assaulted Rutherford, but admit handcuffing him and claim that they placed him under arrest at that time for assault with a deadly weapon. Rutherford was taken to the Berkeley police station and, after a week in custody, the charge against him was dropped and he was released. Rutherford brought suit under 42 U.S.C. § 1983 (1982) alleging that defendants deprived him of his constitutional rights under the Fourteenth Amendment. He claims that he was assaulted and battered by defendants Officers Hood, McBride, and Houpt in violation of his civil rights. At trial, Rutherford initially identified defendants Officers Hood, McBride, and Houpt as the officers who assaulted him, but later stated that he was not certain whether any of them actually kicked or punched him. Rutherford did testify, however, that while he was on the ground being beaten he saw the faces of the named officers. At the close of the Rutherford’s case, the district court directed a verdict in favor of defendants, stating that no reasonable jurors could possibly find for the plaintiff because he had “offered no proof that any of the particular individuals he named as defendants did do any beating of him.” Rutherford appeals. I We must first address whether Rutherford has alleged a claim upon which relief may be granted under § 1983. Rutherford has properly stated a claim under § 1983 if he alleges facts establishing a deprivation of rights secured by the Constitution or laws of the United States. Havas v. Thornton, 609 F.2d 372, 374 (9th Cir.1979). We believe that Rutherford has alleged facts establishing a violation of substantive due process, thereby stating a § 1983 claim. The Supreme Court outlined the nature of a substantive due" }, { "docid": "3882637", "title": "", "text": "as of 1981 a reasonable police officer would not have known that it was a violation of the Crow-ders’s fourth amendment rights to participate purposefully in a search, notwithstanding lack of knowledge regarding the contents of a warrant, by looking in otherwise concealed areas for and identifying stolen property not described in the warrant during an otherwise lawful search encompassing the same areas for stolen items listed in the warrant. Because the individual defendants thus were entitled to qualified immunity, the district court erred in denying their motions for a directed verdict or j.n.o.v. C. 1. The defendants also assert that the district court erred in instructing the jury that they bore the burden of proving by a preponderance of the evidence that the seized items fell within the “plain view” exception to the warrant requirement of the fourth amendment. Applying the long-standing rule that the plaintiff bears the burden of proving each essential element of a claim, we agree that the court erred in placing upon the defendants the burden of proof on this issue. The elements of a section 1983 claim are well established. “[T]o recover under [section 1983] the Plaintiff must prove two vital elements: (1) that he has been deprived of a right ‘secured by the Constitution and the laws’ of the United States; and (2) that the persons depriving him of this right acted ‘under color of any [state] statute’.... ” Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir.1988) (citing cases). In the context of claims based upon a deprivation of fourth amendment rights, the burden of proof on these elements is equally well-established: The plaintiff must prove the existence of each element by a preponderance of the evidence. In their complaint, the Crowders alleged a deprivation of their fourth amendment rights, specifically, their right to be free from unreasonable searches and seizures. At least as a general matter, therefore, to prevail under section 1983, it was incumbent upon them to prove by a preponderance of the evidence that the search of Crowder’s office and the seizure of their property was “unreasonable,” as that" }, { "docid": "16790125", "title": "", "text": "Michael to the station, the police officers violated the right of association between parent and child protected by the due process clause. In addition, the appellants’ complaint alleged pendent state claims for emotional distress suffered by Michael and Mrs. Bergren resulting from the officers’ conduct. C. The District Court’s Decision Ruling on defendants’ motion for a directed verdict, the district court addressed four issues: whether the defendants’ conduct constituted a violation of 1) the fourteenth amendment’s due process clause, 2) the fourth amendment’s prohibition against unreasonable searches and seizures, 3) the right of familial association derived from the fourteenth amendment, and 4) provisions of chapter 48 of the Wisconsin statutes regulating the taking of children into custody. The district court concluded that the plaintiffs failed to establish a prima facie case that the defendants acted in violation of the Constitution because the officers had probable cause to arrest and detain Michael and the plaintiffs presented no evidence of mistreatment, abuse or unlawful conduct by the officers toward Michael. Further, the district judge held that the defendants did not violate Wisconsin’s statutory standards for taking children into custody because the officers reasonably concluded that Michael posed a substantial risk of physical harm to other persons or to himself and this threat justified placing him in a secured detention facility. II A. The Standard of Review “The standard for granting a directed verdict is very generous to the nonmovant. The trial court must view the evidence and make all inferences in the light most favor able to the nonmoving party, and if reasonable jurors could differ on the conclusions drawn therefrom, the case must go to the jury.” Benson v. Allphin, 786 F.2d 268, 279 (7th Cir.), cert. denied, — U.S. —, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). To bring a successful section 1983 claim, the plaintiffs must prove that the defendants deprived them of a right secured by federal law or the Constitution while acting under color of state law. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 n. 1 (7th Cir.1985); Beard v. Mitchell, 604 F.2d 485, 495" }, { "docid": "18431771", "title": "", "text": "separate criminal charges. III. To establish a claim under 42 U.S.C. § 1983 plaintiff must prove that he was deprived of “rights, privileges, or immunities secured by the Constitution and laws” of the United States by a person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State.” In the Amended Complaint plaintiff alleges that he was deprived of “due process of law and other rights, privileges and immunities secured to United States’ citizens by the Constitution of the United States.” Amended Complaint at ¶ 23. These general allegations are supplemented by additional filings with the court in which plaintiff identifies four specific constitutional violations: (1) an unlawful arrest in violation of the Fourth and Fourteenth Amendments; (2) an unlawful search of plaintiffs home, automobile, and person in violation of the Fourth and Fourteenth Amendments; (3) a deprivation of liberty without due process of law by a false imprisonment; and (4) a deprivation of liberty without due process of law by the use of excessive force. See Plaintiff’s Trial Memorandum at 2; Plaintiff’s Pretrial Memorandum at ¶ 7. There is no question that during the events of September 26, 1976 Strangis and Picchione were clothed with statutory authority as police officers for the City of Brockton, and, therefore, that defendants were acting under color of state law. In dispute is whether Schiller was deprived of any “rights, privileges, or immunities secured by the Constitution,” and if such a deprivation did occur, whether defendants acted in good faith and are immune from liability. A. Violations of Fourth and Fourteenth Amendments As factfinder I have determined from a preponderance of the evidence that Schiller did not attack Strangis while the officer was standing at the doorway of plaintiff’s home in the early morning hours of September 26, 1976. Schiller merely attempted to close the door to his house, which was an act of reasonable force to prevent an unprivileged intrusion. It was Strangis who initiated the encounter, first, by intentionally placing his foot on the threshold of the doorway to prevent Schiller from closing the door, and second," }, { "docid": "10465467", "title": "", "text": "law school position existed as part of a program or activity receiving federal financial assistance. The Court will not address this element except to note that the parties disagree over whether this element has been met. With regard to his § 504 claim, plaintiff has failed to make a showing sufficient to establish the existence of all four elements necessary to the claim. Specifically, plaintiff has failed to establish the existence of the second and third elements of his § 504 claim. Since plaintiff has failed to establish these elements, there can be no genuine issue as to any material fact. Accordingly, defendants’ motion for summary judgment as to this claim must be granted. Jt2 U.S.C. § 1983 Plaintiff has alleged various claims based upon 42 U.S.C. § 1983. To state a cause of action based upon § 1983, plaintiff must prove (1) that the conduct complained of was committed by a person acting under color of state law; (2) that this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States; and (3) that the defendahts’ acts were the proximate cause of the injuries and damages sustained by the plaintiff. The principal issues involved in plaintiffs § 1983 causes of action are whether defendants’ conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Plaintiff contends that the defendants’ conduct deprived him of (1) the right to be free from discrimination on the basis of handicap, which right is secured by § 504 of the Rehabilitation Act; (2) the right to be free from discrimination on the basis of handicap as guaranteed by the equal protection clause of the Fourteenth Amendment; (3) the right to be free from discrimination on the basis of race as guaranteed by the equal protection clause of the Fourteenth Amendment; (4) the right to substantive due process; and (5) the right to procedural due process. The Court will discuss each of these § 1983 causes of action separately. § 1983 and § 504 of the Rehabilitation" }, { "docid": "4255784", "title": "", "text": "accordance with the terms of N.J.S.A. 2A:161A-1, et seq., which provide that all detainees are to be strip-searched prior to being placed in a holding cell, provided that the detainee has been given a reasonable opportunity to post bail. After a brief period of time in the holding cell, Ernst was transported to the Bergen County Jail, where he remained for the rest of the night. He was released the following day, after his father posted bail. The charge against him was subsequently dismissed. Plaintiffs instituted this lawsuit, pursuant to 42 U.S.C. § 1983, alleging that the Borough of Fort Lee and its officers acted under color of state law to deprive them of their rights secured under the Constitution of the United States. They primarily challenge the strip search conducted on William Ernst, asserting that this search served no legitimate purpose except to “embarrass and demean\" him. See First Amended Complaint at 1116. More specifically, plaintiffs assert that this search was conducted in violation of the Fourth Amendment’s prohibition against unreasonable searches, inasmuch as it was conducted without any reasonable suspicion to believe that Ernst was concealing a weapon or harboring contraband. Plaintiffs claim, as well, that the stop and search of their vehicle was motivated by racial bias; that the bail established for Ernst was excessive and unreasonable; and that emotional distress was intentionally inflicted on Ernst when he was strip searched at the station house. Present before the Court is the motion of defendants for summary judgment dismissing plaintiffs’ complaint in its entirety. For the reasons set forth below, defendants’ motion will be granted in part and denied in part. II. DISCUSSION Ha. Strip Search Prior to being placed in the cell block at the Fort Lee station house, Ernst was subjected to a strip search. As indicated, this search was undertaken pursuant to the guidelines set forth in the Fort Lee Police Department Operations Manual, which specifically provides that all prisoners who are to be detained at the station house or transported to the Bergen County Jail are- to be searched, provided that the arrestee has" }, { "docid": "4520470", "title": "", "text": "to sustain the judgment dismissing the complaint, depend entirely upon their contention that the complaint does not allege that the defendants, in their alleged wrongful search, seizure, arrest, detention and mistreatment of the plaintiff “acted under color of law.” To support their contention the defendants cite Shemaitis v. Froemke, 7 Cir., 189 F.2d 963, where this court said that this Act .does not give a right of action to a plaintiff for invasion of his rights by individual action, but only provides for an action against a defendant who had acted, or had claimed to act, under color of law. While it is true that to give the plaintiff a cause of action under § 43, the alleged deprivation of rights must be under color of state law, custom or usage, the required factual situation may be described in a complaint without the use of the particular words “under color of law.” In the instant case the complaint did allege that all of the defendants were regular members of the Police Force of the City of Chicago; that the two defendants who came to plaintiff’s home, upon being admitted, accused him of having committed a crime which had been committed the preceding day; that, after entering his home, the defendants seized personal papers and memoranda belonging to the plaintiff, informed him that he was under arrest and was to be taken to the Police Station; and that, upon arrival at the Police Station, plaintiff was threatened, intimidated and beaten and “in general * * * was subjected to the usual third degree practices used by members of the Chicago Police Department to obtain information and/or confessions.” These defendants were not private individuals, but were officers of the Chicago Police Department, and the complaint does not picture a private affair of these defendants, but their official actions in line of duty in the investigation of a burglary which they apparently thought the plaintiff had committed. It is true that the complaint describes actions by the defendants which, of course, exceeded their official duty and authority. But, as the Supreme Court said" }, { "docid": "8536669", "title": "", "text": "382 F.2d 48 (5th Cir. 1967). 5. Considering the totality of circumstances urged by Defendants and as discussed above under Findings of Fact, this Court concludes that the facts as found simply do not allow any other than a negative answer to this critical question: At the moment of arrest, were the facts and circumstances within the knowledge of Defendants and of which they had reasonably trustworthy information sufficient to warrant prudent men in believing that Plaintiff had committed or was committing an offense? Accordingly, Defendants did not have probable cause to arrest Plaintiff without a warrant and the arrest was in violation of Plaintiff’s constitutional rights to be free from unlawful arrest. II. SEARCH OF PLAINTIFF’S AUTOMOBILE A. Findings of Fact There are no material conflicts between Plaintiff and Defendants concerning the search of Plaintiff’s car. The relevant facts in this regard are: 1. While Plaintiff was handcuffed in the police car Defendants, who had possession of Plaintiff’s car keys, unlocked Plaintiff’s car and searched the interior, and then unlocked the trunk and searched it, all without Plaintiff’s permission or consent. 2. Defendant Gibbs drove the police car with Plaintiff handcuffed and seated on the front seat to the police station. Defendant Stephens drove Plaintiff’s car to the police station, without Plaintiff’s permission or consent. 3. Defendants again searched Plaintiff’s car at the police station while Plaintiff remained inside the station in handcuffs. This search was also conducted without the Plaintiff’s permission or consent. No warrant was obtained for this search. 4. After this search, during which nothing was found to implicate Plaintiff in any crime, Plaintiff was released without any charges having been placed against him in connection with his arrest and the search and seizure of his person and automobile. B. Conclusions of Law 1. The Fourth Amendment prohibits only unreasonable searches and seizures. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). Suits are authorized under Section 1983 of Title 42, United States Code, to seek redress for violation of a person’s right to remain secure from unreasonable search and seizure." }, { "docid": "1937191", "title": "", "text": "K. K. HALL, Circuit Judge: The plaintiff, William John Wirth, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 seeking damages from R. R. Surles, an officer of the South Carolina Highway Patrol, for allegedly taking Mr. Wirth into custody, forcibly removing him from the State of Georgia and returning him to the State of South Carolina without first having Wirth extradited. The district court, sua sponte, dismissed the complaint holding that Surles’ conduct was not actionable under 42 U.S.C. § 1983. We disagree, and we reverse and remand this case for further proceedings. I. FACTS On February 18, 1974, the Allendale, South Carolina, Police Department issued an all-points bulletin for a suspect in the armed robbery of a local store. One hour after the robbery, two unidentified Georgia highway police officers arrested Mr. Wirth in the State of Georgia for the armed robbery. The two officers took Mr. Wirth to the Georgia welcome station. Officer R. R. Surles, of the South Carolina Highway Patrol, crossed into Georgia, took Mr. Wirth into custody, and transported him into South Carolina without any extradition proceedings. Mr. Wirth pleaded guilty to the charge of armed robbery and was sentenced. II. DISMISSAL OF PLAINTIFF’S § 1983 ACTION A civil rights claim based on 42 U.S.C. § 1983 should not be dismissed for failure to state a claim upon which relief can be granted, unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969). Viewed in this context, there are two essential elements which must be proven by plaintiff in order to state a claim in a § 1983 suit. First, the conduct complained of must have been done by some person acting under color of law; and second, such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and the" }, { "docid": "18752879", "title": "", "text": "Swearngin v. Sears Roebuck & Co., 376 F.2d 637, 639 (10th Cir.1967). Furthermore, “[w]e must view the evidence in the light most favorable to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.” Ryder, 814 F.2d at 1418 (citing Brown, 736 F.2d at 613). Applying that standard to this case, we find no error in the district court’s denial of Trujillo’s motion for judgment n.o.v. for the reasons stated below. The heart of Trujillo’s argument is that a judgment n.o.v. was warranted because the defendant police officer could not, in this case, commit a battery under color of state law without simultaneously violating his constitutional rights under section 1983. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. A plaintiff must plead and prove two elements in order to recover under section 1983. First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show that the defendant acted “under color of law.” Anthony v. Baker, 767 F.2d 657, 663 (10th Cir.1985); Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981). It is undisputed that a police officer’s use of force can, in appropriate circumstances, give rise to liability under section 1983. It is equally clear, however, that “not all state law torts are constitutional violations for which section 1983 provides a remedy.” Sampley v. Ruettgers, 704" }, { "docid": "10267157", "title": "", "text": "under col- or of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” In order to state a cause of action under 42 U.S.C. § 1983, there must be a demonstration that (1) the conduct complained of was done by a person acting under color of state law and (2) that such conduct deprived plaintiff of rights, privileges and immunities secured by the Constitution and laws of the United States. Chism v. Price, 457 F.2d 1037 (9th Cir. 1972), Brownley v. Gettysburg College, 338 F.Supp. 725 (M.D.Pa.1972). Without passing on the question of whether plaintiff was deprived of Constitutional rights by defendant’s conduct for the moment, it is clear that plaintiff’s § 1983 action must fail since it does not comply with the first prerequisite for such a suit, the requirement of state action. State action cannot be founded upon the status of the juror as an alleged co-conspirator be cause a juror is immunized against an action for damages brought under the Civil Rights Act. In Roberts v. Barbosa, 227 F.Supp. 20, 26 (S.D.Cal.1964), a case in which a criminal defendant’s § 1983 suit against those involved in his conviction was dismissed, it was stated: “I have found no case which touches on the question of immunity of a jury. Perhaps this is the first case where anyone has had the gall to attempt to secure damages from a jury for'convicting him, in alleging violation of his civil rights. “[7] If anyone should have immunity, it is the jurors. As Justice Frankfurter said in Tenney et al. v. Brandhove (1951) 341 U.S. 367 at 377, 71 S.Ct. 783, at 788, 95 L.Ed. 1019: ‘The privilege (of immunity) would be of little value if they could be subjected to the costs and" }, { "docid": "5909438", "title": "", "text": "Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Plaintiff also asserts a claim against PHA under § 1983. In order to maintain a valid 42 U.S.C. § 1983 action, two prerequisites must be alleged and proved. First, the conduct complained of must have been committed by a person acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Parks v. “Mr. Ford”, 556 F.2d 132 (3d Cir.1977). Second, the conduct must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Where the defendant is a governmental entity, plaintiff must prove that his rights were denied by a custom, pattern or practice of racially discriminatory treatment by defendant. The first prerequisite was met because we have already determined that PHA is a state agency. However, plaintiff has failed to prove any pattern, policy or custom of discrimination for reasons of race under § 1983. The only Black employee mentioned in the case, aside from plaintiff, was terminated and reinstated in the same manner as White employees. Thus, plaintiff’s only evidence of PHA’s discriminatory custom was his own termination. One incident is insufficient to establish a custom, pattern or practice. Plaintiff has failed to sustain his burden of proof as to § 1983. To the extent that findings of fact are made in this discussion which are not enumerated under the section so denominated, they are to be considered as if they were. CONCLUSIONS OF LAW 1. This court has jurisdiction over the parties and subject matter of this action, pursuant to 28 U.S.C. § 1331. 2. PHA is an employer within the meaning of 42 U.S.C. § 2000e(b). 3. Plaintiff is a Black man; his termination by PHA and its failure to rehire him were “adverse.” But plaintiff failed to prove that the adverse action occurred because of his race. 4." }, { "docid": "6291179", "title": "", "text": "ORDER DAUGHERTY, Chief Judge. The above Defendants have filed a Motion To Dismiss Petitioner’s complaint against them. The Motion is overruled as to the Defendant Park J. Anderson and George Black inasmuch as Petitioner has stated a claim against each of them upon which relief may be granted the Petitioner if the claims are supported by the evidence. Defendant Hall is alleged to have employed Defendant Anderson and no other reference is made to him or basis for his liability shown. The doctrine of respondeat superior is not applicable to cases brought under 42 U.S.C. § 1983. Therefore, the Motion to Dismiss will be sustained as to Defendant Hall. Barrows v. Faulkner, 327 F.Supp. 1190 (WDOkl.1971). None of the other Defendants are specifically named in the text of the pleadings. Broad allegations are made (without even specifying their capacity) that all of the Defendants “are vested with power and duties encompassing maintenance supervision at the Oklahoma State Prison at McAlester, Oklahoma, and as such the officials have direct responsibility for the Petitioners proper care and custody.” This is not sufficient. It is the general rule that an official will not be liable in a Civil Rights action unless he directly and personally participates in conduct under col- or of state law which deprives the plaintiff of rights, privileges, and immunities secured him by the Federal Constitution. Richardson v. Snow, 340 F.Supp. 1261 (D.Md.1972). It is an essential element of a Civil Rights claim that the particular defendant be personally involved in the alleged denial of the Constitutional right. Battle v. Lawson, 352 F.Supp. 156 (WDOkl.1972). Townes v. Swenson, 349 F.Supp. 1246 (W.D.Mo.1972); Campbell v. Anderson, 335 F.Supp. 483 (D.Del.1971). Where a defendant’s name appears only in the caption and there is no allegation that he participated in the alleged unconstitutional action, he is entitled to be dismissed from the lawsuit. Brzozowski v. Randall, 281 F.Supp. 306 (E.D.Pa.1968). The pleadings in which the defendants are not identified by name will not suffice. Tolefree v. Ritz, 382 F.2d 566 (9 Cir. 1967). Accordingly, the Motion to Dismiss will be sustained as to" }, { "docid": "22168247", "title": "", "text": "2, 1979). . Mary Beth G. and Sharon N. were stopped for traffic violations; they were arrested and taken to detention centers because there were outstanding parking tickets on their cars. Hinda Hoffman was stopped for making an improper left turn and was arrested and taken to the police station when she failed to produce her driver’s license. These plaintiffs-appellees were all members of the proposed plaintiff class in the Jane Does v. City of Chicago case. The definition of the proposed class was: all female persons who were detained by the CPD [Chicago Police Department] for an offense no greater than a traffic violation or a misdemeanor, including all females who were never charged with any offense and who were subjected to a strip search in situations where there was no reason to believe that weapons or contraband had been concealed on or in their bodies. (R. 1, pp. 2-3). The district court found that the class met the requirements for certification under Rule 23(b)(2) but not 23(b)(3), Fed.R.Civ.P. 23. Therefore, the damages issue did not proceed as a class action, but rather by individual trials for damages. (R. 44). Plaintiff-appellee Tikalsky was arrested on a charge of disorderly conduct, which was subsequently dismissed, and brought to the women’s lockup at the police station. . The specific facts surrounding the searches of each plaintiff-appellee vary. Each woman, however, was subjected to a strip search that included the admitted procedures of the official City policy. . In the description of the policy given by the City, the City claims that all searches were conducted in a closed room away from the view of all persons except the person conducting the search. Defendant’s Brief (Tikalsky) at 14. This portion of the description was variously contradicted by the testimony of plaintiffs-appellees. We need not consider these additional allegations, however, because we believe the policy even as described is unconstitutional for the reasons we explain. . Section 18 of the Bill of Rights of the Illinois Constitution of 1970 (Ill. Const. (1970), art. I, sec. 18) provides: The equal protection of the laws" }, { "docid": "8536670", "title": "", "text": "it, all without Plaintiff’s permission or consent. 2. Defendant Gibbs drove the police car with Plaintiff handcuffed and seated on the front seat to the police station. Defendant Stephens drove Plaintiff’s car to the police station, without Plaintiff’s permission or consent. 3. Defendants again searched Plaintiff’s car at the police station while Plaintiff remained inside the station in handcuffs. This search was also conducted without the Plaintiff’s permission or consent. No warrant was obtained for this search. 4. After this search, during which nothing was found to implicate Plaintiff in any crime, Plaintiff was released without any charges having been placed against him in connection with his arrest and the search and seizure of his person and automobile. B. Conclusions of Law 1. The Fourth Amendment prohibits only unreasonable searches and seizures. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). Suits are authorized under Section 1983 of Title 42, United States Code, to seek redress for violation of a person’s right to remain secure from unreasonable search and seizure. Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965). 2. The Fourth Amendment’s protection against unreasonable searches and seizures are applicable against state law enforcement officers through the Fourteenth Amendment in the same measure as against federal officers. Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969). Searches without a search warrant are not unreasonable if they are incident to a lawful arrest, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), or made with reasonable or probable cause, Williams v. United States, 404 F.2d 493 (5th Cir. 1968). a. Incident to Arrest (1) Unlawful Arrest This Court has concluded for reasons set forth under Part I, above, that this was not a lawful arrest; that it violated Plaintiff's constitutional right to be free from unlawful arrest. Under such a conclusion, Defendants’ contention that the searches were lawful ■because they were incident to a lawful arrest is untenable. Searches and seizures which are lawful only if incident to a valid arrest are unlawful if the arrest does not meet the" }, { "docid": "12211843", "title": "", "text": "could reasonably find that the police officers did not have probable cause to arrest.” Sharrar, 128 F.3d at 818 (citing Deary, 746 F.2d at 190). III. DISCUSSION A. 42 U.S.C. § 1983 Plaintiff argues that his constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments were violated by defendants, and he seeks relief under § 1983. A claim under § 1983 requires that: (1) the conduct complained of was committed by a person acting under the color of state law; and (2) the conduct deprived a person of rights, privilege or immunities secured by the Constitution or laws of the United States. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (citing, Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995), cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995)). Because the Court finds that plaintiff suffered no violation of Constitutional or statutory rights, his § 1983 claim must fail. 1. Fourth Amendment Claim Plaintiff claims that his Fourth Amendment rights were violated when the police made a warrantless arrest without probable cause at plaintiffs residence. Specifically, plaintiff argues that defendant police officers did not have probable cause to believe that plaintiff had committed a crime. The Fourth Amendment protects against “unreasonable searches and seizures.” The Supreme Court has “long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ ” Ohio v. Robinette, 519 U.S. 33, -, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). The “reasonableness”, and hence constitutionality, of an arrest is determined by whether there was probable cause. Scheuer v. Rhodes, 416 U.S. 232, 245, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“When a. court evaluates police conduct relating to an arrest its guideline is ‘good faith and probable cause.’ ”, citing Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)). Probable cause means more than mere suspicion, but does not require the police to have evidence sufficient to prove guilt beyond a reasonable doubt. United States v. Glosser, 750" }, { "docid": "1205681", "title": "", "text": "their position cannot be sustained. In Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972) that court discussed the elements of a Section 1983 cause of action. There the court noted that: “. . . The Act prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. . . . ” The court in Howell went on to observe that “once there is recognition of the right sought to be vindicated, the proof of the deprivation proceeds ‘against the background of tort liabilty.’ Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. at 484.” From this background, the court inferred a third requirement that the plaintiff must allege and prove “intentional performance” of conduct constituting a violation of the plaintiffs’ federally secured rights. The court made it clear, however, that the plaintiff need not plead and prove improper motivation or a specific intent to violate the plaintiff’s rights. The intent required is simply an intention to do the act which is found to constitute such a violation. There may, of course, be cases where pleading and proof of a violation of a federally secured right may entail pleading and proof of what might be referred to as “abuse of discretion.” In Hayes v. Cape Henlopen School District, supra, for example, a public employee claimed that she had been discharged in violation of her right to substantive due process. The plaintiff in such a ease must, of course, do more than allege that she was discharged from public employment. There must be an allegation that the decision of the official responsible for the discharge was arbitrary and without basis in fact, for otherwise no constitutional right has been violated. The mere fact that a discharge has occurred does not establish an abridgement of the right to substantive due process unless this additional element is pleaded and proved." }, { "docid": "23456531", "title": "", "text": "OPINION OF THE COURT ADAMS, Circuit Judge. The primary issue on appeal in this civil rights action is whether the district court, in granting the defendants’ motion for summary judgment, applied the correct statute of limitations. I. On the evening of August 17, 1969, an automobile operated by Polite, the plaintiff, struck the rear of a vehicle that had stopped at a “Stop” sign. The defendant Diehl, a McKeesport, Pennsylvania, policeman, arrived two or three minutes after the accident occurred. He transported Polite, his two children, and a girl who had been riding in the other car, to McKeesport Hospital. On Diehl’s instructions, Polite’s car was towed away by a private towing service. Polite was placed under arrest at the hospital on charges of driving under the influence of liquor and disorderly conduct. Polite alleges that while he was held in custody at the police station the defendant policemen maliciously beat him and sprayed chemical mace in his eyes. Then, Polite claims, he was taken before a magistrate and forced to plead guilty to charges of disorderly conduct, resisting arrest, and failure to have a driver’s license and ownership card as required by Pennsylvania law. The following morning, after a hearing, Polite was bound over on the drunken driving charge. Approximately 23 months after Polite’s arrest he filed a civil rights action against Diehl and Lofstrom. A little less than 24 months after the arrest he filed another suit against Rendulic, Chancio, Hanna, Donet, Sokol and Lofs-trom, alleging the same violations of his civil rights raised in the first suit. All the defendants were McKeesport policemen. The two actions were consolidated in the district court. The complaints both alleged that the defendant policemen, “acting in concert and under color of state law,” violated the Civil Rights Acts in depriving Polite of due process of law and equal protection of the laws in that (1) “Plaintiff was detained and incarcerated without a warrant, probable cause, explanation of the charges, explanation of his rights or the opportunity to consult with counsel;” (2) “Plaintiff was subjected to verbal abuse and taunting [and] physical" } ]
339743
the assignees in the state court, alleging that the assignment was void because never accepted or signed by the assignees and asking that it be declared void and surrendered for cancellation, and that in such action he obtained a temporary injunction on default, restraining the assignees from acting on or utilizing the instrument of assignment. At this point the petitioning creditors filed the petition in bankruptcy. The objection to the allegation of preferential payments as a-n act of bankruptcy is sound. A general averment that preferences have been given to “various creditors”, without specification sufficient to apprise the alleged bankrupt of the charge against .him, is too vague. In re Rosenblatt & Co., 2 Cir., 193 F. 638; REDACTED The other act of bankruptcy charged, that the alleged bankrupt made an assignment for the benefit of creditors, is sufficient on its face. This fact of itself requires denial of the present motion to dismiss the petition. The alleged bankrupt may have defenses, but they should be set up in his answer and not as grounds of a motion to dismiss a petition good on its face. It is fantastic to say that the petitioning creditors were stayed by the state court from pleading the assignment as an act of bankruptcy. The order of the state court does not so read and could not have been intended to have any such effect; the fact is that the state court has no power by
[ { "docid": "11955496", "title": "", "text": "the allegations were adequate, the proof was not, for the fraudulent conveyance took place more than four months prior to the filing of the petition. As to the second act of bankruptcy, after alleging generally that the acts complained of were committed within four months prior to the filing of the petition and while the bankrupt was insolvent, the petition charged as follows: “2. That while insolvent as aforesaid the said alleged bankrupt transferred various moneys amounting in the aggregate to the sum of $6500.00 to various alleged creditors with intent thereby to prefer such creditors over other creditors of the same class, the names of such preferred creditors being unknown to your petitioners.” The proof was that on April 11,1932, the bankrupt deposited in its bank account a check for $6,493.59, and two days later sixteen cheeks totaling $6,000 were charged against its account, all payable to the father of the bankrupt’s president and bearing dates between December 26, 1931, and February 2, 1932. Assuming that clearing the cheeks through the bank constituted preferential transfers on April 13th, they were made within the four-month period and while the bankrupt was insolvent. But, under repeated rulings of this court, allegations sueh as those set out above are insufficient to apprise the bankrupt of the charge he is called upon to meet; and the petition was therefore subject to challenge by demurrer or motion to dismiss. In re Sig H. Rosenblatt & Co. (C. C. A.) 193 F. 638; In re Condon (C. C. A.) 209 F. 800; In re Fuller (C. C. A.) 15 F. (2d) 294. In the ease last cited, the question was reviewed at length, with ample citation of authority. The petition at bar is precisely like that there involved except that here the aggregate amount of the “various moneys” alleged to have been paid to various unknown creditors is stated to be $6,500, while there no sum was mentioned. That is not sufficient to save the petition. Its allegations do not inform the bankrupt that the challenged payments are the sixteen checks cleared through the bank" } ]
[ { "docid": "22960171", "title": "", "text": "to the strict rule of accord and satisfaction. It is sufficient for us to say that this petition in bankruptcy is not a suit upon the original debt. It is a proceeding to have the defendants adjudged bankrupts on the ground that they have committed an act of bankruptcy. The'proceeding has to be instituted by three creditors with debts of a certain amount. The petitioning creditors are three in number, and have set out their debts; and the defendants seek to impeach their right'to have an adjudication of bankruptcy by saying, “We only owe you one-half as much as you say, because you have agreed to reduce your debt 50 per cent.” But 50 per cent, of the indebtedness alleged is quite sufficient to qualify the petitioners to begin the proceeding. We think that it would be following a rule of pleading much too strict to hold that where it appears by the admission of the answer that the petitioners are proper persons to file a petition, and have an interest such as to justjfy them in so doing, the petition must be dismissed because they have in their petition stated their claims in too large a sum, and on a somewhat different cause of action. We come now to the third and last defense, which presents the only serious question in the case; that is, whether petitioners, who, being made parties to judicial proceedings to enforce an assignment for the benefit of creditors, do not repudiate the same, hut file claims thereunder, and take part in the administration of the assets, seeking payment for their claims out of the proceeds of the assets from sales thereof made by the assignee by virtue of his assignment, are estopped thereafter to file a pel ilion in involuntary bankruptcy against the assignors based solely on the ground of the assignment. We have considered such a defeuse in the case of Carriage Co. v. Stengel, and refused to sustain the estoppel there claimed, because at the time (he assignment was made tiie statute .did not permit the filing of a petiiion in bankruptcy" }, { "docid": "23412610", "title": "", "text": "execute a deed of assignment for the benefit of their creditors, under the law of the state of Indiana, to Edwin F. Hedges, who, as such assignee, took possession of all their property, real and personal, and is now in possession of the same. Thereupon this court, as a court of bankruptcy, at once entered an order adjudging them bankrupts. As soon as such adjudication had been made, the petitioning creditors filed and presented to the court their petition against Edwin F. Hedges, as such assignee, asking that he be enjoined from disposing of or interfering with the assets and estate of the bankrupts, and that he show cause, if any he had, why he should not surrender and turn over to the receiver of this court the assets and estate of the bankrupts in his possession. This petition to show cause alleges, in substance, that on January 28, 1899, the bankrupts made a general assignment for the benefit of their creditors to said Hedges, who thereupon qualified as such as-signee, and took possession of all the property of the bankrupts, and is now in possession of the same; that among the assets so in the assignee’s hands are a valuable stock of general _ merchandise, accounts, notes, and other evidences of indebtedness due and owing to the .bankrupts, as well as a number of tracts of land and other real estate belonging to them; that the assignment for the benefit of creditors was and is illegal, fraudulent, and void, under the act of congress relating to bankruptcies, now in force, and in force on the day when said assignment was made; that, on proceedings duly had, said Smith & Dodson have been adjudged bankrupts, on their written admission that they were insolvent and had executed a deed of gen eral assignment of all tbeir property for the benefit of their creditors to said Hedges; that said Hedges is now in possession of said property of the bankrupts, without right, under said illegal and void assignment, and not otherwise. Prayer for a temporary restraining order, and that the assignee show" }, { "docid": "2782808", "title": "", "text": "vicinity to which it was to be originally shipped. If they did not buy it, they were to return it to Pennsylvania. Upon any breach of the agreement the appellant had the right to repossess himself of it. The shovel was taken to Dickenson county. On August 23, 1912, the bankrupts made an assignment for the benefit of creditors. It was duly recorded in Dickenson county. Among other property specifically conveyed by it was the shovel. The latter was assigned subject to a “claim” of the appellant “for $2,600 balance of purchase money.” The assignees took possession of it. Some six weeks later, and on October 11th, thé appellant for the first time recorded the so-called rental contract. On October 17th an involuntary petition for adjudication was filed against the bankrupts. On October 29th the appellant, in the circuit court for the county, instituted an action of detinue to recover the shovel. Under that writ the sheriff made a constructive seizure of it. In fact, it remained in the possession of the assignee for creditors. On November 29th the bankrupts were adjudicated such. A trustee was subsequently appointed. He duly qualified. He peaceably took possession of the shovel. By order of the court he rented it to some third parties for $5 a day. Subsequently the court ordered it sold. From this order the appeal was taken. The appellant then asked the court below to direct that the shovel be delivered to him. He said that for three reasons there should have been no adjudication in bankruptcy. These reasons were as follows: (1)'The bankrupts were not insolvent. (2) The petitioning creditors had received preferences. (3) The bankrupts had not resided or had their domicile or principal place of business in the district for the greater portion of the six months immediately preceding the filing of the petition. As the act of bankruptcy alleged was the making of a general assignment for the benefit of creditors, insolvency was immaterial. Moreover, the appellant was not entitled thus collaterally to attack the adjudication on any of the grounds set up by him. It" }, { "docid": "23171166", "title": "", "text": "the eye of the bankrupt law, the voluntary assignee is an accomplice in a fraud upon»the act, for the reasons above stated, and therefore can hold nothing by the assignment as against the trustee in bankruptcy. 4. Section 67, subd. e, of the present act provides that any transfers made within four months prior to the filing of the petition “with-intent to hinder, delay or defraud creditors, shall be null and void,” and that the property shall “pass to the trustee.” Except as to the time limitation this is in substance the provision that is found in the early English bankruptcy statutes and is the only provision they contained on this subject. But this provision as construed in the bankruptcy courts was not restricted to a condemnation of frauds at common law, or under 13 Eliz., but extended to all general assignments by an insolvent debtor to an assignee of his own choice, because as above stated they defraud creditors of the control, supervision and instrumentalities for the distribution of the estate, which the statute has provided for the creditors’ benefit; and because the debtor must be held to have intended the necessary effect of his act. The same construction should follow the same provision of the present act, except in so far as other provisions in the act may appear to be designed to take the place of this extended construction, such perhaps as may have been intended by clause 4 of section 70. That section (70) declares that the trustee “shall be vested by operation of law” with the Tight to all “(4) property transferred by the bankrupt in fraud of creditors.” No question of the bankrupt’s intent is here involved. It is sufficient to bring the case within this provision, if the transfer operates to defeat any substantial rights of creditors under the bankrupt law; and the clear weight of authority has long been that general assignments by a debtor do necessarily have this effect. Subdivision d of section 67 also declares liens to be valid that are “given or accepted in good faith and not in" }, { "docid": "22951514", "title": "", "text": "assignments of error complain of the action of the court in adjudging the defendant to be a bankrupt in the face of . the averment contained in the answer of each appellant that the defendant was not insolvent on the 12th of July, 1898, when the alleged preferences were given to the creditors named in the petition. In so far as the petition charged these preferences to be acts of bankruptcy, and sought an adjudication upon that ground, this averment certainly raised an issue of fact, which the district court must have heard and decided upon evidence before it could adjudicate the defendant to be a bankrupt. The petition, however, also alleged that on the 13th day of July, 1898, the defendant made a general assignment of its assets to Charles J. McKee for the benefit of its creditors. Such assignment is expressly declared, by the third section of the bankruptcy law, to be an act of bankruptcy, and it has been distinctly held by the supreme court of the United States in the case of Geo. M. West Co. v. Lea (decided May 22, 1899) 19 Sup. Ct. 836, that such an act justifies an adjudication of bankruptcy without averinent or proof that the assignor was insolvent at the time of the assignment or of the filing of the petition. Unless the petition-' ers have estopped themselves from relying on this assignment as an act of bankruptcy, therefore, the answers of the defendant and Coleman did not raise any issue of fact which prevented the court from adjudging the defendant a bankrupt on the petition and answer. The fourth and eighth assignments of error raise the question whether the following paragraph of the answer of the defendant is a sufficient defense to the petition: “Fourth. An assignment having been made by said company by its deed to Charles J. McKee, at the county of Montgomery and state of Ohio, and which was filed in the probate court thereof, pursuant to law, the said plaintiffs appeared in said probate court, and in the common pleas court of said county, and" }, { "docid": "23078356", "title": "", "text": "and tire result obtained. The service was rendered in the procuring of an adjudication of bankruptcy. The petition was presented by three creditors, and alleged for act of bankruptcy the making of a voluntary assignment after the bankrupt law went into operation. The a.nswer admitted the facts alleged, but asserted that Oarutliers, one of the petitioning creditors, had actively participated in the proceedings in the state court under the voluntary assignment, that the other two had filed their claims with the assignee, and charged that the petitioners were thereby estopped to prosecute their petition. The amended petition sought to excuse the acts claimed to work an estoppel, and asserted a fraudulent conveyance of real estate by the debtors. The answer thereto took issue upon the alleged fraudulent conveyance, reasserted the estoppel against the original petitioners, charged that the four creditors who wore allowed to join as petitioners were likewise estopped because they had filed their claims with the assignee, and denied indebtedness to two of them. It will thus be seen that upon the merits of the original petition the case was simple. Creditors to the requisite number and amount were united in the petition. Their claims were not disputed, and the act of bankruptcy charged was admitted. The difficulty encountered arose wholly from the embarrassing position in which these creditors had placed themselves by their voluntary acts in filing their claims with the assignee under tiie proceedings in the state court. The court below held against the estoppel upon the ground that after the passage of the bankrupt law a voluntary assignment was absolutely void, that the proceedings under the law of the state to carry 1he assignment into effect were coram non judice, and that any act of creditors under such void proceedings could not work an estoppel. This court, however, placed its decision upon the ground that Hiere was no estoppel because no action had been taken upon the claims filed, with the exception of Caruthers, and that no detriment, in a legal sense, had resulted from the filing of the claims; that, omitting the claim of" }, { "docid": "2370106", "title": "", "text": "three creditors, and for any reason it is claimed that one of such creditors is disqualified from uniting in that petition, that fact -must be set forth by answer, in order that the facts denied may be submitted to the special master for examination; that the answer in this case, by not denying that the petitioners have provable claims against the co-partnership assets, admits the allegation, and it is too late, after the master has made his report and all the evidence has been taken, to raise this question; and that the Bank of Batavia has a provable debt against the co-partnership assets, whatever may be said of its claim against the individual assets of Gillette. Under the act of 1867, a person who committed an act of bankruptcy was adjudged a bankrupt on the petition of one or more of his creditors, the aggregate of whose debts provable under the act amounted to at least $250. When under that act a person was adjudged a bankrupt, his assignee was empowered to recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to the act; and the person receiving such preference, having reasonable cause to believe that fraud under the act was intended, was not permitted to prove his debt in bankruptcy. It is generally held by the decisions that a creditor who has given his consent to an act is estopped from thereafter urging it as an act of bankruptcy. In re Israel, 12 N. B. R. 204, Fed. Cas. No. 7,111; In re Schuyler, 2 N. B. R. 249, Fed. Cas. No. 12,494; In re Williams, 14 N. B. R. 132, Fed. Cas. No. 17,-706. Creditors who had been fraudulently preferred were not counted, in determining whether a sufficient number had joined in the petition. In re Israel, supra; In re Hunt, 5 N. B. R. 493, Fed. Cas. No. 6,883; Clinton v. Mayo, 12 N. B. R. 39, Fed. Cas. No. 2,899; In re Rosenfields, 11 N. B. R. 86, Fed. Cas. No. 12,061. In Re Rado, 6 Ben. 230, Fed. Cas." }, { "docid": "22951513", "title": "", "text": "were attorneys of record, and that the facts were true. We do not propose now to pass upon the question whether this pietition was verified in proper form. The petition was answered by all the parties in interest, without any objection to its form. We have not the slightest doubt that, under any system of pleading, such a pleading to the merits waives all formal or modal matters. A verification of the petition is certainly a formal or modal matter, and does not reach to the jurisdiction. This is the view which was taken by Judge Longyear in the case of In re McNaughton, 16 Fed. Cas. 323, where a similar objection.was made, and the reason of that learned judge meets our entire approval. See, also, remarks of Judge Lowell in Ex parte Jewett, 13 Fed. Cas. 580. If the case of Hunt v. Pooke, 12 Fed. Cas. 930, is to be regarded as an authority to the contrary, it suffices to say that we do not agree with it. The third, seventh, and eighth assignments of error complain of the action of the court in adjudging the defendant to be a bankrupt in the face of . the averment contained in the answer of each appellant that the defendant was not insolvent on the 12th of July, 1898, when the alleged preferences were given to the creditors named in the petition. In so far as the petition charged these preferences to be acts of bankruptcy, and sought an adjudication upon that ground, this averment certainly raised an issue of fact, which the district court must have heard and decided upon evidence before it could adjudicate the defendant to be a bankrupt. The petition, however, also alleged that on the 13th day of July, 1898, the defendant made a general assignment of its assets to Charles J. McKee for the benefit of its creditors. Such assignment is expressly declared, by the third section of the bankruptcy law, to be an act of bankruptcy, and it has been distinctly held by the supreme court of the United States in the case" }, { "docid": "23412611", "title": "", "text": "all the property of the bankrupts, and is now in possession of the same; that among the assets so in the assignee’s hands are a valuable stock of general _ merchandise, accounts, notes, and other evidences of indebtedness due and owing to the .bankrupts, as well as a number of tracts of land and other real estate belonging to them; that the assignment for the benefit of creditors was and is illegal, fraudulent, and void, under the act of congress relating to bankruptcies, now in force, and in force on the day when said assignment was made; that, on proceedings duly had, said Smith & Dodson have been adjudged bankrupts, on their written admission that they were insolvent and had executed a deed of gen eral assignment of all tbeir property for the benefit of their creditors to said Hedges; that said Hedges is now in possession of said property of the bankrupts, without right, under said illegal and void assignment, and not otherwise. Prayer for a temporary restraining order, and that the assignee show cause why he should not surrender the property in his possession to the receiver of this court. On the filing and presentation of said petition the court issued a temporary restraining order, and an order to show cause, as prayed for. This order was duly served, and on the return day the assignee appeared, in person and by counsel, and admitted the matters and things set up in the petition to be true, and submitted the question whether, on the facts so admitted, the court could, in a summary manner, order a surrender of the property of the bankrupts in his hands as such as-signee to a receiver appointed by this court. ‘The statute of this state (2 Burns’ Rev. St. 1894, §§ 2899-2920, inclusive; Rev. St. 1881, §§ 2662-2083, inclusive) provides that any debtor or debtors in embarrassed or failing circumstances may make a general assignment of all his or their property in trust for the benefit of all his or their bona fide creditors, and all assignments hereafter made by such person or" }, { "docid": "22131488", "title": "", "text": "or otherwise. Nothing further material was done in the case until the 16th of April following, when Allen filed his answer denying that the aggregate of the claims of the petitioning creditors amounted to one-third of the debts provable against him. Ten days was thereupon allowed for other creditors to unite with the petitioners, and the leave before given to amend the petition was continued. On the 22d of April following, Receiver Burley was permitted to unite with the petitioning creditors by signing thé petition, which he did, and the petitioning creditors, including Burley, thereupon amended their petition. The amount of the debts of the bankrupt then represented was sufficient. The amendment set an act of bankruptcy by Allen in not paying his commercial paper within six months next preceding the time of filing the petition. An older of adjudication was duly entered, and on the 12th of July, 1875, an assignment was made to Hoyt Sher man, as assignee. The assignment included all the property and effects of every kind in which Allen, the bankrupt, “ was interested or entitled to have.on the twenty-third day of February, a.d. 1875.” The continuity of the proceeding from the outset was unbroken. The original petition was amended by inserting an act of bankruptcy which occurred before the petition was filed, as before stated, but the original petition was in no wise either-dismissed or abandoned. There is no pretence for alleging either. The assignment related back to the commencement of the proceeding, which was by filing the petition on the ~23d of February, 1875, and the title of the assignee to all the'property and effects of the bankrupt became vested as of that date. Rev. Stat. 980, sect. 5,044. This bill was filed on the 7th of July, 1877. It was amended twice, but the amendments were chiefly verbal. Their effect was only to give greater precision to the charges already made. The framework of the bill remained the same. No new cause of action was introduced. The changes were not such as could have any effect with respect to the statutory limitation" }, { "docid": "15468078", "title": "", "text": "MORTON, District Judge. On December 24, 1917, three creditors filed this involuntary petition in bankruptcy, alleging but one specific act of bankruptcy, viz. a preferential conveyance made by the alleged bankrupt on December 1%, 1917. The petition did not show that any one of the three petitioning creditors was a creditor of the respondent at the date of the alleged act of bankruptcy, and it did show as to one of them, Fine, that he held his claim by assignment, without setting out a copy of the instrument of assignment. On January 14th the respondent moved to dismiss because of the insufficiency of the petition. Op February 2d a fourth creditor, whose claim is nota assailed, intervened as a petitioner. On February 9th the petition was amended, so as to state that the claim of Fine’s assignor had accrued before December 12th (the date of the act of bankruptcy), and a copy of the assignment to him was annexed. The questions are: (1) Whether the petition was sufficient as filed; and, if not, (2) whether the intervention of the fourth creditor made it good. As to (1) it is not necessary that an involuntary petition show on its face that tire petitioners were creditors at the time of the act of bankruptcy alleged. The proceedings date from the filing of the petition, and, prima facie at least, it is sufficient if a petitioner is alleged to be a creditor on that date. In re Lewis F. Perry & Whitney Co. (D. C.) 172 Fed. 752, affirmed 175 Fed. 52, 99 C. C. A. 68; Emerine v. Tarault, 219 Fed. 68, 70, 134 C. C. A. 606 (C. C. A. 6th Cir.); In re Kehoe, 36 Am. Bankr. Rep. 891 (C. C. A. 2d Cir.); In re Van Horn, 41 Am. Bankr. Rep. 12 (C. C. A. 3d), directly in point. Fine’s assignor was a creditor at the time of the act of bankruptcy, and, if it had retained its claim, was in no way disqualified, so far as appears, from joining as a petitioner. In this respect the present case" }, { "docid": "13603341", "title": "", "text": "DOOLING, District Judge. A. E. Buttner filed a petition as a creditor of Henry Campe & Co., praying that the latter be declared a bankrupt. The petition averred that there were less than 12 creditors, and that the alleged bankrupt had committed an act of bankruptcy by making a general assignment for the benefit of creditors. The alleged bankrupt answered that there were more than 12 creditors and gave their names and addresses. The court then made an order 'referring the matter to a special master for such, proceedings as are provided for by section 59 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 561 [Comp. St. 1913, § 9643]). The master-sent out notices to the creditors named in the answer, and the assignees of the claims of two of them have joined in the original petition. A motion was made to strike out* their intervention, for the reason that their assignors, the owners of tire claims at the time of the assignment, had assented thereto. That a creditor who has assented to an assignment by his debtor may not ordinarily thereafter file ah involuntary petition in bankruptcy against him, based solely upon such assignment, is well settled. It is contended here, however, that this rule does not apply, because the debtor and his assignees have failed to comply with certain provisions of the Civil Code of California, in that the assignment was not recorded, nor was airy inventory filed, as required by sections 3461 and 3463 of that Code. But the Code provides a complete scheme under which assignments for tire benefit of creditors may be made effective. The first requirement is that the assignment be made to the sheriff of the county in which the assignor resides. It then becomes the duty of the sheriff to call a meeting of all the creditors for the purpose of choosing one or more assignees, to whom, when thus chosen, the sheriff must assign all the property of the debtor theretofore assigned to him. The duties of the sheriff and of the assignees thus selected are laid" }, { "docid": "22055888", "title": "", "text": "show that certain debtors of the .complainant and other creditors failed in business, and made, under the State law, a general assignment of their property to an assignee for the benefit of their creditors, prior to their being adjudged bankrupts. Pursuant to that assignment the assignee accepted the trust, and converted all of the visible property of the insolvents surrendered to him into money, and made final distribution of the proceeds among the creditors. Charges of fraud against the debtors are made by the complainant, to the effect that they concealed large amounts of other property from their creditors and from the assignee, as fully set forth in the bill of complainant. On the 10th of August, 1867, one of the said debtors filed his petition in bankruptcy, and on the 11th of October following, the firm of which the first-named debtor was a partner also filed their petition in bankruptcy; and the firm and each partner were duly adjudged bankrupts, the respondent, J. W. Caldwell, being subsequently appointed assignee in each case. They, the bankrupts, surrendered no property, and made oath that they had none, not excepted from the operation of the Bankrupt Act. Discovery has since been made, as the complainant alleges, that the bankrupts had fraudulently concealed a large amount of property not surrendered to the State assignee, or the assignee in bankruptcy, and that one of the firm made large gains and profits subsequent to the assignment under the State law and prior to the time when the firm was adjudged bankrupt. Secret and fraudulent devices, as the complainant alleges, were employed by the insolvent debtors to con deal their property from the knowledge of their creditors and the assignee; and he describes the means which led to the discovery of the property, and avers that the respondent assignee was advised of the facts set forth, and that he was requested to adopt means to recover the same, or to allow his name to be used for that purpose, but that he refused so to do. Both the complainant and respondents are citizens of the same" }, { "docid": "23171151", "title": "", "text": "BBOWN, District Judge. The affidavit on which this order to show cause was heard states, that Henry Gutwillig on the 9th day of November, 1898, made a general assignment of all his property to William Leete Stone, Jr., for the benefit of his creditors, and that the assignee has taken possession of the property; that on November 10th the petitioning creditors filed a petition in this court that said Gutwillig he adjudged a bankrupt, and praying that the assignee be restrained from disposing of the assigned property or its proceeds until the adjudication upon the petition. Sections 3, 4 and 59 of the act of July 1, 1898, declare such an assignment to he itself “an act of bankruptcy,” aud authorize creditors within four months thereafter to file a petilion in bankruptcy against the insolvent debtor. Under sections 18 and 19 of the act, which provide for notice and subpoena h> the debtor, the latter may contest the matters alleged against him in the petition, and may have, if demanded, a jury trial upon the issues. Section 4 provides that “upon an impartial trial, the debtor may be adjudged an involuntary bankrupt.” By sections 55 and 44 a meeting of creditors is required to be held after an adjudication of bankruptcy, at which a trustee of the bankrupt’s estate is to be chosen by the creditors, or upon their failure to agree, to be appointed by the court. From the above provisions it is obvious that in every case of involuntary proceedings in bankruptcy, a considerable interval of time, more or less, must elapse between the filing of the jietition and the appointment of a trustee competent to take and administer the estate. If in sueh„eases the assigned assets legally belong to the bankrupt’s estate; to be administered by the bankruptcy court and the trustee in accordance with the provisions of the bankrupt act, it is the duty of this court under section 2, subdivisions 3 and 15 of the statute, upon suitable application, either to grant an order restraining the voluntary assignee from disposing of the property in, the" }, { "docid": "7094104", "title": "", "text": "benefit of creditors is made by the bankruptcy act alone sufficient to justify an adjudication in involuntary bankruptcy against the debtor making such deed, without reference to his solvency at the time of the filing of the petition, the denial of insolvency by way of defense to a petition based upon the making of a deed of general assignment is not warranted by the bankruptcy law.” In the case of Bryan v. Bernheimer, 181 U. S. 188, 21 Sup. Ct. 557, 45 L. Ed. 814, a general assignment was followed in nine days by a petition in bankruptcy. Between the filing of the petition and the date of adjudication the assignee sold the property of the estate. The court held that the purchaser had a title subordinate to that of the bankrupt’s estate, and that the equities between him and the creditors should be determined by the District Court. Mr. Justice Holmes, in the case of Randolph v. Scruggs, 190 U. S. 533, 23 Sup. Ct. 710, 47 L. Ed. 1165, held that the rights of an assignee to compensation and recoupment did not depend upon the state law, or arise out of the assignment, but are based upon an equitable right to claim such recoupment and compensation as may be reasonable for his efforts in preserving the estate, which should be fixed by the bankruptcy court. In the case of In re Watts and Sachs, Petitioners, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933, the Chief Justice said: “The bankruptcy law is paramount, and the jurisdiction of the federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive.” Under the foregoing decisions it is apparent that a general assignment is an act of bankruptcy to which there can be no possible defense. If it is followed by a petition in bankruptcy, this court obtains exclusive jurisdiction, entirely irrespective of the question of solvency or insolvency. The only possible defense that a bankrupt or assignee could have to a petition in bankruptcy alleging the making" }, { "docid": "23412609", "title": "", "text": "BAKEB, District Judge. On February 24, 1899, certain creditors filed their petition in involuntary bankruptcy against Aaron J. Smith and Josephus G. Dodson, composing the firm of Smith & Dodson. The petition alleged the insolvency of said firm and of each member thereof, and stated a single act of bankruptcy. The allegation touching this act of bankruptcy is as follows: “And your petitiouers further represent that said Aaron J. Smith and Josephus G-. Dodson, partners as aforesaid, are insolvent, and that within four months next preceding the date of this petition the said Aaron J. Smith and Josephus G. Dodson, partners a.s aforesaid, committed an act of bankruptcy, in that they did heretofore, to wit, on the 2Sth day of January, 1899, make a r general assignment for the benefit of their creditors to Edwin E. Hedges, of ' Lebanon, in Boone county, state of Indiana.” On February 25, 1899, said Smith and Dodson appeared in open court, in their own proper persons, and filed their written admission that they did on January 28, 1899, execute a deed of assignment for the benefit of their creditors, under the law of the state of Indiana, to Edwin F. Hedges, who, as such assignee, took possession of all their property, real and personal, and is now in possession of the same. Thereupon this court, as a court of bankruptcy, at once entered an order adjudging them bankrupts. As soon as such adjudication had been made, the petitioning creditors filed and presented to the court their petition against Edwin F. Hedges, as such assignee, asking that he be enjoined from disposing of or interfering with the assets and estate of the bankrupts, and that he show cause, if any he had, why he should not surrender and turn over to the receiver of this court the assets and estate of the bankrupts in his possession. This petition to show cause alleges, in substance, that on January 28, 1899, the bankrupts made a general assignment for the benefit of their creditors to said Hedges, who thereupon qualified as such as-signee, and took possession of" }, { "docid": "22631829", "title": "", "text": "the estate of the corporation in the hands of a trustee in bankruptcy, .when the corporation was adjudicated an involuntary bankrupt within four months after the making of the assignment, and the assignment set aside as in contravention of the bankrupt law ? . ■ “(2.) Is a claim for professional advice and legal services rendered such an assignee, prior to an adjudication of bankruptcy against the assignor, the assignment providing that the costs and expenses of administering the trust should be first paid, entitled to'be proven as a preferential claim against the bankrupt estate ? ,. “ (3.) Is a claim against' such an assignee for legal services') rendered at his employment in resisting.an adjudication of involuntary bankruptcy against the assignor allowable as a .preferential claim when the necessary effect of the adjudication would be.to set aside the assignment under which the assignee < was acting ? “ (4.) .If not entitled, to be allowed as preferential claims, ■may either of the items described in the foregoing questions be'proven as unsecured debts of the bankrupt corporation?”' It is admitted that a general assignment for the benefit of creditors, made within four months from the filing of a petition in bankruptcy, is void as against the trustee in bankruptcy, so far as it interferes with his administering the property assigned. This could not be denied. West Company v. Lea, 174 U. S. 590, 595; Boese v. King, 108 U. S. 379, 385; Bryan v. Bernheimer, 181 U. S. 188. It hardly is necessary to discuss whether such an assignment should be held to be embraced in the express avoidance of conveyances made with intent to hinder, delay or defraud creditors in § 67 e, of the bankruptcy law. It is possible to say that constructively a general assignment falls under that description. In re Gutwillig, 90 Fed. Rep. 475; S. C., 92 Fed. Rep. 337; Davis v. Bohle, 92 Fed. Rep. 325. One ¿round for such a construction would be that making the assignment is declared an act of bankruptcy by § 3. As it could not have been intended" }, { "docid": "2678357", "title": "", "text": "District Court of Massachusetts for the Winnisimmet Shipyard, Inc., on the 24th day of November, 1920, and certain creditors of the Winnisimmet Shipyard, Inc., filed motions to dismiss the petition, assigning as reasons therefor: “1. Said petition on its face does not state any facts upon which an adjudication in bankruptcy can be granted herein. • “2. The first ground upon which the involuntary petition is filed is the appointment of receivers of the property of the alleged bankrupt. Said appointment was made by decree of this honorable court in Crandall Engineering Company, a Maine corporation, against Winnisimmet Shipyard, Inc., a Massachusetts corporation, Equity No. 1044. The proceedings in said equity case are hereby referred to and made a part of this motion. As appears from the face of said bill in equity and by examination of said bill, it affirmatively appears that no act of bankruptcy has been committed by the alleged bankrupt.” i The petitioners state in their assignment of errors that the court ruled (1) that in determining, whether the receivers were put in charge of the property of the alleged bankrupt because of insolvency the court could not consider evidence outside the record in tire equity suit wherein said receivers were appointed; (2) that the sufficiency of the petition may be raised on a motion to dismiss even though said motion to dismiss is based on matters of record in another suit pending in the District Court; and (3) that the court could take judicial notice of the record in the equity suit pending in the District Court— and erred in so ruling. Equity rule 29 provides that: “Every defense in point of law arising upon tbe face of tbe bill, wbetber for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, wbicb might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer. * * * ” It must be conceded that if the petition fails to state facts sufficient to authorize a decree of adjudication the question of its" }, { "docid": "9959208", "title": "", "text": "Section 59, sub. b of the Bankruptcy Act, a single creditor was not qualified to file an involuntary petition if the alleged bankrupt had twelve or more creditors. At the hearing on the motion for a summary judgment dismissing the petition, the petitioner orally moved for a dismissal of the counterclaims asserted against it. The District Judge granted both motions on the ground of lack of jurisdiction. He dismissed the involuntary petition and also dismissed the counterclaims of Associated. Associated has appealed from the dismissal of its counterclaims. It contends that it had the right to file the counterclaims in the bankruptcy proceeding and to have them adjudicated notwithstanding the dismissal of the involuntary petition and the fact that the bankruptcy court was without jurisdiction to entertain it. The dismissal of the involuntary petition, we think, left the court of bankruptcy with nothing upon which its jurisdiction could operate. Cf. In re Sig. H. Rosenblatt & Co., 2 Cir., 193 F. 638. The short answer to the appellant’s contention that its counterclaim survived the dismissal of the involuntary petition is, we think, that the petition was not in any sense the commencement of a civil action in a United States District Court sitting either at law or in equity, and did not furnish a jurisdictional basis for the assertion or adjudication of counterclaims asking for affirmative relief in the bankruptcy court. Counterclaims can, of course, be asserted by an alleged bankrupt in answer to an involuntary petition, to show that the petitioner is not a creditor or not such a creditor as is authorized to file a petition, or to show that the alleged bankrupt is in fact not insolvent and not subject to adjudication. See Harris v. Capehart-Farnsworth Corporation, 8 Cir., 225 F.2d 268, 270. Counterclaims, however, may not be set up as a basis for the recovery of a judgment for damages against a petitioning creditor. Schreffler v. Schreffler, 10 Cir., 155 F.2d 221, 222. The powers conferred upon courts of bankruptcy by the Bankruptcy Act do not make them courts of general jurisdiction to hear and determine" }, { "docid": "7094105", "title": "", "text": "of an assignee to compensation and recoupment did not depend upon the state law, or arise out of the assignment, but are based upon an equitable right to claim such recoupment and compensation as may be reasonable for his efforts in preserving the estate, which should be fixed by the bankruptcy court. In the case of In re Watts and Sachs, Petitioners, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933, the Chief Justice said: “The bankruptcy law is paramount, and the jurisdiction of the federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive.” Under the foregoing decisions it is apparent that a general assignment is an act of bankruptcy to which there can be no possible defense. If it is followed by a petition in bankruptcy, this court obtains exclusive jurisdiction, entirely irrespective of the question of solvency or insolvency. The only possible defense that a bankrupt or assignee could have to a petition in bankruptcy alleging the making of a general assignment within tire statutory period would be a denial of that fact. The only question that I think arises, if it clearly appears that a general assignment has been made, is whether the assignee is a proper custodian of the property during the period between the filing of the petition and the election of a trustee. As to this matter there should be an investigation, but I have not the slightest doubt that the ordinary power in this court to appoint a receiver is not affected by the fact that an assignment for the benefit of creditors has been executed and that the assignee named therein has qualified. Whether to appoint a receiver in the given case is a matter for the exercise of a proper discretion. I am further of the opinion that in all cases where a petition in bankruptcy has been filed, after the making of a general assignment, this court has both the power and the absolute discretion to restrain the assignee from administering the estate. In respect" } ]
396001
occasions and that Plaintiff has been seen by three prison doctors. Evidence was also introduced that Plaintiff refused to take medication prescribed for him by a prison doctor. Further evidence was introduced that Plaintiff had been seen a total of twenty-two times by prison medical personnel since October of 1973 until the present time. Plaintiff has been seen twice by a prison dentist, the last time only Friday of last week. While he needs further attention to his teeth in the nature of possible extractions or fillings, the same will be attended to in due course in the near future according to the testimony of the dentist. It is obvious that Plaintiff is receiving adequate medical attention under the requirements of REDACTED 1969) and 51 A.L.R.3d 111 at page 179, and there is an absence of any evidence that any of the Defendants violating any of Plaintiff’s constitutional rights in this regard. In this connection it is worthy to note that in the July, 1973 riot at the Penitentiary, the inmates burned down the hospital including all medical records and equipment and in the meantime the medical staff is performing medical services to the best of their ability utilizing temporary facilities and equipment. Coppinger v. Townsend, supra. (2) The Plaintiff complained about confiscation and destruction of certain of his personal property but did not name any person as the one responsible for such confiscation and destruction. Thus, there is no evidence that any
[ { "docid": "22974115", "title": "", "text": "BREITENSTEIN, Circuit Judge. Appellant-plaintiff Coppinger brought this action under 42 U.S.C. § 1983 claiming that appellee-defendant Patterson, the warden of the Colorado state penitentiary, and appellee-defendant Townsend, a doctor on the penitentiary staff, had deprived him of federally protected constitutional rights by not furnishing him with adequate medical care. On motion of the defendants, the district court dismissed the case on the ground that the complaint fails to state a claim on which relief can be granted. The plaintiff appeals. The complaint alleges that plaintiff has neural dermatitis; that Dr. Townsend refused treatment; that plaintiff complained to the warden and told the deputy warden of the treatment which he had previously received from the Colorado State Hospital; that a few days thereafter he was furnished the required medication; that about two months thereafter Dr. Townsend reduced the amount of medication; that about two weeks later Dr. Townsend withdrew the medication; that when he did so he was aware of the plaintiff’s medical history; that plaintiff is in pain and his physical condition has deteriorated; that the denial of the medication is arbitrary and capricious; and that the refusal to send plaintiff to the State Hospital causes him irreparable injury. The issue is whether the complaint states a claim under § 1983 of the Civil Rights Act which imposes civil liability on a person who, under color of state authority, subjects another “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Plaintiff says that he has been subjected to cruel and unusual punishment contrary to the Eighth Amendment and denied due process of law in violation of the Fourteenth Amendment. There is no need to explore the scope of immunity applicable to state officials in suits brought under the Civil Rights Act, because the asserted claim does not lie against either the warden or the doctor. The claim against the warden is based on the allegations that with knowledge of the doctor’s denial of medical attention and of the plaintiff’s condition, he refused to send the plaintiff to the State Hospital. There is no averment" } ]
[ { "docid": "23376261", "title": "", "text": "hour a day. Inmates were sleeping when plaintiffs’ expert visited at approximately 10:00 o’clock in the morning. Tes. Fogel, Nagel, Jacques, Roy, Meade. Medical attention during quarantine is scant at best. Some inmates said that they never saw a medical staff member the entire time in quarantine, and only one said that he had seen the doctor within the prescribed seventy-two hour period. Those who did see the doctor uniformly testified to the inadequacy of the medical attention they received. One inmate was given a tine test for tuberculosis, but there was no follow-up. In another examination, the doctor merely looked at the inmate’s mouth and fingers and dismissed him. In some cases, the doctor neither asked any questions of the inmate nor evinced any interest in medical problems or history when the information was volunteered. In one case, the inmate stated that the doctor never asked him anything about stomach problems or diet, yet put into his medical record that no special diet was necessary. Another inmate testified that he had been going through withdrawal from a prescribed drug when he arrived at the prison but was unable to see the doctor even though he tried. Not only was there no routine physical examination, but he was unable to renew his prescription or get other relief for his withdrawal symptoms. The doctor’s notes of these physical exams are very brief. Ex. 40H; Ex. 3; Tes. Fogel, Meade, Roy, Jacques, Wallace, Laaman. Of the inmates who testified, most had been visited and interviewed by personnel from the Mental Health Division, three had been tested, and one saw the psychiatrist for four to five minutes. One saw a social worker approximately once a week, and another inmate voluntarily began counseling with the Mental Health staff within one week of his arrival at NHSP. Tes. Farnsworth, Meade, Roy, Jacques. Only two received a copy of any rules and regulations; one received them on his first trip through the prison in 1973, but did not get any his second time around in 1975, and the other got an old set of rules but" }, { "docid": "15699040", "title": "", "text": "these incidents. When an inmate on a lockup unit receives a conduct report, the C.A.B. is held on that unit. However, some of the lay assistants and witnesses refuse to go up to the lockup units because they are subjected to a complete strip search. A written statement can be submitted for the witness who refuses to go into a lockup unit. No other evidence was presented on this matter. Accordingly, these allegations must be accepted as true. Sam James Inmate James has been incarcerated at the I.S.P. since March 1974. He was employed in the dental clinic in 1977 and 1978. In June 1978 he saw inmate Jackson Dean for the purpose of cleaning his teeth. James asked the dentist on duty to examine Dean’s teeth. Dr. Price, the dentist who was present, determined that three of Dean’s teeth should be extracted. The doctor administered the anesthetic and ordered James to pull the teeth. This was not the first time James had been told to pull another inmate’s teeth. Two of the teeth were extracted without incident. The third tooth broke off. After that Dr. Price and Dr. Higgins worked on Dean about two hours to remove the remainder. The testimony of inmate Dean further corroborates this account. At this time, Dr. Price is deceased and Dr. Higgins is no longer employed at the LS.P. No further evidence was heard on this matter. Accordingly, these allegations are accepted as true. James Odis Hendrix Inmate Hendrix has been incarcerated at the I.S.P. since November 1973. He is a named plaintiff in this cause. Hendrix had a medical disorder of the stomach prior to his incarceration. Hendrix contends he was unable to see any medical personnel for this problem from 1974 through 1976 even though he applied for sick call. In 1976 Hendrix was seen by Dr. Saylors, a physician, who prescribed an antacid for his condition. In June 1977, Hendrix again saw Saylors and told him that the antacid was not helping. Saylors then had x-rays taken of Hendrix at an outside hospital. Since the x-rays were taken Hendrix has" }, { "docid": "10265430", "title": "", "text": "evidence that the same was infectious. Plaintiff complained of nerves for which she was prescribed and given tranquilizer medicine. Plaintiff’s sickline record was introduced into evidence which disclosed numerous contacts between Plaintiff and prison medical personnel. The evidence further disclosed that Plaintiff was given a complete physical examination upon her entry into the institution and that it was institutional policy which had been followed that all prisoners are given a further physical examination once each year. The Court would observe that this is better than the great majority of people receive on the outside. The Court finds that under the evidence there is absolutely no merit to Plaintiff’s complaint in this respect. The institution is fully meeting the requirements of Coppinger v. Townsend, 398 F.2d 392 (Tenth Cir. 1968) and 51 A.L.R.3d 111 at page 179. Moreover, Plaintiff produced no evidence that the Defendant denied her any needed medical care either directly or by failing to have adequate personnel or facilities. It is the general rule that an official will not be liable in a Civil Rights action unless he directly and personally participates in conduct under color of State law which deprives the plaintiff of rights, privileges, and immunities secured him by the Federal Constitution. Richardson v. Snow, 340 F.Supp. 1261 (D.Md.1972). It is an essential element of a Civil Rights claim that the particular defendant be personally involved in the alleged denial of the Constitutional right. Battle v. Lawson, 352 F.Supp. 156 (W.D. Okl.1972). Townes v. Swenson, 349 F. Supp. 1246 (W.D .Mo.1972); Campbell v. Anderson, 335 F.Supp. 483 (D.Del.1971). (2) Plaintiff’s complaint about the destruction of certain of her property is found to be without merit. In the first place, Plaintiff produced no evidence that the Defendant she has sued either took or destroyed her personal property. Furthermore, Plaintiff testified that it was prison policy that any personal property taken from an inmate would not be destroyed but would either be returned to the inmate if proper for the inmate to have the same or be shipped to a designation made by the inmate. There is thus" }, { "docid": "23376260", "title": "", "text": "Work Board Classification Team which assigns a security classification, a treatment designation and a job to the inmate. Pictures and fingerprints are taken during quarantine. The inmate is given the prison’s written rules and regulations which are orally explained to him within a week of his arrival. Ex. 31; Tex. Clarke, Piela. The reality of the quarantine period is quite different from its formal outline. While it is not supposed to last for more than fourteen days, some inmates have been held in quarantine up to a month, and one expert testified that the quarantine cells looked as if they had been lived in for years. Because of some administrative mix-ups and difficulties, some prisoners were in quarantine for an unnecessarily long time, but defendants aver that the situation is now improved. Tes. Fogel, Clarke. From plaintiffs’ eyes, quarantine at NHSP is “dead time.” According to the inmates, they were let out of their cells only for meals and a shower once a week, although one inmate testified that he was allowed to exercise one hour a day. Inmates were sleeping when plaintiffs’ expert visited at approximately 10:00 o’clock in the morning. Tes. Fogel, Nagel, Jacques, Roy, Meade. Medical attention during quarantine is scant at best. Some inmates said that they never saw a medical staff member the entire time in quarantine, and only one said that he had seen the doctor within the prescribed seventy-two hour period. Those who did see the doctor uniformly testified to the inadequacy of the medical attention they received. One inmate was given a tine test for tuberculosis, but there was no follow-up. In another examination, the doctor merely looked at the inmate’s mouth and fingers and dismissed him. In some cases, the doctor neither asked any questions of the inmate nor evinced any interest in medical problems or history when the information was volunteered. In one case, the inmate stated that the doctor never asked him anything about stomach problems or diet, yet put into his medical record that no special diet was necessary. Another inmate testified that he had been going through" }, { "docid": "18931874", "title": "", "text": "The record indicates that Reed has received extensive treatment for his ailments during the time of his incarceration. The defendants are correct — we “must examine the totality of an inmate’s medical care when considering whether that care evidences deliberate indifference to his serious medical needs.” Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir.1999); Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir.1996). Both of those cases are easily distinguished from this one. The plaintiff in Gutierrez received treatment over a ten-month period and at most experienced an “isolated occasion or two where he did not receive prompt treatment.” Id. at 1374. Even when the plaintiff was unable to see a doctor as quickly as he wished, he received medicine and other prescribed treatments. Id at 1375. Balanced against the extensive treatments he received, the occasional delays he complained of were “simply isolated instances of neglect, which taken alone ... cannot support a finding of deliberate indifference.” Id. In Dunigan, the prisoner had received adequate medical care continuously for three months. 165 F.3d at 591. Not until the final three days of his life was there any suggestion that the defendant prison guards failed to properly care for the decedent. Id. Even at that point, however, the guards “remained attentive to [the prisoner’s] health,” and were “responsive to [his] needs, helping him to sit up and alerting ... the medical staff to [his] complaints.” Id. at 592. The court held that there was nothing “markedly atypical” about the decedent’s treatment in the last three days of his life warranting an inference that the defendants strayed from their well established pattern of appropriately caring for him. Id. If such evidence existed, summary judgment might have been inappropriate, because even where a plaintiff has previously received good care, “mistreatment for a short time might ... be evidence of a culpable state of mind” regarding deliberate indifference. Id. at 591. In a nutshell, this is the opposite of Dunigan and Gutierrez. While Reed often received adequate care, there were allegedly a number of occasions that were “markedly atypical,”" }, { "docid": "767972", "title": "", "text": "injury and unnecessary suffering to the inmates incarcerated in the Department of Corrections. a. Inmate Byron Barnhardt died of a heart attack in February, 1978. He was timely discovered in his cell and taken to the infirmary, weak but conscious. He was not given the proper medication because one prison medical employee couldn’t find the key and another thought the medication was banned. He was not given oxygen because the equipment was not working. He was delayed in transmission to the free world hospital because prison employees could not find the “proper stretcher”. Defendants’ own expert described the choice of medication given to Barnhardt as negligent. b. Inmate Nathaniel Toles tried from August to October, 1977, to seek medical attention for a foot problem. He received no thorough examination until a non-medical staff person requested that he be referred for a consultation. Subsequent gangrene set in and his right leg was amputated below the knee. A prosthesis was ordered on April 7, 1978. As of August 7, 1978, it had not been fitted. c. Inmate Douglas Smith, on April 5, 1978, was evaluated by a Department of Mental Health psychiatrist for hallucinations and paranoid verbalizations. It took one month after the diagnosis for him to be transferred. d. Inmate Richard Setzer had sufficient symptoms to be referred to an optometrist in December, 1977, and on April, 1978. He did not receive glasses until after his second appointment. At one time during this period, he was further recommended for referral to the Neurology Clinic at either Central State or University Hospital. That appointment was subsequently cancelled. e. Inmate Marshall Cummings had complained about a dandruff and loose hair problem to the medical authorities on several occasions prior to his being seen by the plaintiff-intervenor’s medical expert in late April, 1978. It wasn’t until July 11, 1978 that he was finally thoroughly examined and it was determined by prison medical authorities that his problem wasn’t medical, but rather hereditary. f. Inmate Alan Livingston, according to the defendants, has had epigastric (ulcer) burning and pain, belching and regurgitation and headaches for seven years." }, { "docid": "7470527", "title": "", "text": "health worker responsible for the CJC attend to inmates’ needs infrequently. (Court Exh. 3, at 41.) One on-site nurse and one on-site medical doctor and two part-time nurses service the 168 to 190 prisoners housed at the CJC. (Id.) Sick call is administered by prison security staff instead of medical staff, and prison records do not indicate that inmates are seen promptly as needed. (Tr. at 91.) Inmates injured on a weekend sometimes do not receive medical attention until the following weekday. (Tr. at 90.) Similarly, the defendants either do not transport to outside treatment facilities— such as the infirmary at Golden Grove or the hospital facilities in St. Thomas—those prisoners who require specialized medical attention, or give preferential treatment only to those inmates who require emergency care. (Court Exh. 3, at 58; Court Exh. 4; Court Exh. 9, at 3-4; PL Exh. 4, at 7.) In addition, the facility does not maintain adequate equipment for medical emergencies despite notice of the need for specific items such as a crash cart, oxygen, and airways. (Court Exh. 3, at 44; Tr. at 90, 152, 213.) Such equipment is critically important considering the high frequency of violent incidents requiring significant medical attention: several inmates have been beaten into comas and many have sustained serious injuries in violent assaults. See infra secs. III.E.-F. CJC staff also do not distribute regularly the necessary personal hygiene items such as toothpaste and sanitary napkins; rather, they issue them selectively in order to discipline inmates. (Court Exh. 2; Court Exh. 3, at 53; Court Exh. 9, at 2; Tr. at 151-52.) Inadequate intake health evaluations also contribute .to the substandard medical care provided to the prisoners. Newly admitted inmates are not screened consistently to identify serious diseases such as tuberculosis, mental illness, substance abuse, or suicide risk. (Court Exh. 3, at 50-51, 53; Court Exh. 9, at 4; Tr. at 92-93.) PPD tests, while administered, are not read regularly within the requisite timeframe. (Tr. at 94-95.) Worse, newly admitted, non-screened inmates are incarcerated together with the general population in open-barred “lock-down” cells, exposing inmates, staff, and others" }, { "docid": "22068792", "title": "", "text": "marked “Denied” rather than “Partially Granted.” These differences in the second level response reflect a difference in the nature of Hall’s grievance, as compared to Brown’s. Both Hall’s grievance and his federal court complaint, unlike Brown’s, raised issues other than those relating to the misconduct of the correctional officers who assertedly used excessive force. Hall also complained in his grievance that he did not receive adequate medical care after the excessive use of force and that he was “returned to an empty cell with no property.” Similar allegations were repeated in Hall’s complaint in this suit: “[P]laintiff[ ] ... received no medical attention [although he] had complained ... during medical deliveries that he was in severe pain ... and need[sic ] to be seen by a doctor ...;” “[P]rison officials had confiscated ... Plaintiffs personal property.” It thus appears that in Hall’s ease, unlike in Brown’s, there were matters separate from the staff complaint about excessive force — i.e., allegations regarding lack of medical care and deprivation of property — that, according to both the Administrative Bulletin referenced in the second level response and the response itself, “must be appealed separately.” That is why, presumably, the response memoran dum to Hall, unlike the response to Brown, did note the possibility of further appeal. We conclude that both a reasonable interpretation of the responses made to Hall and the Department’s actual practices as reflected in the governing directives indicate that, as to certain aspects of Hall’s grievance, some relief might have been available had he pursued his third level appeal. Second, unlike Brown, Hall filed his federal court complaint in June 1999, before the staff complaint investigation was completed on November 2, 2000, and before he was notified on July 2, 2001 that “[t]he findings of said allegation(s) were partially sustained.” Until the staff misconduct investigation was completed, the Department had not had a full opportunity to investigate the complaint and to develop an understanding of the facts underlying it. Moreover, even absent any specific information regarding the results of the investigation, it is conceivable that a prisoner who learns that" }, { "docid": "22661206", "title": "", "text": "care in the prison where Gamble is confined. Fairly construed, the complaint alleges that he received a serious disabling back injury in November 1973, that the responsible prison authorities were indifferent to his medical needs, and that as a result of that indifference he has been mistreated and his condition has worsened. The indifference is allegedly manifested, not merely by the failure or refusal to diagnose and treat his injury properly, but also by the conduct of the prison staff. Gamble was placed in solitary confinement for prolonged periods as punishment for refusing to perform assigned work which he was physically unable to perform. The only medical evidence presented to the disciplinary committee was the statement of a medical assistant that he was in first-class condition, when in fact he was suffering not only from the back sprain but from high blood pressure. Prison guards refused to permit him to sleep in the bunk that a doctor had assigned. On at least one occasion a medical prescription was not filled for four days because it was lost by staff personnel. When he suffered chest pains and blackouts while in solitary, he was forced to wait 12 hours to see a doctor because clearance had to be obtained from the warden. His complaint also draws into question the character of the attention he received from the doctors and the inmate nurse in response to his 17 attempts to obtain proper diagnosis and treatment for his condition. However, apart from the medical director who saw him twice, he has not sued any of the individuals who saw him on these occasions. In short, he complains that the system as a whole is inadequate. On the basis of Gamble’s handwritten complaint it is impossible to assess the quality of the medical attention he received. As the Court points out, even if what he alleges is true, the doctors may be guilty of nothing more than negligence or malpractice. On the other hand, it is surely not inconceivable that an overworked, undermanned medical staff in a crowded prison is following the expedient course of" }, { "docid": "17816290", "title": "", "text": "sentenced to a seven-year term of imprisonment. Plaintiffs sentence later was suspended, and plaintiff was required instead to enter a 120-day drug treatment program. Plaintiff was first sent to the Farmington Treatment Center, where Dr. Santiago Hallazgo assigned him to the chronic care clinic and prescribed enough hypertension medication to last thirty days. On June 9, 1995, plaintiff was transferred to the Mineral Area Treatment Center (MATC), where defendants were employed. Deborah Hager, as the Substance Abuse Supervisor, oversaw all operations at MATC, Sergeant Rick Bailey oversaw the custody staff, and Harold Martin was a custody officer. On arrival at MATC, plaintiffs hypertension medication was taken away from him, as per standard procedure. Because MATC does not have its own medical department and has no doctors or nurses on its staff, inmates at MATC obtain all medical care from nearby Potosí Correctional Center (PCC), a maximum security penitentiary. An MATC-inmate cannot directly contact the PCC medical facility or obtain care on a walk-in basis. Rather, when an MATC inmate needs medical care, he is required to fill out a Medical Services Request form (“MSR”) and await notification of an appointment. An MATC inmate also may arrange for medical attention by asking MATC corrections staff to contact the PCC medical department on his behalf. On June 19, 1995, plaintiff submitted an MSR for blood pressure medication to replace the supply that had been confiscated from him when he arrived at MATC. On June 21, 1995, Dr. Pedro Cayabyab from PCC prescribed enough medication to plaintiff to last thirty days. Plaintiff submitted another MSR to refill his prescription when the June 21 prescription began to run out. This time, plaintiff was not contacted about an appointment and did not receive a refill of his medication. Plaintiff filed additional MSRs, but still did not receive a response. According to plaintiff, he repeatedly complained to each of the defendants about the lack of response to his MSRs and his need for the medication. Plaintiff said that he complained to Bailey on three or four occasions, to Martin at least once, and to Hag-er at" }, { "docid": "22279765", "title": "", "text": "979. But the plaintiff declares that, if individual ministration by the chaplain was the established procedure for providing religious opportunities to inmates in Cell Block 2, he was not afforded such individual religious ministration. In fact, at one point in his testimony, he went so far as to state he had not seen a chaplain in the cell block or been visited by one. He later recanted and admitted that chaplains did visit the cell block and that one visited him every time he requested a personal visit of the chaplain. That is as much as he can constitutionally demand. The medical service in the prison, as testified to, was adequate by any standards. Three times each day, two medical technicians visited the cell block to receive any complaints from the inmates and to provide any medication that might be requested or would appear appropriate. If a prisoner had any substantial complaint, though, that fact was reported to the prison medical staff, who would then provide such service as the condition complained of might require. The plaintiff claimed that, despite this program of medical service, he was denied adequate medical attention. The official records in the medical office of the Institution showed, however, that the plaintiff had received some form of medical services on more than forty occasions. The plaintiff conceded he had been relatively free of any sickness during his confinement. He testified to only three occasions when he had required or asked for medical attention. One of those involved the correction of a knee disability which had been with the plaintiff since childhood. An operation to correct this disability was scheduled by the prison orthopedist for the week of the trial in this case but had to be delayed for that reason. On the other occasions, the plaintiff had received satisfactory medical attention. On this record, the District Court found that neither in its treatment of the plaintiff nor in its general medical program had the Institution failed to meet its constitutional obligation for providing adequate medical services. We agree. It is inconceivable that the plaintiff seriously claims" }, { "docid": "10265429", "title": "", "text": "the Oklahoma State Penitentiary. The Defendant has answered the complaint denying the allegations thereof. The Court has conducted an evidentiary hearing. The State of Oklahoma has voluntarily produced the Plaintiff in open Court so that she may testify regarding her complaints. On the evidence presented to the Court, the following findings of fact and conclusions of law and decisions are made herein: (1) The Plaintiff’s complaint of improper medical attention is not supported by the evidence. To the contrary it appears that Plaintiff has received excellent medical care and attention. Plaintiff has been seen numerous times by a qualified medical doctor. Plaintiff’s complaint that she fell injuring her back was attended to by immediate medical observation of the back, then followed by an X-ray which was negative and in connection with said complaint Plaintiff was furnished medication. Plaintiff apparently complained of menstrual cramps but the evidence shows that she received medical attention therefor and was furnished with prescribed medicine. Plaintiff’s complaints that some other inmates appeared to have a rash is not supported by any evidence that the same was infectious. Plaintiff complained of nerves for which she was prescribed and given tranquilizer medicine. Plaintiff’s sickline record was introduced into evidence which disclosed numerous contacts between Plaintiff and prison medical personnel. The evidence further disclosed that Plaintiff was given a complete physical examination upon her entry into the institution and that it was institutional policy which had been followed that all prisoners are given a further physical examination once each year. The Court would observe that this is better than the great majority of people receive on the outside. The Court finds that under the evidence there is absolutely no merit to Plaintiff’s complaint in this respect. The institution is fully meeting the requirements of Coppinger v. Townsend, 398 F.2d 392 (Tenth Cir. 1968) and 51 A.L.R.3d 111 at page 179. Moreover, Plaintiff produced no evidence that the Defendant denied her any needed medical care either directly or by failing to have adequate personnel or facilities. It is the general rule that an official will not be liable in a" }, { "docid": "10265428", "title": "", "text": "MEMORANDUM OPINION DAUGHERTY, Chief Judge. Plaintiff, an inmate in the Oklahoma State Penitentiary, has brought this action under the Civil Rights Act, 42 U.S. C. § 1983, against Defendant Park J. Anderson, former Warden of the Oklahoma State Penitentiary, complaining that acting under color of State law said Defendant deprived Plaintiff of certain of her civil rights in connection with her confinement as a prisoner in the Women’s Ward of said institution. Plaintiff complains that she has not been given proper medical care, that certain of her property has been destroyed in the form of record player and records and certain clothing, that she has been subjected to the use of mace, that she has been subjected to improper treatment by virtue of her race which amounts to racial discrimination; that she has been locked up and not in her pleadings but at trial she testified about not being heard by the Oklahoma Pardon and Parole Board. Plaintiff seeks relief herein in the form of an Order from this Court that she be removed from the Oklahoma State Penitentiary. The Defendant has answered the complaint denying the allegations thereof. The Court has conducted an evidentiary hearing. The State of Oklahoma has voluntarily produced the Plaintiff in open Court so that she may testify regarding her complaints. On the evidence presented to the Court, the following findings of fact and conclusions of law and decisions are made herein: (1) The Plaintiff’s complaint of improper medical attention is not supported by the evidence. To the contrary it appears that Plaintiff has received excellent medical care and attention. Plaintiff has been seen numerous times by a qualified medical doctor. Plaintiff’s complaint that she fell injuring her back was attended to by immediate medical observation of the back, then followed by an X-ray which was negative and in connection with said complaint Plaintiff was furnished medication. Plaintiff apparently complained of menstrual cramps but the evidence shows that she received medical attention therefor and was furnished with prescribed medicine. Plaintiff’s complaints that some other inmates appeared to have a rash is not supported by any" }, { "docid": "1687915", "title": "", "text": "inmates on this issue. Along these same lines, Inmate Jimmy Wayne Miller testified that he had “no complaints” regarding medical care at the Jail. He has seen the doctors “when necessary” and described the nurses as “very professional”. In fact, he testified he was transported to see a “medical specialist on Kingston Pike” after one medical complaint. Likewise, Inmate Jack Floyd Carter testified that he had been transported to a local hospital “several” times and that he had “no complaints” regarding his treatment. Captain Neal also testified that he was not aware of any incident in which an inmate who needed immediate medical attention did not receive the necessary treatment. However, there was credible testimony that medication had occasionally been delivered to the wrong inmate, and that sometimes medical supplies were not timely delivered to the inmates. The court therefore finds that there is presently no serious problem with medical services at the Jail and, once the overcrowding is alleviated, there should be no problem whatsoever. A dentist, Dr. Paul McGowan, is also available for the inmates two and half days a week and, on this schedule, is able to examine eight to ten inmates per week, primarily for toothaches and “grossly decayed teeth”. Eighty to eighty-five percent of the inmates he examines require extractions, root canals and capping. Dr. McGowan further testified that most of the inmates he examines have taken poor care of their teeth and have rarely seen a dentist outside a jail. Therefore, the primary purpose of his dental program is to protect the general health of the inmates. However, some inmates had general complaints regarding the dental care at the Jail. Inmate Charles Miller testified that he had made a request for dental care to the head nurse. In response, he was advised by her that he “needed to get in touch with his parents” because they must pay for it. In this case, Miller testified his parents could not afford it so he did not receive this dental treatment. Nevertheless, his testimony was unclear as to whether this treatment was necessary or just desirable." }, { "docid": "7704480", "title": "", "text": "the inmate is taken to the MED. Inmates who need regular medical attention or medications are housed together on the second floor of the jail facility. One medic is located in the intake area of the facility at all times and conducts a medical screening for each new inmate admitted to the jail. In this way any particular medical needs, such as the need for regular medication, are identified. Recently, medical staff initiated a procedure of sending a medic to the third and fourth floors to see patients on those floors. A temporary office for the medic was established in the supervisor’s office on the floor. This practice assisted in reducing the number of individuals who sought medical care, because an inmate was no longer removed from his floor to get medical attention. Thus, the incentive to seek unnecessary medical attention was eliminated by this procedure. The procedure has temporarily been discontinued, however, because of lack of personnel; when expected additions to the staff report for duty in the near future, it will be resumed. Although proper procedures for providing medical care to inmates exist, on occasion inmates do not receive prompt medical attention. One inmate testified about a delay of weeks before he was treated for sinus problems and an ingrown toenail. Two inmates who were taken to the medical unit after fights, Charles Lee and Robert Broekert, testified that they did not receive prompt medical treatment for their injuries. Although Lee sustained facial fractures and was bleeding from his mouth and nose after being beaten by other inmates, he testified that there was a delay of some six to seven hours before he was taken to the hospital. Broekert was also beaten by other inmates. He testified that there was a delay of several hours before he saw a medic in the jail and that the medic then refused to treat him. Broekert had suffered several broken teeth as a result of the fight, and at the time of trial, some six weeks after the fight, he had not yet seen a dentist for this problem. Jeremiah Triplett," }, { "docid": "23609877", "title": "", "text": "discrimination in assigning inmates to work details, discrimination in providing vocational educational training, or in any other practice or procedure which effectuates disparity in treatment of prisoners because of race. Recognizing that immediate desegregation of all inmate housing facilities cannot be feasibly accomplished, the court directs that defendants, not later than December 20, 1972, shall submit to the court a comprehensive plan for the orderly desegregation of all inmate facilities, including all barracks, camps and other areas of habitation. The plan to be submitted by defendants shall, consistent with prison security, provide for the total elimination of all segregated inmate facilities within 4 months from the date of the submission of said plan, but in no event later than April 20, 1973. No delay in the full implementation of the desegregation plan will be entertained by the court in the absence of imperative reasons. The aforesaid plan shall be filed with the clerk of this court not later than December 20, 1972, and copies thereof concurrently served upon counsel of record for plaintiffs and plaintiff-intervenor. MEDICAL FACILITIES 12. The defendants are commanded and enjoined to meet minimal health care requirements for inmates and civilian personnel at the penitentiary. Specifically, to that end, defendants shall employ, and continue to employ at all times until the further order of this court, such additional medical personnel as necessary so that the prison’s medical staff shall consist of at least 3 full-time physicians, 2 full-time dentists, 2 full-time trained physican assistants, 6 full-time nurses certified as RN or LPN, 1 medical records librarian, and 2 medical clerical personnel. No inmate shall be utilized to fill a position in the above described civilian medical staff; however, nothing herein shall be construed to discourage the utilization of trained and competent inmate personnel to supplement the minimal civilian medical staff necessary for adequate health care. Provided, however, that no inmate personnel shall have access to drugs or medical records of other inmates. Defendants shall also provide that the medical facility at the penitentiary have available on a regular basis the consultant services of a qualified radiologist and" }, { "docid": "2826378", "title": "", "text": "to attend to this task himself. Plaintiff also testified that he has received two suppositories since his return to Lansing, that he has had only two bowel movements in that time; that these occurred in his bed because the prison does not have toilet facilities for paraplegics; and that he has had to lie in stool and urine for up to four hours before he was cleaned. Plaintiff additionally testified that he is provided only one pitcher of water per day, and that his shin bandages were changed only twice in June. According to plaintiff, the only instruction followed by prison personnel is that his catheter has been irrigated on a daily basis. Dr. Redford testified that while at the Med Center plaintiff was trained in the use of a wheelchair with collapsible arms which allowed him to transfer himself from a bed of appropriate height into the chair and back. Plaintiff was also provided an electric, circular bed which alleviated the development or aggravation of bed sores. At the prison, plaintiff does not have a specially constructed wheelchair or bed and is thus unable to transfer himself out of bed. Dr. Redford gave his professional opinion that cleaning around plaintiff’s catheter, changing of his shin bandages, and the stretching of his lower limbs performed only on an infrequent basis would amount to inadequate medical treatment. This doctor, the sole specialist in the field of Physical Medicine and Rehabilitation from which evidence was received, testified that plaintiff needs specific medical care from specially trained individuals. He also testified that doctors at the Med Center could train and instruct the prison medical doctor and staff in the proper care of paraplegics. Two witnesses testified on behalf of defendants as to psychological testing and mental health as well as vocational rehabilitation services available to plaintiff at the penitentiary. Plaintiff presented no evidence to controvert this testimony. Dr. Thomas S. Harvey, Medical Director at the Kansas State Penitentiary, testified that while he cannot attest that plaintiff has received the best medical care available, or even that care prescribed by doctors at the Med" }, { "docid": "22954138", "title": "", "text": "dermatitis with a prescribed medicated shampoo. He requested the prescribed medication, but was given another, ineffective shampoo. When he complained, he was told “you have to use this, this is all we have.” Finally, Boring testified that he had dental problems while at Allegheny County Jail. Dental care was provided by one dentist who visited the jail three times a week. Boring saw this dentist six times. He contends that the dentist only provided him with temporary fillings that kept falling out, rather than with permanent fillings. Eventually, two of the teeth which were filled with temporary fillings had to be extracted. From the evidence a jury could find: (1) that the officials in charge of inmate medical problems at the Allegheny County Jail were informed of two prescribed medical treatments, surgical correction of ulnar nerve neuropathy, and a specific medicated shampoo for seborrhea dermatitis; (2) that no reason related to jail security or to Boring’s availability for trial would have prevented these treatments; (3) that the treatments were knowingly withheld; and (4) that Boring suffered unnecessary pain and some permanent injury as a result. There is no evidence that the prescribed treatments were medically inappropriate. Indeed, Dr. Johnson’s testimony suggests the contrary. The evidence with respect to Boring’s complaints about dental care is different in one important respect. While there is record evidence that a medical treatment for his ulnar nerve problem and for his seborrhea dermatitis had been prescribed by competent medical authorities, there is no evidence that any dentist ever prescribed any course of treatment other than the series of temporary fillings which were furnished. B. Perry Perry suffers from migraine headaches. He became a pretrial detainee at Allegheny County Jail after having been arrested as a parole violator. Perry had previously been incarcerated at Western Penitentiary, where he suffered migraine attacks. Doctors there prescribed a medication and a special diet, low sodium, and no milk, which afforded relief. When he experienced a migraine attack at Allegheny County Jail he informed the medical officials of the previously prescribed medication and the special diet. The physicians in charge" }, { "docid": "13228103", "title": "", "text": "fail to provide adequate medical care for the inmates. The medical staff and facilities which are located at the main penitentiary at McAlester are relied upon to diagnose and treat the medical, dental and psychiatric problems of inmates throughout the penitentiary system. Prior to the riot of July 27, 1973, the on-site medical staff, facilities, equipment and procedures at the Penitentiary are systemieally incapable of meeting the routine or emergency health care needs of the inmate population. This facility and the equipment and records it contained were destroyed during the riot. A temporary hospital ward has been established in a former eellhouse and the security Captain’s office is now used as an examination room. Portions of the medical research facility adjacent to the penitentiary have also been converted to use as an examination area for trustees. It is obvious, however, that those inadequacies in plant and equipment which existed prior to the riot were aggravated by the riot and that no effective solution has been formulated. Professional dental care was supplied to the entire population by a series of part time dentists until July of 1973. Though a full time dentist was hired at that time, no trained civilian support personnel have been hired to assist him. This level of dental staffing is unable to meet the routine dental care needs of the population intended to be served. Indeed, even if there were two dentists and they were provided minimal para-dental support, they could still only be expected to treat 50 percent of the dental pathology involved. Though approximately one half of the average in-patient population at the penitentiary is hospitalized for psychiatric reasons, there is no professional psychiatric staff available for treatment on a regular basis. A visiting psychiatrist makes weekly visits pursuant to an informal agreement, but he has not assumed responsibility for the care of these patients. The only “treatment” available at the penitentiary consists of temporary relief from “distress” through sedation. The professional medical staff available to the inmate male population at the time of trial consisted of one fully licensed, part-time M.D., serving as chief" }, { "docid": "23609878", "title": "", "text": "MEDICAL FACILITIES 12. The defendants are commanded and enjoined to meet minimal health care requirements for inmates and civilian personnel at the penitentiary. Specifically, to that end, defendants shall employ, and continue to employ at all times until the further order of this court, such additional medical personnel as necessary so that the prison’s medical staff shall consist of at least 3 full-time physicians, 2 full-time dentists, 2 full-time trained physican assistants, 6 full-time nurses certified as RN or LPN, 1 medical records librarian, and 2 medical clerical personnel. No inmate shall be utilized to fill a position in the above described civilian medical staff; however, nothing herein shall be construed to discourage the utilization of trained and competent inmate personnel to supplement the minimal civilian medical staff necessary for adequate health care. Provided, however, that no inmate personnel shall have access to drugs or medical records of other inmates. Defendants shall also provide that the medical facility at the penitentiary have available on a regular basis the consultant services of a qualified radiologist and pharmacist. Defendants shall use their best efforts to comply with the general standards of the American Correctional Association relating to medical services for prisoners. Defendants are further directed to take all steps necessary to have the prison hospital and equipment brought into compliance with state licensing requirements for a hospital and infirmary, including adequate housing and treatment for tubercular patients and the chronically ill needing convalescent care. No inmate shall be required to waive any right or privilege as a prerequisite to seeking medical attention, nor shall he be punished unless the Superintendent makes an express finding that a particular inmate seeks medical care unnecessarily and for malingering purposes. CLASSIFICATION AND ASSIGNMENT OF INMATES 13. Defendants also shall, not later than December 20, 1972, file with the court a proposed program for the classification and assignment of all inmates taking into account special circumstances, viz: (a) The necessity for the early desegregation of the penitentiary; (b) The necessity of alterations and additions to existing facilities to provide adequate inmate protection; (c) The interest of the" } ]
503410
Circuit, a 25 percent award is the “benchmark” amount of attorneys’ fees, but courts may adjust this figure upwards or downwards if the record shows “ ‘special circumstances’ justifying a departure.” Id. (quoting Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990)). When deciding if a departure from the 25 percent benchmark is appropriate, courts may consider “the result achieved, the risk involved in the litigation, the skill required and quality of work by counsel, the contingent nature of the fee, awards made in similar cases, and the lodestar crosscheck.” Nwabueze v. AT & T Inc., Civ. No. 09-1529 SI, 2013 WL 6199596, at *10 (N.D.Cal. Nov. 27, 2013) (“Nwabueze I ”); see also REDACTED (2) the effort expended by counsel; (3) counsel’s experience; (4) counsel’s skill; (5) the complexity of the issues; (6) the risks of non-payment assumed by counsel; (7) the reaction of the class; and (8) comparison with counsel’s loadstar”). In contrast to the benchmark method, determining the lodestar amount is “often more time-consuming[.]” Bluetooth, 654 F.3d at 942. Plaintiffs bring various state law claims, and under California law “[t]he primary method for establishing the amount of reasonable attorney fees is the lodestar method.” In re Vitamin Cases, 110 Cal.App. 4th 1041, 1053, 2 Cal.Rptr.3d 358 (2003) (internal quotation marks and
[ { "docid": "3328265", "title": "", "text": "100 S.Ct. 745, 62 L.Ed.2d 676 (1980). The fee awarded must be “reasonable under the circumstances.” Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990). This is reiterated by the PSLRA: “Total attorneys’ fees and expenses awarded by the court to counsel for the plaintiff class shall not exceed a reasonable percentage of the amount of damages and prejudgment interest actually paid to the class.” 15 U.S.C. § 77z-1(a)(6), § 78u-4(a)(6). At its discretion, the court may award fees under the lodestar method or percentage of the fund method. See In re Washington Public Power Supply Sys. Lit., 19 F.3d 1291, 1297 (9th Cir.1994). Regardless of which method is employed, however, the court must ensure the reasonableness of the fee award and must “assume the role of fiduciary for the class of plaintiffs” since “the relationship between plaintiffs and their attorneys turns adversarial at the fee setting stage.” Id. at 1302. The lodestar method requires the court to multiply the “number of hours reasonably expended by a reasonable hourly rate.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.1998). That figure, the lodestar, may then be “adjusted upward or downward to account for several factors including the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment.” Id. The percentage of the fund method requires the court to award counsel a certain percentage of the settlement. The percentage is to be set by the court with reference to the Ninth Circuit’s “benchmark” of 25 percent. See Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989); Torrisi v. Tucson Electric Power Co., 8 F.3d 1370, 1376 (9th Cir.1993). The benchmark can be adjusted upward or downward but such an adjustment “must be accompanied by a reasonable explanation of why the benchmark is unreasonable under the circumstances.” Graulty, 886 F.2d at 273. Factors relevant to an adjustment include the quality of counsel, the benefits obtained for the class, the complexity of the issues, and the risk of nonpayment. See In re Oracle Secs. Lit., 852" } ]
[ { "docid": "23278917", "title": "", "text": "amount of fees that is reasonable in relation to the results obtained.” Hensley, 461 U.S. at 436, 440, 103 S.Ct. 1933. Where a settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the percentage-of-recovery method. In re Mercury Interactive Corp., 618 F.3d 988, 992 (9th Cir.2010) (citing Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir.2000)). Because the benefit to the class is easily quantified in common-fund settlements, we have allowed courts to award attorneys a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar. Applying this calculation method, courts typically calculate 25% of the fund as the “benchmark” for a reasonable fee award, providing adequate explanation in the record of any “special circumstances” justifying a departure. Six (6) Mexican Workers v. Aria. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990); accord Powers, 229 F.3d at 1256-57; Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). Though courts have discretion to choose which calculation method they use, their discretion must be exercised so as to achieve a reasonable result. See In re Coordinated Pretrial Proceedings, 109 F.3d 602, 607 (9th Cir.1997) (citing In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1294-95 n. 2 (9th Cir.1994)). Thus, for example, where awarding 25% of a “megafund” would yield windfall profits for class counsel in light of the hours spent on the case, courts should adjust the benchmark percentage or employ the lodestar method instead. Six Mexican Work ers, 904 F.2d at 1311; see In re Prudential Ins. Co. America Sales Practice Litig. Agent Actions, 148 F.3d 283, 339 (3d Cir. 1998) (explaining that basis for inverse relationship between size of fund and percentage awarded for fees is that “in many instances the increase in recovery is merely a factor of the size of the class and has no direct relationship to the efforts of counsel” (internal quotation marks omitted)). B. Approval of the Attorneys’ Fee Award in the Present Case The district court" }, { "docid": "419371", "title": "", "text": "the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975). However, the Court has since determined that the fixed or continent nature of a fee and the “desirability” of a case are no longer relevant factors. Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087, 1095, n. 5 (9th Cir.2011) (citing Davis v. City of San Francisco, 976 F.2d 1536, 1546 n. 4 (9th Cir.1992)). B. Percentage from the common fund As the name suggests, under this method, “the court makes a fee award on the basis of some percentage of the common fund.” Florida, 915 F.2d at 545 n. 3. In the Ninth Circuit, the typical range of acceptable attorneys’ fees is 20% to 30% of the total settlement value, with 25% considered the benchmark. See, Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002); Hanlon, 150 F.3d at 1029 (observing “[t]his circuit has established 25 % of the common fund as a benchmark award for attorney fees”). The percentage may be adjusted below or above the benchmark, but the Court’s reasons for adjustment must be clear. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). When assessing whether the percentage requested is reasonable, courts may consider a number of factors, including “(1) the results obtained for the class; (2) the risk undertaken by counsel; (3) the complexity of the legal and factual issues; (4) the length of the professional relationship with the client; (5) the market rate; and (6) awards in similar’ cases.” Romero v. Producers Dairy Foods, Inc., 2007 WL 3492841, at *3, 2007 U.S. Dist. LEXIS 86270, at *8-9 (E.D.Cal. Nov. 14, 2007) (citing Vizcaino, 290 F.3d at 1048-1050; Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990)). II. Evaluation of the fees requested Class Counsel requests the Court determine the reasonableness of the fee award by using the percentage of the common fund rather than the lodestar method. “The district court has discretion to use the lodestar method or the" }, { "docid": "5147610", "title": "", "text": "explain the necessity for these expenditures, particularly in light of the relative brevity of the case, the fact that only two uncontested motions were brought in this case, and the fact that Brooktree, lead counsel Milberg Weiss, associated counsel Finkelstein & Associates, and class counsel’s primary expert, Princeton Venture Research, Inc., are all located in San Diego, California. Thus, the court had no meaningful way to assess the reasonableness of the claimed expenses and fees, and granted class counsel leave to submit further breakdowns of, and explanations for, their expenses. After reviewing associated counsel Finkelstein & Associates’ cost breakdowns, the court granted Finkelstein & Associates’ request for reimbursement of expenses. II. Discussion A. Legal Standard The district court has discretion to use either the percentage-of-the-fund method or the lodestar/multiplier method in calculating fee awards in common fund cases. In re Washington Pub. Power Supply Sys. Litig., 19 F.3d 1291, 1295 (9th Cir.1994). In common fund cases in the Ninth Circuit, “[n]o presumption in favor of either the percentage or the lodestar method encumbers the district court’s discretion to choose one or the other.” Id. The choice between lodestar and percentage calculation depends upon the circumstances of the case. Id. at 1296 (citing Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990)). “As always, when determining attorneys’ fees, the district court should be guided by the fundamental principle that fee awards out of common funds be ‘reasonable under the circumstances.’” Id. (quoting Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990)). In cases where the district court elects the percentage-of-the-fund method, the Ninth Circuit has set 25% as the “bench mark” for common fund fee awards. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). The “bench mark” amount “can then be adjusted upward or downward to account for any unusual circumstances involved,” although the district court must make a clear record justifying any upward or downward departures. Id. Courts cannot rationally apply any percentage in the abstract, without reference to all the circumstances of the case before it. Washington Pub. Power, 19" }, { "docid": "14248414", "title": "", "text": "the net settlement fund payable to the class. See Settlement Agreement ¶¶ 2.1(a), (b). Consequently, the settlement displays none of the Bluetooth signs suggesting a collusive agreement. Accordingly, this factor along with the eight Churchill factors, weighs in favor of finally approving the settlement. IV. ATTORNEYS FEES, COSTS AND INCENTIVE AWARDS The attorneys’ award must be reasonable, even if the parties have already agreed to an amount. In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir.2011). Courts have discretion to award attorneys’ fees to a prevailing plaintiff if: “(1) fee-shifting is expressly authorized by the governing statute; (2) the opponents acted in bad faith or willfully violated a court order; or (3) the successful litigants have created a common fund for recovery or extended a substantial benefit to a class.” Id. “Where a settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the pereentage-ofrecovery method.” Id. at 942. The former method is routinely used when “the relief sought, and obtained, is often primarily injunctive in nature and thus not easily monetized.” Id. The figure is calculated “by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.” Id. The court can “adjust [the figure] upward or downward by an appropriate positive or negative multiplier reflecting a host of ‘reasonableness’ factors, including the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment.” Id. at 941-42. “Foremost among these considerations, however, is the benefit obtained for the class.” Id. at 942. Under the latter method, the court awards as fees a percentage of the common fund in lieu of the lodestar amount. Id “[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any ‘special circumstances’ justifying a departure.” Id. Relevant factors to a determination of the" }, { "docid": "23101351", "title": "", "text": "billion claim against SCE was not such an asset. That claim was eventually settled for $40 million, but by then the settlement had been concluded and approved by the court. In addition to Tucson’s financial condition, other factors point to the conclusion that the settlement was fair. The inherent risks of litigation, the class’ overwhelming positive reaction, the opinion of two sets of experienced counsel, and the cost, complexity and time of fully litigating the case all suggest that this settlement was fair. We conclude that the district court did not abuse its discretion in approving the settlement. Ill Class Counsel’s Attorney Fees We review the award of attorney fees for abuse of discretion. Drucker v. O’Brien’s Moving & Storage, Inc., 963 F.2d 1171, 1172 (9th Cir.1992). In common fund cases such as this, we have established 25% of the common fund as the “benchmark” award for attorney fees. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). This “benchmark percentage should be adjusted, or replaced by a lodestar calculation, when special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted to the case or other relevant factors.” Six Mexican Workers, 904 F.2d at 1311. There are no special circumstances here which indicate that the 25% benchmark award is either too small or too large. The hours class counsel devoted to the case, when computed as a lodestar amount, total $3 million. Class counsel, however, have the case on a contingency. Moreover, it is a double contingency; first, they must prevail on the class claims, and then they must find some way to collect what they win. Class counsel was committed to carrying the case through the conclusion of litigation by trial and appeal, if that would be in the best interests of the class. The district court determined it would not be. It determined that it was in the best interests of the class to settle the case for the $30" }, { "docid": "15634973", "title": "", "text": "marks and citation omitted). Courts traditionally have employed two methods to calculate reasonable attorneys’ fees in class action litigation: (1) the percentage of the fund approach, and (2) the lodestar approach. The percentage of fund approach assigns a proportion of the common settlement fund toward payment of attorneys’ fees. The lodestar approach calculates the total amount of fees billed by multiplying the number of hours expended by counsel by a reasonable hourly rate. The lodestar is typically enhanced by an appropriate multiplier which accounts for a number of factors unique to the case, including the contingent nature of success and the quality of counsel’s work. While this Court has the discretion to choose between either method, the prevailing trend in the Second Circuit is the percentage method because it “directly aligns the interests of the class and its counsel and provides a powerful incentive for the efficient prosecution and early resolution of litigation.” In re WorldCom, Inc. ERISA Litig., No. 02-cv-4816 (DLC), 2005 WL 3101769, at *7 (S.D.N.Y. Nov. 21, 2005). However, the lodestar approach provides an effective “crosscheck on the reasonableness of the requested percentage.” Goldberger, 209 F.3d at 50 (2d Cir. 2000). Under the percentage of fund method, the Court considers the six Goldberger factors: (1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations. Goldberger, 209 F.3d at 50. There is no “one-size-fits-all ‘benchmark’ in determining the appropriate fee” — in fact, courts should avoid that practice because it “ ‘could easily lead to routine windfalls where the recovered fund runs into the multi-millions.’ ” In re Visa Check/Mastermoney Antitrust Litig., 297 F.Supp.2d 503, 521 (E.D.N.Y, 2003) (quoting Nasdaq, 187 F.R.D. at 486). Further, in mega-fund settlements totaling more than $100 million, courts have “traditionally accounted for these economies of scale by awarding fees in the lower ranges.” Goldberger, 209 F.3d at 52. 1. Time and Labor Expended by Counsel The time and labor expended by Counsel" }, { "docid": "14248415", "title": "", "text": "and obtained, is often primarily injunctive in nature and thus not easily monetized.” Id. The figure is calculated “by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.” Id. The court can “adjust [the figure] upward or downward by an appropriate positive or negative multiplier reflecting a host of ‘reasonableness’ factors, including the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment.” Id. at 941-42. “Foremost among these considerations, however, is the benefit obtained for the class.” Id. at 942. Under the latter method, the court awards as fees a percentage of the common fund in lieu of the lodestar amount. Id “[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any ‘special circumstances’ justifying a departure.” Id. Relevant factors to a determination of the percentage ultimately awarded include: “(1) the results achieved; (2) the risk of litigation; (3) the skill required and quality of work; (4) the contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made in similar cases,” Tarlecki v. bebe Stores, Inc., No. C 05-1777 MHP, 2009 WL 3720872, at *4 (N.D.Cal. Nov. 3, 2009). “Though courts have discretion to choose which calculation method they use, their discretion must be exercised so as to achieve a reasonable result.” Id. A. Percentage of the Fund Plaintiffs’ counsel negotiated a $6.4 million Settlement Fund. See Dkt. No. 134 at 2. Plaintiffs’ counsel seeks a fee award of $1,600,000, which is equal to 25% of the Settlement Fund. See id Plaintiffs’ counsel argues that the case presented novel and complex questions and that he faced a substantial risk of non-payment because he took the case on a contingency basis. See id. at 14-15. In addition, counsel contends that the benefit to the class is substantial and points out that the award requested" }, { "docid": "14248417", "title": "", "text": "is consistent with that awarded in other similar eases. See id. at 12-13. Specifically, that class members will receive 50% of the fees associated with the first renewal of every GTC Listing ever placed during the 4-year class period. See id. Finally, counsel argues that he worked diligently to keep costs low; for example, obtained competing bids from various potential administrators to find a competent and cost-effective administrator to minimize the expense of administration. See id. Having considered the relevant factors, the Court agrees with Plaintiffs’ counsel that this action posed a substantial risk and required significant time and skill to obtain a result for the class. Moreover, counsel’s request is not disproportionate to the class benefit and is comparable to awards approved in other similar internet privacy class actions, including two previously approved by this Court. See In re Netflix Privacy Litig., 2013 WL 1120801, at *9-10 (approving benchmark award of $2.25 million); see also In re Google Referrer Header Privacy Litig., 87 F.Supp.3d 1122, 1135-37 (N.D.Cal.2015) (approving a benchmark fee amounting to 25% of the settlement fund). Accordingly, a benchmark fee award of amounting to 25% of the settlement fund is appropriate. B. Lodestar Comparison The Ninth Circuit encourages district courts “to guard against an unreasonable result” by cross-cheeking attorneys’ fees calculations against a second method. In re Bluetooth, 654 F.3d at 944. Since a 25% benchmark award might be reasonable in some eases but arbitrary in eases involving an extremely large settlement fund, the purpose of the comparison is to ensure counsel is not overeompensated. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 607 (9th Cir. 1997). Here, Plaintiffs’ counsel calculates a lodestar figure of over $1,035,000 for 2600 hours, to which they apply a 1.6 multiplier. See Verges Decl. ¶ 7. They also seek $72,923.16, in reimbursement of all out of pocket expenses incurred through final administration of the settlement. See Dkt. No. 134 at 2. This represents an overall average billing rate of $397 per hour and a maximum partner level rate of $450 per hour; associate $315 per hour;" }, { "docid": "419372", "title": "", "text": "fees”). The percentage may be adjusted below or above the benchmark, but the Court’s reasons for adjustment must be clear. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). When assessing whether the percentage requested is reasonable, courts may consider a number of factors, including “(1) the results obtained for the class; (2) the risk undertaken by counsel; (3) the complexity of the legal and factual issues; (4) the length of the professional relationship with the client; (5) the market rate; and (6) awards in similar’ cases.” Romero v. Producers Dairy Foods, Inc., 2007 WL 3492841, at *3, 2007 U.S. Dist. LEXIS 86270, at *8-9 (E.D.Cal. Nov. 14, 2007) (citing Vizcaino, 290 F.3d at 1048-1050; Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990)). II. Evaluation of the fees requested Class Counsel requests the Court determine the reasonableness of the fee award by using the percentage of the common fund rather than the lodestar method. “The district court has discretion to use the lodestar method or the percentage of the fund method in common fund cases.” Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir.2000) (quoting In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 607 (9th Cir.1997)). Notably, the Court must consider similar factors under either method. See Kerr, 526 F.2d at 70; Vizcaino, 290 F.3d at 1048-1050. Further, the Court may “applfy] the lodestar method as a crosscheck” to determine wheth er the percentage requested is reasonable. Vizcaino, 290 F.3d at 1050, n. 5. A. Time and labor required Class Counsel provided a list of each attorney who worked on this action, the number of hours, and the rate billed by each through the date of filing their motion for an award of fees. (See Sutton Decl. ¶ 7, Doc. 39 at 3-4.) The time records provided by Class Counsel indicate the attorneys and their assistants spent 457.85 hours on tasks related to this action, with attorney time totaling 449.85 hours. (See Doc. 38 at 16-17; Doc. 39 at 51.) Further, Class Counsel reported that they" }, { "docid": "21798201", "title": "", "text": "904 F.2d at 1311. When considering whether to depart from the 25% benchmark, courts consider a number of factors, including whether class counsel “‘achieved exceptional results for the class,’ whether the case was risky for class counsel, whether counsel’s performance ‘generated benefits beyond the cash settlement fund,’ the market rate for the particular field of law (in some circumstances), the burdens class counsel experienced while litigating the case (e.g., cost, duration, foregoing other work), and whether the case was handled on a contingency basis.” In re Online DVD-Rental Antitrust Litig,, 779 F.3d 934, 954-55 (9th Cir. 2015) (quoting Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-50 (9th Cir. 2002)). “[T]he most critical factor [in determining appropriate attorneys’ fee awards] is the degree of success obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed,2d 40 (1983). Comparing a percentage fee award to the lodestar “provides a check on the reasonableness of the percentage award.” Vizcaino, 290 F.3d at 1050. Percentage awards in the range of one to four times the lodestar are common. Id. at 1051 n.6 (finding a range of 0.6 to 19.6 in a survey of 24 cases, with 83% in the range of 1.0 to 4.0 and 54% in the 1.5 to 3.0 range, and citing In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 341 (3d Cir. 1998) (“Multiples ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied.” (quoting 3 Newberg § 14.03 at 14-15))). “[W]here awarding 25% of a ‘megafund’ would yield windfall profits for class counsel in light of the hours spent on the case, courts should adjust the benchmark percentage or employ the lodestar method instead.” In re Bluetooth, 654 F.3d at 942. 1. Amount of Common Fund The parties dispute the amount that should be used as the basis for calculating a percentage fee award. Plaintiffs believe that the fee award “should be based on the totality of funds made available for the benefit of the class, regardless of whether class members file claims.” ECF" }, { "docid": "23278916", "title": "", "text": "“presumptively reasonable,” Cunningham v. Cnty. of Los Angeles, 879 F.2d 481, 488 (9th Cir.1988), the court may adjust it upward or downward by an appropriate positive or negative multiplier reflecting a host of “reasonableness” factors, “including the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment,” Hanlon, 150 F.3d at 1029 (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975) ). Foremost among these considerations, however, is the benefit obtained for the class. See Hensley v. Eckerhart, 461 U.S. 424, 434-36, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.2009) (ultimate reasonableness of the fee “is determined primarily by reference to the level of success achieved by the plaintiff”). Thus, where the plaintiff has achieved “only limited success,” counting all hours expended on the litigation — even those reasonably spent — may produce an “excessive amount,” and the Supreme Court has instructed district courts to instead “award only that amount of fees that is reasonable in relation to the results obtained.” Hensley, 461 U.S. at 436, 440, 103 S.Ct. 1933. Where a settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the percentage-of-recovery method. In re Mercury Interactive Corp., 618 F.3d 988, 992 (9th Cir.2010) (citing Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir.2000)). Because the benefit to the class is easily quantified in common-fund settlements, we have allowed courts to award attorneys a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar. Applying this calculation method, courts typically calculate 25% of the fund as the “benchmark” for a reasonable fee award, providing adequate explanation in the record of any “special circumstances” justifying a departure. Six (6) Mexican Workers v. Aria. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990); accord Powers, 229 F.3d at 1256-57; Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). Though courts have discretion" }, { "docid": "21798199", "title": "", "text": "travel. The Court has already found unreasonable the time claimed by Ms. Spanier and Mr. Sinclair for the December 10, 2015 motion hearing, and by Mr. White and Mr. Sinclair for the May 25, 20Í6 mediation, and the Court therefore does not award related travel expenses. These expenses total $7,480.47. ECF No. 164-1 at 46-47, 49 (Spanier); ECF No. 164-3 at 4, 10, 13, 17 (White); ECF No. 164-4 at 67-69, 76-80 (Sinclair). In addition, Mr. Sinclair flew first or business class on two other trips, ECF No.. 179 ¶ 2, and those expenses, totaling $3,225.30, will also be disallowed as unreasonable. ECF No. 164-4 at 70-71, 81-84. As a result, Plaintiffs’ award of costs is reduced by $10,705.77. In sum, the Court reduces Plaintiffs’ requested award of costs from $372,841.39 to $348,153.57. This includes the settlement administrator’s estimated $29,000 in costs through the initial distribution, ECF No. 164-5 ¶ 4, so the actual amount of costs paid by Defendants may vary. B. Common Fund Plaintiffs in this case request an additional fee award out of the common fund. “Where a settlement produces a common fund- for the benefit of the entire class,” as here, “courts have discretion to employ either the' lodestar method or the percentage-of-recovery method” to determine the reasonableness of attorneys’ fees. In re Bluetooth, 654 F.3d at 942. “Because the benefit to the class is easily quantified in common-fund settlements,” the Ninth Circuit permits district courts “to award attorneys, a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar.” Id. “Applying this calculation method, courts [in the Ninth Circuit] typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any ‘special, circumstances’ justifying a departure.” Id. (citing Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)). However, the benchmark should be adjusted when the percentage recovery would be “either too small or too large in light of the hours devoted to the case or other relevant factors.” Six (6) Mexican Workers," }, { "docid": "5147611", "title": "", "text": "court’s discretion to choose one or the other.” Id. The choice between lodestar and percentage calculation depends upon the circumstances of the case. Id. at 1296 (citing Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990)). “As always, when determining attorneys’ fees, the district court should be guided by the fundamental principle that fee awards out of common funds be ‘reasonable under the circumstances.’” Id. (quoting Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990)). In cases where the district court elects the percentage-of-the-fund method, the Ninth Circuit has set 25% as the “bench mark” for common fund fee awards. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). The “bench mark” amount “can then be adjusted upward or downward to account for any unusual circumstances involved,” although the district court must make a clear record justifying any upward or downward departures. Id. Courts cannot rationally apply any percentage in the abstract, without reference to all the circumstances of the case before it. Washington Pub. Power, 19 F.3d at 1298. Finally, “[bjecause in common fund cases the relationship between plaintiffs and their attorneys turns adversarial at the fee-setting stage, courts have stressed that when awarding attorneys’ fees from a common fund, the district court must assume the role of fiduciary for the class plaintiffs.” Id. at 1302. B. Method of Fee Calculation Class counsel argues that the court should elect to apply the percentage-of-the-fund method of fee calculation rather than the lodestar/multiplier method in this ease because of the “efficiency and rapidity with which the litigation was resolved.” Supp. Mem. at 4. Class counsel asserts that the lodestar/multiplier method emphasizes the accumulation of hours, promotes inefficiency and delay in the resolution of eases, and rewards attorneys for protracted motion practice. In sum, class counsel contends that the percentage-of-the-fund method aligns the interests of class counsel and the class, rather than rewarding attorneys for hours spent on cases, as the lodestar method does. The court agrees with class counsel. The percentage-of-the-fund method avoids many of the conflicts of interest the lodestar method can" }, { "docid": "20450418", "title": "", "text": "of fees. See Hensley, 461 U.S. at 440, 103 S.Ct. 1933; In re Bluetooth, 654 F.3d at 941 (citing Staton, 327 F.3d at 963-64). To meet this obligation, our case law specifies, the fairness of the lodestar amount should be gauged against the overall class recovery, see In re Bluetooth, 654 F.3d at 942, adjusting the lodestar fees upward or downward as necessary to ensure their reasonableness, see Hanlon, 150 F.3d at 1029; see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975) (enumerating factors that bear on whether a court should deviate from the lodestar figure). In doing so, the district court must weigh the requested lodestar figure against a variety of factors, foremost among them the results obtained for the class, monetary and non-monetary alike. See Hensley, 461 U.S. at 434-36, 103 S.Ct. 1933; McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.2009). In settled cases involving constructive common funds, we have encouraged district courts to review the reasonableness of lodestar fees by cross-checking the lodestar calculations against a percentage fee, thereby “guard[ing] against an unreasonable result” and “assurfing] that counsel’s fee does not dwarf class recovery.” In re Bluetooth, 654 F.3d at 944-45 (citations and internal quotation marks omitted). “If the lodestar amount overcompensates the attorneys according to the 25% benchmark standard, then a second look to evaluate the reasonableness of the hours worked and rates claimed is appropriate.” In re Coordinated Pretrial Proceedings in Petrol. Prods. Antitrust Litig., 109 F.3d 602, 607 (9th Cir.1997). Notably, our cases do not suggest that the fee award must be equally justifiable under both the lodestar and the percentage methods, or that the percentage method, when used as a cross-check, must be precise. For example, in Torrisi v. Tucson Electric Power Company, 8 F.3d 1370, 1376-77 (9th Cir.1993), we upheld as reasonable a percentage fee award of nearly $8 million, although the lodestar amount came to only $3 million. An equal justification requirement would defeat the purpose of-affording district courts the choice to employ one method when the other is impracticable, such as when" }, { "docid": "17851144", "title": "", "text": "Counsel seeks then' current lodestar amount of $453,663.50 with an upward multiplied of 3.157, totaling $1,432,275. Pursuant to the Settlement Agreement, Defendant has agreed not to oppose an attorneys’ fees award not to exceed 25% of the Settlement Fund. However, the Ninth Circuit has made clear that “a defendant’s advance agreement not to object cannot relieve the district court of its duty to assess fully the reasonableness of the fee .request.” In re Bluetooth, 654 F.3d at 943. The court explained the reasoning for this as follows: Ordinarily, a defendant is interested only in disposing of the total claim asserted against it, and the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense. A district court therefore must ensure that both the amount and mode of payment of attorneys’ fees are fair, regardless of whether the attorneys’ fees come from,a common fund or are otherwise paid. Id (internal citations and quotations marks omitted). Thus, the fact that Defendant does not oppose the fees requested has little bearing on the Court’s determination of whether the. requested fees are reasonable. Because this Settlement has produced a common fund for the benefit of the entire class, the Court elects to award fees under the percentage-of-recovery method. See In re Bluetooth, 654 F.3d at 942; see also Hanlon, 150 F.3d at 1029 (“In ‘common-fund’ cases where the settlement or award creates a large fund for distribution to the class, the district court has discretion to use either a percentage or lodestar method.”). Plaintiff contends the requested fee award of at least 16.9% of the common fund is reasonable and highlights the fact that 25% is the Ninth Circuit’s benchmark percentage. It is well established that 25% of the gross settlement amount is the benchmark in the Ninth Circuit for attorneys’ fees awarded under the. percentage method. See, e.g., Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990); Vizcaino, 290 F.3d at 1047. However, it is equally well established that “[t]he 25% benchmark rate, although a starting point for analysis, may" }, { "docid": "17851145", "title": "", "text": "bearing on the Court’s determination of whether the. requested fees are reasonable. Because this Settlement has produced a common fund for the benefit of the entire class, the Court elects to award fees under the percentage-of-recovery method. See In re Bluetooth, 654 F.3d at 942; see also Hanlon, 150 F.3d at 1029 (“In ‘common-fund’ cases where the settlement or award creates a large fund for distribution to the class, the district court has discretion to use either a percentage or lodestar method.”). Plaintiff contends the requested fee award of at least 16.9% of the common fund is reasonable and highlights the fact that 25% is the Ninth Circuit’s benchmark percentage. It is well established that 25% of the gross settlement amount is the benchmark in the Ninth Circuit for attorneys’ fees awarded under the. percentage method. See, e.g., Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990); Vizcaino, 290 F.3d at 1047. However, it is equally well established that “[t]he 25% benchmark rate, although a starting point for analysis, may be inappropriate in some cases.” Id at 1048. Accordingly, “[t]he benchmark percentage should be adjusted, or replaced by a lodestar calculation, when special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted to the case or other relevant factors.” Six (6) Mexican Workers, 904 F.2d at 1311. “Selection of the benchmark or any other rate must be supported by findings that take into account all of the circumstances of the case.” Vizcaino, 290 F.3d at 1048. “The question is not whether the district court should have applied some other percentage, but whether in arriving at its percentage it considered all the circumstances of the case and reached a reasonable percentage.” Id To determine the reasonableness of the requested fees, the Court considers the factors set forth above. First, the Court considers the results achieved for the Class Members. See In re Bluetooth, 654 F.3d at 942 (“Foremost among these considerations, however, is the benefit obtained for the class.”), Here,, the Settlement provides monetary damages" }, { "docid": "9620267", "title": "", "text": "lodestar method encumbers the district court’s discretion to choose one or the other.” In re Wash. Pub. Power Supply Sys. See. Litig., 19 F.3d 1291, 1296 (9th Cir.1994). “As always, when determining attorneys’ fees”, the district court should be guided by the fundamental principle that fee awards out of common funds be “reasonable under the circumstances.” Id. (citing State of Fla. v. Dunne, 915 F.2d 542, 545 (9th Cir.1990)). The Court of Appeals for the Ninth Circuit has “established a 25 percent ‘benchmark’ in percentage-of-the-fund cases that can be ‘adjusted upward or downward to account for any unusual circumstances involved in [the] case.’ ” Fischel v. Equitable Life Assur. Society of U.S., 307 F.3d 997, 1006 (9th Cir.2002) (quoting Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989)). The Ninth Circuit has repeatedly affirmed the district court’s employment of the percentage method. See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002); Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990). Accordingly, the Court FINDS that attorneys’ fees in the form of a percentage of the total award is reasonable. The Court now turns to whether 25% is reasonable under the circumstances of this case. B. Circumstances of This Case Favors a 25% Benchmark Rate “The 25% benchmark rate, although a starting point for analysis, may be inappropriate in some cases.” Vizcaino, 290 F.3d at 1048. The determination of the reasonableness of an award must be “supported by findings that take into account all of the circumstances of the case.” See id. For the reasons discussed below, the Court FINDS that an attorneys’ fee award of 25% of the settlement fund is appropriate in this case. First, the Class counsel has achieved a favorable recovery for Class Members. Favorable results are a relevant circumstance. See Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d at 1311 (noting that counsel “obtained substantial success”). Although Class counsel admits that a $10 million award only represents approximately 12% of the maximum provable damages assuming complete success, the Court notes that counsel" }, { "docid": "11374831", "title": "", "text": "is reasonable under the circumstances. Id. at 1296; Florida v. Dunne, 915 F.2d 542, 545 (9th Cir.1990). The decision of which method to employ is within the sound discretion of the district court. See In re Washington Public Power, 19 F.3d at 1296 (“in common fund cases, no presumption in favor of either the percentage or the lodestar method encumbers the district court’s discretion to choose one or the other”). Here, the Court will employ both methods to arrive at a reasonable fee under the circumstances. First, the Court will calculate a rough estimate of an appropriate fee by employing the percentage of the fund method. Thereafter, the Court will use the lodestar method to verify that the awarded fee is equitable. 1. The Percentage of the Fund Method Under the percentage of the fund method, the Court simply awards class counsel a certain portion of the fund as compensation for their efforts. In setting a common fund fee, the court’s role is essentially to take the place of the face-to-face negotiations that otherwise would have occurred between class counsel and class members had they retained attorneys individually. The Ninth Circuit has established a “benchmark” of 25 percent for awards of attorneys’ fees in common fund eases. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). This percentage can be adjusted upwards or downwards to account for special or unusual circumstances. Id. The Ninth Circuit has not clearly defined what sort of factors constitute unusual circumstances other than to state they must “indicate that the percentage recovery would be either too small or too large in light of the hours devoted to the case or other relevant factors.” Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990). Here, Class Counsel request a fee award of $30,689,285.30, representing 40 percent of the settlement fund. Class Counsel assert that such a percentage is within the proper range for attorney’s fees in common fund cases as set out by the Ninth Circuit. Although Class Counsel admit that 40 percent is on the high end of" }, { "docid": "22323117", "title": "", "text": "counsel with a reasonable fee. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.1989). This circuit has established 25% of the common fund as a benchmark award for attorney fees. Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990). Although no class member is entitled to a cash recovery — making valuation of the settlement agreement more difficult — Chrysler and class counsel valued the settlement at $115 million. This is the amount Chrysler charged against its earnings in order to account for its voluntary service action and the production and installation of the replacement latches. The fee award of $5.2 million represents roughly 4.5% of this “common fund”, significantly less than the 25% commonly used under Six Mexican Workers. We note, however, that the court rejected the idea of a straight percentage recovery because of its uncertainty as to the valuation of the settlement. In employment, civil rights and other injunctive relief class actions, courts often use a lodestar calculation because there is no way to gauge the net value of the settlement or any percentage thereof. The lodestar calculation begins with the multiplication of the number of hours reasonably expended by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The hours expended and the rate should be supported by adequate documentation and other evidence; thus, attorneys working on cases where a lodestar may be employed should keep records and time sheets documenting their work and time spent. The resulting figure may be adjusted upward or downward to account for several factors including the quality of the representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975). Class counsel presented affidavits to the district court justifying their fees on the basis of their work on the individual state class actions. The fee award also includes all future services that class counsel must provide through the life of the" }, { "docid": "21798200", "title": "", "text": "of the common fund. “Where a settlement produces a common fund- for the benefit of the entire class,” as here, “courts have discretion to employ either the' lodestar method or the percentage-of-recovery method” to determine the reasonableness of attorneys’ fees. In re Bluetooth, 654 F.3d at 942. “Because the benefit to the class is easily quantified in common-fund settlements,” the Ninth Circuit permits district courts “to award attorneys, a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar.” Id. “Applying this calculation method, courts [in the Ninth Circuit] typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any ‘special, circumstances’ justifying a departure.” Id. (citing Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)). However, the benchmark should be adjusted when the percentage recovery would be “either too small or too large in light of the hours devoted to the case or other relevant factors.” Six (6) Mexican Workers, 904 F.2d at 1311. When considering whether to depart from the 25% benchmark, courts consider a number of factors, including whether class counsel “‘achieved exceptional results for the class,’ whether the case was risky for class counsel, whether counsel’s performance ‘generated benefits beyond the cash settlement fund,’ the market rate for the particular field of law (in some circumstances), the burdens class counsel experienced while litigating the case (e.g., cost, duration, foregoing other work), and whether the case was handled on a contingency basis.” In re Online DVD-Rental Antitrust Litig,, 779 F.3d 934, 954-55 (9th Cir. 2015) (quoting Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-50 (9th Cir. 2002)). “[T]he most critical factor [in determining appropriate attorneys’ fee awards] is the degree of success obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed,2d 40 (1983). Comparing a percentage fee award to the lodestar “provides a check on the reasonableness of the percentage award.” Vizcaino, 290 F.3d at 1050. Percentage awards in the range of one to four times the lodestar are" } ]
630131
"in her efforts to ensure that the rights of other indigenous Mayan women were enforced and recognized by others[.]"" But, that evidence of the government's willingness to provide assistance in the distinct context of addressing concerns about employment discrimination is simply one part of the record as a whole. Thus, the IJ was required to weigh that evidence against any countervailing evidence that the petitioners put forward to show that the Guatemalan government was unable to protect them from the ethnically-motivated attacks and threats by the gang that attacked them. Of course, the government does not bear the burden of proving that it was not responsible for the harm to which the sisters were subjected by the gangs; the petitioners do. REDACTED And, the BIA is entitled to deference in evaluating the relative strength of any evidence that the petitioners put forth of the government's responsibility. But, as the petitioners point out, they did put forth affirmative evidence of the Guatemalan government's inability to protect them in the form of evidence detailing the Guatemalan government's ""long and disturbing history"" of not protecting indigenous Guatemalans-and the Quiché in particular-from harm (and, indeed, of perpetuating such harm). And yet, as the petitioners also point out, neither the IJ nor the BIA addressed that evidence in connection with the petitioners' contention as to their past persecution claims that, in light of that disturbing history, the Guatemalan government could not protect the sisters from their"
[ { "docid": "15298470", "title": "", "text": "without incident. At one point, however, he attempted to testify concerning current conditions in Indonesia. The IJ cut off that line of inquiry when the petitioner tried to recount developments that had taken place in Indonesia from 1994 forward. The IJ reasoned that the petitioner was incompetent to testify to recent country conditions in light of his eleven-year absence from the country. Relatedly, the IJ noted that substantial evidence about that subject already was in the record, mainly in the form of State Department Country Reports. When the hearing concluded, the IJ denied all three of the requested forms of relief in a bench decision. Two of these initiatives were quickly dispatched: the IJ dismissed the asylum application as untimely and rejected the CAT claim for failure to show a threat of torture at the hands of governmental actors. Neither of those claims are pursued in this court, so we make no further mention of them. As to the request for withholding of removal, the IJ discounted the petitioner’s testimony regarding the alleged events of 1987, 1988, and 1991. The IJ noted the conspicuous lack of specificity, detail, and corroboration, and gave significant weight to the pacific nature of the petitioner’s trips to Indonesia during the 1991-1994 time frame. Turning to the likelihood of future persecution, the IJ determined that while discrimination against Christians existed in Indonesia, it was neither widespread nor in most instances severe. Furthermore, the Indonesian government was committed to the principle of religious diversity and actively discouraged discrimination against non-Muslims. When all was said and done, the IJ concluded that the petitioner had failed to carry his burden of proving that, more likely than not, he would be persecuted if remitted to his homeland. Accordingly, he refused the request for withholding of removal. On appeal, the BIA upheld the IJ’s ukase. As to withholding of removal, it rested its decision on somewhat broader grounds, concluding that the record left unclear whether religious animus had sparked the incidents of which the petitioner complained (and, thus, that the petitioner had failed to carry his burden in this regard)." } ]
[ { "docid": "12241396", "title": "", "text": "purpose of such attacks “was not to destroy the Mayan ... community.” In fact, that was precisely the military’s aim, as explicitly found by Guatemala’s own Historical Clarification Commission, and consistent with numerous documentary sources in the record. Furthermore, the evidence does not support the IJ’s conclusion that the attacks on Ordonez-Quino’s village were merely “a result of the civil war and general conditions of strife and violence which existed in Guatemala at the time.” Rather, the evidence shows that Ordonez-Quino’s community and others were intentionally targeted by government forces during the war because of their Mayan identity. Cf. Arevalo-Giron v. Holder, 667 F.3d 79, 82-8.3 (1st Cir.2012) (finding agency’s determination that Guatemalan petitioner’s father was “a random casualty of the civil war” was supported by substantial evidence where petitioner did not allege father was a member of the army, the guerrillas, or the civil patrol&emdash;or a targeted racial or ethnic group). We do not require an asylum applicant to demonstrate that he was singled out only due to his protected trait; rather, he must show that such characteristic was “one central reason” for his abuse. Singh, 543 F.3d at 5; see Ivanov, 736 F.3d at 14-15 (applying pre-REAL ID Act standard). Rarely will an applicant know the “exact motivation” of his persecutors&emdash;especially when he was victimized as a young child&emdash; and, “ ‘of course, persecutors may often have more than one motivation.’ ” See Ivanov, 736 F.3d at 15 (alteration omitted) (quoting Sompotan v. Mukasey, 533 F.3d 63, 69 (1st Cir.2008)). Ordonez-Quino has amply shown that his Mayan Quiché identity was “at least one central reason” why he and his community were targeted by the Guatemalan army, and he need show no more than that. Thus, we find that the IJ’s conclusion, echoed by the BIA, that Ordonez-Quino did not demonstrate an adequate nexus between the harms he experienced during the civil war and a protected ground is not supported by substantial evidence “ ‘when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [IJ’s] view.’ ” Ivanov, 736" }, { "docid": "12241377", "title": "", "text": "THOMPSON, Circuit Judge. Petitioner Manuel Ordonez-Quino seeks review of a Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of his requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. Among other things, he says the BIA’s and IJ’s determinations that he did not demonstrate past persecution on account of a protected ground were not supported by substantial evidence. Because we agree, we grant his petition and remand for further proceedings. I. Facts We take the facts primarily from Ordo-nez-Quino’s affidavit and testimony before the IJ, who found him credible, supplementing with some history for context. See Ayala v. Holder, 683 F.3d 15, 16 (1st Cir.2012). Ordonez-Quino was born in Zacualpa, Department of Quiché, Guatemala, on December 4,1974. He is an indigenous Mayan Quiché. His native language is Quiché; he speaks very little Spanish. Ordonez-Quino grew up during the most violent period of the brutal civil war that ravaged Guatemala from 1962 through 1996. In his affidavit and testimony, he related haunting childhood memories of the Guatemalan military’s attacks on his family and their community. He said the Guatemalan government singled them out for persecution because of their indigenous race and ethnicity, their real and imputed political opinions, and their membership in various social groups. During the attacks, he said, the military “shot at us, bombed us, destroyed our homes[,] and killed our people. I witnesse[d] many terrible things.” In 1980, during one such attack, a military helicopter dropped a bomb next to Ordonez-Quino and his father. Ordonez-Quino was only five or six years old. His father was trying to carry him to safety in the surrounding mountains when the nearby explosion knocked Ordonez-Quino to the ground. His father scooped him back up and ran into hiding, but the damage was done. Either as a result of the explosion or the fall, Ordonez-Quino suffered a severe illness, experiencing high fevers and extreme headaches for days. Because soldiers controlled the area, his parents could not seek medical attention and instead applied traditional remedies. Due to his injuries, Ordonez-Quino ultimately became almost completely" }, { "docid": "6483480", "title": "", "text": "return to ... [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A) (emphasis added). In short, to qualify for asylum, one must show: (1) a well-founded fear of persecution; (2) on account of one of the above described enumerated statutory grounds; (3) by an organization that the government is unable or unwilling to control. See generally Elias-Zacarias, 502 U.S. at 481-83; see also M.A. [ AXXXXXXXX ], 858 F.2d at 218 (stating asylum is warranted if petitioner can show the “government is unwilling or unable to control the offending group”) (citing Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir.1987)). Petitioner bears the burden of proof with respect to his eligibility for asylum. 8 C.F.R. § 208.13(a); Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004). Regarding the level of proof required by a petitioner seeking asylum because of future persecution who, as here, has not demonstrated past persecution, the statute is less clear than one might hope. The most reasonable reading of the statute, however, is that a petitioner must demonstrate fear of persecution based on a protected characteristic by a preponderance of the evidence. See Zhu v. Ashcroft, 382 F.3d 521, 528 n. 6, 2004 WL 1854553, at *6 n. 6 (5th Cir.2004). In this case, there is no dispute that Petitioner has a well-founded fear of persecution by an organization which the government is unable to control. The IJ found as much, and the BIA did not disturb his holding. Oral Decision at 12 (J.A. 508) (“[Lopez-Soto] has a subjective fear of persecution and based upon the evidence presented, there is an objective fear of harm by the Ma[]ra 18 gang to this respondent.”); see also Chen v. U.S. INS, 195 F.3d 198, 203-05 (4th Cir.1999) (discussing well-founded fear). Further, the IJ held that the Guatemalan government is “unable to protect the citizens from the Ma[]ra gangs,” Oral Decision at 9 (J.A. 505), thus satisfying the third prong. However, the IJ rejected Lopez-Soto’s claim" }, { "docid": "4781843", "title": "", "text": "Guatemala for many years. The petitioner further testified that, in 1995, he repaired to the United States in order to find employment because of what he perceived as discrimination against the Mayan Quiche in the Guatemalan job market. Nevertheless, he was unable to offer any specific examples of such discrimination. The civil war ended in 1996. There was, however, one more incident: according to the petitioner a group of gang members recently had attempted to burglarize his sister’s house. He ruminated on what dangers he might face should he be removed to his homeland because, as a person returning from the United States, he would be perceived by gang members as a person of means (and, thus, as a high-yield target). To complete his case, the petitioner submitted documentary evidence, including several Amnesty International reports and a 2006 State Department report on human rights for Guatemala. These reports indicate that although Guatemala is no longer embroiled in a civil war, indigenous Mayans are subjected to racial discrimination, politically underrepresented, and disproportionately poor. At the conclusion of the hearing, the IJ ruled from the bench. The IJ found the petitioner’s testimony generally credible but concluded that the evidence failed to satisfy the petitioner’s burden of proof. Specifically, the IJ found that the petitioner had not provided significantly probative evidence that either he or his family members had been targeted for persecution because of their ethnic minority status and, therefore, that the petitioner had failed to establish a nexus between the past harm that he had described and a statutorily protected ground. Similarly, the IJ found that the petitioner had not established that, more likely than not, he would be persecuted in the future should he return to Guatemala. These findings culminated in a denial of the petitioner’s cross-application for withholding of removal. As an alternative ground for denying relief, the IJ held that even if a nexus existed between the harm and a statutorily protected ground, the end of the civil war in 1996 marked a fundamental change in circumstances. That shift made it unlikely that the petitioner would be persecuted" }, { "docid": "6483481", "title": "", "text": "less clear than one might hope. The most reasonable reading of the statute, however, is that a petitioner must demonstrate fear of persecution based on a protected characteristic by a preponderance of the evidence. See Zhu v. Ashcroft, 382 F.3d 521, 528 n. 6, 2004 WL 1854553, at *6 n. 6 (5th Cir.2004). In this case, there is no dispute that Petitioner has a well-founded fear of persecution by an organization which the government is unable to control. The IJ found as much, and the BIA did not disturb his holding. Oral Decision at 12 (J.A. 508) (“[Lopez-Soto] has a subjective fear of persecution and based upon the evidence presented, there is an objective fear of harm by the Ma[]ra 18 gang to this respondent.”); see also Chen v. U.S. INS, 195 F.3d 198, 203-05 (4th Cir.1999) (discussing well-founded fear). Further, the IJ held that the Guatemalan government is “unable to protect the citizens from the Ma[]ra gangs,” Oral Decision at 9 (J.A. 505), thus satisfying the third prong. However, the IJ rejected Lopez-Soto’s claim on the ground that there “is no nexus between the possible harm to this respondent and any of the grounds listed under the Act,” id. at 12 (J.A. 508), and the BIA affirmed because Petitioner “failed to establish that the harm he fears is on account of a protected ground.” BIA slip op. at 1 (J.A. at 517). Thus, the narrow question presented for review is whether the persecution at issue is “on account of’ Petitioner’s status as a member of a protected group. Accordingly, we turn to Petitioner’s claim that the BIA’s determination that he was not persecuted “on account of’ his family membership is unsupported by substantial evidence. B. 1. The BIA denied Lopez-Soto’s asylum claim on the ground that he does not face persecution “on account of a protected ground.” Slip op. at 1 (J.A. 517). As noted above, to establish a viable asylum claim, Petitioner must show his persecution was “on account of’ his “membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A). To make such a showing, the applicant" }, { "docid": "12241382", "title": "", "text": "affidavit of a doctor verifying Ordo-nez-Quino’s hearing impairment and noting his improvement with a hearing aid; the report of Guatemala’s Commission for Historical Clarification (“Historical Clarification Report” or the “Report”), which, inter alia, found that the Guatemalan military committed acts of genocide against indigenous Guatemalans in several regions — including Ordonez-Quino’s hometown of Zacualpa — during the Guatemalan Civil War; decisions by the U.S. Courts of Appeals for the Second and Ninth Circuits addressing asylum claims brought by indigenous Guatemalans; several documents describing ongoing discrimination against Mayans in Guatemala; numerous reports and articles issued by the U.S. State Department and prominent human rights organizations detailing the history of violence and recent human rights violations against Mayans in Guatemala; and several documents about gang violence in Guatemala. After the hearing, the IJ denied Ordo-nez-Quino’s requests for relief and ordered him removed. Though the IJ found Ordonez-Quino’s testimony credible and excused his failure to seek asylum before the one-year filing deadline, the IJ concluded that Ordonez-Quino did not qualify for asylum because he had not demonstrated past persecution or a well-founded fear of future persecution on account of a protected ground. As for past persecution, the IJ found that the Guatemalan military attacked Or-donez-Quino’s community during the war because they thought there were guerrillas within or nearby, not because the community was Mayan Quiché. While the IJ acknowledged that racism may have informed the military’s beliefs about the community, he said racism itself was not the reason for bombing in or near the villages, and “[t]he purpose of the bombing was not to destroy the Mayan Quich[é] community.” The IJ further found no evidence that Ordonez-Quino was later accosted by gangs because of his Mayan Quiché identity. Accordingly, the IJ held that Ordonez-Quino had not established the required nexus between the past harm he suffered and a protected ground. As for fear of future persecution, while the IJ acknowledged that the Mayan Quiché population continues to suffer pervasive discrimination in Guatemala, he found that their present mistreatment does not rise to the level of persecution. Moreover, though Ordonez-Quino might fear further violence," }, { "docid": "23252129", "title": "", "text": "whether there would be a nexus between any persecution and her membership in a particular social group, and whether she was “firmly resettled” in Mexico such that she is barred from receiving asylum under 8 C.F.R. § 1208.13(c)(2)(i)(B). We leave these matters to the BIA on remand. See I.N.S. v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Ill Unlike Silvia, Claudia’s interactions with Valle del Sol were quite limited, she never testified against Hilda or any of Hilda’s associates, and she never requested protection from the Guatemalan government. Claudia’s claim is based on her belief that she will be persecuted either because she is Silvia’s sister or because she became friendly with Hilda in 1998 and learned about Valle del Sol activities, but then rejected what she perceived to be attempts at recruitment into the gang. Like Silvia, Claudia claimed that Hilda and Henry Sosa found her and her mother living in New Jersey and threatened them in person and by telephone. Claudia also alleged that Hilda has since been released from prison and tried to enter the United States, but she was turned away at the border. The IJ found, and the BIA agreed, that Claudia’s asylum application was time-barred and that, in any event, she was unable to show a clear probability of future persecution because she never sought police protection, the Guatemalan authorities went to great lengths to protect her sister Silvia, and she failed to provide evidence to corroborate her affidavit and testimony about threats. IJ Dec. at 14-18; BIA Dec. at 2-3. The BIA also affirmed the IJ’s holding that Claudia was not entitled to relief under CAT because she could not show that the Guatemalan government would acquiesce in, or turn a blind eye to, her torture. IJ Dec. at 18; BIA Dec. at 3. Claudia does not dispute the BIA’s findings that her asylum application was untimely and that she failed to establish a claim under the CAT. Thus we review only Claudia’s request for withholding of removal. To qualify for withholding of removal under the INA," }, { "docid": "4504612", "title": "", "text": "26 I. & N. Dec. 208, 215 (BIA 2014); see also Escobar v. Holder, 657 F.3d 537, 545 (7th Cir. 2011) (noting that “[w]here a proposed group is defined only by the characteristic that it is persecuted, it does not qualify, as a ‘social group’”). The petitioner has offered no evidence to show that the members of her proffered social group (“Guatemalan women who try to escape, systemic and severe violence but who are unable to receive official protection”)—unlike the members of the social group recognized in Matter of A-R-C-G—were viewed by Guatemalan society as either distinct, or uniquely vulnerable prior to the commission of the acts of persecution of which they complain. Consequently, the petitioner’s proffered social group fails to satisfy the social distinctiveness requirement. That ends this aspect of the matter. The petitioner’s failure to satisfy both the particularity and the social distinctiveness requirements defeats her attempt to qualify as a refugee through membership in a particular social group. As an attempted fallback, the petitioner: argues that the agency erred in failing to analyze her claim of past persecution. The Immigration and Nationality Act, though, does not provide a pathway to asylum for all individuals who have suffered harm severe enough to rise to the level of persecution. See Sugiarto v. Holder, 586 F.3d 90, 95 (1st Cir. 2009). To warrant such relief, the claimed harm must have been causally connected to one of the five statutorily protected grounds. See Lopez Perez v. Holder, 587 F.3d 456, 462 (1st Cir. 2009). Absent such a nexus, a free-floating finding of persecution is not itself sufficient to pave the way for asylum. See Sugiarto, 586 F.3d at 95. Because the IJ and the BIA supportably found that the petitioner failed to establish a nexus between the claimed harm and a statutorily protected ground, there was no error in forgoing an analysis of past persecution. So, too, the IJ and the BIA did not err in declining to reach the issue of humanitarian parole. Since humanitarian parole requires a showing of past persecution on account of a statutorily protected ground, see" }, { "docid": "6483476", "title": "", "text": "and Jan Perlin, an expert qualified in the affairs of the Guatemalan justice system. The IJ also accepted numerous documents, including the aforementioned affidavits as well as other affidavits, copies of official documents, reports on Guatemala and those concerning Mara 18 itself. Although the IJ held that Petitioner was credible, Oral Decision at 4-5 (J.A. 500-01), and gave the documentary evidence “great weight,” id. at 3-4 (J.A. 499-500), he issued an oral decision declining to grant Petitioner relief. Based on the State Department’s Country Reports and Perlin’s testimony, the IJ found that the Guatemalan “justice system is dysfunctional” and that while the Guatemalan government “is willing to protect its citizens from these Mar[ ]a gangs ... they are unable to protect the citizens.” Id. at 9 (J.A. 505). However, the IJ found that Petitioner would not suffer persecution “on account of’ his membership in a particular social group, namely his family, because “there is no nexus between the killing of [Edgar] and the threats to [Petitioner] or the threats to [Petitioner’s] family, and that the [Petitioner’s] family in this case does not constitute a particular social group.” Id. at 11 (J.A. 507). In short, the IJ found that while Petitioner had a reasonably objective fear of harm from the gang, he determined that Petitioner was being recruited and harassed because he was a teenaged male living in the area, not on account of “any family reasons.” Id. Additionally, the IJ found that Petitioner was not entitled to protection pursuant to the Convention Against Torture because the torture feared was not government sponsored. While the IJ acknowledged Mara 18’s grip on the country and law enforcement’s inability to control them, the IJ concluded that Convention Against Torture protection “does not extend to persons who fear entities that the government is unable to control.” Id. at 13 (J.A. 510). On appeal, the BIA affirmed. In re Lopez-Soto, No. [ AXX-XXX-XXX ], slip op. at 1 (BIA Feb. 20, 2003) (per curiam) (J.A. 517). The BIA held that, “respondent has failed to establish that the harm he fears is on account of a" }, { "docid": "23252120", "title": "", "text": "IJ also determined that although there was “a plethora of documentation about Silvia’s testimony, [and] Silvia’s assistance in the prosecution against Hilda,” she was not eligible for asylum or withholding of removal because any persecution she might face is not on account of her membership in a cognizable “particular social group” (ie., individuals who testify against gang members). Id. The IJ noted that there was no corroborating evidence regarding Sosa or the threat he might present in the future, and that even if Sosa might look to harm Silvia, the Guatemalan government had shown it was willing and able to protect her. Id. at 19-21. Finally, the IJ rejected her CAT claim citing a lack of evidence that the Guatemalan government would acquiesce in, or turn a blind eye to, her torture. Id. at 21. Silvia appealed, and the BIA issued an opinion affirming the IJ’s decision. The BIA relied primarily on two of the IJ’s findings: (1) “that Silvia did not demonstrate an objectively reasonable fear of future persecution in Guatemala because she did not show that she is unable or unwilling to avail herself of the protection of the Guatemalan government;” and (2) “that the Guatemalan government is willing to protect Silvia such that she cannot be considered a ‘refugee’ within the meaning of the [INA].” Decision of the BIA, File Nos. [ AXXXXXXXXX ] & [ AXXXXXXXXX ], at 2 (Dec. 31, 2009) (BIA Dec.) (citing 8 C.F.R. § 1208.13(b)(2)(i)(C)). The BIA added in a footnote that it “also coneur[s] with the [IJ]’s alternative ruling that the harm [Silvia] fears is not on account of a protected ground.” Id. at 4 n.l. Both sisters’ CAT claims were rejected for the reason stated by the IJ. Id. at 2-3. Silvia filed a petition for review, arguing that the BIA adopted the IJ’s opinion without providing its own analysis, and that the IJ applied an incorrect legal standard, ignored precedent, and disregarded evidence. C “We exercise de novo review over constitutional claims or questions of law and the application of law to facts.” Yusupov v. Att’y Gen., 518 F.3d" }, { "docid": "13215058", "title": "", "text": "shows willful blindness toward the torture of citizens by third parties.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007) (internal quotations and citation omitted). Marroquin-Ochoma has submitted numerous articles and reports showing the government’s difficulty in controlling the extensive gang violence in Guatemala, as well as some evidence of general police reluctance to pursue gang members. Based on this evidence, she argues that the Guatemalan government “condones” the gang’s activity. But the record also includes evidence that the government aggressively prosecutes gang members. On the whole, the record before us indicates that law enforcement is weak and inexperienced, not that it acquiesces in gang activity. See Bartolo-Diego v. Gonzales, 490 F.3d 1024, 1029 (8th Cir.2007) (“Even though the government’s failure to investigate and punish other individuals and clandestine criminal groups who break the law has resulted in human rights abuses, the failure is due more to a weak and inefficient judicial system than to government acquiescence or approval.”). Significantly, the record also includes evidence that the police did respond to her report by increasing patrols in her neighborhood and that it was Marroquin-Ochoma herself who declined to formalize her complaint to the public prosecutor. The IJ concluded that “the police took a reasonable response” to her request for assistance, and substantial evidence supports the conclusion that the police were not unwilling to control the gang members. If anything, the record shows that the government attempted to protect Marroquin-Ochoma and that Marroquin-Ochoma, without adequate justification, declined to pursue the avenues of law enforcement available to her. Cf. Khilan v. Holder, 557 F.3d 583, 586 (8th Cir.2009) (per curiam) (denying asylum and withholding of removal claims where, inter alia, petitioner refused to aid the police investigation into petitioner’s persecutors). When paired with such countervailing facts specific to the petitioner, evidence of general uncontrolled gang activity does not dictate a conclusion that the government acquiesced in the specific acts directed toward the petitioner. Menjivar v. Gonzales, 416 F.3d 918, 923 (8th Cir.2005). We therefore find that substantial evidence supports the BIA’s determination that Marroquin-Ochoma failed to establish that the Guatemalan government condoned" }, { "docid": "12241397", "title": "", "text": "show that such characteristic was “one central reason” for his abuse. Singh, 543 F.3d at 5; see Ivanov, 736 F.3d at 14-15 (applying pre-REAL ID Act standard). Rarely will an applicant know the “exact motivation” of his persecutors&emdash;especially when he was victimized as a young child&emdash; and, “ ‘of course, persecutors may often have more than one motivation.’ ” See Ivanov, 736 F.3d at 15 (alteration omitted) (quoting Sompotan v. Mukasey, 533 F.3d 63, 69 (1st Cir.2008)). Ordonez-Quino has amply shown that his Mayan Quiché identity was “at least one central reason” why he and his community were targeted by the Guatemalan army, and he need show no more than that. Thus, we find that the IJ’s conclusion, echoed by the BIA, that Ordonez-Quino did not demonstrate an adequate nexus between the harms he experienced during the civil war and a protected ground is not supported by substantial evidence “ ‘when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [IJ’s] view.’ ” Ivanov, 736 F.3d at 11 (quoting Kartasheva, 582 F.3d at 105). Consequently, it must be vacated. b. Degree of Harm Because the IJ found that Ordo-nez-Quino had not met the nexus requirement, he did not decide whether the harms Ordonez-Quino experienced as a Mayan Quiché in Guatemala rose to the level of past persecution. The BIA, on the other hand, proceeded to find that, in addition to lacking the requisite nexus, Ordonez-Qui-no’s “account of being discriminated against due to his ethnicity [did] not amount to past persecution.” “Moreover,” the BIA said, “the isolated nature of both the civil war-related bombing and the respondent’s incident with a gang does not support a claim of asylum.” We hold that this finding also was not supported by substantial evidence in the record. As a refresher, to constitute persecution, “the sum of [a petitioner’s] experiences must add up to more than ordinary harassment, mistreatment, or suffering.” Lopez de Hincapie, 494 F.3d at 217; see Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (“[P]ast persecution requires that the totality of a" }, { "docid": "12241395", "title": "", "text": "an aggressive racist component of extreme cruelty that led to the extermination en massef ] of defen[s]eless Mayan communities purportedly linked to guerrillas — including children, women!,] and the elderly.” Id. at Conclusions, ¶ 85. Considering these repeated “destructive acts, directed systematically against groups of the Mayan population,” including “against minors who could not possibly have been military targets,” the Historical Clarification Report found that “the only common denominator” among victims was membership in a Mayan ethnic group, and the Guatemalan military’s acts were committed “with intent to destroy” these groups, “in whole or in part.” Id. at Conclusions, ¶ 111. The Report ultimately concluded that the Guatemalan State had “committed acts of genocide against groups of Mayan people” in four regions, including Ordonez-Quino’s hometown of Zacualpa, between 1981 and 1983. Id. at Conclusions, ¶¶ 110,122. Thus, while the IJ correctly noted that Mayan communities like Ordonez-Quino’s were targeted during the civil war in part because of their real or imagined connection to guerrilla forces, the documentary evidence does not support his finding that the purpose of such attacks “was not to destroy the Mayan ... community.” In fact, that was precisely the military’s aim, as explicitly found by Guatemala’s own Historical Clarification Commission, and consistent with numerous documentary sources in the record. Furthermore, the evidence does not support the IJ’s conclusion that the attacks on Ordonez-Quino’s village were merely “a result of the civil war and general conditions of strife and violence which existed in Guatemala at the time.” Rather, the evidence shows that Ordonez-Quino’s community and others were intentionally targeted by government forces during the war because of their Mayan identity. Cf. Arevalo-Giron v. Holder, 667 F.3d 79, 82-8.3 (1st Cir.2012) (finding agency’s determination that Guatemalan petitioner’s father was “a random casualty of the civil war” was supported by substantial evidence where petitioner did not allege father was a member of the army, the guerrillas, or the civil patrol&emdash;or a targeted racial or ethnic group). We do not require an asylum applicant to demonstrate that he was singled out only due to his protected trait; rather, he must" }, { "docid": "1334355", "title": "", "text": "him ineligible for withholding of removal. See Arevalo-Giron v. Holder, 667 F.3d 79, 82 (1st Cir.2012). The IJ found that: (1) the incidents described by Rosales, taken cumulatively, did not rise to the level of persecution; (2) even if those incidents constituted past persecution, there was insufficient evidence to show that the persecution was on account of a protected ground; (3) the proposed social group lacked the requisite “social visibility” for withholding purposes, given insufficient evidence that Guatemalan society identified teachers that spoke out against gangs as belonging to a particular group; and (4) Rosales had not shown it was more likely than not that he would face future persecution in Guatemala on account of a protected ground. The IJ noted that Rosales’s parents and two sisters in Guatemala remained unharmed. She also found that Rosales’s cousin who was killed was not a teacher, nor did gangs target him because of his relationship to Rosales. The IJ also noted that there was no evidence that the principal who expelled the Maras member had suffered any harm or threats from gangs in the years since. The IJ concluded that Rosales’s CAT claim failed because there was no evidence that he feared a government official or any person acting in an official capacity. Rosales appealed to the BIA. On October 31, 2011, the BIA dismissed Rosales’s appeal and reinstated his grant of voluntary departure. The BIA concluded that Rosales had not shown a nexus between his prior harm and a protected ground, reasoning that proof of the gang’s criminal extortion did not amount to a showing that the harm was motivated by his political opinion or purported membership in a particular social group. The BIA found that Rosales’s past experiences did not rise to the level of persecution and that his claim of future persecution on account of his past activities as a teacher was “highly speculative and not supported by the record.” The BIA ob served that Rosales had “not ... identified evidence that similarly situated individuals are targeted for persecution in Guatemala on account of a protected ground.” (emphasis added)." }, { "docid": "12241405", "title": "", "text": "have rebutted his claim to a well-founded fear of future persecution. For support, the BIA cited this court’s decision in Palma-Mazariegos v. Gonzales, 428 F.3d 30, 32 (1st Cir.2005). That case treated the distinct issue of whether a Guatemalan petitioner had a reasonable fear of future harm based on his refusal to join the guerrilla forces. Id. at 33. The court there noted that evidence showed the guerrillas had been integrated into the government after the civil war and no longer engaged in militant activities. Id. at 35-36. As a result, the court found that the record supported the BIA’s finding of changed conditions sufficient to rebut that petitioner’s asserted fear of future harm. Id. at 37. Ordonez-Quino, on the other hand, says he has a well-founded fear of future persecution based on his Mayan Quiché race and ethnicity. He provides significant documentation of ongoing systemic racism and human rights violations against the Mayan Quiché community. See, e.g., U.S. Dep’t of State, 2009 Human Rights Reports: Guatemala §§ 5-6 (2010) (noting, inter alia, threats to and murders of indigenous leaders; pervasive discrimination against indigenous community; and land dispute where police evicted roughly 80 indigenous community members from their homes, burned their homes, and destroyed their crops); Guatemalan Human Rights Comm’n, Guatemala Human Rights Review, January-September 2007 7 (2007) (describing violent evictions of indigenous families from native lands at hands of police officers and military personnel). The BIA’s quick dismissal of Ordonez-Quino’s fear-of-future-persecution claim with a conclusory statement and an inap-posite case citation, without any reference to the voluminous record, is not a finding supported by substantial evidence. See Gailius v. I.N.S., 147 F.3d 34, 46 (1st Cir.1998) (“In order for this court to conduct a proper substantial evidence review of the BIA’s decision, the [BIA’s] opinion must state with sufficient particularity and clarity the reasons for denial of asylum.” (internal quotation marks omitted)). The BIA appears not to have made any attempt to assay the evidence of current conditions in Guatemala for Ordonez-Qui-no specifically, and thereby failed to undertake the type of particularized analysis that our standards demand. See Hernandez-Barrera," }, { "docid": "12241390", "title": "", "text": "Lopez de Hincapie, 494 F.3d at 217. It “normally involves ‘severe mistreatment at the hands of [a petitioner’s] own government,’ ” or “ ‘non-governmental actors ... in league with ... or ... not controllable by the government.’ ” Ayala v. Holder, 683 F.3d 15, 17 (1st Cir.2012) (quoting Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir.2005)). But within these broad parameters, courts usually assess whether harm rises to the level of persecution on a case-by-case basis. Sok v. Mukasey, 526 F.3d 48, 53 (1st Cir.2008) (quoting Aguilar-Solis v. I.N.S., 168 F.3d 565, 570 (1st Cir.1999)). For purposes of asylum, a petitioner must demonstrate that the harm he experienced occurred “on account of’ a statutorily protected ground. Ivanov, 736 F.3d at 12. After passage of the REAL ID Act of 2005, this means a protected ground must be at least “ ‘one central reason’ for the mistreatment,” and it must not be “ ‘incidental, tangential, superficial, or subordinate to another reason for harm.’ ” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir.2008) (quoting In re J-B-N & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)); see 8 U.S.C. § 1158(b)(1)(B)(i). A petitioner need not provide direct proof of motive, but he must put forth “some evidence on the subject due to its importance in the statutory scheme.” Singh, 543 F.3d at 5 (citing Babani v. Gonzales, 492 F.3d 20, 22-23 (1st Cir.2007)). a. Nexus to a Protected Ground Ordonez-Quino says the IJ’s determination that he did not establish the requisite nexus between the harms he suffered and his Mayan Quiehé race and ethnicity was not supported by substantial evidence. We agree. In reaching this conclusion, it appears that the IJ — and the BIA following suit — ignored or unreasonably interpreted crucial documentary evidence linking Ordonez-Quino’s experi-enees to his protected Mayan Quiehé identity. With respect to the attack that caused Ordonez-Quino to lose his hearing, the IJ said: The bombing which occurred in 1980 and during the period of the civil war cannot be found to be precipitated by the Guatemalan army bombing the Mayan Quich[é] population." }, { "docid": "12241391", "title": "", "text": "re J-B-N & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)); see 8 U.S.C. § 1158(b)(1)(B)(i). A petitioner need not provide direct proof of motive, but he must put forth “some evidence on the subject due to its importance in the statutory scheme.” Singh, 543 F.3d at 5 (citing Babani v. Gonzales, 492 F.3d 20, 22-23 (1st Cir.2007)). a. Nexus to a Protected Ground Ordonez-Quino says the IJ’s determination that he did not establish the requisite nexus between the harms he suffered and his Mayan Quiehé race and ethnicity was not supported by substantial evidence. We agree. In reaching this conclusion, it appears that the IJ — and the BIA following suit — ignored or unreasonably interpreted crucial documentary evidence linking Ordonez-Quino’s experi-enees to his protected Mayan Quiehé identity. With respect to the attack that caused Ordonez-Quino to lose his hearing, the IJ said: The bombing which occurred in 1980 and during the period of the civil war cannot be found to be precipitated by the Guatemalan army bombing the Mayan Quich[é] population. Rather, the bombing attacks were taking place in or near these communities because it was believed that there were guerrillas in or near these communities. To the extent that a certain racism existed at that time, it still was not a basis for bombing in or near the Mayan Quich[é] villages. Rather, the racism was the basis, however founded or unfounded, of the Guatemalan military believing that the Mayan Quich[é] community was sympathetic to the guerrilla cause and were harboring guerrillas. I find based on the documentary evidence that although [Ordonez-Quino] was injured and suffered hearing loss because of the bombing raids that the bombing raids were not directed at the Mayan Quich[é] community per se, but, rather, they were on account of the civil war which was going on at the time and on the basis of the Guatemalan army seeking to ferret out and destroy the guerrilla enemies. The purpose of the bombing was not to destroy the Mayan Quich[é] community. The IJ further found “that the tragic damage to [Ordonez-Quino’s] ears as" }, { "docid": "12241404", "title": "", "text": "his protected characteristics, “but rather only in furtherance of [the gang’s] reprehensible criminality.” On remand, if the agency determines that the harm Ordonez-Quino suffered as a Mayan Quiché child in Guatemala rose to the level of past persecution, a different analysis will be required. As we set out above, past persecution creates a presumption of future persecution, which the government can rebut by demonstrating that there has been a fundamental change of circumstances in Guatemala such that the applicant’s fear can no longer be considered well-founded. 8 C.F.R. § 1208.13(b)(l)(i)(A). To overcome the presumption, the government must show that “ ‘changes in country conditions ... have negated the particular applicant’s well-founded fear of persecution,’ ” taking his individual situation into account. Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 24 (1st Cir.2004) (quoting Fergiste v. I.N.S., 138 F.3d 14, 18-19 (1st Cir.1998)). Unlike the IJ, after finding that Ordo-nez-Quino had not demonstrated past persecution on account of a protected ground, the BIA proceeded to hold that even if Ordonez-Quino had shown past persecution, changed country conditions would have rebutted his claim to a well-founded fear of future persecution. For support, the BIA cited this court’s decision in Palma-Mazariegos v. Gonzales, 428 F.3d 30, 32 (1st Cir.2005). That case treated the distinct issue of whether a Guatemalan petitioner had a reasonable fear of future harm based on his refusal to join the guerrilla forces. Id. at 33. The court there noted that evidence showed the guerrillas had been integrated into the government after the civil war and no longer engaged in militant activities. Id. at 35-36. As a result, the court found that the record supported the BIA’s finding of changed conditions sufficient to rebut that petitioner’s asserted fear of future harm. Id. at 37. Ordonez-Quino, on the other hand, says he has a well-founded fear of future persecution based on his Mayan Quiché race and ethnicity. He provides significant documentation of ongoing systemic racism and human rights violations against the Mayan Quiché community. See, e.g., U.S. Dep’t of State, 2009 Human Rights Reports: Guatemala §§ 5-6 (2010) (noting, inter alia, threats to" }, { "docid": "22162755", "title": "", "text": "friends, relatives, and associates, and may bring economic loss for the family; but nothing in our precedent or in the BIA’s suggests that these consequences can constitute persecution giving rise to refugee status for any of those people unless they share — or are imputed to share— the characteristic that motivated the persecution. * * -1: For the foregoing reasons, we deny the petition for review. . While asylum must be sought within one year of arrival, see 8 U.S.C. § 1158(a)(2)(B), Jiang did not apply until several years had passed. The IJ concluded that Jiang's reaching 21 years of age in 2001 constituted a change in circumstances under 8 U.S.C. § 1158(a)(2)(D), and that Jiang’s application could therefore be considered notwithstanding its untimeliness. The DHS did not appeal this determination before the BIA, and we do not address it. . While he was a small child, the petitioner in Jorge-Tzoc (a Guatemalan of Mayan descent) survived a massacre that was part of a \"pervasive campaign carried out by the [Guatemalan] army against Mayans in the area” around the petitioner's village. 435 F.3d at 150. His sister and her family were killed by the army in a neighboring village, and several other relatives and neighbors were killed in the petitioner’s own village. Id. at 147-48. He did not witness the killings, but saw the soldiers and saw his cousin's bullet-riddled corpse on the ground in the massacre’s aftermath; his family lost land and property when the massacre forced them to relocate, and they struggled to survive. Id. at 150. This Court remanded after rejecting the notion that in such circumstances, the lack of any “direct” harm to the petitioner necessarily supported the agency’s conclusion that he had suffered no past persecution; the agency was required to evaluate the cumulative impact of the petitioner's experiences, taking into account the petitioner’s sensitive age at the time. Id. . Jiang at one point testified vaguely that he lived with his grandparents because he was afraid that the village cadre would target his parents; and he stated without elaboration that at some undefined time" }, { "docid": "13215059", "title": "", "text": "patrols in her neighborhood and that it was Marroquin-Ochoma herself who declined to formalize her complaint to the public prosecutor. The IJ concluded that “the police took a reasonable response” to her request for assistance, and substantial evidence supports the conclusion that the police were not unwilling to control the gang members. If anything, the record shows that the government attempted to protect Marroquin-Ochoma and that Marroquin-Ochoma, without adequate justification, declined to pursue the avenues of law enforcement available to her. Cf. Khilan v. Holder, 557 F.3d 583, 586 (8th Cir.2009) (per curiam) (denying asylum and withholding of removal claims where, inter alia, petitioner refused to aid the police investigation into petitioner’s persecutors). When paired with such countervailing facts specific to the petitioner, evidence of general uncontrolled gang activity does not dictate a conclusion that the government acquiesced in the specific acts directed toward the petitioner. Menjivar v. Gonzales, 416 F.3d 918, 923 (8th Cir.2005). We therefore find that substantial evidence supports the BIA’s determination that Marroquin-Ochoma failed to establish that the Guatemalan government condoned or acquiesced in the gang members’ threats as required under the CAT. Accordingly, we deny the petition for review. . Marroquin-Ochoma’s opening brief does not present arguments challenging the BIA’s determination that the threats did not rise to the level of persecution, and the Government argues she has therefore waived her past-persecution claim and cannot show a well-founded fear of future persecution. We decline to address this argument because, even assuming Marroquin-Ochoma has shown \"persecution or a well-founded fear of persecution,” her claims fail on the grounds at the forefront of her petition. . The IJ, relying on In re S-V-, 22 I. & N. Dec. 1306 (BIA 2000), stated that CAT relief does not extend to torture by entities that the government is unable to control. The correctness of this standard is not squarely before us, because the IJ ultimately concluded that the Guatemalan government was not unable to control the gang members — thus mooting his own reliance on that standard. We note, however, that several of our sister circuits have expressly or" } ]
627570
entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. 438 U.S. at 171-72, 98 S.Ct. 2674 (emphasis added and footnote omitted). The Sixth Circuit has recently reiterated that Franks applies to an omission from an affidavit, as well as to a misstatement in one. United States v. Abboud, 438 F.3d 554 (6th Cir.2006). Accord Hale v. Kart, 396 F.3d 721, 726 n. 4 (6th Cir.2005). If statements have been deliberately or recklessly omitted from the affidavit, the reviewing court must add the omitted information and then determine de novo whether the affidavit supports probable cause. United States v. Ippolito, 774 F.2d 1482, 1486 n. 1 (9th Cir.1985); REDACTED cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). In his post-hearing memoranda, Kersey argues that Phillips violated Franks by including three false statements in his affidavit and by omitting one statement from it. As a means of analysis, the Court will initially address the three alleged misstatements in the order in which they appear in the affidavit, following which it will turn to the alleged omission. First, in ¶ 1 of his affidavit, Phillips states that a confidential source (“CS”) provided law enforcement officers information regarding two indoor marijuana operations, one of which was located at Copp’s residence on Kennedy Drive and the other at Kersey’s residence at 3401 Winterwood Drive. In that paragraph, Phillips also
[ { "docid": "13932495", "title": "", "text": "require disclosure by the government of the identity of the informant. Appellant argues that disclosure of the identity of the informant should have been required because a genuine question of fact had been raised: whether Officer Johnson intentionally or recklessly misrepresented the informant’s existence or knowledge in the affidavits for the search warrants. As the basis for appellant’s challenge of the affidavits, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), appellant stresses that every person who was present in the apartment within seventy-two hours of July 28, 1978, signed an affidavit under oath denying having provided Officer Johnson with any information. Thus, appellant argues, this intentional or reckless misrepresentation of the existence of an informant justifies the suppression of any evidence seized under the authority of the search warrant. We note initially that the Supreme Court in Franks v. Delaware reserved the question whether a reviewing court must ever require the disclosure of the identity of an informant once a substantial preliminary showing of falsity has been made. 438 U.S. at 170, 98 S.Ct. 2674; but see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971) , on remand, 477 F.2d 31 (per curiam), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v. Danesi, 342 F.Supp. 889 (D.Conn. 1972) ; State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976) (en banc). The Supreme Court in Franks v. Delaware permitted defendants to challenge the veracity of the warrant affidavit, in effect, to “go behind” the affidavit, and held that where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, then the Fourth Amendment requires that a hearing be held at the defendant’s request. 438 U.S. at 155, 98 S.Ct. at 2676-2677. The search warrant is invalid and the fruits of the search excluded" } ]
[ { "docid": "15501860", "title": "", "text": "or otherwise reliable statements of witnésses should be furnished, or their absence satisfactorily explained. Allegations of mere negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity is set to one side, there remains sufficient content in the warrant affidavit, ... no hearing is required. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. While the Franks decision only concerned the inclusion of false material in a search warrant affidavit, courts have recognized that the Franks logic extends to deliberate or bad faith omissions of a material fact and to affidavits in support of electronic surveillance. See United States v. Charles, 213 F.3d 10, 24 (1st Cir.2000) (citation omitted); United States v. Bankston, 182 F.3d 296, 305 (5th Cir.1999); United States v. Green, 175 F.3d 822, 828 (10th Cir.1999) (citations omitted); Ippolito, 774 F.2d at 1485-87 and n. 1. “[A] district court reviewing the validity of a wiretap order must examine the application to see if it contained material misstatements or omissions regarding the necessity of the wiretap.” Carneiro, 861 F.2d at 1176. First, to the extent that Defendants’ Franks argument is premised upon their position that the Government is required to demonstrate necessity as to each and every target and interceptee, their Franks argument is foreclosed by the court’s determination in part C. of this Memorandum Opinion and Order, above, that the necessity showing is mandated only as to the primary target or targets of a wiretap application. Second, the court has previously addressed the issue of material omissions in the Affidavits within the context of Defendants’ requests for disclosure of the identities of the confidential informants. The court has already determined (and Defendants have essentially conceded) that Defendants have not made the preliminary showing required by Franks that the affi-ant deliberately or in bad faith misstated or omitted any material facts. Accordingly, an evidentiary hearing is not required. Third, the court has since" }, { "docid": "22238431", "title": "", "text": "Searched The affidavit requested the search of Defendant’s home and businesses. The bank fraud alleged centered around Defendant’s check cashing transactions conducted at these business locations. Furthermore, the affiant stated that business records were usually kept at home. These locations are not “mere criminal forum[s] of convenience;” but rather, the locations are at the heart of the criminal charge. v. Conclusion All factors weigh against a claim of staleness. We are especially persuaded by the fact that by nature one keeps business and financial records for extended periods of time. The entire point in creating such records is for preservation. As a result, the warrant was not stale. d. Omission of Material Facts Defendant claims the affiant omitted material facts from the affidavit, thus skewing the magistrate’s probable cause calculus. We disagree. In Franks v. Delaware, the Supreme Court created procedural protections for a defendant who claimed that the affidavit supporting the probable cause of a search warrant contained intentional or reckless falsehoods. The Court stated that it presumed the validity of the affidavit in support of the search warrant. 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The burden is on the defendant to show such falsehoods in the affidavit. Id. If the defendant meets this burden, then the question becomes whether the affidavit is sufficient to support probable cause without the falsehoods. Id. If it is sufficient, then the warrant is valid. Id. at 171-72, 98 S.Ct. 2674. If it is insufficient, then the defendant is entitled to a hearing concerning the probable cause in the affidavit. Id. at 172, 98 S.Ct. 2674. This Court has interpreted Franks to include omissions. Hale v. Kart, 396 F.3d 721, 726 n. 4 (6th Cir.2005) (citing Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir.1998)). Defendant claims three omissions: (1) PVF had not lost the millions of dollars as claimed in the affidavit; (2) Defendants’ accounts were fully collaterized; and (3) the banks involved knew of and approved of Defendants’ actions. We agree with the government that the evidence contained in (1) and (2) was not" }, { "docid": "5496358", "title": "", "text": "and that Mr. Mathi-son had introduced him to Mr. Totaro. Fifth, Mr. Reynolds obtained information from a special agent with the IRS Criminal Investigation Division suggesting that Mr. Mathison was engaged in tax evasion and money-laundering activities in connection with the operation of one of his numerous business entities, and that evidence of such activity could be found at his office. Finally, Mr. Reynolds listened to a recording of a phone conversation between Mr. Mathison and Leroy Anderson, a potential borrower, in which Mr. Mathison solicited Mr. Anderson to apply for one of Mr. Totaro’s presumably fraudulent loans. A defendant is entitled to a hearing to determine the veracity of a search warrant affidavit if he or she can make a substantial preliminary showing that a false statement was included in the affidavit (or that relevant information was omitted from it) intentionally or recklessly, and that the allegedly false statement was necessary to a finding of probable cause or that the alleged omission would have made it impossible to find probable cause. See id. at 155-56, 98 S.Ct. 2674; United States v. House, 604 F.2d 1135, 1141, 1141 n. 9 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). Mr. Mathison argues that the affiant in his case intentionally included false statements and omitted exculpatory ones. We agree with the trial court that Mr. Mathison was not entitled to a Franks hearing because he did not make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; see also United States v. Garcia, 785 F.2d 214, 222 (8th Cir.1986), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986). The requirement of a substantial preliminary showing “is not lightly met.” United States v. Wajda, 810 F.2d 754, 759 (8th Cir.1987), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). A mere allegation standing alone, without an offer of proof in the form of a sworn" }, { "docid": "23173895", "title": "", "text": "did not reflect it, Keith Meling had been convicted of. a felony in 1990, just one year before the wiretap application, and had been committed to a mental institution, where he experienced auditory and visual hallucinations and was diagnosed as having schizophrenia. Finally, the affidavit supporting the wiretap application failed to mention that Keith Mel-ing came forward at least in part to obtain the $100,000 reward offered for information relating to the poisonings; to the contrary, the affidavit characterized Keith Meling’s motives as pure. The FBI did not correct these misstatements and omissions in the extension applications. Defendant claims that the district court should have held a hearing to determine whether the FBI deliberately misled the reviewing judge in the wiretap applications. A district court must suppress evidence seized pursuant to a wiretap if the defendant can show the wiretap application contained intentionally or recklessly false information that was material to the finding of probable cause. See United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984). A criminal defendant is entitled to a hearing to test the veracity of an affidavit supporting the application under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if he can make a substantial preliminary showing that “the affidavit contained] intentionally or recklessly false statements, and ... [that] the affidavit purged of its falsities would not be sufficient to support a finding of probable cause.” United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.1980). Franks applies to omissions as well as false statements. Stanert, 762 F.2d at 781. We review de novo the district court’s denial of a Franks hearing. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985). We focus here on three omitted pieces of information: (1) the old convictions for forgery and fraud and the attendant parole violations, (2) the recent conviction, and (3) the history of mental illness. We also consider one falsity: the characterization of Keith Meling’s motives as pure.. In determining whether defendant should have been given a hearing on his Franks claims, we engage" }, { "docid": "22310322", "title": "", "text": "was also located in this closet. Besides the weapons, cash, and narcotics, agents found a set of scales and two boxes of baggies in the southwest bedroom. No other drugs or drug paraphernalia were uncovered in the home. Police officers later interviewed Mr. Avery, who had been arrested away from the home on an outstanding warrant immediately before the search commenced. During this interview, he (1) admitted owning the weapons, (2) identified the weapons, (3) acknowledged selling cocaine from the residence during the previous two-to-three years, and (4) stated that he sometimes personally delivered the cocaine to his customers. II. Search Warrant Mr. Avery first argues on appeal that the evidence obtained during the police search of the 1534 North Broadview residence must be suppressed because the affidavit supporting the search warrant application omitted information concerning the credibility of the government’s confidential informant. Specifically, Mr. Avery argues that the law enforcement agents failed to inform the federal magistrate judge who authorized the search warrant that the informant had a “lengthy criminal history” that spanned several decades and included “thefts, forgeries, or evidence of dishonesty or false statement.” In light of these omissions, Mr. Avery contends, the agents violated the rule announced in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A. Franks Standard “Under Franks, a hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause.” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). “The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods.” United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000). If, after considering the evidence presented at a Franks hearing, the district court concludes by a preponderance of the evidence that the affidavit contains “intentional or reckless false statements,” Kennedy, 131 F.3d" }, { "docid": "12957957", "title": "", "text": "affidavit contained materially false information and that under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), the district court should have held a hearing to determine whether the affidavit, when viewed without the incorrect statements, provided probable cause for Judge Sams’s issuance of the search warrant. Franks holds: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless regard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. Id. We agree with the district court that Lowe included inaccurate statements in his affidavit and that he arguably did so with reckless disregard for their truth. The district court correctly found, however, that even without these statements (i.e., assuming the statements are redacted from the affidavit), the affidavit still provided probable cause for the issuance of the warrant. “Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard.” United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988) (citations omitted). “Whether misstatements or omissions are material to a finding of probable cause is subject to de novo review.” Id. (citation omitted). Lowe’s affidavit relied on information furnished by three informants. The inaccurate statements in the affidavit pertain to the reliability of those informants. The affidavit implied all three informants had provided the police with accurate information in previous criminal investigations. This was incorrect: Lowe and his fellow officers had no reason to believe their sources previously had served as informants. In addition to this error, the affidavit implied the second informant had revealed his identity to the police, when in fact he had remained anonymous. Finally, the affidavit suggested the third informant knew more about “drug culture” and the nature of methamphetamine than he actually did. Officer Lowe’s misstatements are inexcusable, and we by no" }, { "docid": "22936094", "title": "", "text": "the district court’s denial of his motion to suppress the evidence obtained in the search of his residence. Vaandering contends the affidavit submitted by Officer Arnold to obtain a search warrant of Vaandering’s residence contained false and misleading information and omitted other material information. The district court conducted a pretrial Franks hearing but concluded the search warrant was valid. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “The district court’s factual findings as to whether statements in an affidavit were false or were omitted are reversed only if clearly erroneous. Whether any omissions or misstatements are material is a mixed question of law and fact which we review de novo.” United States v. Garza, 980 F.2d 546, 551 (9th Cir.1992) (citation omitted). First, Vaandering argues confidential reliable informant Susan Slay was inherently unreliable because she had a drug habit and admitted under oath that she would lie when it suits her fancy. Vaandering, however, failed to submit any evidence indicating Slay was using drugs during the time period she was acting as a confidential informant for Officer Arnold. Furthermore, Slay’s testimony that she would lie, without more, is irrelevant to show that Officer Arnold should have known that Slay might be giving him untrue information. Vaandering failed to establish that Officer Arnold intentionally or recklessly included false information supplied by Susan Slay in the affidavit. See United States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (the focus of the inquiry is not on whether any information in the officer’s affidavit may be false, but rather, whether the officer intentionally or recklessly included any false information), amended on other grounds, 769 F.2d 1410 (9th Cir.1985). Second, based on the affidavits or statements of five different sources of information denying they gave the information attributed to them in Officer Arnold’s affidavit, Vaan-dering argues Arnold’s affidavit was invalid. Significantly, four of the sources asserted their Fifth Amendment rights and refused to testify at the Franks hearing, and the fifth source could not be located. Once again, Vaandering failed to offer any evidence suggesting that even if" }, { "docid": "7310187", "title": "", "text": "Reinholz also argues that Officer Podany recklessly omitted information. Reinholz claims that Officer Podany omitted that the po lice surveillance of his residence and investigation of its visitors failed to connect Reinholz to drug use or distribution and that Reinholz did not have a criminal record. Reinholz and Chevalier both conclude that the district court did not err in finding the affidavit did not support a finding of probable cause. A search warrant may be invalid if the issuing judge’s probable cause determination was based on an affidavit containing false or omitted statements made knowingly and intentionally or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. at 171, 98 S.Ct. 2674. To prevail on a Franks claim the defendants must show: (1) that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit; and (2) that the affidavit’s remaining content is insufficient to establish probable cause. The same analysis applies to omissions of fact. The defendant must show: (1) that facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. United States v. Gladney, 48 F.3d 309, 313 (8th Cir.1995); see also United States v. Humphreys, 982 F.2d 254, 258 n. 2, 259 (8th Cir.1992) (citing United States v. Lueth, 807 F.2d 719, 726 (8th Cir.1986)), cert. denied, 510 U.S. 814, 114 S.Ct. 61, 126 L.Ed.2d 31 (1993); United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986). The district court did not err in its analysis of Officer Podany’s affidavit. The district court properly analyzed Officer Po-dany’s affidavit as Franks requires. First, the court analyzed whether Officer Poda-ny’s affidavit contained a false statement or omission made knowingly and intentionally, or with reckless disregard for the truth. The district court concluded that the affidavits’ fifth paragraph contained false statements. Second, it turned to the question of whether the affidavit’s remaining content was sufficient to establish probable cause. The district court did" }, { "docid": "23173896", "title": "", "text": "defendant is entitled to a hearing to test the veracity of an affidavit supporting the application under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if he can make a substantial preliminary showing that “the affidavit contained] intentionally or recklessly false statements, and ... [that] the affidavit purged of its falsities would not be sufficient to support a finding of probable cause.” United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.1980). Franks applies to omissions as well as false statements. Stanert, 762 F.2d at 781. We review de novo the district court’s denial of a Franks hearing. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985). We focus here on three omitted pieces of information: (1) the old convictions for forgery and fraud and the attendant parole violations, (2) the recent conviction, and (3) the history of mental illness. We also consider one falsity: the characterization of Keith Meling’s motives as pure.. In determining whether defendant should have been given a hearing on his Franks claims, we engage in a two-part inquiry. First, we must ask whether the FBI intentionally falsified, or recklessly failed to verify, any of the information in the application. If defendant has made a substantial showing that the FBI falsified the applications, we proceed to determine whether the falsities are material: We will remand for a Franks hearing if the applications, purged of their intentional or reckless falsities, would not support a finding of probable cause. 1. Intentional or Reckless Omissions Defendant has made a substantial showing that the FBI knew about Keith Meling’s older convictions and parole violations at the time of the original wiretap application. The FBI was also aware of the $100,-000 reward (it was public knowledge), and it knew Keith Meling had come forward at least in part in the hope of getting the reward money. The FBI thus misled the reviewing judge when it omitted this information from the wiretap application, and when it characterized Keith Meling’s motives as entirely pure. Defendant has not, however, made a substantial showing that the FBI intentionally or" }, { "docid": "6499636", "title": "", "text": "court sentenced Atkin to 63 months imprisonment, three years of supervised release, and a fine of $12,500. Atkin filed this timely appeal. II A. After his indictment, Atkin filed a motion to suppress evidence seized during searches of his office and residence, arguing that the affidavits relied upon in obtaining the search warrants contained material misstatements and omissions essential to a finding of probable cause. The district court denied the motion without conducting an evi-dentiary hearing, concluding that application of the totality of the circumstances test, as required by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), more than justified the issuance of the search warrants. Atkin now argues that the district court erred in denying his motion to suppress without first conducting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). More specifically, Atkin argues that the affidavits submitted in support of the warrants omitted material information and thereby misrepresented the reliability of Reuben Sturman, Sturman’s ex-wife Naomi Delgado, and other Sturman associates who had provided information to the government. We review a district court’s decision on a motion to suppress under two complementary standards: first, we uphold the district court’s findings of fact unless they are clearly erroneous; and second, we review the district court’s legal conclusions de novo. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993). Franks recognized a defendant’s right to challenge the sufficiency of an executed search warrant on the basis that “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... the allegedly false statement is necessary to the finding of probable cause[.]” 438 U.S. at 155-56, 98 S.Ct. at 2676. However, under Franks the defendant is entitled to an evidentiary hearing on the veracity of the statements in the affidavit if and only if (1) there is a substantial preliminary showing that specified portions of the affiant’s averments are deliberately or recklessly false and (2) a finding of probable cause would not be supported by" }, { "docid": "16139266", "title": "", "text": "at 449. While Hart involved a government official who actually participated in drafting the affidavit, see 127 F.3d at 432,- its holding was not so confined. Rather than say that an officer violates the Fourth Amendment when he recklessly drafts or signs an affidavit that includes false information, we held that a “governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in [the] affidavit.” Hart, 127 F.3d at 448; accord United States v. Brown, 298 F.3d 392, 408 & n.9 (5th Cir. 2002) (Dennis, J., concurring) (“[A] defendant is entitled to a Franks hearing upon making a ... showing that á governmental official deliberately or recklessly caused facts that preclude a finding of probable cause to be omitted from a warrant affidavit.”). Indeed, we expressly relied upon the Supreme Court’s statement in Franks that police cannot “ ‘insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.’ ” Hart, 127 F.3d at 448 (quoting Franks, 438 U.S. at 164 n.6, 98 S.Ct. 2674). It would therefore have made very little sense for us to sanction the insulation of officer misstatements merely by having another officer draft an affidavit that includes those misstatements. Moreover, our holding in Hart relied on several cases in which our sister circuits applied Franks to government officials who neither signed nor drafted thé affidavits. See Hart, 127 F.3d at 448 (citing United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (Franks applies to actions of investigator who neither signed nor drafted the affidavit); United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995) (deliberate or reckless omission by informant-government agent can serve as grounds for Franks suppression); United States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (same); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir. 1984) (.Franks applies to “government agent [who] deliberately or recklessly misrepresents information to a second agent, who then innocently includes the misrepresentations in an affidavit”)). Notably, we also cited Hale v. Fish, in which this court applied the Franks" }, { "docid": "22238432", "title": "", "text": "support of the search warrant. 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The burden is on the defendant to show such falsehoods in the affidavit. Id. If the defendant meets this burden, then the question becomes whether the affidavit is sufficient to support probable cause without the falsehoods. Id. If it is sufficient, then the warrant is valid. Id. at 171-72, 98 S.Ct. 2674. If it is insufficient, then the defendant is entitled to a hearing concerning the probable cause in the affidavit. Id. at 172, 98 S.Ct. 2674. This Court has interpreted Franks to include omissions. Hale v. Kart, 396 F.3d 721, 726 n. 4 (6th Cir.2005) (citing Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir.1998)). Defendant claims three omissions: (1) PVF had not lost the millions of dollars as claimed in the affidavit; (2) Defendants’ accounts were fully collaterized; and (3) the banks involved knew of and approved of Defendants’ actions. We agree with the government that the evidence contained in (1) and (2) was not omitted in the affidavit. With respect to (1), paragraphs 20-23 of the affidavit de tailed transfers made by Defendants to cover the negative balances in their checking accounts. With respect to (2), paragraph 17 of the affidavit stated that PVF had a positive equity position against Defendants’ collaterized real estate and that PVF also held $500,000 of stock belonging to Defendants. We agree with Defendant that the affidavit did not state that the banks involved knew of and approved of Defendant’s actions with respect to the check kiting system. As explained, infra, however, we disagree with Defendant’s contention that the banks in fact approved of the check kiting scheme. As a result, no harm occurred from this fact’s omission from the affidavit, and Defendant was not entitled to a Franks hearing. e. Particularity The Fourth Amendment requires that a search warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. This requirement prevents a “ ‘general order to explore and rummage through a person’s belongings.’" }, { "docid": "1590138", "title": "", "text": "Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676, and United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir.1985), evidence seized pursuant to a search warrant or wiretap must be suppressed if the defendant can prove by a preponderance of the evidence that: (1) in the affidavit in support of the search warrant or wiretap, the affiant included a statement which he knew was false or whose veracity he recklessly disregarded, and (2) the false statement was necessary to the magistrate’s finding of probable cause. We have since extended Franks to include deliberate or reckless omissions. United States v. Stanert, 762 F.2d 775, 781, amended, 769 F.2d 1410 (9th Cir.1985). The ultimate question of whether a false statement or omission is necessary to a finding of probable cause, is a mixed question of law and fact which we review de novo. We review the district court’s underlying factual determinations for clear error. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985). In addition to arguing below that the April affidavit failed to establish probable cause and necessity, Tham also argued that two omissions rendered the April affidavit defective and necessitated a full Franks evidentiary hearing. First, the affidavit failed to mention a March 12, 1987 telephone conversation between Angelo Commito and Martin Bacow during which Commito stated that he didn’t want to talk to Tham or involve him in any further discussions about an eye-care insurance kickback scheme. Second, according to Tham, the affidavit also failed to mention that, as of April 20, Tham and Commito had not spoken to each other for three months. The first omission did not render the April affidavit defective or entitle Tham to a full Franks evidentiary hearing. Tham offered no proof that the omission was intentional or reckless. At worst the omission was negligent. Nor did Tham prove that the second omission arose from intentional or reckless conduct. Even if the second omission was the product of bad faith conduct by law enforcement officials, addition of the omitted material would not have eliminated probable cause. Far from terminating the" }, { "docid": "5496359", "title": "", "text": "155-56, 98 S.Ct. 2674; United States v. House, 604 F.2d 1135, 1141, 1141 n. 9 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). Mr. Mathison argues that the affiant in his case intentionally included false statements and omitted exculpatory ones. We agree with the trial court that Mr. Mathison was not entitled to a Franks hearing because he did not make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; see also United States v. Garcia, 785 F.2d 214, 222 (8th Cir.1986), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986). The requirement of a substantial preliminary showing “is not lightly met.” United States v. Wajda, 810 F.2d 754, 759 (8th Cir.1987), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). A mere allegation standing alone, without an offer of proof in the form of a sworn affidavit of a witness or some other reliable corroboration, is insufficient to make the difficult preliminary showing. Franks, 438 U.S. at 171, 98 S.Ct. 2674. While Mr. Mathison identified what he said were specific falsehoods in the affidavit, he offered no proof that the alleged falsehoods were deliberate or reckless. “When no proof is offered that an affiant deliberately lied or recklessly disregarded the truth, a Franks hearing is not required.” United States v. Moore, 129 F.3d 989, 992 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1402, 140 L.Ed.2d 659 (1998). Mr. Mathison further alleges that the affiant omitted material information about one of the informants on whom the affiant relied in gathering information for the affidavit, specifically, that the informant was in jail and charged with grand theft at the time that he made the relevant statements. Mr. Mathison asserts that the omission was “ ‘clearly critical’ to the finding of probable cause,” and thus that recklessness may be inferred from the fact of the omission. United States v. Reivich, 793 F.2d" }, { "docid": "23039623", "title": "", "text": "its progeny. See United States v. Lucht, 18 F.3d 541, 546 (8th Cir.1994); United States v. Ippolito, 774 F.2d 1482, 1484-85 (9th Cir.1985). In Franks, the Supreme Court held that a criminal defendant may challenge a facially sufficient affidavit for a search warrant on the ground that the police knowingly, intentionally or recklessly included false information. 438 U.S. at 155-56, 98 S.Ct. 2674. We have extended the holding of Franks to material omissions. See United States v. Kennedy, 131 F.3d 1371, 1375 (10th Cir.1997); Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.1990). If a wiretap affidavit omits material information that would vitiate either the necessity or the probable cause requirements had it been included, the resultant evidence must be suppressed. Cf. Stewart, 915 F.2d at 582-83 & n. 13. However, a district court’s wiretap authorization “is presumed proper, and the defendant bears the burden of overcoming this presumption.” United States v. Killingsworth, 117 F.3d 1159, 1163 (10th Cir.1997). We review the district court’s factual findings for clear error and its legal rulings de novo. See United States v. Castillo-Garcia, 117 F.3d 1179, 1186 (10th Cir.1997). Before considering issues of materiality and recklessness with respect to the affidavit at issue here, we must first assess whether the affidavit suffered from omissions. On appeal, Mr. Green contends that Agent Burns recklessly failed to mention that Kevin Robinson and Mr. Phillips, key members of the MSMC, were cooperating witnesses. He asserts that if the district court had known of such high-level cooperation, it could not have found that a wiretap was necessary. The district court found after a hearing that Agent Burns was honest in his affidavit. Specifically, the court found that Mr. Robinson entered into a plea agreement in January 1995 in a case unrelated to this one. When Agent Burns filed his affidavit on June 16, 1995, he had no knowledge of Mr. Robinson’s existence. He learned of “K-dog” (Mr. Robinson) sometime later, and K-dog provided some information about the drug conspiracy to law enforcement officials. They found Mr. Robinson unreliable and therefore did not consider him a cooperating witness." }, { "docid": "23099117", "title": "", "text": "affidavit. Elliott presented testimony from his investigators that Lindsey also had told them that the consideration he sought was not “unspecified,” but that he hoped to get his child back and receive help on federal Armed Career Criminal charges. The district court found that the affidavit did not misstate Lindsey’s tip, and that the misstatements and omissions about Lindsey’s criminal history and motives were not intentionally or recklessly made. The district court also found that despite Lindsey’s undisclosed criminal history, his tip to Officer Kempke was sufficiently reliable because of the six tips leading to arrests that he provided in the preceding three months. Ultimately, the district court found that there was probable cause to search Elliott away from the Kelly residence. II FALSE OR OMITTED STATEMENTS In the face of allegations that a search warrant affidavit contained inaccurate information affecting probable cause, a district court must apply a two-step analysis to determine whether a search warrant was supported by probable cause. First, after holding a Franks hearing, the district court must determine whether any “erroneous statements or omissions” in the search warrant affidavit “were made knowingly and intentionally, or with reckless disregard for the truth.” United States v. Senchenko, 133 F.3d 1153, 1158 (9th Cir.1998) (quoting Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). If the district court so finds, it must then determine whether “with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause.” Senchenko, 133 F.3d at 1158. We review for clear error the district court’s findings whether any statements were false or omitted and whether any such statements were intentionally or recklessly made. Id. Review under the clearly erroneous standard is significantly deferential, “requiring for reversal a definite and firm conviction that a mistake has been committed.” United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir.2000) (citation omitted). We review de novo the district court’s determination “[w]hether probable cause is lacking because of alleged misstatements or omissions in the supporting affidavit.” United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir.2000). Whether any omissions or misstatements" }, { "docid": "15501859", "title": "", "text": "to adduce further evidence regarding the affi-ant’s misstatements or omissions regarding the necessity showing for the wiretaps. In Franks v. Delaware, the Supreme Court held that a defendant is entitled to an evidentiary hearing upon “a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, is included by an affiant” in a search warrant affidavit. 438 U.S. at 155-56, 98 S.Ct. 2674. The Supreme Court put it this way: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnésses should be furnished, or their absence satisfactorily explained. Allegations of mere negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity is set to one side, there remains sufficient content in the warrant affidavit, ... no hearing is required. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. While the Franks decision only concerned the inclusion of false material in a search warrant affidavit, courts have recognized that the Franks logic extends to deliberate or bad faith omissions of a material fact and to affidavits in support of electronic surveillance. See United States v. Charles, 213 F.3d 10, 24 (1st Cir.2000) (citation omitted); United States v. Bankston, 182 F.3d 296, 305 (5th Cir.1999); United States v. Green, 175 F.3d 822, 828 (10th Cir.1999) (citations omitted); Ippolito, 774 F.2d at 1485-87 and n. 1. “[A]" }, { "docid": "22250203", "title": "", "text": "knowingly, or with reckless disregard for the truth, was included by the affiant, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if the probable cause was lacking on the face of the warrant. Id. at 155-56, 98 S.Ct. at 2676. The Court emphasized that a defendant must make “allegations of deliberate falsehood or of reckless disregard for the truth ... [a]lle-gations of negligence or innocent mistake are insufficient.” Id. at 171, 98 S.Ct. at 2684. However, the Supreme Court in Franks did not determine whether a defendant was entitled to such a hearing in order to attempt to show deliberate or reckless omissions of material information from an affidavit. Prior to the time of plaintiffs arrest in this case, the Tenth Circuit had not addressed whether the standards of Franks governed omissions as well as affirmative misstatements. However, several of the other circuits had indicated that the “deliberate falsehood” and “reckless disregard” standards of Franks applied to material omissions, as well as affirmative falsehoods. See, e.g., United States v. Ippolito, 774 F.2d 1482, 1486-87 n. 1 (9th Cir.1985); Olson v. Tyler, 771 F.2d 277, 281 n. 5 (7th Cir.1985) (“The Franks rationale applies with equal force where police officers secure a warrant through the intentional or reckless omission of material facts.” (emphasis in original)); United States v. Ferguson, 758 F.2d 843, 848 (2d Cir.) (“Omissions from an affidavit that are claimed to be material are governed by [Franks v. Delaware]), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 125, 88 L.Ed.2d 102 (1985); United States v. Williams, 737 F.2d 594 (7th Cir.1984) (“[w]e acknowledge that the rationale of" }, { "docid": "14993848", "title": "", "text": "“To mandate an eviden-tiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. If a hearing is warranted, the defendant must prove the knowing falsity or recklessness of the affiant’s statements by a preponderance of the evidence. Franks, 438 U.S. at 156, 98 S.Ct. 2674. The defendant must also show that any deliberately false or reckless statement was material to the determination of probable cause. If such a showing is made the offending statement is excised from the affidavit, which is then reexamined for probable cause. Id. at 171-172, 98 S.Ct. 2674; United States v. Veillette, 778 F.2d 899, 904 (1st Cir.1985). A Franks issue is also raised by the intentionally misleading or reckless omission of material information from the affidavit. United States v. Rumney, 867 F.2d 714, 720 (1st Cir.1989). Cf. United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir.1997) (“[A]n affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information.”). The omission of a fact that does not cast doubt on the existence of probable cause is not a material misrepresentation. United States v. Moscatiello, 771 F.2d 589, 603 (1st Cir.1985) judgment vacated on other grounds, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986); United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980). A reviewing court should add any facts intentionally or recklessly omitted from the affidavit and determine whether the new information, if included, would have defeated the finding of probable cause. United States v. Cole, 807 F.2d 262," }, { "docid": "22250204", "title": "", "text": "in order to attempt to show deliberate or reckless omissions of material information from an affidavit. Prior to the time of plaintiffs arrest in this case, the Tenth Circuit had not addressed whether the standards of Franks governed omissions as well as affirmative misstatements. However, several of the other circuits had indicated that the “deliberate falsehood” and “reckless disregard” standards of Franks applied to material omissions, as well as affirmative falsehoods. See, e.g., United States v. Ippolito, 774 F.2d 1482, 1486-87 n. 1 (9th Cir.1985); Olson v. Tyler, 771 F.2d 277, 281 n. 5 (7th Cir.1985) (“The Franks rationale applies with equal force where police officers secure a warrant through the intentional or reckless omission of material facts.” (emphasis in original)); United States v. Ferguson, 758 F.2d 843, 848 (2d Cir.) (“Omissions from an affidavit that are claimed to be material are governed by [Franks v. Delaware]), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 125, 88 L.Ed.2d 102 (1985); United States v. Williams, 737 F.2d 594 (7th Cir.1984) (“[w]e acknowledge that the rationale of Franks applies to omissions”) (cases cited), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 1355, 84 L.Ed.2d 377 (1985); United States v. Johnson, 696 F.2d 115, 118 (D.C.Cir.1982) (“the reasoning of Franks ‘logically extends ... to material omissions’ ” (quoting 2 W. LaFave, Search and Seizure § 4.4 (Supp.1982))); West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 959 (11th Cir.1982); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980) (“allegations of material omissions [are] to be treated essentially similarly to claims of material misstatements”). Therefore, we hold that at the time defendant submitted his affidavit and arrested plaintiff, it was a clearly established violation of plaintiff’s Fourth and Fourteenth Amendment rights to knowingly or recklessly omit from an arrest affidavit infor mation which, if included, would have vitiated probable cause. We further hold it was clearly-established at the time of plaintiffs arrest that it would be highly material whether Officer Brown told defendant that Mr. MacKenzie had recanted on his accusation. Franks does not extend to immaterial omissions. See e.g., United States v. Lefkowitz," } ]
777495
potential threat to order on international waterways has led various courts to conclude that international law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction.... Thus, the assertion of jurisdiction over stateless vessels on the high seas in no way transgresses recognized principles of international law. 679 F.2d at 1382 (citations omitted). We find inapposite the authorities invoked by defendants in their effort to show that a nexus must exist before the United States may exercise jurisdiction over a stateless vessel on the high seas. The nexus requirement has been applied only to a vessel that is registered with, and is flying the flag of, one state to whose jurisdiction it has submitted. See, e.g., REDACTED See also Restatement (Second) of Foreign Relations Law of the United States §§ 18, 28, 33, 34 (1965). In such cases, international law requires the state seeking to assert jurisdiction to show a nexus between it and the foreign vessel that is sufficient to justify supplanting the flag state’s normally “exclusive jurisdiction” granted by Article 6 of the Convention on the High Seas. Only a limited number of such nexuses have been found to be sufficient to warrant permitting a state to assert jurisdiction over another state’s vessel. Restatement (Second) of Foreign Relations Law of the United States §§ 18 (vessel engaged in illegal activity intended to have an effect in the state), 33 (vessel engaged in an activity
[ { "docid": "23575697", "title": "", "text": "* * * Hi . But see note 22 infra. . We need not consider whether Congress intended to reach a conspiracy involving only persons physically outside the United. States and having as its objection only the commission of acts outside its territory. Obviously, we do not touch upon whether the statute would apply to acts committed by non-resident aliens within their own states, or whether there is authority to arrest citizens or non-resident aliens while they reside in a foreign country. . This rule is subject to an exception in cases of outrageous governmental conduct involving emotional and physical brutality, United States v. Toscanino, 2 Cir. 1974, 500 F.2d 267. . The preamble to the Convention on the High Seas states: The States Parties to this Convention desiring to codify the rules of international law relating to the high seas recognizing that the United Nations Conference on the Law of the Sea, held at Geneva from 24 February to 27 April 1958, adopted the following provisions as generally declaratory of established principles of international law. . Nationless ships are not afforded protection under the treaty, see Article 6, C.H.S.; and ships are deemed to have the “nationality of the state whose flag they are entitled to fly.” Article 5, C.H.S. (emphasis added). See Restatement (Second) of The Foreign Relations Law of the United States § 28 and Comment (b) (1965). See also Oppenheim’s International Law 546 (7th ed. 1948); Molvan v. Attorney General for Palestine, 1948 Law Reports (A.C.) 351. There was testimony by the Coast Guard operation officer that the law does not require the flying of flags at night (when the ship was arrested). Although the flags of several nations were found on board, the Coast Guard officer testified that it is customary for a ship to fly the flag of a nation as it enters that • nation’s port. Hence, we may not conclude as a matter of law that the vessel was a nationless one. . The government concedes that for these purposes, the Coast Guard vessel is a warship. See Maul v. United States," } ]
[ { "docid": "2096219", "title": "", "text": "exercise jurisdiction consistent with international law over drug offenders apprehended aboard stateless vessels on the high seas without demonstrating any nexus to the United States. United States v. Victoria, 876 F.2d 1009, 1110-11 (1st Cir.1989); United States v. Alvarez-Mena, 765 F.2d 1259, 1265 (5th Cir.1985); United States v. Pinto-Mejia, 720 F.2d 248, 261 (2d Cir.1983), modified, 728 F.2d 142 (2d Cir.1984); United States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir.1982), cert. denied, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983); United States v. Howard-Arias, 679 F.2d 363, 371-72 (4th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). We have recognized the substantial protections forfeited by stateless vessels on the high seas. United States v. Rubies, 612 F.2d 397, 403 (9th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). There is much discussion in the briefs and the district court opinion regarding objective territorial, protective and universal jurisdiction. These are each principles of international law that provide a basis for one nation to apply its law extraterritorially. United States v. Vasquez-Velasco, 15 F.3d 833, 840 (9th Cir.1994). Under appropriate circumstances, these principles would allow the United States to exercise jurisdiction over another nation’s vessel operating on the high seas. However, international law “restrictions on the right to assert jurisdiction over foreign vessels on the high seas and the concomitant exceptions have no applicability in connection with stateless vessels.” Marino-Garcia, 679 F.2d at 1382. Such vessels are “international pariahs.” Id. By attempting to shrug the yoke of any nation’s authority, they subject themselves to the jurisdiction of all nations “solely as á consequence of the vessel’s status as stateless.” Id. at 1383 (emphasis in original). The nexus requirement in Davis is grounded on the international law principles applicable to foreign flag vessels. The Davis court cited United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987) for this requirement. Peterson, in turn, concluded that evidence showing that drugs were bound for the United States provided “more than a sufficient nexus” to justify jurisdiction. 812 F.2d at 493. However, the" }, { "docid": "1241363", "title": "", "text": "defendant apprehended on a foreign-flag ship, due process requires “a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair.” 905 F.2d at 249-50 (internal citation and footnote omitted). Shi argues that no such nexus exists here. Yet before we reach the question of whether a jurisdictional nexus exists, we must first determine whether such nexus is required. The Due Process Clause requires that a defendant prosecuted in the United States “should reasonably anticipate being haled into court in this country.” United States v. Moreno-Morillo, 334 F.3d 819, 827 (9th Cir.2003) (internal quotation marks and citation omitted). The MDLEA prohibits the possession of narcotics on the high seas. Because some states do not consider such conduct criminal, we held in Davis that due process requires a foreign defendant apprehended on a foreign flag ship to have some connection to the United States before he can be prosecuted in a domestic court. 905 F.2d at 248-49. Yet in United States v. Caicedo, 47 F.3d 370 (9th Cir.1995), we concluded that due process does not require any such nexus when the MDLEA is applied to foreign defendants apprehended on stateless vessels because “[s]uch vessels are international pariahs,” that, “by attempting to shrug the yoke of any nation’s authority, ... subject themselves to the jurisdiction of all nations.” Id. at 372 (internal quotation marks and citation omitted). We need not determine whether the Full Means No. 2 was a foreign-flag or stateless vessel at the time it was intercepted by the Coast Guard in order to resolve this case. Instead, we abide by our instruction in Caicedo that “[a] nexus requirement, imposed as a matter of due process, makes sense when the ‘rough guide’ of international law also requires a nexus.” Id.; see also Davis, 905 F.2d at 249 n. 2 (explaining that while not binding, “[flnternational law principles may be useful as a rough guide of whether a sufficient nexus exists between the defendant and the United States”). In applying the “rough guide” of international law, we turn to the principle of" }, { "docid": "3856202", "title": "", "text": "intended to assert jurisdiction to the maximum extent allowable under international law. As a general matter, international law prohibits any country from asserting jurisdiction over foreign vessels on the high seas. See United States v. Marino-Garcia, 679 F.2d 1373, 1380 (11th Cir.1982). Defendants concede that this general rule does not apply if a “sufficient nexus” indicates that acts aboard the foreign vessel are likely to have criminal consequences within the United States. See Peterson, 812 F.2d at 493; Restatement (Second) of Foreign Relations § 18. However, defendants argue that this exception is not present here, because the United States has not charged defendants with conspiracy to import a controlled substance, see 21 U.S.C. § 963, but rather has proceeded under Section 1903, which proscribes conspiracy and possession with intent to distribute. Whether the facts necessary to establish jurisdiction must also be the basis for the criminal violation ultimately charged, and whether those facts exist in this case, are however questions which need not be answered here. Rather, this court is of the opinion that established principles of protective jurisdiction support the extraterritorial reach of Section 1903. The protective principle recognizes that a nation may assert jurisdiction over foreign vessels on the high seas that threaten its security or governmental functions, without the requirement of demonstrating an actual effect on the nation itself. See Peterson, 812 F.2d at 493-94; Restatement (Second) of Foreign Relations § 33 (“A state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.”). Congress has specifically found “that trafficking in controlled substances aboard vessels is a serious international problem and is universally condemned. Moreover, such trafficking presents a specific threat to the security and societal well-being of the United States.” 46 U.S.C. § 1902. The Ninth Circuit agreed in U.S. v. Peterson, 812 F.2d at 493-94. International law is merely an aid to statutory interpretation; it" }, { "docid": "23238354", "title": "", "text": "of comity nor of any breach of international law can arise if there is no State under whose flag the vessel sails .... (emphasis added). Id. at 369. Thus the assertion of jurisdiction over stateless vessels on the high seas in no way transgresses recognized principles of international law. Accord, United States v. Dominguez, 604 F.2d 304, 308 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980) (concluding that stateless vessels have “no rights under international law.”); see also United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980); United States v. Cortes, supra, 588 F.2d at 110. Furthermore, commentators discussing the issue have unanimously agreed that all nations have the right to assert jurisdiction over stateless vessels on the high seas. 9 M. Whiteman, Digest of International Law 21 (1968); I. Brownlie, Principles of Public International Law 212,222 (1967); H. Meyers, supra, at 318-20 (1967); 1 L. Oppenheim, International Law 546 (7th ed. 1948); 2 G. Hackworth, Digest of International Law 725 (1942); R. Rienow, Test of the Nationality of a Merchant Vessel 12-15 (1937). See also M. McDougal & W. Burke, supra, at 1084-85. We conclude, therefore, that international law permits any nation to subject stateless vessels on the high seas to its jurisdiction. Such jurisdiction neither violates the law of nations nor results in impermissible interference with another sovereign nation’s affairs. We further conclude that there need not be proof of a nexus between the stateless vessel and the country seeking to effectuate jurisdiction. Jurisdiction exists solely as a consequence of the vessel’s status as stateless. Such status makes the vessel subject to action by all nations proscribing certain activities aboard stateless vessels and subjects those persons aboard to prosecution for violating the proscriptions. (c) Having determined that international law in no way restricts the right of the United States to assert jurisdiction over stateless vessels on the high seas, we hold that Section 955a properly extends the criminal jurisdiction of this country to any stateless vessel in" }, { "docid": "23238351", "title": "", "text": "617 F.2d 1063, 1091 n.6 (5th Cir. 1980) (Roney, J. concurring); A. Higgens & C. Colombos, supra, § 255 at 194 (1945); see also United States v. Arra, 630 F.2d 836, 840 (1st Cir. 1980). This principle is, however, subject to recognized exceptions. Jurisdiction will lie where a nexus exists between a foreign vessel and the nation seeking to assert jurisdiction. See United States v. Petrulla, 457 F.Supp. 1367, 1371 (M.D.Fla.1978). Thus, under the objective principle, a vessel engaged in illegal activity intended to have an effect in a country is amenable to that country’s jurisdiction. Similarly, the protective principle allows nations to assert jurisdiction over foreign vessels on the high seas that threaten their security or governmental functions. Jurisdiction may also be obtained under the passive personality principle over persons or vessels that injure the citizens of another country. Finally, all nations have jurisdiction to board and seize vessels engaged in universally prohibited activities such as the slave trade or piracy. These restrictions on the right to assert jurisdiction over foreign vessels on the high seas and the concomitant exceptions have no applicability in connection with stateless vessels. Vessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas. Convention on the High Seas, supra, Art. 6; United States v. Cortes, 588 F.2d 106, 109 (5th Cir. 1979); United States v. Monroy, 614 F.2d 61, 64 (5th Cir.), cert. denied, 449 U.S. 892, 101 S.Ct. 250, 66 L.Ed.2d 117 (1980); United States v. May-May, 470 F.Supp. 384, 398 (S.D.Tex.1979). Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent “floating sanctuaries from authority” and constitute a potential threat to the order and stability of navigation on the high seas. H. Meyers, The Nationality of Ships 318 (1967) ; M. McDougal & W. Burke, The Public Order of the Oceans 1084 (1962); see also United States v. Newball, 524 F.Supp. 715, 720 (E.D.N.Y.1981); United States v. Petrulla, supra, 457 F.Supp. at 1371; 9 M. Whiteman, Digest of International Law 21 (1968) (“The registration of ships" }, { "docid": "23238377", "title": "", "text": "the Congress of the United States should by appropriate legislation include drug trafficking in the same category as slave trafficking and piracy and authorize prosecution of drug trafficking on the high seas as offenses against the Law of Nations within the meaning of Art. I, § 8, Clause 10 of the United States Constitution. This would extend the criminal jurisdiction of the United States to all foreign vessels on the high seas that are engaged in drug trafficking. . The remaining arguments were raised only by the defendants in United States v. Marino-Garcia. . See note 10, supra. . Defendants also complain that it is fundamentally unfair to presume that crewmen on board a non-American flag vessel en route to a foreign country had notice of Section 955a. We find the contention specious. Although defendants may not have had specific knowledge of Section 955a, they can be charged with a general understanding of international law, particularly as it relates to stateless vessels on the high seas. United States v. Angola, 514 F.Supp. 933, 935 (S.D.Fla.1981). As previously noted, the law of nations permits all nations to assert jurisdiction over stateless vessels. Thus defendants should have been aware that the FOUR ROSES was amenable to the jurisdiction of the United States. Further, there has been a growing trend among nations to make trafficking in controlled substances a universal crime. See Single Convention on Narcotic Drugs, 18 U.S.T. § 1407. More specifically, the United States has long been seizing stateless vessels trafficking in controlled substances on the high seas. See Note 1, supra. The defendants should therefore have been on notice that the United States or any other nation concerned with drug trafficking has commenced subjecting stateless vessels to its jurisdiction. Accordingly, we conclude that Section 955a does not result in “unfair surprise” in violation of the due process clause. . We note that the seizure does not seem to have been entirely random. Evidence in the record indicated that the Coast Guard has a policy of stopping every American vessel under 200 feet in length encountered by cutters. The FOUR ROSES" }, { "docid": "23238350", "title": "", "text": "Marianna Flora, 24 U.S. (11 Wheat) 1, 43, 6 L.Ed. 405 (1826) (“Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriate to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there.”); Le Louis, [1817] 2 Dods 210, 243-44, Eng.Rep. 1464, 1475 (1923); see also G. Mangone, The Elements of International Law 163 (1967); H. Briggs, The Law of Nations 329 (rev.ed. 1952); H. Grotius, Mare Librum (1661). To insure the principle of freedom of the seas, international law generally prohibits any country from asserting jurisdiction over foreign vessels on the high seas. The S.S. Lotus, [1927] P.C.I.J. ser. A, No. 10 at 25; see also G. Mangone, supra at 163; A. Higgens & C. Colombos, The International Law of the Sea § 270 at 206 (1945). Indeed, such vessels are normally considered within the exclusive jurisdiction of the country whose flag they fly. Convention on the High Seas, supra, Art. 6; United States v. Williams, 617 F.2d 1063, 1091 n.6 (5th Cir. 1980) (Roney, J. concurring); A. Higgens & C. Colombos, supra, § 255 at 194 (1945); see also United States v. Arra, 630 F.2d 836, 840 (1st Cir. 1980). This principle is, however, subject to recognized exceptions. Jurisdiction will lie where a nexus exists between a foreign vessel and the nation seeking to assert jurisdiction. See United States v. Petrulla, 457 F.Supp. 1367, 1371 (M.D.Fla.1978). Thus, under the objective principle, a vessel engaged in illegal activity intended to have an effect in a country is amenable to that country’s jurisdiction. Similarly, the protective principle allows nations to assert jurisdiction over foreign vessels on the high seas that threaten their security or governmental functions. Jurisdiction may also be obtained under the passive personality principle over persons or vessels that injure the citizens of another country. Finally, all nations have jurisdiction to board and seize vessels engaged in universally prohibited activities such as the slave trade or piracy. These restrictions on the right to assert jurisdiction over foreign vessels on the" }, { "docid": "4078400", "title": "", "text": "exist before the United States may exercise jurisdiction over a stateless vessel on the high seas. The nexus requirement has been applied only to a vessel that is registered with, and is flying the flag of, one state to whose jurisdiction it has submitted. See, e.g., United States v. Cadena, 585 F.2d 1252, 1257-58 (5th Cir. 1978). See also Restatement (Second) of Foreign Relations Law of the United States §§ 18, 28, 33, 34 (1965). In such cases, international law requires the state seeking to assert jurisdiction to show a nexus between it and the foreign vessel that is sufficient to justify supplanting the flag state’s normally “exclusive jurisdiction” granted by Article 6 of the Convention on the High Seas. Only a limited number of such nexuses have been found to be sufficient to warrant permitting a state to assert jurisdiction over another state’s vessel. Restatement (Second) of Foreign Relations Law of the United States §§ 18 (vessel engaged in illegal activity intended to have an effect in the state), 33 (vessel engaged in an activity that threatens the state’s security or governmental functions), 34 (vessel engaged in a universally prohibited activity, such as piracy) (1965). See United States v. Marino-Garcia, supra, 679 F.2d at 1380-82. But we find no authority in international law for requiring any nexus where the ship otherwise would be subject to the jurisdiction of no state. We conclude, therefore, that international law provides no bar to an assertion of jurisdiction over a stateless vessel by the United States pursuant to § 955a(a), even absent proof that the vessel’s operators intended to distribute their cargo in the United States. Accord, United States v. Marino-Garcia, supra, 679 F.2d at 1383; United States v. Howard-Arias, supra, 679 F.2d at 372. Consequently, we conclude that a properly supported finding by the district court that the RICARDO was stateless would, in itself, be sufficient to establish the court’s jurisdiction over the defendants. ' IV. CONSTITUTIONALITY OF THE STOP AND BOARDING The district court rejected defendants’ constitutional challenges to the Coast Guard’s stopping and boarding of the RICARDO principally on the" }, { "docid": "3406328", "title": "", "text": "defendant’s criminal conduct and the United States.” (internal quotation marks and alterations omitted) (quoting Rendon, 354 F.3d at 1325)). The Felonies Clause empowers Congress to punish crimes committed on the high seas. Saac, 632 F.3d at 1210. And “inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, we see no reason to conclude that it is 'fundamentally unfair’ for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.” Estupinan, 453 F.3d at 1339 (internal quotation marks omitted). Congress “may assert extraterritorial jurisdiction over vessels in the high seas that are engaged in conduct that ‘has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.’ ” Tinoco, 304 F.3d at 1108 (quoting United States v. Gonzalez, 776 F.2d 931, 939 (11th Cir.1985)). And “[t]he protective principle does not require that there be proof of an actual or intended effect inside the United States.” Gonzalez, 776 F.2d at 939. Congress also may assert extraterritorial jurisdiction because “the law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction.” United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1379 (11th Cir.2011) (internal quotation marks omitted). Stateless vessels, such as the one Campbell boarded, are “international pariahs” that have “no internationally recognized right to navigate freely on the high seas.” Marino-Garcia, 679 F.2d at 1382; see also United States v. Perlaza, 439 F.3d 1149, 1161 (9th Cir.2006) (discussing that for stateless vessels, no proof of nexus is required); Rendon, 354 F.3d at 1325 (“Because stateless vessels do not fall within the veil of another sovereign’s territorial protection, all nations can treat them as their own territory and subject them to their laws.” (internal quotation marks omitted)). Campbell argues that Congress cannot proscribe drug trafficking on the high seas under the Felonies Clause because only capital crimes were considered felonies at the Founding, but we disagree. Although we have recognized that “there is a dearth of authority interpreting the scope of Congress’s power under the [Felonies] Clause,” Saac, 632 F.3d at 1209, the First" }, { "docid": "2096220", "title": "", "text": "apply its law extraterritorially. United States v. Vasquez-Velasco, 15 F.3d 833, 840 (9th Cir.1994). Under appropriate circumstances, these principles would allow the United States to exercise jurisdiction over another nation’s vessel operating on the high seas. However, international law “restrictions on the right to assert jurisdiction over foreign vessels on the high seas and the concomitant exceptions have no applicability in connection with stateless vessels.” Marino-Garcia, 679 F.2d at 1382. Such vessels are “international pariahs.” Id. By attempting to shrug the yoke of any nation’s authority, they subject themselves to the jurisdiction of all nations “solely as á consequence of the vessel’s status as stateless.” Id. at 1383 (emphasis in original). The nexus requirement in Davis is grounded on the international law principles applicable to foreign flag vessels. The Davis court cited United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987) for this requirement. Peterson, in turn, concluded that evidence showing that drugs were bound for the United States provided “more than a sufficient nexus” to justify jurisdiction. 812 F.2d at 493. However, the only case cited in the relevant portion of Peterson deals with the nexus required under international law for jurisdiction over foreign flag vessels. Id. (citing United States v. Baker, 609 F.2d 134 (5th Cir.1980)). According to the Baker court’s own statement, that case “appeared] to have no constitutional implications.” 609 F.2d at 136. In any event, subsequent to Baker, the Fifth Circuit concluded that when a stateless vessel was involved, § 1903’s substantially similar predecessor did not impose any such nexus requirement, and omission of this requirement, was consistent with due process. Alvarez-Mena, 765 F.2d at 1264-66. A nexus requirement, imposed as a matter of due process, makes sense when the “rough guide” of international law also requires a nexus. A defendant would have a legitimate expectation that because he has subjected himself to the laws of one nation, other nations will not be entitled to exercise jurisdiction without some nexus. Punishing crimes committed on a foreign flag ship is like punishing a crime committed on foreign soil; it is an intrusion into the sovereign" }, { "docid": "2096217", "title": "", "text": "to the jurisdiction of the United States” is defined to include “a vessel without nationality.” 46 U.S.C. app. § 1903(c)(1)(A). The act explicitly provides for extraterritorial effect. § 1903(h). Moreover, it extends the United States’ jurisdiction over stateless vessels on the high seas without enumerating any further requirements, and particularly without requiring that there be a nexus between a defendant’s conduct aboard a stateless vessel and the United States. See § 1903(c)(1)(A); United States v. Alvarez-Mena, 765 F.2d 1259, 1264 (5th Cir.1985) (discussing similar provision in predecessor statute). On its face, the act applies to the defendants’ conduct. The defendants’ due process argument is premised primarily on our recent statement that “[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States.” United States v. Davis, 905 F.2d 245, 248-49 (9th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Davis examined the application of § 1903 to a defendant apprehended on the high seas aboard a ship of British registry. We found the nexus requirement satisfied by facts indicating that the defendant intended to smuggle drugs into the United States. 905 F.2d at 249. Davis’s nexus requirement has been reiterated in United States v. Aikins, 946 F.2d 608, 613 (9th Cir.1990) and United States v. Kahn, 35 F.3d 426, 429-30 (9th Cir.1994). Davis, Aikins and Kahn do not control the result in this case. Those cases all involved defendants apprehended on foreign flagged vessels. The radically different treatment afforded to stateless vessels as a matter of international law convinces us that there is nothing arbitrary or fundamentally unfair about prosecuting the defendants in the United States. We decline the defendants’ invitation to extend Davis and its progeny to a stateless vessel on the high seas. Principles of international law are “useful as a rough guide” in determining whether application of the statute would violate due process. Davis, 905 F.2d at 249 n. 2. The First, Second, Fourth, Fifth and Eleventh Circuits agree that the United States may" }, { "docid": "23238352", "title": "", "text": "high seas and the concomitant exceptions have no applicability in connection with stateless vessels. Vessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas. Convention on the High Seas, supra, Art. 6; United States v. Cortes, 588 F.2d 106, 109 (5th Cir. 1979); United States v. Monroy, 614 F.2d 61, 64 (5th Cir.), cert. denied, 449 U.S. 892, 101 S.Ct. 250, 66 L.Ed.2d 117 (1980); United States v. May-May, 470 F.Supp. 384, 398 (S.D.Tex.1979). Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent “floating sanctuaries from authority” and constitute a potential threat to the order and stability of navigation on the high seas. H. Meyers, The Nationality of Ships 318 (1967) ; M. McDougal & W. Burke, The Public Order of the Oceans 1084 (1962); see also United States v. Newball, 524 F.Supp. 715, 720 (E.D.N.Y.1981); United States v. Petrulla, supra, 457 F.Supp. at 1371; 9 M. Whiteman, Digest of International Law 21 (1968) (“The registration of ships and the need to fly the flag of the country where the ship is registered are considered essential for the maintenance of order on the open sea.”). The absence of any right to navigate freely on the high seas coupled with the potential threat to order on international waterways has led various courts to conclude that international law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction. For example, in Molvan v. Attorney-General for Palestine, A.C. 351 (1948), the British seized a stateless vessel on the high seas. The appellants contended that Great Britain violated the internationally recognized right of “freedom of the seas” by asserting jurisdiction over a stateless vessel on the high seas. The English Court rejected the argument. [T]he freedom of the open sea, whatever those words may connote, is a freedom of ships which fly, and are entitled to fly, the flag of a State which is within the comity of nations. The [stateless vessel in this case] did not satisfy these elementary conditions. No question" }, { "docid": "4078396", "title": "", "text": "state’s jurisdiction. Each state has the responsibility of fixing the conditions “for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag.... [I]n particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” Id. Art. 5. To eliminate any confusion over which state has jurisdiction over a ship, Article 6 provides that a ship may sail under the flag of only one state and that while doing so, it is generally subject to that state’s exclusive jurisdiction. A ship may not change flags during a voyage except when a real transfer of ownership or registry occurs, and a ship that flies under the flags of more than one state, claiming the nationality of whichever it deems convenient, is considered to be a ship without nationality that may not claim the protection of any of the nationalities in question. Id. The suggestion underlying these principles is that a stateless vessel, which does not sail under the flag of one state to whose jurisdiction it has submitted, may not claim the protection of international law and does not have the right to travel the high seas with impunity. There is ample evidence that Congress properly understood that these principles were consistent with its desire that' § 955a reach stateless vessels on the high seas whether or not the narcotics carried were intended for distribution in the United States. During the hearings on H.R. 2538, Congress was repeatedly presented with statements by experts, reflecting what was apparently a common understanding among those interested in the bill, that the United States could, consistent with international law, assert jurisdiction over stateless vessels on the high seas. See, e.g., Hearings, supra, at 48 (statement of Peter B. Bensinger, Administrator of the United States Drug Enforcement Administration) (“We can, under both international law and United States case law, assert jurisdiction over these [stateless] vessels ....”); id. at 51 (statement of Robert Chasen, Commissioner of the United States Customs Service) (“ ‘Stateless’ vessels ..." }, { "docid": "23238353", "title": "", "text": "and the need to fly the flag of the country where the ship is registered are considered essential for the maintenance of order on the open sea.”). The absence of any right to navigate freely on the high seas coupled with the potential threat to order on international waterways has led various courts to conclude that international law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction. For example, in Molvan v. Attorney-General for Palestine, A.C. 351 (1948), the British seized a stateless vessel on the high seas. The appellants contended that Great Britain violated the internationally recognized right of “freedom of the seas” by asserting jurisdiction over a stateless vessel on the high seas. The English Court rejected the argument. [T]he freedom of the open sea, whatever those words may connote, is a freedom of ships which fly, and are entitled to fly, the flag of a State which is within the comity of nations. The [stateless vessel in this case] did not satisfy these elementary conditions. No question of comity nor of any breach of international law can arise if there is no State under whose flag the vessel sails .... (emphasis added). Id. at 369. Thus the assertion of jurisdiction over stateless vessels on the high seas in no way transgresses recognized principles of international law. Accord, United States v. Dominguez, 604 F.2d 304, 308 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980) (concluding that stateless vessels have “no rights under international law.”); see also United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980); United States v. Cortes, supra, 588 F.2d at 110. Furthermore, commentators discussing the issue have unanimously agreed that all nations have the right to assert jurisdiction over stateless vessels on the high seas. 9 M. Whiteman, Digest of International Law 21 (1968); I. Brownlie, Principles of Public International Law 212,222 (1967); H. Meyers, supra, at 318-20 (1967); 1 L. Oppenheim, International Law 546 (7th ed. 1948); 2" }, { "docid": "4078394", "title": "", "text": "quantity of the narcotic or dangerous drug, giving rise to the inference of trafficking,” id. at 10, and that “it would not be necessary to prove that the vessel or the controlled substance was bound for the United States,” id. at 12. Congress’s explicit intention, therefore, was to extend the reach of § 955a to foreigners on stateless vessels on the high seas who possess large quantities of narcotics that they may or may not intend for distribution in the United States. Defendants point out that despite this explicit intention, Congress also expressed its intention that § 955a be consistent with the strictures of international law, see, e.g., H.R.Rep. at 11 (“section [955a] is designed to prohibit all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law”), and they argue that international law permits the extension of the jurisdiction envisioned by Congress only if there is some nexus between the vessel and the state seeking to assert jurisdiction. Defendants’ argument fails, however, since it apparently was Congress’s understanding — and correctly so — -that international law does not provide such protection to vessels that are stateless. One of the basic principles of international law is that “all nations have an equal and untrammelled right to navigate on the high seas.” United States v. Marino-Garcia, 679 F.2d 1373, 1380 (11th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983); see Convention on the High Seas Art. 2. With this right, of course, comes responsibility. To preserve all nations’ freedom to travel on the high seas and to avoid conflict among nations, Article 2 of the Convention provides that each state must exercise its right “with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.” To enforce compliance with these principles among individual ships traveling on the high seas, Articles 5 and 6 of the Convention provide that a ship has the nationality of the state whose flag it flies and that the ship is subject to that" }, { "docid": "4078399", "title": "", "text": "F.2d 61, 64 (5th Cir.) (implicitly construing 14 U.S.C. § 89(a)), cert. denied, 449 U.S. 892, 101 S.Ct. 250, 66 L.Ed.2d 117 (1980). As the court in Marino-Garcia put it, [vjessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas.... Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent “floating sanctuaries from authority” and constitute a potential threat to the order and stability of navigation on the high seas.... The absence of any right to navigate freely on the high seas coupled with the potential threat to order on international waterways has led various courts to conclude that international law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction.... Thus, the assertion of jurisdiction over stateless vessels on the high seas in no way transgresses recognized principles of international law. 679 F.2d at 1382 (citations omitted). We find inapposite the authorities invoked by defendants in their effort to show that a nexus must exist before the United States may exercise jurisdiction over a stateless vessel on the high seas. The nexus requirement has been applied only to a vessel that is registered with, and is flying the flag of, one state to whose jurisdiction it has submitted. See, e.g., United States v. Cadena, 585 F.2d 1252, 1257-58 (5th Cir. 1978). See also Restatement (Second) of Foreign Relations Law of the United States §§ 18, 28, 33, 34 (1965). In such cases, international law requires the state seeking to assert jurisdiction to show a nexus between it and the foreign vessel that is sufficient to justify supplanting the flag state’s normally “exclusive jurisdiction” granted by Article 6 of the Convention on the High Seas. Only a limited number of such nexuses have been found to be sufficient to warrant permitting a state to assert jurisdiction over another state’s vessel. Restatement (Second) of Foreign Relations Law of the United States §§ 18 (vessel engaged in illegal activity intended to have an effect in the state), 33 (vessel engaged in an" }, { "docid": "2096218", "title": "", "text": "high seas aboard a ship of British registry. We found the nexus requirement satisfied by facts indicating that the defendant intended to smuggle drugs into the United States. 905 F.2d at 249. Davis’s nexus requirement has been reiterated in United States v. Aikins, 946 F.2d 608, 613 (9th Cir.1990) and United States v. Kahn, 35 F.3d 426, 429-30 (9th Cir.1994). Davis, Aikins and Kahn do not control the result in this case. Those cases all involved defendants apprehended on foreign flagged vessels. The radically different treatment afforded to stateless vessels as a matter of international law convinces us that there is nothing arbitrary or fundamentally unfair about prosecuting the defendants in the United States. We decline the defendants’ invitation to extend Davis and its progeny to a stateless vessel on the high seas. Principles of international law are “useful as a rough guide” in determining whether application of the statute would violate due process. Davis, 905 F.2d at 249 n. 2. The First, Second, Fourth, Fifth and Eleventh Circuits agree that the United States may exercise jurisdiction consistent with international law over drug offenders apprehended aboard stateless vessels on the high seas without demonstrating any nexus to the United States. United States v. Victoria, 876 F.2d 1009, 1110-11 (1st Cir.1989); United States v. Alvarez-Mena, 765 F.2d 1259, 1265 (5th Cir.1985); United States v. Pinto-Mejia, 720 F.2d 248, 261 (2d Cir.1983), modified, 728 F.2d 142 (2d Cir.1984); United States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir.1982), cert. denied, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983); United States v. Howard-Arias, 679 F.2d 363, 371-72 (4th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). We have recognized the substantial protections forfeited by stateless vessels on the high seas. United States v. Rubies, 612 F.2d 397, 403 (9th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). There is much discussion in the briefs and the district court opinion regarding objective territorial, protective and universal jurisdiction. These are each principles of international law that provide a basis for one nation to" }, { "docid": "4078398", "title": "", "text": "also present prosecutorial problems, although permission to board is not required.”); id. at 55 (statement of Morris D. Busby, Director of Ocean Affairs, OES Bureau, Department of State) (“There is also an exception [to international law] which allows us to board a vessel on the high seas which is without nationality ....”). In light of these principles and Congress’s manifest intentions, courts have agreed uniformly that stateless vessels on the high seas are, by virtue of their statelessness, subject to the jurisdiction of the United States. United States v. Marino-Garcia, supra, 679 F.2d at 1382-83 (construing § 955a); United States v. Howard-Arias, supra, 679 F.2d at 371 (same); United States v. Rubies, 612 F.2d 397, 403 (9th Cir.1979) (construing 14 U.S.C. § 89(a)), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980); United States v. Dominguez, 604 F.2d 304, 308 (4th Cir.1979) (same), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980); United States v. Cortes, 588 F.2d 106, 109 (5th Cir.1979) (same); see United States v. Monroy, 614 F.2d 61, 64 (5th Cir.) (implicitly construing 14 U.S.C. § 89(a)), cert. denied, 449 U.S. 892, 101 S.Ct. 250, 66 L.Ed.2d 117 (1980). As the court in Marino-Garcia put it, [vjessels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas.... Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent “floating sanctuaries from authority” and constitute a potential threat to the order and stability of navigation on the high seas.... The absence of any right to navigate freely on the high seas coupled with the potential threat to order on international waterways has led various courts to conclude that international law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction.... Thus, the assertion of jurisdiction over stateless vessels on the high seas in no way transgresses recognized principles of international law. 679 F.2d at 1382 (citations omitted). We find inapposite the authorities invoked by defendants in their effort to show that a nexus must" }, { "docid": "2096222", "title": "", "text": "territory of another nation. As a matter of comity and fairness, such an intrusion should not be undertaken absent proof that there is a connection between the criminal conduct and the United States sufficient to justify the United States’ pursuit of its interests. But where a defendant attempts to avoid the law of all nations by travelling on a stateless vessel, he has forfeited these protections of international law and can be charged with the knowledge that he has done so. Marino-Garcia, 679 F.2d at 1384 n. 19. Because stateless vessels do not fall within the veil of another sovereign’s territorial protection, all nations can treat them as their own territory and subject them to their laws. Id. at 1382-83. The result we reach is consistent with all other federal circuits that have addressed the question. The Third Circuit has held directly that § 1903 can be applied consistently with due process to punish conduct aboard a foreign flag vessel even when there is no nexus with the United States. United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994). Although many of the other circuit court decisions cited above focussed primarily on the international law question, opinions from the Fourth, Fifth and Eleventh Circuits explicitly acknowledge and reject any due process problem. Alvarez-Mena, 765 F.2d at 1266 (5th Cir.) (elimination of a nexus requirement permissible “at least where, as here, there is no basis for any claim of due process violation”); Howard-Arias, 679 F.2d at 371-72 (4th Cir.) (affirming as consistent with due process jurisdiction over defendants apprehended on stateless vessels with “intent to distribute [narcotics] anywhere”); Marino-Garcia, 679 F.2d at 1384 (11th Cir.) (“[Failure to unmistakably accede to the authority of a single sovereign while traversing the high seas will render [ship’s occupants] subject to the criminal jurisdiction of the United States. The Constitution does not require more.”). The defendants do not point to any jurisdiction where the conduct they are alleged to have been engaged in was legal, nor are we aware of any. See" }, { "docid": "12350452", "title": "", "text": "to prosecute a foreign crew member on a non-United States vessel for violation of federal controlled substance laws because there is no nexus between the person, vessel or acts and the United States. Appellants’ argument is foreclosed by the recent decision of United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982), which concluded that [tjhere need not be proof of a nexus between the stateless vessel and the country seeking to effectuate jurisdiction. Jurisdiction exists solely as a consequence of the vessel’s status as stateless. Such status makes the vessel subject to action by all nations proscribing certain activities aboard stateless vessels and subjects those persons aboard to prosecution for violating the proscriptions. Id. at 1383. Thus, Marino-Garcia, held that 21 U.S.C. Section 955a “properly extends the criminal jurisdiction of this country to any stateless vessel in international waters engaged in the distribution of controlled substances.” 679 F.2d at 1383. JURY INSTRUCTION The decision in Marino-Garda is predicated on the vessel’s status as stateless. Appellants, however contend that their convictions must be reversed because the jury instruction on stateless vessels was error. In accordance with the convention on the High Seas, the trial judge instructed the jury that “a 'vessel subject to jurisdiction of the United States’ is a vessel which is not validly registered under the law of any nation; or a vessel which claims two or more nationalities according to its convenience, notwithstanding the validity of any claimed nationality... . ” Appellants contend that the jury instruction was erroneous because it was not supported by the evidence. Specifically, Appellants contend that the government failed to adduce evidence that Appellants intended to use two flags or nationalities “according to convenience.” The evidence at trial was that the Coast Guard received two different responses to questions concerning the vessel’s country of registration (Costa Rica and Honduras), as well as inconsistent answers to other questions. There was testimony that the “Ocean Lady” was flying a Honduran flag and that the vessel was not flying any flag. Under these circumstances, the jury instruction was proper. It was within the jury’s province to" } ]
454851
of the assignment to Harriscorp. The assignment conferred no rights on Harriscorp under the Lanham Act, however, unless the goodwill of the business was assigned along with the mark. 15 U.S.C. § 1060 (1976). The judge below found that no goodwill had been transferred in the assignment. First, we recognize that, although the assignment stated that the mark was assigned “together with the good will of the business symbolized by the mark,” such a recitation is not necessarily dispositive, e.g., Haymaker Sports, Inc. v. Turian, 581 F.2d 257 (C.C.P.A. 1978). Second, we find that it is not necessary to the continuing validity of the mark that tangible assets of the assignor pass to the assignee. E.g., REDACTED Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 680 (C.C.P.A. 1971). The plaintiff contends that controlling weight should be given to whether there was a transfer of tangible assets. In support, he relies on three cases: Warner-Lambert Pharmaceutical Co. v. General Foods Corp., 164 U.S.P.Q. 532 (T.T.A.B. 1970); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969); and Luckie Magic Corp. v. McCall Manufacturing Co., 133 U.S.P.Q. 487 (T.T.A.B. 1962). None of these cases is persuasive support for the plaintiff’s contention. In Mister Donut, the court found that the assignor had not used the mark after disposing of his business in 1951. At the time of assignment, in 1956, therefore, there was
[ { "docid": "5298331", "title": "", "text": "a bare mark, and therefore ineffective; (2) whether the contemporaneous use of BOUNCE BACK by Glamorene for an aerosol rug cleaner and BOUNCE by P & G for a dry cleaning detergent or fabric softener would be likely to cause confusion or mistake or to deceive; and (3) whether Glamorene is at least entitled to registration of its mark for the State of California. On this record, as the issues have been framed and argued by the parties, we find no reversible error committed by the board. The facts demonstrate an effective assignment from Stauffer to P & G, not an assignment in gross. In this regard, the trademark assignment of October 20, 1971 expressly states that for good and valuable consideration received, Stauffer assigns to P & G the trademark “together with the goodwill of the business symbolized by said trademark and in connection with which said trademark is used.” At the time of the assignment, Stauffer had a going business and there was substantial goodwill associated with the mark BOUNCE as a dry cleaning detergent. Moreover, P & G’s witness Rue testified that P & G had been actively working on its own dry cleaning detergent since 1968. P & G paid good and valuable consideration for the mark which it subsequently used in connection with sales of its own dry cleaning detergent. On these facts, we find that there was an effective assignment, notwithstanding Stauffer’s retention of a small, residual inventory which was sold by Stauffer to eliminate warehouse stock after the assignment. Glamorene complains that, after the assignment, Stauffer retained the tangible assets of its business. However, transfer of tangible assets (inventory, labels, customer lists, formulas, etc.) is not necessary to an effective trademark assignment. Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 58 CCPA 1172 (1871); Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947, 49 CCPA 1163 (1962). Regarding likelihood of confusion, we fully agree with the board that the contemporaneous use of BOUNCE BACK by Glamorene for an aerosol rug cleaner and BOUNCE by P & G for a dry cleaning detergent" } ]
[ { "docid": "23409228", "title": "", "text": "The central purpose of the technical rules regarding the assignment of trademarks is to protect consumers and these rules were “not evolved for the purpose of invalidating all trademark assignments which do not satisfy a stereotyped set of formalities.” Syntex Laboratories v. Norwich Pharmacal Co., 315 F.Supp. 45 (S.D.N.Y. 1970), aff’d, 437 F.2d 566 (2d Cir. 1971). McCarthy, Trademarks and Unfair Competition § 18.1, at 607. Application of this reasoning is apparent in Pepsico, Inc. v. Grapette Co., 416 F.2d 285 (8th Cir. 1969). In that case, the mark “Peppy” had been used for many years on a cola-based drink. The mark was assigned to Grapette Co. Grapette acquired no tangible assets from the assignor, nor any process or formula for producing the beverage. Grapette then used the “Peppy” mark on a pepper-type beverage. The Pepsico court noted the possibility of public deceit if the assignment were considered valid, id. at 289, and stated: It seems fundamental that either the defendant did not acquire any “goodwill” as required by law or if it did, assuming as defendant argues the mark itself possesses “goodwill,” by use of the mark on a totally different product, Grapette intended to deceive the public. Either ground is untenable to the validity of the assignment. Id. at 290. Turning to the cases upon which the parties rely, the defendant cites Glamorene Products Corp. v. Procter & Gamble Co., 538 F.2d 894 (C.C.P.A. 1976). In that case, Stauffer assigned the mark “BOUNCE,” which was used on a dry-cleaning detergent, to Procter & Gamble. The assignment included a recitation that it was together with the goodwill of the business. Stauffer retained the tangible assets of its business. Procter & Gamble used the mark on its own dry-cleaning detergent. The Glamorene court found the assignment valid. The plaintiff argues that Glamorene was restricted by Haymakers Sports, Inc. v. Turian, 581 F.2d 257 (C.C.P.A. 1978). In Hay-makers, the mark was pledged by Avon Shoe Company to its attorneys as collateral security for the attorneys’ fees. Following further business decline, the mark was assigned to the attorneys the following year. A" }, { "docid": "10351547", "title": "", "text": "mark is associated. The consequence is that a mark may be transferred only in connection with the transfer of the goodwill of which it is a part. A naked transfer of the mark alone — known as a transfer in gross — is invalid. This was the rule at common law (see United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50, 63 L.Ed. 141 (1918)), which section 10 of the Lanham Act (15 U.S.C. § 1060 (1976)) adopts in its provision that a mark is “assignable with the goodwill of the business in which the mark is used, or that part of the goodwill of the business connected with the use of and symbolized by the mark.” The Court of Customs and Patent Appeals, the decisions of which bind us (see South Corp. v. United States, 690 F.2d 1368, 1370, 215 U.S.P.Q. 657, 658 (Fed.Cir.1982) (en banc)), frequently has recognized and applied this rule. See, e.g., Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947, 49 Cust. & Pat.App. 1163, 133 U.S.P.Q. 687 (1962). See also Glamorene Products Co. v. The Procter & Gamble Co., 538 F.2d 894, 190 U.S.P.Q. 543 (Cust. & Pat.App.1976); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 169 U.S.P.Q. 590 (Cust. & Pat.App.1971); J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 52 Cust. & Pat.App. 981, 144 U.S.P.Q. 435 (1965); 1 J. McCarthy, Trademarks and Unfair Competition, § 18:1 (1973). A valid transfer of a mark, however, does not require the transfer of any physical or tangible assets. All that is necessary is the transfer of the goodwill to which the mark pertains. Hy-Cross Hatchery, 303 F.2d at 950, 49 Cust. & Pat.App. at 1165, 133 U.S.P.Q. at 689. See also Glamorene Products, 538 F.2d at 895-96, 190 U.S.P.Q. at 545; Sterling Brewers, 441 F.2d at 680, 169 U.S.P.Q. at 594; J.C. Hall, 340 F.2d at 963, 52 Cust. & Pat.App. at 984, 144 U.S. P.Q. at 437-38; The Money Store v. Harris-corp Finance, Inc., 689 F.2d 666, at 676-78 (7th Cir.1982); 1 J. McCarthy, Trademarks" }, { "docid": "7735480", "title": "", "text": "mark is employed.... [T]he right to a particular mark grows out of its use, not merely its adoption, its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his; and it is not the subject of property except in connection with an existing business. United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50-51, 63 L.Ed. 141 (1918). Because good will and its symbol, the trademark, are inseparable, the mark may be transferred only in conjunction with the good will that it symbolizes. Lanham Act § 10, 15 U.S.C. § 1060. Hence, a sale of a mark divorced from its good will, which is characterized as an “assignment-in-gross,” is a nullity; and the assignee can place no reliance upon it in enforcing rights to the mark against others. Defiance Button Machine Co. v. C & C Metal Products, 759 F.2d 1053, 1059 (2d Cir.1985); Haymaker Sports, Inc. v. Turian, 581 F.2d 257, 261 (C.C.P.A.1978). That the assignment of a trademark must be accompanied by the good will it symbolizes does not, however, bar transfer of the mark independently of the underlying business. It is settled that a trademark may be validly transferred without the simultaneous transfer of any tangible assets. See, e.g., Defiance Button Machine Co. v. C & C Metal Products, 759 F.2d at 1059-1062, and cases cited therein; Glamorene Products Corp. v. Procter & Gamble Co., 538 F.2d 894 (C.C.P.A.1976); Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947 (C.C.P.A.1962); and J. McCarthy, Trademarks and Unfair Competition, (2d ed. 1984), § 18:7 at 814 (“the clear trend is that a transfer of tangible or physical assets is not crucial.”) Likewise, a company’s cessation of business does not automatically terminate its rights to a mark, Defiance Button Machine Co. v. C & C Metal Products, 759 F.2d at 1062-62, and a trademark of an insolvent corporation is saleable in bankruptcy independently of the bankrupt’s other assets, Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 680" }, { "docid": "23704893", "title": "", "text": "goods or services. Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 627 F.2d 628, 630 (2d Cir.1980). The mark also ceases to be enforceable against others when it loses its significance as an indication of the origin of goods sold by and associated with the mark owner, such as when the owner makes the mark the subject of an unrestricted license or sale to others, Haymaker Sports, Inc. v. Turian, 581 F.2d 257, 261 (C.C.P.A.1978); Universal City Studios, Inc. v. Nintendo Co., Ltd., 578 F.Supp. 911, 929 (S.D.N.Y. 1983), aff'd on other grounds, 746 F.2d 112, (2d Cir.1984), or the mark has become generic, Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976), or the owner assigns the mark without the goodwill associated with it, 15 U.S.C. § 1060; Marshak v. Green, supra; Universal City Studios, Inc. v. Nintendo Co. Ltd., supra, 578 F.Supp. at 922-23. Under such circumstances the mark is held to have been abandoned for the reason that there “are no rights in a trademark apart from the business with which the mark has been associated” and the “[u]se of the mark by the assignee in connection with a different goodwill and different product would result in a fraud on the purchasing public who reasonably assume that the mark signifies the same thing, whether used by one person or another,” Marshak v. Green, 746 F.2d at 929 (2d Cir.1984); accord Universal City Studios v. Nintendo Co., supra, 578 F.Supp. at 922-23 (holding invalid the separate transfer of the King Kong mark by its owner when all of the business associated with the mark had been developed by a third party movie studio). Nonetheless, assignments of marks separate from the underlying business have been upheld when the assignee “is producing a product ... substantially similar to that of the assignor [such that] consumers would not be deceived or harmed” or when there is “continuity of management.” Marshak, supra, 746 F.2d at 930. Thus, a trademark may be validly transferred without the simultaneous transfer of any tangible assets, as long as the recipient" }, { "docid": "23409230", "title": "", "text": "new agreement was then made, providing that if Avon ceased to do business and one or more stockholders of Avon continued payments to the attorneys, the stockholders) would receive the mark. Three years later, Avon ceased operations and defaulted on its obligation. Stockholder Turan paid off the debt to the attorneys and used the mark on shoes manufactured by his corporation or imported by him. The assignment was held ineffective. The court noted that the attorneys had never used the mark. Id. at 261. In footnote, the Haymakers court stated that Glamorene did not compel a contrary conclusion because in that case the assignees began using the mark “BOUNCE” immediately. Haymakers is a unique case because of the two assignments involved and the fact that the first assignment was to attorneys who had no relationship whatsoever to the shoe business. We believe that Haymakers is consistent with Glamorene, as the Haymakers court indicated, and does not restrict the earlier case. Perhaps the strongest case in support of Harriscorp’s contention is Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947 (C.C.P.A. 1962). In Hy-Cross, the assignor held a valid registration of the mark “HY-CROSS” and had used it for some time to identify the baby chicks that he sold. He assigned the mark, along with a recitation of goodwill. The assignor continued in the business of selling chicks. The court held that the assignment was effective, stating that “by assigning the goodwill, [the assign- or] gave up the right to sell ‘HY-CROSS’ chicks. This had been a part of his ‘business.’ ” Id. at 950. Modern Acceptance argues that Hy-Cross is weak support because of then Judge Blackmun’s concurrence in Pepsico, Inc. v. Grapette Co., 416 F.2d 285 (8th Cir. 1969). As discussed supra, the assignee in that ease had used the mark on an entirely different type of beverage from that made by the assignor. The majority of the court had mentioned the Hy-Cross case, characterizing it as involving a naked assignment, but had decided the appeal on the ground that an assignment is valid only if the assignee’s product has" }, { "docid": "23409226", "title": "", "text": "532 (T.T.A.B. 1970); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969); and Luckie Magic Corp. v. McCall Manufacturing Co., 133 U.S.P.Q. 487 (T.T.A.B. 1962). None of these cases is persuasive support for the plaintiff’s contention. In Mister Donut, the court found that the assignor had not used the mark after disposing of his business in 1951. At the time of assignment, in 1956, therefore, there was no goodwill to be assigned. In Luckie Magic, there was a general purchase of assets. No reference was made to the assignment of any trademark or goodwill. The court’s holding that there was no effective assignment is attributable to the absence of any such reference. Warner-Lambert Pharmaceutical Co. v. General Foods Corp., 164 U.S.P.Q. 532 (T.T.A.B. 1970), is distinguishable because the assignee used the mark in connection with an entirely different product from that manufactured by the assignor. It is admittedly difficult to determine when a transfer of goodwill has occurred. This is particularly so in the case of a service mark. Before turning to other cases relied upon by the parties, it is important to recognize why the common law and Lanham Act prohibitions on a transfer of a mark unassociated with any goodwill exists: A sale of a trademark divorced from its good will is characterized as an “assignment in gross.” If one obtains a trademark through an assignment in gross, divorced from the good will of the assign- or, the assignee obtains the symbol, but not the reality. Any subsequent use of the mark by the assignee will necessarily be in connection with a different business, a different good will and a different type of product. The continuity of the things symbolized by the mark is broken. Use of the mark by the assignee in connection with a different good will and different product would result in a fraud on the purchasing public, who reasonably assume that the mark signified the same things, whether used by one person or another. .. . The fundamental policy of consumer protection must always be kept in mind." }, { "docid": "18775454", "title": "", "text": "30 Mich.L.Rev. 489-503 (1932). In fact, it has been held there can be a valid assignment of a trademark and good will without the simultaneous transfer of any tangible assets of the business. E.g., Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947, 49 CCPA 1163 (1962); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 58 CCPA 1172 (1971); Glamorene Products Co. v. The Procter & Gamble Co., 538 F.2d 894 (C.C.P.A.1976); Visa, U.S.A., Inc. v. Birmingham Trust Nat’l. Bank, 696 F.2d 1371 (Fed.Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 98, 78 L.Ed.2d 104 (1983); Money Store v. Harriscorp Finance, Inc., 689 F.2d 666 (7th Cir.1982). To determine whether an assignment of a trademark is valid, the proper focus is on “the nature of the assignee’s use, not the formalism of what assets passed to the assignee.” 1 J. McCarthy, supra p. 943, § 18:2 at 801. The trademarks, formulas and customer lists were transferred to a corporation which intended to manufacture the same products in accordance with the same formulas with which the marks had become associated in the public mind. No purpose served by section 1060 is frustrated by the assignment. The transfer of the trademarks to Michlin is, therefore, valid. The trustee relies on Haymaker Sports, Inc. v. Tunan, 581 F.2d 257 (C.C.P.A.1978). The case is clearly distinguishable on its facts. Moreover, to the extent that Haymaker holds that an assignment of a mark is invalid unless the assignee also succeeds to all assets both tangible and intangible of the business with which it was associated, it is not persuasive for the reasons set forth above. Neither the trustee nor Patterson question that NAC has a valid and perfected security interest in the formulas and cus tomer lists. NAC, therefore, had a perfected security interest in the assets sold to Michlin. NAC’s security interest is not subject to attack by the trustee as an assignment in gross. Moreover, it is questionable whether the trustee should be allowed to raise this defense. The trustee, by the transfer to Michlin, conveyed both the estate’s and NAC’s interests" }, { "docid": "23409231", "title": "", "text": "303 F.2d 947 (C.C.P.A. 1962). In Hy-Cross, the assignor held a valid registration of the mark “HY-CROSS” and had used it for some time to identify the baby chicks that he sold. He assigned the mark, along with a recitation of goodwill. The assignor continued in the business of selling chicks. The court held that the assignment was effective, stating that “by assigning the goodwill, [the assign- or] gave up the right to sell ‘HY-CROSS’ chicks. This had been a part of his ‘business.’ ” Id. at 950. Modern Acceptance argues that Hy-Cross is weak support because of then Judge Blackmun’s concurrence in Pepsico, Inc. v. Grapette Co., 416 F.2d 285 (8th Cir. 1969). As discussed supra, the assignee in that ease had used the mark on an entirely different type of beverage from that made by the assignor. The majority of the court had mentioned the Hy-Cross case, characterizing it as involving a naked assignment, but had decided the appeal on the ground that an assignment is valid only if the assignee’s product has the same characteristics as that of the assignor. In his concurrence, Judge Blackmun noted that Hy-Cross was a peculiar case in that live baby chicks were the product of both the assignor and assignee. He read Hy-Cross as attaching little significance to the absence of any assignment of the chicks themselves only in that particular context. Judge Blackmun stated that he would be opposed to any broader interpretation of the Hy-Cross rule. We do not believe that Judge Blackmun’s concurrence casts doubt upon the applicability of Hy-Cross to the instant case. The circumstances in this case are also “peculiar” in that United and Harriscorp offered the identical service. A customer who was drawn first to United and later to Harris-corp because of the “MONEY STORE” mark would not be misled as to the nature of the services offered. United’s ^use of the mark in advertising, including highly visible billboards, strongly suggests that the mark carried with it a degree of goodwill. What United gave up in assigning the mark was the right to attract customers" }, { "docid": "22163593", "title": "", "text": "of the GALLO SA-LAME mark, Joseph further contends, the Winery’s wine marks alone cannot support the district court’s judgment, because wine and cheese are different products. Under its settlement with Gallo Sa-lame in 1983, the Winery received an assignment of the GALLO SALAME mark, which it then licensed back to Gallo Salame for its continued use on combination meat and cheese packages. Joseph argues that this constituted an invalid assignment in gross, because the assignment did not transfer the goodwill or tangible assets of Gallo Salame. Assignments of trademarks in gross are traditionally invalid. “[T]he law is well settled that there are no rights in a trademark alone and that no rights can be transferred apart from the business with which the mark has been associated.” Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 842 (9th Cir.1969), criticized on other grounds, Golden Door, Inc. v. Odisho, 646 F.2d 347 (9th Cir.1980). It is not necessary that the entire business or its tangible assets be transferred; it is the goodwill of the business that must accompany the mark. Money Store v. Har-riscorp Fin., Inc., 689 F.2d 666, 676 (7th Cir.1982). As the Lanham Act states the principle, a mark is “assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill of the business connected with the use of and symbolized by the mark.” 15 U.S.C. § 1060. The purpose behind requiring that goodwill accompany the assigned mark is to maintain the continuity of the product or service symbolized by the mark and thereby avoid deceiving or confusing consumers. 1 J. McCarthy, Trademarks and Unfair Competition § 18:1(C) (2d ed. 1984). The district court made a factual finding that goodwill had been assigned along with the mark GALLO SALAME. This finding rested on two facts. First, Gallo Salame gave to the Winery information “sufficient to enable [it] to continue the lure of business Gallo Salame had been conducting under the Gallo mark.” This established the continuity that trademark law seeks to extend to the public. Second, the mark" }, { "docid": "23704894", "title": "", "text": "from the business with which the mark has been associated” and the “[u]se of the mark by the assignee in connection with a different goodwill and different product would result in a fraud on the purchasing public who reasonably assume that the mark signifies the same thing, whether used by one person or another,” Marshak v. Green, 746 F.2d at 929 (2d Cir.1984); accord Universal City Studios v. Nintendo Co., supra, 578 F.Supp. at 922-23 (holding invalid the separate transfer of the King Kong mark by its owner when all of the business associated with the mark had been developed by a third party movie studio). Nonetheless, assignments of marks separate from the underlying business have been upheld when the assignee “is producing a product ... substantially similar to that of the assignor [such that] consumers would not be deceived or harmed” or when there is “continuity of management.” Marshak, supra, 746 F.2d at 930. Thus, a trademark may be validly transferred without the simultaneous transfer of any tangible assets, as long as the recipient continues to produce goods of the same quality and nature previously associated with the mark. See Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947, 950 (C.C.P.A.1962) (denying a petition to cancel a registered trademark for a poultry business when the mark had been transferred, without any assets other than the goodwill associated with the name, to another producer, who thereafter raised a different variety of chicken); VISA, U.S.A., Inc. v. Birmingham Trust National Bank, 696 F.2d 1371 (Fed.Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 98, 78 L.Ed.2d 104 (1983); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 680 (C.C.P.A.1971). Moreover, an intent to abandon a mark will not be presumed from the owner’s mere non-use of it for a period shorter than two years, as set forth in § 1127(a), and the presumption of abandonment following from non-use for a longer period is rebuttable, Sterling Brewers, Inc. v. Schenley Industries, Inc., supra, 441 F.2d at 679-81; Saratoga Vichy Spring Co., Inc. v. Lehman, 491 F.Supp. 141, 155 (N.D. N.Y.1979), aff'd, 625 F.2d" }, { "docid": "10351548", "title": "", "text": "133 U.S.P.Q. 687 (1962). See also Glamorene Products Co. v. The Procter & Gamble Co., 538 F.2d 894, 190 U.S.P.Q. 543 (Cust. & Pat.App.1976); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 169 U.S.P.Q. 590 (Cust. & Pat.App.1971); J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 52 Cust. & Pat.App. 981, 144 U.S.P.Q. 435 (1965); 1 J. McCarthy, Trademarks and Unfair Competition, § 18:1 (1973). A valid transfer of a mark, however, does not require the transfer of any physical or tangible assets. All that is necessary is the transfer of the goodwill to which the mark pertains. Hy-Cross Hatchery, 303 F.2d at 950, 49 Cust. & Pat.App. at 1165, 133 U.S.P.Q. at 689. See also Glamorene Products, 538 F.2d at 895-96, 190 U.S.P.Q. at 545; Sterling Brewers, 441 F.2d at 680, 169 U.S.P.Q. at 594; J.C. Hall, 340 F.2d at 963, 52 Cust. & Pat.App. at 984, 144 U.S. P.Q. at 437-38; The Money Store v. Harris-corp Finance, Inc., 689 F.2d 666, at 676-78 (7th Cir.1982); 1 J. McCarthy, Trademarks and Unfair Competition, § 18:7(B) (1973). The rationale for the prohibition against a naked assignment of the mark without the accompanying goodwill stems from the nature of trademarks themselves. They identify the source of the goods and services offered. A key objective of the law of trademarks is protection of the consumer against being misled or confused as to the source of the goods or services he acquires. The rule against assignment of a mark in gross thus reflects “the need, if consumers are not to be misled from established associations with the mark, that it continue to be associated with the same or similar products after the assignment.” Raufast S.A. v. Kicker’s Pizzazz, Ltd., 208 U.S.P.Q. 699, 702 (E.D.N.Y.1980). In the light of these principles, we reject the Board’s determination that the assignment in this case was invalid because there was no transfer of the goodwill to which the mark pertained. B. The goodwill of Alpha Beta to which the mark pertained was not that of the firm’s grocery business but that of a" }, { "docid": "23409229", "title": "", "text": "as defendant argues the mark itself possesses “goodwill,” by use of the mark on a totally different product, Grapette intended to deceive the public. Either ground is untenable to the validity of the assignment. Id. at 290. Turning to the cases upon which the parties rely, the defendant cites Glamorene Products Corp. v. Procter & Gamble Co., 538 F.2d 894 (C.C.P.A. 1976). In that case, Stauffer assigned the mark “BOUNCE,” which was used on a dry-cleaning detergent, to Procter & Gamble. The assignment included a recitation that it was together with the goodwill of the business. Stauffer retained the tangible assets of its business. Procter & Gamble used the mark on its own dry-cleaning detergent. The Glamorene court found the assignment valid. The plaintiff argues that Glamorene was restricted by Haymakers Sports, Inc. v. Turian, 581 F.2d 257 (C.C.P.A. 1978). In Hay-makers, the mark was pledged by Avon Shoe Company to its attorneys as collateral security for the attorneys’ fees. Following further business decline, the mark was assigned to the attorneys the following year. A new agreement was then made, providing that if Avon ceased to do business and one or more stockholders of Avon continued payments to the attorneys, the stockholders) would receive the mark. Three years later, Avon ceased operations and defaulted on its obligation. Stockholder Turan paid off the debt to the attorneys and used the mark on shoes manufactured by his corporation or imported by him. The assignment was held ineffective. The court noted that the attorneys had never used the mark. Id. at 261. In footnote, the Haymakers court stated that Glamorene did not compel a contrary conclusion because in that case the assignees began using the mark “BOUNCE” immediately. Haymakers is a unique case because of the two assignments involved and the fact that the first assignment was to attorneys who had no relationship whatsoever to the shoe business. We believe that Haymakers is consistent with Glamorene, as the Haymakers court indicated, and does not restrict the earlier case. Perhaps the strongest case in support of Harriscorp’s contention is Hy-Cross Hatchery, Inc. v. Osborne," }, { "docid": "4003070", "title": "", "text": "where no default occurred and no assignment was ever recorded in the PTO. Notwithstanding that the agreement recited pro forma that goodwill was transferred along with the mark, Block and Moran never played an active role in the business of Avon, never «used the mark themselves, and never acquired any tangible assets or goodwill of Avon. Therefore, we conclude that, as a matter of substance, the assignment was invalid as an assignment in gross, rendering the latter assignment to Turian also invalid. Even if we were to conclude that the assignment from Avon to Block and Moran was valid, the “inherent” license back to Avon found by the board would have been nothing more than a mere naked license. A licensor may license his mark if the licensing agreement provides for adequate control by the licensor over the quality of goods or services produced under the mark by a licensee. 1 J. McCarthy, Trademarks and Unfair Competition § 18:14 (1973), and authorities cited therein. The purpose of such a requirement is to protect the public from being misled. Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 367,121 USPQ 430, 437 (CA 2 1959). See 15 U.S.C. §§ 1055, 1127. Uncontrolled licensing of a mark results in abandonment of the mark by the licensor. See E. I. duPont de Nemours & Co. v. Celanese Corp. of America, 167 F.2d 484, 35 CCPA 1061, 77. USPQ 364 (1948); see also, Dawn Donut Co. v. Hart’s Food Stores, Inc., supra at 367,121 USPQ at 436 (CA 2 1959). Here, Block and Moran were holders of mere legal title to the mark. They had no interest in the quality of shoes Avon was manufacturing, and there is no evidence that they exercised any quality control. Although quality control has been inferred in a few cases where licensing agreements were silent, there is nothing in the recorchbefore us on which to base such an inference. Turian’s argument that the assignment from Avon to Block and Moran was valid because Block and Moran occupied a position analogous to a trustee in bankruptcy must" }, { "docid": "11779068", "title": "", "text": "goods from similar merchandise of others. Also, the mark often signifies that all goods bearing that mark are of like quality. Finally, the mark is valuable in the advertising and sale of the trademarked goods. See generally, 1 J. McCarthy, Trademarks and Unfair Competition § 8.1. (2d ed. 1984). Because a trademark is symbolic, it may be transferred or assigned only to represent the transfer of goodwill connected with a particular business, Dresser Industries v. Heraeus Engelhard Vacuum, Inc., 395 F.2d 457, 464 (3d Cir.) cert. denied 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968), and cannot be transferred separately from the goodwill of the business. United Drug, 248 U.S. at 97, 39 S.Ct. at 50; Dresser Industries, 395 F.2d at 464; Family Circle, 332 F.2d 534; 15 U.S.C. § 1060; see Marshak v. Green, 746 F.2d 927 (2d Cir.1984); Haymaker Sports, Inc. v. Turian, 581 F.2d 257, 260-61 (C.C.P.A.1978); Pepsico, Inc. v. Grapette Co., 416 F.2d 285, 287 (8th Cir.1969); 1 McCarthy, supra, at § 18.1. However, following a proper assignment, the assignee steps into the shoes of the assignor. It is well established that a distributor may own the trademark in goods it does not manufacture. See, e.g., Menendez v. Holt, 128 U.S. 514, 520, 9 S.Ct. 143, 144, 32 L.Ed. 526 (1888); Energy Jet, Inc. v. Forex Corp., 589 F.Supp. 1110 (E.D.Mich.1984); Wrist-Rocket Manufacturing Co. v. Saunders, 379 F.Supp. 902 (D.Neb.1974), rev’d in part 516 F.2d 846 (8th Cir.), cert denied 423 U.S. 870, 96 S.Ct. 134, 46 L.Ed.2d 100 (1975); 15 U.S.C. § 1127. As Professor Callmann has written, The use of a trademark does not necessarily and as a matter of law import that the articles upon which it is used are manufactured by its user. It may be enough that they are manufactured for him, that he controls their production, or even that they pass through his hands in the course of trade, and that he gives to them the benefit of his reputation, or of his name and business style. The decisive question is not who manufactured the article sold under" }, { "docid": "23409225", "title": "", "text": "assignment to Harriscorp. The assignment conferred no rights on Harriscorp under the Lanham Act, however, unless the goodwill of the business was assigned along with the mark. 15 U.S.C. § 1060 (1976). The judge below found that no goodwill had been transferred in the assignment. First, we recognize that, although the assignment stated that the mark was assigned “together with the good will of the business symbolized by the mark,” such a recitation is not necessarily dispositive, e.g., Haymaker Sports, Inc. v. Turian, 581 F.2d 257 (C.C.P.A. 1978). Second, we find that it is not necessary to the continuing validity of the mark that tangible assets of the assignor pass to the assignee. E.g., Glamorene Products Corp. v. Procter & Gamble Co., 538 F.2d 894, 895 (C.C.P.A. 1976); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 680 (C.C.P.A. 1971). The plaintiff contends that controlling weight should be given to whether there was a transfer of tangible assets. In support, he relies on three cases: Warner-Lambert Pharmaceutical Co. v. General Foods Corp., 164 U.S.P.Q. 532 (T.T.A.B. 1970); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969); and Luckie Magic Corp. v. McCall Manufacturing Co., 133 U.S.P.Q. 487 (T.T.A.B. 1962). None of these cases is persuasive support for the plaintiff’s contention. In Mister Donut, the court found that the assignor had not used the mark after disposing of his business in 1951. At the time of assignment, in 1956, therefore, there was no goodwill to be assigned. In Luckie Magic, there was a general purchase of assets. No reference was made to the assignment of any trademark or goodwill. The court’s holding that there was no effective assignment is attributable to the absence of any such reference. Warner-Lambert Pharmaceutical Co. v. General Foods Corp., 164 U.S.P.Q. 532 (T.T.A.B. 1970), is distinguishable because the assignee used the mark in connection with an entirely different product from that manufactured by the assignor. It is admittedly difficult to determine when a transfer of goodwill has occurred. This is particularly so in the case of a service mark." }, { "docid": "22163592", "title": "", "text": "of the judicial reluctance to enjoin use of a personal name, the court has acted properly. The district court’s injunction, as modified in Section IV, infra, prohibits Joseph from using the words GALLO or JOSEPH GALLO as a trademark for retail sale of cheese or in audible advertisements. However, the injunction explicitly permits the use of JOSEPH GALLO as a trademark on wholesale packages of cheese, and permits the use of “Gallo Cattle Co.” and “Joseph Gallo Farms” as trade names. It further permits the trade names or Joseph’s signature to appear in advertisements. It is silent as to products other than cheese. By limiting the use of Joseph’s name only to the extent necessary to avoid public confusion, the district court demonstrated the appropriate reluctance to enjoin all use of a person’s name. B. The GALLO SALAME trademark Joseph claims that the Winery lacks a valid ownership interest in the GALLO SALAME trademark because the agreement settling the Winery’s infringement suit against Gallo Salame represented an invalid assignment of the mark. Without valid ownership of the GALLO SA-LAME mark, Joseph further contends, the Winery’s wine marks alone cannot support the district court’s judgment, because wine and cheese are different products. Under its settlement with Gallo Sa-lame in 1983, the Winery received an assignment of the GALLO SALAME mark, which it then licensed back to Gallo Salame for its continued use on combination meat and cheese packages. Joseph argues that this constituted an invalid assignment in gross, because the assignment did not transfer the goodwill or tangible assets of Gallo Salame. Assignments of trademarks in gross are traditionally invalid. “[T]he law is well settled that there are no rights in a trademark alone and that no rights can be transferred apart from the business with which the mark has been associated.” Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 842 (9th Cir.1969), criticized on other grounds, Golden Door, Inc. v. Odisho, 646 F.2d 347 (9th Cir.1980). It is not necessary that the entire business or its tangible assets be transferred; it is the goodwill of the" }, { "docid": "18775453", "title": "", "text": "one of quantity, but of quality, looking at the nature and the relationship of the transferred assets to that type of business. For example, even if no physical assets are sold, but technical information and know-how together with customer lists are transferred, goodwill may very well pass to the buyer and support a trademark assignment. Syntex Laboratories, Inc. v. Norwich Pharmacal Co. (1970 SDNY) 315 F.Supp. 45, 166 USPQ 312, aff’d on other grounds (CA2 NY) 437 F.2d 566, 169 USPQ 1 (held good will passed to support trademark assignment). Thus where products are made according to a secret formula or a patent these may constitute “good will” which must be transferred to the assignee of the mark. 1 J. McCarthy, supra p. 943, § 18:7 at 812 (emphasis added; other citations omitted). The requirement that a mark cannot be assigned in gross but must be accompanied by the goodwill of the business does not mean that any specific assets have to be transferred with the trademark. Grismore, The Assignment of Trademarks and Trade Names, 30 Mich.L.Rev. 489-503 (1932). In fact, it has been held there can be a valid assignment of a trademark and good will without the simultaneous transfer of any tangible assets of the business. E.g., Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947, 49 CCPA 1163 (1962); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 58 CCPA 1172 (1971); Glamorene Products Co. v. The Procter & Gamble Co., 538 F.2d 894 (C.C.P.A.1976); Visa, U.S.A., Inc. v. Birmingham Trust Nat’l. Bank, 696 F.2d 1371 (Fed.Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 98, 78 L.Ed.2d 104 (1983); Money Store v. Harriscorp Finance, Inc., 689 F.2d 666 (7th Cir.1982). To determine whether an assignment of a trademark is valid, the proper focus is on “the nature of the assignee’s use, not the formalism of what assets passed to the assignee.” 1 J. McCarthy, supra p. 943, § 18:2 at 801. The trademarks, formulas and customer lists were transferred to a corporation which intended to manufacture the same products in accordance with the same formulas with which" }, { "docid": "10965689", "title": "", "text": "assignments did not transfer the goodwill associated with the marks in the United States, that Carl Walther had abandoned the “Walther” word mark, and that the assignments did not indicate the true relationship between Interarms and Carl Walther. As a preliminary matter, the court found that plaintiff’s status as exclusive United States distributor of Walther firearms dates from 1969, predating defendant’s 1973 agreement with Walther under which MMI’s parent, Manurhin, was licensed to manufacture and sell pistols promoted as “Manurhin-Walther” and marked as “License Walther” almost worldwide. The 1960 agreement between Walther and Manurhin returned to Walther the exclusive right to sell its guns in the United States, among other countries. Walther therefore had that right to cede to Interarms in 1969 without interference from any relationship with Manurhin. Manurhin’s 1973 agreement with Carl Walther, which appears to allow the French company to sell Walther firearms in the United States, does not override the prior distributorship of Interarms. The court rejected the defendant’s arguments for cancellation. The law is well settled that an exclusive distributor of a foreign manufactured good may obtain United States ownership of the marks through assignment from the foreign owner. A. Bourjois & Co. v. Katzel, 260 U.S. 689, 43 S.Ct. 244, 67 L.Ed. 464 (1923); Rog er & Gallet v. Janmarie, Inc., 245 F.2d 505 (C.C.P.A.1957). A valid assignment must carry with it the business and goodwill associated with the mark. Dresser Industries, Inc. v. Heraeus Englehard Vacuum, Inc., 395 F.2d 457 (3d Cir.1968); In re Geo. J. Ball, Inc., 153 U.S.P.Q. 426 (T.T.A.B. 1967). Here the plaintiff already possessed the business as exclusive distributor in this country, a fact which does not make the assignment any less valid. In re Geo. J. Ball, supra, 153 U.S.P.Q. at 427; see, e.g., Avedis Zildjian Co. v. Fred Gretsch Mfg. Co., 251 F.2d 530, 532 (2d Cir.1958). The assignments here also recited that a transfer of the goodwill in the business in the United States was made, which is sufficient in such cases. In re Geo. J. Ball, supra, 153 U.S.P.Q. at 427. The assignments may transfer" }, { "docid": "7735481", "title": "", "text": "261 (C.C.P.A.1978). That the assignment of a trademark must be accompanied by the good will it symbolizes does not, however, bar transfer of the mark independently of the underlying business. It is settled that a trademark may be validly transferred without the simultaneous transfer of any tangible assets. See, e.g., Defiance Button Machine Co. v. C & C Metal Products, 759 F.2d at 1059-1062, and cases cited therein; Glamorene Products Corp. v. Procter & Gamble Co., 538 F.2d 894 (C.C.P.A.1976); Hy-Cross Hatchery, Inc. v. Osborne, 303 F.2d 947 (C.C.P.A.1962); and J. McCarthy, Trademarks and Unfair Competition, (2d ed. 1984), § 18:7 at 814 (“the clear trend is that a transfer of tangible or physical assets is not crucial.”) Likewise, a company’s cessation of business does not automatically terminate its rights to a mark, Defiance Button Machine Co. v. C & C Metal Products, 759 F.2d at 1062-62, and a trademark of an insolvent corporation is saleable in bankruptcy independently of the bankrupt’s other assets, Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 680 (C.C.P.A.1971); Beech-Nut Packing Co. v. P. Lorillard Co., 299 F. 834 (D.C.N.J.1924), aff'd., 7 F.2d 967 (3d Cir.1925), aff'd, 273 U.S. 629, 47 S.Ct. 481, 71 L.Ed. 810 (1927). This is so, of course, as long as good will passes with the mark. As formulated by the Second Circuit, there appear to be two tests for determining whether the transfer of a mark apart from the underlying business involves the passing of good will. First, the good will of a company is viewed as making such a transition if “the purchaser [is] able to ‘go on in real continuity with [the] past.’ ” Defiance Button Machine Co. v. C & C Metal Products, 759 F.2d at 1060 (quoting Mutual Life Ins. Co. v. Menin, 115 F.2d 975 (2d Cir.1940)). See also Marshak v. Green, 746 F.2d at 930 (“Courts have ... upheld such assignments if there is a continuity of management,” citing Marshak v. Green, 505 F.Supp. 1054 (S.D.N.Y.1981) (Weinfeld, J.)); and J. McCarthy, Trademarks and Unfair Competition, § 18:1 at 794 (“The law’s requirement" }, { "docid": "23409224", "title": "", "text": "analogous to the situation in Uncas Manufacturing Co. v. Clark & Coombs Co., 200 F.Supp. 831 (D.R.I. 1962), aff’d, 309 F.2d 818 (1st Cir.), on which the plaintiff relies. In Uncas, the district court found that the last sales of “BARODA” rings were sales of samples in April, 1956. The plaintiff claimed that the mark was used after that date because sales representatives retained samples showing the mark in their cases. The court held: “The fact that its sales representatives may have carried antiquated rings set with said imitation stones marked ‘The BARODA Gem’ in their sample cases after April 1956 does not establish that such mark was being used in commerce in such a way as to negate abandonment.” Id. at 834. Although United’s use of the mark may have declined by the date of the assignment, any use the Bank made of the mark was “in commerce” and therefore readily distinguishable from Uncas. We conclude that the judge below correctly found that United had not abandoned the mark at the time of the assignment to Harriscorp. The assignment conferred no rights on Harriscorp under the Lanham Act, however, unless the goodwill of the business was assigned along with the mark. 15 U.S.C. § 1060 (1976). The judge below found that no goodwill had been transferred in the assignment. First, we recognize that, although the assignment stated that the mark was assigned “together with the good will of the business symbolized by the mark,” such a recitation is not necessarily dispositive, e.g., Haymaker Sports, Inc. v. Turian, 581 F.2d 257 (C.C.P.A. 1978). Second, we find that it is not necessary to the continuing validity of the mark that tangible assets of the assignor pass to the assignee. E.g., Glamorene Products Corp. v. Procter & Gamble Co., 538 F.2d 894, 895 (C.C.P.A. 1976); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 680 (C.C.P.A. 1971). The plaintiff contends that controlling weight should be given to whether there was a transfer of tangible assets. In support, he relies on three cases: Warner-Lambert Pharmaceutical Co. v. General Foods Corp., 164 U.S.P.Q." } ]
450845
erroneous. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); American National Bank & Trust Co. of Chicago, Ill. v. Bone, 333 F.2d 984, 986 (8th Cir. 1964). The principal issue raised on appeal is whether the Tax Court erred in valuing the Duro Chrome stock at $250,000 as of September 16, 1969. After a careful review of the record, we conclude that the valuation of $250,000 is not supported by the record and, indeed, is inconsistent with other factual findings of the Tax Court. We recognize that the proper valuation of the Duro Chrome stock is basically a question of judgment requiring the consideration of a number of factors. See REDACTED cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964). Among the factors to be considered are the value of the corporation’s assets, its earnings and loss record, its management, its financial condition, its balance sheet and book value, and any other factor that an informed purchaser and an informed seller would consider in a sales transaction. Riss v. C. I. R., 478 F.2d 1160, 1164 (8th Cir. 1973), affirming, 56 T.C. 388 (1971); Hamm v. C. I. R., supra at 938-939; Arc Realty Co. v. C. I. R., 295 F.2d 98, 102-103 (8th Cir. 1961); O’Malley v. Ames, 197 F.2d 256, 257-258 (8th Cir. 1952). The Tax Court did not explain its $250,000 valuation of the
[ { "docid": "23558912", "title": "", "text": "L.Ed. 813 (1941); Whitlow v. Commissioner, 82 F.2d 569, 574 (8 Cir. 1936). The Tax Court is the trier of the facts, the judge of the credibility of witnesses and of the weight of the evidence, and the drawer of appropriate inferences. Commissioner v. Scottish American Investment Co., 323 U.S. 119, 123-125, 65 S.Ct. 169, 89 L.Ed. 113 (1944); Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346 (1938). An appellate court’s powers of review are limited “and that limitation is particularly narrow when the issue is one of value”. Sisto Financial Corp. v. Commissioner, 149 F.2d 268, 269 (2 Cir. 1945); Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d. Many relevant factors in the determination of value are listed in Mertens, Law of Federal Income Taxation, Volume 10, § 59.21. Pertinent factors have been noted by this court in Fitts’ Estate v. Commissioner, 237 F.2d 729, 731-732 (8 Cir. 1956), in Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d, and in O’Malley v. Ames, supra, p. 258 of 197 F.2d. One might say in general that these factors are the things that a buyer and a seller would wish to know and consider before reaching a conclusion as to fair value. .This court has said that “there is no single formula universally applicable in determining such value and in the absence of evidence of an open market for stock it is proper to consider all the circumstances connected with the corporation in determining its fair market value”. O’Malley v. Ames, supra, p. 258 of 197 F.2d. Section 7459(b) of the Internal Revenue Code of 1954, applicable here (see § 7851(a) (6) (C) (iv) of that Code), places upon the Tax Court the duty to make written findings of fact. Section 7482(a) and Rule 52(a), F.R.Civ.P., require that the Tax Court “find the facts specially”. Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Loco Realty Co. v. Commissioner, 306 F.2d 207, 209 (8 Cir. 1962). In addition to these settled legal principles" } ]
[ { "docid": "23558910", "title": "", "text": "(3) that it failed to make any finding as to the value of a minority interest in the United Common; and (4) that the evidence compelled a finding that the market value of a minority interest in that stock was $735 per share. Before discussing these points we note the principles, most of them well established, to which the parties refer. A presumption of correctness attends the Commissioner’s deficiency determination and, apart from fraud, the taxpayers have the burden of showing it to be incorrect. Wickwire v. Reinecke, 275 U.S. 101, 105, 48 S.Ct. 43, 72 L.Ed. 184 (1927); Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933). The clearly erroneous standard applies to findings made by the Tax Court. Idol v. Commissioner, 319 F.2d 647, 651 (8 Cir.1963). When a gift is made in property its value at the date of the gift governs for gift tax purposes. Section 1005 of the 1939 Code. For stocks this value is fair market value. Regulations 108, § 86.19. “Fair market value is the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under compulsion to buy nor to sell and both being informed”. O’Malley v. Ames, 197 F.2d 256, 257 (8 Cir. 1952); Arc Realty Co. v. Commissioner, 295 F.2d 98, 103 (8 Cir. 1961). Valuation of stock for tax purposes is a matter of “pure fact”. Penn v. Commissioner, 219 F.2d 18, 20-21 (9 Cir. 1955); Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d; Gamble v. Commissioner, 101 F.2d 565, 567 (6 Cir. 1939), cert. denied 306 U.S. 664, 59 S.Ct. 790, 83 L.Ed. 1061. And it “is ever one of fact and not of formula”. In re Nathan’s Estate, 166 F.2d 422, 425 (9 Cir. 1948); Collins v. Commissioner, 216 F.2d 519, 522 (1 Cir. 1954); Snyder’s Estate v. United States, 285 F.2d 857, 861 (4 Cir. 1961). The “absence of market price is no barrier to valuation”. Guggenheim v. Rasquin, 312 U.S. 254, 258, 61 S.Ct. 507, 509, 85" }, { "docid": "3652671", "title": "", "text": "affirmed. Inasmuch as we have determined that Foundation was not a holding company and was therefore not required to file personal holding company tax returns, there is no basis for those additions, and the Tax Court’s decision in that regard is reversed. 5 — Worthless Securities Issue Foundation claimed capital losses in its taxable year 1949 totaling $9,-849.40, alleging that the stock it held in Denver & Rio Grande Railway and in St. Louis & San Francisco Railway became worthless in that year. The Tax Court sustained the Commissioner’s disallowance of the claimed capital losses on the ground that Foundation “failed to sustain its burden of proving the stock became worthless during the period before the Court.” In contending that it incurred such losses in 1949, or alternatively in 1948 or 1950, Foundation relies entirely upon the opinion-testimony of its president, Stevens. The Tax Court obviously was not impressed with Stevens’ testimony, determined that the testimony was of little value in fixing either the fact or time of worthlessness, and — -eontrarily —pointed to other evidence suggesting the stock probably was not worthless in 1949. On this record, we cannot hold that the Tax Court's determination — a finding of fact — was clearly erroneous. See Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Boehm v. Commissioner, 326 U.S. 287, 292-293, 66 S.Ct. 120, 90 L.Ed. 78 (1945); Midland Ford Tractor Company v. C. I. R., 8 Cir., 277 F.2d 111, 115 (1960), cert. denied, 364 U.S. 881, 81 S. Ct. 169, 5 L.Ed.2d 102 (1960); Cohen v. Commissioner, 2 Cir., 148 F.2d 336, 337 (1945). 6 — Long-Term Capital Gain Issue After completion of the Cheatham Lock project, Corporation sold the steel sheet piling and division equipment used on the project. Foundation contends that, if it is not tax exempt, its share of the profit realized from the sale of the piling and the equipment is a long-term capital gain under § 1231 of the Internal Revenue Code of 1954. The Tax Court affirmed the Commissioner’s determination that the profit constituted ordinary income" }, { "docid": "19039966", "title": "", "text": "decision below unless we are satisfied that the district court’s findings on these questions were “clearly erroneous”. Fed.R.Civ.P. 52(a). The presumption of correctness reflected in the “clearly erroneous” rule applies not only when the district court’s findings are based upon its assessment of conflicting testimony, but also when, as here, much of the evidence is documentary and the challenged findings are factual inferences drawn from undisputed facts. Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960); Engine Specialties, Inc. v. Bombardier Ltd., 454 F.2d 527, 530 (1st Cir. 1972); Leach v. Crucible Center Co., 388 F.2d 176, 179 (1st Cir. 1968). A. Maza’s Insolvency A person is deemed insolvent, under the Bankruptcy Act, “whenever the aggregate of his property . . . shall not at a fair valuation be sufficient in amount to pay his debts.” 11 U.S.C. § 1(19). This application of a “balance sheet test” focuses not on the liquid funds available at the time of a transfer, but rather on the liquidation value of the debtor’s assets compared to his current liabilities. Under this approach, a negative balance sheet raises a presumption of insolvency, see In re PRS Products, Inc., 574 F.2d 414 (8th Cir. 1978), although the fact that the debtor has overdrawn his bank account or has other cash flow difficulties does not, see McDonald v. Clearwater Railway Co., 164 F. 1007 (9th Cir. 1908). The determination of the “fair valuation” of the debtor’s assets at a specific time is at best an inexact science, and may often be impossible. As a result, insolvency frequently must be determined by proof of other facts or consideration of other factors from which insolvency may be inferred. Hassan v. Middlesex County National Bank, 338 F.2d 838 (1st Cir.), cert. denied, 379 U.S. 932, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964). Reduction in the face value of assets may be appropriate if those assets are not susceptible to liquidation, and thus cannot be made available for payment of debts, within a reasonable period of time. See In re United Financial Corp., 104 F.2d" }, { "docid": "5651813", "title": "", "text": "petitioners. See Palmer v. CIR, supra; Hamm v. CIR, 325 F.2d 934 (8th Cir. 1963), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964). Cf., Estate of Snyder v. United States, 285 F.2d 857 (4th Cir. 1961); Cullers v. CIR, 237 F.2d 611 (8th Cir. 1956). We have carefully considered the other points raised by appellants and find them to be without merit. The decision of the Tax Court is affirmed. . Reported at T.C. Memo 1974-285. . Seymour Silverman and Helen Silverman are husband and wife, as are Jack Silverman and Frances Silverman. Each wife consented to have the gifts made during the calendar year 1968 considered as having been made one-half by her and the other half by her spouse. . This agreement provided for employee purchases for investment purposes only and prohibited the subscribing stockholders from disposing of or encumbering their stock without the corporation’s consent. In the absence of consent or upon the death or retirement of the employee, the agreement provided: “The party [subscribing stockholder or his estate] . . shall give to the Corporation written notice . . and such notice shall contain an offer to sell all his stock within thirty (30) days after the date of such notice . . . and the Corporation shall purchase all of such stockholder’s stock.” The purchase price was to be based on the value shown on the last Federal income tax return or on the annual financial statement. The parties could also set another value by agreement. . Jurisdiction in this court is based upon Section 7482 of the Internal Revenue Code of 1954, 26 U.S.C. § 7482. . Promulgated by the Tax Court pursuant to 26 U.S.C. § 7453 (1969). . Section 2512(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 2512(a) provides: . Fair market value as defined in the Treasury Regulations on Gift Tax § 25.2512-1, 26 C.F.R. § 25.2512-1 means: “ . . the price at which such property would change hands between a willing buyer and a willing seller, neither being under any compulsion to" }, { "docid": "5651812", "title": "", "text": "of all the evidence in the record. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346 (1938); Palmer v. CIR, 523 F.2d 1308 (8th Cir. 1975); Fitts’ Estate v. CIR, 237 F.2d 729, 732-33 (8th Cir. 1956); Penn v. CIR, 219 F.2d 18, 21 (9th Cir. 1955). “Such a [factual] determination is one that is entitled to be made on all the elements of the particular case.” Heil Beauty Supplies, Inc. v. CIR, 199 F.2d 193, 195 (8th Cir. 1952). “Valuation is . . necessarily an approximation. ... It is not necessary that the value arrived at by the trial court be a figure as to which there is specific testimony, if it is within the range of figures that may properly be deduced from the evidence.” Anderson v. CIR, 250 F.2d 242, 249 (5th Cir. 1957), cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 844 (1958). Here the Tax Court’s finding is supported by substantial evidence in the record including the exchange formula supplied by the petitioners. See Palmer v. CIR, supra; Hamm v. CIR, 325 F.2d 934 (8th Cir. 1963), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964). Cf., Estate of Snyder v. United States, 285 F.2d 857 (4th Cir. 1961); Cullers v. CIR, 237 F.2d 611 (8th Cir. 1956). We have carefully considered the other points raised by appellants and find them to be without merit. The decision of the Tax Court is affirmed. . Reported at T.C. Memo 1974-285. . Seymour Silverman and Helen Silverman are husband and wife, as are Jack Silverman and Frances Silverman. Each wife consented to have the gifts made during the calendar year 1968 considered as having been made one-half by her and the other half by her spouse. . This agreement provided for employee purchases for investment purposes only and prohibited the subscribing stockholders from disposing of or encumbering their stock without the corporation’s consent. In the absence of consent or upon the death or retirement of the employee, the agreement provided: “The party [subscribing stockholder or his" }, { "docid": "164874", "title": "", "text": "assessment of the adverse factors. Our review of the Tax Court proceeding is confined to a determination of whether there is substantial evidence upon the record as a whole to support that court’s finding or, as sometimes stated, whether or not the determination is against the clear weight of the evidence or is induced by an erroneous view of the law. C.I.R. v. Riss, 374 F.2d 161, 166 (8th Cir. 1967); Arc Realty Company v. C.I.R., 295 F.2d 98, 102 (8th Cir. 1961). As pointed out in Wilmington Co. v. Helvering, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1352 (1942), our appellate review is confined to an examination of whether there is substantial evidence to support the findings. Therefore, this court may not substitute its view of the facts for that of the Tax Court, and thus its findings when supported by substantial evidence are conclusive. The Tax Court’s finding on the valuation of the stock was clearly within the limits of the fair market value evidence disclosed in this ease. The Tax Court, however, did not address itself to the total valuation of the stock and the subordinated note. The taxpayer contends, and we think rightly so, that the accommodation purchase of the stock and the subordinated note was part and parcel of the same transaction. Although we do not agree with the taxpayer’s contention that this package could not have been sold to any third party at a valuation in excess of what he had paid for it, we do think the taxpayer should be given the benefit of a fair and objective valuation of the fair market value of the subordinated note on the date of purchase. Obviously this subordinated note, upon which no current payments were 'being made and which was subordinated to a large bank loan and dependent for payment upon the continued satisfactory operation of these cigar companies under the difficulties and hazards above discussed, could not have been sold for $215,000 on the market. Liquidating this type of investment presents many difficulties, for the note would only appeal to a market investor" }, { "docid": "4384647", "title": "", "text": "examination of the terms and conditions of the purchase and sale agreement without an examination of the records of the corporations or the capital structure of the corporation issuing the certificates. We are not persuaded to hold that this testimony conclusively settled the question. The rule is well recognized that the trier of the facts, here the Tax Court, determines the weight to be given expert testimony. Gloyd v. Commissioner of Internal Revenue, 8 Cir., 63 F.2d 649; Cullers v. Commissioner of Internal Revenue, 8 Cir., 237 F.2d 611; Sisto Financial Corporation v. Commissioner of Internal Revenue, 2 Cir., 149 F.2d 268; Kline v. Commissioner of Internal Revenue, 3 Cir., 130 F.2d 742, certiorari denied 317 U.S. 697, 63 S.Ct. 440, 87 L.Ed. 558. While we recognize that evidence of competent and impartial expert witnesses should not be arbitrarily disregarded, Fitts’ Estate v. Commissioner of Internal Revenue, 8 Cir., 237 F.2d 729, 732, on this record we have no difficulty in reaching the conclusion that the Tax Court did not act arbitrarily in failing to adopt the position advocated by the experts. The question of “fair market value,” defined to be “the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under compulsion to buy nor to sell and both being informed,” O’Malley v. Ames, 8 Cir., 197 F.2d 256, at page 257; Fitts’ Estate v. Commissioner of Internal Revenue, 8 Cir., 237 F.2d 729, 731, is one of fact and cannot be established on the basis of fixed rules or formulae. Among the factors properly to be considered in making the determination are corporate assets, earnings, dividend policy, earning power of the corporation, prospects of the corporation, book value, character of the management, competition and other factors which an informed purchaser and informed seller would take into account. O’Malley v. Ames, supra; Fitts’ Estate v. Commissioner of Internal Revenue, supra. To give a detailed résumé and analysis of the facts for the purpose of demonstrating that the instant determination is invulnerable to a successful attack would unduly and" }, { "docid": "2143106", "title": "", "text": "v. First National Bank of Anoka, 400 F.2d 838, 844 n. 7 (8th Cir. 1968), cert. denied, 393 U.S. 1063, 89 S.Ct. 716, 21 L.Ed.2d 706 (1969); Engelkes v. Farmers Co-Operative Co., 194 F.Supp. 319, 323 (N.D.Iowa 1961). The parties have stipulated that ISC was insolvent when it transferred the additional 10,000 shares to Edwards. None of the other elements of § 60(a)(1) is in material dispute. The principal issue before the district court and in this appeal is whether Edwards had reasonable cause to believe ISC was insolvent at the time of the transfer. II. In this Circuit, a district court’s finding that a creditor had reasonable cause to believe a debtor was insolvent at the time of an allegedly preferential transfer is reviewed under the “clearly erroneous” standard of Fed.R.Civ.P. 52(a). See Bostian v. Levich, 134 F.2d 284, 287 (8th Cir. 1943); Harrison v. Merchants National Bank, 124 F.2d 871, 874 (8th Cir. 1942); cf. Herzog v. Mandan Security Bank (In re PRS Products, Inc.), supra, at 417 (reviewing bankruptcy court’s finding of reasonable cause to believe under clearly erroneous doctrine); Employers Mutual Casualty Co. v. Hinshaw, 309 F.2d 806, 809 n. 2 (8th Cir. 1962) (clearly erroneous test applied to district court’s findings when, reviewing bankruptcy court’s order, it exercises discretion to receive additional evidence). See also American National Bank & Trust Co. v. Bone, 333 F.2d 984, 986 (8th Cir. 1964); H. D. Lee Co. v. Bostian, 187 F.2d 942, 946-47 (8th Cir. 1951). Such a finding will only be held clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Farmers Bank of Clinton v. Julian, 383 F.2d 314, 320 (8th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 593, 19 L.Ed.2d 662 (1967). See also Magidson v. Duggan, 212" }, { "docid": "3835592", "title": "", "text": "on the transaction. This is simply not the law and it is not the Code’s method of measuring gain on a transaction of this kind. Wessel v. United States, 49 F.2d 137, 139 (8 Cir. 1931). The value of the sublicense, as distinguished from its cost and adjusted basis, was wholly immaterial. We see nothing at all arbitrary about the statutory scheme or about the Commissioner’s application of the statutes which would lead to the invocation and application of cases such as Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935), urged upon us by Research. What the Commissioner has done here, in contradistinction to the situation in the Taylor case, 293 U.S. at 514-515, 55 S.Ct. 287, 79 L.Ed. 623, is not arbitrary or irrational but is in aecord with the theory and concept of the statutes. Having thus concluded that the exchange was a taxable transaction and that Research’s adjusted income tax basis in the sublicense was zero, then, as we have noted, the fair market value of the 136,500 shares received measures the gain to Research. The Commissioner and the Tax Court found that that stock at the time of the exchange on February 5, 1962, had a fair market value of $1 per share. Valuation of stock for tax purposes is a question of fact. Arc Realty Co. v. Commissioner of Internal Revenue, 295 F.2d 98, 103 (8 Cir. 1961); Hamm v. Commissioner of Internal Revenue, 325 F.2d 934, 938 (8 Cir. 1963), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; United States v. Righter, 400 F.2d 344, 351 (8 Cir. 1968). This being so, the “clearly erroneous” standard of review, Rule 52(a), Fed.R.Civ.P., has application to the Tax Court’s finding. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Idol v. Commissioner of Internal Revenue, 319 F.2d 647, 651 (8 Cir. 1963). A review of the record convinces us that the evidence in the aggregate is supportive of the Tax Court’s valuation finding and, indeed, is overwhelmingly so, and that" }, { "docid": "3972443", "title": "", "text": "but we are not persuaded that it stands for income totalling. See Estate of Lillian B. Gregory, supra, p. 1020 of 39 T.C.; In re Stevens’ Estate, supra, p. 342 of 329 P.2d. We thus conclude that the district court erred in equating “consideration received” by Edna with the total dollars paid her from the trust during her remaining life on the 158 shares transferred by the nephews. B This conclusion, however, does not mean that we hold that the ?35)773.16 valuation figure proffered by the government is necessarily the proper one. It may be proper and it may not be proper. We are aware, as the parties are, of the tables provided by the regulations for the valuation of life estates. Treas. Regs. § 20.2031-7(c) and (f); Treas. Regs. 105, § 81.10(i). We do not understand that the parties here are in disagreement as to the use or non-use of mortality tables, once the income total-ling approach is discarded. We see nothing in this record which bears one way or the other on whether the decedent in 1950 could reasonably be expected to outlive or underlive her normal life expectancy. But, as the government in its brief concedes, mortality tables are not necessarily determinative. Although the tables ordinarily are to be accepted, United States v. Past, supra, footnote 3, p. 13 of 347 F.2d; Estate of Irma E. Green, 22 T.C. 728, 732 (1954), they are evidentiary and other factors may control. Hall v. United States, 353 F.2d 500 (7 Cir. 1965); Estate of John Halli-day Denbigh, 7 T.C. 387, 389 (1946); Huntington Nat’l Bank, 13 T.C. 760, 772 (1949). See Estate of Lillian B. Gregory, supra, p. 1021 of 39 T.C. Value, after all, is a question of fact and not of formula. Hamm v. Commissioner, 325 F.2d 934, 938 (8 Cir. 1963), cert, denied 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; Estate of Goodall v. Commissioner of Internal Revenue, 391 F.2d 775, 786 (8 Cir. 1968). We are not advised as to the 1950 per share valuation employed by the Internal Revenue Service which, with" }, { "docid": "2143107", "title": "", "text": "reasonable cause to believe under clearly erroneous doctrine); Employers Mutual Casualty Co. v. Hinshaw, 309 F.2d 806, 809 n. 2 (8th Cir. 1962) (clearly erroneous test applied to district court’s findings when, reviewing bankruptcy court’s order, it exercises discretion to receive additional evidence). See also American National Bank & Trust Co. v. Bone, 333 F.2d 984, 986 (8th Cir. 1964); H. D. Lee Co. v. Bostian, 187 F.2d 942, 946-47 (8th Cir. 1951). Such a finding will only be held clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Farmers Bank of Clinton v. Julian, 383 F.2d 314, 320 (8th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 593, 19 L.Ed.2d 662 (1967). See also Magidson v. Duggan, 212 F.2d 748, 752-53 (8th Cir.), cert. denied, 348 U.S. 883, 75 S.Ct. 124, 99 L.Ed. 694 (1954). In determining whether a creditor had reasonable cause to believe the debtor was insolvent, several general propositions emerge from the cases and commentaries but each case, ultimately, must be decided on its own facts, see Harrison v. Merchants National Bank, supra, 124 F.2d at 873; Engelkes v. Farmers Co-Operative Co., supra, 194 F.Supp. at 328; Dean v. Planters National Bank of Hughes, 176 F.Supp. 909, 913 (E.D.Ark.1959); 3 W. Collier on Bankruptcy ¶ 60.52 at 1055, 1071 (14th ed. 1976). The burden is on the bankruptcy trustee to prove by a preponderance of the evidence that the creditor had reasonable cause to believe the debtor was insolvent at the time of the transfer. Kenneally v. First National Bank of Anoka, supra, 400 F.2d at 844; Farmers Bank of Clinton v. Julian, supra, 383 F.2d at 324; Harrison v. Merchants National Bank, supra, 124 F.2d at 874; Dean v. Planters National Bank of Hughes, supra, 176 F.Supp. at 911-12;" }, { "docid": "5651806", "title": "", "text": "simply by pointing to the fact that the Commissioner has reduced his original deficiency claim prior to trial. McMurtry v. CIR, supra. The presumption of correctness of the Commissioner’s $25 per share deficiency determination therefore remained to be overcome by petitioners in this case. Ill The Tax Court upheld the Commissioner’s deficiency determination against petitioners by holding that Modern Maid class B common stock had a fair market value of $37 per share at the dates of transfer to the trust funds. The Tax Court’s valuation is a factual finding con-elusive upon review if not clearly erroneous. CIR v. Duberstein, 363 U.S. 278, 290-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Kraut v. CIR, supra at 1020, n. 8; Seas Shipping Co. v. CIR, 371 F.2d 528, 532 (2d Cir.), cert. denied, 387 U.S. 943, 87 S.Ct. 2076, 18 L.Ed.2d 1330 (1967); Elverson Corp. v. Helvering, 122 F.2d 295, 298 (2d Cir. 1941). “[0]ur powers of review are very straitly limited upon all issues of fact . and that limitation is particularly narrow when the issue is one of value.” Sisto Financial Corp. v. CIR, 149 F.2d 268, 269 (2d Cir. 1945). See, Estate of Brown v. CIR, 425 F.2d 1406 (5th Cir. 1970) (per curiam). To support his deficiency claim at trial the Commissioner presented testimony and an appraisal report by his expert witness, Hugh A. MacMullen III. MacMullen’s evidence consisted of an analysis and opinion based upon comparisons between Modern Maid and five other companies claimed to be comparable to Modern Maid. Mac-Mullen’s appraisal employed three specific methods utilizing the earnings, net worth, operations, and market price of the comparison companies and relating that data to the financial position of Modern Maid to arrive at a valuation which was then discounted to reflect, inter alia, the lack of corporate control in the gifted shares arising from the absence of voting rights in the class B common ' stock. It was MacMullen’s opinion that the fair market value of the class B common stock was $25 per share at the times the gifts were made. His conclusion was in" }, { "docid": "15200492", "title": "", "text": "difficult problems of accurately valuing used rails. These diffi culties arise because there are virtually no open market sales of used rail, and because the rail cannot be appraised now, after 10 to 12 years of subsequent use, to determine what the actual expected life was in 1963, 1964 or 1965. The fair market value of used rail must fall between the market price for similar new rail and scrap rail. The Commissioner’s valuation assumes that the average reusable rail has 50 per cent of its useful life remaining. The Frisco, on the other hand, offered the testimony of its Chief Engineer who said that all but 30 to 40 per cent of the useful life, when measured in tonnage, supported at various speeds, is exhausted in the first location in which the average rail is laid. The district court held that the Frisco, as the plaintiff on the counterclaim, had the burden of rebutting the Commissioner’s valuation. Riss v. Commissioner of Internal Revenue, 478 F.2d 1160, 1164 (8th Cir. 1973). The district court found the Chief Engineer’s testimony “unpersuasive,” and held that the Commissioner’s valuation was reasonable. Accord, Chicago, Burlington & Quincy R.R. v. United States, supra at 1012-13. We cannot say that the district court’s finding is clearly erroneous. See Zenith Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). II. The Debt Discount Issues. The Frisco asserted a setoff for refunds for the years 1963, 1964 and 1965 on the basis of the Commissioner’s disallowance of certain deductions for debt discount taken for those years. The district court found that the railroad had litigated the same issues for different tax years in the Court of Claims in the cases of St. Louis-San Francisco Ry. v. United States, 470 F.2d 523, 200 Ct.Cl. 500 (1972), cert. denied, 417 U.S. 929, 94 S.Ct. 2639, 41 L.Ed.2d 232 (1974); and St. Louis-San Francisco Ry. v. United States, 444 F.2d 1102, 195 Ct.Cl. 343 (1971), cert." }, { "docid": "23558911", "title": "", "text": "is the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under compulsion to buy nor to sell and both being informed”. O’Malley v. Ames, 197 F.2d 256, 257 (8 Cir. 1952); Arc Realty Co. v. Commissioner, 295 F.2d 98, 103 (8 Cir. 1961). Valuation of stock for tax purposes is a matter of “pure fact”. Penn v. Commissioner, 219 F.2d 18, 20-21 (9 Cir. 1955); Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d; Gamble v. Commissioner, 101 F.2d 565, 567 (6 Cir. 1939), cert. denied 306 U.S. 664, 59 S.Ct. 790, 83 L.Ed. 1061. And it “is ever one of fact and not of formula”. In re Nathan’s Estate, 166 F.2d 422, 425 (9 Cir. 1948); Collins v. Commissioner, 216 F.2d 519, 522 (1 Cir. 1954); Snyder’s Estate v. United States, 285 F.2d 857, 861 (4 Cir. 1961). The “absence of market price is no barrier to valuation”. Guggenheim v. Rasquin, 312 U.S. 254, 258, 61 S.Ct. 507, 509, 85 L.Ed. 813 (1941); Whitlow v. Commissioner, 82 F.2d 569, 574 (8 Cir. 1936). The Tax Court is the trier of the facts, the judge of the credibility of witnesses and of the weight of the evidence, and the drawer of appropriate inferences. Commissioner v. Scottish American Investment Co., 323 U.S. 119, 123-125, 65 S.Ct. 169, 89 L.Ed. 113 (1944); Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346 (1938). An appellate court’s powers of review are limited “and that limitation is particularly narrow when the issue is one of value”. Sisto Financial Corp. v. Commissioner, 149 F.2d 268, 269 (2 Cir. 1945); Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d. Many relevant factors in the determination of value are listed in Mertens, Law of Federal Income Taxation, Volume 10, § 59.21. Pertinent factors have been noted by this court in Fitts’ Estate v. Commissioner, 237 F.2d 729, 731-732 (8 Cir. 1956), in Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d, and in O’Malley" }, { "docid": "9703337", "title": "", "text": "F.2d 86, 88 (3d Cir. 1941). .In so deciding, we do not impinge upon the rule that findings of fact by the Tax Court must stand unless clearly erroneous. See Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 290-291 & n. 13, 80 S.Ct. 1190, 1200 & n. 13, 4 L.Ed.2d 1218, 1228 & n. 13 (1960); Farcasanu v. Commissioner of Internal Revenue, 140 U.S.App.D.C. 398, 400-401, 436 F.2d 146, 148-149 (1970). Since the Tax Court predicated its decision exclusively upon its interpretation of the ninth paragraph of the will, its ruling was a legal interpretation, not a finding of fact. Commissioner of Internal Revenue v. Buck, 120 F.2d 775, 779 (2d Cir. 1941); Welsbach Eng’r & Management Corp. v. Commissioner of Internal Revenue, 140 F.2d 584, 586 (3d Cir.), cert. denied, 322 U.S. 751, 64 S.Ct. 1261, 88 L.Ed. 1581 (1944). And to the extent that the court failed to consider the evidence extrinsic to the will, its error was equally one of law. Silverman v. Commissioner of Internal Revenue, 253 F.2d 849, 852 (8th Cir. 1958). We are completely comfortable in our conclusion as to the testator’s intent, for the evidence is “so overwhelmingly one way as to leave no doubt as to the fact,” Silverman v. Commissioner of Internal Revenue, supra, 253 F.2d at 852, and any other conclusion on this record would leave us “with the definite and firm conviction that a mistake has been committed.” Commissioner of Internal Revenue v. Duberstein, supra, 363 U.S. at 291, 80 S.Ct. at 1199-1200, 4 L.Ed. at 1228, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746, 765-766 (1948). See also 26 U.S.C. § 7482(c)(1) (1970); Sweeney v. District of Columbia, 72 App.D.C. 30, 32, 113 F.2d 25, 27, 129 A.L.R. 1370 (1940), cert. denied, 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402 (1940); Hughes v. Commissioner of Internal Revenue, 451 F.2d 975, 977 & n. 5 (2d Cir. 1971)." }, { "docid": "12249935", "title": "", "text": "might superficially argue or cynically comment, therefore, that the Tax Court compromisingly decided the issue down the middle. b. The difference in the Commissioner’s and the estate’s respective results is attributable primarily to the disparities in the estimates of oil reserves and in the per barrel values. c. Two of the Commissioner’s geologist witnesses had appeared on behalf of Mr. Goodall in 1953 before the Colorado Public Utilities Commission and had presented some of their same material in connection with an application for a pipe line to the Little Beaver. Generally, value is a fact to be found and usually is not to be established on the basis of fixed rules or formulas. Hamm v. Commissioner of Internal Revenue, 325 F.2d 934, 937-938 (8 Cir. 1963), cert. denied 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; Arc Realty Co. v. Commissioner of Internal Revenue, 295 F.2d 98, 103 (8 Cir. 1961). See Churder v. United States, 387 F.2d 825. (8 Cir. 1968). The clearly erroneous standard and its accompanying rules apply, as has been noted by the Supreme Court and several times by this court, to findings of fact made by the Tax Court. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed. 2d 1218 (1960); Loco Realty Co. v. Commissioner of Internal Revenue, 306 F.2d 207, 209 (8 Cir. 1962); Idol v. Commissioner of Internal Revenue, 319 F.2d 647, 651 (8 Cir. 1963); Banks v. Commissioner of Internal Revenue, 322 F.2d 530, 537 (8 Cir. 1963); Wells-Lee v. Commissioner of Internal Revenue, 360 F.2d 665, 668 (8 Cir. 1966). Judge Learned Hand observed that the powers of review of a court of appeals “are very straitly limited upon all issues of fact * * * and that limitation is particularly narrow when the issue is one of value”. Sisto Financial Corp. v. Commissioner of Internal Revenue, 149 F.2d 268, 269 (2 Cir. 1945). We have joined in this observation. Hamm v. Commissioner of Internal Revenue, supra, p. 938 of 325 F.2d; Arc Realty Co. v. Commissioner of Internal Revenue, supra, p. 103" }, { "docid": "12249936", "title": "", "text": "noted by the Supreme Court and several times by this court, to findings of fact made by the Tax Court. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed. 2d 1218 (1960); Loco Realty Co. v. Commissioner of Internal Revenue, 306 F.2d 207, 209 (8 Cir. 1962); Idol v. Commissioner of Internal Revenue, 319 F.2d 647, 651 (8 Cir. 1963); Banks v. Commissioner of Internal Revenue, 322 F.2d 530, 537 (8 Cir. 1963); Wells-Lee v. Commissioner of Internal Revenue, 360 F.2d 665, 668 (8 Cir. 1966). Judge Learned Hand observed that the powers of review of a court of appeals “are very straitly limited upon all issues of fact * * * and that limitation is particularly narrow when the issue is one of value”. Sisto Financial Corp. v. Commissioner of Internal Revenue, 149 F.2d 268, 269 (2 Cir. 1945). We have joined in this observation. Hamm v. Commissioner of Internal Revenue, supra, p. 938 of 325 F.2d; Arc Realty Co. v. Commissioner of Internal Revenue, supra, p. 103 of 295 F.2d. On the other hand, the Tax Court’s finding of fact is not binding upon a court of appeals if there is no substantial evidence to sustain it, or if it is against the clear weight of the evidence, or if it is induced by an erroneous view of the law. Campbell County State Bank Inc., of Herreid, S. D. v. Commissioner of Internal Revenue, 311 F.2d 374, 377 (8 Cir. 1963). In the light of these principles we conclude that the record does contain evidence sufficiently supportive of the finding that the partnership interest in the four leases had a value of $2,400,000: 1. By the time of the decedent’s death 24 wells had been drilled in the Goodall leases in the Little Beaver Field. None was drilled thereafter. The partnership was then receiving about 22% of the field’s total production. By the end of 1953, 60 wells, out of an ultimate total of 71, had been drilled in the entire field and there were only 240 undrilled acres in an area" }, { "docid": "3835593", "title": "", "text": "136,500 shares received measures the gain to Research. The Commissioner and the Tax Court found that that stock at the time of the exchange on February 5, 1962, had a fair market value of $1 per share. Valuation of stock for tax purposes is a question of fact. Arc Realty Co. v. Commissioner of Internal Revenue, 295 F.2d 98, 103 (8 Cir. 1961); Hamm v. Commissioner of Internal Revenue, 325 F.2d 934, 938 (8 Cir. 1963), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; United States v. Righter, 400 F.2d 344, 351 (8 Cir. 1968). This being so, the “clearly erroneous” standard of review, Rule 52(a), Fed.R.Civ.P., has application to the Tax Court’s finding. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Idol v. Commissioner of Internal Revenue, 319 F.2d 647, 651 (8 Cir. 1963). A review of the record convinces us that the evidence in the aggregate is supportive of the Tax Court’s valuation finding and, indeed, is overwhelmingly so, and that the finding is not clearly erroneous. On December 21, 1961, Elastomeries filed with the Minnesota Commerce Commission an application for the registration of 119,270 shares of its capital stock. The application proposed a sales price of $1 per share. On January 16, 1962, the Commission entered an order registering those shares for sale in Minnesota at $1 per share. From April 8, 1961, until the date of that approval Elastomeries received subscriptions from 17 subscribers for an aggregate of 61,980 shares of its stock at $1 per share. From that ap proval date until February 17, 1962, 12,900 more Elastomerics shares were sold to seven persons at $1 per share. By March 31, 1962, only 14,222 of the originally authorized 262,500 shares remained unissued; this was about 5 per cent of the total. Further, Elastomerics carried the sublicense on its books at $136,500. Then, too, some 26,250 shares were transferred to Harvey O. Dow in return for services rendered, a fact which is supportive of some value. We thus have evidence of actual sales of" }, { "docid": "4384648", "title": "", "text": "adopt the position advocated by the experts. The question of “fair market value,” defined to be “the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under compulsion to buy nor to sell and both being informed,” O’Malley v. Ames, 8 Cir., 197 F.2d 256, at page 257; Fitts’ Estate v. Commissioner of Internal Revenue, 8 Cir., 237 F.2d 729, 731, is one of fact and cannot be established on the basis of fixed rules or formulae. Among the factors properly to be considered in making the determination are corporate assets, earnings, dividend policy, earning power of the corporation, prospects of the corporation, book value, character of the management, competition and other factors which an informed purchaser and informed seller would take into account. O’Malley v. Ames, supra; Fitts’ Estate v. Commissioner of Internal Revenue, supra. To give a detailed résumé and analysis of the facts for the purpose of demonstrating that the instant determination is invulnerable to a successful attack would unduly and unnecessarily prolong this opinion. It is sufficient to say that consideration of such factors as the earnings of Star, its dividend paying record, its physical assets, capital structure and other pertinent matters satisfies us that a factual basis exists which warranted the Commissioner in the first instance and the Tax Court as the trier of the facts in arriving at the cost basis of $20 per share. The matter of fixing the fair market value of corporate stock for capital gains treatment, with numerous factors entering the picture, obviously cannot be accomplished with exactness or complete accuracy. The agency or tribunal making the determination must exercise sound discretion and good judgment within the framework of proper legal standards. We might have arrived at a different value if we had been making the determination in the first instance, but as the late Judge Learned Hand very appropriately stated in Sisto Financial Corporation v. Commissioner of Internal Revenue, 2 Cir., 149 F.2d 268, 269, “our powers of review are very straitly limited upon all issues of fact," }, { "docid": "164873", "title": "", "text": "Corporation, 29 T.C. 833 (1958); and Stanley V. Waldheim, 25 T.C. 839 (1956), affd. 244 F.2d 1 (C.A.7, 1957).” 56 T.C. 388, 429. After discussing and weighing the significant factors that would apply in setting a valuation on closed corporation stock and giving proper regard to the fact that Commissioner had the burden of proof on this issue, the Tax Court found the fair market value of the shares purchased by taxpayer to be $246,000. The Tax Court in effect weighed the negative and positive factors and found that the positive factors of liquidation value and satisfactory after tax income, together with the capitalized value of past earnings based on a factor of four, clearly indicated a fair market valuation in excess of that paid by the taxpayer, setting the amount of $246,000. No doubt the adverse factors mentioned were depressants on fair market value and were properly considered by the Tax Court. The capitalization factor of four was certainly fair and objective under the circumstances, and this valuation in turn was diminished by an assessment of the adverse factors. Our review of the Tax Court proceeding is confined to a determination of whether there is substantial evidence upon the record as a whole to support that court’s finding or, as sometimes stated, whether or not the determination is against the clear weight of the evidence or is induced by an erroneous view of the law. C.I.R. v. Riss, 374 F.2d 161, 166 (8th Cir. 1967); Arc Realty Company v. C.I.R., 295 F.2d 98, 102 (8th Cir. 1961). As pointed out in Wilmington Co. v. Helvering, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1352 (1942), our appellate review is confined to an examination of whether there is substantial evidence to support the findings. Therefore, this court may not substitute its view of the facts for that of the Tax Court, and thus its findings when supported by substantial evidence are conclusive. The Tax Court’s finding on the valuation of the stock was clearly within the limits of the fair market value evidence disclosed in this ease. The Tax Court," } ]
708383
for a hearing before a duly-appointed administrative law judge. The Director petitioned for review, naming as respondents the coal companies and their insurance carriers from whom the miners seek compensation. I The coal operators and their insurance carriers contend that the Benefits Review Board should be named as a respondent to this proceeding. This contention, however, has been foreclosed by ITO Corp. v. Benefits Review Board, 529 F.2d 1080, 1088-89 (4th Cir. 1975). In that case, a panel unanimously held that the Benefits Review Board should be dismissed as a respondent to a petition for review of its own decision. Accord, Nacirema Operating Co., Inc. v. Benefits Review Board, 538 F.2d 73, 75 (3d Cir. 1976); REDACTED McCord v. Benefits Review Board, 168 U.S.App.D.C. 302, 514 F.2d 198, 200 (1975). Subsequently, the court sitting en banc reheard ITO, but did not disturb this aspect of the panel’s decision. ITO Corp. v. Benefits Review Board, 542 F.2d 903 (4th Cir. 1976). Accordingly, for the reasons stated in ITO, 529 F.2d at 1088-89, we adhere to the position that the Benefits Review Board is not a proper respondent. A more difficult question concerns the standing of the Director to petition for review. In ITO Corp. v. Benefits Review Board, 542 F.2d 903, 906-09 (4th Cir. 1976), a majority of the en banc court held that the Director lacked standing to respond to a petition to review an order of
[ { "docid": "14297686", "title": "", "text": "PER CURIAM: This is a petition for review of the decision of the Benefits Review Board affirming a compensation order entered by an Administrative Law Judge awarding disability benefits to a longshoreman pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., as extended by the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333. The motion of the Benefits Review Board to dismiss it as a party respondent to this appeal is granted. Neither the statutory provisions for review, 33 U.S.C. § 921(c), (Supp. II, 1972), nor Rule 15(a), F.R.A.P., requires the Board be a party, nor is its presence as a party necessary to effectuation of orders this court may enter. The findings of the ALJ are supported by substantial evidence considered on the record as a whole. The attorney fees awarded to counsel for the claimant were reasonable. Thus the order of the Board is affirmed. Counsel for claimant is awarded an additional fee of $750.00 for services on appeal to this court. 33 U.S.C. § 928. . The Ninth Circuit and the D.C. Circuit have entered similar dismissals in appeals in which the Board was designated as respondent. Westfall & Westfall v. Benefits Review Board, # 73-2578, and Reichard v. Benefits Review Board, # 73-2579 (CA9, Dec. 5, 1973); McCord v. Benefits Review Board, # 74-1948, 514 F.2d 198 (D.C.Cir.1975)." } ]
[ { "docid": "2605812", "title": "", "text": "Government proves such disability did not exist. The effect of the Court’s holding in this case, where the record is devoid of evidence which directly and persuasively shows that Thomas Congleton did not suffer from lung disease prior to his demise, is to require his widow to come forward with additional medical evidence to support her testimony, and that of his daughter and associates, which uniformly described how Mr. Congle-ton suffered greatly from respiratory difficulties in his final years. Manifestly, Congress did not intend to place such a burden in these cases where the mere fact of highly prolonged exposure to coal and rock dust almost certainly led to some form of pneu-moconiosis. Whatever disagreement the majority may have with respect to the wisdom of this policy should have been addressed to the legislators who enacted it, not inflicted on Mrs. Congleton who merely relied on it. Over 13 years have elapsed since Mrs. Congleton filed her claim on October 15, 1971, and it has not yet been conclusively determined. Petitioner ought not to be proud of this record. I would affirm the decision of the AU, affirmed by the Benefits Review Board, awarding black lung survivor’s benefits to this claimant, and deny the petition for review filed by the petitioner who should have supported the decision. The petitioner should be bound by the decision of the AU affirmed by the three member Benefits Review Board, which allowed benefits to Mrs. Congleton. The Act grants no power to petitioner either to award or deny benefits, nor does the Act require petitioner either to approve or disapprove such benefits. There is a serious question whether petitioner even has standing to petition this Court for review of the decisions of the Benefits Review Board. It is most unusual and unprecedented for the director of an agency to petition for review of his own agency’s decisions. See I.T.O. Corp. of Baltimore v. Benefits Review Board, 542 F.2d 903, 908 n. 5 (4th Cir.1976). This is a very important case, and respondent Georgia Congleton should petition this Court for rehearing in banc, or a" }, { "docid": "22432037", "title": "", "text": "may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. ...” The Ninth Circuit is in agreement with the Second Circuit position. See Weyerhaeuser Co. v. Gilmore, 528 F. 2d 957 (1975), cert. denied, 429 U. S. 868 (1976). The Fifth Circuit takes a position contrary to that of the Second Circuit and Ninth Circuit. See Boudreaux v. American Workover, Inc., 680 F. 2d 1034 (1982) (en banc) (Tate, J.). Perini bases its standing argument on § 21(c) of the Act, 33 U. S. C. § 921(c). See n. 7, supra. According to Perini, the Director is not “adversely affected or aggrieved” by the decision below, and does not have standing before this Court. Perini relies on several Court of Appeals decisions which, in construing § 21(c), have held the Director to be without statutory standing in cases before the Courts of Appeals. See Fusco v. Perini North River Associates, 601 F. 2d 659 (CA2 1979), vacated and remanded on other grounds, 444 U. S. 1028, adhered to on remand, 622 F. 2d 1111 (CA2 1980), cert. denied, 449 U. S. 1131 (1981); Director, OWCP v. Donzi Marine, Inc., 586 F. 2d 377 (CA5 1978); and I. T. O. Corp. of Baltimore v. Benefits Review Board, 542 F. 2d 903 (CA4 1976), vacated and remanded on other grounds sub nom. Adkins v. I. T. O. Corp. of Baltimore, 433 U. S. 904, adhered to on remand, 563 F. 2d 646 (1977). Section 21(c) is not relevant to our present inquiry. Perini concedes that § 21(c) applies on its face to statutory review before the courts of appeals. Moreover, the cases on which Perini relies do not purport to address the Art. Ill standing issue. 20 CFR § 802.410(b) (1982). Section 39 of the Act, as set forth in 33 U. S. C. § 939, provides that “the Secretary [of Labor] shall" }, { "docid": "23207604", "title": "", "text": "Benefits Review Board, 738 F.2d 387, 391 (10th Cir.1984); Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir.1984); Alabama By-Products v. Killingsworth, 733 F.2d 1511, 1516 n. 10 (11th Cir.1984); Carozza, 727 F.2d at 78. This principle is consistent with the Act’s goal of providing benefits to those miners “who are totally disabled due to pneumoconiosis arising out of [coal mine] employment.” 30 U.S.C. § 901(a). The record before us reveals that the administrative law judge considered all of Saginaw’s evidence. He expressly acknowledged Gibas’ “serious cardio-vascular problems” and Dr. Kress’ opinion that Gibas’ disability was not caused by pneumoconiosis. Nonetheless, the judge also found persuasive evidence that Gibas has pneumoconiosis, is disabled from shortness of breath and has been employed as a coal miner for twenty-four to twenty-nine years under dusty conditions. In light of those facts the judge found that Gibas has satisfied the interim presumption of section 727.203(a), and Saginaw had failed to rebut that presumption. We find no error in these conclusions. Saginaw had the burden of proving that Gibas was not totally disabled. Bethlehem Mines Corp., 736 F.2d at 124; Alabama By-Products, 733 F.2d at 1514-15; Consolidation Coal Co. v. Smith, 699 F.2d 446, 449 (8th Cir.1983); Hampton v. U.S. Dept. of Labor Benefits Review Board, 678 F.2d 506, 508 (4th Cir. 1982); McCluskey v. Zeigler Coal Co., 2 Black Lung Rep. 1-1248, 1272-73 (1981). The administrative law judge concluded that this burden was not met. A review of the record reveals substantial evidence to support this conclusion. Therefore, the decision of the judge was free of factual or legal error. The judgment of the Board is reversed; the petition for review is granted, and the case is remanded to the Board with instructions that benefits be awarded. . Pneumoconiosis is \"a disease of the lungs caused by the habitual inhalation of irritant mineral or metalic particles.” Webster’s New Collegiate Dictionary, p. 878 (1981). See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6-7, 96 S.Ct. 2882, 2888-89, 49 L.Ed.2d 752 (1976). . The Director is permitted to seek review of Board" }, { "docid": "8575327", "title": "", "text": "permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.” P.L. 92-576, 86 Stat. 1251. . Pub.L. 92-576, 86 Stat. 1251. . Previously, we have dealt with other issues arising from the 1972 amendments in Atlantic & Gulf Stevedores, Inc. v. Director, Office of Workers' Compensation Programs, 542 F.2d 602 (3d Cir. 1976) (exhaustion of administrative remedy; second injury disabilities; attorney’s fees); Nacirema Operating Co. v. Benefits Review Board, 538 F.2d 73 (3d Cir. 1976) (existing disability); Sea-Land Service, Inc. v. Director, Office of Workers' Compensation Programs, 540 F.2d 629 (3d Cir. 1976) (scope of coverage). . § 9(b) of the LHWCA, 33 U.S.C. § 909(b) (Supp.1976) provides with respect to death benefits payable: If there be a widow . and no child of the deceased, to such widow ... 50 per centum of the average wages of the deceased during widowhood . The provisions of § 6(b)(1), 33 U.S.C. § 606(b)(1) (Supp.1976) are set out in the text at p. 6 infra. . Petitions for review of the Benefits Review Board’s decision in Rasmussen were filed on May 8 and 29, 1975 in the Ninth Circuit at Nos. 75-2038, 75-2171. These cases have as yet not been heard or decided. . The employer and insurance carrier also challenged the administrative law judge’s award of an attorney’s fee. However, that issue and the Benefits Review Board’s disposition thereof are not before us here. . 33 U.S.C. § 921(c) (Supp.1976) states in pertinent part: (c) Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition . praying that the order be modified or set aside. . . Upon such filing, the court shall have jurisdiction of the proceeding and shall have the power to give a decree affirming, modifying, or setting aside, in whole or in part, the order" }, { "docid": "15430607", "title": "", "text": "whose principal duties are on land but who suffers work-related injuries while performing duties upon navigable waters. Our conclusion is consistent with the purposes of the Congress — to extend and not to withdraw eligibility — and avoids the harsh results which would flow from a strictly occupational interpretation. Since each claimant — that is, Fusco and Sullivan — performed his principal duties upon navigable waters as that term was defined in § 3(a) of the original 1927 LHWCA, 44 Stat. 1426, 33 U.S.C. § 903(a), and sustained on such waters a work-related injury, we hold that each was eligible for compensation as “[a] person engaged' in maritime employment” within the meaning of § 2(3) of the LHWCA as amended in 1972, 86 Stat. 1251, 33 U.S.C. § 902(3) (1970 ed., Supp. V). There remains for us to consider the respondents’ motion to dismiss the Director’s petition on the ground that he lacks standing to petition for review of the BRB’s November 30, 1978 order. We hold that the Director was not “adversely affected or aggrieved” by the Board’s November 30, 1978 order denying Fusco’s and Sullivan’s claims to compensation. Therefore, he lacks statutory standing to petition for review pursuant to 33 U.S.C. § 921(c). Director, Office of Workers’ Compensation Programs v. Donzi Marine, Inc., 586 F.2d 377 (5th Cir. 1978). I. T. O. Corporation of Baltimore v. Benefits R. Bd., 542 F.2d 903 (4th Cir. 1976), vacated sub nom. Adkins v. I. T. O. Corp. of Baltimore, 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d 1088 rev’d on remand on other grounds, 563 F.2d 646 (1977). We cannot improve upon what seem to us the irrefutable analyses of Judges Ainsworth and Winter, for the Fifth and Fourth Circuits, respectively. If our earlier opinion in Pittston etc. [Pittston Stevedoring Corp. v. Dellaventura 544 F.2d 35 (1976)] looks the other way, it is not controlling because we simply found it unnecessary there to decide the standing of the Solicitor of Labor to move to dismiss an appeal by an employer as untimely, 544 F.2d at 42, In any event we do" }, { "docid": "23310232", "title": "", "text": "645, 648 n.8 (5th Cir. 1976); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1266-67 (4th Cir. 1974). The Secretary advances a contrary view. He argues that the Commission is only a nominal party before this court because Congress did not contemplate that the Commission would function as a litigator. Indeed, according to the Secretary, the role of the Commission was envisioned as exactly the opposite. The Court of Appeals for the Ninth Circuit supports his view. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278, 280-81 (9th Cir. 1974). In the context of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, we faced a similar issue concerning the status of the Benefits Review Board. In determining that the Board was only a nominal respondent, we said: [T]he Benefits Review Board performs a review function which prior to the 1972 amendments was performed by the district courts. Certainly those courts had no duty or interest in defending their actions on appeal. There appears to be no reason why the Benefits Review Board should be thought to have such a duty or interest. At best, it is a nominal respondent, and we have no concern that it will disregard a mandate in a case in which it is not so named. The motion of the Benefits Review Board to be dismissed as a respondent will be granted. Nacirema Operating Co., Inc. v. Benefits Review Board, 538 F.2d 73, 75 (3d Cir. 1976). In addition to relying on the Diamond Roofing and Brennan cases, the Commission isolates two statements from the legislative history of the Act made by Senator Javits, who sponsored the amendment creating the Commission, in which he compared the Review Commission to the Federal Trade Commission, a body that does have the authority to defend its orders in the courts of appeals. See FTC v. Dean Foods Co., 384 U.S. 597, 607, 86 S.Ct. 1738, 1744, 16 L.Ed.2d 802 (1966). Senator Javits stated: [The Review Commission] will have the same type of authority that the Federal Trade Commission exercises It is the traditional Federal" }, { "docid": "13187289", "title": "", "text": "wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . . . ” 33 U.S.C. § 903(a). Thus the “coverage” provision and the “employer” definition manifest an unmistakable congressional intention to afford federal coverage for injuries occurring in areas inland of the navigable waters of the United States where prior to 1972 Congress had deferred to state law. See generally Gilmore & Black, supra, § 6-50. Ill In considering the merits of Johns’ claim for compensation under the LHWCA as amended, both the administrative law judge and the Benefits Review Board construed the Act to posit twin requirements for coverage. In the definition of “employee” they perceived a “status” test, i. e., whether Johns was “engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations. . The Board and the administrative law judge understood § 2(4), the employer definition section, to impose an additional requirement for coverage; namely, that an accident occur upon the navigable waters of the United States (including enumerated adjoining facilities). The Board and the administrative law judge agreed that Johns satisfied the status test. The administrative law judge concluded, however, that the accident took place at a situs that the 1972 amendments did not reach. It was this latter conclusion with which the Benefits Review Board disagreed. Because of the inadequacy of the record compiled in the administrative proceedings, we are not in position to either approve or disapprove the Board’s decision and must remand for additional fact-finding. Nor are we certain that the Board has properly interpreted the scope of the 1972 amendments, a task of no little difficulty as several diverging opinions demonstrate. See, e. g., Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, No. 76-4042 (2d Cir. July 1, 1976); I. T. O. Corp. v. Benefits Review Board, 529 F.2d 1080 (4th Cir. 1975), rehearing en banc granted, (March 12, 1976); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), petition for cert filed, 44 U.S.L.W. 3645 (U.S. May 6, 1976) (No." }, { "docid": "18733996", "title": "", "text": "CUDAHY, Circuit Judge. This is a petition for review of an order of the Benefits Review Board of the United States Department of Labor, which affirmed an administrative, law judge’s decision to award benefits under the Black Lung Benefits Act, 30 U.S.C. § 901, et seq. Petitioner, Arch Mineral Corporation (“Arch Mineral”), challenges the award of benefits to the surviving spouse of one of its former employees. For the reasons that follow, we deny the petition. I The claimant, Jewell Degenhardt, applied for black lung benefits on February 26, 1981, and an administrative law judge (an “ALJ”) subsequently determined that she was entitled to receive the benefits. Arch Mineral appealed and, on November 21, 1983, the Benefits Review Board (the “Board”) affirmed the decision of the ALJ. Degenhardt v. Arch Mineral Corp., 6 B.L.R. 1-612 (1983) (per curiam). On December 1, Arch Mineral timely filed a motion for reconsideration with the Board, which was denied on July 27, 1984. On September 24, 1984, Arch Mineral filed a petition for review in this court. We must first consider questions of subject matter jurisdiction even if they have not been raised by the parties. Director, OWCP v. Alabama By-Products Corp., 560 F.2d 710, 715 (5th Cir.1977). If petitioner did not timely file the petition for review, we must dismiss the appeal for want of jurisdiction. Clay v. Director, OWCP, 748 F.2d 501, 503 (8th Cir.1984); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 43-44 (2d Cir.1976), affd on other grounds sub nom., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). Compare also Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir.1985) (failure to appeal AU decision to Board within 30 days); Bennett v. Director, OWCP, 717 F.2d 1167, 1169 (7th Cir.1983) (same); Insurance Co. of North America v. Gee, 702 F.2d 411, 414 (2d Cir.1983) (same); Blevins v. Director, OWCP, 683 F.2d 139, 140-41 (6th Cir.1982) (same). The applicable statute provides that “[a]ny person adversely affected or aggrieved by a final order of the Board may obtain a review of that" }, { "docid": "13187290", "title": "", "text": "waters of the United States (including enumerated adjoining facilities). The Board and the administrative law judge agreed that Johns satisfied the status test. The administrative law judge concluded, however, that the accident took place at a situs that the 1972 amendments did not reach. It was this latter conclusion with which the Benefits Review Board disagreed. Because of the inadequacy of the record compiled in the administrative proceedings, we are not in position to either approve or disapprove the Board’s decision and must remand for additional fact-finding. Nor are we certain that the Board has properly interpreted the scope of the 1972 amendments, a task of no little difficulty as several diverging opinions demonstrate. See, e. g., Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, No. 76-4042 (2d Cir. July 1, 1976); I. T. O. Corp. v. Benefits Review Board, 529 F.2d 1080 (4th Cir. 1975), rehearing en banc granted, (March 12, 1976); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), petition for cert filed, 44 U.S.L.W. 3645 (U.S. May 6, 1976) (No. 75-1620), and one to which we now turn. IV As has been noted, see Southern Pacific Co. v. Jensen, supra, the Constitution forbids state compensation laws to intrude on the navigable waters of the United States. On those waters the federal lawmaking power is exclusive, but the scope of congressional power to enact federal compensation legislation pursuant to its admiralty jurisdiction is, of course, defined by the test of navigability. State Industrial Commission v. Nordenholt Corp., supra; Victory Carriers, Inc. v. Law, 404 U.S. 202, 210, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). Doubtless Congress could, in lawful exercise of its commerce power, have supplanted state workmen’s compensation remedies throughout the entire range of interstate and foreign commerce. But if a suit for workmen’s compensation is an action at law for purposes of the seventh amendment, then any federal compensation law whose coverage extended beyond the limits of admiralty jurisdiction could not be administered under the existing scheme, without provision for jury trial. See Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1207 (3d" }, { "docid": "3051305", "title": "", "text": "Petition for review granted and award modified by published opinion. Judge KING wrote the opinion, in which Chief Judge WILKINSON and Judge WIDENER joined. OPINION KING, Circuit Judge: ITO Corporation of Baltimore petitions for review of the final Decision and Order of the Benefits Review Board (BRB) awarding disability benefits to the respondent, Edward F. Green, who was employed by ITO as a longshore worker. The question presented for our review concerns the proper measure of benefits under Section 8(c) of the Longshore and Harbor Workers’ Compensation Act(LHWCA), 33 U.S.C. §§ 901-950, where an eligible claimant has been partially but permanently disabled by each of two injuries sustained to different parts of his or her body. The combined weekly benefit awarded by the BRB to Green in compensation for his independently disabling ankle and shoulder injuries exceeded the amount to which he would have been entitled had he been totally disabled. We agree with ITO that such a result is illogical, especially as a less onerous alternative exists that fairly and fully compensates Green for the entirety of his injuries. We therefore grant the petition for review and modify the benefit award as explained below. I. On May 14, 1983, Green fell about fifteen feet from a cargo container onto the deck of a ship, fracturing his left ankle and left shoulder. ITO paid for Green’s hospital stay and subsequent recovery, and it also paid him a weekly benefit for the duration of his temporary total disability. Though recompensed for the transitory effects of the accident, Green was entitled to additional compensation for the lasting attenuation of his physical abilities. Accordingly, Green filed a claim with the Department of Labor under Section 8(c) of the LHWCA, seeking benefits for “disability partial in character but permanent in quality.” 33 U.S.C. § 908(c). ITO timely controverted its liability for the claim, see 20 C.F.R. § 702.251, and the matter came on for hearing before an Administrative Law Judge (ALJ). Upon considering the medical and other evidence submitted by the parties, the ALJ concluded that Green had suffered a 15% permanent disability to" }, { "docid": "5368322", "title": "", "text": "“directly involved in [such] loading or unloading functions.” U.S.Code Cong. & Admin.News 1972, p. 4708. V. In the posture in which Nos. 75-1051 and 75-1088 came to our court, the Benefits Review Board, Department of Labor, was named as respondent in a petition under § 21(c) of the Act, 33 U.S.C. § 921(c) (1975 Supp.), to review the Board’s order awarding benefits. The claimant, William T. Adkins, was also named as a respondent. In due course the Board moved that it be dismissed from the proceedings and that there be substituted as a respondent the Director, Office of Workers’ Compensation Programs. The claimant did not oppose the motion, but petitioners, I. T. O. Corporation of Baltimore and Liberty Mutual Insurance Company, and the in-tervenors, National Association of Stevedores et al., did oppose it. We deferred decision on the motion until decision of the cases. In agreement with the holding and reasoning of McCord v. Benefits Review Bd., 168 U.S.App.D.C. 302, 514 F.2d 198 (1975), we do not think that the Benefits Review Board is a respondent to a petition to review its order under either 33 U.S.C. § 921(c) or Rule 15(a), F.R.A.P. The same result has been reached by the Ninth Circuit in two unreported cases. Westfall v. Benefits Review Board (Nos. 73-2578 and 73-2579, 9 Cir. Dec. 5, 1973); Walker v. Benefits Review Board (Nos. 74-1340 and 74-1494, 9 Cir. Aug. 9, 1974). As the District of Columbia Circuit held, “there is sufficient adversity between [employer and employee] to insure proper litigation without participation by the Board,” 514 F.2d at 200, and on this reasoning we do not think that the Director, Office of Workers’ Compensation Programs is a proper respondent either. We dismiss the Board and deny the substitution. This, of course, is not to say that either the Board or a court of appeals may not, in a proper case, permit intervention by others who have an interest at stake and that they may not appear as petitioners or respondents as their interests appear. Counsel for the government have performed a valuable service in these cases" }, { "docid": "5869082", "title": "", "text": "Carolina” I cannot agree with the majority that the certificate is in any way “equivocal,” at 1267, assuming that the majority grants to “equivocal” its standard meaning: having two or more significations: capable of more than one interpretation: of doubtful meaning: AMBIGUOUS Webster’s Third New International Dictionary at 769. The American Heritage Dictionary at 443 lists very nearly the same definition: “capable of two interpretations; cryptic; evasive; ambiguous.” There is nothing “doubtful,” “ambiguous,” “cryptic,” or “evasive” I can find in the certificate. Only one interpretation of the certificate seems possible, and that is Strader’s earlier convictions made no difference to the State trial judge; were Strader again to come before the judge the same sentence would result. In the majority’s view, however, what seems to be the plain meaning of the certificate has been overturned by the sentencing judge’s choice of the word “feel” to express his degree of certitude. “Feel” denotes “believe, think, hold,” Webster’s Third New International Dictionary at 834; and in legal parlance very nearly the same thing: see cases collected at “Feel, Felt,” 16 Words and Phrases, p. 544. Unfortunately, to “believe, think, hold” does not provide the majority with the “certainty” that is required by the present opinion, or even the “assurance” required by Stepheney, for it invalidates the certificate on that ground. In deciding that “feel,” and thus “believe” and “think” lack the requisite certitude, the majority has established a more stringent standard for other judges than we demand of federal judges as shown by our own opinions. For “feel” see: MacKethan v. Burrus, Cootes & Burrus, 545 F.2d 1388, 1390 (4th Cir. 1976) (“We feel”); ITO Corp. v. Benefits Review Board, 529 F.2d 1080, 1088 (4th Cir. 1975) (“we do not feel”); Collins v. Mathews, 547 F.2d 795, 799 (4th Cir. 1976) (dissenting opinion) (“I feel”). For “think” see: United States v. Figurski, 545 F.2d 389, 391-92 (4th Cir. 1976) (“We think,” “we do not think”); EEOC v. United Virginia Bank, 555 F.2d 403, 406 (4th Cir. 1977) (“We do not think”); Roman v. ESB, Inc., 550 F.2d 1343, 1359-62 (4th Cir. 1976)" }, { "docid": "5368321", "title": "", "text": "those who pick up stored cargo for further transshipment. In view of the latter statements and the liberality of construction to be afforded remedial legislation of this type, we do not feel constrained to give an overly limiting interpretation to the phrase “employees who would otherwise be covered by this Act for part of their activity.” U.S.Code Cong. & Admin.News 1972, p. 4708. In summary, when we examine the amendments in the context of the Act prior to amendment, the case law construing the Act and commenting on the power of Congress to legislate in this area, and the language of the committee reports, we reject the government’s assertion that all persons, excluding clerical employees other than checkers, who play any part in the overall loading and unloading process are covered by the Act as amended. We think that, with respect to longshoremen or other persons engaged in longshoring operations, the Amendments extend only to those employees engaged in loading and unloading activities between the ship and the first (last) point of rest, including checkers “directly involved in [such] loading or unloading functions.” U.S.Code Cong. & Admin.News 1972, p. 4708. V. In the posture in which Nos. 75-1051 and 75-1088 came to our court, the Benefits Review Board, Department of Labor, was named as respondent in a petition under § 21(c) of the Act, 33 U.S.C. § 921(c) (1975 Supp.), to review the Board’s order awarding benefits. The claimant, William T. Adkins, was also named as a respondent. In due course the Board moved that it be dismissed from the proceedings and that there be substituted as a respondent the Director, Office of Workers’ Compensation Programs. The claimant did not oppose the motion, but petitioners, I. T. O. Corporation of Baltimore and Liberty Mutual Insurance Company, and the in-tervenors, National Association of Stevedores et al., did oppose it. We deferred decision on the motion until decision of the cases. In agreement with the holding and reasoning of McCord v. Benefits Review Bd., 168 U.S.App.D.C. 302, 514 F.2d 198 (1975), we do not think that the Benefits Review Board is a" }, { "docid": "22888288", "title": "", "text": ". . . employees . . . employed in maritime employment, in whole or in part . . . 33 U.S.C. § 902(4) (1970). . A “checker” checks the contents of a container carrying goods for several consignees against the bills of lading or other records. . The issue whether the BRB should be a respondent in court of appeals review of its awards under 33 U.S.C. § 921(c) was treated in McCord v. Benefits Review Board, 168 U.S. App.D.C. 302, 514 F.2d 198 (1975). There the BRB moved to dismiss the petition as to it. Petitioner did not oppose the motion and the court granted it, citing recent unreported decisions of the Ninth Circuit. The court reasoned that there was “sufficient adversity” between the claimant and the employer (or its insurance carrier) “to insure proper litigation without participation by the Board,” that requiring the Board to participate “would parallel requiring the District Court to appear and defend its decision upon direct appeal” and that the presence of the second comma in 33 U.S.C. § 921(c) which reads: A copy of such petition shall be forthwith transmitted by the clerk of the court, to the Board, and to the other parties, and thereupon the Board shall file in the court the record in the proceedings as provided in section 2112 of Title 28. indicated an intention that the Board should not be a party to the appeal. There were pending motions to substitute the Director, Office of Workers’ Compensation Programs, U.S. Dept, of Labor (OWCP), as a respondent which were not before the court of appeals. In the I.T.O. case, supra, the Board moved to be dismissed as a respondent and to have the Director substituted; the court granted the first branch of the motion but denied the second, 529 F.2d at 1088-89. With respect, we cannot subscribe to the view that Congress intended to create what to us would seem a novel form of review of federal administrative action in which no one representing the Government would be a party. See F.R.App.P. 15(a) (“In each case the agency shall" }, { "docid": "15219442", "title": "", "text": "This petition for review followed. II. The opinions of the Board members make clear that had they considered 20 C.F.R. § 727.203(b)(3) to be a valid regulation they would have affirmed the order requiring payment of benefits. Thus the petition for review should be granted, and that order reinstated, if this court so concludes. Before addressing that question, however, we address the preliminary objection, advanced by the petitioner and the Director, Office of Workers’ Compensation Programs, that the Benefits Review Board lacks statutory authority to consider the validity of regulations issued by the Secretary. A. The Board acts on the authority of 33 U.S.C. § 921(b)(3) (1976), which provides: The Board shall be authorized to hear and determine appeals raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees under this chapter and the extensions thereof, (emphasis supplied). The statutory language is clear. Congress authorized the Board to decide questions of law, and consistency of a regulation with the underlying statutory scheme is such a question. The Board was created in 1972 to perform the functions formerly performed by the United States District Courts under section 21 of the Longshoremen’s and Har bor Workers’ Compensation Act, ch. 509, 44 Stat. 1436 (1927), as amended, 33 U.S.C. § 921(b) (1976). See Nacirema Operating Co., Inc. v. Benefits Review Bd., 538 F.2d 73, 75 (3d Cir.1976). The district courts had authority to decide questions of law, and that authority was transferred. The Director of the Office of Workers’ Compensation Programs, United States Department of Labor, urges that observations made in Kalaris v. Donovan, 697 F.2d 376 (D.C.Cir.), cert. denied, -- U.S. --, 103 S.Ct. 3088, 77 L.Ed.2d 1451 (1983) compel the conclusion that the Benefits Review Board lacks statutory authority to invalidate a regulation promulgated by the Secretary of Labor. It notes that the Board’s members are appointed by the Secretary and serve at his discretion, see Kalaris, 697 F.2d at 381, 390, and that the Board lacks authority to issue even its own procedural regulations absent approval by the" }, { "docid": "5368323", "title": "", "text": "respondent to a petition to review its order under either 33 U.S.C. § 921(c) or Rule 15(a), F.R.A.P. The same result has been reached by the Ninth Circuit in two unreported cases. Westfall v. Benefits Review Board (Nos. 73-2578 and 73-2579, 9 Cir. Dec. 5, 1973); Walker v. Benefits Review Board (Nos. 74-1340 and 74-1494, 9 Cir. Aug. 9, 1974). As the District of Columbia Circuit held, “there is sufficient adversity between [employer and employee] to insure proper litigation without participation by the Board,” 514 F.2d at 200, and on this reasoning we do not think that the Director, Office of Workers’ Compensation Programs is a proper respondent either. We dismiss the Board and deny the substitution. This, of course, is not to say that either the Board or a court of appeals may not, in a proper case, permit intervention by others who have an interest at stake and that they may not appear as petitioners or respondents as their interests appear. Counsel for the government have performed a valuable service in these cases by supplementing the argument of the claimants as to the meaning to be afforded the 1972 Amendments. We treat their participation, however, as amicus curiae. In Nos. 75-1075 and 75-1196, no point is made of who are named as respondents. We make none, confident in the belief that in this circuit future litigation will be conducted in accordance with what we have stated. Reversed; Benefits Review Board dismissed in Nos. 75-1051 and 75 — 1088. . The 1972 Amendments to §§ 2 and 3 were only part of a broad overhaul of the Act. Other amendments substantially increased the maximum and minimum benefits which could be awarded; accomplished a legislative overruling of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), which permitted a longshoreman to recover damages from a ship resulting from the ship’s unseaworthiness; and effected a legislative overruling of Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), under which a ship could recoup from a" }, { "docid": "8575299", "title": "", "text": "Inc., and its insurance carrier, Liberty Mutual Insurance Co., stipulated that the respondent was entitled to the maximum benefits payable under the LHWCA. However, the parties were unable to reach agreement as to what constituted the maximum weekly death benefit payable to the respondent under the statute. 33 U.S.C. § 909 (Supp. 1976). The respondent contended that under the 1972 amendments she was entitled to death benefits equal to 50 per cent of the deceased’s average weekly wage or $285.92 subject to no limitations. 33 U.S.C. § 909(b). In response the employer and insurance carrier urged that although respondent was entitled to death benefits based upon the formula of 50 per cent of the deceased’s average weekly wage that sum was nevertheless subject to the limitations of § 6(b)(1), 33 U.S.C. § 906(b)(1) which would result in a weekly benefit less than $285.92. Their dispute as to the amount of the death benefit payable was referred to an administrative law judge for hearing and decision. See 33 U.S.C. § 919 (Supp.1976). The administrative law judge, relying upon the Benefits Review Board’s decision in Rasmussen v. Geo Control Inc., 1 BRBS 378, BRB 74-204 (April 3, 1975) rejected the employer’s and the carrier’s contention that death benefits were limited by the amended § 6(b)(1). Accordingly, the respondent was awarded 50 per cent of the average weekly wage of the decedent or $285.92 from March 30, 1974 and continuing during her widowhood. 33 U.S.C. § 909(b) (Supp.1976). The employer, insurance carrier, and the Director of the Office of Workers’ Compensation Programs (Director), appealed to the Benefits Review Board urging that the Rasmussen case had been erroneously decided. However, the Board declined to reverse its earlier holding and therefore affirmed the decision and order of the administrative law judge. O’Keefe v. Morris Boney, Inc., 2 BRBS 363, BRB Nos. 75-179, 75-179A (October 16, 1975). This petition for review was filed by the Director from the final decision of the Benefits Review Board. Our jurisdiction is predicated upon 33 U.S.C. § 921(c) (Supp. 1976). II. The 1972 amendments to the LHWCA constituted a major" }, { "docid": "22888230", "title": "", "text": "FRIENDLY, Circuit Judge: We have here four petitions under 33 U.S.C. § 921(c) by employers, in some instances joined by their insurance carriers, to review orders of the Benefits Review Board (BRB) affirming compensation awards made to four employees under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), as amended in 1972, 33 U.S.C. §§ 901 et seq. They present a question of considerable importance, namely, how far the 1972 Amendments extended the coverage of LHWCA. Presented with the same general issue, a divided panel of the Fourth Circuit ruled in favor of the employers, I.T.O. Corporation of Baltimore v. Benefits Review Board, U. S. Dep’t of Labor and Adkins, 529 F.2d 1080 (4 Cir. 1975), holding that the Act extended benefits only to persons injured while unloading cargo from the ship to what the majority termed a “first point of rest,” i. e., the first place where the cargo is deposited on a pier or terminal area after being unloaded, and to persons injured while loading cargo from the “last point of rest,” 529 F.2d at 1081. The I.T.O. case has been reheard en banc. We are told that only one other circuit has construed the extended coverage provisions here at issue, Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9 Cir. 1975), rehearing denied, Feb. 6, 1976, petition for cert. filed, No. 75-1620, 44 U.S.L.W. 3645 (U.S. May 6, 1976), a case we do not consider to be truly relevant, but that the issue here presented is sub judice in the First Circuit, John T. Clark & Son of Boston, Inc. v. William Stockman, No. 75-1360, argued Jan. 5, 1976, and in the Fifth Circuit. Given the importance of the question, the number of courts of appeals endeavoring to find an answer, and the divergence of opinion already manifested, it seems unlikely that the opinion of any court of appeals will be the last word to be said. In consequence we shall not dwell on the long history of the problem of affording appropriate remedies for longshoremen and harbor workers against their employers which had its inception in Southern" }, { "docid": "2605813", "title": "", "text": "proud of this record. I would affirm the decision of the AU, affirmed by the Benefits Review Board, awarding black lung survivor’s benefits to this claimant, and deny the petition for review filed by the petitioner who should have supported the decision. The petitioner should be bound by the decision of the AU affirmed by the three member Benefits Review Board, which allowed benefits to Mrs. Congleton. The Act grants no power to petitioner either to award or deny benefits, nor does the Act require petitioner either to approve or disapprove such benefits. There is a serious question whether petitioner even has standing to petition this Court for review of the decisions of the Benefits Review Board. It is most unusual and unprecedented for the director of an agency to petition for review of his own agency’s decisions. See I.T.O. Corp. of Baltimore v. Benefits Review Board, 542 F.2d 903, 908 n. 5 (4th Cir.1976). This is a very important case, and respondent Georgia Congleton should petition this Court for rehearing in banc, or a judge of this Court should so move." }, { "docid": "23207605", "title": "", "text": "Gibas was not totally disabled. Bethlehem Mines Corp., 736 F.2d at 124; Alabama By-Products, 733 F.2d at 1514-15; Consolidation Coal Co. v. Smith, 699 F.2d 446, 449 (8th Cir.1983); Hampton v. U.S. Dept. of Labor Benefits Review Board, 678 F.2d 506, 508 (4th Cir. 1982); McCluskey v. Zeigler Coal Co., 2 Black Lung Rep. 1-1248, 1272-73 (1981). The administrative law judge concluded that this burden was not met. A review of the record reveals substantial evidence to support this conclusion. Therefore, the decision of the judge was free of factual or legal error. The judgment of the Board is reversed; the petition for review is granted, and the case is remanded to the Board with instructions that benefits be awarded. . Pneumoconiosis is \"a disease of the lungs caused by the habitual inhalation of irritant mineral or metalic particles.” Webster’s New Collegiate Dictionary, p. 878 (1981). See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6-7, 96 S.Ct. 2882, 2888-89, 49 L.Ed.2d 752 (1976). . The Director is permitted to seek review of Board decisions in the courts to \"ensure proper and consistent administration” of the Act. Sha-hady v. Atlas Tile & Marble Co., 673 F.2d 479, 483 (D.C. Cir.1982) (per curiam). See also Director, OWCP v. Eastern Coal Corp., 561 F.2d 632, 641-49 (6th Cir.1977). . \"B-readers” have the greatest expertise and training for evaluating x-rays. See Hatfield v. Secretary of Health and Human Services, 743 F.2d 1150, 1151, 1154 n. 3 (6th Cir.1984). . Because the Board ruled that the administrative law judge had erred in his interpretation of section 727.203(b)(3), it did not reach Saginaw's other contentions that it had also rebutted the presumption pursuant to 727.203(b)(2) and (b)(4). Saginaw has not reasserted these contentions here. . As we read the Board’s decision, the administrative law judge erred because he failed to apply section 727.203(b)(3) as rewritten by the Board in Jones v. The New River Company, supra. We therefore disagree with Saginaw’s contention that the Board issued an additional, alternative ruling that the presumption was rebutted even under 727.203(b)(3) as written by the Secretary, notwithstanding" } ]
777599
Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). A demonstration of irreparable harm is the “single most important prerequisite for the issuance of a preliminary injunction.” Bell & Howell v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983). The mere possibility of harm is not sufficient: the harm must be imminent and the mov-ant must show it is likely to suffer irreparable harm if equitable relief is denied. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990); Computer Assocs., 784 F.Supp. at 986. If irreparable harm is remote, speculative, or a mere possibility, the motion must be denied. See Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir.1991); REDACTED B. Inevitable Disclosure of Trade Secrets As Irreparable Harm In this circuit, irreparable harm may be presumed if a trade secret has been misappropriated. A trade secret, once lost, is lost forever; its loss cannot be measured in money damages. See North Atlantic Instruments, Inc. v. Haber, 188 F.3d 38, 49 (2d Cir.1999) (quoting FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984)). It is also possible to establish irreparable harm based on the inevitable disclosure of trade secrets, particularly where the movant competes directly with the prospective employer and the transient employee possesses highly confidential or technical knowledge concerning manufacturing processes, marketing strategies, or the like. Such a risk was present in PepsiCo, Inc.
[ { "docid": "22833459", "title": "", "text": "its arrangement with France Presse. Because the district court believed the first irreparable injury claim to be com-pensable in money damages and the second claim to be speculative, it concluded that UPI had failed to establish irreparable harm. UPI appealed and on March 15, 1990 moved in this Court for a stay and an expedited appeal. On March 20 UPI’s motion was granted. During oral argument of the expedited appeal the stay was extended pending this decision. We now reverse. DISCUSSION I Requirements for Issuance of a Preliminary Injunction It is well established in this Circuit that a party seeking a preliminary injunction must show that it is likely to suffer possible irreparable injury if the injunction is not granted and “either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor.” Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 314-15 (2d Cir.1982). See also, Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989); Video Trip Corp. v. Lightning Video, Inc., 866 F.2d 50, 52 (2d Cir.1989); New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 755-56 (2d Cir.1977). Because a showing of probable irreparable harm is “ ‘the single most important prerequisite for the issuance of a preliminary injunction,’ ” Bell & Howell: Mamiya Co. v. Masel Co. Corp., 719 F.2d 42, 45 (2d Cir.1983) (quoting 11 C. Wright & A. Miller, Federal Practice & Procedure § 2948, at 431 (1973)), the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered. Irreparable harm must be shown by the moving party to be imminent, not remote or speculative, Tucker, 888 F.2d at 975, and the alleged injury must be one incapable of being fully remedied by monetary damages. Id.; Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917-18 (2d Cir.1986). II Appellate Review Whether a preliminary injunction should issue or not rests in" } ]
[ { "docid": "23621390", "title": "", "text": "situation was presented to the district court. A preliminary injunction grants the plaintiff a measure of his final relief in advance of proving that he is entitled to final relief. The remedy is drastic, although we will not disturb a district court’s decision to grant such an injunction unless it is an abuse of discretion, see Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 (2d Cir.1990), or rests on an error of law. See Stormy Clime Ltd. v. Progroup, Inc., 809 F.2d 971, 974 (2d Cir. 1987) (abuse of discretion and error of law are distinct but equally valid grounds for reversal of district court’s preliminary injunction ruling). Reversal is in order where the district court’s ruling is predicated on an error of law because, by definition, the injunction “would plainly result from an improvident exercise of the trial court’s discretion.” See Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 316 (2d Cir.1982). We have noted more than once that “ ‘[pjerhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.’ ” Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948, at 431 (1973) (footnote omitted)). An applicant for a preliminary injunction “must show that it is likely to suffer irreparable harm if equitable relief is denied.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990) (emphasis in original). Thus, a mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction. Monetary loss alone will generally not amount to irreparable harm. “A monetary loss will not suffice unless the movant provides evidence of damage that cannot be rectified by financial compensation.” Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). Such evidence might include, for example, proof that the monetary loss will probably force the party" }, { "docid": "15576181", "title": "", "text": "v. Scappini 66 F.3d 36, 38-39 (2d Cir.1995)); accord Medical Soc’y of the State of New York v. Toia, 560 F.2d 535, 538 (2d Cir.1977) (preliminary injunctive relief is “an extraordinary and drastic remedy which should not be routinely granted”). In order to obtain a preliminary injunction to prevent government action allegedly taken pursuant to statutory authority, plaintiffs must establish that absent injunctive relief, they will suffer irreparable harm, and that they are likely to succeed on the merits. See Statharos v. New York City, Taxi & Limousine Comm’n, 198 F.3d 317, 321 (2d Cir.1999) (citing Molloy v. Metropolitan Transp. Auth., 94 F.3d 808. 811 (2d Cir.1996)); North Atlantic Instruments, Inc. v. Haber, 188 F.3d 38, 43 (2d Cir.1999). Plaintiffs meet this standard. B. Irreparable Harm The single most important prerequisite for issuance of a preliminary injunction is a “demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” Jayaraj, 66 F.3d at 39 (quoting Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985)). Irreparable harm is “injury for which a monetary award cannot be adequate compensation.” Jayaraj, 66 F.3d at 39 (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). The mere possibility of harm is not sufficient; the harm must be imminent and the movant must show it is likely to suffer irreparable harm if equitable relief is denied. See Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir.1991); JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990); Reuters Ltd. v. United Press Intern., Inc., 903 F.2d 904, 907 (2d Cir.1990). Plaintiffs contend that defendants’ “unauthorized disclosure of plaintiffs’ confidential psychiatric and medical information” in violation of their constitutional rights constitutes irreparable harm. (Am.Compl.¶¶ 180, 193, 231) The Fitness Reports, which plaintiffs allege are being publicly filed, contain information revealed by their treating physicians relating to plaintiffs’ medical histories, HIV status, substance abuse, and other intimate details of their personal lives. See O.J. Aff. Ex. A., M.P. Aff." }, { "docid": "12893120", "title": "", "text": "quo. “The purpose of a temporary restraining order is to preserve an existing situation in status quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.” Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1125 (2d Cir.1989) (quoting Pan American World Airways, Inc. v. Flight Engineers’ Int’l Ass’n, 306 F.2d 840, 842-43 (2d Cir.1962)). Thus, a temporary restraining order should issue for just so long as is necessary to hold a hearing. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). The Second Circuit has deemed the threshold showing of “irreparable harm” to be of particular significance under Rule 65, regardless of the strength of the movant’s case on the merits. See, e.g., Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990) (“a showing of probable irreparable harm is the ‘single most important prerequisite for the issuance of a preliminary injunction’ ”) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir.1983)). Accordingly, “[ijrreparable harm must be shown by the moving party to be imminent, not remote or speculative, and the alleged injury must be one incapable of being fully remedied by monetary damages.” Reuters, 903 F.2d at 907 (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989)). The movant is required to establish not a mere possibility of irreparable harm, but that it is “likely to suffer irreparable harm if equitable relief is denied.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990) (emphasis in original). “Likelihood sets, of course, a higher standard than ‘possibility.’ ” Id. Plaintiffs’ main contention is that if the Series C financing continues, Spencer Trask will suffer the immediate and irreparable injury of having its stake in the company “drastically diluted.” They substantiate this claim by citing cases they argue demonstrate the “uniqueness” of equity interests that render remedies at law inadequate. Their proposition is that the dilution of a plaintiffs stock constitutes" }, { "docid": "9344330", "title": "", "text": "this point. Thus, the Employment Agreement reinforces Haber’s duty under New York law not to use his former employer’s trade secrets against the employer. Accordingly, the District Court properly concluded that North Atlantic has demonstrated a likelihood of success on the merits of its misappropriation of trade secrets claim. III. Irreparable Harm Finally, we conclude that North Atlantic has shown that it will suffer irreparable harm in the absence of an injunction. We have held that “loss of trade secrets cannot be measured in money damages” because “[a] trade secret once lost is, of course, lost forever.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984) (per curiam). In addition, Haber acknowledged in his Employment Agreement that a breach of the confidentiality clause would cause “irreparable injury” to North Atlantic. Cf. Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69 (2d Cir.1999) (relying on a similar clause in determining irreparable injury for purposes of upholding a grant of injunctive relief). In light of our holding in FMC and the “irreparable injury” clause in the Employment Agreement, we conclude that North Atlantic would be irreparably harmed in the absence of an injunction. CONCLUSION Because North Atlantic has demonstrated a likelihood of success on the merits and because it would suffer irreparable harm in the absence of an injunction, we conclude that the District Court did not exceed its allowable discretion in granting a preliminary injunction. We therefore affirm. . The Employment Agreement excluded from its definition of “Confidential Information” that which has become public knowledge independently of any wrongful acts by Haber. . As explained below, North Atlantic took additional steps with Haber and its other employees to protect against the disclosure of trade secrets, including additional confidentiality agreements. . Haber clearly used the information on the day he printed the file: That day, he sent a fax to the contact listed on the form. . Haber left his desktop computer at North Atlantic, and a systems person from North Atlantic cleared Haber’s laptop computer of any North Atlantic files; indeed, North Atlantic's chief executive" }, { "docid": "23621391", "title": "", "text": "a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.’ ” Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948, at 431 (1973) (footnote omitted)). An applicant for a preliminary injunction “must show that it is likely to suffer irreparable harm if equitable relief is denied.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990) (emphasis in original). Thus, a mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction. Monetary loss alone will generally not amount to irreparable harm. “A monetary loss will not suffice unless the movant provides evidence of damage that cannot be rectified by financial compensation.” Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). Such evidence might include, for example, proof that the monetary loss will probably force the party into bankruptcy. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975); Tucker Anthony Realty, 888 F.2d at 975. In such a situation, there is more than the risk of mere monetary loss. But, when a party can be fully compensated for financial loss by a money judgment, there is simply no compelling reason why the extraordinary equitable remedy of a preliminary injunction should be granted. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Here, the district court, relying on its reasoning in Alberts, supra, held that irreparable harm could be found because the surety would forever lose its rights to quia timet and exoneration. Alberts, 741 F.Supp. at 431 (“Therefore, the loss of the rights, not the potential financial loss, constitutes the irreparable harm.”). Even if the surety would “forever” lose these rights — an assumption in which we do not join — we have held that irreparable harm does not necessarily follow. In Abish v. Northwestern Nat’l Insurance" }, { "docid": "13256054", "title": "", "text": "to suffer irreparable harm before a decision on the merits can be rendered.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985). Irreparable harm is that injury which is so serious that “a monetary award cannot be adequate compensation.” Id. at 275; see also Warner-Lambert Co. v. Northside Development Corp., 86 F.3d 3, 8 (2d Cir.1996) (irreparable harm requirement may be met by showing that harm is unquantifiable in monetary terms). In order to demonstrate irreparable injury the movant must show “an injury that is neither remote nor speculative, but actual and imminent and cannot be remedied by an award of monetary damages.” Earthweb, Inc. v. Schlack, 2000 WL 1093320, at *2, 2000 U.S.App. LEXIS 11446, at *5-6 (2d Cir. May 18, 2000) (finding plaintiffs showing insufficient to warrant a preliminary injunction where they failed to demonstrate that defendant had removed proprietary documents or information or was about to violate his duties under the agreement). Irreparable harm is presumed where a trade secret has been misappropriated because, as the Court of Appeals for the Second Circuit has explained, “[a] trade secret once lost is, of course, lost forever” and, therefore, such a loss “cannot be measured in money damages.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984). Even where a trade secret has not yet been disclosed, irreparable harm may be found based upon a finding that trade secrets will inevitably be disclosed where, as here, “the movant competes directly with the prospective employer and the transient employee possesses highly confidential or technical knowledge concerning [ ] marketing strategies, or the like.” EarthWeb, Inc. v. Schlack, 71 F.Supp.2d 299, 309 (S.D.N.Y.1999). It is concluded that Estee Lauder has carried its burden of demonstrating irreparable injury for the following reasons. First, if Batra does misappropriate Estee Lauder’s trade secrets, it would be “very difficult to calculate the monetary damages that would successfully redress the loss,” Ticor Title Insurance Co. v. Cohen, 173 F.3d 63, 68-69 (2d Cir.1999), given the difficulty in ascertaining empirically how much of a competitive advantage such information gives Perrieone and/or" }, { "docid": "8165074", "title": "", "text": "certain of plaintiffs “trade secrets”- — namely, its product design specifications and its prospective and current customer databases. As is the case when the substantive merits of trademark infringement are proven, a showing of misappropriation of trade secrets can give rise to a presumption of irreparable harm. See, e.g., Tradescape.com v. Shivaram, 77 F.Supp.2d 408, 410-11 (S.D.N.Y.1999); see also FMC Corp. v. Taiwan Tainan Giant Indus. Co., Ltd., 730 F.2d 61, 63 (2d Cir.1984) (“A trade secret, once lost is, of course, lost forever,” and “it is clear that the loss of trade secrets cannot be measured in money damages”). Because, however, plaintiff cannot establish at this stage of the proceedings that its design specifications and customer databases are entitled to trade secret protection — a likelihood of success on the merits — or, alternatively, that even if there are sufficiently serious questions going to the merits, that the balance of hardships tip in its favor, the defendants cannot be enjoined from developing, marketing and selling their products pending trial. 1. Likelihood of success on the merits To establish misappropriation of a trade secret, a plaintiff must prove: 1) that “it possessed a trade secret; and 2) that defendants are using that trade secret in breach of an agreement, confidence, or duty, or as a result of discovery by improper means.” Integrated Cash Management Services, Inc. v. Digital Transactions, Inc., 920 F.2d 171, 173 (2d Cir.1990); see also Carpetmaster of Latham v. Dupont Flooring Systems, 12 F.Supp.2d 257, 261 (N.D.N.Y.1998). A threshold, and, in this case, ultimately dispositive, question that must be determined is whether the design specifications and current and prospective customer databases are entitled to trade secret protection at this stage of the litigation. Under New York law, which defines the contour of trade secret law in this case, a trade secret may consist of “ ‘any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it’.” Softel, Inc. v. Dragon Med. and Scientific Communications, Inc.," }, { "docid": "15461779", "title": "", "text": "to Fed.R.Civ.P. 52(a), set forth below are the Court’s required findings of fact and conclusions of law (see Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093, 1097 [2d Cir.1991]; Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1088 [2d Cir.1990] see also Weitzman v. Stein, 897 F.2d 653, 658 [2d Cir.1990] [district court “must” set forth reasons for grant or denial of preliminary injunction]). APPLICABLE LAW A. Jurisdiction Subject matter jurisdiction over this action exists pursuant to 28 U.S.C. § 1332, since the plaintiffs and defendants are of diverse citizenship, and the amount in controversy exceeds $50,000. B. Standard on Preliminary Injunction The grant of preliminary injunctive relief is considered an “extraordinary” (Patton v. Dole, 806 F.2d 24, 28 [2d Cir. 1986]), and “drastic” (Borey v. National Union Fire Ins., 934 F.2d 30, 33 [2d Cir.1991]) remedy. Accordingly, in order to obtain a preliminary injunction in the Second Circuit, it is now well established that the movant must clearly establish the following required elements: “(1) irreparable harm or injury, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and. a balance of hardships tipping decidedly in favor of the movant” (Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 [2d Cir.1979] [per curiam]). (See also Western Publishing Co. v. Rose Art Indus., Inc., 910 F.2d 57, 59 [2d Cir.1990]; LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 [2d Cir.1985]; Vera, Inc. v. Tug “Dakota”, 769 F.Supp. 451, 454 [E.D.N.Y.1991]; Ecolab Inc. v. Paolo, 753 F.Supp. 1100, 1109 [E.D.N.Y.1991]). A showing of probable irreparable harm is usually considered the single most important requirement (see Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 [2d Cir.1990]), and an applicant must establish more than a mere “possibility” of irreparable harm, namely, “that it is likely to suffer irreparablé harm if equitable relief is denied” (JSC Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 [2d Cir.1990] [emphasis in original]). Where money" }, { "docid": "15461780", "title": "", "text": "(2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and. a balance of hardships tipping decidedly in favor of the movant” (Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 [2d Cir.1979] [per curiam]). (See also Western Publishing Co. v. Rose Art Indus., Inc., 910 F.2d 57, 59 [2d Cir.1990]; LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 [2d Cir.1985]; Vera, Inc. v. Tug “Dakota”, 769 F.Supp. 451, 454 [E.D.N.Y.1991]; Ecolab Inc. v. Paolo, 753 F.Supp. 1100, 1109 [E.D.N.Y.1991]). A showing of probable irreparable harm is usually considered the single most important requirement (see Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 [2d Cir.1990]), and an applicant must establish more than a mere “possibility” of irreparable harm, namely, “that it is likely to suffer irreparablé harm if equitable relief is denied” (JSC Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 [2d Cir.1990] [emphasis in original]). Where money damages are adequate compensation, a preliminary injunction will not issue (see Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., supra, 596 F.2d at p. 72). Of particular relevance to this action is the recognition by the Second Circuit that the loss of “trade secrets” is not measurable in terms of money damages (see FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 [2d Cir.1984] [per curiam] [“A trade secret once lost is, of course, lost forever”]), and is thus considered “irreparable harm.” Moreover, the potential loss of an industry leader’s present market and loss of the advantage of being the pioneer in the field and the market leader, may constitute irreparable harm. (See, for example, Natural Organics, Inc. v. Proteins Plus, Inc., 724 F.Supp. 50 [E.D.N.Y.1989]). As to “likelihood of success,” the movant “need not show that success is an absolute certainty. It need only be shown that the probability of the movant prevailing is better than fifty percent” (Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 [2d Cir.1985]). C. The" }, { "docid": "21685382", "title": "", "text": "- forth below, the Court finds that the individuals who' have submitted sworn -declarations in support of' the preliminary injunction motion have established a strong showing -of irreparable” harm, and the harms those individuals face are representative of prospective class members generally. Accordingly, the Court will consider the application for preliminary injunctive relief- in: the context of the putative class members as a whole. • B. > Irreparable Harm The most important' prerequisite to issuing a preliminary injunction is irreparable harm. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009), Plaintiffs seeking preliminary injunctive relief must affirmatively “demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that' cannot be remedied if a court waits until the end of trial to resolve the harm.” Id. (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)). “The movant is required to establish not a mere .possibility of irreparable harm, but that it is ‘likely to suffer- irreparable harm if equitable relief is denied.’” Johnson Controls, Inc. v. A.P.T. Critical Sys., Inc., 323 F.Supp.2d 525, 531 (S.D.N.Y. 2004) (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990)). 1. Sworn Declarations Submitted by Petitioners Based on the record before the Court, Petitioners have established irreparable harm through the negative physical and mental health effects of prolonged detention and the fact that their continued detention has prevented putative class members from adequately preparing for their asylum hearings before an immigration judge. In support of their motion, Petitioners have attached numerous declarations detailing the ways that Respondents have -violated the ICE Directive and the harm caused by the ongoing violations. Many of these putative class members affirm that they have been detained at the Buffalo Federal Detention Facility for months at a time. (See, e.g., Dkt. 38^4 at 3 (since February 2017); Dkt. 38-5 at 4 (since October 2016); Dkt. 38-6 at 2 (since January 2017); Dkt. 38-7 at 2 (since February 2017); Dkt. 38-8 at" }, { "docid": "10501803", "title": "", "text": "eight to ten new applications a month. This corresponds to the figure obtained by plaintiffs by dividing the total number of 1994 public assistance cases of 555,221 by the projected number of eligibility specialists, which results in a total of 184 cases per specialist. DISCUSSION In order for a preliminary injunction to issue, plaintiffs must demonstrate irreparable harm and a likelihood of success on the merits. See Communications Workers of America, Dist. One, AFL-CIO v. NYNEX Corp., 898 F.2d 887, 891 (2d Cir.1990); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). It is not sufficient to obtain preliminary relief in an action such as this to establish serious questions going to the merits since, where “a preliminary injunction ‘seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,’ the less rigorous fair-ground-for-litigation standard should not be applied.” Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir.1993) (quoting Plaza Health Labs, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)). Irreparable Harm The showing of irreparable harm is the “single most important prerequisite for the issuance of a preliminary injunction,” Bell and Howell v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983), and the moving party must show that injury is likely before the other requirements for an injunction will be considered. Irreparable harm must be shown to be imminent, not remote or speculative, and the injury must be such that it cannot be fully remedied by monetary damages. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). Irreparable harm is injury for which a monetary award cannot compensate. Studebaker Corp. v. Gittlin, 360 F.2d 692 (2d Cir.1966). A “substantial loss of income” may be an irreparable injury if there is no way to recover the damages resulting from the lost income. New York Patho. & X-Ray Labs., Inc. v. Immigration and Naturalization Service, 523 F.2d 79, 81 (2d Cir.1975). It is generally recognized that denying welfare benefits to a qualified recipient “may deprive an eligible recipient of the very means" }, { "docid": "13256055", "title": "", "text": "Second Circuit has explained, “[a] trade secret once lost is, of course, lost forever” and, therefore, such a loss “cannot be measured in money damages.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984). Even where a trade secret has not yet been disclosed, irreparable harm may be found based upon a finding that trade secrets will inevitably be disclosed where, as here, “the movant competes directly with the prospective employer and the transient employee possesses highly confidential or technical knowledge concerning [ ] marketing strategies, or the like.” EarthWeb, Inc. v. Schlack, 71 F.Supp.2d 299, 309 (S.D.N.Y.1999). It is concluded that Estee Lauder has carried its burden of demonstrating irreparable injury for the following reasons. First, if Batra does misappropriate Estee Lauder’s trade secrets, it would be “very difficult to calculate the monetary damages that would successfully redress the loss,” Ticor Title Insurance Co. v. Cohen, 173 F.3d 63, 68-69 (2d Cir.1999), given the difficulty in ascertaining empirically how much of a competitive advantage such information gives Perrieone and/or how much detriment it might cause to the future profitability of R + F and/or Dar-phin products. See Shipley Co. v. Clark, 728 F.Supp. 818, 827 (D.Mass.1990) (“the task of quantifying the consequences of violating a non-competition clause is a particularly difficult and elusive one”). Additionally, as in Ticor, the employment agreement between Batra and Estee Lauder “concedes that in the event of breach of the post-employment competition provision, [Estee Lauder] shall be entitled to injunctive relief, because it would cause irreparable injury.” (See Bous-queNChavanne Deck, Exhibit B, ¶ 13.) As in Ticor therefore, the agreement’s language “might arguably be viewed as an admission by [Batra] that plaintiff will suffer irreparable harm were he to breach the contract’s non-compete agreement.” Ticor, 173 F.3d at 69. Batra contends that Estee Lauder has not demonstrated irreparable injury, but rather simply has speculated about the possibility that Batra will use the alleged confidential business information. According to Batra, Estee Lauder cannot satisfy this requirement because: (1) Batra does not have any technical expertise; (2) Perri-cone and Batra do" }, { "docid": "9344329", "title": "", "text": "the parties contemplated Haber’s being able to solicit clients upon his leaving North Atlantic. Regardless of what such parol evidence might suggest, we may not consider it because the agreement is unambiguous on its face and because the agreement contains a valid general merger clause. See, e.g., Primex Int’l Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594, 599, 679 N.E.2d 624, 627, 657 N.Y.S.2d 385, 388 (1997) (noting that a general merger clause “require[s] full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing”); Mizuna, Ltd. v. Crossland Fed. Sav. Bank, 90 F.3d 650, 659 (2d Cir.1996) (applying New York’s parol evidence rule). Likewise, the defendants contend that the Asset Purchase Agreement provides a more limited duty of non-solicitation for Haber than that imposed by the preliminary injunction. We hold, however, that the Employment Agreement is clear on its face as to Haber’s duties with respect to trade secrets and that nothing in the Asset Purchase Agreement contradicts it on this point. Thus, the Employment Agreement reinforces Haber’s duty under New York law not to use his former employer’s trade secrets against the employer. Accordingly, the District Court properly concluded that North Atlantic has demonstrated a likelihood of success on the merits of its misappropriation of trade secrets claim. III. Irreparable Harm Finally, we conclude that North Atlantic has shown that it will suffer irreparable harm in the absence of an injunction. We have held that “loss of trade secrets cannot be measured in money damages” because “[a] trade secret once lost is, of course, lost forever.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984) (per curiam). In addition, Haber acknowledged in his Employment Agreement that a breach of the confidentiality clause would cause “irreparable injury” to North Atlantic. Cf. Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69 (2d Cir.1999) (relying on a similar clause in determining irreparable injury for purposes of upholding a grant of injunctive relief). In light of our holding in FMC and the" }, { "docid": "15576182", "title": "", "text": "273, 275 (2d Cir.1985)). Irreparable harm is “injury for which a monetary award cannot be adequate compensation.” Jayaraj, 66 F.3d at 39 (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). The mere possibility of harm is not sufficient; the harm must be imminent and the movant must show it is likely to suffer irreparable harm if equitable relief is denied. See Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir.1991); JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990); Reuters Ltd. v. United Press Intern., Inc., 903 F.2d 904, 907 (2d Cir.1990). Plaintiffs contend that defendants’ “unauthorized disclosure of plaintiffs’ confidential psychiatric and medical information” in violation of their constitutional rights constitutes irreparable harm. (Am.Compl.¶¶ 180, 193, 231) The Fitness Reports, which plaintiffs allege are being publicly filed, contain information revealed by their treating physicians relating to plaintiffs’ medical histories, HIV status, substance abuse, and other intimate details of their personal lives. See O.J. Aff. Ex. A., M.P. Aff. Ex. A, J.M. Aff. Ex. B, and J.R. Aff. Ex. B. Much of the information in the Fitness Reports falls within the “constitutionally protected zone of privacy.” Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The right to privacy is grounded in the Fourteenth Amendment’s concept of personal liberty, see Whalen, 429 U.S. at 599 n. 23, 97 S.Ct. at 876 n. 23 (citing Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973)), and encompasses the “individual interest in avoiding disclosure of personal matters.” Whalen, 429 U.S. at 599, 97 S.Ct. at 876; accord Statharos, 198 F.3d at 322. The Second Circuit has specifically recognized the right to confidentiality of personal medical information, which is explored in detail in the Fitness Reports. In Doe v. City of New York, 15 F.3d 264 (2d Cir.1994), the Second Circuit held that “the right to confidentiality includes the right to protection regarding information about the state of one’s health.” Doe, 15 F.3d at 267. The" }, { "docid": "23427430", "title": "", "text": "New York City v. Bloomberg L.P., 118 F.3d 917, 929 (2d Cir.1997). 1. Irreparable Harm Defendants argue that the district court erred in finding irreparable harm to the Plaintiffs. Irreparable harm is “ ‘the single most important prerequisite for the issuance of a preliminary injunction.’ ” Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1988) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2948 at 431 (1st ed.1973)). Accordingly, “the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990). “The movant must demonstrate an injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages.” Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir.1995) (quotation marks and citation omitted); see also Sweeney v. Bane, 996 F.2d 1384, 1387 (2d Cir.1993) (upholding denial of preliminary injunction seeking to prevent erroneous Medicaid co-payments because harm was purely financial). In the absence of a showing of irreparable harm, a motion for a preliminary injunction should be denied. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir.1990); Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982). At oral argument it became clear that, despite the district court’s finding of irreparable harm to the Plaintiff class for purposes of granting a preliminary injunction, the district court subsequently granted Defendants’ request for a stay of enforcement of the preliminary injunction pending appeal, pursuant to Fed.R.Civ.P. 62. To determine whether a stay of an order pending appeal is appropriate, a court must evaluate the following factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public" }, { "docid": "648449", "title": "", "text": "the placement of analgesic products. The Court accepted several additional exhibits for filing. In this regard, the Court notes that neither party requested an opportunity to present additional testimony, nor does the Court believe that additional proof is necessary to resolve the present application. Accordingly, the Court bases this de novo determination entirely upon the record below, the oral argument of October 4, 1991, and the submissions by the parties. B. Standard for the Issuance of a Preliminary Injunction In order to obtain a preliminary injunction in the Second Circuit, it is well established that the movant must “clearly” establish the required elements set forth in the familiar recitation of the rule as follows: “a party seeking a preliminary injunction in this circuit must establish both possible irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see Warner Bros. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981) [Jackson Dairy standard applies in trademark infringement cases]; see also Western Publishing Co. v. Rose Art Indus., Inc., 910 F.2d 57, 59 (2d Cir.1990); LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 (2d Cir.1985). A showing of probable irreparable harm is usually considered the single most important requirement (see Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 [2d Cir.1990] [citations omitted]), and an applicant must establish more than a mere “possibility” of irreparable harm, namely, “that it is likely to suffer irreparable harm if equitable relief is denied” (JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 [2d Cir.1990]). As to the “likelihood of success” element, the movant “need not show that success is an absolute certainty. He need only make a showing that the probability of his prevailing is better than fifty percent” (Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 [2d Cir.1985]). However, in the" }, { "docid": "12893121", "title": "", "text": "v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir.1983)). Accordingly, “[ijrreparable harm must be shown by the moving party to be imminent, not remote or speculative, and the alleged injury must be one incapable of being fully remedied by monetary damages.” Reuters, 903 F.2d at 907 (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989)). The movant is required to establish not a mere possibility of irreparable harm, but that it is “likely to suffer irreparable harm if equitable relief is denied.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990) (emphasis in original). “Likelihood sets, of course, a higher standard than ‘possibility.’ ” Id. Plaintiffs’ main contention is that if the Series C financing continues, Spencer Trask will suffer the immediate and irreparable injury of having its stake in the company “drastically diluted.” They substantiate this claim by citing cases they argue demonstrate the “uniqueness” of equity interests that render remedies at law inadequate. Their proposition is that the dilution of a plaintiffs stock constitutes irreparable harm. However, as defendants point out, each of the cases cited present very different factual scenarios, none of which fully substantiate their proposition. For example, plaintiffs cite Street v. Vitti, 685 F.Supp. 379, 384 (S.D.N.Y.) wherein the Court found under the facts of that case that plaintiff shareholders had shown the threat of irreparable harm because the sale of additional shares would reduce their holdings to less than 20%, thus eliminating their rights under the state law that prevents dissolution of a corporation. And in Rebell v. Muscat, 26 A.D.2d 685, 272 N.Y.S.2d 478, 479 (N.Y.A.D.1996), the Court affirmed a preliminary injunction where the defendant corporate officers intended to effect a 20% dilution of outstanding shares by exercising stock options themselves. It is unclear to the Court how plaintiffs find these cases applicable to their own situation. They presently own only 2% of the corporation and the continuing of the Series C financing likely will not irreparably harm their efforts to retain the additional 18% of stock, because as defendants note, they might still" }, { "docid": "15461781", "title": "", "text": "damages are adequate compensation, a preliminary injunction will not issue (see Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., supra, 596 F.2d at p. 72). Of particular relevance to this action is the recognition by the Second Circuit that the loss of “trade secrets” is not measurable in terms of money damages (see FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 [2d Cir.1984] [per curiam] [“A trade secret once lost is, of course, lost forever”]), and is thus considered “irreparable harm.” Moreover, the potential loss of an industry leader’s present market and loss of the advantage of being the pioneer in the field and the market leader, may constitute irreparable harm. (See, for example, Natural Organics, Inc. v. Proteins Plus, Inc., 724 F.Supp. 50 [E.D.N.Y.1989]). As to “likelihood of success,” the movant “need not show that success is an absolute certainty. It need only be shown that the probability of the movant prevailing is better than fifty percent” (Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 [2d Cir.1985]). C. The Defense of Laches The defendants contend that the plaintiffs’ delay in seeking this preliminary injunctive relief constituted laches. Even though delay may not rise to the level of “laches”, it may nonetheless indicate the absence of irreparable harm (see Majorica, S.A. v. R.H. Macy & Co., 762 F.2d 7, 8 [2d Cir.1985]). As the Second Circuit noted in another context namely, a trademark infringement action: “Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiffs’ rights. Delay in seeking enforcement of those rights, however, tends to indicate at least a reduced need for such drastic, speedy action. Gillette Co. v. Ed Pinaud, Inc., 178 F.Supp. 618, 622 (S.D.N.Y.1959). Accord Le Sportsac, Inc. v. Dockside Research, Inc., 478 F.Supp. 602, 609 (S.D.N.Y.1979).” (Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 [2d Cir.1985]). The Court finds that the plaintiffs did not delay to such an extent that laches is a bar to the preliminary injunctive relief sought. The record demonstrates that in the time period prior" }, { "docid": "23137925", "title": "", "text": "of a preliminary injunction.” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (internal quotation marks omitted). We have explained that “[t]o satisfy the irreparable harm requirement, [p]laintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007) (internal quotation marks omitted). “Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances.” Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir.2005). We have previously observed that “the loss of trade secrets cannot be measured in money damages” where that secret, once lost, is “lost forever.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984) {per curiam). Some courts in this Circuit have read this passing observation to mean that a presumption of irreparable harm automatically arises upon the determination that a trade secret has been misappropriated. See, e.g., Ivy Mar Co. v. C.R. Seasons, Ltd., 907 F.Supp. 547, 567 (E.D.N.Y.1995) (“[I]rreparable harm is presumed where a trade secret has been misappropriated.”). That reading is not correct. A rebuttable presumption of irreparable harm might be warranted in cases where there is a danger that, unless enjoined, a misappropriator of trade secrets will disseminate those secrets to a wider audience or otherwise irreparably impair the value of those secrets. Where a misappropriator seeks only to use those secrets—without further dissemination or irreparable impairment of value—in pursuit of profit, no such presumption is warranted because an award of damages will often provide a complete remedy for such an injury. Indeed, once a trade secret is misappropriated, the misap-propriator will often have the same incentive as the originator to maintain the confidentiality of the secret in order to profit from the proprietary knowledge. As Judge Conner has observed, where there is no danger that a misappropriator will disseminate" }, { "docid": "23137924", "title": "", "text": "attempted for a second time to reverse engineer BFC TBU, Moore was selected to play a key role because “he [was] knowledgeable about the product.” Tr. 617:9-10 (Testimony of Paul E. Jamieson, Chief Engineer, Wabtec Corp.). Notwithstanding Moore’s “self-serving testimony that his role in the reverse engineering process was minimal,” Faiveley II, 572 F.Supp.2d at 407, the record indicates that Moore made several specific recommendations to draftsmen. Wabtec has not presented us with any compelling reason—nor are we aware of any—to question the District Court’s assessment that Moore’s testimony was “self-serving.” See Joseph v. New York City Bd. of Educ., 171 F.3d 87, 93 (2d Cir.1999) (“Assessments of the credibility of witnesses are peculiarly within the province of the trier of fact and are entitled to considerable deference.”). Accordingly, we hold that the District Court did not err in finding that Faiveley is likely to succeed on the merits of its claim that Wabtec misappropriated Faive-ley’s trade secrets. B. Irreparable Harm A showing of irreparable harm is “the single most important prerequisite for the issuance of a preliminary injunction.” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (internal quotation marks omitted). We have explained that “[t]o satisfy the irreparable harm requirement, [p]laintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007) (internal quotation marks omitted). “Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances.” Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir.2005). We have previously observed that “the loss of trade secrets cannot be measured in money damages” where that secret, once lost, is “lost forever.” FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir.1984) {per curiam). Some courts in this Circuit have read this passing observation to mean that" } ]
623398
1999, Pindell had told her that he had been robbing prostitutes’ customers, and that he would hurt her if she told anyone. Because it was unclear whether this statement related to the particular robberies with which Pindell was charged, the government offered the testimony as “other crimes” evidence under Rule 404(b). The district court properly admitted the statement pursuant to that rule for the purpose of proving PindeU’s ■intent to rob the prostitutes’ customers and to rebut 'the suggestion that he was present at the scene of the robberies by mistake or accident. See Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653-54, 136 L.Ed.2d 574 (1997); United States v. Long, 328 F.3d 655, 661-62 (D.C.Cir.2003); REDACTED United States v. Latney, 108 F.3d 1446, 1448 (D.C.Cir.1997). Second, Pindell contends that the district court erred by denying his motion to sever the charges against him into (at least) thirteen separate cases, one for each of the robberies. See 2/20/01 Tr. at 79-80 (requesting that “all robbery counts be severed from one another”); Fed. R.CrimP. 14 (“If the joinder of offenses ... in an indictment ... appears to prejudice a defendant or the government, the court may order separate trials of counts ... or provide any other relief that justice requires.”). In United States v. Levi, we held that “[t]he decision of a district court to deny a defendant’s motion to sever offenses may generally be reversed only
[ { "docid": "469528", "title": "", "text": "prior crack cocaine sales—sales close in time and place to those charged in the indictment—was not meant to show that someone had intent and knowledge. The evidence was introduced to prove that Davis had the intent to distribute the crack and that Davis knew what- he was possessing. Davis’s proposed stipulation could not possibly have substituted for such proof. It did not even mention him by name. Far from a choice between “propositions of slightly varying abstraction,” the choice in these eases was between concrete evidence of the defendants’ actions giving rise to natural and sensible inferences, and abstract stipulations about hypothetical persons not on trial. The government’s proof of Crowder’s other crime also had legitimate probative force with respect to matters beyond those encompassed in his proposed stipulation. A “piece of evidence,” the Court wrote in Old Chief, “may address any number of separate elements, striking hard just because it shows so much at once,” 519 U.S. at---, 117 S.Ct. at 653. Rule 404(b) evidence will often have such multiple utility, showing at once intent, knowledge, motive, preparation and the like. Proof of an individual’s intent to commit an act may itself serve as proof that the individual committed the act, as the Supreme Court recognized more than a century ago. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 296, 12 S.Ct. 909, 912-13, 36 L.Ed. 706 (1892). In proving that a defendant intended to distribute crack cocaine, for instance, the government might simultaneously be showing the defendant’s motive to possess the crack, which Rule 404(b) permits. Intent would thereby serve as an intermediate fact from which the jury could infer another intermediate fact—motive—from which it could in turn infer the element of possession. Thus, other-offense evidence of intent would have probative value not just on the intent element, but also on the possession element of the offense. The multiple utility of Rule 404(b) evidence is illustrated in Crowder’s case. See also United States v. Latney, 108 F.3d 1446, 1448-50 (D.C.Cir.), cert. denied, — U.S. -, 118 S.Ct. 355, 139 L.Ed.2d 276 (1997); United States v. Harrison," } ]
[ { "docid": "4077231", "title": "", "text": "a defendant or the government, the court may order separate trials of counts ... or provide any other relief that justice requires.”). In United States v. Levi, we held that “[t]he decision of a district court to deny a defendant’s motion to sever offenses may generally be reversed only upon a finding of clear prejudice and abuse of discretion,” and that a “finding of prejudice is logically precluded if, had the counts been tried separately, the evidence concerning each count would have been admissible in the trial on each other count.” 45 F.3d 453, 455 (D.C.Cir.1995) (internal quotation marks omitted). In Levi, we found that “the modus operdndi in all of the [nine charged] robberies was strikingly similar — the perpetrator used similar notes, made similar statements and gestures, wore similar clothing, and robbed banks ... in the same general area of the city.” Id. Because the “evidence concerning all of the robberies would surely have been admissible in the trial for each of the other robberies,” we concluded that “there was no prejudice, and the district court did not abuse its discretion in denying” severance. Id. at 455-56 (citing Fed.R.Evid. 404(b)). Levi is indistinguishable from this case. Indeed, Pindell’s is virtually a textbook case for the application of Rule 404(b), because in each of the robberies charged, the assailant employed virtually the same modus operandi: each robbery occurred within blocks of Georgia Avenue, and all within the same nine-month period; each victim had just picked up a prostitute; in each instance the assailant was dressed as a police officer; in each case the robber silently walked up to the victim’s car, ordered him to get out, and took his cash; and, after each offense, the robber let both the victim and the woman go. The evidence of each robbery would thus have been admissible under Rule 404(b) in the trial of each of the others, and the defendant therefore suffered no prejudice from their joinder. Finally, Pindell challenges an in-court identification of him made by victim George Bashonga. Pindell alleges that the identification was the product of an imper-missibly" }, { "docid": "4077216", "title": "", "text": "handcuff him, and the defendant finally called for police assistance. 2/28/01 Tr. at 125. When other officers arrived, they let Wicks go. On July 11, 2000, a grand jury issued a superceding indictment, charging Pindell with thirteen counts of depriving individuals of their civil rights while armed, in violation of 18 U.S.C. § 242; thirteen counts of armed robbery, in violation of D.C.Code §§ 22-2901 and 22-3202; and one count of assaulting Joseph Wicks with a dangerous weapon, in violation of D.C.Code § 22-502. The district court denied Pindell’s motion to suppress the items seized from his car and home as well as evidence derived from those items. The case proceeded to trial, at which all of Pindell’s victims — as well as several prostitutes and his former girlfriend — testified against him. The government also introduced into evidence the notebooks and MPD form that the police had seized from Pindell’s basement and car. Inside the notebooks were personal details regarding all thirteen of the victims named in the civil rights counts. Pindell took the stand in his own defense, testifying that, although he had stopped each of the victims for engaging in prostitution, he had never robbed any of them. He also proffered two witnesses who testified that a man named “Boo” Farrow had been robbing prostitutes’ customers during the same period. The jury convicted Pindell on all counts, with the exception of one of the civfl rights counts, as to which it found Pindell guilty of a lesser included charge. We address Pindell’s appeal of the denial of his motion to suppress evidence in Part II. In Part III, we consider the defendant’s claim that the district court committed a number of trial errors. II In reviewing the denial of a motion to suppress, we examine the district court’s legal conclusions de novo, but apply a “clearly erroneous” standard to its underlying findings of fact. See United States v. Hill, 131 F.3d 1056, 1059 n. 2 (D.C.Cir.1997); United States v. Taylor, 997 F.2d 1551, 1553 (D.C.Cir.1993). The Fourth Amendment to the Constitution provides that “no Warrants shall issue," }, { "docid": "4077227", "title": "", "text": "Part III, evidence of other robberies would likewise have been admissible at a trial for the robbery of Zelaya or Dainkeh alone, pursuant to Federal Rule of Evidence 404(b). For the same reason, we conclude that Detectives Griffin and Williams had probable cause to seize the notebooks and MPD form that they discovered in Pin-dell’s house. The detectives had been briefed by Detective Paci regarding the particulars of the Zelaya and Dainkeh robberies, including the fact that Pindell had used a notebook to record personal information during the former crime. When Detective Williams flipped through the notebooks to see whether they contained the currency and identification cards specified in the warrant, she discovered names, dates, addresses, and other personal details. At that point, she had probable cause to believe that the information contained therein might constitute evidence of crimes similar to those she was investigating. The same was true of the incident description visible on the face of the MPD form discovered by Detective Griffin. We therefore conclude that the district court properly denied the motion to suppress because the seizures were lawful under the plain view doctrine. Ill In addition to pressing his Fourth Amendment claim, Pindell asks that we consider three claims of trial error. We do so only briefly, because we perceive little merit in them. First, Pindell contends that the court erred by admitting two kinds of “other crimes” evidence pursuant to Federal Rule of Evidence 404(b). Although Rule 404(b) bars the admission of evidence “of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith,” it permits the admission of such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). We review a claim that a district court improperly ad mitted evidence under Rule 404(b) solely to determine whether the court abused its discretion. See United States v. Bowie, 232 F.3d 923, 926-27 (D.C.Cir.2000). Prior to trial, the government sought and received the district court’s permission to introduce testimony from" }, { "docid": "20336743", "title": "", "text": "the robberies offered similar descriptions of the perpetrator. Bank employees watched the perpetrator of the last robbery get into a car and they took note of the license plate number. The police then arrested Mr. Levi, to whom the vehicle was registered. Upon questioning he admitted to having committed six of the robberies. Although he did not remember committing three other robberies, he stated that if the perpetrator used a note demanding $100, $50, and $20 bills and stated that he had a gun, then that probably was him. At trial several government witnesses identified Mr. Levi as the perpetrator. Moreover, the prosecution introduced into evidence surveillance camera photographs of six of the robberies, including one upon which Mr. Levi had written “I was involved” and signed his name. n_ Analysis Through counsel appointed by the court Levi seeks a new trial on the ground that the district court abused its discretion when it refused to sever the charges against him for separate trials. Alternatively, counsel asks this court to vacate Levi’s convictions for aggravated bank robbery, arguing that the district court erred in denying Levi’s motion for judgment of acquittal on those charges and in instructing the jury on the elements of aggravated bank robbery. Finally, in a separate pro se brief, Levi challenges the length of his sentence, arguing that the court improperly considered his conviction under the Federal Youth Corrections Act (FYCA). A. Denial of Severance The decision of a district court to deny a defendant’s motion to sever offenses “may generally be reversed ‘only upon a finding of clear prejudice and abuse of discretion.’” United States v. Daniels, 770 F.2d 1111,1115 (D.C.Cir.1985) (quoting United States v. Lewis, 626 F.2d 940, 945 (D.C.Cir.1980)). A finding of prejudice is logically precluded if, had the counts been tried separately, the evidence concerning each count would have been admissible in the trial on each other count. See Bradley v. United States, 433 F.2d 1113, 1118 (D.C.Cir. 1969); United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir.1987). Here the modus operandi in all of the robberies was strikingly similar —" }, { "docid": "4077229", "title": "", "text": "two prostitutes — each of whom witnessed a robbery charged in the indictment — that Pindell had previously paid them to engage in sexual acts. The government offered this evidence because it showed the prostitutes’ familiarity with Pindell, and hence “their ability to identify” him. 12/20/00 Tr. at 481. Pindell’s identity as the uniformed robber was plainly at issue in the trial, and particularly so because Pindell proffered defense witnesses who testified that a man named “Boo” Farrow had been robbing prostitutes’ customers during the relevant period — implying that the prosecution witnesses had mistaken Farrow for Pindell. Since Rule 404(b) expressly permits the admission of “other crimes” evidence to prove identity, the district court did not err in admitting the testimony. See Washington, 12 F.3d at 1134-35. The government also informed Pin-dell before trial that it intended to introduce testimony by his former girlfriend that, on May 10, 1999, Pindell had told her that he had been robbing prostitutes’ customers, and that he would hurt her if she told anyone. Because it was unclear whether this statement related to the particular robberies with which Pindell was charged, the government offered the testimony as “other crimes” evidence under Rule 404(b). The district court properly admitted the statement pursuant to that rule for the purpose of proving PindeU’s ■intent to rob the prostitutes’ customers and to rebut 'the suggestion that he was present at the scene of the robberies by mistake or accident. See Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653-54, 136 L.Ed.2d 574 (1997); United States v. Long, 328 F.3d 655, 661-62 (D.C.Cir.2003); United States v. Crowder, 141 F.3d 1202, 1208-09 (D.C.Cir.1998) (en banc); United States v. Latney, 108 F.3d 1446, 1448 (D.C.Cir.1997). Second, Pindell contends that the district court erred by denying his motion to sever the charges against him into (at least) thirteen separate cases, one for each of the robberies. See 2/20/01 Tr. at 79-80 (requesting that “all robbery counts be severed from one another”); Fed. R.CrimP. 14 (“If the joinder of offenses ... in an indictment ... appears to prejudice" }, { "docid": "4077232", "title": "", "text": "the district court did not abuse its discretion in denying” severance. Id. at 455-56 (citing Fed.R.Evid. 404(b)). Levi is indistinguishable from this case. Indeed, Pindell’s is virtually a textbook case for the application of Rule 404(b), because in each of the robberies charged, the assailant employed virtually the same modus operandi: each robbery occurred within blocks of Georgia Avenue, and all within the same nine-month period; each victim had just picked up a prostitute; in each instance the assailant was dressed as a police officer; in each case the robber silently walked up to the victim’s car, ordered him to get out, and took his cash; and, after each offense, the robber let both the victim and the woman go. The evidence of each robbery would thus have been admissible under Rule 404(b) in the trial of each of the others, and the defendant therefore suffered no prejudice from their joinder. Finally, Pindell challenges an in-court identification of him made by victim George Bashonga. Pindell alleges that the identification was the product of an imper-missibly suggestive out-of-court lineup that followed (by several months) Bashonga’s review of a photo array. We have examined both the photo array and a videotape of the lineup, and find nothing impermissi-bly suggestive about either one. See Washington, 12 F.3d at 1134. In particular, we reject Pindell’s contention that the lineup was suggestive because he was assigned the same “number” in the lineup as in the photo array. In fact, the photographs in the array were not numbered at all, and their arrangement — three lines of three photos each, as compared to the lineup’s single line of eight men — was such as to make the designation of an individual’s “number” in the photo array indeterminate. We therefore find no merit in Pindell’s objection to his identification by Bashonga. IV For the foregoing reasons, we conclude that there was no error in any of the challenged decisions of the district court. The judgment of that court is therefore Affirmed. . Title 18 U.S.C. § 242 makes it a crime to willfully deprive a person of" }, { "docid": "4077211", "title": "", "text": "for additional cash. Several victims reported that Pindell wrote down their personal information in a small notebook. The district court entered judgment against the defendant on the jury’s verdict and sentenced him to a total of 262 months’ incarceration. Pindell now appeals, contending that much of the evidence used against him at trial was the fruit of illegal searches and seizures, and that the district court made a variety of trial errors. We find all of Pindell’s arguments to be without merit, and affirm the judgment of the district court. I On December 13, 1999, Victor Zelaya reported to the police that he had been robbed in the early hours of that day after picking up a woman on Georgia Avenue. Zelaya told Detective Anthony Paci that he and the woman were interrupted by a man “dressed as a police officer,” who ordered Zelaya out of the car, pointed a gun at his head, forced him to kneel, and took approximately $250 from him. 2/26/01 Tr. at 14. Zelaya also told Paci that, during the robbery, the assailant had written down personal information in a “notebook like the police use.” Id. at 24; see 2/1/01 Tr. at 12. Two weeks later, on December 28, Osman Dainkeh reported that he had been the victim of a similar robbery the day before. Dainkeh told Detective Paci that he had picked up a prostitute on Georgia Avenue, driven a short distance away, and stopped the car. Soon thereafter, a police officer approached, forced him out of the ear at gunpoint, handcuffed him, and searched his wallet and coat. The officer stole $500, a white gold chain, Dainkeh’s driver’s license, and his alien registration card (“green card”). The prostitute, Wygenia Jones, provided a description of the robber that Detective Paci believed matched Pindell; she then picked Pindell’s picture out of an array of nine photographs. The next morning, the police showed the earlier victim, Zelaya, a photo array that included Pindell’s picture, and Zelaya identified the defendant — with “a hundred percent” certainty — as the person who had robbed him on December 13." }, { "docid": "10694159", "title": "", "text": "as of April 30, 2006, the Ford Expedition was registered to a Marisa Ardelia Beam of Annandale, Virginia. Following closing arguments, the case was submitted to the jury. On November 29, 2006, the jury convicted Pettiford of the crime charged in the indictment, and on February 27, 2007, the district court sentenced him to 86 months’ incarceration. Pettiford now appeals, leveling three attacks on his conviction. He contends that the district court erred: (1) by admitting evidence of the prior drug trafficking offense, in violation of Federal Rules of Evidence 404(b) and 403; (2) by denying Pettiford’s motion for a new trial, which was based on the fact that his plea of guilty to the prior offense was later vacated as involuntary; and (3) by denying his motion for judgment of acquittal, which argued that the evidence was insufficient to prove that the cocaine base in the Ford Expedition was crack cocaine. Pettiford also asks that the case be remanded to the district court for resentencing in light of the U.S. Sentencing Commission’s recent decision to lower the U.S. Sentencing Guidelines’ sentencing ranges for certain crack cocaine offenses. II We first consider Pettiford’s claim that the district court erred, under Rules 404(b) and 403, by admitting evidence that he had possessed with intent to distribute cocaine on a prior occasion. A Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” but that it can “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b); see United States v. Pindell, 336 F.3d 1049, 1056 (D.C.Cir.2003). “We review a claim that a district court improperly admitted evidence under Rule 404(b) solely to determine whether the court abused its discretion.” Pindell, 336 F.3d at 1056-57. We find no abuse of discretion here. The district court admitted the evidence of Pettiford’s prior crime to show that, in the instant case, he possessed the crack found in the Ford Expedition’s console" }, { "docid": "20336744", "title": "", "text": "bank robbery, arguing that the district court erred in denying Levi’s motion for judgment of acquittal on those charges and in instructing the jury on the elements of aggravated bank robbery. Finally, in a separate pro se brief, Levi challenges the length of his sentence, arguing that the court improperly considered his conviction under the Federal Youth Corrections Act (FYCA). A. Denial of Severance The decision of a district court to deny a defendant’s motion to sever offenses “may generally be reversed ‘only upon a finding of clear prejudice and abuse of discretion.’” United States v. Daniels, 770 F.2d 1111,1115 (D.C.Cir.1985) (quoting United States v. Lewis, 626 F.2d 940, 945 (D.C.Cir.1980)). A finding of prejudice is logically precluded if, had the counts been tried separately, the evidence concerning each count would have been admissible in the trial on each other count. See Bradley v. United States, 433 F.2d 1113, 1118 (D.C.Cir. 1969); United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir.1987). Here the modus operandi in all of the robberies was strikingly similar — the perpetrator used similar notes, made similar statements and gestures, wore similar clothing, and robbed banks (some more than once) in the same general area of the city. Therefore, evidence concerning all of the robberies would surely have been admissible in the trial for each of the other robberies. See Fed.R.Evid. 404(b) (identity exception to general rule against admission of evidence concerning other crimes); see also Drew v. United States, 331 F.2d 85, 90 (D.C.Cir.1964). Hence, there was no prejudice, and the district court did not abuse its discretion in denying Levi’s motion for severance. B. Adequacy of the Instruction One is guilty of aggravated bank robbery if in the course of robbing a bank one “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device-” 18 U.S.C. § 2113(d). A bank robber who displays an object that is reasonably perceived to be a dangerous weapon or device violates § 2113(d) regardless whether he actually has a dangerous weapon or device. United States v." }, { "docid": "4077215", "title": "", "text": "including names, dates, phone numbers, and addresses, she seized them. Meanwhile, Detective Griffin searched another part of Pindell’s basement, where he located a backpack that he examined for the items listed in the warrant. Inside the pack, Griffin discovered a partially completed Metropolitan Police Department (MPD) Form 251 that described the “stop and frisk” of an individual named Joe Wicks. 2/20/01 Tr. at 33. Griffin ■ seized the form because the event described was “similar” to the robbery recounted in the affidavit. Id. at 36. After concluding these searches, the detectives continued their investigation into Pindell’s activities. They ultimately discovered a total of fourteen .robberies. The fourteenth victim, an MPD auditor named Joseph Wicks, identified the defendant as the man who, dressed in a police uniform with a name tag marked “Pindell,” had interrupted Wicks and a woman in a car off Georgia Avenue. Pindell ordered Wicks out of the car, put a gun to his head, and pulled the trigger — producing a “loud click.” 2/28/01 Tr. at 130. Wicks resisted Pindell’s efforts to handcuff him, and the defendant finally called for police assistance. 2/28/01 Tr. at 125. When other officers arrived, they let Wicks go. On July 11, 2000, a grand jury issued a superceding indictment, charging Pindell with thirteen counts of depriving individuals of their civil rights while armed, in violation of 18 U.S.C. § 242; thirteen counts of armed robbery, in violation of D.C.Code §§ 22-2901 and 22-3202; and one count of assaulting Joseph Wicks with a dangerous weapon, in violation of D.C.Code § 22-502. The district court denied Pindell’s motion to suppress the items seized from his car and home as well as evidence derived from those items. The case proceeded to trial, at which all of Pindell’s victims — as well as several prostitutes and his former girlfriend — testified against him. The government also introduced into evidence the notebooks and MPD form that the police had seized from Pindell’s basement and car. Inside the notebooks were personal details regarding all thirteen of the victims named in the civil rights counts. Pindell took the" }, { "docid": "23383987", "title": "", "text": "the robberies were committed on the same day, and the other was committed less than two months after the first two. We have affirmed the joinder of offenses when the time periods between them have spanned six months or greater. See id. The offenses charged in Davis’s indictment were all properly joined. The rule governing severance provides that once offenses have been properly joined, the district court may nonetheless order separate trials of the counts “[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses.” Fed.R.Crim.P. 14. “The decision to sever is within the sound discretion of the trial judge and the denial of a motion to sever is not subject to reversal absent a showing of real prejudice.” United States v. Patterson, 20 F.3d 801, 805 (8th Cir.1994) (internal quotations omitted). Prejudice may result from a possibility that the jury might use evidence of one crime to infer guilt on the other or that the jury might cumulate the evidence to find guilt on all crimes when it would not have found guilt if the crimes were considered separately. Closs v. Leapley, 18 F.3d 574, 578 (8th Cir.1994). On the other hand, a defendant does not suffer any undue prejudice by a joint trial if the evidence is such that one crime would be probative and admissible at the defendant’s separate trial of the other crime. Robaina, 39 F.3d at 861. Davis contends that there was no connection between the March 1994 robbery and the January 1994 robberies, and thus there is a danger that the jury may have cumulated the evidence to infer guilt of all crimes when, if tried separately, the jury might not have found enough evidence to convict him of all counts. We disagree. Davis’s theory of defense was mistaken identity. Thus, evidence of the March 1994 robbery could have been admitted at a separate trial of the two January robberies to prove identity under Rule 404(b). Accordingly, Davis suffered no real prejudice from the joinder of offenses. IX. Consecutive Sentences Finally, Davis contends that the district court abused" }, { "docid": "22288240", "title": "", "text": "BAZELON, Chief Judge. In a joint indictment, appellants were-charged in Count I with robbery of a church rectory on February 23, 1962, and' in Count II with robbery of a tourist home on May 2, 1962. Both appellants-filed pretrial motions for severance of the counts. The motions were denied. The-jury returned verdicts of guilty on Count I and not guilty on Count II. Appellants’ chief contention on these appeals is that the District Court erred in refusing to sever the counts for trial. We need not decide whether the joinder here of two offenses and two defendants was proper under Rule 8 of the Federal Rules of Criminal Procedure, because we think that, in any event, severance of the counts for trial was required by Rule 14. Rule 14 provides: “If it appears that a defendant * * * is prejudiced by a joinder of offenses * * * for trial together, the court may order an election or separate trials of counts * * * or provide whatever other relief justice requires.” “Therefore, if because of the * * * [joinder] prejudice developed and was not cured by requiring an election or by other relief, material error afflicted the trial. Prejudice, has consistently been held to occur when * * * [joinder] embarrasses or confounds an accused in making his defense. Pointer v. United States, 1894, 151 U.S. 396, 403 [14 S.Ct. 410, 38 L.Ed. 208]; Kidwell v. United States, 1912, 38 App.D.C. 566, 570. See, also, McElroy v. United States, 1896, 164 U.S. 76, 78 [17 S.Ct. 31, 41 L.Ed. 355].” Dunaway v. United States, 92 U.S.App. D.C. 299, 300-01, 205 F.2d 23, 24 (1953). See also Drew v. United States, 118 U.S. App.D.C.-, 331 F.2d 85. Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and" }, { "docid": "4077228", "title": "", "text": "motion to suppress because the seizures were lawful under the plain view doctrine. Ill In addition to pressing his Fourth Amendment claim, Pindell asks that we consider three claims of trial error. We do so only briefly, because we perceive little merit in them. First, Pindell contends that the court erred by admitting two kinds of “other crimes” evidence pursuant to Federal Rule of Evidence 404(b). Although Rule 404(b) bars the admission of evidence “of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith,” it permits the admission of such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). We review a claim that a district court improperly ad mitted evidence under Rule 404(b) solely to determine whether the court abused its discretion. See United States v. Bowie, 232 F.3d 923, 926-27 (D.C.Cir.2000). Prior to trial, the government sought and received the district court’s permission to introduce testimony from two prostitutes — each of whom witnessed a robbery charged in the indictment — that Pindell had previously paid them to engage in sexual acts. The government offered this evidence because it showed the prostitutes’ familiarity with Pindell, and hence “their ability to identify” him. 12/20/00 Tr. at 481. Pindell’s identity as the uniformed robber was plainly at issue in the trial, and particularly so because Pindell proffered defense witnesses who testified that a man named “Boo” Farrow had been robbing prostitutes’ customers during the relevant period — implying that the prosecution witnesses had mistaken Farrow for Pindell. Since Rule 404(b) expressly permits the admission of “other crimes” evidence to prove identity, the district court did not err in admitting the testimony. See Washington, 12 F.3d at 1134-35. The government also informed Pin-dell before trial that it intended to introduce testimony by his former girlfriend that, on May 10, 1999, Pindell had told her that he had been robbing prostitutes’ customers, and that he would hurt her if she told anyone. Because it was unclear" }, { "docid": "4077230", "title": "", "text": "whether this statement related to the particular robberies with which Pindell was charged, the government offered the testimony as “other crimes” evidence under Rule 404(b). The district court properly admitted the statement pursuant to that rule for the purpose of proving PindeU’s ■intent to rob the prostitutes’ customers and to rebut 'the suggestion that he was present at the scene of the robberies by mistake or accident. See Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653-54, 136 L.Ed.2d 574 (1997); United States v. Long, 328 F.3d 655, 661-62 (D.C.Cir.2003); United States v. Crowder, 141 F.3d 1202, 1208-09 (D.C.Cir.1998) (en banc); United States v. Latney, 108 F.3d 1446, 1448 (D.C.Cir.1997). Second, Pindell contends that the district court erred by denying his motion to sever the charges against him into (at least) thirteen separate cases, one for each of the robberies. See 2/20/01 Tr. at 79-80 (requesting that “all robbery counts be severed from one another”); Fed. R.CrimP. 14 (“If the joinder of offenses ... in an indictment ... appears to prejudice a defendant or the government, the court may order separate trials of counts ... or provide any other relief that justice requires.”). In United States v. Levi, we held that “[t]he decision of a district court to deny a defendant’s motion to sever offenses may generally be reversed only upon a finding of clear prejudice and abuse of discretion,” and that a “finding of prejudice is logically precluded if, had the counts been tried separately, the evidence concerning each count would have been admissible in the trial on each other count.” 45 F.3d 453, 455 (D.C.Cir.1995) (internal quotation marks omitted). In Levi, we found that “the modus operdndi in all of the [nine charged] robberies was strikingly similar — the perpetrator used similar notes, made similar statements and gestures, wore similar clothing, and robbed banks ... in the same general area of the city.” Id. Because the “evidence concerning all of the robberies would surely have been admissible in the trial for each of the other robberies,” we concluded that “there was no prejudice, and" }, { "docid": "16544179", "title": "", "text": "of interstate commerce and their protection from robbery is well within Congress’s Commerce Clause power” (citing United States v. Harris, 108 F.3d 1107, 1109 (9th Cir.1997))). III. In summary, the district court did not abuse its discretion when it denied Rollins’ motion to sever or when it admitted other crimes evidence related to a fifth bank robbery in Independence, Missouri. The district court also correctly denied Rollins’ motion to dismiss the bank robbery counts for lack of federal jurisdiction. Therefore, the judgment of the district court must be AFFIRMED. . The rules pertaining to joinder (Rule 8) and severance (Rule 14) are, of course, related, but ultimately mandate different standards of review. A challenge to a Rule 8(a) joinder of offenses is reviewed de novo. United States v. Quilling, 261 F.3d 707, 713-14 (7th Cir.2001). However, \"our cases have emphasized that district courts 'should construe Rule 8 broadly to allow joinder to enhance the efficiency of the judicial system, ... and to avoid expensive and duplicative trials, if judicial economy outweighs any prejudice to the defendant.'” United States v. Koen, 982 F.2d 1101, 1111 (7th Cir.1992) (quoting United States v. Archer, 843 F.2d 1019, 1021 (7th Cir.1988)). In the event \"joinder [under Rule 8] is deemed proper, we shall reverse a district court's denial of a [Rule 14] severance motion only upon a showing of a clear abuse of discretion.\" Quilling, 261 F.3d at 714. . Rule 14 of the Federal Rules of Criminal Procedure provides: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial. . Rule 404(b)" }, { "docid": "4077217", "title": "", "text": "stand in his own defense, testifying that, although he had stopped each of the victims for engaging in prostitution, he had never robbed any of them. He also proffered two witnesses who testified that a man named “Boo” Farrow had been robbing prostitutes’ customers during the same period. The jury convicted Pindell on all counts, with the exception of one of the civfl rights counts, as to which it found Pindell guilty of a lesser included charge. We address Pindell’s appeal of the denial of his motion to suppress evidence in Part II. In Part III, we consider the defendant’s claim that the district court committed a number of trial errors. II In reviewing the denial of a motion to suppress, we examine the district court’s legal conclusions de novo, but apply a “clearly erroneous” standard to its underlying findings of fact. See United States v. Hill, 131 F.3d 1056, 1059 n. 2 (D.C.Cir.1997); United States v. Taylor, 997 F.2d 1551, 1553 (D.C.Cir.1993). The Fourth Amendment to the Constitution provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The Amendment’s particularity requirement effectively pro- Mbits the issuance of “general warrants.” Andresen v. Maryland, 42H U.S. 463, 478, 480, 96 S.Ct. 2737, 2747, 2748, 49 L.Ed.2d 627 (1976). Pindell contends that the warrants issued in this case violated the particularity requirement because of the catch-all phrase that came at the end of each warrant’s list of specific items to be seized: [A] green card and driver’s license [in] the name of Osman Dainkeh, cash money in the amount of approximately $600, a white gold chain, a dark blue police uniform, and any other evidence of a violation of Title 18 U.S.C. § m. Appellant’s App. at Tab 8, Tab 11 (emphasis added). Pindell argues that the phrase “any other evidence of a violation of Title 18 U.S.C. § 242” is simply too broad to be regarded as “particularly describing the ... things to be seized.”" }, { "docid": "6603995", "title": "", "text": "argument. IV Finally, Stubblefield contends that the district court erred in permitting the government to introduce evidence regarding an uncharged bank robbery in Virginia. The court permitted the introduction of this evidence under Federal Rule of Evidence 404(b), which bars the admission of “[ejvidence of other crimes ... to prove the character of a [defendant] in order to show action in conformity therewith,” but allows the introduction of such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Here, the government maintains that evidence concerning the uncharged Virginia robbery was admissible because it used that evidence for such an “other purpose” — proof of identity. Stubblefield argues that, to the contrary, the Virginia evidence was valuable only for the impermissible purpose of proving his alleged propensity to rob banks. We need not resolve this dispute because even if the district court erred, any error was harmless. See United States v. Johnson, 519 F.3d 478, 483 (D.C.Cir.2008). Under Federal Rule of Criminal Procedure 52(a), we may not correct a district court’s error unless it affected the defendant’s “substantial rights.” Fed.R.Crim.P. 52(a). “[I]n most cases [this] means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When, as here, the error did not involve a constitutional right, it is not prejudicial as long as “it did not have a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” United States v. Powell, 334 F.3d 42, 45 (D.C.Cir.2003) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The government bears the burden of proving the absence of prejudicial effect, Johnson, 519 F.3d at 483, and it has met that burden in this case. At trial, the government presented testimony from numerous witnesses to the six charged bank robberies, each of whom described a perpetrator who resembled Stubblefield. The jury also heard that at least one" }, { "docid": "20847462", "title": "", "text": "not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”). In our view, McLaurin’s possession of and familiarity with an inherently dangerous weapon useful only for violent, criminal purposes is highly probative of McLaurin’s predisposition to engage in a very dangerous armed robbery. See Lewis, 641 F.3d at 783 (evidence of felon-in-possession conviction properly admitted to prove predisposition to commit armed robbery of purported stash house). Accordingly, we conclude that, in a separate trial on the conspiracy charges, Rule 404(b) would have permitted the introduction of the evidence underlying McLaurin’s felon-in-possession charges. McLaurin thus suffered no actual prejudice from the joinder of the counts, and any error in their joinder is harmless. See Lane, 474 U.S. at 450, 106 S.Ct. 725; Mackins, 315 F.3d at 412. Our conclusion in this regard also forecloses McLauriris contention that the district court erred in denying his Rule 14 motion to sever the felon-in-possession counts. See Fed.R.Crim.P. 14(a) (“If the joinder of offenses ... in an indictment ... appears to prejudice a defendant or the government, the court may order separate trials of counts ... or provide any other relief that justice requires.”). Even if we were to assume that the district court abused its discretion by denying McLau-riris severance motion, see United States v. Dinkins, 691 F.3d 358, 367 (4th Cir. 2012) (stating standard of review), cert. denied, — U.S. -, 133 S.Ct. 1278, 185 L.Ed.2d 214 (2013), the error did not prejudice McLaurin, and reversal is not required, see United States v. Acker, 52 F.3d 509, 514 (4th Cir.1995) (reversal under Rule 14 is required only if the defendant shows that requiring him to defend against the joined offenses in the same trial resulted in “clear prejudice”). We therefore reject McLauriris challenges to the joinder of the felon-in-possession charges with the conspiracy charges. Contrary to McLauriris arguments, this court’s decision in United States v. Hawkins, 589 F.3d 694 (4th Cir.2009), does not compel us to conclude otherwise. In Hawkins, we held that the district court erred by denying the defendant’s motion to sever a felon-in-possession" }, { "docid": "1756796", "title": "", "text": "in Counts II and III was, according to the government, the same firearm, and the controlled substance alleged in Counts I, IV, and V was Oxycontin. See Meléndez, 301 F.3d at 35-36 (finding that joinder was proper and stating that “Counts 1 and 3 both charged Meléndez with possession of a controlled substance with the intent to distribute it. In both counts, the controlled substance was cocaine base.”). Also, the location of the armed robbery and drug distribution were in the same town, and only a few days separated the robbery from the drug distribution. In essence, the indictment alleged that Boulanger robbed a pharmacy with a gun in order to steal Oxycontin pills so that he could sell them out of his apartment. Given the above facts, we have no problem in concluding that joinder was proper, either because the charges were “of the same or similar character” or because they were “parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). We turn now to the motion to sever. Under Rule 14(a), “[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed.R.Crim.P. 14(a). Boulanger argues that, even if joinder were proper, the district court should have severed the counts because his defense was prejudiced by the joinder. Regarding prejudice, Boulanger argues that joinder created the danger that the jury would use evidence admissible as to one count to infer that Boulanger had a criminal disposition as to the other counts. The government argues that the district court did not abuse its discretion in refusing to sever the counts. After carefully reviewing the rec ord, we agree with the government for several reasons. We begin by distinguishing a case that Boulanger relies on, United States v. Holloway, 1 F.3d 307 (5th Cir.1993). In that case, the defendant allegedly committed several robberies. When he was arrested two months after the last robbery, officers found a" }, { "docid": "4077210", "title": "", "text": "Opinion for the Court filed by Circuit Judge GARLAND. GARLAND, Circuit Judge: In 1999, defendant Warren Pindell was an officer of the Metropolitan Police Department of the District of Columbia, working a prostitution detail on Georgia Avenue, N.W. By 2001, Pindell’s law enforcement career was over. In March of that year, a federal jury convicted him of, among other things, depriving thirteen men of their civil rights by robbing them while they were apparently soliciting the services of prostitutes. The defendant’s modus operandi was as follows: After a would-be customer picked up a prostitute in his car, Pindell would follow the pair to the location where the transaction was to take place. Soon thereafter, the defendant, dressed in his police uniform, would approach the driver’s side of the car and question the man, usually demanding to see some identification. He would then order the victim out of the car and take his cash. Pindell often threatened his victims with a gun or billy club, handcuffed them, and went through their jackets and pants pockets searching for additional cash. Several victims reported that Pindell wrote down their personal information in a small notebook. The district court entered judgment against the defendant on the jury’s verdict and sentenced him to a total of 262 months’ incarceration. Pindell now appeals, contending that much of the evidence used against him at trial was the fruit of illegal searches and seizures, and that the district court made a variety of trial errors. We find all of Pindell’s arguments to be without merit, and affirm the judgment of the district court. I On December 13, 1999, Victor Zelaya reported to the police that he had been robbed in the early hours of that day after picking up a woman on Georgia Avenue. Zelaya told Detective Anthony Paci that he and the woman were interrupted by a man “dressed as a police officer,” who ordered Zelaya out of the car, pointed a gun at his head, forced him to kneel, and took approximately $250 from him. 2/26/01 Tr. at 14. Zelaya also told Paci that, during the" } ]
418144
action for a refund in the Federal District Courts or the Court of Claims. Cf. Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962); Falik v. United States, 343 F.2d 38, 40-43 (2d Cir. 1965) (taxpayer cannot use 28 U.S.C. § 2410 waiver of immunity to contest merits of his tax assessment). The courts have consistently rebuffed taxpayers’ attempts to circumvent that procedure. See Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (suit to compel Commissioner to reinstate letter ruling granting tax-exempt status); Lewis v. Sandler, 498 F.2d 395 (4th Cir. 1974) (barring an injunction preventing police officials from giving information to the I.R.S.); REDACTED .S. from using illegally seized evidence in arriving at an assessment); Campbell v. Guetersloh, 287 F.2d 878 (5th Cir. 1961) (barring suit to restrain Commissioner from using “bank deposit method” in assessing deficiencies). Absent a clear and explicit congressional mandate, we shall not depart from these well marked pathways. III. ABSENCE OF A STATUTORY BASIS Even were jurisdiction proper and the relief sought not contrary to the Anti-Injunction Act, there is simply no statutory basis for taxpayers’ claim of a right to a hearing prior to the decision that a second inspection is necessary. See United States v. Powell, 379 U.S. at 56, 85 S.Ct. at 254. The statute requiring an investigation and determination by
[ { "docid": "2399602", "title": "", "text": "“collateral determination of the admissibility of evidence in an administrative tax proceeding or investigation is not a proper sphere for injunctive intervention in the exercise of equitable jurisdiction.” The court there agreed with the “observation” in Campbell v. Guetersloh, 287 F.2d 878, 881 (5th Cir. 1961), that a court should not pass upon questions of weakness and proof in the “Director’s” case until his function is completed, and the entire case is presented for review. The congressional policy of limiting jurisdiction in the area of federal taxes is clearly shown in the express exception from federal court jurisdiction of injunction actions in 26 U.S.C. § 7421 (1964). Implicit in the Zámaroni rule is the notion that the suitor has an adequate remedy at law. See Kennedy v. Coyle, 352 F.2d 867 (7th Cir. 1965). We have no way of knowing from the record the circumstances surrounding the 1962 searches and seizures in order to determine whether the order of suppression or the order denying suppression of the seized material is correct. The fact that two judges disagreed on the point precludes us from anticipating that in a suit for tax refund in the district court or in an appeal to the tax court the government would in no event prevail on the question of admissibility of the seized evidence. See Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); Kennedy v. Coyle, 352 F.2d 867, 870 (7th Cir. 1965). Since we hold that this suit is barred by 26 U.S.C. § 7421, we do not reach the question whether this suit is a declaratory judgment action, which would be barred by 28 U.S.C. § 2201. Furthermore, we do not reach, on this appeal, the question of the plaintiffs’ standing to complain of the search and seizure. But see United States v. Granello, 365 F.2d 990 at 995-996 (2d Cir. 1966). The judgment is affirmed. . § 2201. In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing" } ]
[ { "docid": "6351688", "title": "", "text": "States v. Freedman, 444 F.2d 1387, 1388 (9th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544 (1971). As to the California tax levy, the Tax Injunction Act, 28 U.S.C. § 1341, provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment,, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Moreover, the Anti-Injunction Act, 26 U.S.C. § 7421(a), provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” The Supreme Court has said of this statute: The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962) (footnote omitted). See also Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). Marshall asserts that the federal levy was enjoinable under the exception to 26 U.S.C. § 7421(a) as set forth in Enochs v. Williams Packing & Navigation Co., supra. Williams Packing held that injunctive relief is available only when the taxpayer can show (1) that under no circumstances could the government ultimately prevail on its legal right to the disputed sums, viewing the facts and law most favorably to the government, and (2) that he has no adequate legal remedy for obtaining relief from the Commissioner’s actions. Id. at 6-7. WestgateCalifornia Corp. v. United States, 496 F.2d 839, 842-43 (9th Cir. 1974). The circuits have not been entirely consistent in applying this exception when the injunction is sought against a tax levy on money seized in a" }, { "docid": "13984867", "title": "", "text": "it has jurisdiction to hear a case, applicability of the Anti-Injunction Act must be considered. The issue was argued by both parties to the bankruptcy court, (see Appellant’s Excerpt at 137-38, 152-66, 194-98, 214-20, 242-43), after the United States raised the Anti-Injunction Act in its opposition to ULC’s motion in the bankruptcy court, claiming the Anti-Injunction Act prohibited an injunction against the IRS’ revocation of tax-exempt status. (Appellant’s Excerpt at 138.) ULC replied that it does not seek an injunction against revocation of its tax-exempt status, but rather damages for the alleged violation of the automatic stay caused by the revocation. (Appellant’s Excerpt at 198.) The bankruptcy court emphasized in its oral decision on August 30, 1993, “All that’s being decided today is whether or not the effort of the Internal Revenue Service by sending out its notice or letter of revocation violated the automatic stay of Section 362.” (Appellant’s Excerpt at 257.) The Anti-Injunction Act prohibits suits in any court “for the purpose of restraining the assessment or collection of any tax.” 26 U.S.C. § 7421(a). The purpose of this language is “to protect the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preen-forcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund.’ ” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). The Supreme Court has ruled that an action seeking to enjoin the IRS from revoking tax-exempt status, or an action to compel reinstatement of tax-exempt status violates the Anti-Injunction Act because preventing the IRS from revoking tax-exempt status would necessarily preclude the collection of taxes. Bob Jones, 416 U.S. at 733, 94 S.Ct. at 2044 (1974) (recognizing that the “clash between the language of the Anti-Injunction Act and the desire of § 501(c)(3) organizations to block the Service from withdrawing [an exemption] has been resolved against the organizations in most" }, { "docid": "10918587", "title": "", "text": "lacks such jurisdiction. The scope of the Anti-Injunction Act is broad and its language has been liberally construed by the courts. See, e.g., Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (Act prohibits injunction against revocation of tax exempt status); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962) (Act bars injunction against collection of social security and unemployment taxes); In re Petrusch, 667 F.2d 297 (2d Cir.1981), cert. denied sub nom. Petrusch v. Teamster’s Local 317, 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848 (1982) (Act preempts Norris-LaGuardia Act); Kirtley v. Bickerstaff, 488 F.2d 768 (10th Cir.1973), cert. denied, 419 U.S. 828, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974) (Act prohibits suit for injunctive relief brought by “innocent spouses”); Keese v. U.S., 632 F.Supp. 85 (S.D.Tex.1985) (Act prohibits injunction restraining IRS from auditing returns, disclosing tax preparer’s name in interviews with his clients, withholding his client’s refund checks or using information obtained from his clients). The policy underlying the Act is “the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in suit for a refund.’ ” Bob Jones University v. Simon, 416 U.S. at 736, 94 S.Ct. at 2046 (quoting Enochs v. Williams Packing and Navigation, 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). So compelling is the Government’s interest in the speedy assessment and collection of taxes that, in the absence of a statutory exception, the literal terms of the Act may be circumvented, and an injunction may issue, only “if it is clear that under no circumstances could the Government ultimately prevail,” 416 U.S. at 737, 94 S.Ct. at 2046 (quoting En-ochs, 370 U.S. at 7, 82 S.Ct. at 1129), or “where ... Congress has not provided the plaintiff with an alternate legal way to challenge the validity of a tax.” South Carolina v. Regan, 465 U.S. 367, 372-73, 104 S.Ct." }, { "docid": "6162106", "title": "", "text": "contained within these documents enabled the IRS to compute proposed wagering tax assessments against the plaintiffs. The plaintiffs brought suit for mandamus, injunctive and declaratory relief seeking to prohibit the IRS from using information obtained from the seized documents for the purpose of making tax assessments. They assert that we should construe Section 2517(1) of the wiretapping statute to prevent the FBI from turning over wiretap information to the IRS for assessment purposes. The District Court dismissed the suit on grounds that the Anti-Injunction Act, 26 U.S.C. § 7421(a), prohibits the bringing of a “suit for the purpose of restraining the assessment or collection of any tax,” and the Declaratory Judgment Act, 28 U.S.C. § 2201, prohibits courts from granting declaratory judgments “with respect to Federal taxes.” The District Court noted, however, that the plaintiffs might have a valid claim for damages pursuant to 18 U.S.C. § 2520 for violation of the wiretapping statute and granted the plaintiffs 30 days in which to amend their pleadings. The plaintiffs declined to amend and appealed. On appeal plaintiffs’ basic argument is that the suit is proper under the Anti-Injunction and Declaratory Judgment Acts because the “purpose” of the suit is to prohibit the use of documents by the IRS, not to restrain a tax assessment. The Anti-Injunction Act serves two related purposes. The primary purpose is “to permit the United States to assess and collect taxes alleged to be due without judicial intervention,” and the “collateral objective of the Act [is to protect] the collector from litigation pending a suit for refund.” Enochs v. Williams Packing Co., 370 U.S. 1, 7-8, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). In two related cases, Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), and Alexander v. “Americans United” Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974), the Supreme Court recently considered claims for injunctions against IRS revocation of tax exempt status for private nonprofit organizations. In Bob Jones it was claimed that the “purpose” of the suit was “the maintenance of the flow of" }, { "docid": "3168552", "title": "", "text": "performing the acts about which complaint is made. As such officials, the named defendants are absolutely immune from suit. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1958); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1342-43 (2 Cir. 1972). Nor are §§ 1340 and 1343 of Title 28, U.S.C., which plaintiffs invoke, a waiver of that immunity or a consent by the United States to be sued on a claim such as that presented here. De Masters v. Arend, 313 F.2d 79, 84 (9 Cir. 1963). A further barrier to the jurisdiction of this court is the Anti-Injunction Act, 26 U.S.C. § 7421(a), previously quoted. The language of that Act, the Supreme Court recently noted, “could scarcely be more explicit” in barring suits to enjoin the IRS or to obtain declaratory relief to forestall its activities in matters related to its statutory duties. Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); see also Alexander v. “Americans United” Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). Explaining the purposes of the Act, the Court stated: “The Court has interpreted the principal purpose of this language to be the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference [citations omitted]. The Court has also identified ‘a collateral objective of the Act — protection of the collector from litigation pending a suit for refund.’ [Enochs v. Williams Packing & Navigation Co.] Williams Packing, 370 U.S., [1] at 7-8, 82 S.Ct. [1125] at 1129 [8 L.Ed.2d 292].” Id. 94 S.Ct. at 2046 (footnote omitted). The injunctive or declaratory relief sought by plaintiffs here falls squarely within the literal prohibition of the statute. Regardless of the motivation of the IRS agents who are conducting the investigation, the interviewing of taxpayers regarding their returns, the issuance of summonses, the requiring of audits and the withholding of refunds are all matters related to the assessment and collection of taxes. The Anti-Injunction Act removes" }, { "docid": "6162109", "title": "", "text": "collection. In Koin v. Coyle, 402 F.2d 468 (7th Cir. 1968), the court held that the Anti-Injunction Act is a bar to a suit seeking to restrain the IRS, in making an assessment, from using evidence allegedly seized illegally. The court stated that although “the suit [did] not directly and expressly aim at assessment,” it was “directed expressly at the means to that end, and in our view is substantially aimed at restraining the assessment. It cannot be seriously contended that precluding the assessment is not the end sought.” Id. at 469. The Anti-Injunction Act “is equally applicable to activities which are intended to or may culminate in the assessment or collection of taxes.” Blech v. United States, 595 F.2d 462, 466 (9th Cir. 1979) quoting United States v. Dema, 544 F.2d 1373, 1376 (7th Cir. 1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977). A suit designed to prohibit the use of information to calculate an assessment is a suit designed “for the purpose of restraining” an assessment under the statute. Since the “purpose” of this suit falls within the congressional proscription, the remaining question is whether the government’s actions fall within the exception which authorized courts to enjoin acts of governmental legerdemain undertaken under the “guise” of the administration of the tax laws. Enochs v. Williams Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962); Cole v. Cardoza, 441 F.2d 1337, 1341-42 (6th Cir. 1971). That exception requires a dual finding that the government is certain to lose on its claim — could win “under no circumstances” — and that the taxpayer has no adequate remedy at law. Commissioner of Internal Revenue v. Shapiro, 424 U.S. 614, 627, 96 S.Ct. 1062, 1070, 47 L.Ed.2d 278 (1976); United States v. American Friends Service Committee, 419 U.S. 7, 10, 95 S.Ct. 13, 14, 42 L.Ed.2d 7 (1974); Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974); Alexander v. “Americans United” Inc., 416 U.S. 752, 758, 94 S.Ct. 2053, 2057, 40 L.Ed.2d 518 (1974)." }, { "docid": "1683870", "title": "", "text": "waiver of sovereign immunity in actions to which it applies.” We conclude that the district court correctly held that the action was not barred by the doctrine of sovereign immunity. (b) Anti-Injunction and Declaratory Judgment Acts The Anti-Injunction Act (26 U.S.C. § 7421(a)) provides in relevant part: “ . . .no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed”. In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974), the Court stated: “The Court has interpreted the principal purpose of this language to be the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed funds be determined in suit for a refund.’ Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962).” Here, the plaintiffs as nontaxpayers seek to have the I.R.S. enjoined from granting tax exempt status to hospitals which fail to provide free or reduced-charge services to indigents. The case of McGlotten v. Connally, supra,, is analogous. In McGlotten a black American brought a class action “to enjoin the Secretary of Treasury from granting tax benefits to fraternal and nonprofit organizations which exclude nonwhites from membership”. Id., 338 F.Supp. at 450. In rejecting the contention that the Anti-Injunction Act barred the suit, the court concluded that the action had “nothing to do with the assessment or collection of taxes. He [the plaintiff] does not contest the amount of his own tax, nor does he seek to limit the amount of tax revenue collectible by the United States. The preferred course of raising his objections in a suit for refund is not available. In this situation we cannot read the statute to bar the present suit.” Id. at 453-454. The McGlotten rationale was followed by this court in Americans United v. Walters, 155" }, { "docid": "13984868", "title": "", "text": "§ 7421(a). The purpose of this language is “to protect the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preen-forcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund.’ ” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). The Supreme Court has ruled that an action seeking to enjoin the IRS from revoking tax-exempt status, or an action to compel reinstatement of tax-exempt status violates the Anti-Injunction Act because preventing the IRS from revoking tax-exempt status would necessarily preclude the collection of taxes. Bob Jones, 416 U.S. at 733, 94 S.Ct. at 2044 (1974) (recognizing that the “clash between the language of the Anti-Injunction Act and the desire of § 501(c)(3) organizations to block the Service from withdrawing [an exemption] has been resolved against the organizations in most cases”); Alexander v. “Americans United” Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). The question here is whether declaring the revocation of tax-exempt status a violation of the automatic stay has the same effect as an injunction against revocation of tax-exempt status. Bob Jones and Alexander did not involve taxpayers in bankruptcy, and do not illuminate the interplay between the bankruptcy automatic stay and the Anti-Injunction Act. However, Bob Jones extensively analyzed the potential adverse economic effect on a tax-exempt organization which results from revocation of tax-exempt status. Two Courts of Appeals that have considered the interplay of the two Acts reach different results. In Bostwick v. United States, 521 F.2d 741 (8th Cir.1975), the court held the policies underlying the Bankruptcy Act to rehabilitate and give the debtor motivation to lead a full and productive economic life override the government’s need to assess and collect taxes during bankruptcy. “We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy" }, { "docid": "6351689", "title": "", "text": "States is assured of prompt collection of its lawful revenue. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962) (footnote omitted). See also Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). Marshall asserts that the federal levy was enjoinable under the exception to 26 U.S.C. § 7421(a) as set forth in Enochs v. Williams Packing & Navigation Co., supra. Williams Packing held that injunctive relief is available only when the taxpayer can show (1) that under no circumstances could the government ultimately prevail on its legal right to the disputed sums, viewing the facts and law most favorably to the government, and (2) that he has no adequate legal remedy for obtaining relief from the Commissioner’s actions. Id. at 6-7. WestgateCalifornia Corp. v. United States, 496 F.2d 839, 842-43 (9th Cir. 1974). The circuits have not been entirely consistent in applying this exception when the injunction is sought against a tax levy on money seized in a narcotics arrest as part of an alleged conspiracy between law enforcement officials and taxing authorities. Compare Aguilar v. United States, 501 F.2d 127, 130-31 (5th Cir. 1974), Willits v. Richardson, 497 F.2d 240, 245-46 (5th Cir. 1974), Lucia v. United States, 474 F.2d 565, 573-75 (5th Cir. 1973) (en banc), and Pizzarello v. United States, 408 F.2d 579, 583-84 (2d Cir.), cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969), with Lewis v. Sandler, 498 F.2d 395, 398-99 (4th Cir. 1974). We need not decide whether the tax collection was enjoinable, however, because such a request is inappropriate in a criminal trial. Marshall cites no case in which the tax collection was enjoined in a criminal proceeding and for good reason. An injunction binds only parties to the action. See Fed.R.Civ.P. 65(d). Here, Marshall and Harris never claimed an interest in the money; the real claimants, in addition to the United States, are Tarlow and the State of California who are not parties in the criminal action before us, nor could they" }, { "docid": "8661065", "title": "", "text": "Motion to Dismiss (# 13) with regard to Plaintiffs claim for return of allegedly illegally seized property. The Government also claims that the Anti-Injunction Act, 26 U.S.C. § 7421, bars the Court from hearing suits for permanent injunctions such as that Plaintiff seeks to prohibit the United States from any further collection activity. The Anti-Injunction Act provides that “no suit for the purposes of restraining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. § 7421(a). The Supreme Court has interpreted the statute broadly. See, e.g., Bob Jones University v. Simon, 416 U.S. 725, 736-37, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) (Anti-Injunction Act barred enjoinment of revocation of ruling letter declaring that University qualified for tax-exempt status where University refused to admit Blacks as students even though case did not truly involve taxes but an attempt to regulate admission policies of private universities). Plaintiffs vague assertion of a constitutional claim is insufficient to overcome the Act. Complaint at 117; Alexander v. American United Inc., 416 U.S. 752, 759, 94 S.Ct. 2053, 2057, 40 L.Ed.2d 518 (1974). In short, the Court does not have jurisdiction to hear Plaintiffs claim for a permanent injunction. Plaintiff can claim to fall within an exception to the Anti-Injunction Act only when two conditions are met: first, it must be clear that the Government will not prevail under any circumstance. Second, the Court must have equity jurisdiction. En-ochs v. Williams Packing Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). “Only if it is apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” Id. As in Enochs, the record before this Court clearly establishes that the Government’s claim of liability is not without foundation. See 370 U.S. at 8, 82 S.Ct. at 1129. Since the Court concludes that § 7421(a) bars any suit for an injunction in" }, { "docid": "18343903", "title": "", "text": "restraining the assessment or collection of any tax”. The statutory language “could hardly be more explicit”, Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). Manifestly, the purpose of the Act “is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund.” Enochs v. Williams Packing and Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The instant case is clearly one which has been brought for restraining the collection (through withholding) of federal income taxes, and the Court finds it is barred by the provisions of the Anti-Injunction Act. Moreover, the Court additionally finds that it is not within the exceptions outlined in Enochs v. Williams Packing and Navigation Co., Inc., supra, as the pleadings fail to clearly demonstrate (1) that the United States could not ultimately prevail under any circumstances with respect to the taxes in issue and (2) that equity jurisdiction otherwise exists. Plaintiff’s contention that he cannot get an unbiased tribunal if relegated to the refund procedure is without merit, for he will have a full opportunity to litigate any tax liability in a refund suit. United States v. American Friends Service Committee, 419 U.S. 7, 11, 95 S.Ct. 13, 15, 42 L.Ed.2d 7 (1974) (per curiam). Additionally, the Declaratory Judgment Act, 28 U.S.C. § 2201 would not here provide relief because of the exception therein with respect to federal taxes. See Willis v. Alexander, 575 F.2d 495, 496 (5th Cir. 1978); Flood v. Commissioner of Internal Revenue, 275 F.Supp. 801, 802 (E.D.Wisc.1967); Jules Hair Stylists of Maryland, Inc. v. United States, 268 F.Supp. 511 (D.Md.1967), aff’d, 389 F.2d 389 (4th Cir.), cert. denied, 391 U.S. 934, 88 S.Ct. 1847, 20 L.Ed.2d 854 (1968). Additionally, the instant claims of plaintiff against these defendants is barred by the provisions of Title 26, United States Code, Section 3403, which provides: The employer shall be liable for the payment of" }, { "docid": "2553179", "title": "", "text": "on the accrual of interest and penalties after August 18, 1976. Plaintiffs’ request for a moratorium may be viewed either as a request for a declaration with respect to federal taxes or as a demand that the collection of said taxes be restrained. In either case, the Court lacks jurisdiction to grant such relief. The Declaratory Judgment Act, 28 U.S.C. § 2201, expressly provides that a Court may not declare the rights and other legal relations of interested parties where federal taxes are in issue, see Bob Jones University v. Simon, 416 U.S. 725, 732-33 n. 7, 94 S.Ct. 2038, 2044 n. 7, 40 L.Ed.2d 496 (1974); Falik v. United States, 343 F.2d 38, 42 (2d Cir.1965). Moreover, the Anti-Injunction Act, 26 U.S.C. § 7421, expressly prohibits suits to restrain the assessment or collection of taxes. See Commissioner v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962); Laino v. United States, 633 F.2d 626, 629 (2d Cir.1980). Finally, the United States has not consented to waive its sovereign immunity with respect to plaintiffs’ claim for a moratorium. Accordingly, the IRS’s motion to dismiss this claim is granted. Since the IRS is entitled to a priority pursuant to 31 U.S.C. § 191, and since its tax-claims against Lapadula & Yillani, Inc. and Harlem River Rigging Corp. exceed the proceeds of their respective liquidations, the IRS is entitled to their allocable shares of the Fund. With regard to Lapadula & Villani Equipment Corp., the IRS is entitled to $3,547.77 in back taxes, plus statutory interest and penalties accrued to August 10, 1977. Of the approximately $58,000 remaining in Lapadula & Villani Equipment Corp.’s allocable share of the Fund, the Court observes that the FDIC and New York State have agreed that the New York State Tax Commissioner shall be entitled to $24,400 prior to satisfaction of the FDIC’s debt. [FDIC’s] Memorandum of Law in Reply to New York State Tax Commission’s Affidavit and Alex Spizz’s Affirmation in Support of Attorneys’" }, { "docid": "7126645", "title": "", "text": "and that the overpayments to IRS were made in whole or in part by the other spouse. Plaintiffs contend that the statutory “intercept” procedure violates their constitutional right to due process of law, in that (a) monies due in whole or in part to one spouse are being seized to satisfy obligations of the other spouse, and (b) in any event, they are entitled to notice and an opportunity to be heard, before being deprived of the property represented by the refund claims. Plaintiffs seek the following relief: (1) a declaratory judgment to the effect that the statutory “intercept” procedure violates due process of law; (2) a declaratory judgment to the effect that the defendant IRS officials are illegally withholding refunds due the wife-plaintiffs; (3) an injunction restraining the defendants from continuing to withhold refunds due the wife-plaintiffs; (4) counsel fees and expenses; and (5) general relief. Plaintiffs’ contentions are indeed interesting, and seemingly non-frivolous, but three related statutory provisions combine to bar relief in this action. A federal district court has no power to enter declaratory judgment “with respect to federal taxes”, 28 U.S.C. § 2201. And the Tax Injunction Act similarly precludes “suit for the purpose of restraining the assessment or collection of any tax...” 26 U.S.C. § 7421(a). Viewed together, these statutes plainly, in my view, prohibit declaratory judgments concerning what IRS should do with tax refunds, and injunctions directing the payment of tax refunds (or, more accurately, restraining IRS from failing to pay refunds due). Congress has exhibited an unmistakable purpose to protect “the government’s need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement interference,” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974) and “to require that the legal right to the disputed sums be determined in a suit for refund.” Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The presence of constitutional issues is immaterial, Commissioner v. Americans United, Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518" }, { "docid": "22076046", "title": "", "text": "taxes paid. 26 U.S.C. § 7422. A judicial exception to the act permits an injunction if the taxpayer demonstrates that: 1) under no circumstances could the government establish its claim to the asserted tax; and 2) irreparable injury would otherwise occur. Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 2046 [40 L.Ed.2d 496] (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6-8, 82 S.Ct. 1125, 1128-29 [8 L.Ed.2d 292] (1962). Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983). The Lonsdales’ complaint states that it seeks injunctive and declaratory relief as well as a refund of amounts collected pursuant to the levies in question. But their complaint is essentially an attempt to prevent the collection of assessed taxes by challenging the underlying tax assessments. That challenge violates the Anti-Injunction Act on its face. The ways to challenge assessments and collections are set forth above. This suit is not one of them. The Lonsdales seek to avoid the jurisdictional restrictions of the Anti-Injunction Act by characterizing their action as one to quiet title and alleging jurisdiction under 28 U.S.C. § 2410(a) which provides in relevant part: [T]he United States may be named a party in any civil action or suit in any district court ... having jurisdiction of the subject matter to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien. We reject the proposition that 28 U.S.C. § 2410 provides jurisdiction for an action essentially contesting liability for assessed taxes, where the taxpayers have had the elective opportunity described above— whether or not used — to seek a redetermi-nation in the tax court or a refund of contested payments in the district court. The Anti-Injunction Act begins with the phrase “no suit.” The intent behind the statute is the protection of the government’s need to assess and collect taxes as expeditiously as possible without preenforcement judicial interference and to require that disputed sums of taxes due be determined in suits for refund. Lowrie v. United States, 824 F.2d 827, 830 (10th" }, { "docid": "15470329", "title": "", "text": "in the Service’s files, taxpayer never received the notice since he had assumed a different name and had moved to Chicago without leaving a forwarding address. After the ninety-day period described in the deficiency notice had elapsed, the Commissioner proceeded to assess the taxes owed by taxpayer. Sometime thereafter, taxpayer received a letter from the Service, dated May 24, 1974, sent to the same address to which the deficiency notice had been mailed. This letter requested payment of the taxes that had been previously assessed against taxpayer for 1970. Rather than paying the tax in question and suing for a refund, taxpayer brought an action in the district court for declaratory and in-junctive relief. The district court granted the\" government’s motion for summary judgment and this appeal followed. II At the outset, taxpayer is faced with several jurisdictional hurdles which must be overcome before a district court could hear his claims for relief. The Anti-Injunction Act, § 7421 of the Internal Revenue Code, provides that, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . . The language of the statute “could scarcely be more explicit.” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1973). The primary purpose of the statute is “protection of the Government’s need to assess and collect taxes with a minimum of pre-enforcement judicial interference . . . .” Id. The Court has also suggested that a collateral purpose of the Act is the protection of the collector from litigation pending a refund suit. Enochs v. Williams Packing Co., 370 U.S. 1, 7-8, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). To accomplish these goals, § 7421 “withdraw[s] jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes.” Id. at 5, 82 S.Ct. at 1128. The Anti-Injunction Act thus seemingly precludes any suit to enjoin the collection of a tax. Taxpayer, however, relies on both statutory and non-statutory exceptions to the Act. Taxpayer’s statutory argument is" }, { "docid": "10423210", "title": "", "text": "by examining our subject matter jurisdiction. “It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941)). The federal government’s waiver of its sovereign immunity must be unequivocally expressed, see United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969), and is to be strictly construed, see Sherwood, 312 U.S. at 590, 61 S.Ct. at 771. In the context of tax assessments and collections the government’s sovereign immunity has been codified by the Anti-Injunction Act, I.R.C. § 7421(a) (1988), which states: “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” The purpose of the Act is to protect “the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund.’” Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). Under the Anti-Injunction Act there is a judicially created exception for taxpayers, see Enochs, 370 U.S. at 7, 82 S.Ct. at 1129, which Randell argues applies to him. To qualify for this exception a taxpayer must show (1) that “it is clear that under no circumstances could the Government ultimately prevail” on the tax liability and (2) that “equity jurisdiction otherwise exists” because the taxpayer would suffer irreparable injury if collection were effected. Id. A court must “take the view of the facts that is most liberal to the Commissioner, not to the taxpayer seeking" }, { "docid": "10423211", "title": "", "text": "of the Act is to protect “the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund.’” Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). Under the Anti-Injunction Act there is a judicially created exception for taxpayers, see Enochs, 370 U.S. at 7, 82 S.Ct. at 1129, which Randell argues applies to him. To qualify for this exception a taxpayer must show (1) that “it is clear that under no circumstances could the Government ultimately prevail” on the tax liability and (2) that “equity jurisdiction otherwise exists” because the taxpayer would suffer irreparable injury if collection were effected. Id. A court must “take the view of the facts that is most liberal to the Commissioner, not to the taxpayer seeking injunctive relief.” Laino v. United States, 633 F.2d 626, 632 (2d Cir.1980). Randell has failed to make the requisite showing. By its own terms, the Anti-Injunction Act also includes an exception for injunction proceedings brought under I.R.C. § 6213(a). That section provides that a taxpayer has certain time periods to challenge a notice of deficiency and that “no assessment of a deficiency in respect of any tax ... and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration” of the appropriate time period. § 6213(a). It continues, “[notwithstanding the provisions of [the Anti-Injunction Act], the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.” Id. Randell avers, therefore, that the district court had jurisdiction to enjoin the IRS’ assessment and collection efforts since he had not received the statutorily required notice of deficiency. The government’s" }, { "docid": "18343902", "title": "", "text": "1340, as the case is clearly one within the Internal Revenue laws of the United States, and the motion to remand must be and it is herewith denied. 2. The Motion to Dismiss. The law upholding the constitutionality of the federal tax withholding statutes is so well established as to render nugatory any challenge thereto. Campbell v. Amax Coal Company, 610 F.2d 701 (10th Cir. 1979); United States v. Smith, 484 F.2d 8 (10th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974); United States v. Shimek, 445 F.Supp. 884 (M.D.Pa.1978); United States v. Roberts, 425 F.Supp. 1281 (D.Del.1977). See also Eagle v. Kenai Peninsula Borough, 489 F.Supp. 138 (D.Alaska 1980) (Borough employee submits W — 4 claiming 29 exemptions, and when IRS instructs Borough to withhold in accordance with original filing of 2 exemptions, employee brings unsuccessful civil rights action against Borough). With exceptions not here relevant, the Anti-Injunction Act, 26 U.S.C. § 7421(a), prohibits taxpayers in the position of plaintiff from bringing a suit “for the purpose of restraining the assessment or collection of any tax”. The statutory language “could hardly be more explicit”, Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). Manifestly, the purpose of the Act “is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund.” Enochs v. Williams Packing and Navigation Co., Inc., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The instant case is clearly one which has been brought for restraining the collection (through withholding) of federal income taxes, and the Court finds it is barred by the provisions of the Anti-Injunction Act. Moreover, the Court additionally finds that it is not within the exceptions outlined in Enochs v. Williams Packing and Navigation Co., Inc., supra, as the pleadings fail to clearly demonstrate (1) that the United States could not ultimately prevail under any circumstances with respect to the" }, { "docid": "626917", "title": "", "text": "grounds, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), and McGlotten v. Connally, 338 F.Supp. 448, 453-54 (D.D.C.1972) (three-judge court). Those cases are easily distinguishable. In them, the plaintiffs sought to compel IRS to rescind tax-exempt status accorded certain organizations. Because the government would have been required to levy taxes on previously tax-exempt organizations, it was held that the Anti-Injunction Act did not apply. The effect of the decree was to increase the amount of taxes payable. The effect of the decree sought and obtained by appellees was to reduce the total amount of taxes payable, and was plainly a direct restraint on the government’s ability to collect taxes. . Bob Jones University v. Simon, 416 U.S. 725, 736-37, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). The Court has also identified a “collateral objective of the Act — protection of the collector from litigation pending a suit for refund.” Williams Packing, supra, at 7-8, 82 S.Ct. at 1129 (quoted in Bob Jones University, supra, 416 U.S. at 737, 94 S.Ct. 2038); see also Commissioner v. Shapiro, 424 U.S. 614, 628-29, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976). . Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). . E. g., Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 23, 76 L.Ed. 517 (1932); see Bob Jones \"University v. Simon, 416 U.S. 725, 744-46, 94 S.Ct. 2038, 40 L.Ed.2d 496; Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). . See Commissioner v. Shapiro, 424 U.S. 614, 624-28, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976). . Eastern Ken. Welfare Rights Org. v. Simon, 165 U.S.App.D.C. 239, 506 F.2d 1278 (1974), rev’d on other grounds, 426 U.S. 26, 96 S.Ct. 1917 (1976), does nqt preclude our result. The court there did rely on the lack of an “adequate legal remedy” to find that the Act did not apply. Id. at 245, 506 F.2d" }, { "docid": "22076045", "title": "", "text": "basis upon which it relied. The Lonsdales’ subsequent motion for reconsideration was denied. On appeal the Lonsdales reassert the arguments which they made in the district court and raise other issues as well. However, because the dismissal below was necessarily based upon the complaint itself, we address only those matters pled in the complaint. For the reasons stated below, we affirm the dismissal of the Lonsdales’ action. I. JURISDICTION We agree with the government that this suit is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a), which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person. ...” The statute excepts petitions to the United States Tax Court for a redeter-mination of a proposed deficiency, 26 U.S.C. §§ 6212(a) and (c), 6213(a), and certain civil suits in the district court, 26 U.S.C. §§ 7426(a) and (b)(1), 6672(b), 6694(c) and 7429(b). Taxpayers may also sue in the proper district court or the United States Claims Court for a refund of taxes paid. 26 U.S.C. § 7422. A judicial exception to the act permits an injunction if the taxpayer demonstrates that: 1) under no circumstances could the government establish its claim to the asserted tax; and 2) irreparable injury would otherwise occur. Bob Jones University v. Simon, 416 U.S. 725, 737, 94 S.Ct. 2038, 2046 [40 L.Ed.2d 496] (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6-8, 82 S.Ct. 1125, 1128-29 [8 L.Ed.2d 292] (1962). Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983). The Lonsdales’ complaint states that it seeks injunctive and declaratory relief as well as a refund of amounts collected pursuant to the levies in question. But their complaint is essentially an attempt to prevent the collection of assessed taxes by challenging the underlying tax assessments. That challenge violates the Anti-Injunction Act on its face. The ways to challenge assessments and collections are set forth above. This suit is not one of them. The Lonsdales seek to avoid the jurisdictional restrictions of the Anti-Injunction Act by characterizing their action as" } ]
141269
508, 133 L.Ed.2d 472 (1995), Adams contends that his conviction on that count must be reversed. Adams admits that there is evidence that he aided and abetted Roosevelt Gatterson in “carrying” a weapon in violation of 18 U.S.C. § 924(c). However, Adams contends that because the jury was improperly instructed as to the meaning of “use” as construed in Bailey, there is no way to determine whether the conviction was based on “use” or “carry”, and therefore his conviction must be reversed. The government concedes that there is insufficient evidence of “use” as construed in Bailey to uphold Adams’ conviction and that the conviction must be reversed and the case remanded for a trial on the “carrying” theory only. See REDACTED CONCLUSION For the reasons stated, we affirm the conviction of Gonzalo Alvarado and the convictions and sentences of Edward Johnston and Eric Lowery. We also affirm the convictions of Darrell Adams except as to his conviction on count 15, which is reversed and remanded for trial on the charge of “carrying” a firearm in relation to a drug trafficking crime. We reverse the conviction of Larry Hill on count 1 and remand for a new trial. . Mark Adams, Felicia Lowery, Angie Tubbs, Mary Veal, and A.D. Ernest were indicted as co-conspirators. The judge granted Mary Veal's motion for mistrial. During the trial A.D. Ernest entered
[ { "docid": "4887524", "title": "", "text": "view, satisfies § 924(c)’s carrying requirement. See United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.1996) (When a defendant is transporting a firearm in his vehicle in connection with a drug offense and when that firearm is within his reach, the evidence is sufficient to support the “carrying” requirement under § 924(c)). In this case, Wilson was driving the car with the gun within reach, to attend and later flee from an aborted drug transaction. Further, Edd C. Douglas could be held responsible for the acts that Wilson,- a member, of the conspiracy, took in pursuance of their unlawful scheme. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). In sum, we find the evidence insufficient to support a jury finding of “use,” but sufficient to support a jury finding of carrying. However, because the jury may have rendered a guilty verdict on this count because of the liberal, pr e-Bailey instructions on what constituted “use” of a firearm, we must reverse and remand the case. The government may retry Count 3 on the “carrying” theory only. b. Count 6 The government concedes that the convictions under Count 6 against Edd C. Douglas and Cynthia Tamplin must be reversed and their sentences vacated. We agree and remand these Appellants’ cases for resentenc-ing on the remaining counts of conviction. c. Count 12 An -undercover officer testified that, after he purchased crack from defendant Altonio Douglas and another man, the two displayed firearms as they drove away to obtain more crack to sell to him. This leads us to conclude that the evidence was sufficient to show that Altonio Douglas “carried” a firearm. We nevertheless vacate the conviction because it may have been predicated on the pr e-Bailey instruction on “use” of a firearm. Again, the government has the option of retrying Count 12. d. Count 17 The government concedes that Eddie Franklin Douglas’ § 924(c) conviction based •on discovery'of weapons in his home should be vacated. In view of Douglas’ sentence of life imprisonment without parole, there is no need to remand his case for" } ]
[ { "docid": "23113503", "title": "", "text": "Adams. Witnesses saw Adams deliver money to Alvarado, and there was evidence of frequent communication between Adams and Alvarado, including testimony that Alvarado called ProCare daily. When Bosia Cash was arrested and the cocaine he was transporting was seized, Adams sent Gatterson to inform Alvarado of the loss. During the search of Alvarado’s house twelve (12) pounds of marijuana and a five pound scale were seized. A document seized from Adams’ office at ProCare, identified as a drug ledger, indicated a payment to Alvarado for cocaine. Alvarado challenges his convictions based solely on the two comments by prosecutors on the defendants’ failure to testify. Considering the overwhelming evidence of Alvarado’s guilt we find that the prosecutors’ improper comments do not constitute reversible error, and we affirm his convictions. C. Erie Lowery Considering the strength of the evidence against Lowery we conclude that the prosecutors’ misconduct did not have an effect on the outcome of his trial. Thus, the misconduct was harmless error as to Lowery. Roy Patterson testified that in approximately May 1993, Lowery and Johnston came to ProCare and Lowery arranged with Patterson to deliver a shipment of marijuana to Shreveport. Roosevelt Gatterson testified that he saw Lowery at ProCare on two occasions; both times Lowery met with Adams. On the second occasion Lowery was accompanied by Johnston. Gatterson testified that he was told that Lowery and Johnston were at ProCare for some type of narcotics deal. Roy Patterson also testified that large amounts of cocaine and marijuana were delivered directly to Lowery. Patterson testified that Lowery participated in the weighing of one marijuana delivery to Shreveport, and Derrick Patterson corroborated Lowery’s involvement in that delivery of marijuana. Roy Patterson testified that he received large amounts of cash from Lowery and delivered that money to Adams. Kimela Lo-max testified that Johnston delivered a large amount of cash to Adams’ house. Lomax further testified that when Adams confronted Johnston with an accusation that the money Johnston delivered was “short,” Johnston called Lowery, who discussed the situation with Adams. There is also strong circumstantial evidence of Lowery’s guilt. Lowery phoned and" }, { "docid": "23113502", "title": "", "text": "for by transfers of money from Adams’ personal back account to the corporation’s account. After deducting Adams’ expenditures from his personal bank account, insufficient funds remained to account for the funds deposited into ProCare’s account. Although Adams purchased Pro-Care in 1991, his income tax return for that year does not record any income from Pro-Care. Adams did not file income tax returns in 1992 and 1993. On a credit application for the purchase of a car executed in October 1993, Adams stated that his yearly salary from ProCare was $75,000. Considering the overwhelming evidence against him, the prosecutorial misconduct does not rise to the level of reversible error as to Adams. B. Gonzalo Alvarado As with Adams, the evidence against Alvarado is overwhelming. Several witnesses named Alvarado as Adams’ source of drugs. Stevenson McClendon testified that he purchased cocaine from Alvarado on behalf of Adams. Gatterson testified that he picked up cocaine destined for Shreveport from Alvarado. Roy Patterson testified that Alvarado personally delivered five kilograms of cocaine to him at the stable used by Adams. Witnesses saw Adams deliver money to Alvarado, and there was evidence of frequent communication between Adams and Alvarado, including testimony that Alvarado called ProCare daily. When Bosia Cash was arrested and the cocaine he was transporting was seized, Adams sent Gatterson to inform Alvarado of the loss. During the search of Alvarado’s house twelve (12) pounds of marijuana and a five pound scale were seized. A document seized from Adams’ office at ProCare, identified as a drug ledger, indicated a payment to Alvarado for cocaine. Alvarado challenges his convictions based solely on the two comments by prosecutors on the defendants’ failure to testify. Considering the overwhelming evidence of Alvarado’s guilt we find that the prosecutors’ improper comments do not constitute reversible error, and we affirm his convictions. C. Erie Lowery Considering the strength of the evidence against Lowery we conclude that the prosecutors’ misconduct did not have an effect on the outcome of his trial. Thus, the misconduct was harmless error as to Lowery. Roy Patterson testified that in approximately May 1993, Lowery and" }, { "docid": "17149964", "title": "", "text": "EMILIO M. GARZA, Circuit Judge: We granted rehearing en banc as to count twenty-four, which alleged violation of 18 U.S.C. § 924(c)(1), to consider whether to adopt a harmless error rule in eases in which a jury convicts a defendant under an erroneous pre-Bailey “use” instruction. I Defendant, Alfred Brown, supplied drugs to the Bottoms Boys, a street gang in Shreveport, Louisiana. Police conducted a lengthy investigation of the gang that culminated in the arrest of Brown and thirteen other gang members. A grand jury indicted Brown on several offenses, including count twenty-four which charged Brown with using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). At trial, the district court instructed the jury on section 924(c)(1), using the then-current Fifth Circuit Pattern Jury Instruction. The court did not define “use” or “carry” except to instruct that the government need not prove that Brown “actually fired the weapon or brandished it at someone in order to prove use____” Brown did not object to the instruction. The jury convicted Brown, and he appealed. On appeal, Brown argued that under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), he had not actively used the firearm, that the court’s instruction on “use” was erroneous, and thus, we could not sustain his conviction. At oral argument, the government acknowledged that the jury instructions included elements of passive “use,” invalidated by Bailey. It argued, however, that the facts supported a conviction for “carrying,” and that the jury could not have convicted Brown for “use” without also finding that he had “carried” the firearm. In our panel opinion, we agreed that “the jury could not have improperly convicted Brown for a ‘use’ that would not also support a proper conviction for carrying a weapon.” United States v. Wilson, 116 F.3d 1066, 1090 (5th Cir.1997). Thus, we found the erroneous “use” instruction harmless. We noted that reversal made “little sense,” but we believed ourselves constrained by United States v. Fike, 82 F.3d 1315 (5th Cir.1996), and United States v." }, { "docid": "14890812", "title": "", "text": "we should remand the ease for retrial on the theory that the defendant “carried” the firearm. 93 F.3d at 319. In this case, because Golden was not charged with “carrying” a firearm, we cannot follow that procedural path. The Tenth Circuit faced these unusual circumstances in United States v. Wacker. 72 F.3d 1453, 1464-65 & n. 8 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). In Wacker, the court reversed some defendants’ firearm convictions because no Bailey active-employment “use” could be found. The court, however, could not remand those counts for consideration of whether the defendants could nonetheless be liable for “carrying” a firearm under § 924(c) because, as in this case, the defendants were not charged under the “carry” prong. Id. So, we reverse the § 924(e) conviction because of the absence of Bailey active-employment “use,” but we do not remand for consideration of whether Golden can be liable under the “carry” prong of § 924(c). Although this may be a “windfall” for Golden, as we said in Robinson, “it is the established price of what our justice system is willing to pay for a greater measure of certainty that a defendant was not unlawfully convicted.” Robinson, 96 F.3d at 251. CONCLUSION We AffiRM Golden’s convictions on Counts 1, 4, 5 and 7 through 11. In accordance with Bailey, we Reverse the § 924(c) conviction. . Seniqueca pleaded guilty to one count of trav-elling in interstate commerce in aid of racketeering and was sentenced to probation. She testified against Golden at hi? trial. . Golden was found guilty of the following counts: Count 1, conspiring to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846; Counts 4, 5, 7 and 8, distributing crack in violation of 21 U.S.C. § 841(a)(1); Count 6, using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and Counts 9, 10 and 11, employing juveniles for drug distribution in violation of 21 U.S.C. § 861(a)(1). Prior to trial, the Government dismissed Counts 2 and 3, maintaining" }, { "docid": "23113518", "title": "", "text": "use and carry a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).” Based on Bailey v. United States, — U.S. -, -, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995), Adams contends that his conviction on that count must be reversed. Adams admits that there is evidence that he aided and abetted Roosevelt Gatterson in “carrying” a weapon in violation of 18 U.S.C. § 924(c). However, Adams contends that because the jury was improperly instructed as to the meaning of “use” as construed in Bailey, there is no way to determine whether the conviction was based on “use” or “carry”, and therefore his conviction must be reversed. The government concedes that there is insufficient evidence of “use” as construed in Bailey to uphold Adams’ conviction and that the conviction must be reversed and the case remanded for a trial on the “carrying” theory only. See United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.) cert. denied sub. nom, — U.S. -, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996). CONCLUSION For the reasons stated, we affirm the conviction of Gonzalo Alvarado and the convictions and sentences of Edward Johnston and Eric Lowery. We also affirm the convictions of Darrell Adams except as to his conviction on count 15, which is reversed and remanded for trial on the charge of “carrying” a firearm in relation to a drug trafficking crime. We reverse the conviction of Larry Hill on count 1 and remand for a new trial. . Mark Adams, Felicia Lowery, Angie Tubbs, Mary Veal, and A.D. Ernest were indicted as co-conspirators. The judge granted Mary Veal's motion for mistrial. During the trial A.D. Ernest entered a plea of guilty. Mark Adams and Felicia Lowery were acquitted by the jury. The jury was unable to reach a verdict as to Angie Tubbs. . Ultimately, Cash entered into a plea agreement with the government; he pleaded guilty to a single count of \"using and carrying” a gun in relation to a drug trafficking crime in violation of 18U.S.C. § 924(c). . The testimony" }, { "docid": "23113445", "title": "", "text": "DUPLANTIER, District Judge: In this case involving a large scale, long term narcotics operation, defendants-appellants Edward Johnston, Darrell Adams, Eric Lowery, Larry Hill, and Gonzalo Alvarado appeal their convictions on a gallimaufry of grounds. In addition, Lowery, Johnston and Hill challenge their sentences. We affirm the convictions except as follows: we reverse and remand for further proceedings as to Larry Hill’s only conviction (count 1) and as to Darrell Adams’ conviction of count 15. We affirm the sentences challenged by Lowery and Johnston. PROCEDURAL HISTORY The final superseding indictment upon which the government proceeded to trial charged the five appellants and five other individuals with conspiracy (count 1) to possess with intent to distribute in excess of five kilograms of cocaine, fifty (50) grams or more of a mixture containing cocaine base, and 100 kilograms or more of marihuana, in violation of 21 U.S.C. 841(a)(1), 841(b)(l)(A)(ii) and (iii), 841(b)(l)(B)(vii), and 846. Darrell Adams was also charged with five counts of possessing cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1), 841(b)(l)(A)(ii) and 18 U.S.C. 2 (counts 2, 4, 6, 7, and 8), one count of possessing cocaine base with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(b)(l)(A)(ii) & (iii), and 18 U.S.C. 2 (count 3), five counts of possessing marijuana with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. 2 (counts 5, 9, 10, 11, and 12), one count of conspiracy to commit money laundering in violation of 18 U.S.C.1956(a)(l)(A)(i), 1956(a)(l)(B)(i), 1956(g), and 18 U.S.C. 371 (count 14), and one count of using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c) (count 15). In addition to the conspiracy count Alvarado was indicted on three counts of possessing cocaine with intent to distribute (counts 2, 6, and 7), and two counts of possessing marihuana with intent to distribute (counts 5 and 12). The trial lasted approximately eight weeks. The district judge granted Adams’ motion for directed verdict on one count of possessing marijuana with intent to distribute (count 11). Following several" }, { "docid": "16987561", "title": "", "text": "each of the firearm charges was submitted to the jury under only the \"carry” prong of section 924(c)(1), under the theory that Purvis either carried or aided and abetted in the carrying of a firearm during the commission of a drug-trafficking offense. In his brief, Purvis relies heavily on Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which clarifies the meaning of the “use” prong of section 924(c)(1). Although Bailey provides some guidance in this case insofar as it recognizes the common-sense limits on a key term in the statute, our obligation here is to decide whether Purvis can stand convicted of carrying firearms, the only question presented to the jury. Thus, if the evidence were insufficient to support the \"carry\" convictions, we would have to reverse the convictions regardless of whether the same evidence could have supported convictions under the \"use” prong of the statute. Cf. United States v. Miner, 108 F.3d 967, 969 (8th Cir.1997) (upholding section 924(c)(1) conviction despite flawed instruction under \"use” prong where jury instructed on both \"use” and \"carry” prongs and under specific facts it was “inescapably clear” that properly-instructed jury would have convicted defendant of carrying firearm). . Purvis claims error with the court's admission of evidence that he violently attacked one of his co-conspirators. Purvis argues that the testimony constitutes impermissible evidence of prior bad acts and should have been excluded under Rule 404(b) of the Federal Rules of Evidence. His argument fails because the proof offered by the government formed the basis of a substantive count in the indictment against him. The indictment charged that Purvis carried a firearm in violation of section 924(c)(1) when he shot and threatened to kill a co-conspirator whom Purvis believed had stolen drug money and personal property related to the drug operation. Because the evidence constituted direct proof in support of Purvis's fourth (and unchallenged) firearm conviction, there can be no question as to its relevance and the district court did not err in permitting the government to introduce evidence of the attack." }, { "docid": "14896889", "title": "", "text": "a firearm during and in relation to a drug trafficking crime, in light of the Supreme Court’s recent decision in Bailey v. United States. Tim asserts that there was insufficient evidence to support his conviction on Count 3, and both defendants complain that there was insufficient evidence to support their convictions on Count 6. Tim contends that pursuant to the Supreme Court’s recent decision in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), this Court must vacate his conviction on Count 3 because the two firearms that were found in a closet in proximity to drugs and drug proceeds can no longer be considered sufficient evidence to support a conviction under 18 U.S.C. § 924(c). Both Tim and Tracy rely on Bailey in arguing that their convictions on Count 6 should be reversed and, at the very least, a new trial should be granted to allow the government to prosecute them under the “carry” theory only. In Bailey, two defendants were convicted under § 924(c)(1) in separate cases. Defendant Bailey was stopped by the police for a traffic offense and arrested after the police found cocaine in the driver’s compartment of his car. The police also found a firearm inside a bag in the locked car trunk. Defen dant Robinson, whose case was consolidated with Bailey’s, had her home searched by the police who, during the search, found an unloaded, holstered firearm locked in a footlocker in a bedroom closet. There was no evidence that either Bailey or Robinson employed the firearms in any way. In reversing and remanding both convictions, the Supreme Court held that the term “use,” as it appears in § 924(c)(1), denotes active employment of a firearm. Active employment includes brandishing, displaying, bartering, striking with, reference to, and firing or attempting to fire, a firearm. Id. at -, 116 S.Ct. at 508. The Court rejected the government’s argument that “use” includes placing the gun nearby to provide a sense of security to or embolden an offender, such as placing a gun in a nearby closet. Indeed, the Court found that" }, { "docid": "23113519", "title": "", "text": "L.Ed.2d 170 (1996). CONCLUSION For the reasons stated, we affirm the conviction of Gonzalo Alvarado and the convictions and sentences of Edward Johnston and Eric Lowery. We also affirm the convictions of Darrell Adams except as to his conviction on count 15, which is reversed and remanded for trial on the charge of “carrying” a firearm in relation to a drug trafficking crime. We reverse the conviction of Larry Hill on count 1 and remand for a new trial. . Mark Adams, Felicia Lowery, Angie Tubbs, Mary Veal, and A.D. Ernest were indicted as co-conspirators. The judge granted Mary Veal's motion for mistrial. During the trial A.D. Ernest entered a plea of guilty. Mark Adams and Felicia Lowery were acquitted by the jury. The jury was unable to reach a verdict as to Angie Tubbs. . Ultimately, Cash entered into a plea agreement with the government; he pleaded guilty to a single count of \"using and carrying” a gun in relation to a drug trafficking crime in violation of 18U.S.C. § 924(c). . The testimony of the two Pattersons about this one incident is the only evidence of participation by Hill in the conspiracy for which he was convicted. . Appellants do not specify which exhibits they contend were admitted in error. They simply identify portions of the transcript where various exhibits were offered into evidence by the government, objected to by defendants, and then admitted into evidence. . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). .18 U.S.C. 3500. . Johnston adopted this portion of Adams' brief. Because the challenged testimony and comment do not pertain to Johnston, he could not have experienced any prejudice. Accordingly, we limit our discussion to Adams. . Lowery alone cites more than one hundred fifty examples of questions or portions of testimony which he contends are improper. . The challenged comments were made by two different assistant United States Attorneys. . Because we reverse Hill's conviction we do not address his contention that" }, { "docid": "23663898", "title": "", "text": "Vacated and remanded by published opinion. Judge HALL wrote the opinion, in which Judge ERVIN and Senior Judge BUTZNER joined. K.K. HALL, Circuit Judge: The United States appeals an order of the district - court denying its request that the defendant be. resentenced on a surviving drug conviction after being granted relief from his 18 U.S.C. § 924(c) firearms “use” conviction in light of Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The district court held that it lacked jurisdiction under 28 U.S.C. § 2255 to resen-tence. We disagree; hence, we vacate the judgment and remand for resentencing. I. Mister T. Hillary was a crack cocaine dealer. He was arrested at his apartment; in addition to drugs and cash, the police found five handguns and seven boxes of ammunition. Hillary was charged with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). After a jury trial in August 1991, he was convicted of both counts. He was later sentenced to 78 months on the drug count and five years consecutive for the § 924(c) conviction. Hillary appealed his convictions to this court; we affirmed them in an unpublished per cu-riam opinion. United States v. Hillary, No. 91-5699, 1992 WL 192677 (4th Cir. August 13,1992). Three years later, the Supreme Court held that this circuit, along with most others, had defined “use” of a firearm under § 924(c) too broadly. Bailey v. United States, — U.S. -, -, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995) (to prove “use,” government must show that weapon was “actively employed”). Just a few months after Bailey was announced, counsel for Hillary called the Assistant United States Attorney to request consent that Hillary’s § 924(c) conviction be vacated. The government contended—and still contends—that there was sufficient evidence to support a § 924(c) conviction under the “cany” prong, but conceded that the jury instructions were erroneous and that it was impossible to know" }, { "docid": "23103465", "title": "", "text": "attempted murder in Minnesota, but that is not — nor, standing alone, could it ever be — a federal crime. 3. Zackarrie Prado Prado was acquitted on the drag-conspiracy count (Count 7), but, like Lynn, convicted of the interstate murder-for-hire charges (Counts 1 and 2). Prado makes the implausible argument that the government’s wiretap evidence shows only that he was concerned about Vice Lords harassing his mother, not that he had anything to do with an assassination scheme. We think it quite clear that Prado, Malone, and Delpit planned to Mil some Vice Lords, and that Prado knew exactly what was going on. We reverse his murder-for-hire convictions, though, for the reason discussed above: The government did not prove that Prado committed a federal crime. As with Chanise Lynn, the government failed to prove that Prado violated § 1958(a), or that he conspired to do so, because there was no evidence that Prado had any involvement in the murder plot before the federal crime with which he was charged was complete. G. Sufficiency of the Evidence: Other Convictions Larry Thomas, Jai Jones, Chanise Lynn, and Jermaine Saunders all argue that the evidence against them was insufficient to support their drug-related convictions. We affirm the convictions. 1. Jermaine Saunders Saunders contends that his conviction for using or carrying a firearm during a crime of violence, 18 U.S.C. § 924(e)(1), must be reversed because, under Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), he is not hable for Delpit’s gun use. We don’t think Bailey helps Saunders. There is no question but that Delpit carried a firearm during a violent crime; in fact, he pointed it at a police officer before fleeing. Saunders was convicted of aiding and abetting Delpit, 18 U.S.C. § 2, and therefore “stepped into Delpit’s shoes” for purposes of § 924(c)(1): “[T]he acts of the principal become those of the aider and abettor as a matter of law.” United States v. Simpson, 979 F.2d 1282, 1284-86 (8th Cir.1992) (emphasis omitted), cert. denied, 507 U.S. 943, 113 S.Ct. 1345, 122 L.Ed.2d 727 (1993);" }, { "docid": "23113517", "title": "", "text": "court is required by law to sentence within the guideline range. The defendant, having been convicted by the findings of a jury, leads then to the requirement that the judge impose a sentence as prescribed by law. It’s not within the power of the judge to impose or not to sentence or to let one off or to let one proceed without having a sentence within the guideline range prescribed by federal law. (46 R. 32) The comments were made in response to Johnston’s mother’s request that her son be allowed to go home with her. The comments are a reasonable explanation of why her request could not be granted. The experienced district judge surely was aware of his power to depart downward from guidelines; indeed he did so in assigning Johnston a criminal history category of I. ADAMS’ 18 U.S.C. § m(c) CONVICTION Adams was convicted on count 15 of the superseding indictment, which charged that he “did knowingly and unlawfully aid, abet, and assist others, known and unknown to the Grand Jury, to use and carry a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).” Based on Bailey v. United States, — U.S. -, -, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995), Adams contends that his conviction on that count must be reversed. Adams admits that there is evidence that he aided and abetted Roosevelt Gatterson in “carrying” a weapon in violation of 18 U.S.C. § 924(c). However, Adams contends that because the jury was improperly instructed as to the meaning of “use” as construed in Bailey, there is no way to determine whether the conviction was based on “use” or “carry”, and therefore his conviction must be reversed. The government concedes that there is insufficient evidence of “use” as construed in Bailey to uphold Adams’ conviction and that the conviction must be reversed and the case remanded for a trial on the “carrying” theory only. See United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.) cert. denied sub. nom, — U.S. -, 117 S.Ct. 241, 136" }, { "docid": "9826157", "title": "", "text": "appellant’s active employment of the firearm. Brief for Appellee at 21. Under these circumstances, appellant has established that the error affected the outcome of the district court proceedings and the government cannot show otherwise. In other words, we find the error is not harmless. We also believe that failure to correct the error could result in a miscarriage of justice and would seriously affect the fairness, integrity or public reputation of judicial proceedings. Accordingly, we reverse the conviction on count III. We next consider whether to remand for a new trial. The government argues that the evidence is sufficient to support a conviction for “carrying” a firearm during and in relation to a drug trafficking crime and that the case should be remanded for new trial on that count because the reversal is based on trial error and not insufficiency of the evidence. We agree. The indictment alleged appellant violated 18 U.S.C. § 924(c)(1) by “using” and “carrying” firearms. As noted above, the jury was not instructed on the “carrying” prong of 18 U.S.C. § 924(c)(1). This court has recognized that “Bailey left the ‘carry’ prong of section 924(c)(1) intact, as well as the pre-Bailey cases analyzing the ‘carry5 prong.” United States v. Willis, 89 F.3d 1371, 1378 (8th Cir.1996) (“carry” includes transporting firearms in the passenger compartment of a car loaded with drugs), cert. denied, — U.S. -, 117 S.Ct. 273, - L.Ed.2d - (1996); see, e.g., United States v. White, 81 F.3d 80, 83-84 (8th Cir.1996) (“carry” includes physically carrying firearm while possessing crack with intent to distribute); United States v. Freisinger, 937 F.2d 383, 387 (8th Cir.1991) (pre-Bailey case holding transporting firearm in passenger compartment of vehicle satisfies “carry” prong of § 924(e)). Moreover, we note that the Supreme Court, faced with a similar situation in Bailey, remanded the case to the court of appeals with directions to consider whether the “carry” prong of 18 U.S.C. § 924(c)(1) provided an alternative basis for upholding the convictions. — U.S. at -, 116 S.Ct. at 509 (indictment charged both “using” and “carrying”); see also United States v. Miller, 84" }, { "docid": "9826153", "title": "", "text": "jury on the 18 U.S.C. § 924(c) count (count III). At trial defense counsel objected to instruction No. 16, which defined the phrase “used a firearm” as “having a firearm available to aid in the commission of the [drug trafficking] crime,” on the ground that it improperly shifted the burden of proof to the defense. However, on appeal, appellant argues, correctly, the instruction as given is inconsistent with Bailey v. United States, —— U.S. --, -, 116 S.Ct. 501, 505-08, 133 L.Ed.2d 472 (1995). Because this change in the grounds of objection in effect constitutes no objection, we may reverse only for plain error. For the reasons discussed below, we find plain error and accordingly reverse the conviction on count III and remand the case to the district court for further proceedings. We also vacate the sentence on count II and remand that count to the district court for possible resentencing. The indictment charged that appellant knowingly used and carried a firearm during and in relation to a drug trafficking offense. However, as noted above, instruction No. 16 referred to the crime of “using a firearm” and defined the phrase “used a firearm” as “having a firearm available to aid in the commission of the crime.” The instruction did not separately define the term “carry.” As noted in United States v. Webster, 84 F.3d 1056, 1066 n. 8 (8th Cir.1996), “it appears that this Court’s traditional definition of the term ‘use’ was so expansive that it effectively swallowed the word ‘carry.’ ... [T]he instruction defined ‘use’ and ‘carry’ collectively, and the charge did not refer to the words as having separate meanings.” This instruction allowed the jury to find that appellant criminally used or carried the firearm in question due to the “mere presence and ready availability of [the] firearm” and was a correct statement of the law in this circuit (and other circuits) at the time of appellant’s trial, that is, pre-Bailey. Id. at 1066 (footnote omitted) (analyzing similar Bailey error as plain error), citing United States v. Mejia, 8 F.3d 3, 5 (8th Cir.1993). Subsequently, the Supreme Court" }, { "docid": "9826152", "title": "", "text": "have been admissible in a trial on the drug trafficking counts alone as other crimes evidence under Fed.R.Evid. 404(b) to prove intent and knowledge. See United States v. Shoffner, 71 F.3d 1429, 1431-32 (8th Cir.1995). The prior conviction for receiving stolen property would not have been admissible under Fed. R.Evid. 404(b); however, any prejudice was limited by the method of proof used. As noted above, the government read to the jury portions of court records that included information about the type of offense, the date of conviction, and the length of the sentence. In addition, there was little possibility that the jury was confused about the evidence related to each count in light of the cautionary instruction given by the district court. The cautionary instruction limited the jury’s consideration of the two prior felony convictions to the unlawful firearms possession count and of the conviction for possession of methamphetamine for sale to intent and knowledge with respect to the drug trafficking counts only. BAILEY ISSUE Appellant next argues the district court erred in instructing the jury on the 18 U.S.C. § 924(c) count (count III). At trial defense counsel objected to instruction No. 16, which defined the phrase “used a firearm” as “having a firearm available to aid in the commission of the [drug trafficking] crime,” on the ground that it improperly shifted the burden of proof to the defense. However, on appeal, appellant argues, correctly, the instruction as given is inconsistent with Bailey v. United States, —— U.S. --, -, 116 S.Ct. 501, 505-08, 133 L.Ed.2d 472 (1995). Because this change in the grounds of objection in effect constitutes no objection, we may reverse only for plain error. For the reasons discussed below, we find plain error and accordingly reverse the conviction on count III and remand the case to the district court for further proceedings. We also vacate the sentence on count II and remand that count to the district court for possible resentencing. The indictment charged that appellant knowingly used and carried a firearm during and in relation to a drug trafficking offense. However, as noted above," }, { "docid": "14585906", "title": "", "text": "GOLDBERG, Circuit Judge: Ernest Adams, a/k/a Ernest Cole, has been convicted on six counts of violating 18 U.S.C. §§ 922(a)(6) and 924(a). Because the record convinces us that Adams might have been convicted of a crime with which he was not charged, we reverse. The indictment charged Ernest Adams with six counts of violating 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 924(a). It alleged that on six separate occasions Adams purchased handguns using a Mississippi driver’s license in the name of Ernest Cole. Each count read as follows: That on or about [date] ... ERNEST ADAMS, in connection with his acquisition of a firearm ... from ... a licensed firearms dealer, did knowingly furnish and exhibit a false, fictitious and misrepresented identification, that is, a Mississippi Driver’s License Number [ XXX-XX-XXXX ], to the firearms dealer, which identification was likely to deceive the firearms dealer with respect to a fact material to the lawfulness of the acquisition of the firearm by Ernest Adams ... in that Ernest Adams represented that he was Ernest Cole, whereas, in truth and in fact, as he then well knew, he was Ernest Adams, in violation of Sections 922(a)(6) and 924(a), Title 18, United States Code. There is no question that Adams purchased the handguns or that he presented in connection with each purchase a Mississippi Driver’s License in the name of Ernest Cole. The difficulty with the trial and the judge’s charge to the jury arises from the prosecution’s efforts to present, and the judge’s willingness to admit, evidence regarding Adams’s alleged misrepresentations as to residence, when the indictment charged Adams only with misrepresentations as to name. By allowing proof of residence and by charging the jury so as to permit a conviction based on misrepresentation and false statements as to residence, the trial court constructively amended the indictment, thereby denying Adams his fifth amendment right to be tried only on those charges presented to and accepted by a grand jury. Factual Background and the Trial Ernest Adams was born in Mississippi, the illegitimate son of Elnora Adams and Roosevelt Cole. His Mississippi" }, { "docid": "2626962", "title": "", "text": "carrying a handgun during the commission of a drug trafficking offense. Those convictions, he urges, must be reversed in light of the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The statute under which Adkins was convicted, 18 U.S.C. § 924(c), penalizes defendants who “use” or “carry” a firearm during the commission of a drug trafficking offense. The term “use,” Bailey established authoritatively, means active use, not passive availability. This circuit, and hence the district courts in this circuit, did not interpret the statute that way at the time of Adkins’s trial, and thus the instruction given in his ease was wrong. The question now is whether that amounts to a ground for reversing Adkins’s convictions on the two gun charges, Counts 3 and 4. We have been over this ground many times before. Suffice it to say that a conviction under § 924(c) can be upheld on plain error review (which applies to Adkins, as he did not object to the instruction at trial) even if the instructions on “use” were incorrect in light of Bailey, if the record makes it plain that the defendant also “carried” the weapon during and in relation to the commission of the drug offense. The Court has adopted a relatively broad definition of the term “carry,” holding that a defendant is guilty of “carrying” a firearm during a drug transaction if he carried the firearm either on his person or in a vehicle which he accompanies, including carrying the gun in the glove compartment or in a locked trunk. Muscarello v. United States, 524 U.S. 125, 126-27, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). We agree with the government that all the evidence on which the jury could have based the § 924(c) convictions demonstrates that Adkins “carried” a firearm during a drug offense under the Muscarello definition. The first of the § 924(c) counts charged that Adkins used or carried a handgun in connection with a drug trafficking conspiracy between 1989 and 1993. In its instructions to the jury, the district court" }, { "docid": "2528157", "title": "", "text": "JAMES M. BURNS, Senior District Judge. Appellant Jesse Ball was convicted in the district court of six counts charging violations of narcotics laws and attendant firearms crimes. He appeals his convictions on three counts. We affirm in part, reverse in part, and remand for further proceedings. I. PROCEEDINGS BELOW The grand jury returned a six count indictment charging appellant with drug trafficking and firearms crimes. Appellant pleaded not guilty and a jury convicted him on all six counts in a trial that ended on June 21, 1995. Only three of these convictions are implicated in this appeal. Appellant challenges his convictions on Counts 2, 5, and 6. Count 2 charged appellant with using a firearm in relation to a drug trafficking crime on March 25, 1994. Counts 5 and 6 arose from events that occurred on July 9,1992. Count 5 charged appellant with possession of crack cocaine with intent to distribute and Count 6 charged him with carrying or using a firearm in relation to that crime. On September 13, 1995, the district court imposed a sentence of imprisonment for 481 months. With respect to the challenged convictions, this sentence included 121 months for Count 5 followed by a consecutive sentence of 10 years on the Count 2 firearm charge followed by another consecutive sentence of 20 years on the Count 6 firearm charge. In addition, appellant was charged a special assessment of $300 which represented $50 for each count of conviction. After appellant was tried and sentenced in this case, the Supreme Court issued its opinion in Bailey v. United, States, — U.S.-, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The government now concedes that the evidence at trial was not sufficient, under the requirements of Bailey, to support the firearms convictions on Counts 2 and 6. Accordingly, those convictions are reversed and the case must be remanded to the district court for resentencing. The remaining issue in this appeal concerns appellant’s conviction on Count 5 for possession of crack cocaine with intent to distribute on July 9, 1992. Mr. Ball appeals the district court’s order denying his motions" }, { "docid": "17131401", "title": "", "text": "the driver’s side. The 9-millimeter and the .45-ealiber handguns each fit the shoulder holster worn by Moore. The government prosecuted Moore and Armstead in a joint trial. On April 20, 1993, the jury returned its verdict, finding Moore guilty on all counts. It was unable to reach a verdict on the charges against Armstead. The judge declared a mistrial as to Arm-stead. Moore appeals from his conviction raising numerous points of error which we consider in turn. II. ANALYSIS A Conviction Under 18 U.S.C. § 92h(c) Moore was convicted of “us[ing] or carr[ying] a firearm” during a “drug trafficking crime” in violation of 18 U.S.C. § 924(c). He argues on appeal that this conviction must be reversed because the district court’s instructions to the jury on the elements of a section 924(c) offense were contrary to the Supreme Court’s subsequent interpretation of that statute in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The government concedes that Moore’s conviction under section 924(c) should be reversed in light of Bailey, but requests that the ease be remanded to the district court for resentencing at which time Moore will be subject to a two-level increase under the Sentencing Guidelines for possession of a weapon. We agree that Moore’s conviction under section 924(c) must be reversed, and we remand the case for resen-tencing. See United States v. Fennell, 77 F.3d 510 (D.C.Cir.1996) (per curiam). B. Sufficiency of the Evidence Moore further argues that his other convictions must be overturned for lack of sufficient evidence of possession (of either firearms or drugs), a requisite element of each of the charged crimes. In considering a sufficiency of the evidence claim, we review “the evidence de novo, in [the] light most favorable to the Government in order to deter mine whether a ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Moore, 97 F.3d 561, 563-64 (D.C.Cir.1996) (citations, omitted). We draw no distinction between direct and circumstantial evidence. United States v. Davis, 562 F.2d 681, 684 (D.C.Cir.1977) (per curiam)." }, { "docid": "5096100", "title": "", "text": "a thirteen-day trial, Arroyo was convicted on five counts: one count of narcotics conspiracy; three counts of possession of heroin with intent to distribute; and one count of using and carrying a firearm during and in relation to a narcotics crime, pursuant to 18 U.S.C. § 924(c)(1). On December 20, 1993, Arroyo was sentenced to 144 months’ imprisonment (84 months on. the four narcotics charges. and a mandatory consecutive 60 months on the § 924(c)(1) charge), plus the special assessment. This Court affirmed, rejecting, inter alia, Arroyo’s claim that there was insufficient evidence to support the firearm conviction. Arroyo subsequently petitioned the Supreme Court for certiorari to review his conviction. On December 6,1995, while Arroyo’s petition was pending, the Supreme Court decided Bailey v. United States, — U.S. —, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). On December 11, 1995, the Supreme Court granted Arroyo’s petition, vacated this Court’s judgment, and remanded for reconsideration in light of Bailey. We asked counsel to submit letter briefs addressing the effect of Bailey,- and we have carefully considered them. Arroyo urges, and the Government concedes, that Arroyo’s conviction under § 924(c)(1) must be vacated. 18 U.S.C. § 924(e)(1) provides: Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punish ment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years .... [T]he court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. (Emphasis added.) Our affirmance of Arroyo’s § 924(c)(1) conviction rested on this Court’s settled interpretation of the term “use.” We had held prior to Bailey that a defendant can “use” a firearm “without firing, brandishing or displaying" } ]
651844
"2016 Opinion (Whirlpool II ), the CIT affirmed Commerce's April 2016 Redetermination Decision. This appeal followed. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION I ""We apply the same standard of review as the CIT when reviewing a Commerce scope ruling, though we give due respect to the CIT's informed opinion."" Meridian , 851 F.3d at 1380 (internal quotation marks and citations omitted). ""Under that standard, we uphold a Commerce scope ruling that is supported 'by substantial evidence on the record' and otherwise 'in accordance with law.' "" Id. (quoting 19 U.S.C. § 1516a(b)(1)(B)(i) ). ""Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."" REDACTED There is no specific statutory provision governing the interpretation of the scope of the Orders. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States , 776 F.3d 1351, 1354 (Fed. Cir. 2015). But Commerce has filled this statutory gap with a regulation, 19 C.F.R. § 351.225(k), requiring Commerce to engage in a two-step process when determining the scope of an order. Id. ; Meridian , 851 F.3d at 1381. First, under § 351.225(k)(1), Commerce must consider the scope language contained in the order, the descriptions contained in the petition, and how the scope was defined in the investigation and in the determinations issued by Commerce and the ITC. Yuanda , 776 F.3d at"
[ { "docid": "23045568", "title": "", "text": "to comment on this determination. Again, Eckstrom was the only party to submit any comments. Commerce then issued its Final Scope Determination, finding Eckstrom’s cast fittings within the scope of the Order. Eckstrom Indus. v. United States, Court No. 97-10-01913 (Dep’t Commerce March 26, 1999) (scope determination on remand). Eckstrom appealed this determination to the CIT, and the CIT affirmed. Eckstrom, 70 F.Supp.2d 1360. Eckstrom then appealed-to this court. Eckstrom asserts error in Commerce’s determination that Eckstrom’s east pipe fittings are included within the scope of the Order. DISCUSSION In reviewing a decision by the CIT affirming a final determination of the agency, “we apply anew the court’s statutorily-mandated standard of review to the administrative review .” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed.Cir.1998) (citing Torrington Co. v. United States, 82 F.3d 1039, 1044 (Fed.Cir.1996)). Accordingly, we will reverse Commerce’s final determination only where this determination is unsupported by substantial evidence on the record or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In addition, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Id. (citing Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). The determination of whether a particular product is included within the scope of an antidumping order is governed by regulations published at 19 C.F.R. § 351.225 (2000). According to these regulations, in interpreting an order, Commerce must take into account “[t]he descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary (including prior scope determinations) and the Commission.” 19 C.F.R. § 351.225 k(1); accord, Smith Corona Corp. v. United States, 915 F.2d 683, 685 (Fed.Cir.1990) (“The class or kind of merchandise encompassed" } ]
[ { "docid": "127640", "title": "", "text": "to the building, as well as to adjoining units, including fasteners, elastomeric lineal gaskets, anchor assemblies and components, clips, screws, nuts and bolts, steel embeds, splices to adjoin units, sealants used between the frames, infill material, and aluminum extrusion trim to physically attach the suspending curtain wall to the building structure. Appellee’s Br. 10 (citing J.A. 986-93). Yuanda challenged the standing of the CWC companies, arguing that the CWC companies had not demonstrated they produced aluminum extrusions. Commerce found the CWC companies qualified as interested parties under § 771(9)(C) of the Tariff Act of 1930, as amended, “as manufacturers, producers, or wholesalers of a domestic like product, and thus ha[d] standing to bring the Amended Scope Request.” Final Scope Ruling on Curtain Wall Units and Other Parts of a Curtain Wall System from the PRC (Dep’t of Commerce, Nov. 30, 2012), ECF Dkt. No. 56-37 (“Final Scope Ruling”) (J.A. 117-26); see 19 U.S.C. § 1677(9)(C) (2006). After resolving standing, Commerce initiated a scope investigation of the Orders and determined Yuanda’s curtain wall units were within the scope. Since it found the Order language dispositive, Commerce determined it was “unnecessary to consider” the secondary criteria set forth in 19 C.F.R. § 351.225(k)(2). Final Scope Ruling at 8. The CIT affirmed Com merce’s determination and found Commerce correctly declined to consider the secondary (k)(2) factors. Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 961 F.Supp.2d 1291 (Ct. Int’l Trade 2014); see also 19 C.F.R. § 351.225(k)(l), (2). Yuanda timely appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012). Discussion This court reviews Commerce’s final determinations by reapplying the same standard used by the CIT; that is, the question is whether Commerce’s determination is supported by substantial evidence and is otherwise in accordance with law. Global Commodity Grp. LLC v. United States, 709 F.3d 1134, 1138 (Fed.Cir.2013). This court “grant[s] significant deference to Commerce’s own interpretation of [scope] orders.” Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1094-95 (Fed.Cir.2002) (citing Ericsson GE Mobile Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed.Cir.1995)). “This deference is appropriate because" }, { "docid": "942703", "title": "", "text": "evidence. See, e.g., Fedmet Res. Corp. v. United States, 755 F.3d 912, 919-22 (Fed. Cir. 2014) (reviewing Commerce’s analysis under § 351.225(k)(1) for substantial evidence). If the descriptions in the § 351.225(k)(l) sources “are not disposi-tive,” Commerce will consider the following factors: “(i) [t]he physical characteristics of the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he.manner in which the product is advertised and displayed.” 19 C.F.R. § 351.225(k)(2). “In conducting this analysis, it is well settled that Commerce has discretion in how to balance” these factors. Novosteel SA v. United States, 128 F.Supp.2d 720, 732 (Ct. Int’l Trade 2001) (internal quotation marks and citations omitted), aff'd, 284 F.3d 1261. Commerce’s analysis of these factors against the product in question yields factual findings reviewed for substantial evidence. See, e.g., Crawfish Processors All. v. United States, 483 F.3d 1358, 1363-64 (Fed. Cir. 2007) (reviewing Commerce’s analysis under § 351.225(k)(2) for substantial evidence). B. The CIT’s Interpretation Conflicts with Precedent and the Orders’ Unambiguous Terms According to Commerce, the CIT erred in its interpretation of the Orders’ scope because “a reasonable reading of the [O]rders as a whole” demonstrates that “an aluminum extrusion product and fasteners, without more, will not qualify for the finished goods kit exclusion.” Appellant’s Br. 14. The CIT disagreed. See, e.g., Meridian IV, 77 F.Supp.3d at 1318-19. We agree with Commerce. We must first assess whether the plain language of the Orders’ scope, in light of the disputed 19 C.F.R. § 351.225(k)(1) sources, is unambiguous. The relevant exclusion to the Orders excludes finished goods kits, which it defines as “packaged combination[s] of parts that contain[], at the time of importation, all of the necessary parts to fully assemble a final finished good and require[ ] no further finishing or fabrication, such as cutting or punching, and [are] assembled ‘as is’ into a finished product.” Antidumping Duty Order, 76 Fed. Reg. at 30,651. Commerce contends that this exclusion contains an exception, which explains that “[a]n imported product will not" }, { "docid": "127641", "title": "", "text": "the scope. Since it found the Order language dispositive, Commerce determined it was “unnecessary to consider” the secondary criteria set forth in 19 C.F.R. § 351.225(k)(2). Final Scope Ruling at 8. The CIT affirmed Com merce’s determination and found Commerce correctly declined to consider the secondary (k)(2) factors. Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 961 F.Supp.2d 1291 (Ct. Int’l Trade 2014); see also 19 C.F.R. § 351.225(k)(l), (2). Yuanda timely appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012). Discussion This court reviews Commerce’s final determinations by reapplying the same standard used by the CIT; that is, the question is whether Commerce’s determination is supported by substantial evidence and is otherwise in accordance with law. Global Commodity Grp. LLC v. United States, 709 F.3d 1134, 1138 (Fed.Cir.2013). This court “grant[s] significant deference to Commerce’s own interpretation of [scope] orders.” Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1094-95 (Fed.Cir.2002) (citing Ericsson GE Mobile Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed.Cir.1995)). “This deference is appropriate because the meaning and scope of ... orders are issues ‘particularly within the expertise’ and ‘special competence’ of Commerce.” King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed.Cir.2012) (quoting Sandvik Steel Co. v. United States, 164 F.3d 596, 600 (Fed.Cir.1998)). A party challenging a scope ruling by Commerce under the substantial evidence standard “has chosen a course with a high barrier to reversal.” Id. (internal quotation marks and citations omitted). I. Legal Framework There is no specific statutory provision governing the interpretation of the scope of antidumping or countervailing orders. However, Commerce’s regulations permit an importer to “request a scope ruling as to whether a particular product is covered by an ... order.” Sango Int’l L.P. v. United States, 484 F.3d 1371, 1376 (Fed.Cir.2007) (citing 19 C.F.R. § 351.225(c)(1)). The language of the order is the “cornerstone” of a scope analysis and “a predicate for the interpretive process.” Duferco Steel, 296 F.3d at 1097. The regulations require Commerce, when determining the scope of an order, to engage in a two-step process. First, Commerce must" }, { "docid": "19534371", "title": "", "text": "any assembled good consisting solely of aluminum extrusion components and fasteners, [it would have] so provide[d] in the scope language. Instead, Commerce expressly confined its 'fasteners' exception to the finished goods kit exclusion.\" J.A. 48. On remand, Commerce determined, \"under respectful protest,\" that the assembled handles were \"outside the scope of the Orders because, consistent with the [CIT]'s interpretation of the scope language, there is no general scope language which covers such products.\" J.A. 29. Commerce declined to provide any further analysis with respect to the finished merchandise exclusion, explaining that \"the issue of whether Whirlpool's handles with end caps are subject to the exclusion for finished merchandise is rendered moot by the [CIT]'s findings and our resulting determination, under protest, that there is no general scope language which covers these products.\" J.A. 35. In its August 2016 Opinion (Whirlpool II ), the CIT affirmed Commerce's April 2016 Redetermination Decision. This appeal followed. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION I \"We apply the same standard of review as the CIT when reviewing a Commerce scope ruling, though we give due respect to the CIT's informed opinion.\" Meridian , 851 F.3d at 1380 (internal quotation marks and citations omitted). \"Under that standard, we uphold a Commerce scope ruling that is supported 'by substantial evidence on the record' and otherwise 'in accordance with law.' \" Id. (quoting 19 U.S.C. § 1516a(b)(1)(B)(i) ). \"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\" Eckstrom Indus., Inc. v. United States , 254 F.3d 1068, 1071 (Fed. Cir. 2001) (internal quotation marks and citation omitted). There is no specific statutory provision governing the interpretation of the scope of the Orders. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States , 776 F.3d 1351, 1354 (Fed. Cir. 2015). But Commerce has filled this statutory gap with a regulation, 19 C.F.R. § 351.225(k), requiring Commerce to engage in a two-step process when determining the scope of an order. Id. ; Meridian , 851 F.3d at 1381. First, under § 351.225(k)(1), Commerce must consider" }, { "docid": "942702", "title": "", "text": "(Ct. Int’l Trade 2016) (same); Walgreen Co. v. United States, 33 C.I.T. 1620, 1623 (2009) (similar), aff'd, 620 F.3d 1350. The question of whether a product meets the unambiguous scope terms presents a question of fact reviewed for substantial evidence. See, e.g., Novosteel, 284 F.3d at 1269. “Scope orders are interpreted with the aid of’ other sources as described by regulation. Duferco, 296 F.3d at 1097 (internal quotation marks and citation omitted). Specifically, Commerce “will” consult “[t]he descriptions of the merchandise contained in the petition, the initial investigation, and [prior] determinations of [Commerce] (including prior scope determinations) and the [ITC].” 19 C.F.R. § 351.225(k)(l). Although a party’s description of merchandise in these sources may aid Commerce in making its determination, that description “cannot substitute for language in the order itself’ because “[i]t is the responsibility of [Commerce], not those who [participated in] the proceedings, to determine the scope of the final orders.” Duferco, 296 F.3d at 1097 (footnote omitted). Commerce’s analysis of these sources against the product in question produces factual findings reviewed for substantial evidence. See, e.g., Fedmet Res. Corp. v. United States, 755 F.3d 912, 919-22 (Fed. Cir. 2014) (reviewing Commerce’s analysis under § 351.225(k)(1) for substantial evidence). If the descriptions in the § 351.225(k)(l) sources “are not disposi-tive,” Commerce will consider the following factors: “(i) [t]he physical characteristics of the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he.manner in which the product is advertised and displayed.” 19 C.F.R. § 351.225(k)(2). “In conducting this analysis, it is well settled that Commerce has discretion in how to balance” these factors. Novosteel SA v. United States, 128 F.Supp.2d 720, 732 (Ct. Int’l Trade 2001) (internal quotation marks and citations omitted), aff'd, 284 F.3d 1261. Commerce’s analysis of these factors against the product in question yields factual findings reviewed for substantial evidence. See, e.g., Crawfish Processors All. v. United States, 483 F.3d 1358, 1363-64 (Fed. Cir. 2007) (reviewing Commerce’s analysis under § 351.225(k)(2) for substantial evidence). B. The CIT’s Interpretation" }, { "docid": "942697", "title": "", "text": "*1 (Ct. Int’l Trade June 17, 2013). Observing that “a remand is sometimes needed if an intervening event may affect the validity of the agency action,” the CIT agreed with Meridian’s argument that Commerce failed to consider a prior scope ruling interpreting terms of the Orders not at issue in the instant appeal. Id. Subsequent litigation resulted in four more CIT opinions that included two additional remands to Commerce. See Meridian Prods., LLC v. United States (Meridian II, 971 F.Supp.2d 1259, 1271 (Ct. Int’l Trade 2014) (remanding Commerce’s first remand determination that the trim kits are within the scope of the Orders); Meridian Prods., LLC v. United States (Meridian III, 37 F.Supp.3d 1342, 1354 (Ct. Int’l Trade 2014) (sustaining Commerce’s second remand determination that the trim kits are within the scope of the Orders); Meridian Prods., LLC v. United States (Meridian IV), 77 F.Supp.3d 1307, 1318-19 (Ct. Int’l Trade 2015) (granting motion for reconsideration of Meridian III and remanding Commerce’s second remand determination for reconsideration). In the third remand determination, Commerce concluded that it must “find that the trim kits ... are excluded from the Orders as finished goods kits” to comport with the CIT’s interpretation of the Orders’ scope. J.A. 25. In so doing, Commerce observed that “it appears that the [CITJ’s instructions resulted in a tension between the [CIT] ’s holding and the plain language of the scope of the Orders.” J.A. 25. The CIT sustained Commerce’s third remand determination in its final opinion. See Meridian V, 145 F.Supp.3d at 1330-31. This appeal followed. Discussion I. Standard of Review We apply the same standard of review as the CIT when reviewing a Com merce scope ruling, see Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 776 F.3d 1351, 1354 (Fed. Cir. 2015), though we “give due respect to the [CIT’s] informed opinion,” Novosteel SA v. United States, 284 F.3d 1261, 1269 (Fed. Cir. 2002) (internal quotation marks and citation omitted). Under that standard, we uphold a Commerce scope ruling that is supported “by substantial evidence on the record” and otherwise “in accordance with law.” 19 U.S.C. §" }, { "docid": "127642", "title": "", "text": "the meaning and scope of ... orders are issues ‘particularly within the expertise’ and ‘special competence’ of Commerce.” King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed.Cir.2012) (quoting Sandvik Steel Co. v. United States, 164 F.3d 596, 600 (Fed.Cir.1998)). A party challenging a scope ruling by Commerce under the substantial evidence standard “has chosen a course with a high barrier to reversal.” Id. (internal quotation marks and citations omitted). I. Legal Framework There is no specific statutory provision governing the interpretation of the scope of antidumping or countervailing orders. However, Commerce’s regulations permit an importer to “request a scope ruling as to whether a particular product is covered by an ... order.” Sango Int’l L.P. v. United States, 484 F.3d 1371, 1376 (Fed.Cir.2007) (citing 19 C.F.R. § 351.225(c)(1)). The language of the order is the “cornerstone” of a scope analysis and “a predicate for the interpretive process.” Duferco Steel, 296 F.3d at 1097. The regulations require Commerce, when determining the scope of an order, to engage in a two-step process. First, Commerce must consider the scope language contained in the order itself, the descriptions contained in the petition, and how the scope was defined in the investigation and in the determinations issued by Commerce and the ITC. Duferco Steel, 296 F.3d at 1097; 19 C.F.R. § 351.225(k)(l). The petition and preliminary determinations of Commerce and the ITC involved in the underlying duty investigations “may provide valuable guidance as to the interpretation of the final order.” Id. If Commerce concludes the product is, or is not, included within the scope of the order, Commerce issues a final scope ruling. See Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed.Cir.2001). If a subsection (k)(l) analysis is not dispositive, then Commerce proceeds to an analysis of the Diversified Products Criteria under subsection (k)(2) of its regulations. These criteria are: (1) physical characteristics, (2) expectations of ultimate purchasers, (3) ultimate use, (4) channels of trade in which the product is sold, and (5) manner of advertising and display. 19 C.F.R. § 351.225(k)(2). II. Analysis A. The CWC Companies Had Standing" }, { "docid": "127657", "title": "", "text": "Moreover, although the scope excludes “windows with glass,” it does not exclude curtain wall units with glass. J.A. 125; see also Shenyang Yuanda, 961 F.Supp.2d at 1298 (“[I]t is apparent that the Orders separately and intentionally distinguish windows from curtain wall units, and that the ‘finished merchandise’ exception does not encompass curtain wall units.”). Under the doctrines of expressio unius est exclusio alterius and noscitur a sociis, that finished windows with glass are excluded by name means that walls with glass are necessarily included, leaving aside that curtain walls are also specifically included by name. Accordingly, the CIT correctly determined Yuanda’s curtain wall parts are not finished merchandise because it is nonsensical to construe “parts for ... curtain walls ”■ to mean finished merchandise. Id. at 1299 (internal quotation marks and citation omitted). D. Commerce Properly Declined to Consider the 19 C.F.R. § 351.225(k)(2) Factors Both the plain language of the Orders and the description of the merchandise in the investigations clearly demonstrate that curtain wall units and other parts of curtain walls are within the scope of the Orders. Accordingly, contrary to Appellants’ argument, Commerce did not err by declining to consider the additional factors of 19 C.F.R. § 351.225(k)(2). Had Commerce considered these factors after finding the scope language dispositive, it would have been in conflict with this court’s precedent and the regulations. See Eckstrom Indus., Inc., 254 F.3d at 1076 (“Commerce may only look to the factors enumerated in 19 C.F.R. § 351.225(k)(2) if its consideration of the order in light of the underlying petition, investigations, and determinations is not dispositive.”); 19 C.F.R. § 351.225(k)(2). Conclusion The scope language explicitly includes “parts for ... curtain walls” and curtain wall units are parts of a finished curtain wall. Therefore, Yuanda’s curtain wall units meet the definition of the subject aluminum extrusions. Accordingly, the decision of the CIT is AFFIRMED . Typically used in statutory interpretation, this Latin phrase translates to mean the express mention of one thing excludes all others. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003) (\"The" }, { "docid": "942700", "title": "", "text": "questions, 19 C.F.R. § 351.225(k), and our case law has added another layer to the inquiry. First, Commerce must look to the text of an order’s scope; second, Commerce will consult descriptions of the merchandise in other sources; and third, if still necessary, Commerce may consider additional factors comparing the merchandise in question to merchandise subject to the order. Commerce’s inquiry must begin with the order’s scope to determine whether it contains an ambiguity and, thus, is susceptible to interpretation. See, e.g., Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1302 (Fed. Cir. 2013) (explaining that the inquiry begins with “the language of the final order” and turns to other sources only if the scope itself “is ambiguous”); ArcelorMittal, 694 F.3d at 87 (similar); see also Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002) (explaining that the scope is the “cornerstone” of the analysis and “a predicate for the interpretive process”). If the scope is unambiguous, it governs. See, e.g., ArcelorMittal, 694 F.3d at 87 (“If [the scope] is not ambiguous, the plain meaning of the language governs.”); accord Walgreen Co. v. United States, 620 F.3d 1350, 1357 (Fed. Cir. 2010) (similar). “[B]eeause the meaning and scope of ... orders are issues particularly within [Commerce’s] expertise and special competence,” we grant Commerce “substantial deference” with re gard to its interpretation of its own anti-dumping duty and countervailing duty orders. King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed. Cir. 2012) (internal quotation marks and citations omitted). Nevertheless, the question of whether the unambiguous terms of a scope control the inquiry, or whether some ambiguity exists, is á question of law that we review de novo. See, e.g., Allegheny Bradford Corp. v. United States, 342 F.Supp.2d 1172, 1183 (Ct. Int’l Trade 2004) (“[A] scope determination is not in accordance with the law if it changes the scope of an order or interprets an order in a manner contrary to the order’s terms.” (citing Duferco, 296 F.3d at 1094-95)); accord Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 146 F.Supp.3d 1331, 1344" }, { "docid": "127658", "title": "", "text": "the scope of the Orders. Accordingly, contrary to Appellants’ argument, Commerce did not err by declining to consider the additional factors of 19 C.F.R. § 351.225(k)(2). Had Commerce considered these factors after finding the scope language dispositive, it would have been in conflict with this court’s precedent and the regulations. See Eckstrom Indus., Inc., 254 F.3d at 1076 (“Commerce may only look to the factors enumerated in 19 C.F.R. § 351.225(k)(2) if its consideration of the order in light of the underlying petition, investigations, and determinations is not dispositive.”); 19 C.F.R. § 351.225(k)(2). Conclusion The scope language explicitly includes “parts for ... curtain walls” and curtain wall units are parts of a finished curtain wall. Therefore, Yuanda’s curtain wall units meet the definition of the subject aluminum extrusions. Accordingly, the decision of the CIT is AFFIRMED . Typically used in statutory interpretation, this Latin phrase translates to mean the express mention of one thing excludes all others. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003) (\"The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which [is] abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded.”) (internal quotation marks and citations omitted). . \"The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961)." }, { "docid": "19578249", "title": "", "text": "for cost of sales and the aggregation of labor and raw materials therein,\" Commerce sufficiently addressed those concerns by recognizing \"its ability to use its preferred methodology.\" Weishan Hongda , 273 F.Supp.3d at 1292. DISCUSSION The Chinese Respondents argue Commerce \"improperly rejected the two Thai financial statements ... in favor of [the Oceana Report] in the calculation of surrogate financial ratios.\" Appellants' Br. 9. Appellee Crawfish Processors Alliance (\"CPA\"), a domestic interested party during Commerce's proceedings, contends the Chinese Respondents' surrogate financial ratio arguments \"are barred by [their] failure to exhaust administrative remedies\" and therefore the CIT lacked jurisdiction over this claim. CPA's Br. 19 (capitalization modified); see id. at 19-22. After articulating the appropriate legal standards, we address CPA's threshold argument and then the Chinese Respondents' argument. I. Standard of Review We apply the same standard of review as the CIT, see Downhole Pipe , 776 F.3d at 1373, which upholds Commerce's determinations that are supported \"by substantial evidence on the record\" and otherwise \"in accordance with law,\" 19 U.S.C. § 1516a(b)(1)(B)(i). \"Although we review the decisions of the CIT de novo, we give great weight to the informed opinion of the CIT and it is nearly always the starting point of our analysis.\" Nan Ya Plastics Corp. v. United States , 810 F.3d 1333, 1341 (Fed. Cir. 2016) (internal quotation marks, brackets, ellipsis, and citation omitted). \"Substantial evidence is defined as more than a mere scintilla, as well as evidence that a reasonable mind might accept as adequate to support a conclusion,\" and Commerce's \"finding may still be supported by substantial evidence even if two inconsistent conclusions can be drawn from the evidence.\" Downhole Pipe , 776 F.3d at 1374 (internal quotation marks and citations omitted). \"We look to the record as a whole, including evidence that supports as well as evidence that fairly detracts from the substantiality of the evidence.\" SolarWorld Ams., Inc. v. United States , 910 F.3d 1216, 1222 (Fed. Cir. 2018) (internal quotation marks and citation omitted). II. CIT's Jurisdiction A. Legal Standards \"Article III generally requires a federal court to satisfy itself of" }, { "docid": "19534373", "title": "", "text": "the scope language contained in the order, the descriptions contained in the petition, and how the scope was defined in the investigation and in the determinations issued by Commerce and the ITC. Yuanda , 776 F.3d at 1354. If Commerce concludes the product is, or is not, included within the scope of the order, Commerce issues a final scope ruling. Id. If a § 351.225(k)(1) analysis is not dispositive, however, then Commerce proceeds to an analysis of the Diversified Products criteria under subsection (k)(2) of its regulation. Id. Commerce's inquiry begins with the Orders' scope to determine whether it contains an ambiguity and, thus, is susceptible to interpretation. Meridian , 851 F.3d at 1381. The question of whether the unambiguous terms of a scope control the inquiry, or whether some ambiguity exists, is a question of law that we review de novo. Id. at 1382. If the scope is unambiguous, the plain meaning of the Orders' language governs. Id. at 1381. The question of whether a product meets the unambiguous scope terms then presents a question of fact reviewed for substantial evidence. Id. at 1382. Because the meaning and scope of the Orders are issues particularly within Commerce's expertise and special competence, we grant Commerce substantial deference with regard to its interpretation of its own Orders. Id. at 1381-82. While Commerce \"enjoys substantial freedom to interpret and clarify its antidumping duty orders ..., it may not change them.\" Ericsson GE Mobile Commc'ns, Inc. v. United States , 60 F.3d 778, 782 (Fed. Cir. 1995), as corrected on reh'g (Sept. 1, 1995). Accordingly, a final order may not be interpreted \"in a way contrary to its terms,\" Smith Corona Corp. v. United States , 915 F.2d 683, 686 (Fed. Cir. 1990), nor in a way \"so as to change the scope of that order,\" Eckstrom Indus. , 254 F.3d at 1072. II This appeal hinges on the interpretation of the Orders. Accordingly, we must determine whether Commerce properly interpreted the relevant portions of the Orders and, if so, whether Commerce's findings as to whether the product meets the scope terms are" }, { "docid": "942698", "title": "", "text": "“find that the trim kits ... are excluded from the Orders as finished goods kits” to comport with the CIT’s interpretation of the Orders’ scope. J.A. 25. In so doing, Commerce observed that “it appears that the [CITJ’s instructions resulted in a tension between the [CIT] ’s holding and the plain language of the scope of the Orders.” J.A. 25. The CIT sustained Commerce’s third remand determination in its final opinion. See Meridian V, 145 F.Supp.3d at 1330-31. This appeal followed. Discussion I. Standard of Review We apply the same standard of review as the CIT when reviewing a Com merce scope ruling, see Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 776 F.3d 1351, 1354 (Fed. Cir. 2015), though we “give due respect to the [CIT’s] informed opinion,” Novosteel SA v. United States, 284 F.3d 1261, 1269 (Fed. Cir. 2002) (internal quotation marks and citation omitted). Under that standard, we uphold a Commerce scope ruling that is supported “by substantial evidence on the record” and otherwise “in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed. Cir. 2001) (internal quotation marks and citation omitted). II. The Trim Kits Fall Within the Unambiguous Terms of the Orders’ Scope This appeal hinges on the interpretation of the Orders’ scope. The Government alleges that “the plain language of the Orders demonstrates that [the] ... trim kits are within the scope of the Orders.” Appellant’s Br. 16 (capitalization modified). The Government further contends that, “even assuming the scope language of the Orders were ambiguous, the [CIT] failed to defer to Commerce’s reasonable interpretation of the scope language.” Id. at 24 (capitalization modified). After discussing the applicable legal framework, we address these arguments in turn. A. Legal Framework “[N]o specific statutory provision govern[s] the interpretation of the scope of antidumping or countervailing orders.” Shenyang, 776 F.3d at 1354. Commerce has filled the statutory gap with a regulation that sets forth a two-step test for answering scope" }, { "docid": "942699", "title": "", "text": "1516a(b)(l)(B)(i). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed. Cir. 2001) (internal quotation marks and citation omitted). II. The Trim Kits Fall Within the Unambiguous Terms of the Orders’ Scope This appeal hinges on the interpretation of the Orders’ scope. The Government alleges that “the plain language of the Orders demonstrates that [the] ... trim kits are within the scope of the Orders.” Appellant’s Br. 16 (capitalization modified). The Government further contends that, “even assuming the scope language of the Orders were ambiguous, the [CIT] failed to defer to Commerce’s reasonable interpretation of the scope language.” Id. at 24 (capitalization modified). After discussing the applicable legal framework, we address these arguments in turn. A. Legal Framework “[N]o specific statutory provision govern[s] the interpretation of the scope of antidumping or countervailing orders.” Shenyang, 776 F.3d at 1354. Commerce has filled the statutory gap with a regulation that sets forth a two-step test for answering scope questions, 19 C.F.R. § 351.225(k), and our case law has added another layer to the inquiry. First, Commerce must look to the text of an order’s scope; second, Commerce will consult descriptions of the merchandise in other sources; and third, if still necessary, Commerce may consider additional factors comparing the merchandise in question to merchandise subject to the order. Commerce’s inquiry must begin with the order’s scope to determine whether it contains an ambiguity and, thus, is susceptible to interpretation. See, e.g., Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1302 (Fed. Cir. 2013) (explaining that the inquiry begins with “the language of the final order” and turns to other sources only if the scope itself “is ambiguous”); ArcelorMittal, 694 F.3d at 87 (similar); see also Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002) (explaining that the scope is the “cornerstone” of the analysis and “a predicate for the interpretive process”). If the scope is unambiguous, it governs. See, e.g., ArcelorMittal, 694 F.3d at 87 (“If [the scope]" }, { "docid": "22077777", "title": "", "text": "that Commerce was imper-missibly applying its scope determination to more than four years’ worth of imports of Reiner Brach profile slab. We address each of these arguments in turn. Discussion In so doing, we use the same standard of review that the Court of International Trade uses when reviewing scope determinations by the Commerce Department: whether substantial evidence supports Commerce’s determination and whether that determination accords with law. 19 U.S.C. § 1516a(b)(l)(B)(i) (1994); Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed.Cir.1997); Nitta Indus. Corp. v. United States, 997 F.2d 1459, 1460 (Fed.Cir.1993). Substantial evidence consists of evidence that a “reasonable mind might accept as adequate to support a conclusion.” Gerald Metals, Inc., 132 F.3d at 720. In addition, we also give “due respect” to the “informed opinion of the Court of International Trade.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed.Cir.1994). Applying this deferential standard of review, we affirm the court’s judgment. A. The Petition for the Plate Orders Did Not Unambiguously Exclude the Profile Slab. To begin with, the description of the merchandise contained in the petitions does not show that the Plate Orders unambiguously excluded the Reiner Brach profile slab, contrary to Novosteel’s assertion. The “Commerce Department enjoys substantial freedom to interpret and clarify its antidumping orders. But while it may interpret those orders, it may not change them.” Ericsson GE Mobile Communications, Inc. v. United States, 60 F.3d 778, 782 (Fed.Cir.1995); accord Smith Corona Corp. v. United States, 915 F.2d 683, 686 (Fed.Cir.1990). The applicable regulations explain how Commerce will determine “whether a particular product is included within the scope of an [antidumping or countervailing duty] order.” 19 C.F.R. § 351.225(k). First, Commerce will examine the “descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary [of Commerce] and the [International Trade] Commission.” 19 C.F.R. § 351.225(k)(l). Note that, in setting forth the “descriptions of the merchandise contained” in its petition, see id., a petitioner (like Bethlehem Steel) need not “circumscribe the entire universe of articles” that might possibly fall within the" }, { "docid": "942701", "title": "", "text": "is not ambiguous, the plain meaning of the language governs.”); accord Walgreen Co. v. United States, 620 F.3d 1350, 1357 (Fed. Cir. 2010) (similar). “[B]eeause the meaning and scope of ... orders are issues particularly within [Commerce’s] expertise and special competence,” we grant Commerce “substantial deference” with re gard to its interpretation of its own anti-dumping duty and countervailing duty orders. King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed. Cir. 2012) (internal quotation marks and citations omitted). Nevertheless, the question of whether the unambiguous terms of a scope control the inquiry, or whether some ambiguity exists, is á question of law that we review de novo. See, e.g., Allegheny Bradford Corp. v. United States, 342 F.Supp.2d 1172, 1183 (Ct. Int’l Trade 2004) (“[A] scope determination is not in accordance with the law if it changes the scope of an order or interprets an order in a manner contrary to the order’s terms.” (citing Duferco, 296 F.3d at 1094-95)); accord Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 146 F.Supp.3d 1331, 1344 (Ct. Int’l Trade 2016) (same); Walgreen Co. v. United States, 33 C.I.T. 1620, 1623 (2009) (similar), aff'd, 620 F.3d 1350. The question of whether a product meets the unambiguous scope terms presents a question of fact reviewed for substantial evidence. See, e.g., Novosteel, 284 F.3d at 1269. “Scope orders are interpreted with the aid of’ other sources as described by regulation. Duferco, 296 F.3d at 1097 (internal quotation marks and citation omitted). Specifically, Commerce “will” consult “[t]he descriptions of the merchandise contained in the petition, the initial investigation, and [prior] determinations of [Commerce] (including prior scope determinations) and the [ITC].” 19 C.F.R. § 351.225(k)(l). Although a party’s description of merchandise in these sources may aid Commerce in making its determination, that description “cannot substitute for language in the order itself’ because “[i]t is the responsibility of [Commerce], not those who [participated in] the proceedings, to determine the scope of the final orders.” Duferco, 296 F.3d at 1097 (footnote omitted). Commerce’s analysis of these sources against the product in question produces factual findings reviewed for substantial" }, { "docid": "127643", "title": "", "text": "consider the scope language contained in the order itself, the descriptions contained in the petition, and how the scope was defined in the investigation and in the determinations issued by Commerce and the ITC. Duferco Steel, 296 F.3d at 1097; 19 C.F.R. § 351.225(k)(l). The petition and preliminary determinations of Commerce and the ITC involved in the underlying duty investigations “may provide valuable guidance as to the interpretation of the final order.” Id. If Commerce concludes the product is, or is not, included within the scope of the order, Commerce issues a final scope ruling. See Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed.Cir.2001). If a subsection (k)(l) analysis is not dispositive, then Commerce proceeds to an analysis of the Diversified Products Criteria under subsection (k)(2) of its regulations. These criteria are: (1) physical characteristics, (2) expectations of ultimate purchasers, (3) ultimate use, (4) channels of trade in which the product is sold, and (5) manner of advertising and display. 19 C.F.R. § 351.225(k)(2). II. Analysis A. The CWC Companies Had Standing As a threshold matter, Yuanda argues the CWC companies “do not produce aluminum extrusions, but instead produce ... unitized curtain wall units, made by permanently sealing glass in a frame made from purchased aluminum extrusions” and therefore they lacked standing to file the scope ruling request. Appellants’ Br. 15; see also id. at 23 (The ITC found injury to producers of aluminum extrusions but “did not find material injury to purchasers of aluminum extrusions that use them to produce different products.”). Under 19 C.F.R. § 351.225(c), only an interested party may apply for a scope ruling. In relevant part, the antidumping and countervailing duty statutes define an interested party to include a “manufacturer, producer, or wholesaler in the United States of a domestic like product,” 19 U.S.C. § 1677(9)(C), as well as “a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States,” id. § 1677(9)(E). Relying on certifications of each member that “it produces, manufactures and fabricates aluminum extrusions for the production of" }, { "docid": "2722391", "title": "", "text": "scope ruling and the factors listed in § 351.225(k)(l) — specifically, ''[t]he descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of [Commerce] (including prior scope determinations) and the [International Trade] Commission.” See 19 C.F.R. §§ 351.225(d), 351.225(k)(l) (2006); Walgreen Co. v. United States, 620 F.3d 1350, 1352 (Fed.Cir.2010). However, ''[the] predicate for the interpretive process is language in the order that is subject to interpretation.” Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1383 (Fed.Cir.2005). Absent \"language ... that is subject to interpretation,” there is no cause to look beyond the order. Further, “Commerce cannot 'interpret' an antidumping order so as to change the scope of that order, nor can Commerce interpret an order in a manner contrary to its terms.” Duferco Steel Inc. v. United States, 296 F.3d 1087, 1095 (Fed.Cir. 2002) (internal citations omitted) (quoted with approval in Walgreen Co., 620 F.3d at 1354). Accordingly, in Commerce’s analysis, \"[t]he primary source” is the antidumping order itself, which is the “cornerstone” of any scope determination. See Walgreen Co., 620 F.3d at 1356-57 (quoting Duferco Steel, 296 F.3d at 1097). Thus, it is \"[t]he language of the [anti-dumping] order, not the petition” (or any other collateral source) which controls. See Tak Fat Trading Co., 396 F.3d at 1386. If Commerce’s analysis under 19 C.F.R. §§ 351.225(d) is not dispositive, the review proceeds to § 351.225(e), and Commerce applies the five Diversified Products criteria codified in the agency’s regulations. See 19 C.F.R. §§ 351.225(e), 351.225(k)(2) (2006); Diversified Products Corp. v. United States, 6 CIT 155, 572 F.Supp. 883 (1983). . A sample of the Stebco cart is included in the administrative record. See Bond Street I, 33 CIT at-n. 5, 637 F.Supp.2d at 1347 n. 5 (citations omitted); see also Audio Recording of Ortd Argument on Remand Results (“Audio Recording”) at 10:04-10:15. Photos of the Stebco cart are also available in the record. See, e.g., A.R. Doc. No. 1 at Attachment (item C on \"proof page” from 2006 S.P. Richards Co. General Line Catalog, marked as 380A); S.A.R. Doc. No. 2 at Attachments" }, { "docid": "19534388", "title": "", "text": "considered a finished product.\" Id . Commerce reasoned that this cannot be the correct interpretation because it is contrary to the scope itself, which covers aluminum extrusions. Id . Commerce preserved these factual conclusions when it filed under protest its remand determination pursuant to the CIT's remand. See J.A. 22. I defer to Commerce on interpreting its own antidumping duty orders and would affirm Commerce's August 2014 Scope Ruling on the basis that it is not unreasonable and is otherwise supported by substantial evidence. See King Supply, 674 F.3d at 1348 (\"Commerce is entitled to substantial deference with regard to its interpretations of its own antidumping duty orders. This deference is appropriate because the meaning and scope of antidumping orders are issues particularly within the expertise and special competence of Commerce.\" (internal citations and quotations omitted) ). Therefore, I respectfully concur-in-part and dissent-in-part from the majority opinion. The Orders recite the same scope. See Meridian Prod., LLC v. United States , 851 F.3d 1375, 1379 n.4 (Fed. Cir. 2017). Compare Antidumping Duty Order , 76 Fed. Reg. at 30,650 -51, with Countervailing Duty Order , 76 Fed. Reg. at 30,653-54. We refer only to the scope in the Antidumping Duty Order for ease of reference. This August 2014 Scope Ruling also addressed a January 2014 Scope Request from Whirlpool. That request dealt with aluminum extruded appliance handles that consisted of a single aluminum extrusion without end caps or other components. The January 2014 Scope Request is not relevant to the instant appeal, as Whirlpool did not appeal the CIT decision that these handles were covered by the Orders. Here, Commerce found that its § 351.225(k)(1) analysis was dispositive and that it was unnecessary to consider the additional factors specified in § 351.225(k)(2). J.A. 339. On appeal, the parties also dispute whether substantial evidence supports Commerce's determination in its August 2014 Scope Ruling that the plastic end caps contained in Whirlpool's door handles are fasteners. Because we conclude today that the fasteners exception does not apply to the finished merchandise exclusion, however, the question of whether these end caps fall within" }, { "docid": "19534372", "title": "", "text": "CIT when reviewing a Commerce scope ruling, though we give due respect to the CIT's informed opinion.\" Meridian , 851 F.3d at 1380 (internal quotation marks and citations omitted). \"Under that standard, we uphold a Commerce scope ruling that is supported 'by substantial evidence on the record' and otherwise 'in accordance with law.' \" Id. (quoting 19 U.S.C. § 1516a(b)(1)(B)(i) ). \"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\" Eckstrom Indus., Inc. v. United States , 254 F.3d 1068, 1071 (Fed. Cir. 2001) (internal quotation marks and citation omitted). There is no specific statutory provision governing the interpretation of the scope of the Orders. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States , 776 F.3d 1351, 1354 (Fed. Cir. 2015). But Commerce has filled this statutory gap with a regulation, 19 C.F.R. § 351.225(k), requiring Commerce to engage in a two-step process when determining the scope of an order. Id. ; Meridian , 851 F.3d at 1381. First, under § 351.225(k)(1), Commerce must consider the scope language contained in the order, the descriptions contained in the petition, and how the scope was defined in the investigation and in the determinations issued by Commerce and the ITC. Yuanda , 776 F.3d at 1354. If Commerce concludes the product is, or is not, included within the scope of the order, Commerce issues a final scope ruling. Id. If a § 351.225(k)(1) analysis is not dispositive, however, then Commerce proceeds to an analysis of the Diversified Products criteria under subsection (k)(2) of its regulation. Id. Commerce's inquiry begins with the Orders' scope to determine whether it contains an ambiguity and, thus, is susceptible to interpretation. Meridian , 851 F.3d at 1381. The question of whether the unambiguous terms of a scope control the inquiry, or whether some ambiguity exists, is a question of law that we review de novo. Id. at 1382. If the scope is unambiguous, the plain meaning of the Orders' language governs. Id. at 1381. The question of whether a product meets the unambiguous scope terms then presents a" } ]
795626
HOWARD, Chief Judge, Plaintiff Raymond Murray sued his former employer Warren Pumps, LLC and its parent company Colfax Americas, claiming that their actions toward him violated the Americans with Disabilities. Act (“ADA”) and its Massachusetts analog. 42 U.S.C. §§ 12112(a), (b)(5)(A); M.G.L. ch. 151B, § 4(16). He also- asserted a state common law claim that he had been terminated from his employment for- raising complaints : about, suspected workplace safety violations, -in contravention of Massachusetts public policy. The district court granted summary judgment in favor of the defendants on all claims. We affirm. 1. Given the summary judgment posture, we recite the facts in the light most favorable to Murray as the non-moving party. See REDACTED Warren Pumps manufactures pumps for both the commercial market and for purchase by the government for use in sophisticated end products such as submarines. .Murray’s job responsibilities for Warren,Pumps primarily encompassed ensuring that workplace practices in the plant complied with health and safety requirements.., When Warren Pumps first hired Murray in 2003, the company knew that he had physical limitations related to a permanent back condition. Specifically, Murray was restricted from lifting items over 35 pounds and from standing or sitting for long periods of time. In light- of this knowledge, the company and Murray agreed that he would perform his job in a manner that accommodated his limitations as needed. Although Murray believed that his supervisor did hot always
[ { "docid": "17430762", "title": "", "text": "HOWARD, Circuit Judge. Plaintiff-appellant Kathy Henry appeals an award of summary judgment in favor of her former employer, defendant-appellee United Bank, on her claims of retaliation in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, and disability discrimination in violation of Massachusetts law, Mass. Gen. L. ch. 151B. Her claims arise from United Bank’s decision to terminate her employment after she had exhausted 12 weeks of medical leave. Agreeing with the magistrate judge that the undisputed material facts compel judgment in favor of United Bank, we affirm. I. Background We recite the facts in the light most favorable to Henry as the non-moving party. See Jones v. Walgreen Co., 679 F.3d 9, 12 (1st Cir.2012). Henry began working for United Bank in 2006 as a commercial loan administrative assistant and in the following year was promoted to the position of commercial credit analyst. As a credit analyst, her tasks included evaluating the credit-worthiness of commercial borrowers and making lending recommendations. She reported to Joanne Sheedy, the Assistant Vice President of Credit, who in turn reported to Jack Patterson, the Vice President of Risk Management. In January 2008, Henry began experiencing neck pain, blurred vision, and dizziness. Her primary care physician (PCP) Dr. Suzanne Jorey examined her and referred her to a neurologist, Dr. Christopher Comey. Dr. Comey determined that Henry was suffering from a spinal cord compression in her cervical spine. She received physical therapy during this time frame and scheduled another appointment with Dr. Comey for early September. That appointment was later changed to September 24. Henry kept the bank informed of her physical condition and of the scheduled September appointment with the neurologist. With some workplace accommodations provided by the bank, Henry was able to perform her job for a time. These accommodations included, for example, an ergonomic chair and modifications to an air conditioning vent in the plaintiffs office. Henry also compensated for her sedentary position by walking around several times during the day. Despite these adjustments, however, her symptoms worsened, and on the first day of July she had difficulty getting" } ]
[ { "docid": "21554444", "title": "", "text": "was involved in discretionary conduct when he injured Murray. Therefore, the magistrate properly granted Leyshock’s motion for a JNOV on the state law negligence claim. We affirm the entry of judgment. . The Honorable William S. Bahn, United States Magistrate for the Eastern District of Missouri. Pursuant to 28 U.S.C. § 636(c)(1) (1988), the parties consented to the entry of judgment by a magistrate. . The jury found in favor of Leyshock on Murray's claim under 42 U.S.C. § 1983 (1982). Leyshock had removed this case from state court based on this claim. Murray abandoned a punitive damages claim before jury submission. . Leyshock also argued to the magistrate in his motion for a directed verdict and subsequent motion for judgment notwithstanding the ver-diet that he owed no particularized duty to Murray as a bystander and therefore Missouri’s public duty doctrine was applicable. Murray argued that a special relationship (i.e., custody) existed, giving rise to a particularized duty. Although the magistrate discussed, and both parties briefed on appeal the public duty doctrine, in granting Leyshock’s motion for judgment notwithstanding the verdict, the magistrate found only that Leyshock had official immunity. We thus need not reach the public duty issue, but only the state immunity issue. . Because we must consider the evidence in the light most favorable to the party prevailing on the jury verdict, we adopt Murray’s version of the facts. See infra pp. 1198-99. . The pertinent portion of the police manual, Rule 9.400, states: \"Firearms are to be discharged in the proper performance of police duty only under the following circumstances: ... (b) to destroy seriously injured or dangerous animals when no other method is practical;_” This is the only formal police department policy governing the discharge of firearms. Tr. at 2:4-5. .Leyshock’s other arguments are not relevant to this appeal. . With respect to the underlying facts, this standard requires a reviewing court to: (1) consider the evidence in the light most favorable to Murray, who prevailed with the jury; (2) assume the jury resolved all evidentiary conflicts in Murray’s favor; (3) assume as proved all" }, { "docid": "22574929", "title": "", "text": "Race-Discrimination Claim a.Prima Facie Case To demonstrate a prima facie case, the plaintiff must show that “(1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.” DiCarlo, 358 F.3d at 415. It is undisputed that Wright meets the first three elements of the prima facie case: he is African-American; he was terminated; and he was qualified for the position he held. According to Murray Guard’s memorandum in support of its motion for summary judgment, Wright responded to Murray Guard’s interrogatories that he was replaced by a white man. Although Murray Guard claims that this statement is “con-clusory, self-serving, [and] hearsay,” Appellee Br. at 16 n. 4, Murray Guard does not deny this fact, has submitted no evidence to refute it, and has made no statements regarding Wright’s replacement. Because this court must view all evidence in the light most favorable to the nonmov-ing party, Wright’s assertion regarding his replacement suffices to sustain a prima facie case. b.Legitimate, Nondiscriminatory Reason Murray Guard’s claimed nondiscriminatory reasons for terminating Wright’s employment are threefold: the sexual harassment allegations against Wright, Wright’s job performance issues, and Wright’s failure to follow procedures. In addition to the alleged sexual harassment, Wright ignored, from July 7 through July 11 of 2003, a direct order to staff a post with an additional security officer, and he failed, on July 22, 2003, to follow the proper procedure for sounding the take-cover alarm. These constitute legitimate, nondiscriminatory reasons for Wright’s termination because they are reasons, supported by admissible evidence, “which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Hicks, 509 U.S. at 507, 113 S.Ct. 2742 (citing Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089 & n. 8). c.Pretext “Pretext may be shown ‘either directly by persuading the [trier of fact] that a discriminatory reason more likely" }, { "docid": "20378931", "title": "", "text": "a black male, and in retaliation for his formal complaints of discrimination. (1) Defendants move for summary judgment, asserting that Murray’s admitted failure to cooperate with the application process, and simply failing to apply at all, precludes his failure to hire claims as a matter of law. Before turning to the individual elements of a prima facie case of discrimination and retaliation, the Court first addresses Murray’s overarching contention that he was not, as a matter of law, required to cooperate with the recruitment process, or even required to submit his resume, after having submitted it in response to past internet postings. He extensively relies upon EEOC v. Metal Service Co., which states in relevant part, the failure to formally apply for a job opening will not bar a ... plaintiff from establishing a prima facie claim of discriminatory hiring, as long as the plaintiff made every reasonable attempt to convey his interest in the job to the employer. A relaxation of the application element of the prima facie case is especially appropriate when the hiring process itself, rather than just the decision-making behind the process, is implicated in the discrimination claim or is otherwise suspect. 892 F.2d 341, 348 (3d Cir.1990). Murray’s case is distinguishable from Metal Service Company. No reasonable factfinder could find in this case that Murray made every reasonable attempt to convey his interest in the jobs for which BDCI was hiring. In contrast to the plaintiffs in Metal Service, Murray admittedly did not “follow[] precisely the procedure established by [the employer] for how a person applies for a job with the company.” 892 F.2d at 349. Indeed, the undisputed record shows exactly the opposite — that Murray refused to cooperate at every turn. When Sara Salvatore, in early 2007, on behalf of BDCI reached out to Murray about his application, Murray himself testified that he “immediately put the brakes on the conversation” (Murray Dep. p. 207), telling Salvatore about his prior contacts with BDCI, of which, the record indicates, Salvatore was completely unaware. Even after Murray filed a discrimination lawsuit against BDCI, BDCI advised Murray" }, { "docid": "22574948", "title": "", "text": "facts is unfounded; Murray Guard reopened the investigation based on new allegations made against Wright. That Beach did no investigation is irrelevant because he made his decision based on the investigations of others. Wright’s criticisms of the rigor of Murray Guard’s investigation do not create an issue of fact regarding the company’s motives because the investigation was sufficiently thorough to foreclose the conclusion that it was insincere. That Murray Guard decided to credit the statements of Bradley, who Wright claims spread rumors and had a motive to lie, and the statements of Bennett, who Wright claims was acting defensively to prevent her own discharge, was within the company’s discretion and does not create an issue of fact as to whether Murray Guard considered race or sex in its decision to terminate Wright. Wright also makes the unfounded assertions that there was no documentation of his poor performance and that the company’s offer of a promotion to him undermines Murray Guard’s proffered reason for his discharge. The record shows that Wright failed to follow both company protocol and his supervisor’s orders, and that the offer of promotion was made prior to these performance problems. To defeat Murray Guard’s motion for summary judgment on his mixed-motive claim, Wright must “demonstrate[ ]” that his race or sex “was a motivating factor” in Murray Guard’s decision to terminate him, 42 U.S.C. § 2000e-2(m), and that he has failed to do. At most, Wright has presented evidence as to why the allegations of sexual harassment made against him might not be credible, but he has presented no evidence that Murray Guard did not honestly believe they were true or that Murray Guard relied on unlawful motives in terminating Wright. Because Wright has not established a genuine issue of material fact as to whether an unlawful factor motivated his termination, the district court properly dismissed his mixed-motive claim. III. CLAIMS UNDER 42 U.S.C. § 1981 AND THE TENNESSEE HUMAN RIGHTS ACT We also affirm the district court’s grant of summary judgment on Wright’s claims under both 42 U.S.C. § 1981 and the Tennessee Human Rights Act" }, { "docid": "2154882", "title": "", "text": "ERVIN, Circuit Judge: This is an appeal by Harry Dowless (“Dowless”) from the dismissal of his action against Warren-Rupp Houdailles, Inc. (“Warren-Rupp”). Dowless sought damages from Warren-Rupp for breach of contract; violations of N.C.Gen.Stat. § 75-1.1 (unfair and deceptive business practices) and N.C.Gen.Stat. § 66-155 (misappropriation of a business secret); and common law unfair competition. The district court dismissed Dowless’ complaint against Warren-Rupp for lack of personal jurisdiction. Because we find that the requirements of the North Carolina long-arm statute and due process are satisfied, we reverse. I. Dowless is domiciled in and a resident of North Carolina. Warren-Rupp is a corporation organized under the laws of Ohio and does not maintain a place of business in North Carolina. Warren-Rupp pumps and other products are sold in North Carolina by a distributor, Southern Pump & Tank Company. On May 31, 1977, Dowless sent a letter to Warren-Rupp in Ohio stating that he had identified a problem with a Warren-Rupp pump and had designed an improvement. Dowless inquired as to Warren-Rupp’s desire to learn of this information. Warren-Rupp’s president responded that the company was interested in improvements and suggested that Dowless send his idea to the company for evaluation. The president stated that “if we choose to use it, we would reimburse you with some kind of a flat fee.” Jt.App. at 15. Dowless promptly responded to the Warren-Rupp letter by disclosing the pump’s problem and improvement idea. Warren-Rupp’s president wrote a letter back rejecting the information. Thereafter, Dowless discovered that the Warren-Rupp pump had been manufactured with his improvement idea. He brought this action, and subsequently, it was dismissed for lack of personal jurisdiction over Warren-Rupp. This appeal followed. II. The question of personal jurisdiction must be answered through a two step analysis. The court must determine whether the North Carolina long-arm statute is applicable, and if so, whether the exercise of that statutory power will violate the due process clause of the United States Constitution. See Vishay Intertechnology, Inc. v. Delta International Corp., 696 F.2d 1062, 1064 (4th Cir.1982). Addressing the first step, we find that N.C.Gen.Stat. § l-75.4(4)(b)" }, { "docid": "22393458", "title": "", "text": "to allow a rational jury to find the reasons pretextual. Standard filed notice of appeal on October 27, 1997, and we have jurisdiction pursuant to 28 U.S.C. § 1291. He does not appeal the dismissal of the Title VII and ADEA failure to promote claims or the retaliation claims based on Title VII, § 1981 or the ADEA. We are, therefore, left with the termination claims based on Title VII, § 1981, the ADEA and the ADA, as well as the § 1981 failure to promote claim and the ADA retaliation claim. II. STANDARD OF REVIEW We review grants of summary judgement de novo, using the same legal standard as the district court. Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1374 (11th Cir.1996). Summary judgment is appropriate when the pleadings, depositions and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgement as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In making this assessment, we must view the evidence in the light most favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). III. DISCUSSION A. Disability Discrimination and Retaliation Standard alleges that he was discriminated against on the basis of his back injury, in violation of the Americans with Disabilities Act. The ADA prohibits discrimination against a qualified individual with a disability based on that disability when the discrimination involves the hiring, advancement, termination or conditions of employment of that qualified individual. 42 U.S.C. § 12112(a). Under the ADA rubric of discrimination, an employer must make reasonable accommodations that allow a disabled individual to perform her job, unless that accommodation would cause an undue hardship. Harris v. H & W Contracting Co., 102 F.3d 516, 519 (11th Cir.1996); 42 U.S.C. § 12112(b)(5)(A). A disability, for the purposes of the ADA, is “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an" }, { "docid": "23421711", "title": "", "text": "OPINION BOGGS, Circuit Judge. Appellant Melvin Burns is a former employee of defendants Coca-Cola Enterprises and Knoxville Coca-Cola Bottling Company (KCC or the Company) who was constructively discharged from his position as a product deliverer after he suffered a serious on-the-job back injury in the summer of 1996. In October 1997, Burns sued KCC in the district court, alleging that the Company’s failure reasonably to accommodate his disability by providing him with a light duty job after he suffered his back injury, and its decision subsequently to terminate him, violated his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Tennessee Handicap Act (THA), § 8-5-103. For the reasons set forth below, we affirm the district court’s order granting summary judgment for KCC. I Burns began working for KCC in May 1995 and, approximately one year later, on May 23,1996, sustained an on-the-job injury to multiple levels of his back and spine. Burns underwent surgery for his condition on October 15, 1996, but claims that his back injury continues to impose substantial limitations on his major life activities. Burns’s doctor certified him to return to work on January 9, 1997, with a lifting restriction of 23 pounds, which precluded him from returning to his former position as a product deliverer. Burns contends that when he returned to work in January 1997, KCC refused to accommodate his injury and failed to reassign him to an alternate position even though he asked the Company to transfer him to some job within his restrictions. Specifically, Burns alleges that the Company ignored his request for accommodation and never contacted him about an alternate position except on one occasion when it arranged for a job interview that Burns attended, but that did not result in reassignment. Although KCC never gave Burns a layoff slip or other indication that his employment was terminated, Burns contends that he was constructively discharged as of January 1997 even though KCC had job openings for positions that Burns alleges he was qualified to perform. Burns contends that he knew about these jobs because" }, { "docid": "23595079", "title": "", "text": "in the light most favorable to the nonmoving party, shows that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Fed.R.Civ.P. 56(c). “The moving party bears the burden of demonstrating that there are no genuine issues of material fact, which ‘may be discharged by “showing” — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.’ ” Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir.2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmoving party must then put forth “significantly probative” evidence supporting its claims in order to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Of course, we must be mindful that summary judgment is inappropriate whenever the evidence raises a genuine issue of material fact, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. A. ADA Discrimination Claim The ADA bars employers from “discriminating] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “To recover on a claim of discrimination under the [ADA], a plaintiff must show that: 1) he is an individual with a disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap.” Mon- ette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996). Macy attempts to meet this burden by presenting circumstantial evidence of discrimination, requiring us to apply the familiar McDonnell Douglas burden-shifting framework. “On a motion" }, { "docid": "18592412", "title": "", "text": "and therefore did not have time to review his client’s deposition for favorable testimony. The district court judge was unimpressed by this contention, noting that the motion was made and the deposition completed nearly four months before oral argument. Under these circumstances, we cannot say that the denial of reconsideration was an abuse of discretion. See DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1139-40 (3d Cir.1980). Indeed, the additional material submitted along with the motion for reconsideration would not be of benefit to plaintiffs. Plaintiffs stress Mr. Murray’s reference at his deposition to rights listed in “A to K” of paragraph 5 of the complaint as items promised by his employers. The reference encompasses the retirement age of 65 listed in ¶ 5(b). This exceedingly vague testi mony, however, is contradicted by a more explicit exchange: Q. Did you understand that normal retirement age was 65? A. Well, you can retire now, I think, 62. It’s sort of iffy. I never gave that much thought. I think if you’re in reasonably good health and you do the job well — we have a president at 73, he’s running for reelection. What else can I say? Plaintiffs also offered in their motion for reconsideration an affidavit of Robert J. Whitaker, a former vice-president of defendant Commercial, asserting that Mr. Murray was promised employment until age 65. This statement was disputed by Mr. Murray’s unequivocal testimony: Q. Was there any discussion with Mr. Whitaker or Mr. Walthour or anyone else at Commercial Union about a retirement date? A. No. Because of Mr. Murray’s clear admissions, it is evident that his employment was terminable at will and no issue of material fact remains to delay judgment for the defendants on the breach of contract portion of the complaint. IV. Plaintiffs’ second count, labelled “Trespass,” restated the allegations in count I and added that defendants acted “deliberately, wantonly and maliciously,” and in “bad faith.” The district court dismissed this claim, ruling that it was a repetition of the breach of contract count, attempting to sound in tort in order to collect punitive" }, { "docid": "1324503", "title": "", "text": "they were not within the scope of his duties. Garcetti, 126 S.Ct. at 1961-62 (“Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform....”). Warren admitted at trial that he regularly dealt with the water in the bullet trap, unclogged the pumps, and replaced the filters. Although voluntary efforts to engage in public discourse do not automatically remove internal workplace speech from constitutional protection, Price and Warren were required by the terms of their employment to maintain a safe learning environment at the FTU. See Garcetti, 126 S.Ct. at 1960 (“Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.”). In his evaluation, Price was “tasked” with “the safe execution of the Academy Patrol Procedures Program” and the creation of “a new and more applicable set of Firing Range Safety Rules.” Similarly, one of Warren’s “objectives” for the next evaluation period was “conductfing] a safe Firearms Training Program” for which the plan of action was identified to include “[e]nsur[ing] all students and instructors practice approved safety procedures.” Warren’s performance appraisal justification noted that one of the “accomplishments of the Firearms Training Unit” during the period from October 1, 2002 through September 30, 2003 was that the unit “[c]ompleted the alterations and modifications to the Bullet Recovery system.” With respect to work habits, Price and Warren were both given high marks for their care of the equipment related to firearms training. Notably, the plaintiffs did not identify anyone else whose job might have included the sort of maintenance they performed, or who might have had responsibility to ensure the safety of the range. We recognize that giving statements to the State Auditor was not part of then-everyday duties and that Garcetti leaves open the possibility that speech within the workplace relating to non-job issues is protected. However, Price" }, { "docid": "19922929", "title": "", "text": "managed. Christensen accepted this job even though it had less responsibility and lower compensation than his prior supervisor position. Christensen filed suit against Titan for disability and age discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., respectively, and the parallel provisions of the Iowa Civil Rights Act, Iowa Code § 216 et seq. Titan filed a motion for summary judgment, claiming that it did not hire Christensen because it decided to eliminate the third-shift supervisor position for economic reasons. The district court denied Titan’s motion for summary judgment. At trial, Titan employees provided conflicting evidence as to who made the decision not to hire Christensen. Campbell testified that he decided to eliminate the third-shift supervisor position by July 2002, but he also claimed that Warren made the decision not to hire Christensen. Warren, however, testified that no one told him that the third-shift supervisor position had been eliminated. Warren claimed that he wanted to hire Christensen and did not know that Titan did not intend to hire him until receiving an e-mail from Luthin on August 16, 2002. Luthin and Barucic, however, both testified that they did not make the decision not to hire Christensen. The jury also heard testimony concerning Christensen’s physical capabilities. During August 2002, Christensen’s doctor told him that he had the following permanent restrictions: no prolonged walking, frequent bending, or stooping with the knee, no jumping from heights of over one foot, and no standing more than two hours at a time. A vocational expert testified that Christensen’s restrictions prevented him from performing positions that accounted for 50 percent of the job market but that Christensen could perform his job as supervisor at Quintak and the same job he applied for with Titan. Christensen and his wife testified about the emotional distress he experienced after Titan refused to hire him. He was upset and distraught over Titan’s decision and continued to be withdrawn and feel stress during his long job search. He also cried and was" }, { "docid": "20378938", "title": "", "text": "Murray is litigating claims related to the prior incidents in a separate state court suit. The state court recently granted summary judgment to the defendants in that suit. Murray’s motion for reconsideration of that decision is presently pending. Defendants in this suit have argued that certain state court findings have preclusive effect on the issues raised in this suit. Because the basis for the state court’s decision is somewhat unclear in the present record, this Court makes no ruling on the preclusive effect of any decision rendered by the state court. .See also Declaration of Daryl Murray in Opposition to Defendants’ Motion to Dismiss, Ex. B (January 5, 2007 job posting on Dice, com) . As referenced in footnote 2 supra, Murray’s previous applications for employment with BDCI are the subject of a separate state court discrimination lawsuit. . While there is no evidence in the record regarding how Edelman came to learn of Murray's communications, presumably Salvatore contacted her supervisor following Murray's email which threatened legal action. .Murray repeatedly asserts that he never used the word \"frustrated” in any of his communications with Salvatore or Stanley. .Murray strenuously disputes that he filed a complaint against BDCI because the complaint names \"The Honickman Group d/b/a Pepsi/Canada Dry,” not BDCI, as the respondent. However, the complaint lists BDCI’s address as the respondent's address; appears to concern positions at BDCI; and specifically identifies Gwen Dolceamore, who was Vice President of Information Technology at BDCI. (Defs' Ex. 1) . See also, Declaration of Daryl Murray in Opposition to Defendants' Motion to Dismiss, Exs. C & D (May 11, 2007 job postings on Dice.com and careerbuilder.com) . Murray filed his state court suit on July 17, 2007. . There is evidence in the record suggesting that the Workplace Group’s certificate of incorporation was indeed revoked at that time. (Murray Ex. V) . Defendant Wilkinson testified: \"Q: Was Mr. Whalen replaced?; A: Yes.; Q: And who replaced him? A: Sorry. I don’t remember.” (Wilkinson Dep. p. 81) . The posting did not identify BDCI as the employer. Murray asked an associate of his to inquire" }, { "docid": "22833808", "title": "", "text": "SEYMOUR, Circuit Judge. Plaintiff Terry Garrett brought the present action against his former employer, Hewlett-Packard (HP), alleging race and age discrimination in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. Hewlett-Packard filed a motion seeking sum mary judgment on all claims. The district court granted the motion except as to Mr. Garrett’s claim that the company failed to raise his pay for discriminatory reasons, which the parties subsequently settled. Mr. Garrett appeals, asserting the district court erred in granting summary judgment on his claims relating to disparate treatment, retaliation, and constructive discharge. For the reasons set out below, we reverse in part and affirm in part. I In setting forth the facts, we view the evidence in the light most favorable to the non-moving party, as we must when reviewing a grant of summary judgment. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1359 (10th Cir.1997) (citing Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996)). We include in our consideration information set out in the nonmov-ant’s affidavit if that information is “based on personal knowledge and set[s] forth facts that would be admissible in evidence.” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995). We do not consider “eonclusory and self-serving affidavits.” Id. Terry Garrett is an African-American man who was over forty years of age when he left HP. He joined HP in 1972 as a computer engineer. After working for a few years at the company’s California facilities, Mr. Garrett transferred to HP’s Loveland, Colorado plant. Throughout his tenure at HP, Mr. Garrett’s performance was evaluated regularly by his supervisors. These evaluations were quite consistent in their substantive contents. Supervisors described Mr. Garrett as possessing strengths in the technical arena, a fast learner, and a hard-working, dedicated and dependable employee. Evaluators consistently praised his ease at acquiring new knowledge and adopting new skill sets. He was described as a team player who balanced technical and social interactions well. He moved between production and development teams easily, as he" }, { "docid": "17011222", "title": "", "text": "TORRUELLA, Circuit Judge. Plaintiff-appellant Kevin W. Tobin appeals the award of summary judgment to his former employer, Liberty Mutual Insurance Company (“Liberty Mutual”), on his state and federal claims of disability discrimination and failure to accommodate, pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (2000), and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B (“Chapter 151B”). Because we believe that summary judgment was improperly granted on Tobin’s “failure to accommodate” claim, we vacate the district court’s judgment on that claim. We affirm, however, the remainder of the district court’s decision. I. Tobin was hired by Liberty Mutual on September 17, 1964 for an administrative position. In May 1968, he was promoted to sales representative, a position he held until his termination in January 2001. As a sales representative, Tobin was responsible for selling insurance, including automobile, home, and life insurance. He was also expected to assist in customer service and retain business. Since 1976, Tobin has been under the regular care of a psychiatrist, mainly for treatment of bipolar disorder. This condition limited Tobin’s focus and concentration, impaired his ability to prioritize and complete tasks, required that he have more time to finish his work, and affected his organizational skills. It was only in December 1997, however, that Tobin revealed his condition to officials at the company. A. Tobin’s Performance Although Tobin had accumulated a large book of business over the years and the annual premiums generated from this book of business earned “significant profits,” Tobin’s yearly new business sales were considered deficient beginning in 1992. For example, for the twelve-month period ending September 1993, Tobin had sold only 270 new policies — a significant shortfall given that the quota for new policy sales was set at 339. In his Sales Representative Appraisal for that year, on a scale from 1-6, with 1 being the highest, Tobin received a 6 in the “Sales Rating” category. His overall evaluation was a 5. In 1994-1996 and 1998, Tobin’s appraisals reflect similar negative ratings and comments for sales, prospecting, performance, and overall performance, and positive ratings" }, { "docid": "23463252", "title": "", "text": "BATCHELDER, Circuit Judge. Plaintiff-appellant, David Humphreys, who was discharged after almost ten years of employment, claimed in the district court that his discharge constituted a breach of employment contract and a violation of ERISA, and that it violated principles of promissory estoppel. The district court granted summary judgment for the defendant-appellee, North American Coal Corporation, on all counts of Humphreys’ complaint. We affirm. I. BACKGROUND The district court presented the facts thoroughly and accurately in its opinion, Humphreys v. Bellaire Corp., 764 F.Supp. 489 (S.D.Ohio 1991), and we will only capsulize them here. Humphreys had worked for Quarto Mining Company, a subsidiary of North American, for almost ten years when he was discharged in early April, 1987. He had worked at a number of management positions prior to 1983, the year Robert Murray became executive vice president of North American. When Murray arrived, he promoted Humphreys to mine manager of the Quarto mine. Hum-phreys claims that from some time in 1984 to March 1987, Murray made promises and assurances to him of continued employment with North American. Some of these representations were made only to Hum-phreys, while others were made to Hum-phreys and other employees in groups of two, four, or as many as twelve to fifteen. The most specific of these representations were that Humphreys (and sometimes others) would have a job with North American with no cut in pay regardless of what happened to the Quarto mine. The sale of the Quarto mine took effect in early April 1987, and when North American discharged Humphreys, he took a job at a lower salary with the purchaser of the mine. Hum-phreys then brought this lawsuit. Humphreys asserted three claims in his complaint: (1) that he was terminated in violation of an oral contract; (2) that he detrimentally relied upon the promises of North American’s president and chief operating officer, Robert Murray; and (3) that his termination was in violation of ERISA, 29 U.S.C. § 1140. After discovery, the district court granted summary judgment for North American on each of these claims. Humphreys v. Bellaire Corp., 764 F.Supp. 489 (S.D.Ohio" }, { "docid": "9286038", "title": "", "text": "Rovner, Circuit Judge. Employees of Advocate Health and Hospitals Corporation (Advocate) claim that they were treated unfairly based on their race. The district court granted Advocate's motion for summary judgment, finding that the plaintiffs failed to offer evidence necessary to support an element of their claim. We agree with the district court on all issues but the question of the hostile work environment, and remand to the district court for a determination of that claim. I. Plaintiffs Warren Johnson, Robert Pannell, Kimberly Scott-Murray, Annette Smith, and Sherry Young all claim that they faced race discrimination at the hands of supervisors when they worked as Environmental Service Technicians (EVS techs) at Advocate. EVS techs perform work that would traditionally be called janitorial work. They clean and disinfect hospital rooms and common areas, make beds, and the like. The EVS techs claim that they were treated unfairly because of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. and 42 U.S.C. § 1981. In 2012, Advocate contracted with Aramark Healthcare Support Services and reorganized the supervision and operation of the EVS department. Under the Service Agreement between Advocate and Aramark, Aramark was responsible for managing the EVS department while abiding by the policies of Advocate, including, among other policies, Advocate's non-discrimination policy. See, e.g., R. 62-6 at 6, 16, Page ID 1941, 1951. Shortly thereafter, the plaintiffs claim that Aramark-employed supervisors Susan Castillo, Christopher Skalnik, and Mariusz Michalkowski engaged in discriminatory acts against the plaintiffs. The claims of discrimination include: (1) Johnson and Smith were paid less than white EVS techs; (2) Pannell and Scott-Murray were denied promotions and raises; (3) Plaintiffs were managed and disciplined more scrupulously than their non-African-American co-workers, and terminated in a discriminatory fashion; (4) African-American plaintiffs were given less desirable and more strenuous assignments; (5) Aramark supervisors subjected the plaintiffs to offensive and derogatory racial comments, creating a hostile work environment. The district court granted Advocate's motion for summary judgment on all counts, concluding that the plaintiffs did not experience severe or pervasive race-based harassment, that" }, { "docid": "20378930", "title": "", "text": "91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir.1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. III. The Court first addresses the discrimination and retaliation claims before turning to the negligence claims. A. Murray asserts that Defendants refused to hire him for the position posted by Source One in October, 2007 (filled by Scott Seveland in 2008), despite several opportunities to do so, because he is a black male, and in retaliation for his formal complaints of discrimination. (1) Defendants move for summary judgment, asserting that Murray’s admitted failure to cooperate with the application process, and simply failing to apply at all, precludes his failure to hire claims as a matter of law. Before turning to the individual elements of a prima facie case of discrimination and retaliation, the Court first addresses Murray’s overarching contention that he was not, as a matter of law, required to cooperate with the recruitment process, or even required to submit his resume, after having submitted it in response to past internet postings. He extensively relies upon EEOC v. Metal Service Co., which states in relevant part, the failure to formally apply for a job opening will not bar a ... plaintiff from establishing a prima facie claim of discriminatory hiring, as long as the plaintiff made every reasonable attempt to convey his interest in the job to the employer. A relaxation of the application element of the prima facie case is especially appropriate when the" }, { "docid": "23558673", "title": "", "text": "PER CURIAM: Plaintiff-Appellant Allan Greenberg appeals the district court’s grant of summary judgment in favor of his former employer, defendant-appellee BellSouth, in his employment discrimination lawsuit, which Greenberg filed pursuant to the ADA, 42 U.S.C. § 12101, et seq., and its Florida analogue, Fla. Stat. § 760.10, et seq. On appeal, Greenberg argues that there are genuine issues of fact as to (1) whether he is disabled under the ADA and (2) whether he was terminated because of such a disability. We AFFIRM. I. BACKGROUND Greenberg, who is obese and suffers from other medical conditions, sued his former employer, BellSouth, alleging that BellSouth terminated him on the basis of a disability in violation of the ADA and its Florida law analogue, the Florida Civil Rights Act (“FCRA”). BellSouth denied that it had unlawfully terminated Green-berg. A. Greenberg’s Employment with Bell-South Fernando Carbot was Greenberg’s supervisor at BellSouth. Carbot’s team is responsible for the installation and maintenance of telephone service. Under Bell-South’s safe load limit policy, employees in jobs that required climbing could weigh no more than the safe load limit of the equip ment used in their work groups. The manufacturers’ safe load limit for the ladders, gaffs, bucket trucks, and safety belts used by Carbot’s technicians is 300 pounds. The tool belt and tools used by each technician weighed 25 pounds. Consequently, Carbot’s employees could weigh no more than 275 pounds. Because Greenberg’s weight exceeded the safe load limit, Carbot “would hand-pick Mr. Green-berg’s job assignments to make sure he did not get any assignments that would require him to climb.” According to Carbot, BellSouth hired another company, Concorde, in 2004 to track the weight of employees governed by the safe load limit policy. Carbot informed Greenberg that, unlike in the past, BellSouth’s safe load limit policy would now be uniformly applied and that he would have to lose weight. In March 2004, Carbot gave Greenberg a weight loss timetable, under which Greenberg was required to lose 50 pounds over a period of 25 weeks in order to comply with the safe load limit. In September 2004, however, Concorde" }, { "docid": "1900265", "title": "", "text": "with needs related to their insurance policies. He had been under the care of a psychiatrist since 1976, was diagnosed with bipolar disorder in 1992, and had taken short-term disability leaves in 1997 and 1998. Following his termination, Tobin filed this action against the company alleging, inter alia, disability discrimination, including a failure to accommodate, pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B (“Chapter 151B”). Liberty Mutual defended against the claims by asserting that Tobin did receive certain accommodations and was not entitled to others, and that he was fired because of poor job performance. In its initial consideration of the case, the district court granted summary judgment for Liberty Mutual on all claims. Tobin then appealed. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir.2005). We agreed with the district court that Tobin had failed to adduce evidence showing that the company’s proffered reason for his discharge was pretextual. We noted that Liberty Mutual had “provided a full and well-documented account of To-bin’s ‘longstanding performance deficiencies,’ ” id. at 105-06, which included failing to meet minimum quotas and standards and not showing up for meetings with supervisors. We therefore held that the district court correctly granted summary judgment on Tobin’s pretext claim. Id. at 106. We reached the contrary conclusion with respect to the “reasonable accommodation” claim. Under both the ADA and Chapter 151B, employers are required to assist an otherwise qualified employee who has a disability by providing reasonable accommodations that would enable him to perform his job. 42 U.S.C. § 12112(b)(5)(A); Mass. Gen. Laws ch. 151B, § 4(16). However, in making such accommodations, an employer is not obliged to alter an employee’s essential job functions. Tobin, 433 F.3d at 107. After reviewing the evidence offered on Tobin’s accommodation claim, we discerned a triable issue of fact as to whether Tobin would be able to perform the essential functions of his job if provided the accommodations he had requested. We therefore remanded that claim for further proceedings. The dis trict court" }, { "docid": "12822580", "title": "", "text": "Affirmed by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge MICHAEL and Judge KING joined. OPINION DIANA GRIBBON MOTZ, Circuit Judge: Gary Rowe brought this action against his former employer, alleging that his termination violated ERISA, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and constituted wrongful discharge under Virginia law. After discovery was completed, the district court granted the employer summary judgment on the federal claims and, pursuant to a motion by Rowe, dismissed his state law claim without prejudice. We affirm. I. In 1984, The Marley Company hired Rowe to sell its line of residential water pump products. Rowe’s territory as a regional sales manager for Marley was primarily limited to Virginia and West Virginia, but at times also included Delaware, Maryland, Kentucky, and western Pennsylvania. Throughout most of Rowe’s employment at Marley, his supervisor was Paul Robinson, but in late 1996, Robert Garber, Marley’s Vice President for Sales, assumed responsibility for supervising Rowe. In 1993, Rowe, who was an insulin-dependent diabetic and in end stage renal failure, underwent a kidney and pancreas transplant. After returning to work in 1994, Rowe consistently performed all of the necessary functions of his job and received satisfactory performance ratings. Indeed, Rowe did not miss a single day of work in 1996 and 1997. Rowe maintains, however, that he still experiences health problems related to the transplant operation, such as fatigue, dizziness, short-term memory loss, and an inability to exert himself physically for more than an hour. He also claims to suffer from impotence and urinary frequency. As a result of the transplant, Rowe must take immunosup-pressant medication and other drugs. Through his employment with Marley, Rowe was eligible for group welfare benefits and he participated in the premium family health plan offered by Marley’s parent company. Marley was self-insured and thus bore the cost of these benefits in its operating budget. Marley’s health plan covered Rowe’s immunosuppressant medications, resulting in a cost to Marley of over $1000 a month. After becoming Rowe’s supervisor in late 1996, Garber, on occasion, commented on Rowe’s" } ]
231899
"1128. For example, it alleged that the patents ""improve the functioning of the data processing systems, computers, and other hardware"" and explained in detail how the invention achieves these improvements. J.A. at 454 ¶ 107, Aatrix , 882 F.3d 1121 ; id. at 429 ¶¶38-39. ""These allegations suggest[ed] that the claimed invention is directed to an improvement in the computer technology itself and not directed to generic components performing conventional activities."" Aatrix , 882 F.3d at 1127. As we have previously held, ""[i]n ruling on a 12(b)(6) motion, a court need not 'accept as true allegations that contradict matters properly subject to judicial notice or by exhibit,' such as the claims and the patent specification."" REDACTED But nothing in the limited record we could consider at the Rule 12(b)(6) stage refuted these allegations, so there was no legal basis to affirm the dismissal of the complaint. See, e.g. , Aatrix , 882 F.3d at 1128. These allegations ""at a minimum raise[d] factual disputes underlying the § 101 analysis, such as whether the claim term 'data file' constitutes an inventive concept, alone or in combination with other elements, sufficient to survive an Alice / Mayo analysis at the Rule 12(b)(6) stage."" Id. at 1126. We cannot adopt a result-oriented approach to end patent litigation at the Rule 12(b)(6) stage that would fail to accept as true the complaint's factual allegations and construe them in the light"
[ { "docid": "5599045", "title": "", "text": "technologies were well-known can be discerned from Secured Mail’s patents themselves. The patents mention that the invention can be performed using many types of hardware, including “personal computers, set top boxes, personal digital assistances (PDAs), mobile phones, land-line phones, televisions, bar code readers, and all other physically and wirelessly connected reception devices generally known to those skilled in the art,” suggesting that the hardware used is conventional. ’032 patent, J.A. 65 at col. 3 ll. 29-34. The “Background of the Invention” section notes that contents that can be. delivered electronically are often included in mail objects that are delivered via traditional mail services. ’032 patent, J.A. 64 at col. 1 ll. 50-52. Some of the claim elements, such as submitting a mail object to a mail carrier or affixing information to a mail object, are routine to persons that have mailed a letter. We see no inventive concept that transforms the nature of the claims into a patent-eligible application of the abstract idea. Secured Mail argues that because the district court’s conclusions address questions of fact, it was inappropriate for the district court to dismiss the case via Rule 12(b)(6). Yet, this court has determined claims to be patent-ineligible at the motion to dismiss stage based on intrinsic evidence from the specification without need for “extraneous fact finding outside the record.” See, e.g., In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 613-14 (Fed. Cir. 2016); Content Extraction, 776 F.3d at 1349; cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir. 2015) (holding that a Section 101 inquiry is a question of law). Secured Mail also argues that the district court erroneously shifted the burden of proof on the question of whether more than just industry-standard technology is claimed. According to Secured Mail, the district court improperly required it to prove that affixing a URL or barcode to a mail object was unconventional. Secured Mail’s argument is misplaced. In ruling on a 12(b)(6) motion, a court need not “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit,” such as" } ]
[ { "docid": "9108512", "title": "", "text": "form file that models the physical representation of an original paper form and establishes the calculations and rule conditions required to fill in the viewable form; (b) a form file creation program that imports a background image from an original form, allows a user to adjust and test-print the background image and compare the alignment of the original form to the background test-print, and creates the form file; (c) a data file containing data from a user application for populating the viewable form; and (d) a form viewer program operating on the form file and the data file, to perform calculations, allow the user of the data processing system to review and change the data, and create viewable forms and reports. Aatrix sued Green Shades Software, Inc. (\"Green Shades\") for infringement of the '615 and '393 patents. Green Shades moved to dismiss the complaint under Rule 12(b)(6). It argued all claims in the asserted patents were ineligible under § 101. Aatrix argued the motion should be denied \"to permit claim construction to go forward and for the [district court] to acquaint itself with the actual inventions.\" J.A. 198; see also J.A. 5, 204. Aatrix also filed declarations discussing the claimed invention, which the district court did not consider in its analysis. The district court granted Green Shades' motion and held every claim ineligible under § 101. J.A. 33 (holding \"the '615 and '393 Patents to be drawn to ineligible subject matter\"). Though not argued by the parties, the district court concluded claim 1 is not directed to any tangible embodiment and therefore not directed to eligible subject matter under § 101. The district court applied the Alice / Mayo two-step analysis to the remaining claims at issue. The court held that '615 patent claim 2 is directed to the abstract idea of \"collecting, organizing, and performing calculations on data to fill out forms: a fundamental human activity that can be performed using a pen and paper.\" J.A. 23. It found that the claim elements do not supply an inventive concept. It concluded '615 patent claim 22 and '393 patent claims" }, { "docid": "9108536", "title": "", "text": "should we prejudge whether the Second Amended Complaint survives a Rule 12(b)(6) motion to dismiss in the first instance, particularly when the defendant, Green Shades, has had no opportunity to present arguments with respect to the new pleading. The majority attempts to expand this court's law regarding patent eligibility under § 101 at the Rule 12(b)(6) stage. This contradicts our case law that patent ineligibility under § 101 is a question of law, and that it can be appropriately decided on a motion to dismiss. See, e.g ., Secured Mail Sols. LLC v. Universal Wilde, Inc. , 873 F.3d 905, 912 (Fed. Cir. 2017) (\"[T]his court has determined claims to be patent-ineligible at the motion to dismiss stage based on intrinsic evidence from the specification without need for 'extraneous fact finding outside the record.' \"). For these reasons, I respectfully concur-in-part and dissent-in-part from the majority opinion. The district court recognized that claims drawn to a computer system are not intangible elsewhere in its analysis. In assessing dependent claim 2 of the '615 patent, the district court noted that it is directed to a tangible embodiment because it adds a client computer and server computer limitation to the data processing system of claim 1. It then explained that claim 2 \"describes the structural components and functional limitations of said components of a data processing system (i.e., software program) on generic computers.\" J.A. 22 (emphasis added); see also J.A. 24. It failed, however, to appreciate that claim 1 is similarly directed to a data processing system. The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Bonner v. City of Prichard, Ala. , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). For purposes of this dissent, \"Second Amended Complaint\" refers to the proposed Second Amended Complaint that was filed on April 26, 2016. See infra note 3. Aatrix's new allegations in the Second Amended Complaint included: the background and development of the inventions of the Aatrix Patents; specific allegations and diagrams spelling out the technology of the Aatrix Patents; the" }, { "docid": "9108520", "title": "", "text": "(citing Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ). In this case, the district court denied Aatrix's motions stating in full that \"[u]pon consideration of the filings and the relevant case law, the Court sees no reason to reconsider its prior determination.\" J.A. 34. The district court gave no reason for its denial of Aatrix's motion to amend, and this is not a case where the record contains \"ample and obvious grounds for denying leave to amend.\" Rhodes v. Amarillo Hosp. Dist. , 654 F.2d 1148, 1154 (5th Cir. 1981). Indeed, the only argument Green Shades makes on appeal is that the amendment would be futile because the claims \"at issue are invalid on their face and a more carefully drafted complaint would do nothing to alter\" their validity. Appellee's Br. 4, 12. We do not agree. The proposed second amended complaint contains allegations that, taken as true, would directly affect the district court's patent eligibility analysis. These allegations at a minimum raise factual disputes underlying the § 101 analysis, such as whether the claim term \"data file\" constitutes an inventive concept, alone or in combination with other elements, sufficient to survive an Alice / Mayo analysis at the Rule 12(b)(6) stage. Alice / Mayo step two requires that we consider whether the claims contain \"an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Alice , 134 S.Ct. at 2357 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc. , 566 U.S. 66, 72, 79, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012) ). We have held that patentees who adequately allege their claims contain inventive concepts survive a § 101 eligibility analysis under Rule 12(b)(6). See, e.g. , BASCOM , 827 F.3d at 1352 (so holding after analysis of allegations). Here, allowing Aatrix to file the proposed amended complaint, which alleges facts directed to the inventive concepts in its claimed invention, would not be futile. See FairWarning IP , 839 F.3d at 1097. Aatrix's proposed second amended complaint supplies numerous allegations related to the inventive concepts present in" }, { "docid": "3532504", "title": "", "text": "suggests that its claimed invention recites a technological advance relating to accessing and combining disparate information sources, its claims do not recite any such improvement. Rather, the claimed invention is directed to the broad concept of monitoring audit log data. The claims here do not propose a solution or overcome a problem “specifically arising in the realm of computer [technology].” DDR Holdings, 773 F.3d at 1257. At most, the claims require that these processes be executed on a generic computer. But, “after Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Id. at 1256 (citing Alice, 134 S.Ct. at 2358). Thus, while the patent may in fact require that the claimed data relate to “transactions or activities that are executed in the computer environment,” Reply Br. 10, limiting the claims to the computer field does not alone transform them into a patent-eligible application. See Alice, 134 S.Ct. at 2358. After closely examining the claims of the ’500 patent in search of “something more” to transform the underlying abstract idea into a patent-eligible application, we conclude that there is nothing claimed in the patent—either by considering the claim limitations individually or as an ordered combination—-that makes its claims patent eligible. II. FairWarning further alleges that the district court improperly granted Iatric’s motion under Rule 12(b)(6). We disagree. “We have repeatedly recognized that in many cases it is possible and proper to determine patent eligibility under 35 U.S.C. § 101 on a Rule 12(b)(6) motion.” Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1373-74 (Fed. Cir. 2016) (citing OIP Techs., 788 F.3d at 1362; Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1351 (Fed. Cir. 2014); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014)). We have also acknowledged, how;ever, that plausible factual allegations may preclude dismissing a .case under § 101 where, for example, “nothing on th[e] record ... refutes those allegations as a matter of law or justifies dismissal under Rule 12(b)(6).” BASCOM, 827 F.3d at 1352. FairWarning argues that" }, { "docid": "9108513", "title": "", "text": "for the [district court] to acquaint itself with the actual inventions.\" J.A. 198; see also J.A. 5, 204. Aatrix also filed declarations discussing the claimed invention, which the district court did not consider in its analysis. The district court granted Green Shades' motion and held every claim ineligible under § 101. J.A. 33 (holding \"the '615 and '393 Patents to be drawn to ineligible subject matter\"). Though not argued by the parties, the district court concluded claim 1 is not directed to any tangible embodiment and therefore not directed to eligible subject matter under § 101. The district court applied the Alice / Mayo two-step analysis to the remaining claims at issue. The court held that '615 patent claim 2 is directed to the abstract idea of \"collecting, organizing, and performing calculations on data to fill out forms: a fundamental human activity that can be performed using a pen and paper.\" J.A. 23. It found that the claim elements do not supply an inventive concept. It concluded '615 patent claim 22 and '393 patent claims 1, 13, and 17 are substantively the same as '615 patent claim 2 and similarly directed to abstract ideas without inventive concepts. Aatrix moved to modify and vacate the judgment, for reconsideration, and for leave to amend the complaint. It sought reconsideration of the district court's tangible embodiment analysis and leave to file a second amended complaint that it argued supplied additional allegations and evidence that would have precluded a dismissal under § 101 at the Rule 12(b)(6) stage. The district court denied these motions, stating that \"[u]pon consideration of the filings and the relevant case law, the [district court] sees no reason to reconsider its prior determination. Accordingly, [Aatrix's] motions will be denied.\" J.A. 34. Aatrix timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a). DISCUSSION I. \"We review a district court's dismissal for failure to state a claim under the law of the regional circuit.\" Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n , 776 F.3d 1343, 1346 (Fed. Cir. 2014). The Eleventh Circuit reviews the grant of Rule" }, { "docid": "9108532", "title": "", "text": "futile. We vacate the district court's dismissal pursuant to Rule 12(b)(6). There are factual allegations in the second amended complaint, which when accepted as true, prevent dismissal pursuant to Rule 12(b)(6). Nothing in this opinion should be viewed as going beyond the Rule 12(b)(6) stage. Summary judgment, for example, involves different standards than Rule 12(b)(6). On remand, the district court should resolve, as necessary, claim construction issues. CONCLUSION For the foregoing reasons we vacate the district court's dismissal under Rule 12(b)(6) and reverse its denial of Aatrix's motion for leave to file a second amended complaint. REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED Reyna, Circuit Judge, concurring-in-part, dissenting-in-part. I concur with the majority's decision to vacate and remand to the district court on the motion to dismiss. Like the majority, I find that the district court erred in its conclusion that Claim 1 of the '615 patent was directed to an abstract idea because the patent lacked a \"tangible embodiment.\" I believe that the \"tangible embodiment\" requirement imposed by the district court also underlined its decision to deny Aatrix's motion for leave to file a Second Amended Complaint. Therefore, I would vacate and remand on the motion for leave to file a Second Amended Complaint as well. As a court, we should have decided on this issue alone. I respectfully disagree with the majority's broad statements on the role of factual evidence in a § 101 inquiry. Our precedent is clear that the § 101 inquiry is a legal question. See Intellectual Ventures I LLC v. Capital One Fin. Corp ., 850 F.3d 1332, 1338 (Fed. Cir. 2017). In a manner contrary to that standard, the majority opinion attempts to shoehorn a significant factual component into the Alice § 101 analysis. The problem here is twofold. First, the majority opinion attempts to shift the character of the § 101 inquiry from a legal question to a predominately factual inquiry. The risk of this approach is that it opens the door in both steps of the Alice inquiry for the introduction of an inexhaustible array of extrinsic evidence, such as prior art, publications, other" }, { "docid": "9108523", "title": "", "text": "eliminating the risk of transcription error. J.A. 455 ¶ 109; see also J.A. 431-32 ¶¶ 43-46 (describing the development and success of the claimed data file despite the difficulty in obtaining data from other software vendors given proprietary data structures). These allegations about the claimed data file claim that the data file is directed to an improvement in importing data from third-party software applications. The complaint also alleges that \"[t]his invention in-creased the efficiencies of computers processing tax forms.\" J.A. 429 ¶ 39. The complaint alleges that the claimed invention \"saved storage space both in the users' computers' RAM (Random Access Memory, which is fast, short-term storage used by running programs) and hard disk (permanent slower storage used for files and programs when not running).\" J.A. 429 ¶ 38. The claimed invention, according to the complaint, reduces the risk of \"thrashing,\" a condition which slowed down prior art systems. J.A. 429-30 ¶ 39. The complaint alleges that the claimed software uses less memory, results in faster processing speed, and reduces the risk of thrashing which makes the computer process forms more efficiently. J.A. 429 ¶ 39. These allegations suggest that the claimed invention is directed to an improvement in the computer technology itself and not directed to generic components performing conventional activities. We have repeatedly held that inventions which are directed to improvements in the functioning and operation of the computer are patent eligible. See, e.g. , Visual Memory LLC v. NVIDIA Corp. , 867 F.3d 1253, 1258-59 (Fed. Cir. 2017) ; Amdocs (Israel) Ltd. v. Openet Telecom, Inc. , 841 F.3d 1288, 1300-02 (Fed. Cir. 2016) ; Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1336 (Fed. Cir. 2016) ; see also DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245, 1257 (Fed. Cir. 2014). Viewed in favor of Aatrix, as the district court must at the Rule 12(b)(6) stage, the complaint alleges that the claimed combination improves the functioning and operation of the computer itself. These allegations, if accepted as true, contradict the district court's conclusion that the claimed combination was conventional or routine. J.A. 26." }, { "docid": "9108530", "title": "", "text": "filled in is tagged for populating fields.\"). Green Shades argues that this purported improvement in importation of data is in fact a routine and conventional use of a computer, however, at oral argument, Green Shades conceded that nothing in the specification describes this importation of data as conventional. Oral Arg. at 34:34-35:53. In assessing the claims under Alice / Mayo step two, the district court found that the claimed \"data file containing data from a user application for populating the viewable form\" describes \"a 'well understood' and 'routine' component and function of a computer.\" J.A. 26. The district court supplied no reasoning or evidence for its finding that the claimed data file \"describes a 'well understood' and 'routine' component and function of a computer,\" J.A. 26, nor is there any in the record at this stage of the proceedings. At least since the proposal of the second amended complaint, and perhaps even before, allegations as to facts and the proper construction of the claims have precluded the court's conclusion that the claimed \"data file\" is \"a 'well understood' and 'routine' component and function of a computer.\" J.A. 26. The \"data file\" limitation may reflect, as Aatrix argues, an improvement in the importation of data from third-party software applications. Cf. Enfish , 822 F.3d at 1337 (\"Here, the claims are not simply directed to any form of storing tabular data, but instead are specifically directed to a self-referential table for a computer database.\"). In light of the allegations made by Aatrix, the district court could not conclude at the Rule 12(b)(6) stage that the claimed elements were well-understood, routine, or conventional. Cf. Affinity Labs of Tex., LLC v. Amazon.com Inc. , 838 F.3d 1266, 1270 (Fed. Cir. 2016) (rejecting criticism of conclusion that the claims recited \"routine and generic processing and storing capabilities of computers generally\" where it was not suggested those elements were new or inventive); Content Extraction , 776 F.3d at 1347 (noting the concept of \"data collection, recognition, and storage is undisputedly well-known\" (emphasis added)). Thus, allowing Aatrix to file the proposed amended complaint would not have been" }, { "docid": "9108531", "title": "", "text": "\"a 'well understood' and 'routine' component and function of a computer.\" J.A. 26. The \"data file\" limitation may reflect, as Aatrix argues, an improvement in the importation of data from third-party software applications. Cf. Enfish , 822 F.3d at 1337 (\"Here, the claims are not simply directed to any form of storing tabular data, but instead are specifically directed to a self-referential table for a computer database.\"). In light of the allegations made by Aatrix, the district court could not conclude at the Rule 12(b)(6) stage that the claimed elements were well-understood, routine, or conventional. Cf. Affinity Labs of Tex., LLC v. Amazon.com Inc. , 838 F.3d 1266, 1270 (Fed. Cir. 2016) (rejecting criticism of conclusion that the claims recited \"routine and generic processing and storing capabilities of computers generally\" where it was not suggested those elements were new or inventive); Content Extraction , 776 F.3d at 1347 (noting the concept of \"data collection, recognition, and storage is undisputedly well-known\" (emphasis added)). Thus, allowing Aatrix to file the proposed amended complaint would not have been futile. We vacate the district court's dismissal pursuant to Rule 12(b)(6). There are factual allegations in the second amended complaint, which when accepted as true, prevent dismissal pursuant to Rule 12(b)(6). Nothing in this opinion should be viewed as going beyond the Rule 12(b)(6) stage. Summary judgment, for example, involves different standards than Rule 12(b)(6). On remand, the district court should resolve, as necessary, claim construction issues. CONCLUSION For the foregoing reasons we vacate the district court's dismissal under Rule 12(b)(6) and reverse its denial of Aatrix's motion for leave to file a second amended complaint. REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED Reyna, Circuit Judge, concurring-in-part, dissenting-in-part. I concur with the majority's decision to vacate and remand to the district court on the motion to dismiss. Like the majority, I find that the district court erred in its conclusion that Claim 1 of the '615 patent was directed to an abstract idea because the patent lacked a \"tangible embodiment.\" I believe that the \"tangible embodiment\" requirement imposed by the district court also underlined its decision to deny" }, { "docid": "9108517", "title": "", "text": "factual allegations, spelled out in the proposed second amended complaint, that, if accepted as true, establish that the claimed combination contains inventive components and improves the workings of the computer. As a preliminary matter, the district court erred to the extent it held that claim 1 of the '615 patent is ineligible solely because it is directed to an intangible embodiment. We have held that claims to pure data and claims to transitory signals embedded with data are directed to ineligible subject matter under § 101. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc. , 758 F.3d 1344, 1348-50 (Fed. Cir. 2014) ; In re Nuijten , 500 F.3d 1346, 1353-57 (Fed. Cir. 2007). But the rationale of those decisions-failure of the claimed matter to come within any of the four statutory categories: process, machine, manufacture, composition of matter-does not apply here. It remains true after Alice Corp. Pty. v. CLS Bank International , --- U.S. ----, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014), that \"[a] § 101 analysis begins by identifying whether an invention fits within one of the four statutorily provided categories of patent-eligible subject matter.\" Ultramercial, Inc. v. Hulu, LLC , 772 F.3d 709, 713-14 (Fed. Cir. 2014) (post- Alice ); Digitech , 758 F.3d at 1348-50 (post- Alice ). Claim 1 of the '615 patent meets that requirement. Like many claims that focus on software innovations, it is a system claim. It claims a data processing system which clearly requires a computer operating software, a means for viewing and changing data, and a means for viewing forms and reports. This is very much a tangible system. The district court erred in holding claim 1 ineligible because it was directed to intangible matter and should have instead performed an Alice / Mayo analysis of claim 1. The district court did perform an Alice / Mayo analysis on the remaining claims and dismissed pursuant to Rule 12(b)(6), concluding that the claims are ineligible. The subsequent refusal to permit an amended complaint was erroneous because at that stage there certainly were allegations of fact that, if Aatrix's position" }, { "docid": "9108522", "title": "", "text": "the claimed form file technology. It describes the development of the patented invention, including the problems present in prior art computerized form file creation. J.A. 418-33. It then presents specific allegations directed to \"improvements and problems solved by the Aatrix patented inventions.\" J.A. 454-57 (emphasis removed). As directed to the claimed data file, for example, the proposed second amended complaint alleges: The inventions claimed in the Aatrix Patents allow data to be imported into the viewable electronic form from outside applications. Prior art forms solutions allowed data to be extracted only from widely available databases with published database schemas, not the proprietary data structures of application software. The inventions of the Aatrix Patents allowed data to be imported from an end user application without needing to know proprietary database schemas and without having to custom program the form files to work with each outside application. The inventions of the Aatrix Patents permit data to be retrieved from a user application and inserted into a form, eliminating the need for hand typing in the values and eliminating the risk of transcription error. J.A. 455 ¶ 109; see also J.A. 431-32 ¶¶ 43-46 (describing the development and success of the claimed data file despite the difficulty in obtaining data from other software vendors given proprietary data structures). These allegations about the claimed data file claim that the data file is directed to an improvement in importing data from third-party software applications. The complaint also alleges that \"[t]his invention in-creased the efficiencies of computers processing tax forms.\" J.A. 429 ¶ 39. The complaint alleges that the claimed invention \"saved storage space both in the users' computers' RAM (Random Access Memory, which is fast, short-term storage used by running programs) and hard disk (permanent slower storage used for files and programs when not running).\" J.A. 429 ¶ 38. The claimed invention, according to the complaint, reduces the risk of \"thrashing,\" a condition which slowed down prior art systems. J.A. 429-30 ¶ 39. The complaint alleges that the claimed software uses less memory, results in faster processing speed, and reduces the risk of thrashing which" }, { "docid": "9108524", "title": "", "text": "makes the computer process forms more efficiently. J.A. 429 ¶ 39. These allegations suggest that the claimed invention is directed to an improvement in the computer technology itself and not directed to generic components performing conventional activities. We have repeatedly held that inventions which are directed to improvements in the functioning and operation of the computer are patent eligible. See, e.g. , Visual Memory LLC v. NVIDIA Corp. , 867 F.3d 1253, 1258-59 (Fed. Cir. 2017) ; Amdocs (Israel) Ltd. v. Openet Telecom, Inc. , 841 F.3d 1288, 1300-02 (Fed. Cir. 2016) ; Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1336 (Fed. Cir. 2016) ; see also DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245, 1257 (Fed. Cir. 2014). Viewed in favor of Aatrix, as the district court must at the Rule 12(b)(6) stage, the complaint alleges that the claimed combination improves the functioning and operation of the computer itself. These allegations, if accepted as true, contradict the district court's conclusion that the claimed combination was conventional or routine. J.A. 26. Therefore, it was an abuse of discretion for the district court to deny leave to amend. While the ultimate determination of eligibility under § 101 is a question of law, like many legal questions, there can be subsidiary fact questions which must be resolved en route to the ultimate legal determination. Relevant to this case, the second step of the Alice / Mayo test requires examining \"the elements of the claim to determine whether it contains an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Alice , 134 S.Ct. at 2357 (quoting Mayo , 566 U.S. at 72, 79, 132 S.Ct. 1289 ). If the elements involve \"well-understood, routine, [and] conventional activity previously engaged in by researchers in the field,\" Mayo , 566 U.S. at 73, 132 S.Ct. 1289, they do not constitute an \"inventive concept.\" We have explained that the second step of the Alice / Mayo test is satisfied when the claim limitations \"involve more than performance of 'well-understood, routine, [and] conventional activities previously known to the industry.'" }, { "docid": "9108514", "title": "", "text": "1, 13, and 17 are substantively the same as '615 patent claim 2 and similarly directed to abstract ideas without inventive concepts. Aatrix moved to modify and vacate the judgment, for reconsideration, and for leave to amend the complaint. It sought reconsideration of the district court's tangible embodiment analysis and leave to file a second amended complaint that it argued supplied additional allegations and evidence that would have precluded a dismissal under § 101 at the Rule 12(b)(6) stage. The district court denied these motions, stating that \"[u]pon consideration of the filings and the relevant case law, the [district court] sees no reason to reconsider its prior determination. Accordingly, [Aatrix's] motions will be denied.\" J.A. 34. Aatrix timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a). DISCUSSION I. \"We review a district court's dismissal for failure to state a claim under the law of the regional circuit.\" Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n , 776 F.3d 1343, 1346 (Fed. Cir. 2014). The Eleventh Circuit reviews the grant of Rule 12(b)(6) motions de novo, accepting as true the complaint's factual allegations and construing them in the light most favorable to the plaintiff. Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention , 623 F.3d 1371, 1379 (11th Cir. 2010). We have held that patent eligibility can be determined at the Rule 12(b)(6) stage. See, e.g. , Genetic Techs. Ltd. v. Merial L.L.C. , 818 F.3d 1369, 1373 (Fed. Cir. 2016) ; Content Extraction , 776 F.3d at 1346, 1351. This is true only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law. Indeed, we have explained that \"plausible factual allegations may preclude dismissing a case under § 101 where, for example, 'nothing on th[e] record ... refutes those allegations as a matter of law or justifies dismissal under Rule 12(b)(6).' \" FairWarning IP, LLC v. Iatric Sys., Inc. , 839 F.3d 1089, 1097 (Fed. Cir. 2016) (quoting BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC , 827" }, { "docid": "9108516", "title": "", "text": "F.3d 1341, 1352 (Fed. Cir. 2016) ). If there are claim construction disputes at the Rule 12(b)(6) stage, we have held that either the court must proceed by adopting the non-moving party's constructions, BASCOM , 827 F.3d at 1352 ; Content Extraction , 776 F.3d at 1349, or the court must resolve the disputes to whatever extent is needed to conduct the § 101 analysis, which may well be less than a full, formal claim construction. Genetic Techs., 818 F.3d at 1373. This is not a case where patent ineligibility was properly adjudicated with finality at the Rule 12(b)(6) stage. The district court erred to the extent it determined that claim 1 of the '615 patent is ineligible because it is not directed to a tangible embodiment. The district court granted this Rule 12(b)(6) motion without claim construction. We have some doubt about the propriety of doing so in this case, but need not reach that issue because it did err when it denied leave to amend without claim construction and in the face of factual allegations, spelled out in the proposed second amended complaint, that, if accepted as true, establish that the claimed combination contains inventive components and improves the workings of the computer. As a preliminary matter, the district court erred to the extent it held that claim 1 of the '615 patent is ineligible solely because it is directed to an intangible embodiment. We have held that claims to pure data and claims to transitory signals embedded with data are directed to ineligible subject matter under § 101. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc. , 758 F.3d 1344, 1348-50 (Fed. Cir. 2014) ; In re Nuijten , 500 F.3d 1346, 1353-57 (Fed. Cir. 2007). But the rationale of those decisions-failure of the claimed matter to come within any of the four statutory categories: process, machine, manufacture, composition of matter-does not apply here. It remains true after Alice Corp. Pty. v. CLS Bank International , --- U.S. ----, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014), that \"[a] § 101 analysis begins by identifying whether an" }, { "docid": "9108521", "title": "", "text": "§ 101 analysis, such as whether the claim term \"data file\" constitutes an inventive concept, alone or in combination with other elements, sufficient to survive an Alice / Mayo analysis at the Rule 12(b)(6) stage. Alice / Mayo step two requires that we consider whether the claims contain \"an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Alice , 134 S.Ct. at 2357 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc. , 566 U.S. 66, 72, 79, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012) ). We have held that patentees who adequately allege their claims contain inventive concepts survive a § 101 eligibility analysis under Rule 12(b)(6). See, e.g. , BASCOM , 827 F.3d at 1352 (so holding after analysis of allegations). Here, allowing Aatrix to file the proposed amended complaint, which alleges facts directed to the inventive concepts in its claimed invention, would not be futile. See FairWarning IP , 839 F.3d at 1097. Aatrix's proposed second amended complaint supplies numerous allegations related to the inventive concepts present in the claimed form file technology. It describes the development of the patented invention, including the problems present in prior art computerized form file creation. J.A. 418-33. It then presents specific allegations directed to \"improvements and problems solved by the Aatrix patented inventions.\" J.A. 454-57 (emphasis removed). As directed to the claimed data file, for example, the proposed second amended complaint alleges: The inventions claimed in the Aatrix Patents allow data to be imported into the viewable electronic form from outside applications. Prior art forms solutions allowed data to be extracted only from widely available databases with published database schemas, not the proprietary data structures of application software. The inventions of the Aatrix Patents allowed data to be imported from an end user application without needing to know proprietary database schemas and without having to custom program the form files to work with each outside application. The inventions of the Aatrix Patents permit data to be retrieved from a user application and inserted into a form, eliminating the need for hand typing in the values and" }, { "docid": "9108527", "title": "", "text": "judicial notice. There are concrete allegations in the second amended complaint that individual elements and the claimed combination are not well-understood, routine, or conventional activity. There are also concrete allegations regarding the claimed combination's improvement to the functioning of the computer. We have been shown no proper basis for rejecting those allegations as a factual matter. Below, even on the motion to dismiss, Aatrix argued the district court should have held claim construction proceedings to obtain a full understanding of the claims prior to granting Green Shades' motion to dismiss. It argued the claims are directed to specific structures defined in the claim language. On the other hand, Aatrix did not clearly explain which claim terms required construction or propose a construction of any particular term. We need not decide whether it was proper on that record for the court to grant the motion to dismiss without claim construction: the need for claim construction might be apparent just from the claim terms themselves, to arrive at \"a full understanding of the basic character of the claimed subject matter.\" Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.) , 687 F.3d 1266, 1273-74 (Fed. Cir. 2012). We conclude that Aatrix is entitled to file its proposed second amended complaint, and that ruling makes it unnecessary to decide whether the district court erred by ruling on the § 101 motion prior to claim construction. The briefing and argument on appeal demonstrate a need for claim construction, to be conducted on remand after the amended complaint is filed. On appeal, Aatrix argues, for example, that the claimed \"data file\" imports data from third-party applications into a viewable electronic form without program-ming each form file to work with each third-party application, which improves interoperability with third-party software. Aatrix cites the specification as support for its argument that the claimed data file contains an inventive concept directed to improved importation of data and interoperability with third-party software. It explains that through the data file, \"data from the vendor application is seamlessly imported into the program\" and the data file imports \"only the data" }, { "docid": "9108526", "title": "", "text": "\" Content Extraction , 776 F.3d at 1347-48 (quoting Alice , 134 S.Ct. at 2359 ); see also Affinity Labs of Tex., LLC v. DIRECTV, LLC , 838 F.3d 1253, 1262 (Fed. Cir. 2016) (holding that the features constituting the inventive concept in step two of Alice / Mayo \"must be more than 'well-understood, routine, conventional activity' \" (quoting Mayo , 566 U.S. at 79-80, 132 S.Ct. 1289 )); Intellectual Ventures I LLC v. Erie Indem. Co. , 850 F.3d 1315, 1328 (Fed. Cir. 2017) (same); BASCOM , 827 F.3d at 1350 (\"[I]t is of course now standard for a § 101 inquiry to consider whether various claim elements simply recite 'well-understood, routine, conventional activit[ies].' \" (quoting Alice , 134 S.Ct. at 2359 )). Whether the claim elements or the claimed combination are well-understood, routine, conventional is a question of fact. And in this case, that question cannot be answered adversely to the patentee based on the sources properly considered on a motion to dismiss, such as the complaint, the patent, and materials subject to judicial notice. There are concrete allegations in the second amended complaint that individual elements and the claimed combination are not well-understood, routine, or conventional activity. There are also concrete allegations regarding the claimed combination's improvement to the functioning of the computer. We have been shown no proper basis for rejecting those allegations as a factual matter. Below, even on the motion to dismiss, Aatrix argued the district court should have held claim construction proceedings to obtain a full understanding of the claims prior to granting Green Shades' motion to dismiss. It argued the claims are directed to specific structures defined in the claim language. On the other hand, Aatrix did not clearly explain which claim terms required construction or propose a construction of any particular term. We need not decide whether it was proper on that record for the court to grant the motion to dismiss without claim construction: the need for claim construction might be apparent just from the claim terms themselves, to arrive at \"a full understanding of the basic character of the" }, { "docid": "9282582", "title": "", "text": "of the attention manager in that they merely store information about the \"usage of the attention manager,\" including the identity of the content displayed and when it was displayed. Id. col. 28 l. 29-col. 29 l. 14. While the patent specification refers to limitations [6]-[8] as \"application instructions,\" by their terms, these instructions relate to controlling the display of content. Our court recently held that disposition on § 101 is inappropriate at the summary judgment stage when there are genuine disputes of material fact as to whether elements of the challenged claims are \"well-understood, routine and conventional to a skilled artisan in the relevant field.\" Berkheimer v. HP Inc ., 881 F.3d 1360, 1368 (Fed. Cir. 2018). And resolution at the Rule 12(b)(6) or Rule12(c) stage is similarly inappropriate where claim elements are adequately alleged to be more than well-understood, routine, or conventional. See Aatrix Software, Inc. v. Green Shades Software, Inc. , 882 F.3d 1121, 1128 (Fed. Cir. 2018). But where, as here, there are no disputed facts material to the issue of patent eligibility, the district court's resolution of the inventive concept inquiry is proper. See, e.g., Bilski v. Kappos , 561 U.S. 593, 601, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010). The Supreme Court itself is not always consistent. Compare id. at 601-02, 130 S.Ct. 3218 (referring to the \"three specific exceptions\") with Mayo Collaborative Servs. v. Prometheus Labs., Inc. , 566 U.S. 66, 70, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012) (referring to the three categories as constituting one \"exception\"). That does not, however, preclude controversy. See, e.g. , Ariosa Diagnostics, Inc. v. Sequenom, Inc. , 788 F.3d 1371, 1380 (Fed. Cir. 2015) (Linn, J., concurring), reh'g denied , 809 F.3d 1282 (Fed. Cir. 2015) (per curiam denial with concurrences by Judges Lourie and Dyk and a dissent by Judge Newman). But see Robert R. Sachs, Bad Science Makes Bad Patent Law-No Science Makes It Worse (Part I) , Bilski Blog (Sept. 13, 2016), http://www.bilskiblog.com/blog/2016/09/bad-science-makes-bad-patent-law.html (arguing that the courts have failed to accurately define 'laws of nature'). --- U.S. ----, 134 S.Ct. 2347, 189 L.Ed.2d 296" }, { "docid": "9108518", "title": "", "text": "invention fits within one of the four statutorily provided categories of patent-eligible subject matter.\" Ultramercial, Inc. v. Hulu, LLC , 772 F.3d 709, 713-14 (Fed. Cir. 2014) (post- Alice ); Digitech , 758 F.3d at 1348-50 (post- Alice ). Claim 1 of the '615 patent meets that requirement. Like many claims that focus on software innovations, it is a system claim. It claims a data processing system which clearly requires a computer operating software, a means for viewing and changing data, and a means for viewing forms and reports. This is very much a tangible system. The district court erred in holding claim 1 ineligible because it was directed to intangible matter and should have instead performed an Alice / Mayo analysis of claim 1. The district court did perform an Alice / Mayo analysis on the remaining claims and dismissed pursuant to Rule 12(b)(6), concluding that the claims are ineligible. The subsequent refusal to permit an amended complaint was erroneous because at that stage there certainly were allegations of fact that, if Aatrix's position were accepted, would preclude the dismissal. The district court denied, without explanation, Aatrix's motion to amend its complaint. The Eleventh Circuit reviews a district court's denial of leave to amend for abuse of discretion. Mann v. Palmer , 713 F.3d 1306, 1316 (11th Cir. 2013). A district court should freely give leave to amend a complaint \"when justice so requires.\" Fed. R. Civ. P. 15(a)(2) ; see Perez v. Wells Fargo N.A. , 774 F.3d 1329, 1340 (11th Cir. 2014). A district court may deny a motion to amend on numerous grounds such as \"undue delay, undue prejudice to the defendants, and futility of the amendment.\" Mann , 713 F.3d at 1316 ; see also Perez , 774 F.3d at 1340-41 (listing other factors). The Eleventh Circuit reviews de novo a district court's denial of leave to amend for futility. Mann , 713 F.3d at 1316. A justification for denying leave to amend may be declared or apparent from the record. See Garfield v. NDC Health Corp. , 466 F.3d 1255, 1270 (11th Cir. 2006)" }, { "docid": "9275817", "title": "", "text": "was not critical or necessary to the final judgment. We therefore conclude that issue preclusion does not apply in this case, not because there was a change in law as the district court held, but because the issue of patent eligibility under § 101 was not actually litigated and it was not necessary to the judgment rendered. III. Patent Eligibility under § 101 Because issue preclusion does not apply here, we turn to the merits of the § 101 issue. Patent eligibility under § 101\"is ultimately an issue of law we review de novo .\" Berkheimer v. HP Inc. , 881 F.3d 1360, 1365 (Fed. Cir. 2018) (italics added). Patent eligibility can be determined at the Rule 12(b)(6) stage \"when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law.\" Aatrix Software, Inc. v. Green Shades Software, Inc. , 882 F.3d 1121, 1125 (Fed. Cir. 2018). Under § 101, \"[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.\" 35 U.S.C. § 101. Under the two-step framework, we first \"determine whether the claims at issue are directed to a patent-ineligible concept.\" Alice , 134 S.Ct. at 2355. If so, then we \"examine the elements of the claim to determine whether it contains an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Id. at 2357 (quoting Mayo , 566 U.S. at 72-73, 78, 132 S.Ct. 1289 ). Voter Verified argues that the claims of the '449 patent are directed to patent-eligible subject matter because the specification and claims describe \"physical\" and \"human cognitive actions,\" which are not abstract ideas. Appellant's Br. 11. And at step two of the framework, Voter Verified contends that the district court incorrectly found that only generic computer components were required because a voter performs some of the claimed steps as well. In response, Election Systems argues that the claims are directed to the abstract idea of" } ]
758644
of the tying goods has no interest in the sale of the tied product, he is not using his power in the tying product market to invade a second market. Warner Management v. Data General, 545 F.Supp. at 967. This economic interest requirement has also been imposed by courts in the Second, Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits. See, e.g., Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) 11 63,089, at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, — U.S.-, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); REDACTED Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir.1984). In the usual tying arrangement, it is not difficult to establish the economic interest element because the seller of the tying product is also the seller of the tied product. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1407 (9th Cir.1984). However, courts have held that the tying seller’s economic interest does not have to be so direct as long as the tying seller has some
[ { "docid": "6741683", "title": "", "text": "the new image restaurant to be built by a particular contractor constituted an illegal tying arrangement. According to Keener, the trademark was the tying product and was evidence of sufficient economic power “to appreciably restrain free competition in the market for the tied product”. See Northern Pacific Railway Co. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Keener also claims that the building was the tied product and represented a “not insubstantial” amount of interstate commerce. See id. The fatal defect in this analysis, however, is that the defendant had no financial interest in or connection with the building contractor whom it had designated to erect the new building. It had no stake in that contractor’s business, it derived no income from his sales, and it would receive no rental income from the building. There is no illegal tying arrangement where a “tying” company has absolutely no interest in the sales of a third company whose products are favored by the tie-in. Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 5 Cir. 1977, 549 F.2d 368, 377 & n. 9; Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 7 Cir. 1978, 585 F.2d 821, 835. Furthermore, Keener failed to prove any damages whatsoever as a result of this alleged tie. The undisputed evidence at trial indicated that the favored contractor would in all probability have been able to erect the new image Sizzler for a substantially lower price than any local contractor due to his experience and familiarity with the Sizzler design. The District Judge was entirely correct in denying relief on this claim. Second, Keener complains of an alleged price-fixing conspiracy which had both vertical and horizontal aspects. Evidence of vertical price-fixing consisted mainly of the contracts between plaintiffs and the defendant which clearly set prices for such items as hamburger, steak sandwich, top sirloin steak, New York steak, hamburger steak, fried shrimp, and salad. The contracts also provided that prices for these items were not to be changed “until further notice in writing from Sizzlers, Inc.” Evidence on the alleged horizontal price-fixing consisted" } ]
[ { "docid": "17187900", "title": "", "text": "purchase from someone else. An implicit requirement to a finding that a tying arrangement violates § 1 is that the seller of the tying product must also profit from the sale of the tied product. The district court went on to say that, “[i]n all of the cases addressing this question which the Court is aware of, the courts require that the seller of the tying product must have benefited directly from the sale of the tied product.” And, “[i]n this case, it is clear from the evidence before the Court that none of the monies paid to Bu-cholz, Inc. reached Parkview’s hands. Therefore, the Court finds defendants’ motions for summary judgment as to plaintiff’s § 1 claim well taken.” The district court’s reliance on the “direct economic benefit” rule was well-grounded in antitrust law. Prior to Jefferson Parish, courts ordinarily tested a challenged tying arrangement for section 1 validity by determining whether the provider of the tying product or service derived any direct economic benefit from the arrangement. An absence of direct economic benefit was taken as a determinative indicator that the provider of the tying product or service had no anti-competitive impact upon the market for the tied product or service. See, e.g., Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transp. Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983). These courts dismissed section 1 Sherman Act claims where the seller, accused of providing an alleged tying product or service, did not derive any direct economic benefit from the sale of the product said to be tied. Notable among these decisions is Crawford Transp. Co. in which this court held that Chrysler Corporation “was guilty of no tying arrangement in violation of Section 1 of the Sherman Act”" }, { "docid": "5478713", "title": "", "text": "v. Rockingham Radiologists, Ltd., 820 F.2d 98, 104 (4th Cir.1987) (no tie-in because hospital had no economic interest in CT scan interpretation market); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476 (9th Cir.1983) (favorable loans to franchisor from designated supplier created financial interest). But see Gonzalez v. St. Margaret’s House Housing Devel. Fund Corp., 880 F.2d 1514, 1518 (2d Cir.1989) (financial interest in tied prod uct not required because this requirement was never adopted by Supreme Court); Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1579 n. 12 (11th Cir.1991), cert. denied, 506 U.S. 903, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992) (economic interest requirement only applied in and is most needed in franchise cases). Here, plaintiffs’ allegations suffice to suggest that SpeeDee had an economic interest in Mobil’s sales to the franchisees. Plaintiffs allege that defendants formed a joint venture under which Mobil was to provide financial backing for the development of the franchise system and that SpeeDee’s obligations to Mobil, including that its franchisees continue to sell Mobil products exclusively, were secured by liquidated damages and 40% of its stock. Not every tying arrangement is illegal. A tying arrangement violates Section 1 of the Sherman Act if the seller has “appreciable economic power” in the tying product market, and the arrangement affects a substantial volume of commerce in the tied product market. Kodak, 504 U.S. at 462, 112 S.Ct. at 2079-80. Under Fifth Circuit authority, plaintiffs may establish that a tying arrangement is illegal per se under the antitrust laws by demonstrating that SpeeDee had sufficient control over the tying market, here allegedly the SpeeDee trademarked franchise for fast lube businesses, to have a likely anticompetitive affect on the tied product market, the sale of lubricant products and related equipment and services to the SpeeDee franchise network. See Breaux Brothers Farms, Inc. v. Teche Sugar Co., Inc., 21 F.3d 83, 86 (5th Cir.1994). Alternatively, plaintiff may prevail by establishing that the arrangement is invalid under the rule of reason, under which plaintiff must allege an actual adverse effect on competition in the tied product market. Id." }, { "docid": "17187901", "title": "", "text": "was taken as a determinative indicator that the provider of the tying product or service had no anti-competitive impact upon the market for the tied product or service. See, e.g., Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transp. Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983). These courts dismissed section 1 Sherman Act claims where the seller, accused of providing an alleged tying product or service, did not derive any direct economic benefit from the sale of the product said to be tied. Notable among these decisions is Crawford Transp. Co. in which this court held that Chrysler Corporation “was guilty of no tying arrangement in violation of Section 1 of the Sherman Act” when it required its dealers to purchase new car delivery services from the company with which Chrysler had an exclusive contract along with new cars the dealers bought. 338 F.2d at 939. This court said: Chrysler owned no transportation companies and had no financial interest in any of the transportation carriers to which it tendered traffic for its 1958 and subsequent models. It did not seek to invade and dominate the automobile transportation carriers’ business. True, Chrysler benefited financially to the extent that it saved millions of dollars in the cost of transportation but it received no direct profits from the transportation carriers. Id. The district court cited Crawford Transp. Co., for its reliance upon the “direct economic benefit” rule. On appeal, Dr. Beard concedes that the district court correctly found that Parkview derives no direct economic benefit from the radiological services provided by Bueholz. He also concedes that if Crawford is a correct statement of the law, his section 1 claim fails. He contends, however, that in Jefferson Parish the Supreme Court overruled sub" }, { "docid": "6279357", "title": "", "text": "971 (1965); Nelligan v. Ford Motor Co., 262 F.2d 556 (4th Cir. 1959); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446 (9th Cir. 1958); Roberts v. Elaine Powers Figure Salons, Inc., 1981-1 Trade Cas. (CCH) 63,976 (E.D.Cal. 1980); Shaeffer v. Collings, 1980-81 Trade Cas. (CCH) 163,666 at 77,576 (E.D.Pa.1980); Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F.Supp. 1199, 1209 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903, 904-05 (E.D.La. 1976); BBD Transportation Co. v. United States Steel Corp., 1976-2 Trade Cas. (CCH) 161,709 at 69,874 (N.D.Cal.1976); Mid-America ICEE, Inc. v. John E. Mitchell Co., 1973-2 Trade Cas. (CCH) 174,681 at 94,990-91 (D.Ore.1973). Centennial has submitted an affidavit indicating that Data General has no financial interest in the tied sales of credit made by Centennial. See Affidavit of William C. Thompson. However, the complaint does allege a financial interest: the tied maintenance services purchased from Data General would be subcontracted to Centennial. Amended Complaint 127(c). Presumably, Data General would receive a discount on the subcontract for maintenance services in return for requiring Warner to obtain financing from Centennial. That would give Data General a stake in Centennial’s tied sales. Moreover, Warner has submitted affidavits indicating that Data General explicitly told Warner that it would receive central processing units only if it obtained financing from Centennial. Affidavit of Gary Tauss; Affidavit of Henry A. Warner. Experience suggests that when one business promotes another, there is likely to be some financial incentive motivating the promotion. If Data General would have received financial benefits as a result of Centennial’s tied sales, the tying would be actionable. See Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc, 585 F.2d 821, 834-35 (7th Cir. 1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207,1216 (9th Cir. 1977). Most of the evidence regarding the details of Data General and Centennial’s financial arrangements are in the control of the defendants. In light of Warner’s plausible allegation, supported by affidavits, of a financial relation between Data General and Centennial’s tied sales, and" }, { "docid": "7608099", "title": "", "text": "air fare is illegal and therefore “unique,” consumers were not forced into purchasing either it, or a Budget rental car. “[WJhere the buyer is free to take either product by itself there is no tying problem even though the seller may also offer the two items as a unit at a single price.” Hyde, — U.S. at - n. 17, 104 S.Ct. at 1558 n. 17 (quoting Northern Pacific Railway Co. v. United States, 356 U.S. 1, 6 n. 4, 78 S.Ct. 514, 518 n. 4, 2 L.Ed.2d 545 (1958)); see Levicoff v. General Motors Corp., 551 F.Supp. 98, 102 (W.D.Pa.1982), aff'd 722 F.2d 732 (3d Cir.1983). The district court also correctly recognized that the airlines did not have a sufficient economic interest in the tied product for the fly-drives to constitute per se illegal tying arrangements. In the typical tying scheme, the seller of the tying product also sells the tied product. The tying product seller’s interest need not be so direct, how ever, as long as the seller has an economic interest in the sale of the tied product. Elaine Powers, 708 F.2d at 1480; Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir.1977). The airlines did not have an adequate interest in the sale of Budget car rentals. Their interest did not go beyond promoting the package in order to sell airplane seats. Simply because Aloha paid $1.00 less to Budget if its employees sold the package does not change the result that, in all cases, it paid Budget if and when a passenger decided to rent a Budget car after flying on Aloha Airlines. The holding in Elaine Powers does not aid Roberts’ claim. In that case, this court reversed the grant of summary judgment because sufficient factual questions existed concerning whether a franchisor of figure salons had an interest in a bookkeeping service that it required the franchisees to use. In Elaine Powers there was evidence tending to show that the bookkeeping service made direct payments to the franchisor and that the owners of the bookkeeping service were also employees (one" }, { "docid": "7028137", "title": "", "text": "product — which has been adopted by many of the circuits. See Carl Sandburg Village Condominium Association v. First Condominium Development Co., 758 F.2d 203 (7th Cir.1985) (compiling cases so holding from theThird, Fourth, Fifth, Sixth, Seventh, Ninth and Eleventh Circuit Courts of Appeal). While the Second Circuit has not expressly adopted this element of the test, it has expressed its approval. See Yentsch v. Texaco, Inc., supra, 630 F.2d at 57, n. 15. Additionally, this court has itself recognized the economic interest element in a prior case. See Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) ¶ 63,089 at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed. 687 (1984). The rationale for this economic interest requirement is that where the seller of the tying product has no economic interest in the sale of the tied product he is not using his power in the tying product market to invade a second market, which is the conduct the proscription on tying arrangements is designed to prevent. See Carl Sandburg Village, supra, 758 F.2d at 208. The tying claim presented here is that Miller used its “dominant position in the market for brand name nationally distributed beer” (Amended Complaint ¶ 66.7) to foreclose competition in the market consisting of “common carrier trucking companies licensed to haul beer from Miller’s Fulton brewery and other Miller breweries.” {Id., it 67.1). Put another way, the alleged violation consists of Miller’s “coercion” of its distributors to use only those common carrier trucking companies approved by Miller. {Id. at 1166.8). This tying claim is rather unorthodox, and defendants raise numerous arguments why they should be granted summary judgment on these counts of the complaint. We do not think extended discussion of all the points raised is necessary since there are clearly fatal flaws with respect to several elements of plaintiffs’ case in chief. It is sufficient for purposes of dismissing the tying claim to note that it has not been alleged, nor is there a trace of evidence in the record to indicate, that Miller had any economic" }, { "docid": "23097028", "title": "", "text": "the events related in the complaint. Car Carriers v. Ford Motor, 745 F.2d at 1106; Sutliff v. Donovan, 727 F.2d at 654. The Supreme Court has defined a tying arrangement as an agreement by one party to sell a product (the tying product) to another on the condition that the buyer also purchase a different product (the tied product). Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518-519, 2 L.Ed.2d 545 (1958). In order to establish the per se illegality of a tying arrangement, a plaintiff must show that: (1) the tying arrangement is between two distinct products or services, (2) the defendant has sufficient economic power in the tying market to appreciably restrain free competition in the market for the tied product, and (3) a not insubstantial amount of interstate commerce is affected. Id.; Moore v. Matthews & Co., 550 F.2d 1207, 1212 (9th Cir.1977). In addition, this circuit has held that an illegal tying arrangement will not be found where the alleged tying company has absolutely no economic interest in the sales of the tied seller, whose products are favored by the tie-in. OhioSealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Warner Management Consultants, Inc. v. Data General Corp., 545 F.Supp. 956, 967 (N.D.Ill.1982). The courts have imposed this economic interest requirement because when the seller of the tying goods has no interest in the sale of the tied product, he is not using his power in the tying product market to invade a second market. Warner Management v. Data General, 545 F.Supp. at 967. This economic interest requirement has also been imposed by courts in the Second, Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits. See, e.g., Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) 11 63,089, at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, — U.S.-, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v." }, { "docid": "7608095", "title": "", "text": "reason. We agree with and adopt the district court’s reasoning in its opinion reported at 491 F.Supp. 1206-10, 1212-17, and add the following observations. Notwithstanding Roberts’ assertions to the contrary, summary judgment may be appropriate in antitrust actions when there is no “significant probative evidence tending to support the complaint.” First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); see Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376, 1381 (9th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981). Especially in cases where motive and intent are not determinative, summary judgment may be used in antitrust actions. Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478 (9th Cir.1983). Our review, which is de novo, id., convinces us that summary judgment was called for in this case. 1. Per Se Illegal Tying Arrangement Simply stated, a tying arrangement is when “a seller refuses to sell one product (the tying product) unless the buyer also purchases another (the tied product).” Elaine Powers, 708 F.2d at 1478-79. Three primary elements establish a per se illegal tying arrangement: (1) a tie-in between two distinct products or services; (2) sufficient economic power in the tying product market to impose significant restrictions in the tied product market; and (3) an effect on a not-insubstantial volume of commerce in the tied product market. Id. Roberts argues, and we assume, that it had adequate support for the first and third elements. It is the second element which concerned the district court. Another concern of the court involved the related requirement that there must be some modicum of coercion exerted upon the purchaser of the tied product by the seller of the tying product. Id. The court also found another element missing, which is the seller of the tying product must have an economic interest in the tied product for there to be per se illegality. Id. In effect, Roberts reverses the ostensible nature of the fly-drive agreements to fit them into the scheme of per se" }, { "docid": "959232", "title": "", "text": "commission or rebate on sales of the tied product. E.g., Ohio-Sealy Mattress Mfg. v. Sealy, Inc., 585 F.2d 821 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir.1977); Falls Church Bratwursthaus, Inc. v. Bratwursthaus Mgmt. Corp., 354 F.Supp. 1237 (E.D.Va.1973). In the absence of such payments courts have rejected tying claims, even where — as generally is the case — the seller of the tying product receives some identifiable economic benefit from the challenged arrangement. Keener v. Sizzler Family Steak Houses, 597 F.2d 453 (5th Cir.1979), aff'g in part [1977] 2 Trade Cas. (CCH) 11 61,682 (N.D.Tex.1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309 (3d Cir.1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Robert’s Waikiki U-Drive v. Budget Rent-A-Car, 491 F.Supp. 1199 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903 (E.D.La.1976). In this case plaintiffs allege that Arthur Rubloff & Co. conferred an economic benefit upon the developer defendants by concealing defects in Carl Sandburg Village, thereby allowing the developer defendants to sell condominium units quickly and at inflated prices, without making necessary repairs. Plaintiffs analogize this alleged economic benefit to the payment of a kickback, rebate or commission, but the cases rejecting tying claims make it clear that other types of economic benefits are not automatically to be equated with commissions. After considering plaintiffs’ allegations, the parties’ arguments and the case law, the court concludes that plaintiffs do not allege the requisite interest, on the part of the developer defendants, in the sale of management services. The court will address several points raised in plaintiffs’ memoranda. First, plaintiffs rely on the statement by the Court of Appeals in the Sealy case, that “there is no illegal tying arrangement where a ‘tying’ company has absolutely no financial interest in the sales of a third company whose products are favored by the tie-in.” 585 F.2d at 835. (Plaintiffs’ Memo in Opposition, p. 18.)" }, { "docid": "23097029", "title": "", "text": "economic interest in the sales of the tied seller, whose products are favored by the tie-in. OhioSealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Warner Management Consultants, Inc. v. Data General Corp., 545 F.Supp. 956, 967 (N.D.Ill.1982). The courts have imposed this economic interest requirement because when the seller of the tying goods has no interest in the sale of the tied product, he is not using his power in the tying product market to invade a second market. Warner Management v. Data General, 545 F.Supp. at 967. This economic interest requirement has also been imposed by courts in the Second, Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits. See, e.g., Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) 11 63,089, at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, — U.S.-, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir.1984). In the usual tying arrangement, it is not difficult to establish the economic interest element because the seller of the tying product is also the seller of the tied product. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1407 (9th Cir.1984). However, courts have held that the tying seller’s economic interest does not have to be so direct as long as the tying seller has some form of economic interest in the sale of the tied product, such as the receipt of a commission or rebate. See, e.g., id. at 1407-08; Roberts v. Elaine Powers, 708 F.2d at 1480-81. Furthermore," }, { "docid": "7028136", "title": "", "text": "2 L.Ed.2d 545 (1958). Tying arrangements are harmful to competition in that competitors are denied free access to the market for the tied product, “not because the party imposing the tying requirements has a better product or a lower price, but because of his power or leverage in another market.” Id. at 6, 78 S.Ct. at 518. In order to establish an illegal tying arrangement plaintiff must demonstrate: (1) two distinct products or services (tying and tied) are involved; (2) evidence of actual coercion by the seller that in fact forced the buyer to accept the tied product; (3) sufficient economic power in the tying product market to coerce purchaser acceptance of the tied product; (4) anti-competitive effects in the tied market; (5) involvement of a “not insubstantial” amount of interstate commerce in the tied product market. Yentsch v. Texaco, Inc., 630 F.2d 46, 56-57 (2d Cir.1980). There is a sixth element to the test — that the seller of the tying product have some degree of economic interest in the market for the tied product — which has been adopted by many of the circuits. See Carl Sandburg Village Condominium Association v. First Condominium Development Co., 758 F.2d 203 (7th Cir.1985) (compiling cases so holding from theThird, Fourth, Fifth, Sixth, Seventh, Ninth and Eleventh Circuit Courts of Appeal). While the Second Circuit has not expressly adopted this element of the test, it has expressed its approval. See Yentsch v. Texaco, Inc., supra, 630 F.2d at 57, n. 15. Additionally, this court has itself recognized the economic interest element in a prior case. See Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) ¶ 63,089 at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed. 687 (1984). The rationale for this economic interest requirement is that where the seller of the tying product has no economic interest in the sale of the tied product he is not using his power in the tying product market to invade a second market, which is the conduct the proscription on tying arrangements is designed to prevent. See" }, { "docid": "5478712", "title": "", "text": "or incorporated into the complaint. Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.1996). The Court will treat defendants’ Rule 9(b) motion to dismiss for failure to plead fraud with particularity under the same standard as the Rule 12(b)(6) motion. Id. A. Tying Claims A tying arrangement is “ ‘an agreement by a party to sell one product but only on condition that the buyer also purchase a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.’ ” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 461, 112 S.Ct. 2072, 2079, 119 L.Ed.2d 265 (1992) (quoting Northern Pacific R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958)). An agreement requiring the buyer to purchase the tied product from some third party can also amount to a tying arrangement, if the tying seller receives some economic benefit or has some economic interest in the third party’s sales of the tied product. See White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 104 (4th Cir.1987) (no tie-in because hospital had no economic interest in CT scan interpretation market); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476 (9th Cir.1983) (favorable loans to franchisor from designated supplier created financial interest). But see Gonzalez v. St. Margaret’s House Housing Devel. Fund Corp., 880 F.2d 1514, 1518 (2d Cir.1989) (financial interest in tied prod uct not required because this requirement was never adopted by Supreme Court); Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1579 n. 12 (11th Cir.1991), cert. denied, 506 U.S. 903, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992) (economic interest requirement only applied in and is most needed in franchise cases). Here, plaintiffs’ allegations suffice to suggest that SpeeDee had an economic interest in Mobil’s sales to the franchisees. Plaintiffs allege that defendants formed a joint venture under which Mobil was to provide financial backing for the development of the franchise system and that SpeeDee’s obligations to Mobil, including that its franchisees continue to sell Mobil products exclusively, were" }, { "docid": "2683854", "title": "", "text": "do not here urge was the product of any agreement with Armstrong, Mineral was merely exercising its right protected under the doctrine of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), to refuse unilaterally to deal with any present or potential customer. Furthermore, plaintiffs have cited us to no tie-in case in which, as here, the seller of the “tying” product had no economic interest in the market for the “tied” product or was not at least receiving a commission on sales of the product. Our research has revealed only cases holding to the contrary. See, e. g., Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 972 (1965); Miller Motors Inc. v. Ford Motor Co., 252 F.2d 441 (4th Cir. 1957). The record in this case fails to establish any effort by Mineral to use its economic position as the manufacturer of DC/F to invade and dominate the fireproofing application business and does not demonstrate any interest of Mineral in Armstrong except to insure proper application of its products when purchased by others. The absence of a direct interest in the tied product market leaves open the possibility of a nonpredatory justification for requiring sales only through Armstrong and distinguishes this situation from the solely anti-competitive arrangements which have been branded as per se antitrust violations. To adopt plaintiffs’ position would revolutionize the antitrust field. Every refusal by a franchisor to deal with one not a franchisee would automatically lead to a per se violation of the Sherman Act if the franchisor’s product possessed the “desirability to consumers” or “uniqueness” which have been found sufficient to establish the necessary economic power of the tying product. United States v. Loew’s, Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962). It would, moreover, amount to a substantial undercutting of the Colgate doctrine validating unilateral refusals to deal in the absence of a monopolistic purpose. Neither precedent nor policy suggests that such a reordering of the antitrust implications of" }, { "docid": "23097030", "title": "", "text": "Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir.1984). In the usual tying arrangement, it is not difficult to establish the economic interest element because the seller of the tying product is also the seller of the tied product. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1407 (9th Cir.1984). However, courts have held that the tying seller’s economic interest does not have to be so direct as long as the tying seller has some form of economic interest in the sale of the tied product, such as the receipt of a commission or rebate. See, e.g., id. at 1407-08; Roberts v. Elaine Powers, 708 F.2d at 1480-81. Furthermore, the economic interest requirement is not met where a plaintiff merely alleges that the tying seller is receiving substantial revenue as a result of his sale of two products as a package. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F.Supp. 1199, 1209 (D.Hawaii 1980), aff'd, 732 F.2d 1403 (9th Cir.1984). Thus, plaintiff does not establish the requisite economic interest in the tied product market merely by alleging that the tying seller is receiving a profit from the transaction as a whole. Id. In the present case, the district court held that the Condominium Associations had not alleged the requisite economic interest on the part of the tying sellers of condominium units in the management services (tied product) market. The district court noted that the case law clearly differentiates between cases where the tying and tied product are sold by the same seller and cases where the tying and tied products are sold by different, unaffiliated sellers. In the latter case, the district court held that a plaintiff would have to allege that" }, { "docid": "6279356", "title": "", "text": "support. Where the seller of the tying goods has no interest in the sale of the tied goods, then it is not using its power in the market for the tying item to invade a second market; the sales of the tied goods are independently priced by a separate financial entity who presumably has no power to charge a noncompetitive price. Under such circumstances, tying poses no danger to competition, and courts have universally held that such tying is not actionable. See Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979); Ohio-Sealy Mattress Manu- factoring Co. v. Sealy, Inc., 585 F.2d 821, 834-35 (7th Cir. 1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 377 n.9 (5th Cir. 1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1317-18 (3d Cir. 1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert, denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Nelligan v. Ford Motor Co., 262 F.2d 556 (4th Cir. 1959); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446 (9th Cir. 1958); Roberts v. Elaine Powers Figure Salons, Inc., 1981-1 Trade Cas. (CCH) 63,976 (E.D.Cal. 1980); Shaeffer v. Collings, 1980-81 Trade Cas. (CCH) 163,666 at 77,576 (E.D.Pa.1980); Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F.Supp. 1199, 1209 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903, 904-05 (E.D.La. 1976); BBD Transportation Co. v. United States Steel Corp., 1976-2 Trade Cas. (CCH) 161,709 at 69,874 (N.D.Cal.1976); Mid-America ICEE, Inc. v. John E. Mitchell Co., 1973-2 Trade Cas. (CCH) 174,681 at 94,990-91 (D.Ore.1973). Centennial has submitted an affidavit indicating that Data General has no financial interest in the tied sales of credit made by Centennial. See Affidavit of William C. Thompson. However, the complaint does allege a financial interest: the tied maintenance services purchased from Data General would be subcontracted to Centennial. Amended Complaint 127(c). Presumably, Data General would receive a discount on the subcontract for maintenance services in return" }, { "docid": "6884950", "title": "", "text": "claims no proprietary interest). Section 3 of the Clayton Act (15 U.S.C. § 14) forbids a seller to: contract for sale of goods ... on the condition . . . that the . purchaser thereof shall not use or deal in the goods . of a competitor or competitors of the . . . seller . This statutory prohibition against tying arrangements is geared to prevent a seller of two products from using his dominant market power over the first product to foreclose his competitors from access to buyers of the second product. In order for one to establish an illegal tying agreement, it is necessary to show that the tying arrangement involves a seller who not only competes in the tying item’s line of commerce, but also participates for profit in the area of competition to which the tied item belongs. See, Crawford Transportation Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert. denied 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Nelligan v. Ford Motor Co., 262 F.2d 556 (4th Cir. 1959) and Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441 (4th Cir. 1958). Defendant thus contends that the amended complaint fails to state a claim under the antitrust laws in that there is neither an allegation in the amended complaint nor a suggestion in the record that defendant had any interest in the services or materials sold by the six named companies in the amended complaint (other than the companies might stimulate sales or promote operational efficiency in the dealerships that used them). Plaintiffs apparently have no dispute with the law as outlined above. They do, however, request additional discovery in order to determine the relationship, if any, Chrysler has with the six companies. The Court feels, however, that the plaintiffs are only hoping to find a violation by Chrysler. The fact of the matter is that the amended complaint, on its face, is defective. It fails to allege the proper connection between Chrysler and the six “tied” companies. For these reasons, the motion to amend the complaint is hereby DENIED." }, { "docid": "2683853", "title": "", "text": "buyer also purchases a different (or tied) product.” Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Such agreements are unlawful where the tying product possesses sufficient economic power so as to appreciably restrain competition in the tied product market and a “not insubstantial” amount of commerce is affected by the arrangement. Id. at 6, 78 S.Ct. 514. Tie-ins are treated as per se antitrust violations because they serve no purpose other than the suppression of competition. Id. The critical deficiency in plaintiffs’ efforts to prove an illegal tie-in is that they have failed to establish a factual pattern that falls within the definition of arrangements which the Supreme Court has declared illegal per se. Mineral did not offer to sell to plaintiffs conditioned on their use of Armstrong’s services as an applicator; Mineral refused to sell to plaintiffs under any circumstances since they were not licensees. Mineral’s response was a refusal to deal, not a conditioned agreement to deal. In adopting such a position, which plaintiffs do not here urge was the product of any agreement with Armstrong, Mineral was merely exercising its right protected under the doctrine of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), to refuse unilaterally to deal with any present or potential customer. Furthermore, plaintiffs have cited us to no tie-in case in which, as here, the seller of the “tying” product had no economic interest in the market for the “tied” product or was not at least receiving a commission on sales of the product. Our research has revealed only cases holding to the contrary. See, e. g., Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 972 (1965); Miller Motors Inc. v. Ford Motor Co., 252 F.2d 441 (4th Cir. 1957). The record in this case fails to establish any effort by Mineral to use its economic position as the manufacturer of DC/F to invade and dominate the fireproofing application business and does" }, { "docid": "959231", "title": "", "text": "repairs. This economic benefit to the developer defendants, plaintiffs argue, constitutes an economic interest in the sale of management services sufficient to support a tying claim. This question — whether the seller of the tying product has a sufficient interest in sales of the tied product — is not a genuine issue in most tying cases. In the classic tying situation the seller of the tying product also is the seller of the tied product. E.g., United States v. Loew’s, Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962). Frequently, the seller of one product is a subsidiary or affiliate of the seller of the other product. E.g., Fortner Enterprises, Inc. v. U.S. Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Apart from cases in which the two products are sold by one seller (or by affiliated sellers), illegal tying also has been found where the seller of the tying product receives a commission or rebate on sales of the tied product. E.g., Ohio-Sealy Mattress Mfg. v. Sealy, Inc., 585 F.2d 821 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir.1977); Falls Church Bratwursthaus, Inc. v. Bratwursthaus Mgmt. Corp., 354 F.Supp. 1237 (E.D.Va.1973). In the absence of such payments courts have rejected tying claims, even where — as generally is the case — the seller of the tying product receives some identifiable economic benefit from the challenged arrangement. Keener v. Sizzler Family Steak Houses, 597 F.2d 453 (5th Cir.1979), aff'g in part [1977] 2 Trade Cas. (CCH) 11 61,682 (N.D.Tex.1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309 (3d Cir.1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Robert’s Waikiki U-Drive v. Budget Rent-A-Car, 491 F.Supp. 1199 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903 (E.D.La.1976). In this case plaintiffs allege that" }, { "docid": "12718881", "title": "", "text": "noncompliance with Texaco’s pricing policy, would in and of itself have a coercive effect on dealers’ pricing independence. . The amended complaint was filed on February 10, 1976 by the original nine Texaco service stations dealers, including Yentsch. . Judge Murphy also' thought he had ’submitted a breach of contract claim to the jury upon which it may have based its decision. Although he initially granted Yentsch’s motion for treble damages, he subsequently vacated the trebling order, apparently on the rationale that one could not be sure whether the jury had decided the case on antitrust or non-antitrust grounds. . Appellant urges us to adopt a sixth test for determining an illegal tying, namely whether the seller of the tying product has a direct economic interest in the market for the tied product. We see considerable logic for using such a criterion, and other circuits have already applied it, see Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979); Ohio Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1317-18 (3d Cir. 1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 938-39 (6th Cir. 1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965). Nevertheless, we do not decide today whether to incorporate this element into our tying analysis, since appellee’s claim fails on another ground. . One commentator has criticized Fortner II, on the ground that a company’s own efficiency and enterprise resulting in a cost advantage over other competitors should not be adequate to prove sufficient economic power. See Jones, The Two Faces of Fortner: Comment on a Recent Antitrust Opinion, 78 Colum.L.Rev. 39, 45 (1978). . The district court’s charge to the jury on what constitutes an illegal tying arrangement was inadequate. The judge charged as follows: So, turning to the other three tie-ins involving glassware, Coca-Cola and Green Stamps, to prevail on any one of these claims, Plaintiff must prove" }, { "docid": "6279355", "title": "", "text": "(E.D.Pa.1976). Here, Warner was a purchaser of the tied items, and the tying arrangement prevented it from entering the market for the tied items. Thus, the injury alleged by Warner is characteristic of the injury that a rule of reason challenge to a tying arrangement addresses. Warner has standing to mount a reasonableness challenge to defendants’ conduct in count II and III of the complaint. Since the only issues Data General raises involve standing, the preceding discussion resolves Data General’s motion to dismiss. However, Centennial has raised two issues unique to it which must be separately addressed. First, Centennial argues that the tying arrangement involving it cannot be actionable, since Data General has no financial stake in Centennial’s tied sales. Warner responds that no such stake is required, and even if it is, Data General did have a financial interest in Centennial’s tied sales of credit. Warner’s position that a tying claim can be brought where the seller of the tying goods has no financial interest in the sales of the tied items is without support. Where the seller of the tying goods has no interest in the sale of the tied goods, then it is not using its power in the market for the tying item to invade a second market; the sales of the tied goods are independently priced by a separate financial entity who presumably has no power to charge a noncompetitive price. Under such circumstances, tying poses no danger to competition, and courts have universally held that such tying is not actionable. See Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979); Ohio-Sealy Mattress Manu- factoring Co. v. Sealy, Inc., 585 F.2d 821, 834-35 (7th Cir. 1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 377 n.9 (5th Cir. 1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1317-18 (3d Cir. 1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert, denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d" } ]
795653
of interest (“gene product”). According to the record in this case, the leader sequence functions to target the polypeptide for secretion from the yeast cell. During secretion, the yeast enzyme KEX-2 recognizes the lysine-arginine or arginine-arginine spacer sequence in the polypeptide and cleaves the polypeptide at the junction between the spacer and the gene product. As a result, the desired gene product is released into the extracellular medium, free of the leader and spacer portions of the polypeptide. See Brake, Paper No. 164 at 2. Because the yeast cell exports rather than retains the desired protein, protein purification is considerably simplified. See id. The following is a statement of the facts as set forth in our earlier opinion in this case. REDACTED As we not ed in that opinion, the factual context of Singh’s alleged conception of the claimed DNA construct is based on his statements to the PTO and other record evidence. Absent qualification, the facts set forth here are not disputed by the parties. In the course of Singh’s attempts to design the claimed DNA construct in August 1982, he prepared plasmid p57, a circular DNA molecule containing the alpha-factor leader sequence and a spacer sequence directly adjacent to it. See Singh Decl. ¶ 21. During that same month, Singh incorporated the gene for human protein interferon D (“IFN-D”) into p57, thereby yielding plasmid p58. See id. In p58, the gene was also positioned adjacent to the spacer sequence,
[ { "docid": "5736060", "title": "", "text": "of three basic components: (1) DNA encoding an alpha-factor “leader sequence” (L) that directs a yeast cell to export the protein attached to it; (2) a spacer (S) containing a first codon R1; that encodes lysine or arginine, followed by a second codon R2, that encodes arginine; and (3) a gene (Gene *) that is foreign to yeast, that encodes a protein of interest. See ’008 patent, col. 2, 11. 11-16, 38^13. The claimed DNA construct is illustrated in the figure below, with shorthand abbreviations of the three components depicted above the three-box diagram: After the DNA construct has been introduced into the yeast cell, e.g., via a plasmid vector, the cell translates the construct, yielding nascent protein (“protein construct”). The sequence of the protein construct, like the DNA encoding it, is divided into three regions: the 83-amino acid sequence of the alpha-factor leader, the Lysine-Arginine or Arginine-Arginine two-amino acid spacer, and the amino acid sequence of the protein of interest (“gene product”). The leader sequence functions to target the protein construct for secretion from the yeast cell. During secretion, the yeast enzyme KEX-2 recognizes the Lysine-Ar-ginine or Arginine-Arginine spacer sequence in the protein construct and cleaves it at the junction between the spacer and the gene product. As a result, the desired gene product is released into the extracellular medium, free of the leader and spacer portions of the protein construct. See Paper No. 164 at 2. Because the yeast cell exports rather than retains the desired protein, protein purification is considerably simplified. See id. In the course of Singh’s attempts to design the claimed DNA construct in August 1982, he prepared plasmid p57, a circular DNA molecule containing the alpha-factor leader sequence and a spacer sequence directly adjacent to it. See Singh Decl. ¶ 21. During that same month, Singh incorporated the gene for human protein interferon D (“IFN-D”) into p57, thereby yielding plasmid p58. See id. In p58, the gene was also positioned adjacent to the spacer sequence, such that the leader, spacer, and gene sequences were all oriented in a fashion identical to the claimed construct." } ]
[ { "docid": "15436014", "title": "", "text": "both assigned to Genentech, Inc. Because the earlier Singh application predated Brake 2, Singh was initially designated the senior party in the interference. However, Brake 2 was a continuation-in-part of U.S. Application 06/457,325 (hereinafter “Brake 1”), filed January 12, 1983, and Brake successfully moved for the benefit of the filing date of Brake 1 with respect to the count in the interference. Brake also successfully moved to attack the benefit accorded Singh of the April 25, 1983 filing date of U.S. Application 06/488,-323. Brake was then designated as the senior party. The count, which is identical to claim 1 of Brake 2, reads as follows: 1. A DNA construct comprising a sequence of the following formula: 5'-L-S-Gene*-3', where: L encodes a Saceharomyces alpha-factor leader sequence recognized by a yeast host for secretion; S encodes a spacer sequence providing processing signals resulting in the enzymatic processing by said yeast host of a precursor polypeptide encoded by L-S-Gene* into the polypeptide encoded by Gene*, S containing the sequence 5'-R1-R2-3' immediately adjacent to the sequence Gene*, Rj being a codon for lysine or argi-nine, R2 being codon for arginine, with the proviso that S not contain the sequence 5'-R3-R4-X-3', where R3 = Rl, R ;= R2, and X encodes a processing signal for dipeptidylaminopeptidase A; and Gene* encodes a polypeptide foreign to Saccharomyces. Brake, Paper No. 199 at 6. The DNA construct of the count thus includes three basic components: (1) a segment, “L,” which encodes an alpha-factor leader sequence; (2) a segment, “S,” which includes a first codon, R1} encoding either lysine or arginine, followed by a second codon, R2, encoding arginine; and (3) a gene, “Gene*,” which encodes a protein of interest, in particular, a polypeptide foreign to (i.e., not naturally produced by) the yeast Saccharomyces. See Brake patent, col. 2,11.11-16, 38-43. After the DNA construct has been introduced into the yeast cell, e.g., via a plasmid vector, the cell “expresses” the construct, producing a polypeptide having the sequence of amino acids encoded by the DNA. The sequence of the resulting polypeptide, like the DNA encoding it, is divided into three" }, { "docid": "15436015", "title": "", "text": "a codon for lysine or argi-nine, R2 being codon for arginine, with the proviso that S not contain the sequence 5'-R3-R4-X-3', where R3 = Rl, R ;= R2, and X encodes a processing signal for dipeptidylaminopeptidase A; and Gene* encodes a polypeptide foreign to Saccharomyces. Brake, Paper No. 199 at 6. The DNA construct of the count thus includes three basic components: (1) a segment, “L,” which encodes an alpha-factor leader sequence; (2) a segment, “S,” which includes a first codon, R1} encoding either lysine or arginine, followed by a second codon, R2, encoding arginine; and (3) a gene, “Gene*,” which encodes a protein of interest, in particular, a polypeptide foreign to (i.e., not naturally produced by) the yeast Saccharomyces. See Brake patent, col. 2,11.11-16, 38-43. After the DNA construct has been introduced into the yeast cell, e.g., via a plasmid vector, the cell “expresses” the construct, producing a polypeptide having the sequence of amino acids encoded by the DNA. The sequence of the resulting polypeptide, like the DNA encoding it, is divided into three regions: the alpha-factor leader, the spacer sequence including either a lysine-arginine or an arginine-argi-nine two-amino acid block, and the amino acid sequence of the protein of interest (“gene product”). According to the record in this case, the leader sequence functions to target the polypeptide for secretion from the yeast cell. During secretion, the yeast enzyme KEX-2 recognizes the lysine-arginine or arginine-arginine spacer sequence in the polypeptide and cleaves the polypeptide at the junction between the spacer and the gene product. As a result, the desired gene product is released into the extracellular medium, free of the leader and spacer portions of the polypeptide. See Brake, Paper No. 164 at 2. Because the yeast cell exports rather than retains the desired protein, protein purification is considerably simplified. See id. The following is a statement of the facts as set forth in our earlier opinion in this case. Singh v. Brake, 222 F.3d 1362, 55 USPQ2d 1673 (Fed.Cir.2000). As we noted in that opinion, the factual context of Singh’s alleged conception of the claimed DNA construct is" }, { "docid": "15436013", "title": "", "text": "LOURIE, Circuit Judge. Arjun Singh appeals from the remand decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences awarding judgment in an interference to Anthony Brake. Brake v. Singh, Inter. No. 102,728, Paper No. 199 (Bd. Pat.App. & Inter. June 19, 2001). Because the Board’s decision was supported by substantial evidence and was not contrary to law, we affirm. BACKGROUND This case arises out of an interference declared on November 12, 1991, involving a count corresponding to all thirty-seven claims of Brake’s U.S. Patent 4,870,008 (hereinafter “the Brake patent”) and claims 8 and 19-21 of Singh’s U.S. Application 07/552,719. The Brake patent issued from U.S. Application 07/081,302, filed August 3, 1987, which was a continuation of, and was accorded the benefit of, U.S. Application 06/522,909 (hereinafter “Brake 2”), filed August 12, 1983, assigned to Chiron Corporation. Singh’s Application 07/552,719 was filed July 16, 1990, and was accorded the benefit of U.S. Application 06/506,098 (hereinafter “the Singh application”), filed June 20, 1983, and U.S. Application 06/488,323, filed April 25, 1983, both assigned to Genentech, Inc. Because the earlier Singh application predated Brake 2, Singh was initially designated the senior party in the interference. However, Brake 2 was a continuation-in-part of U.S. Application 06/457,325 (hereinafter “Brake 1”), filed January 12, 1983, and Brake successfully moved for the benefit of the filing date of Brake 1 with respect to the count in the interference. Brake also successfully moved to attack the benefit accorded Singh of the April 25, 1983 filing date of U.S. Application 06/488,-323. Brake was then designated as the senior party. The count, which is identical to claim 1 of Brake 2, reads as follows: 1. A DNA construct comprising a sequence of the following formula: 5'-L-S-Gene*-3', where: L encodes a Saceharomyces alpha-factor leader sequence recognized by a yeast host for secretion; S encodes a spacer sequence providing processing signals resulting in the enzymatic processing by said yeast host of a precursor polypeptide encoded by L-S-Gene* into the polypeptide encoded by Gene*, S containing the sequence 5'-R1-R2-3' immediately adjacent to the sequence Gene*, Rj being" }, { "docid": "21080746", "title": "", "text": "Barr). The Lee application was filed on June 20, 1988 and the Barr application was filed on October 23, 1986 and accorded the benefit of United States Application 06/487,950, which was filed on April 25, 1983. Therefore, Lee, whose application was assigned to Genentech, was the junior party and Barr, whose application was assigned to Chiron, was the senior party. The sole count of the interference is identical to claim 22 of Barr’s application, and reads: A DNA construct comprising a sequence coding for human insulin-like growth factor — I joined in proper reading frame with Saccharomyces alpha-factor séeretory leader and processing signal sequence. Saccharomyces, commonly known as baker’s yeast, naturally secretes a small, thirteen amino acid pheromone known as alpha factor during its reproductive cycle. As a first step in this process, the yeast cell produces a precursor protein from the DNA sequence encoding alpha factor that consists of a secretory leader, which serves to signal the cell to process the precursor protein, followed by four copies of the alpha-factor protein separated by processing sequences of six or eight amino acids each. Each processing sequence is recognized and excised by an enzyme in the yeast cell to release the four copies of the alpha factor outside of the yeast cell. As a result of this process, four copies of mature alpha-factor protein are secreted from the yeast cell for each precursor protein. Human insulin-like growth factor-I (IGF-I), is a growth-promoting protein that medi ates the effect of human growth hormone. It is undisputed that human IGF-I consists of a specific sequence of seventy amino acids that was published in 1978. See Ernst Rinderknecht and René Humbel, The Amino Acid Sequence of Human Insulin-like Growth Factor I and Its Structural Homology with Proinsulin, 253 J.Biol.Chem. 2769 (1978). Lee and Barr sought to produce mature IGF-I by adapting the Saccharomyces DNA encoding the gene for the precursor protein. Utilizing a DNA construct with only one copy of alpha-factor protein, both Lee and Barr replaced the DNA sequence of the precursor protein encoding alpha factor with a DNA sequence encoding IGF-I. This" }, { "docid": "15436037", "title": "", "text": "0 construct were unexpected, because those of ordinary skill in the art believed that the Glu-Ala sequences were required.” Singh’s arguments are not persuasive. First, we disagree with Singh’s argument that the invention of the count represents just two of 9000+ species disclosed in Brake 1. Singh’s calculation of 341 permu tations for (GAXYCX)n is apparently based on an unwarranted assumption that each iteration of the parenthetical sequence is independently chosen. However, as Brake pointed out, because the variable ‘n’ is outside the parentheses, (GAXYCX)n can code for either no amino acids (ie., when n = 0), or 1 to 4 copies of one of four different amino acid sequences (ie., Asp-Pro, Asp-Ala, Glu-Pro, or Glu-Ala). Brake, Paper No. 199 at 20-21 n. 13. Thus, there are at most only seventeen (ie., 4° + 41 + 41 + 4I + 41) permutations of that sequence. Even among those seventeen, however, we agree with Brake that there are only two meaningful embodiments: one in which a dipeptidylamino-peptidase A (DPAP) signal is present (ie., n = 1 to 4), and one in which it is not (ie., n = 0). Moreover, Singh’s calculation of twenty-eight possibilities for the Lys/Arg sequences is artificially inflated because it ignores the disclosure of claim 5 of Brake 1: 5. A DNA construct comprising a sequence of the following formula: L-(R-S-(GAXYCX)n-Gene*)y wherein: L is a leader sequence recognized by yeast for secretion; R and S are codons coding for argi-nine and lysine; X is any nucleotide; Y is guanosine or cytosine; y is an integer of from about 1 to 10; Gene* is a gene foreign to yeast; and n is 0 or 1 to 4. U.S. Application 06/457,325 at 16,11. 20-32. In claim 5, spacer R-S encodes four possible sequences (ie., Lys-Arg, Arg-Arg, Arg-Lys, or Lys-Lys), not 28. Of these four, two permutations, Lys-Arg and Arg-Arg, are within the scope of the count. Singh cites Fujikawa v. Wattanasin, 93 F.3d 1559, 39 USPQ2d 1895 (Fed.Cir.1996), for the proposition that an application disclosing a generic chemical formula must provide adequate direction to those of ordinary skill in" }, { "docid": "23455913", "title": "", "text": "or without the disclosures of other prior art. The decision of the board is AFFIRMED. . Basic background information about molecular biology and genetic engineering, can be found in Alberts, Bray, Lewis, Raff, Roberts & Watson, The Molecular Biology of the Cell, 1-253, 385-481 (1983) [hereinafter The Cell ]; Watson, Hopkins, Roberts, Steitz & Weiner, The Molecular Biology of the Gene, Vol. 1 (4th ed., 1987) 3-502 [hereinafter The Gene]. These standard textbooks were used to supplement the information in the glossary supplied by appellants. The description here is necessarily simplified and omits important facts and concepts that are not necessary for the analysis of this case. . There are twenty amino acids: alanine, valine, leucine, isoleucine, proline, phenylalanine, methionine, tryptophan, glycine, asparagine, gluta-mine, cysteine, serine, threonine, tyrosine, as-partic acid, glutamic acid, lysine, arginine, and histidine. . Proteins are often loosely called peptides, but technically proteins are only the larger peptides with chains of at least 50 amino acids, and more typically hundreds of amino acids. Some proteins consist of several polypeptide chains bound together covalently or noncovalently. The term \"peptide\" is broader than \"protein\" and also includes small chains of amino acids linked by peptide bonds, some as small as two amino acids. Certain small peptides have commercial or medical significance. . Polypeptide chains fold up into complex 3 — dimensional shapes. It is the shape that actually determines many chemical properties of the protein. However, the configuration of a protein molecule is determined by its amino acid sequence. The Cell at 111-12; The Gene at 50-54. . The sugar in DNA is deoxyribose, while the sugar in RNA, infra, is ribose. The sugar and phosphate groups are linked covalently to those of adjacent nucleotides to form the backbone of the long unbranched DNA molecule. The bases project from the chain, and serve as the \"alphabet\" of the genetic code. DNA molecules actually consist of two chains tightly entwined as a double helix. The chains are not identical but instead are complementary: each A on one chain is paired with a T on the other chain, and each C" }, { "docid": "7154731", "title": "", "text": "for the grant of reargument. Accordingly, reargument on this ground will be denied. Point VI: Whether the Claim Language “Polypeptides of the IFN-a type” Includes Mature IFN-a This point is but another example of Schering disagreeing with the reasoning of the Court. After extensively analyzing the intrinsic evidence of the record, the Court concluded that Schering had not described or enabled the production of the mature form of IFN-a protein, i.e., without the leader (also referred to as “signal”) sequence attached. Schering now attempts to argue that when producing the desired polypeptide, the recombinant DNA cells must necessarily produce only the mature form of the protein as the leader sequence would be cleaved on secretion from the cell. Nevertheless, the specification clearly refers to instances where there is a lower affinity between the antibodies directed against human leukocyte interferon and the interferon produced in the transformed E. coli bacterial host cells. See Col. 34, lines 50-58. In the specification, it is speculated that this outcome results because of structural variations in the interferon protein cells produced by the bacteria, including the presence of a signal sequence. See id. In any event, the reason why these transformed bacterial host cells may produce immature interferon proteins is irrelevant. Significantly, the fact that signal sequences are usually eliminated in human leukocyte cells is not dispositive of the issue as to whether Dr. Weissmann must have produced mature interferon proteins from bacterial cells in the ’901 Patent. If “polypeptide of the IFN-a type” were intended to include a mature IFN-a, one would expect to find a supporting disclosure in the application as filed. No such disclosure exists. Indeed, plaintiffs have conceded that none of the five deposits produced a mature interferon protein. “Indeed the specification recognized — as was, in fact, the case — that the interferon produced in E. coli by Dr. Weissmann might differ from natural interferon in that the interferon of the invention included a signal or fusion segment ____” Plaintiffs Opening Markman Brief, D.1.163, at 30. Schering might rejoin that the above-quoted language does not necessarily exclude the presence of" }, { "docid": "21080747", "title": "", "text": "sequences of six or eight amino acids each. Each processing sequence is recognized and excised by an enzyme in the yeast cell to release the four copies of the alpha factor outside of the yeast cell. As a result of this process, four copies of mature alpha-factor protein are secreted from the yeast cell for each precursor protein. Human insulin-like growth factor-I (IGF-I), is a growth-promoting protein that medi ates the effect of human growth hormone. It is undisputed that human IGF-I consists of a specific sequence of seventy amino acids that was published in 1978. See Ernst Rinderknecht and René Humbel, The Amino Acid Sequence of Human Insulin-like Growth Factor I and Its Structural Homology with Proinsulin, 253 J.Biol.Chem. 2769 (1978). Lee and Barr sought to produce mature IGF-I by adapting the Saccharomyces DNA encoding the gene for the precursor protein. Utilizing a DNA construct with only one copy of alpha-factor protein, both Lee and Barr replaced the DNA sequence of the precursor protein encoding alpha factor with a DNA sequence encoding IGF-I. This new DNA construct is then inserted into an expression plasmid, and transformed into a yeast cell. The goal of both Lee and Barr was for such a transformed yeast cell to secrete some form of human IGF-I. In replacing the DNA sequence encoding alpha factor with that encoding IGF-I, Lee, however, added twenty-seven additional nucleotide bases constituting a collagenase cleavage site between the DNA coding for the alpha-factor processing sequences and human IGF-I. When this construct is inserted into a yeast expression plasmid and transformed into a yeast cell, the cell secretes a “fusion protein” or “modified IGF-I” consisting of a collagenase cleavage site at the carboxy terminal of human IGF-I. A. In analyzing Lee’s case for priority, the Board of Patent Appeals and Interferences (Board) rejected Barr’s argument that Lee’s DNA construct fell outside of the scope of the count because when inserted into a plasmid and transformed into a yeast cell, it would cause the yeast cell to produce a fusion protein. The Board held: The interfering subject matter, as defined by count" }, { "docid": "15436046", "title": "", "text": "entitled to the benefit of the Brake 1 application. We have considered Singh’s other arguments and do not find them persuasive. CONCLUSION Because the Board’s decision was supported by substantial evidence and contained no errors of law, the Board did not err in concluding that Singh failed to show (1) that Brake was not entitled to the Brake 1 filing date and (2) that Singh reduced the invention to practice before Brake’s priority date. The Board’s decision to award judgment to Brake is therefore AFFIRMED. . Alpha-factor, also known as alpha-mating factor, is a peptide released by the budding yeast Saccharomyces cerevisiae when a haploid cell is prepared to mate. See Bruce Alberts et al., Molecular Biology of the Cell 722 (3d ed.1994). The yeast cell exports alpha-factor by way of a \"leader sequence,” which is attached to alpha-factor and signals that the peptide is to be exported from the cell. See U.S. Application 06/506,098 at 3, II. 3-5. That sequence is typically removed from alpha-factor upon secretion. See id. at 3, II. 1-3. It is the alpha-factor leader sequence alone that is incorporated into the claimed construct. . A \"codon” is a set of three nucleotides that codes for a particular amino acid. . Actually, this statement is incorrect. The 24-mer sequence that Singh ordered on November 24, 1982, was not identical to the nucleotides of the flanking sequences, but instead included several “preferred codons.” . This point is disputed. Singh has provided no corroboration of his assertion that this notation was actually made on December 21, 1982. Like the other pages of Singh's notebook, this page was not witnessed until 1986, and, even then, there is no proof that the notation existed at the time of the witnessing. . Singh bases that number on the formula \"((R)r-(GAXYCX)n-Gene*)y” disclosed at page 3, line 33, of Brake 1, in which R = CGX or AZZ; r = \"an integer of from 2 to 4, ..., preferably 2”; X = T, G, C, or A; Y = G or C; y = \"an integer of least one and usually not more" }, { "docid": "5736059", "title": "", "text": "application Ser. No. 07/552,719, entitled “Use of Alpha Factor Sequences in Yeast Expression Systems.” The count, which is identical to claim 1 of Brake 2, reads as follows: 1. A DNA construct comprising a sequence of the following formula: 5’ — L—S—Gene * — 3’, where: L encodes a Saccharomyces alpha-factor leader sequence recognized by a yeast host for secretion; S encodes a spacer sequence providing processing signals resulting in the enzymatic processing by said yeast host of a precursor polypeptide encoded by L— S — Gene * into the polypeptide encoded by Gene *, S containing the sequence 5’ — Rx—R2—3’ immediately adjacent to the sequence Gene *, Rj being a codon for lysine or arginine, R2 being [a] codon for arginine, with the proviso that S not contain the sequence 5’ — R3—R4—X—3’, where R3 = R1( R4 = R2, and X encodes a processing signal for dipeptidylamino-peptidaseA; and Gene * encodes a polypeptide foreign to Saccharomyces. Paper No. 164 at 2-3. As indicated by the count, the claimed DNA construct is comprised of three basic components: (1) DNA encoding an alpha-factor “leader sequence” (L) that directs a yeast cell to export the protein attached to it; (2) a spacer (S) containing a first codon R1; that encodes lysine or arginine, followed by a second codon R2, that encodes arginine; and (3) a gene (Gene *) that is foreign to yeast, that encodes a protein of interest. See ’008 patent, col. 2, 11. 11-16, 38^13. The claimed DNA construct is illustrated in the figure below, with shorthand abbreviations of the three components depicted above the three-box diagram: After the DNA construct has been introduced into the yeast cell, e.g., via a plasmid vector, the cell translates the construct, yielding nascent protein (“protein construct”). The sequence of the protein construct, like the DNA encoding it, is divided into three regions: the 83-amino acid sequence of the alpha-factor leader, the Lysine-Arginine or Arginine-Arginine two-amino acid spacer, and the amino acid sequence of the protein of interest (“gene product”). The leader sequence functions to target the protein construct for secretion from" }, { "docid": "15436016", "title": "", "text": "regions: the alpha-factor leader, the spacer sequence including either a lysine-arginine or an arginine-argi-nine two-amino acid block, and the amino acid sequence of the protein of interest (“gene product”). According to the record in this case, the leader sequence functions to target the polypeptide for secretion from the yeast cell. During secretion, the yeast enzyme KEX-2 recognizes the lysine-arginine or arginine-arginine spacer sequence in the polypeptide and cleaves the polypeptide at the junction between the spacer and the gene product. As a result, the desired gene product is released into the extracellular medium, free of the leader and spacer portions of the polypeptide. See Brake, Paper No. 164 at 2. Because the yeast cell exports rather than retains the desired protein, protein purification is considerably simplified. See id. The following is a statement of the facts as set forth in our earlier opinion in this case. Singh v. Brake, 222 F.3d 1362, 55 USPQ2d 1673 (Fed.Cir.2000). As we noted in that opinion, the factual context of Singh’s alleged conception of the claimed DNA construct is based on his statements to the PTO and other record evidence. Absent qualification, the facts set forth here are not disputed by the parties. In the course of Singh’s attempts to design the claimed DNA construct in August 1982, he prepared plasmid p57, a circular DNA molecule containing the alpha-factor leader sequence and a spacer sequence directly adjacent to it. See Singh Decl. ¶ 21. During that same month, Singh incorporated the gene for human protein interferon D (“IFN-D”) into p57, thereby yielding plasmid p58. See id. In p58, the gene was also positioned adjacent to the spacer sequence, such that the leader, spacer, and gene sequences were all oriented in a fashion identical to the claimed construct. From September 6 to 11, 1982, Singh’s assistant, Dr. June Lugovoy, isolated the DNA segment from p58 containing the alpha-factor leader, spacer, and IFN-D sequence, and inserted that segment (hereinafter “the p60 DNA construct”) into yeast plasmid YEp9PT (“p60”). See id. ¶ 26. Plasmid p60 was then introduced into yeast cells to determine whether the p60 DNA" }, { "docid": "5736081", "title": "", "text": "Singh failed to prove conception of the subject matter of the count prior to the effective filing date of Brake 2 are unsupported by substantial evidence. Moreover, the Board did not address issues relating to whether the Brake 1 application provides an adequate written description and an enabling disclosure of the subject matter of the count. We therefore VACATE and REMAND. .Alpha-factor, also known as alpha-mating factor, is a peptide released by the budding yeast Saccharomyces cerevisiae when a haploid cell is prepared to mate. See Bruce Alberts, et al., Molecular Biology of the Cell 722 (Garland Publishing, Inc.3d ed.1994). The yeast cell exports alpha-factor by way of a \"leader sequence,” which is attached to alpha-factor and signals that the peptide is to be exported from the cell. See Application Ser. No. 06/506,098, p. 3, 11. 3-5. That sequence is typically removed from alpha-factor upon secretion. See id. at p. 3, 11. 1-3. It is the alpha-factor leader sequence alone that is incorporated into the claimed construct. . A \"codon” is a set of three nucleotides that codes for a particular amino acid. . The factual context of Singh’s alleged conception of the claimed DNA construct is based on his declaration to the PTO and other record evidence. Absent qualification, the facts set forth here are not disputed by the parties. . In \"loop deletion mutagenesis,” one removes undesired DNA sequences by first causing the undesired DNA to \"bulge” (i.e., form a loop) from the circular plasmid that contains it. Loop formation is accomplished by annealing a short, linear piece of \"complementary” DNA to the sequences immediately flanking the undesired sequence. Following loop formation, the undesired DNA is excised by way of an appropriate enzyme that recognizes DNA loops and removes them. A sequence of DNA is \"complementary” to another sequence of DNA when the nucleotides comprising the two sequences follow normal base-pairing rules, i.e., every thymine in one sequence is aligned with a corresponding adenine in the other, and every guanine in one sequence is aligned with a corresponding cytosine in the other. . The Brake 2 patent issued" }, { "docid": "15436038", "title": "", "text": "to 4), and one in which it is not (ie., n = 0). Moreover, Singh’s calculation of twenty-eight possibilities for the Lys/Arg sequences is artificially inflated because it ignores the disclosure of claim 5 of Brake 1: 5. A DNA construct comprising a sequence of the following formula: L-(R-S-(GAXYCX)n-Gene*)y wherein: L is a leader sequence recognized by yeast for secretion; R and S are codons coding for argi-nine and lysine; X is any nucleotide; Y is guanosine or cytosine; y is an integer of from about 1 to 10; Gene* is a gene foreign to yeast; and n is 0 or 1 to 4. U.S. Application 06/457,325 at 16,11. 20-32. In claim 5, spacer R-S encodes four possible sequences (ie., Lys-Arg, Arg-Arg, Arg-Lys, or Lys-Lys), not 28. Of these four, two permutations, Lys-Arg and Arg-Arg, are within the scope of the count. Singh cites Fujikawa v. Wattanasin, 93 F.3d 1559, 39 USPQ2d 1895 (Fed.Cir.1996), for the proposition that an application disclosing a generic chemical formula must provide adequate direction to those of ordinary skill in the art to lead them to a subgenus of the proposed count. We find Singh’s rebanee on Fujikawa to be unsound. In Fujikawa, we held that disclosure of a generic quinoline structure with four variable groups, each of which could be independently chosen from a list of functional groups, provided insufficient written description support for a count directed to a subgeneric structure having a single combination of the four groups. Id. at 1569-71, 39 USPQ2d at 1904-05. However, Brake l’s formula does not present the same issue as did the quinoline in Fujikawa. First, replacing a functional group on a chemical compound can often have highly unpredictable results. We noted in Fujikawa that even a change as seemingly trivial as replacing an isopropyl group with the isosteric cyclopropyl group at issue in that case could result in either a significant improvement or reduction in the activity of the compound against a particular biological target. Id. In the present case, on the other hand, as mentioned above, there are only two subgenera that are biologically relevant:" }, { "docid": "5736062", "title": "", "text": "From September 6 to 11, 1982, Singh’s assistant, Dr. June Lugovoy, isolated the DNA segment from p58 containing the alpha-factor leader, spacer, and IFN-D sequence, and inserted that segment (hereinafter “the p60 DNA construct”) into yeast plasmid YEp9PT (“p60”). See id. ¶26. Plasmid p60 was then introduced into yeast cells to determine whether the p60 DNA construct would generate IFN-D. See id. ¶ 27. On October 1, 1982, protein sequencing chemist Bill Kohr informed Singh that the IFN-D expressed by yeast cells transformed with p60 contained eight additional amino acids not normally present in natural IFN-D. See id. ¶33. On approximately that same date, Singh alleges that he conceived the claimed DNA construct, i.e., he devised a plan to redesign the p60 DNA construct in order to obtain the desired gene product, IFN-D, free of those additional amino acids. See id. ¶ 34. Specifically, Singh claims that he realized that he would need to remove eight unwanted codons (twenty-four nucleotides) from the p60 DNA construct, and that he planned to accomplish this deletion by use of a technique known as “loop deletion mutagenes-is.” On November 24, 1982, Singh wrote a laboratory notebook entry setting forth the undesired eight codons in the p60 DNA construct, as well as the twelve nucleotides on either side of that eight codon segment (the “flanking sequences”). See J.A. at 1380; Singh Deck ¶ 45. On that date, Singh also ordered a linear, 24-nucleotide sequence (a “24-mer”) that comprised the nucleotides of the flanking sequences. This order was canceled on the same day, and a notation in Singh’s laboratory notebook stated that Singh would perform the deletion experiment in a different way “without changing codons.” Id. On December 1, 1982, Singh ordered another 24-mer for the deletion experiment. This 24-mer was precisely complementary to the flanking sequences set forth in the November 24 entry. See J.A. at 1398; Singh Decl. ¶ 47. DNA chemist Peter Ng testified that he synthesized the 24-mer for Singh on December 20, 1982. See Ng Deck ¶ 11; Ng Dep. at 36. Singh affixed the order into his notebook on December" }, { "docid": "7154730", "title": "", "text": "Court explained in its Markman Opinion, as of the ’901 Patent application date, those skilled in the art believed IFN-a did not cover more than one subspecies of alpha interferon protein. It necessarily follows that IFN-a type did not cover more than one subspecies. In addition, the Court observed that the only claim term in the patent is “IFN-a type,” not “IFN-a.” The Court concluded that the claim term IFN-a by itself was absent because Schering was unable to produce the mature form of the IFN-a protein. Thus, the Court did not construe these two claim terms equivalently because it found that the use of the word “type” after IFN-a signified, to one skilled in the art reading the patent, that only an immature, fused and/or incomplete form of IFN-a had been made and used. The most that can be said for Sehering’s position is that it disagrees with the Court’s reading, use and interpretation of the prosecution history. Disagreement with the reasoning of the Court as has been previously rehearsed is not a basis for the grant of reargument. Accordingly, reargument on this ground will be denied. Point VI: Whether the Claim Language “Polypeptides of the IFN-a type” Includes Mature IFN-a This point is but another example of Schering disagreeing with the reasoning of the Court. After extensively analyzing the intrinsic evidence of the record, the Court concluded that Schering had not described or enabled the production of the mature form of IFN-a protein, i.e., without the leader (also referred to as “signal”) sequence attached. Schering now attempts to argue that when producing the desired polypeptide, the recombinant DNA cells must necessarily produce only the mature form of the protein as the leader sequence would be cleaved on secretion from the cell. Nevertheless, the specification clearly refers to instances where there is a lower affinity between the antibodies directed against human leukocyte interferon and the interferon produced in the transformed E. coli bacterial host cells. See Col. 34, lines 50-58. In the specification, it is speculated that this outcome results because of structural variations in the interferon protein cells" }, { "docid": "11004524", "title": "", "text": "could be obtained for therapeutic use only by extracting it from the pituitary glands of human cadavers. Known recombinant DNA methods for producing hGH were deficient; they yielded not only the amino acid sequence of the protein, but also a “leader sequence” of additional amino acids at the beginning of the protein. In the natural synthesis of hGH, the leader sequence enables the protein to emerge from a pituitary cell after expression; the leader is then enzymatically removed. When the product is recombinantly expressed in a bacterial host, however, the leader is not removed and it renders the resulting product biologically inactive. The invention claimed in the ’980 patent solved this problem by providing a method for directly expressing a human growth hormone expression product without a leader sequence. The inventors started with com plementary DNA (“cDNA”) encoding hGH and its leader sequence, and cleaved the cDNA encoding the leader sequence along with a portion of the codons encoding hGH to obtain a cDNA fragment containing hGH codons 24-191. Next, they synthesized a DNA fragment corresponding to the 28 missing codons plus a “start” codon, and fused that DNA fragment to the cDNA fragment. They inserted the resulting semi-synthetic gene into bacterial cells, which directly expressed a 192-amino acid product, met-hGH, consisting of the hGH molecule and one additional amino acid, methionine (“met”), coded for by the start codon. Met-hGH has essentially the same biological activity as the natural hormone, hGH. The ’980 patent teaches that the amino acid, methionine, may be cleaved intracellularly in the bacterial host to produce a product that is identical to the natural hormone. Genentech sells met-hGH and hGH under the trademarks Protropin® and Humatrope®, respectively. The second patent in suit, U.S. Patent 4,342,832, also assigned to Genentech, contains essentially the same disclosure as the ’980 patent. The ’832 patent claims, however, are directed to a method for constructing a replicable cloning vehicle {e.g., a plasmid) capable, in a microbial organism, of expressing a particular polypeptide {e.g., human growth hormone). Like Genentech, BTG manufactures hGH by recombinant DNA techniques using a plasmid that contains a" }, { "docid": "15436017", "title": "", "text": "based on his statements to the PTO and other record evidence. Absent qualification, the facts set forth here are not disputed by the parties. In the course of Singh’s attempts to design the claimed DNA construct in August 1982, he prepared plasmid p57, a circular DNA molecule containing the alpha-factor leader sequence and a spacer sequence directly adjacent to it. See Singh Decl. ¶ 21. During that same month, Singh incorporated the gene for human protein interferon D (“IFN-D”) into p57, thereby yielding plasmid p58. See id. In p58, the gene was also positioned adjacent to the spacer sequence, such that the leader, spacer, and gene sequences were all oriented in a fashion identical to the claimed construct. From September 6 to 11, 1982, Singh’s assistant, Dr. June Lugovoy, isolated the DNA segment from p58 containing the alpha-factor leader, spacer, and IFN-D sequence, and inserted that segment (hereinafter “the p60 DNA construct”) into yeast plasmid YEp9PT (“p60”). See id. ¶ 26. Plasmid p60 was then introduced into yeast cells to determine whether the p60 DNA construct would generate IFN-D. See id. ¶ 27. On October 1, 1982, protein sequencing chemist Bill Kohr informed Singh that the IFN-D expressed by yeast cells transformed with p60 contained eight additional amino acids not normally present in natural IFN-D. See id. ¶ 33. On approximately that same date, Singh alleges that he conceived the claimed DNA construct, i.e., he devised a plan to redesign the p60 DNA construct in order to obtain the desired gene product, IFN-D, free of those additional amino acids. See id. ¶ 34. Specifically, Singh claims that he realized that he would need to remove eight unwanted codons (twenty-four nucleotides) from the p60 DNA construct, and that he planned to accomplish this deletion by use of a technique known as “loop deletion mutagen-esis.” On November 24, 1982, Singh \"wrote a laboratory notebook entry setting forth the undesired eight codons in the p60 DNA construct, as well as the twelve nucleotides on either side of that eight codon segment (the “flanking sequences”). See Singh Decl. ¶ 45. On that date, Singh" }, { "docid": "23455914", "title": "", "text": "covalently or noncovalently. The term \"peptide\" is broader than \"protein\" and also includes small chains of amino acids linked by peptide bonds, some as small as two amino acids. Certain small peptides have commercial or medical significance. . Polypeptide chains fold up into complex 3 — dimensional shapes. It is the shape that actually determines many chemical properties of the protein. However, the configuration of a protein molecule is determined by its amino acid sequence. The Cell at 111-12; The Gene at 50-54. . The sugar in DNA is deoxyribose, while the sugar in RNA, infra, is ribose. The sugar and phosphate groups are linked covalently to those of adjacent nucleotides to form the backbone of the long unbranched DNA molecule. The bases project from the chain, and serve as the \"alphabet\" of the genetic code. DNA molecules actually consist of two chains tightly entwined as a double helix. The chains are not identical but instead are complementary: each A on one chain is paired with a T on the other chain, and each C has a corresponding G. The chains are held together by noncovalent bonds between these complementary bases. This double helical structure plays an essential role in the replication of DNA and the transmission of genetic information. See generally The Cell at 98-106; The Gene at 65-79. However, the information of only one strand is used for directing protein synthesis, and it is not necessary to discuss the implication of the double-stranded structure of DNA here. RNA molecules, infra, are single stranded. . Chromosomes also contain regions of DNA that are not part of genes, i.e., do not code for the sequence of amino acids in proteins. These include sections of DNA adjacent to genes that are involved in the control of transcription, infra, and regions of unknown function. . See The Cell at 185-194; The Gene at 208-10. . Polisky, Bishop & Gelfand, A plasmid cloning vehicle allowing regulated expression of euka-ryotic DNA in bacteria, 73 Proc.Nat’l Acad.Sci. USA 3900 (1976). . The promoter is a sequence of nucleotides where the enzyme that synthesizes RNA, RNA" }, { "docid": "5736058", "title": "", "text": "Opinion for the court filed by Circuit Judge LOURIE. Opinion concurring in the judgment filed by Circuit Judge GAJARSA. LOURIE, Circuit Judge. Arjun Singh appeals from the judgment of the United States Patent and Trademark Office Board of Patent Appeals and Interferences awarding priority of invention to Anthony J. Brake. See Singh v. Brake, Paper No. 164 (BPAI May 11, 1998). Because certain of the Board’s key findings underlying its conclusion that Singh failed to prove conception of the subject matter of the interference prior to the effective filing date of Brake were unsupported by substantial evidence, we vacate and remand. Because the Board did not address whether Brake’s earliest application adequately described and enabled the disputed subject matter as required by 35 U.S.C. § 112, ¶ 1, we remand for determination of those issues as well. BACKGROUND Singh and Brake are parties to an interference consisting of a count corresponding to all thirty-seven claims of Brake’s U.S. Patent 4,870,008 (hereinafter “Brake 2”), entitled “Secretory Expression in Eu-karyotes,” and claims 8 and 19-21 of Singh’s application Ser. No. 07/552,719, entitled “Use of Alpha Factor Sequences in Yeast Expression Systems.” The count, which is identical to claim 1 of Brake 2, reads as follows: 1. A DNA construct comprising a sequence of the following formula: 5’ — L—S—Gene * — 3’, where: L encodes a Saccharomyces alpha-factor leader sequence recognized by a yeast host for secretion; S encodes a spacer sequence providing processing signals resulting in the enzymatic processing by said yeast host of a precursor polypeptide encoded by L— S — Gene * into the polypeptide encoded by Gene *, S containing the sequence 5’ — Rx—R2—3’ immediately adjacent to the sequence Gene *, Rj being a codon for lysine or arginine, R2 being [a] codon for arginine, with the proviso that S not contain the sequence 5’ — R3—R4—X—3’, where R3 = R1( R4 = R2, and X encodes a processing signal for dipeptidylamino-peptidaseA; and Gene * encodes a polypeptide foreign to Saccharomyces. Paper No. 164 at 2-3. As indicated by the count, the claimed DNA construct is comprised" }, { "docid": "15436018", "title": "", "text": "construct would generate IFN-D. See id. ¶ 27. On October 1, 1982, protein sequencing chemist Bill Kohr informed Singh that the IFN-D expressed by yeast cells transformed with p60 contained eight additional amino acids not normally present in natural IFN-D. See id. ¶ 33. On approximately that same date, Singh alleges that he conceived the claimed DNA construct, i.e., he devised a plan to redesign the p60 DNA construct in order to obtain the desired gene product, IFN-D, free of those additional amino acids. See id. ¶ 34. Specifically, Singh claims that he realized that he would need to remove eight unwanted codons (twenty-four nucleotides) from the p60 DNA construct, and that he planned to accomplish this deletion by use of a technique known as “loop deletion mutagen-esis.” On November 24, 1982, Singh \"wrote a laboratory notebook entry setting forth the undesired eight codons in the p60 DNA construct, as well as the twelve nucleotides on either side of that eight codon segment (the “flanking sequences”). See Singh Decl. ¶ 45. On that date, Singh also ordered a linear, 24-nucleotide sequence (a “24-mer”) that comprised the nucleotides of the flanking sequences. This order was canceled on the same day, and a notation in Singh’s laboratory notebook stated that Singh would perform the deletion experiment in a different way “without changing codons.” Id. On December 1, 1982, Singh ordered another 24-mer for the deletion experiment. This 24-mer was precisely complementary to the flanking sequences set forth in the November 24 entry. See Singh Decl. ¶ 47. DNA chemist Peter Ng testified that he synthesized the 24-mer for Singh on December 20, 1982. See Ng Decl. ¶ 11; Ng Dep. at 36. Singh affixed the order into his notebook on December 21, 1982, with a notation “oligonucleotide for making in-frame deletion of alpha pro-IFN-D junction.” Singh alleges that these facts corroborate his testimony that he conceived the claimed DNA construct before January 12, 1983, the filing date of Brake 1. Id. at 1364-65, 222 F.3d 1362, 55 USPQ2d at 1674-75 (footnote omitted). At the final hearing on May 11, 1998, Singh sought:" } ]
63375
adequate protection, In re San dem-ente Estates, 5 B.R. 605, 610 (Bankr.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980), and that a sufficient equity cushion can exist although not a single mortgage payment has been made. In re Curtis, supra, at 111. A 15% to 20% equity cushion has been held to be sufficient to provide adequate protection to a creditor even though the debtors have no equity in the property, In re Rogers Development Corp., 2 B.R. 679, 685 (Bankr.E.D.Va.1980) but a 17% to 18% cushion has been held not to offer adequate protection where the cushion was being rapidly eroded by the daily accrual of interest on the debt. In re Schaller, 27 B.R. 959 (D.W.D.Wis.1983). See also, REDACTED In re Pitts, 2 B.R. 476, 478 (Bkrtcy.C.D.Cal.1979) [holding a 15% cushion is “minimal”]; In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) [holding a 7% equity cushion will rarely provide sufficient protection], 4. The equity cushion offered in this case is plainly inadequate and continues to deteriorate rapidly. The record shows that the Debtor has made no payment since December, 1982 and that interest continues to accrue as a result. The total amount of money owed by the Debtor to the Bank on its first mortgage, second mortgage and secured small loan combined was $1,181,626.56 on July 18,1984, the last
[ { "docid": "1122370", "title": "", "text": "adequate protection may be provided by- (1) requiring the trustee to make periodic cash payments to such entity, to the extent that the stay under section 362 of this title . . . results in a decrease in the value of such entity’s interest in such property. In the instant case we conclude that the secured creditor, Jay, does have adequate protection of its interest in the property at the present time in that there is an equity cushion of $2,000 in the property. See In re Rogers Development Corporation, 2 B.R. 679 (Bkrtcy.E.D.Va.1980); In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). Further, since the debtors’ plan proposes to pay Jay enough per month to cover the interest on its $20,000 claim, we find that such periodic payments are enough to cover any decrease in the interest of Jay which would be caused by the continuance of the automatic stay. Consequently, we conclude that no grounds have been submitted for granting the relief from the automatic stay which is sought by Jay. Nor do we find that there is any reason to award counsel fees to the debtors’ attorneys as sought in the debtors’ counterclaim. As we noted in In re Ratmansky, 2 B.R. 527 (Bkrtcy.E.D.Pa.1980), the “American rule” holds that no award of attorney’s fees should be made in the absence of a statute granting it and in the absence of bad faith on the part of the other side. No statutory authority is suggested authorizing attorney’s fees under the facts in the case sub judice and no proof has been offered that Jay has acted in bad faith in requesting relief from the automatic stay. Consequently, we will deny the debtors’ request for attorney’s fees. . This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure. .Although, at the trial of this case, only an assignment of the residential mortgage was offered into evidence (since the residence is owned by the debtors while the bar and liquor license are owned by a corporation), it appears that Jay also" } ]
[ { "docid": "9340758", "title": "", "text": "(7% is inadequate); But see, In re Carson, 34 B.R. 502 (D.Ka.1983) (11% is adequate). Case law is divided on whether a cushion of 12% to 20% constitutes adequate protection. In re Shaller, 27 B.R. 959 (W.D.Wisc.1983) (17% to 18% is insufficient); In re Hawaiian Pacific Industries, 17 B.R. 670 (Bankr.D.Ha.1982) (15% is adequate); In re Rodgers Development Corp., 2 B.R. 679 (Bankr.E.D.Va.1980) (17% is adequate); In re Pitts, 2 B.R. 476 (Bankr.C.D.Ca.1979) (15% is adequate). In Rodgers Development the court determined the property securing the creditor’s debt to be worth $750,000 and an equity cushion of $130,000. The court also noted that both expert witnesses who testified were of the opinion that the property would increase in value over time. In Pitts, the second mortgage holder’s cushion was $19,-125 on a $125,000 parcel of property. Although interest was accruing at $1,000 per month, the debtor was making the current payments on the first mortgage, thus creating more equity for the second mortgage holder. The court noted that the cushion was minimal, fragile and precarious. See In re Helionetics, supra., in which the court noted that the debtor’s performance was exceeding all projections, indicating that creditors would eventually receive full payment. See also, In re Carson, in which the court noted that, although the cushion was eroding, the debtors were soon going to turn over $60,000, which represented proceeds from the sale of some of the collateral, to the secured creditor. When a creditor is sufficiently over-secured, it is easy to minimize the effects that time and the unforeseen may have on the collateral. However, when the creditor’s cushion is slim the court must be more concerned about what the future may hold. In this case, Home Federal’s cushion is approximately 14.5% to 16.5%. Interest is accruing at $1,360 per month and real estate taxes are not being paid. The Debtors have been in bankruptcy, of one form or another, for over a year. Yet, they have been operating hand to mouth for the entire time, without making payments to secured creditors. While all parties agree that the property is" }, { "docid": "10178998", "title": "", "text": "protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value" }, { "docid": "17223130", "title": "", "text": "than $189,000, which exceeds the value of the residence ($105,000), their interest ($17,960.06) lacked adequate protection. While the term “adequate protection” is not defined in the Code, 11 U.S.C. § 361 sets forth three non-exclusive examples of what may constitute adequate protection: 1) periodic cash payments equivalent to decrease in value, 2) an additional or replacement lien on other property, or 3) other relief that provides the indubitable equivalent. In re Curtis, 9 B.R. 110, 111-112 (B.Ct.E.D.Penn.1981). The Mellors contend that the sellers are adequately protected by an “equity cushion.” Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. In re San Clemente Estates, 5 B.R. 605, 610 (B.Ct.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (B.Ct.S.D.N.Y.1980); 2 Collier on Bankruptcy, § 361.-02[3] at 361-9; (15th ed. 1979). A sufficient equity cushion has been found to exist although not a single mortgage payment had been made. In re Curtis, 9 B.R. at 111. The bankruptcy court’s conclusion that the sellers’ interest lacked adequate protection was apparently based on its finding that “neither the Debtors nor the Estate have any realizable equity” in the residence. Findings of Fact # 14. However, in equating debtors’ “equity” with “adequate protection” for the sellers, the bankruptcy court erroneously included the junior lien of AKOP, Inc. Although the existence of a junior lien may be relevant in determining “equity” under § 362(d)(2), it cannot be considered in determining whether the interest of a senior lienholder is adequately protected. La Jolla Mortgage Fund, 18 B.R. at 289. The claim of a junior lienholder cannot affect the claim of the holder of a perfected senior interest. See In re Wolford Enterprises, Inc., 11 B.R. 571, 574 (B.Ct.S.D.W.Virg.1981) [rejecting contention that defendant lacked equity due to second deed of trust;" }, { "docid": "1133533", "title": "", "text": "The evolving case law under Code § 362(g)(2) supports the proposition that the property alone may provide a sufficient cushion for a secured creditor so as to justify a continuance of the status quo. Thus, in Rogers Development Corp., 5 B.C.D. 1392, 2 B.R. 679 (Bkrtcy., E.D.Va.1980) the Bankruptcy Court reasoned that a cushion of $130,000 in real estate intended for multi-family dwellings, valued at $750,000, adequately protected the mortgagee. The decision is significant because the debtor could not have satisfied the alternative basis for relief under Code § 362(d)(2) because the debtor had no equity in the property when viewed in the context of all other encumbrances against it. In San Clemente Estates, 6 B.C.D. 838, 5 B.R. 605 (Bkrtcy., S.D.Calif.1980), the Bankruptcy Court held that an equity cushion of 65% was adequate protection for the interest of the secured creditor. In some instances the courts have acceded to the secured creditor’s argument that the original bargain called for an equity cushion and that foreclosure is proper when the cushion is reduced to a minimal value, or disappears. In re Pitts, 2 B.R. 476 at 478 (Bkrtcy., C.D.Cal.1979); In re Tucker, 6 B.C.D. 699, 5 B.R. 180 (Bkrtcy., S.D.N.Y.1980); In re Lake Tahoe Land Co., 6 B.C.D. 262, 5 B.R. 34 (Bkrtey., D.Nev.1980). In the Lake Tahoe case, supra, the court found that a 40% to 50% equity cushion was necessary with respect to vacant land. In this case Empire contended that its established policy with respect to commercial properties was to advance no more than two-thirds of the lesser of the appraised value or purchase price in the sales transaction. Hence, Empire reasoned that this cushion was a fundamental element of its bargain. It should be observed, however, that it does not follow that the concept of adequate protection is designed to put the secured creditor in the same position it was in when it initially negotiated the transaction. Suffice it to say that in this case, the court has found that there is no leverage between Empire’s secured claim and the value of the property. In the" }, { "docid": "2470350", "title": "", "text": "Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) See H.R. Rep.No.95-595, 95th Cong., 1st Sess. 339 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Case law under the Bankruptcy Code has held that adequate protection can be provided by an equity cushion. See In re 5-Leaf Clover Corp., supra; In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980). However, at least one (1) court has recognized that an existing equity cushion can be dissipated and that “[ajdequate protection ... requires, at a minimum, a periodic and careful surveillance of the facts and circumstances calculated to avoid dissipation of whatever protection the cushion affords.” In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). Thus, at some future point, the diminishing equity cushion will no longer provide adequate protection for the secured creditor. No evidence has been presented as to whether the equity cushion is, in fact, diminishing or increasing in this time of spiraling inflation. Based on the present record, it appears that the present equity cushion is sufficient to adequately protect the interest of Trevose. Debtor will, however, be directed to begin making payments to the mortgagee and trustee. Although a debtor may have equity in the collateral, where regular payments are not being made, that equity decreases over a period of time as the accrued interest increases the balance due on the debt and accumulating depreciation, where present, decreases the value of the property. See In re 5-Leaf Clover Corp., 6 B.R. at 467. Accordingly, we conclude that insufficient “cause” has been shown to justify the lifting of the stay and that debtor has an equity in the property. Debtor will be ordered to immediately begin making payments to Trevose so that the equity ratio will be maintained at the appropriate level. Debtor will no longer be permitted to live in the subject premises mortgage free as he has for approximately one and one-half (1 years. If the debtor is unable to make the ordered payments within fifteen (15) days, the automatic stay will, upon certification of counsel for the mortgagee, be lifted to permit mortgage foreclosure. . This Opinion constitutes" }, { "docid": "18727637", "title": "", "text": "re Schaller, 27 B.R. 959 (D.W.D.Wis.1983) (the court held that a cushion of 17 to 18 percent did not offer adequate protection in and of itself where the cushion was being rapidly eroded by the daily accrual of interest on the debt); In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (a 7 percent equity cushion will rarely provide sufficient protection). While the Court which adheres to a fixed percentage figure as establishing the bound of adequate equity cushions offers consistency and reliability in its decisions, most courts realize that equity cushion is only one factor in determining the adequacy of a creditor’s protection. See Huntington National Bank v. A.K. Fiberglastics, Inc., 26 B.R. 549 (Bankr.S.D. Ohio 1983). A creditor’s interest in real property is not being adequately protected where real estate taxes remain unpaid and the property is uninsured. See In re Pittman, 7 B.R. 760 (Bankr.S.D.N.Y.1980). In the present instance, the equity cushion protecting the interest of the Federal Land Bank is a mere 5.7 percent. Property taxes remain unpaid, and land values in the area continue to decrease. The Court cannot find under these circumstances that the creditor’s interest remains protected. Accordingly, and for the reasons stated, IT IS ORDERED: That the Motion filed by the Federal Land Bank of St. Paul requesting relief from the automatic stay imposed under 11 U.S.C. § 362 is granted." }, { "docid": "1134828", "title": "", "text": "upon whether the Court uses the balance due reported by the Debtors or that proffered by Ingersoll-Rand. In either case, the equity provides a small cushion of protection to the Creditor. The Debtors contend that the equity cushion, regardless of its size, provides adequate protection to Ingersoll-Rand pending confirmation of the Debtors’ plans, which will include payments to Ingersoll-Rand as a secured creditor. On the other hand, In-gersoll-Rand argues that although the equity may provide a “cushion,” a creditor’s interests are not adequately protected by a cushion of equity which is rapidly decreasing in amount. It contends that it is entitled to the maintenance of the cushion at a constant level, which can be achieved only by regular payments to it by the Debtors. “Adequate protection” is not defined in 11 U.S.C. § 362, nor is it defined in section 361 of the Bankruptcy Code, which merely offers methods of providing adequate protection. See 11 U.S.C. § 361(2)-(3). The legislative history of section 361 clearly reflects the intent of Congress to give the courts the flexibility to fashion the relief in light of the facts of each case and general equitable principles. H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 339 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Case law under the Bankruptcy Code has held that adequate protection under section 361 can be provided by an equity cushion. See In re Rogers Development Corp., 5 B.C.D. 1392, 2 B.R. 679 (Bkrtcy.E.D.Va.1980); In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). See also In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861 (N.D.Ohio 1976). However, at least one court has recognized that the equity cushion can be dissipated: Adequate protection ... requires, at a minimum, a periodic and careful surveillance of the facts and circumstances calculated to avoid dissipation of whatever protection the cushion affords. [In re Pitts, supra, at 478-79]. Thus, at some point, the diminishing cushion will no longer provide adequate protection for the secured creditor. The Court is in agreement that the equity cushion adequately protects creditors’ interests — up to a point. Equity provides adequate protection so long as" }, { "docid": "18727636", "title": "", "text": "to accrue on that claim where the creditor was given an interest in collateral to secure its claim and that collateral is of a greater value than the creditor’s claim fixed at the commencement of the bankruptcy proceedings. The parties in this matter have agreed that the value of the Federal Land Bank’s collateral amounts to $40,000.00. Accordingly, the Federal Land Bank is entitled under section 506(b) to claim accruing interest. The equity cushion that existed at the time of the hearing was approximately $2,600.00. The Debtors rely upon that cushion as adequate protection for the creditor’s interest in the property. Interest continues to erode the equity at a rate of $330.00 per month so that as of August 1, 1984, the equity was $2,270.00. The Courts have proposed a variety of percentages for determining the adequacy of an equity cushion. See In re Lake Tahoe Land Co., Inc., 5 B.R. 34 (Bankr.D.Nev.1980) (in cases involving real estate a cushion of 40 to 50 percent is required to provide adequate protection to a lender); In re Schaller, 27 B.R. 959 (D.W.D.Wis.1983) (the court held that a cushion of 17 to 18 percent did not offer adequate protection in and of itself where the cushion was being rapidly eroded by the daily accrual of interest on the debt); In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (a 7 percent equity cushion will rarely provide sufficient protection). While the Court which adheres to a fixed percentage figure as establishing the bound of adequate equity cushions offers consistency and reliability in its decisions, most courts realize that equity cushion is only one factor in determining the adequacy of a creditor’s protection. See Huntington National Bank v. A.K. Fiberglastics, Inc., 26 B.R. 549 (Bankr.S.D. Ohio 1983). A creditor’s interest in real property is not being adequately protected where real estate taxes remain unpaid and the property is uninsured. See In re Pittman, 7 B.R. 760 (Bankr.S.D.N.Y.1980). In the present instance, the equity cushion protecting the interest of the Federal Land Bank is a mere 5.7 percent. Property taxes remain unpaid, and land values in the" }, { "docid": "22125211", "title": "", "text": "required under the plan and to furnish operating capital and to permit the performance of repairs and rehabilitation of the premises in question. DISCUSSION Adequate Protection In those cases where there existed a so-called equity cushion, in that the value of the collateral exceeded the amount of the secured claim, it has been held that such equity cushion alone may suffice for the purpose of adequately protecting a secured claim holder during the period in which the automatic stay under 11 U.S.C. § 362 continued in effect. In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979); In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980); In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838, 2 C.B.C.2d 1003 (Bkrtcy.S.D.Cal.1980); In re Shockley Forest Industries, Inc., 5 B.R. 160, 6 B.C.D. 642, 2 C.B.C.2d 756 (Bkrtcy.M.D.Ga.1980). However, the absence of an equity cushion need not be fatal. Obviously if a debtor were able to obtain a surety bond for the protection of a secured claim and in an amount substantially in excess of the claim, the secured claimant would be hard pressed to assert that it was not adequately protected, notwithstanding the absence of an equity cushion. In such circumstances, even though the debtor could not then establish that an effective reorganization was likely, the debtor would be permitted a limited time in which to attempt to effect rehabilitation since the secured claimant would be adequately protected during that period and would not stand to lose any portion of its secured interest; the surety bond would compensate the creditor for any loss. The debtor’s concept of adequate protection is not as expansive or as extreme as the above illustration. The debtor confines its offer of adequate protection to the extent that this term is described in 11 U.S.C. § 361, namely protection against “a decrease in the value” of the creditor’s interest in the secured property. The debtor reasons that as long as it comes up with sufficient funds to repair and maintain the apartment house complex and sustains or enhances the physical status quo it should be allowed" }, { "docid": "10178999", "title": "", "text": "re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value figure, is only the court’s best estimate and, as an estimate, requires a margin for error. In re Lemay, 18 B.R. 659, 661 (Bankr.D.Mass.1982). To the extent there is a slim equity cushion which is eroding rapidly, the interests of the secured creditor may not be adequately protected. See Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Jug End in the Berkshires, Inc. In the instant case, the equity cushion is a slim 8.9%. The cushion will diminsh rapidly, at a rate of approximately $120,000 per month plus the imposition of a tax lien for for the 1987 real estate taxes of $447,762.50, which will become due not later than March 31, 1987. Thus, in three months, which is the time period which will elapse before the hotel can be rescheduled for foreclosure sale, the $1,800,000 cushion will be eroded by more than $800,000. With proper deference for a margin of error in valuation, this cushion does not provide adequate protection. In addition, when the claims of secured creditors are" }, { "docid": "9340757", "title": "", "text": "20% or more constitutes adequate protection. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Ca.1980) (65% is adequate); In re Nashua Trust Co., 73 B.R. 423 (Bankr.D.N.J.1987) (50% is adequate); In re Ritz Theatres, supra. (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 (Bankr.D.N.J.1986) (30% is adequate); In re Helionetics, 70 B.R. 433 (Bankr.C.D.Ca.1987) (20.4% is adequate); and, In re Mellor, supra, (20% is adequate); But see, In re Lee, 11 B.R. 84 (Bankr.E.D.Pa.1981) (41% requires payment of current interest). Case law has almost as uniformly held that an equity cushion under 11% is insufficient to constitute adequate protection. Ukrainian Savings and Loan Assoc. v. The Trident Corp., 22 B.R. 491 (E.D.Pa.1982) (10% is inadequate); In re McGowan, 6 B.R. 241 (Bankr.E.D.Pa.1980) (10% is inadequate); In re Liona Corp., N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987) (8.9% inadequate); In re Jug End in the Berkshires, Inc., 46 B.R. 892 (Bankr.D.Mass.1985) (8.6% insufficient); In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (Bankr.S.D.Ca.1980) (8.6% is insufficient); and, In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (7% is inadequate); But see, In re Carson, 34 B.R. 502 (D.Ka.1983) (11% is adequate). Case law is divided on whether a cushion of 12% to 20% constitutes adequate protection. In re Shaller, 27 B.R. 959 (W.D.Wisc.1983) (17% to 18% is insufficient); In re Hawaiian Pacific Industries, 17 B.R. 670 (Bankr.D.Ha.1982) (15% is adequate); In re Rodgers Development Corp., 2 B.R. 679 (Bankr.E.D.Va.1980) (17% is adequate); In re Pitts, 2 B.R. 476 (Bankr.C.D.Ca.1979) (15% is adequate). In Rodgers Development the court determined the property securing the creditor’s debt to be worth $750,000 and an equity cushion of $130,000. The court also noted that both expert witnesses who testified were of the opinion that the property would increase in value over time. In Pitts, the second mortgage holder’s cushion was $19,-125 on a $125,000 parcel of property. Although interest was accruing at $1,000 per month, the debtor was making the current payments on the first mortgage, thus creating more equity for the second mortgage holder. The court noted that the cushion was minimal, fragile and precarious." }, { "docid": "9340756", "title": "", "text": "his economic house in order. In re Coors of the Cumberland, Inc., 19 B.R. 313 (Bahkr.M.D.Tenn.1982); LaJolla Mortgage Fund v. Rancho El Cajon Assoc., 18 B.R. 283 (Bankr.S.D.Ca.1982). As a countervailing policy, Section 361 of the Code was included to protect the interests of secured creditors during the pendency of bankruptcy. In re Timbers of Inwood Forest Assoc., Ltd., 793 F.2d 1380 (5th Cir.1986), on rehearing, 808 F.2d 363 (1987), cert. gr., — U.S. —, 107 S.Ct. 2459, 95 L.Ed.2d 868 (1987); In re Briggs Transportation Co., 780 F.2d 1339 (8th Cir.1985); In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984). Case law has established that the existence of an equity cushion may, in and of itself, constitute adequate protection for an over-secured creditor. In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Ritz Theatres, Inc., 68 B.R. 256 (Bankr.M.D.Fla.1987). Whether an equity cushion does constitute adequate protection is determined on a case-by-case basis. In re Tucker, 5 B.R. 180 (Bankr.S.D.N.Y.1980). Case law has almost uniformly held that an equity cushion of 20% or more constitutes adequate protection. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Ca.1980) (65% is adequate); In re Nashua Trust Co., 73 B.R. 423 (Bankr.D.N.J.1987) (50% is adequate); In re Ritz Theatres, supra. (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 (Bankr.D.N.J.1986) (30% is adequate); In re Helionetics, 70 B.R. 433 (Bankr.C.D.Ca.1987) (20.4% is adequate); and, In re Mellor, supra, (20% is adequate); But see, In re Lee, 11 B.R. 84 (Bankr.E.D.Pa.1981) (41% requires payment of current interest). Case law has almost as uniformly held that an equity cushion under 11% is insufficient to constitute adequate protection. Ukrainian Savings and Loan Assoc. v. The Trident Corp., 22 B.R. 491 (E.D.Pa.1982) (10% is inadequate); In re McGowan, 6 B.R. 241 (Bankr.E.D.Pa.1980) (10% is inadequate); In re Liona Corp., N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987) (8.9% inadequate); In re Jug End in the Berkshires, Inc., 46 B.R. 892 (Bankr.D.Mass.1985) (8.6% insufficient); In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (Bankr.S.D.Ca.1980) (8.6% is insufficient); and, In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982)" }, { "docid": "2470349", "title": "", "text": "the property. We conclude that the debtor’s admissions that he has failed to make all monthly payments to the mortgagee and the trustee cannot, standing alone, constitute “cause” to warrant the lifting of the stay. The failure of Trevose to present even a scintilla of evidence mandates the continuance of the stay. Even if we were to assume that Trevose has presented a prima facie showing of “cause”, we conclude that debtor has met his burden of proving that the interest of Trevose is adequately protected. See § 362(g). The debtor testified that, in his opinion the value of the subject property was $18,000 and that the debt owing to Trevose was $10,600. Based on this uncontradicted testimony, debtor has an equity in the property of approximately $7,400. “Adequate protection” is not defined in the Bankruptcy Code. The legislative history of section 361 clearly reflects the intent of Congress to give the courts the flexibility to fashion the relief in light of the facts of each case and general equitable principles. In re 5-Leaf Clover Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) See H.R. Rep.No.95-595, 95th Cong., 1st Sess. 339 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Case law under the Bankruptcy Code has held that adequate protection can be provided by an equity cushion. See In re 5-Leaf Clover Corp., supra; In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980). However, at least one (1) court has recognized that an existing equity cushion can be dissipated and that “[ajdequate protection ... requires, at a minimum, a periodic and careful surveillance of the facts and circumstances calculated to avoid dissipation of whatever protection the cushion affords.” In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). Thus, at some future point, the diminishing equity cushion will no longer provide adequate protection for the secured creditor. No evidence has been presented as to whether the equity cushion is, in fact, diminishing or increasing in this time of spiraling inflation. Based on the present record, it appears that the present equity cushion is sufficient to adequately protect the interest of Trevose. Debtor will," }, { "docid": "2178968", "title": "", "text": "repaired. See, e.g., In re Tucker, 5 B.R. 180, 6 B.C.D. 699, 2 C.B.C.2d 535, CCH ¶ 67955 (Bkrtcy.S.D.N.Y.1980); In re Monroe Park, 17 B.R. 934, 6 C.B.C.2d 139 (U.S.D.C.Del.1982); In re Alyucan Interstate Corp., supra. The primary, and often determinative factor, is the existence of an adequate equity cushion. Most courts find that a creditor’s interest is adequately protected if the value of its security exceeds the amount of its claim by a “sufficient” amount. What is a “sufficient” cushion has been the subject of much litigation and evades a definitive formula as much as “adequate protection” does. See, e.g., In re Hawaiian Pac. Industries, 17 B.R. 670 (Bkrtcy.D.Hawaii 1982) where the court found without explication that a 15% equity cushion in real estate was sufficient; In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838, 2 C.B.C.2d 1003 (Bkrtcy.S.D.Cal.1980) where the court found a 65% cushion sufficient; In re Schlichter, 22 B.R. 666 (Bkrtcy.E.D.Pa.1982) where $150,000.00 equity in $1,250,000.00 of real estate was found sufficient; Ukranian Sav. and Loan Ass’n v. Trident Corp., 22 B.R. 491 (U.S.D.C.E.D.Pa.1982) where $30,-000.00 equity in $280,000.00 of real estate was found insufficient; In re LeMay, 18 B.R. 659 (Bkrtcy.D.Mass.1982) where a 7% cushion was found inadequate. The emerging view, however, is that an otherwise sufficient cushion may not adequately protect the creditor if the cushion is being eroded by accruing interest and/or depreciation. In In re 5-Leaf Clover Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) the court required the debtor to maintain the equity cushion and forestall the erosion with a $35,000.00 interest payment. See also In re Rogers Dev. Corp., 2 B.R. 679, 5 B.C.D. 1392, 1 C.B.C.2d 499, CCH ¶ 67627 (Bkrtcy.E.D.Va.1980). In In re Monroe Park, supra, the court granted relief from stay based on an eroding equity cushion. In In re Pitts, 2 B.R. 476, 5 B.C.D. 1129, 1 C.B.C.2d 241 (Bkrtcy.C.D.Cal.1979), the court found an eroding $19,000.00 cushion on security worth $125,000.00 inadequate, but it continued the hearing to determine if the debtor could maintain and avoid further dissipation of the cushion. The Court finds in the case" }, { "docid": "2178969", "title": "", "text": "Corp., 22 B.R. 491 (U.S.D.C.E.D.Pa.1982) where $30,-000.00 equity in $280,000.00 of real estate was found insufficient; In re LeMay, 18 B.R. 659 (Bkrtcy.D.Mass.1982) where a 7% cushion was found inadequate. The emerging view, however, is that an otherwise sufficient cushion may not adequately protect the creditor if the cushion is being eroded by accruing interest and/or depreciation. In In re 5-Leaf Clover Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) the court required the debtor to maintain the equity cushion and forestall the erosion with a $35,000.00 interest payment. See also In re Rogers Dev. Corp., 2 B.R. 679, 5 B.C.D. 1392, 1 C.B.C.2d 499, CCH ¶ 67627 (Bkrtcy.E.D.Va.1980). In In re Monroe Park, supra, the court granted relief from stay based on an eroding equity cushion. In In re Pitts, 2 B.R. 476, 5 B.C.D. 1129, 1 C.B.C.2d 241 (Bkrtcy.C.D.Cal.1979), the court found an eroding $19,000.00 cushion on security worth $125,000.00 inadequate, but it continued the hearing to determine if the debtor could maintain and avoid further dissipation of the cushion. The Court finds in the case at bar that FLB’s security, worth $1,328,600.00, is protected by an equity cushion of $138,-600.00 or 11%. If the worse should happen, and FLB foreclosed on the property in the coming months, FLB would be completely protected. It could recover its secured claim, including postpetition interest, allowable attorney fees and reasonable costs. Although the cushion is eroding by almost $11,000.00 per month in accuring interest, it would be a year before the cushion would expire and before FLB would be in danger of becoming undersecured. Furthermore, it could be longer than a year. The debtors will soon tender to FLB the net proceeds of a $60,000.00 sale of a 30-acre tract; and they are diligently trying to sell other tracts unnecessary to their plan of reorganization, in further reduction of their debt to FLB. The Court hesitates to pull the rug from under the debtors at this stage of the proceeding, particularly since FLB will be oversecured for at least another year. These Chapter 11 debtors ought to have the opportunity to reorganize so that" }, { "docid": "10179000", "title": "", "text": "figure, is only the court’s best estimate and, as an estimate, requires a margin for error. In re Lemay, 18 B.R. 659, 661 (Bankr.D.Mass.1982). To the extent there is a slim equity cushion which is eroding rapidly, the interests of the secured creditor may not be adequately protected. See Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Jug End in the Berkshires, Inc. In the instant case, the equity cushion is a slim 8.9%. The cushion will diminsh rapidly, at a rate of approximately $120,000 per month plus the imposition of a tax lien for for the 1987 real estate taxes of $447,762.50, which will become due not later than March 31, 1987. Thus, in three months, which is the time period which will elapse before the hotel can be rescheduled for foreclosure sale, the $1,800,000 cushion will be eroded by more than $800,000. With proper deference for a margin of error in valuation, this cushion does not provide adequate protection. In addition, when the claims of secured creditors are to be paid by liquidating the collateral, the interest of those creditors may not be adequately protected if there is no likelihood of liquidation in the near future. In re Grundstrom; In re Lemay. Indeed, a key premise of the valuation opinion of the debtor’s expert, whose testimony I have credited in part, is that the property could be both marketed adequately and sold promptly. However, PCH Associates has been unable or unwilling to sell the hotel since it filed for bankruptcy in November 1984. Liona offered no evidence to provide any assurance that it will achieve any greater success. The degree of protection afforded by an equity cushion must be determined upon supposition as to the future, with a view from the known probing the unknown. By virtue of § 362(g)(2), it is the defendant-debtor who has the burden of divining the future and proving the proffered protection adequate. In re Tucker, 5 B.R. at 183. For these reasons, the small equity cushion which is rapidly eroding without a prospect for a reasonably prompt" }, { "docid": "1134829", "title": "", "text": "flexibility to fashion the relief in light of the facts of each case and general equitable principles. H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 339 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Case law under the Bankruptcy Code has held that adequate protection under section 361 can be provided by an equity cushion. See In re Rogers Development Corp., 5 B.C.D. 1392, 2 B.R. 679 (Bkrtcy.E.D.Va.1980); In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). See also In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861 (N.D.Ohio 1976). However, at least one court has recognized that the equity cushion can be dissipated: Adequate protection ... requires, at a minimum, a periodic and careful surveillance of the facts and circumstances calculated to avoid dissipation of whatever protection the cushion affords. [In re Pitts, supra, at 478-79]. Thus, at some point, the diminishing cushion will no longer provide adequate protection for the secured creditor. The Court is in agreement that the equity cushion adequately protects creditors’ interests — up to a point. Equity provides adequate protection so long as the creditor may foreclose upon the collateral and realize an amount sufficient to fully cover the balance due on the debt. This does not mean, however, that the creditor must wait until there is no equity before it is entitled to a lifting of the stay to foreclose on the property. Although a debtor may have equity in the collateral, where regular payments are not being made that equity decreases over a period of time as the accrued interest increases the balance due on the debt and accumulating depreciation decreases the value of the property. In this circumstance, the equity decreases at a rate determined by combining the interest and depreciation rates. Thus, the equity reaches zero at the point in time at which the debt balance and the market value converge, or are equal. Conversely, the equity ratio can be kept constant by payment of both the interest and depreciation to the creditor. The U.C.C. dictates a rule of commercial reasonableness in disposition of collateral to satisfy a debt. W.Va.Code § 46-9-504(3) (Cum.Supp.1980). The" }, { "docid": "18801086", "title": "", "text": "relief, other than entitling such entity to compensation allowable under section 503(b)(1) of this title as an administrative expense, as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property. Since Debtors in the present case have offered periodic cash payments to the Bank as adequate protection of its interest, only the necessity and sufficiency of these payments will be discussed. The Court has previously determined that the value of the Shriver’s 100 acre farm for present purposes is somewhere between $225,000.00 and $275,000.00. The claim of the Bank including principal, accrued interest, and advanced insurance payments was $219,324.85 at trial. Furthermore, the costs of foreclosure and sale, including brokerage, escrow, and title costs, should also be taken into consideration. Harleysville National Bank and Trust Co. v. Kaufman (In re Kaufman), 24 B.R. 498 (Bkrtcy.E.D.Pa.1982). The Bank then, for present purposes, seems fully secured with only a slight to moderate equity cushion protecting its claim. In evaluating the Debtors’ offer of $2,000.00 per month in periodic cash payments to protect the Bank’s interest the Court recognizes that certain courts have held such equity cushions alone may suffice for purposes of adequately protecting a secured claim holder during the period of the automatic stay of § 362. See e.g. Vlahos v. Pitts (In re Pitts), 2 B.R. 476 (Bkrtcy.C.D.Cal.1979); Heritage Savings & Loan Association v. Rogers Development Corp. (In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980). The equity in this case, given the imprecision of the Court’s valuation of the property, may be relatively small or even nonexistent. Given the validity of this approach then, the Court finds insufficient equity to adequately protect the Bank. The Debtors, however, have offered more than any hypothetical equity cushion to protect the Bank’s interest in the property. The $2,000.00 per month offered by Debtors, according to their loan officer, would be more than sufficient to give the Bank current debt service under its contract, exclusive of taxes and insurance. The collateral for the debt, the Shriver farm, is relatively stable in" }, { "docid": "17223132", "title": "", "text": "creditor failed to acknowledge that first deed has priority and that value of property was sufficient to satisfy that lien]; In re Breuer, 4 B.R. 499 (B.Ct.S.D.N.Y.1980) [holding there was a sufficient equity cushion for creditor holding first mortgage despite existance of four junior mortgages totalling more than market value of property]. Thus, in determining that adequate protection was not available for the sellers, the bankruptcy court failed to recognize that the sellers’ interest has priority over AKOP’s interest. It also has priority over all of the judgment liens. In the matter before us, the value of the sellers’ lien on the Upland residence is $17,960.06. This includes the amount still owed to Pistole pursuant to the original land sale contract, and $12,460.06 paid to Weyerhauser to stop the foreclosure proceedings. The bankruptcy court found that the value of the residence is $105,000; thus, there is an “equity cushion” to protect the sellers’ interest in the amount of $20,340 or approximately 20% of the total value. A 20% cushion has been held to be an adequate protection for a secured creditor. See In re McGowan, 6 B.R. 241, 243 (B.Ct.E.D.Pa.1980) [holding a 10% cushion is sufficient to be adequate protection]; In re Rogers Development Corp., 2 B.R. 679, 685 (B.Ct.E.D.Virg.1980) [court decided that an equity cushion of approximately 15% to 20% was sufficient adequate protection to the creditor, even though the debtors had no equity in the property.]; In re Breuer, 4 B.R. 499, 501 [creditor protected by equity cushion of $21,000 despite fact that debtor lacked equity in the property.]. This difference in the amount owing to the senior creditors and the market value of the Upland residence forms the estate of the bankrupt and must be preserved for the benefit of all remaining junior creditors pro rata. By attempting to obtain a state court judgment quieting title to the Upland residence, the sellers sought to acquire a property worth $105,000, which greatly exceeds the amount owed to the sellers by the debtors after deducting the existing balance in the Weyerhauser mortgage. The purpose of adequate protection under §" }, { "docid": "18563958", "title": "", "text": "protects creditor adequately); cf. In Re Pitts, 2 B.R. 476, 478-79 (Bankr.C.D.Cal.1979) (15.4 percent debtor equity in residence adequately protects creditor). Indeed, the notion that an equity cushion should be considered in a vacuum is fundamentally misguided. The proposition that a uniform equity percentage or dollar amount would inevitably supply adequate protection conflicts with the principle of considering the adequacy of protection in light of all the facts surrounding the case and the equitable considerations to which those factors give rise. See In Re Pannell, 12 B.R. 51, 54 (Bankr.E.D.Pa.1981); In Re 5-Leaf Clover Corp., 6 B.R. 463, 466 (Bankr.S.D.W.Va.1980); In Re San Clemente Estates, 5 B.R. 605, 609 (Bankr.S.D.Cal.1980). If properly applied, the concept of an “equity cushion” supplies only one factor in determining whether the creditor’s interest is adequately protected. In Re Pannell, 12 B.R. at 54. In the proceedings below, the Bankruptcy Judge found that the debtor had failed to prove adequate protection. In the September 14th Memorandum, the Bankruptcy Court critically examined Southerton’s contention that its purported equity in the property provided an adequate cushion in excess of the total debt to insure that the Bank’s interest in the property would not be jeopardized during the pendency of the reorganization proceedings. The court, assuming the debtor’s valuation of The Escape for the purposes of argument, observed that other factors militated against finding adequate protection on the basis of the equity cushion alone. Weighing the “balance of hurts,” the court concluded that the likelihood of harm engendered by continuation of the stay preponderated over the potential harm caused to Souther-ton by termination of the stay. Far from reaching its conclusion on the basis of some fixed percentage requirement for the equity cushion, the Bankruptcy Court weighed a variety of factors. First, the court noted that the accumulation of interest on the Bank’s judgment was rapidly eroding Southerton’s equity cushion. Southerton neither questions the appropriateness of considering this factor nor disputes the accuracy of the court’s observation. Where, as here, the debtor’s margin of equity is slim, the court is clearly entitled to consider the rate at which" } ]
619530
running, apparently due to human error. Neither these isolated instances nor the discrepancy in Agent Melonas’ testimony compel this court to alter its conclusion that in a monitoring operation involving over 12,000 intercepted conversations, proper monitoring standards were observed by the Government. . This use of information of evidence unrelated to the subject matter of the original wiretap order has its constitutional underpinnings in the “plain view” doctrine. Under this doctrine, the Government may seize some other article of incriminating character where incident to an otherwise lawful search and where the unrelated evidence was discovered inadvertently. Coolidge v. New Hampshire, 403 U.S. 443, 464—466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). . The reliance of defendants Marson and Pacella on REDACTED In Capra, the police intercepted the conversations of one DellaCava, although the judicially approved target of their electronic eavesdropping was named DellaValle. DellaCava was involved in criminal activity, unrelated to DellaValle’s activity which was subject to authorized scrutiny. In granting DellaCava’s motion to suppress the evidence so gathered against him, the court acknowledged that, under New York law, a retroactive amendment could be made validly “to substitute specifically identified persons for ‘John Does’ and to add new crimes to those previously listed on the warrant.” 501 F.2d at 276, n. 7. The court reasoned, however, that DellaCava’s conversations could not have been intercepted under the original authorization, and that the knowing interception of DellaCava’s calls was never within
[ { "docid": "23639475", "title": "", "text": "was Capra’s alias, that “Bean-sy” was DellaCava, who tended bar at Diane’s, and that “Leo” was Leoluea Guarino. On the basis of this evidence, Capra, Guarino and DellaCava claimed: that Eaton had insufficient grounds to secure an eavesdropping warrant because he could not distinguish DellaValle’s voice; that he had previously investigated Del-laCava and was actually trying to intercept his calls when he applied for a warrant; that the police had failed to minimize the interception of calls unrelated to the original warrant authorization; and that all interceptions of DellaCava’s calls prior to the renewal of the warrant on January 6, 1972 were unauthorized. The defendants contended that if the trial court upheld any of these objections, all evidence which was the product of this wiretap should be suppressed. The trial court found that Eaton’s recognition of DellaValle’s voice was founded on the two prior phone calls; that the New York court was fully apprised of this; and, that the warrant was, therefore sufficient on its face. It also found that Eaton’s previous contact with DellaCava had been a brief and insignificant part of an earlier unrelated wiretap which did not concern or result in any investigation of the defendant or Diane’s Bar and that the warrant is-' sued in the present case, therefore, was not based upon pretext. In connection with the minimization claim, defendants alleged that all calls, including non-pertinent calls to and from this public telephone had been monitored in full in violation of New York Crim.Pr.L. § 700.30(7) and 18 U. S.C. § 2518(5). But after an intensive analysis of the intercepted calls, the trial court found that out of the 1561 calls listed (1159 of which reached the party intended) only 751 were recorded in full. Approximately 620 of these did not exceed two minutes, and 200 of the 235 calls involving DellaCava were also less than two minutes in duration. While the police did record several privileged conversations including a few with family members and one with a lawyer, the trial court found that this was not a commonplace practice in the extensive investigation. As" } ]
[ { "docid": "23639502", "title": "", "text": "a court to validate by retroactive approval a warrantless interception. Like People v. Sher, infra, n. 4, however, Ooso merely allowed police, who were authorized to listen to all conversations concerning a particular crime over a private telephone but who also overheard another conversation about plans for a different criminal offense, to continue to listen to conversations relating to both crimes without immediately seeking an amendment to the warrant. . Defendants also continue to argue in this court that all interceptions, even those prior to December 19, must be suppressed because the government failed to provide an inventory of the intercepted phone calls within the statutory time period, N.Y.Orim.Pro.L. § 700.50(3), and because the tapes were not immediately sealed after the eavesdropping ceased. Id., § 700.50(2). The trial court found that the State court had authorized the delay in filing the inventory in order to protect the secrecy of on-going investigations and that the defendants had shown no prejudice resulting from either delay. Under these circumstances, the trial court was correct in holding that neither New York nor federal law requires suppression. People v. DiLorenzo, 69 Misc.2d 645, 330 N.Y.S.2d 720 (Rockland Cty Ct. 1971) ; United States v. Cirillo, 499 F.2d 872 (2 Cir. 1974) ; United States v. Manfredi, 488 F.2d 588 (2 Cir. 1973), application for cert. pending 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240; United States v. Rizzo, 492 F.2d 443 (2 Cir. 1974). . § 781(a), 49 U.S.C., reads: “It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.” § 881(a)(4) of 21 U.S.C. also subjects to forfeiture all vehicles used to transport narcotics. . Even if it were assumed that part of Eaton’s familiarity with DellaCava’s use of automobiles was derived from what" }, { "docid": "884881", "title": "", "text": "Curreri include both sides of the conversation; that a valid order covered Curreri; and that once lawfully intercepted, Bernstein’s conversations could be used against anyone, including Bernstein himself. The fundamental error in the government’s position is the assumption that Title III provides only a right not to have the unlawful intercepts used in court. But Title III does more: it creates a right not to be overheard except in conformity with its provisions. 18 U.S.C. § 2511(1). As we held in part I of this opinion, the identification required by § 2518(l)(b)(iv) is a precondition to lawful interception with respect to a known person. Therefore, contrary to the government’s assertion, § 2517(3) supplies no basis for admission since by its terms it applies only to “communications intercepted in accordance with this chapter.” The government compares this case, however, to one where an independent ground for a search, such as a valid arrest, renders a defective warrant, or the absence of a warrant, immaterial. We find the analogy unpersuasive. A warrantless search incident to a lawful arrest is valid because the occasion requires the contemporaneous removal of weapons or disposable evidence from the prisoner and the area under his immediate control. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Similar exigent circumstances are lacking when agents tap a phone with probable cause to believe that they will overhear a particular person talking about specific criminal activity. Nor can the government rely on a comparison to the plain view doctrine. The seizure of evidence in plain view is justified only when discovery is inadvertent. Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The government’s position finds no support in United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Mrs. Kahn’s conversations were lawfully intercepted because the government had no reason to suspect her criminal activities when the agents overheard her. Here, in contrast, the agents had reason to anticipate Bernstein’s use of a tapped phone to discuss his participation in the crime they were" }, { "docid": "5052973", "title": "", "text": "and can not seriously dispute the import of the 7:30 p. m. call in establishing his identity. Finally, the defendant DeCicco was named in an amended order on March 12, 1976, 20 days after the February 20th interceptions. As noted with respect to defendant Hali, see text accompanying note 40 supra, and defendant DiFazio, see text accompanying note 48 supra, this delay complies with the requirements of the federal and state wiretap statutes. Thus, the plain view exception of Johnson and DiStefano seems to be applicable. . In his moving papers, the defendant relies heavily on the Second Circuit’s decision in United States v. Capra, 501 F.2d 267 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). Capra, however, is distinguishable. First, Capra involved suppression of wiretaps at trial and not in reference to their use in obtaining an eavesdropping warrant. Moreover, in Capra the government knowingly intercepted communications involving one Stephen DellaCava for 17 days when the warrant only authorized interceptions by one Joseph DellaValle. Such a continuous and illegal course of conduct is not evident from the instant facts. . DeCicco also contends that the identification of his voice by Detective Johnson was an “unsubstantiated allegation”. Affidavit in Support of Defendant’s Notice of Motion at 7, par. 19. After having reviewed the application and supporting affidavit of Detective Johnson, the Court must reject defendant’s contention. Under New York law, the identity of a person speaking over a telephone can be established by circumstantial evidence which includes evidence which makes it probable that he was the speaker. See Dave Levine & Co. v. Wolf's Package Depot, 29 Misc.2d 1085, 1088, 138 N.Y.S.2d 427, 431 (Sup.Ct.1955), aff’d, 1 A.D.2d 874, 150 N.Y.S.2d 543 (1st Dept. 1956). Here such circumstantial evidence was present. See also United States v. Capra, 501 F.2d 267, 274-75 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975); City of New York v. Camp Construction Co., 51 Misc.2d 50, 272 N.Y.S.2d 631, 634 (Sup.Ct.1966); Ruegg v. Fairfield Securities Corp., 284 App.Div. 703, 134 N.Y.S.2d 562" }, { "docid": "5052972", "title": "", "text": "intercepted in “plain view”, id. at 649, 382 N.Y.S.2d at 10, 345 N.E.2d at 553. Based on these cases, it is arguable that the 7:30 p. m. interception was discovered in plain view and thus within the scope of the Plant C electronic surveillance. It can not be seriously disputed that the Plant C application and order were legally obtained. Nor can it be claimed that the interceptions themselves were not properly conducted. This phone call was made to the target telephone of the Plant C order, and defendant DeCicco did request to speak to defendant Valente, the person named in the order itself. DeCicco did call back at 7:50 p. m. as stated in the initial call, and the 7:50 p. m. call is clearly within the scope of the Plant C order since it discusses the crimes stated in that order. By necessary implication it is clear that the purpose of the 7:30 p. m. call was to have the conversation which actually occurred at 7:50 p. m. Moreover, defendant DeCicco does not and can not seriously dispute the import of the 7:30 p. m. call in establishing his identity. Finally, the defendant DeCicco was named in an amended order on March 12, 1976, 20 days after the February 20th interceptions. As noted with respect to defendant Hali, see text accompanying note 40 supra, and defendant DiFazio, see text accompanying note 48 supra, this delay complies with the requirements of the federal and state wiretap statutes. Thus, the plain view exception of Johnson and DiStefano seems to be applicable. . In his moving papers, the defendant relies heavily on the Second Circuit’s decision in United States v. Capra, 501 F.2d 267 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). Capra, however, is distinguishable. First, Capra involved suppression of wiretaps at trial and not in reference to their use in obtaining an eavesdropping warrant. Moreover, in Capra the government knowingly intercepted communications involving one Stephen DellaCava for 17 days when the warrant only authorized interceptions by one Joseph DellaValle. Such a continuous" }, { "docid": "23639476", "title": "", "text": "had been a brief and insignificant part of an earlier unrelated wiretap which did not concern or result in any investigation of the defendant or Diane’s Bar and that the warrant is-' sued in the present case, therefore, was not based upon pretext. In connection with the minimization claim, defendants alleged that all calls, including non-pertinent calls to and from this public telephone had been monitored in full in violation of New York Crim.Pr.L. § 700.30(7) and 18 U. S.C. § 2518(5). But after an intensive analysis of the intercepted calls, the trial court found that out of the 1561 calls listed (1159 of which reached the party intended) only 751 were recorded in full. Approximately 620 of these did not exceed two minutes, and 200 of the 235 calls involving DellaCava were also less than two minutes in duration. While the police did record several privileged conversations including a few with family members and one with a lawyer, the trial court found that this was not a commonplace practice in the extensive investigation. As a result of this analysis as well as Fishman’s and Eaton's efforts to limit interception of non-pertinent calls, the district court concluded that “all reasonable efforts were made to comply with legal requirements.” The district court recognized that one of the most difficult questions in this case concerned the legality of the interception of DellaCava’s conversations. It found that the confusion of DellaValle’s and DellaCava’s voice was a good faith mistake, caused by their similarity and the poor monitoring conditions, and, therefore, held that there was no violation of the eavesdropping warrant prior to the realization that “Beansy” was not DellaValle. It, .however, also held that the police and the State prosecutor did commit error in delaying the application for an amendment of the warrant until 17 days after they learned that “Beansy” was not DellaValle. But the court said the delay was “reasonable and outlawry . . . [was] not warranted” because of the State prosecutor’s inexperience and lack of secretarial assistance, as well as the intervention of the holidays. At the trial, therefore" }, { "docid": "23247001", "title": "", "text": "it does subsequent judicial scrutiny of unanticipated material obtained incident to a warrant describing other subject matter. Whether the Court will regard this as a compliance with the Fourth Amendment as construed in Berger, Katz and Osborn remains uncertain. The government’s further argument is that § 2517(5) can be upheld based on the “plain view” analogy applicable to the seizing of tangible evidence and instruments of crime. This is, of course, an exception to the requirement that an object seized must be particularly described in the application for a warrant. Inasmuch as warrants for interception of electronic information generally follow the principles applicable to search warrants, it is said that just as evidence not described but which is discovered by the officers in the course of a valid search is under certain circumstances admissible, so also intercepted conversations should be similarly treated. One difficulty in this is that the law on this plain view subject is not fully developed and also remains unclear. For example, in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), it was held that a search warrant must be executed strictly in accordance with its terms, leaving nothing to the discretion of the officer. It is argued that Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 91 L.Ed. 1399 (1945), modifies the Marron doctrine and that lower federal courts have considered Harris fully applicable to search warrant cases even though it had to do with seizure incident to arrest. Discussion in Coolidge v. New Hampshire recently decided, June 21, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, succeeds in clarifying the “plain view” doctrine. But the analogy is imperfect because the search for property is a different and less traumatic invasion than is the quest for private conversations. The reason then for the seriousness of the problem here arises not from the fact that the particular conversations were not specifically described and given specific prior authorization, but rather from the unmanageability generally of electronic surveillance. The area is peculiarly sensitive due to its effort to" }, { "docid": "23639480", "title": "", "text": "minutes, “too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation,” especially under the circumstances of this case. United States v. Bynum, 485 F.2d 490, 500 (2 Cir. 1973), judgment vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). Defendants asserted that the interception of any non-pertinent calls is prima facie evidence of failure to minimize, but the trial court correctly concluded that the police in this ease reasonably complied, in good faith, with minimization requirements. The trial court’s denials of the defendants’ motions to suppress the evidence resulting from the calls to and from DellaCava between December 19, 1971 and January 6, 1972, were, however, error. The warrant only authorized the interception of conversations by Joseph DellaValle “with” conspirators; and the knowing interception of calls involving DellaCava, rather than DellaValle, was, therefore not within the officers’ discretion. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The government asserts that whatever infirmity resulted from this warrantless tapping was cured by the inclusion of DellaCava in the renewed warrant issued on January 6, 1972, but it fails to state from what source it derived the authority to maintain the warrantless eavesdropping for the preceding 17 days. New York’s eavesdropping statute makes no provision for warrantless interception, New York Crim.Pro.L., Art. 700, and the government has cited no cases in which New York courts have construed this statute otherwise. Moreover, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 18 U.S.C. § 2510 et seq., prohibits warrantless eavesdropping, except under two specially defined circumstances, i. e., national security and an emergency. Title III creates federal wiretapping procedures that also operate as national standards which only permit the states “to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.” (Emphasis added.) Senate Rpt. No. 1097, April 29, 1968, 1968 U.S. Code Cong, and Admin.News pp. 2112,. 2187. The standards" }, { "docid": "23639482", "title": "", "text": "are to be construed strictly, because Congress knew that it was creating an investigative mechanism which potentially threatened the constitutional right to privacy, and it carefully wrote into the law the protective procedures for the issuance of warrants which the Supreme Court had declared in Katz v. United States, supra, and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), were “constitutional precondition [s] of . electronic surveillance.” Katz, at 359, 88 S.Ct. 507; see 1968 U.S. Code Cong, and Admin.News p. 2113, supra. Under 18 U.S.C. § 2518(10)(a), Congress made clear its intention “to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). See also In Re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239 (1971), cert. den., 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972). Obviously failure to amend the warrant was not justified by national security considerations, or by the presence of an emergency. Even assuming arguendo that DellaCava’s conversations constituted an emergency within the meaning of § 2518(7) (a), the continuation of the eavesdropping for 17 days would still not qualify under the emergency exception to the statute because such interceptions must be terminated within 48 hours if, within that time, no warrant has been secured. Id. The district court, therefore, had no discretion to decide whether to exclude the evidence obtained in violation of Title III. The good faith efforts and worthy intentions of the police, the' prosecutor’s lack of experience and need of secretarial assistance, as well as his election to give priority to a holiday, are wholly extraneous considerations. All of DellaCava’s intercepted conversations between December 19, 1971 and January 6, 1972, are ordered suppressed. Publicity at Time of Arrests Capra, Guarino, and DellaCava were arrested on the night of April 13, 1973, as part of a round-up of over 80" }, { "docid": "5052966", "title": "", "text": "are distinguishable. In each case, either the defendant or the crime intercepted was outside the scope of the wiretap authorization. In Capra, the wiretap order authorized the interception of conversations of a Joseph DellaValle and others. Nonetheless, the officers knowingly intercepted numerous calls of Stephen DellaCava for a 17 day period. In DiStefano, intercepted conversations related to the crime of robbery, but the wiretap order authorized interception of conversations relating to gambling offenses. In both cases an amended order was necessary once probable cause attached since the intercepted conversations were unrelated to the authorizing warrant. See United States v. Austin, 399 F.Supp. 698, 703 (E.D.N.Y.1975). . Counsel’s affidavit in support of defendant’s notice of motion asserts that the four conversations were all illegally intercepted and that he would refute them one by one. However, no mention is made of the 11:12 p. m. interception. The Court does not draw any conclusion from this omission. Instead, it will consider the legality of this fourth conversation along with the three earlier calls. . Government’s Memorandum In Opposition To Defendant DeCicco’s Motion To Suppress Evidence Derived From Court Authorized Electronic Surveillance at 8. . While defendant’s motion papers and accompanying memorandum of law are somewhat confusing, it seems that defendant has also challenged the minimization procedures utilized during the wiretap as to the four February 20th phone calls. Defendant, however, lacks standing to raise this issue since he was not a subscriber of the target telephone. See note 45 supra. However, since defendant was intercepted over the Plant C wiretap and since the Plant H wiretap was directed at him, he has standing to challenge the validity of these taps and interceptions. See note 48 supra. . As previously noted the Plant C wiretap order authorized interception of conversations “being transmitted and received by John Valente . . . .” (emphasis supplied). Relying on the Supreme Court decision in United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), defendant contends that this language mandates that defendant Valente be a party to the conversation. In Kahn the Court stated" }, { "docid": "23639483", "title": "", "text": "33 L.Ed.2d 342 (1972). Obviously failure to amend the warrant was not justified by national security considerations, or by the presence of an emergency. Even assuming arguendo that DellaCava’s conversations constituted an emergency within the meaning of § 2518(7) (a), the continuation of the eavesdropping for 17 days would still not qualify under the emergency exception to the statute because such interceptions must be terminated within 48 hours if, within that time, no warrant has been secured. Id. The district court, therefore, had no discretion to decide whether to exclude the evidence obtained in violation of Title III. The good faith efforts and worthy intentions of the police, the' prosecutor’s lack of experience and need of secretarial assistance, as well as his election to give priority to a holiday, are wholly extraneous considerations. All of DellaCava’s intercepted conversations between December 19, 1971 and January 6, 1972, are ordered suppressed. Publicity at Time of Arrests Capra, Guarino, and DellaCava were arrested on the night of April 13, 1973, as part of a round-up of over 80 alleged narcotics dealers. Three days later, New York newspapers, each of which have extensive circulation, carried front-page articles which featured de tailed on-the-scene reports of the arrests. New York Post, 4/16/73, p. 1, 4; New York Daily News, 4/17/73, p. 1, 3, 11-13, 39; New York Times, k/Yl/lS, p. 1, 37. The New York Daily News showed photographs of Capra in handcuffs leaving his house, the police car on the freeway carrying Capra to the federal detention center, and Guarino, handcuffed, entering the detention center. The News’ on-the-scene report included a description of the interior of Capra’s “opulent” New Rochelle home on the night of the arrest. At a suppression hearing regarding another issue Bernard Gallespie, the New York police sergeant who arrested Capra, disclosed that the New York City Police Public Relations Director, who was a non-commissioned officer, and a New York Daily News reporter had accompanied him on the night of the arrest and that they had entered Capra’s home. These men were not identified at the house as reporters, and the Capra" }, { "docid": "23639500", "title": "", "text": "of the opinion that reversal of the conspiracy count as to Capra, Guarino and DellaCava is mandated by both ’ the illegal wiretapping after December 19 and the resulting taint of police surveillance and subsequent wiretaps, see United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the questions of whether the interception of DellaCava’s conversations prior to December 19, when the trial court found that the officers in good faith reasonably believed that they were listening to DellaValle, was authorized by State law and within the meaning of the federal wiretapping law, 18 U.S.C. § 2510, et seq., or permissible under the Constitution, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), are left open for future consideration. . The New York Constitution, Art. 1 § 12, apparently bars warrantless wiretapping: “The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.” . People v. Sher, 68 Misc.2d 917, 329 N.Y.S.2d 2 (Green Gty Crt 1972) permits retroactive amendment of a New York warrant to substitute specifically identified persons for “John Does” and to add new crimes to those previously listed on the warrant. Neither of these changes invades the privacy interests of a person whose conversations could not have been intercepted under the original authorization. . Congress had in mind by use of the term “emergency” an important event, limited in duration, which was likely to occur before a warrant could be obtained. Senate Rpt. No. 1097, 1968 U.S.Code Cong, and Admin.News, pp. 2112, 2193. . The government contends that United States v. Cox, 449 F.2d 679 (10 Cir. 1971), cert. den. 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972), construes the federal statute to permit" }, { "docid": "23639473", "title": "", "text": "and “Beansy” was said to be tending bar, which was not DellaValle’s known occupation. But because of the voice and the nature of the business transacted, Eaton testified that he was reasonably sure that “Beansy” and DellaValle were one and the same individual until 2:15 in the afternoon, Sunday, December 19, when the speaker turned away from the telephone and was heard to ask, “How long are you going to be here Beans?” The next day Eaton reported to Fish-man that they had been inadvertently tapping two different individuals. Fish-man \"replied that the warrant would have to be amended, but instructed Eaton to continue monitoring and surveillance to establish “Beansy’s” identity, although Fishman and Eaton both testified that they were aware that a person’s identity was not necessary to secure a “John Doe” warrant. See United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Even after Beansy was identified as DellaCava, Fishman did not proceed with dispatch to have the warrant amended. He conferred with others in his office on amendment procedures; then took a long Christmas weekend; and when he finally completed personally typing the application on January 2, 1972, he decided to hold it for four more days when the warrant expired and had to be renewed in any event. The warrant, therefore, did not authorize the interception of DellaCava’s telephone conversations until January 6, 1972, 18 days after the police received notice that “Beansy” was not DellaValle, and 17 days after Fishman had been so informed. Meanwhile, at 6:30 p. m., December 23, the police overheard “Beansy” call Ray’s Stationery in the Bronx and ask for “Leo” or “Johnny Hooks.” “Hooks” answered the telephone and told “Bean-sy” to pick up a package. Eaton followed “Beansy” to a Bronx Social Club where he saw him take a package from a Lincoln Continental and place it in his car trunk. Eaton traced the license plates on both cars and found that the Lincoln belonged to John Capra and that “Beansy’s” car was registered in the name of Stephen DellaCava. Subsequent investigation confirmed that “Hooks”" }, { "docid": "23639479", "title": "", "text": "the supporting affidavit. This court is also in accord with the district court’s ruling that the issuance of the warrant by the State court was not based upon a pretext. See People v. Asaro, 57 Misc.2d 373, 291 N.Y.S.2d 613, aff’d 34 A.D.2d 968, 312 N.Y.S.2d 807 (1968). In reviewing the district court’s ruling on minimization, state law must again be applied, United States v. Rizzo, 491 F.2d 215 (2 Cir. 1974); New York, however, has interpreted its minimization provisions in light of the federal statute which goes no “further than to require that the methods used to effect minimization be in good faith and reasonable.” United States v. Manfredi, 488 F.2d at 600; United States v. Tortorello, 480 F.2d 764 (2 Cir.), cert. den. 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); see also People v. Castania, 73 Misc.2d 166, 340 N.Y.S.2d 829 (Monroe Cty Crt 1973). Although the trial court’s analysis of these interceptions revealed that many non-pertinent calls had been intercepted, a vast majority of these did not exceed two minutes, “too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation,” especially under the circumstances of this case. United States v. Bynum, 485 F.2d 490, 500 (2 Cir. 1973), judgment vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). Defendants asserted that the interception of any non-pertinent calls is prima facie evidence of failure to minimize, but the trial court correctly concluded that the police in this ease reasonably complied, in good faith, with minimization requirements. The trial court’s denials of the defendants’ motions to suppress the evidence resulting from the calls to and from DellaCava between December 19, 1971 and January 6, 1972, were, however, error. The warrant only authorized the interception of conversations by Joseph DellaValle “with” conspirators; and the knowing interception of calls involving DellaCava, rather than DellaValle, was, therefore not within the officers’ discretion. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74," }, { "docid": "23639477", "title": "", "text": "a result of this analysis as well as Fishman’s and Eaton's efforts to limit interception of non-pertinent calls, the district court concluded that “all reasonable efforts were made to comply with legal requirements.” The district court recognized that one of the most difficult questions in this case concerned the legality of the interception of DellaCava’s conversations. It found that the confusion of DellaValle’s and DellaCava’s voice was a good faith mistake, caused by their similarity and the poor monitoring conditions, and, therefore, held that there was no violation of the eavesdropping warrant prior to the realization that “Beansy” was not DellaValle. It, .however, also held that the police and the State prosecutor did commit error in delaying the application for an amendment of the warrant until 17 days after they learned that “Beansy” was not DellaValle. But the court said the delay was “reasonable and outlawry . . . [was] not warranted” because of the State prosecutor’s inexperience and lack of secretarial assistance, as well as the intervention of the holidays. At the trial, therefore the court overruled the defendants’ objections and admitted the evidence which resulted from the wiretapping, and the defendants appeal from each of those rulings. This court is of the opinion that the trial court correctly ruled that the warrant, on which the wiretapping was based, was legally sufficient. The requisite contents of an affidavit for a state warrant are determined by state law, United States v. Manfredi, 488 F.2d 588 (2 Cir. 1973), application for cert. pending 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 and so long as the affiant presents a sufficient and truthful basis for a warrant, reviewing courts in New York have usually upheld the issuance of the warrant. See People v. Porter, 44 A.D.2d 251, 354 N.Y.S.2d 424 (1974). In this case, the State court issued the ex parte order on the reasonable assumption that Eaton could distinguish DellaValle’s voice over a public telephone in a bar and the fact that this assumption was frustrated to a substantial degree by an unusual combination of' circumstances does not render nugatory" }, { "docid": "23639499", "title": "", "text": "States v. DeBerry, 487 F.2d 448 (2 Cir. 1973). This concern was understandably engendered by the unusual baggage check, Namos’ nervous behavior, the weight of the suitcase, the delay in claiming it, and prior exposure, through media and personal experience, to bomb scares. Police participation was not so pervasive that the opening of the suitcase was primarily for “the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action.” Haerr v. United States, 240 F.2d 533, 535 (5 Cir. 1957). And when police are merely assisting a private party, who has authority to search and a legitimate need to do so, see United States v. Antonelli, 434 F.2d 335 (2 Cir. 1970), courts are reluctant to exclude resulting evidence. Wolf Low v. United States, 391 F.2d 61 (9 Cir.), cert. den. 393 U.S. 849, 89 S.Ct. 136, 21 L.Ed.2d 119 (1968). See generally United States v. Blum, 329 F.2d 49 (2 Cir.), cert. den. 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1045 (1964). . Because this court is of the opinion that reversal of the conspiracy count as to Capra, Guarino and DellaCava is mandated by both ’ the illegal wiretapping after December 19 and the resulting taint of police surveillance and subsequent wiretaps, see United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the questions of whether the interception of DellaCava’s conversations prior to December 19, when the trial court found that the officers in good faith reasonably believed that they were listening to DellaValle, was authorized by State law and within the meaning of the federal wiretapping law, 18 U.S.C. § 2510, et seq., or permissible under the Constitution, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), are left open for future consideration. . The New York Constitution, Art. 1 § 12, apparently bars warrantless wiretapping: “The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that" }, { "docid": "23639472", "title": "", "text": "the other police participants in the eavesdropping. Extensive background noise at the Bar interfered with attempts to quickly discover the nature of the intercepted conversations. The officers frequently had difficulty understanding the words of the parties, and the pertinency of what was said was not immediately apparent because all narcotics transactions were disguised by use of various codes, i. e. “Christmas presents” meant heroin, a “chess game” signified an exchange of narcotics, and a “four-room house with two stories” indicated four kilograms of heroin, cut twice. The officers suspected at times that they might be confusing DellaValle’s voice with that of another unidentified narcotics operator who had a similar husky voice. Even those officers who, under another provision of the warrant, were eavesdropping on DellaValle’s conversations over his home telephone, could not tell whether a second voice was being intercepted at the Bar. Eaton became concerned when the individual overheard was continuously called “Beansy,” which was not one of Della-Valle’s known nicknames; references were made to “Beansy’s wife” while Del-laValle was thought to be single; and “Beansy” was said to be tending bar, which was not DellaValle’s known occupation. But because of the voice and the nature of the business transacted, Eaton testified that he was reasonably sure that “Beansy” and DellaValle were one and the same individual until 2:15 in the afternoon, Sunday, December 19, when the speaker turned away from the telephone and was heard to ask, “How long are you going to be here Beans?” The next day Eaton reported to Fish-man that they had been inadvertently tapping two different individuals. Fish-man \"replied that the warrant would have to be amended, but instructed Eaton to continue monitoring and surveillance to establish “Beansy’s” identity, although Fishman and Eaton both testified that they were aware that a person’s identity was not necessary to secure a “John Doe” warrant. See United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Even after Beansy was identified as DellaCava, Fishman did not proceed with dispatch to have the warrant amended. He conferred with others in his office on" }, { "docid": "884882", "title": "", "text": "arrest is valid because the occasion requires the contemporaneous removal of weapons or disposable evidence from the prisoner and the area under his immediate control. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Similar exigent circumstances are lacking when agents tap a phone with probable cause to believe that they will overhear a particular person talking about specific criminal activity. Nor can the government rely on a comparison to the plain view doctrine. The seizure of evidence in plain view is justified only when discovery is inadvertent. Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The government’s position finds no support in United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Mrs. Kahn’s conversations were lawfully intercepted because the government had no reason to suspect her criminal activities when the agents overheard her. Here, in contrast, the agents had reason to anticipate Bernstein’s use of a tapped phone to discuss his participation in the crime they were investigating, and they intended to intercept his calls. The conversations suppressed by the district court were not inadvertently discovered. We conclude, therefore, that when the government has the statutory duty to identify an individual, its failure to do so is not excused by the fact that it lawfully eavesdropped on another party to the conversation. IV Bernstein did not receive statutory notice of the wiretaps in which his conversations were intercepted. The government argues that because he later received actual notice he was not prejudiced, and consequently his conversations are admissible. Suppression, however, does not depend on proof of prejudice from lack of statutory notice. Congress defined an aggrieved person as “a party to any intercepted wire or oral communication or a person against whom the interception was directed.” Prejudice is not an element of the definition. Furthermore, the statute gives the district court no discretion to deny, because of lack of prejudice, an aggrieved person’s motion to suppress when the interception is unlawful. We conclude from the unequivocal language of Title III that Congress" }, { "docid": "23639469", "title": "", "text": "supported by Ramos’ testimony at the trial that all of the front money went to Capra, Guarino, and DellaCava, and that the balance due of $38,000 was the share belonging to Jermain and him. Where defendants, through the use of front money and baggage checks, have exerted such efforts to insulate themselves from personal possession of narcotics, they are hardly in a position to object that they have been “hoist with their own petard.” None of the defendants was able to prove that his reasonable expectations of privacy were infringed by the search of the suitcase, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and, consequently, each lacks standing to challenge the legality of the search. While Jermain might have been able to establish a possessory interest on the basis of the money owed, he did not seek to do so at trial and cannot make such a claim for the first time now. See United States v. Gitlitz, 368 F.2d 501 (2 Cir. 1966), cert. den. 386 U.S. 1038, 87 S.Ct. 1492, 18 L.Ed.2d 602 (1967). The trial court, therefore, was correct in denying the motions to suppress because these defendants lacked standing to question the propriety of this search and seizure. II. The Wiretap at Diane’s Bar To corroborate Ramos’ testimony that this was an ongoing conspiracy involving all the defendants, the Government offered several transcripts and recordings of wiretaps involving DellaCava, Guarino, and Capra, and the testimony of the officers who conducted survéil-lance of the defendants on the basis of leads provided by the wiretapping. The defendants moved, prior to trial, for the suppression of this entire line of evidence on the ground that it was the product of unauthorized eavesdropping. At the suppression hearing the evidence disclosed that in an investigation, unrelated to the Toledo search, the New York City Police, in late 1971, began surveillance of Diane’s Bar at 2034 Second Avenue, Manhattan, where a reliable informant had said one Joseph Della-Valle was using the public telephone to arrange narcotics sales. Detective George Eaton of the Special Investigations" }, { "docid": "5052965", "title": "", "text": "(Total non-pertinent calls) 1005 Number of non-pertinent calls terminated by police officer 735 269 Number of non-pertinent calls initially intercepted but terminated by the speaker in under two minutes 252 17 Number of non-pertinent calls intercepted and recorded to completion i. e., longer than two minutes 17 Affidavit of Sergeant Siedlick at 5. Thus out of 1005 intercepted non-pertinent conversations only 17 or .017% were not minimized. . Under both the state and federal statutes, only an “aggrieved person” has standing to challenge the validity of a wiretap. 18 U.S.C. § 2518(10)(a) (1970); C.P.L. § 710.20. An “aggrieved person” is one whose conversations have been intercepted during the course of a wiretap surveillance, or a person against whom a wiretap was directed. 18 U.S.C. § 2510(11); C.P.L. § 710.10(5); see Fury, supra at 525-26. . The cases of United States v. Capra, 501 F.2d 267 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975) and People v. DiStefano, 38 N.Y.2d 640, 382 N.Y. S.2d 5, 345 N.E.2d 548 (1976) are distinguishable. In each case, either the defendant or the crime intercepted was outside the scope of the wiretap authorization. In Capra, the wiretap order authorized the interception of conversations of a Joseph DellaValle and others. Nonetheless, the officers knowingly intercepted numerous calls of Stephen DellaCava for a 17 day period. In DiStefano, intercepted conversations related to the crime of robbery, but the wiretap order authorized interception of conversations relating to gambling offenses. In both cases an amended order was necessary once probable cause attached since the intercepted conversations were unrelated to the authorizing warrant. See United States v. Austin, 399 F.Supp. 698, 703 (E.D.N.Y.1975). . Counsel’s affidavit in support of defendant’s notice of motion asserts that the four conversations were all illegally intercepted and that he would refute them one by one. However, no mention is made of the 11:12 p. m. interception. The Court does not draw any conclusion from this omission. Instead, it will consider the legality of this fourth conversation along with the three earlier calls. . Government’s Memorandum In Opposition" }, { "docid": "23639470", "title": "", "text": "U.S. 1038, 87 S.Ct. 1492, 18 L.Ed.2d 602 (1967). The trial court, therefore, was correct in denying the motions to suppress because these defendants lacked standing to question the propriety of this search and seizure. II. The Wiretap at Diane’s Bar To corroborate Ramos’ testimony that this was an ongoing conspiracy involving all the defendants, the Government offered several transcripts and recordings of wiretaps involving DellaCava, Guarino, and Capra, and the testimony of the officers who conducted survéil-lance of the defendants on the basis of leads provided by the wiretapping. The defendants moved, prior to trial, for the suppression of this entire line of evidence on the ground that it was the product of unauthorized eavesdropping. At the suppression hearing the evidence disclosed that in an investigation, unrelated to the Toledo search, the New York City Police, in late 1971, began surveillance of Diane’s Bar at 2034 Second Avenue, Manhattan, where a reliable informant had said one Joseph Della-Valle was using the public telephone to arrange narcotics sales. Detective George Eaton of the Special Investigations Unit, Narcotics Division, listened to two telephone conversations between the informant and DellaValle when nat-cotics orders were confirmed. On the basis of these calls, personal observation, and other information provided by the informant, Eaton and a New York State Assistant District Attorney, Clifford Fishman, prepared an affidavit and application for an eavesdropping warrant pursuant to Article 700 of New York’s Criminal Procedure Law. In his affidavit, Eaton apprised the court that he could recognize DellaValle’s voice, based on the two prior calls, and on December 8, 1971 a state court warrant was issued for “the interception of telephonic communications of Joseph DellaValle with co-conspirators, accomplices and agents.” Although Eaton had previously participated in wiretaps, Fishman had never supervised such an operation. But more experienced members of the prosecutor’s office briefed Fishman on the danger of intercepting non-pertinent telephone calls, and Eaton’s superior in the police department, Lieutenant John Hill, testified that, prior to the installation of the wiretap, Fishman had reviewed with Hill and Eaton certain precautionary procedures which they, in turn, repeated to all" } ]
752913
the effect that he did not understand the charges was likewise incredible. Viewed against this backdrop, Judge Boyle’s Rule 11 colloquy with the accused was sufficient to insure that Sparfven appreciated the nature of the charges to which he thereafter pled. This is especially so given (i) Sparfven’s responses to the court during the February 16 hearing, (ii) the fact that Sparfven was a sophisticated, intelligent fellow, and (iii) the totality of the circumstances, including the questioning and the replies of the other defendants at the multi-party change-of-plea session. It is plain that, taken in the context of what then transpired and what had gone before, Sparfven was placed on notice of the charges against him, and the elements thereof. Cf. REDACTED McGuirk v. Fair, 622 F.2d 597, 599 (1st Cir.), cert. denied, 449 U.S. 882, 101 S.Ct. 233, 66 L.Ed.2d 106 (1980). Thus, the court holds that the petitioner did, on February 16, 1983, comprehend the charges to which his pleas were entered. See, e.g., United States v. Barker, 514 F.2d 208, 226 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Cf. Richard v. Callahan, supra. And, for much the same reasons, Judge Boyle, given the specificity of the indictments, the entire colloquy, and Sparfven’s ready acknowledgement of his participation in the twin conspiracies, e.g., FT at 18, cannot fairly be said to have overlooked the factual basis for the guilty pleas.
[ { "docid": "5690923", "title": "", "text": "shown that “he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” 426 U.S. at 645 n. 13. Petitioner’s argument here is not that he did not know the elements of second degree murder in Massachusetts, but rather that he subjectively thought he was admitting to second degree murder based only on the felony murder rule. Thus, so his argument goes, his plea was not an intelligent admission of intent to kill or knowledge of the substantial likelihood of the victim’s death. Petitioner fails to appreciate the significant difference between the facts of Henderson and the instant case. In Henderson, the accused had not been through twelve days of trial and the summations had not been concluded. Henderson pled guilty before trial. The only evidence in the record before the Supreme Court was the colloquy between the trial judge and the accused, in which there was no mention of intent. The Court stated: “There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent.” Id. at 646. In the instant case, the twelve day trial record, taken as a whole, provides more than an adequate substitute for petitioner’s own admission of the requisite malice. In contrast to Henderson, we are not restricted to the accused’s own words to determine what notice had been given him. Rather, petitioner was put on notice of the charge against him, and all the elements thereof, by the testimony of all the trial witnesses. The jury would have based its verdict on the entire record. Petitioner cannot be heard to claim that, for purposes of his plea, his ears and eyes were closed during the trial to all of the testimony. See McGuirk v. Fair, 622 F.2d 597, 599 (1st Cir.) (description of events given by detective to the judge in accused’s presence), cert. denied, 449 U.S. 882 (1980). We hold that petitioner’s guilty plea was knowingly and voluntarily made. Based on our careful examination of the entire" } ]
[ { "docid": "8091942", "title": "", "text": "a “fair and just” reason in light of the abuse of discretion standard is best resolved by the courts on a case-by-case basis. See Rule 32(d) advisory committee note. Several factors are relevant. One consideration, albeit insufficient per se for withdrawal, is defendant’s assertion of legal innocence at the time of his guilty plea. See United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). However, if defendant’s factual contentions create no “legally cognizable defense” to the charges, “he has not effectively denied his culpability,” and the motion can be denied. Id. at 220. The district court may also ascertain the reasons why the defenses raised in the withdrawal motion were not brought to the court’s attention at the time of the original pleading. United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983). The amount of time between the guilty plea and the filing of the motion should also be considered. “A swift change of heart” reduces the likelihood of prejudice to the government from permitting withdrawal, and strongly indicates that the plea was entered in “haste and confusion.” Barker, 514 F.2d at 222 (“[e]ven where the plea was properly entered [under Fed.R. Crim.P. 11] ... the standard for judging the movant’s reasons for delay remains low where the motion was filed only a day or so after the plea was entered”). Cf. United States v. Crosby, 714 F.2d 185, 192 (1st Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984) (eight week interval, not swift enough); Keefe, 621 F.2d at 20 (twenty day delay, same result); Núñez Cordero, 533 F.2d at 726 (motion denied for two week delay). Certain factors which suffice for a postconviction remedy under 28 U.S.C. § 2255 satisfy as well the less stringent burden of Rule 32(d). See advisory committee’s note, ante. Among those is the prosecution’s breach of a plea bargaining recommendation which results in a miscarriage of justice or is" }, { "docid": "22350752", "title": "", "text": "decided to plead guilty prior to the Rule 11 proceeding so that any physical or mental impairment he had at the time of the proceeding did not effect his decision. Furthermore, the court found Buckles’ “belated assertion” of innocence to be unconvincing. A mere declaration of innocence does not entitle a defendant to withdraw his guilty plea. See Government of Virgin Islands v. Berry, 631 F.2d 214, 220 (3d Cir.1980); United States v. Barker, 514 F.2d 208, 220-22 (D.C.Cir.), cert denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Guilty pleas would be of little value to the judicial system if a defendant’s later conclusory assertion of innocence au tomatically negated his plea. See id. at 221. Knowing and Voluntary Plea Buckles contended at the hearing that on the day he had plead guilty he was physically ill and mentally impaired by prescription medicine and thus his plea had not been voluntary. Buckles asserted that he had had a respiratory infection with a high fever and had taken someone else’s prescription pain killers and several other medications containing codeine. Buckles testified that he had informed the judge he was taking cough syrup but had said nothing about the pain killers. Buckles contended that he had only a hazy recollection of the rest of the plea hearing and could not remember what else the judge had asked or told him. Buckles now argues that the district court should have allowed him to withdraw his plea because without the Rule 11 hearing transcript to refute his allegations there was no other evidence for the court to consider. Buckles contends that the absence of a verbatim transcript mandates a reversal and an opportunity for Buckles to “plead anew.” When a defendant decides to plead guilty, Fed.R.Crim.P. 11 requires that a colloquy take place between the judge and the defendant, personally, to ensure the plea is intelligently and voluntarily made, and there is a factual basis for the plea. See United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d" }, { "docid": "16099357", "title": "", "text": "495, 498, 30 L.Ed.2d 427 (1971), we nonetheless find that the trial court abused its discretion in the unusual circumstances of this case. However, because no prejudice resulted, we find the error harmless. The validity of Gedde’s attempted plea hinges upon Rule 11 of the Federal Rules of Criminal Procedure, which governs the disposition of pleas generally. Fed. R.Crim.P. 11. Most Rule 11 litigation arises in the reverse context of this case. See, e.g., Santobello, 404 U.S. at 258-60, 92 S.Ct. at 497-98; McCarthy v. United States, 394 U.S. 459, 461-63, 89 S.Ct. 1166, 1168-69, 22 L.Ed.2d 418 (1969); United States v. Davis, 516 F.2d 574, 575-76 (7th Cir.1975); United States v. Barker, 514 F.2d 208, 216-18 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). In those more typical Rule 11 controversies, defendants attempt to withdraw their guilty pleas, often on the theory that the trial court did not follow proper procedure before accepting the plea. Rule 11 acts primarily as a safeguard to prevent the hasty acceptance of guilty pleas that are not made knowingly and voluntarily. In addition to the “knowing and voluntary” inquiry, Rule 11(f) requires that the trial court find a factual basis for the plea in order to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” Fed.R.Crim.P. 11 advisory committee’s note (1966 Amendment). This factual basis can most easily be found where a defendant “ ‘describe[s] the conduct that gave rise to the charge’ ” in the indictment. Id. (1974 Amendment) (quoting Santobello, 404 U.S. at 261, 92 S.Ct. at 498). The Government argues that the trial court properly rejected Gedde’s guilty plea because it lacked a factual basis. The trial court reasoned that, because count one of the indictment “charge[d] Mr. Washington and Mr. Gedde,” the court could only accept a guilty plea from Gedde if he “acknowledge[d] that he did distribute with Mr. Washington.” Plea Tr. at 12 (emphasis added). This was error." }, { "docid": "10797659", "title": "", "text": "April 14, 1980, McKoy entered pleas of guilty to the first two charges; pursuant to a plea bargain, the remaining counts were to be dismissed at the time of sentencing. After a hearing complying with the requirements of Fed.R.Crim.P. 11, District Judge Harold H. Greene accepted the guilty pleas and set May 23 as the sentencing date. On May 21 McKoy filed a pro se motion to withdraw his guilty pleas. Judge Greene held an evidentiary hearing on July 9 at the conclusion of which he denied the motion. Thereafter, on July 17, Judge Greene sentenced McKoy to imprisonment for twelve to forty-five years on the charge of killing a person while attempting to avoid apprehension. The remaining counts were ordered dismissed. McKoy now asserts that his April 14, 1980, plea was not voluntary. He alleges that anti-anxiety medication he was using at the time, combined with pressure from a defense counsel who was not adequately prepared for trial, led him to enter the plea against his better judgment. He further maintains that he was not involved in the episode to which the indictment relates. In addition, he wishes to pursue an insanity defense. The Government responds that McKoy’s original plea was a reasoned, tactical decision, one that removed from the case the risk of conviction on a felony murder charge. Further, the Government points to an intervening event. After McKoy’s April 14 plea, on April 23, his co-defendants were sentenced. Although both had entered guilty pleas, cooperated with the Government, and agreed to testify against McKoy should he stand trial, they received substantial sentences. The Government suggests that McKoy could forecast from those sentences that his own would be heavier than he had anticipated. Judge Greene was called upon to determine whether permitting McKoy to withdraw his plea would be “fair and just” taking into account the particular facts and circumstances his case presented. United States v. Barker 514 F.2d 208, 218-19 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420,44 L.Ed.2d 682 (1975). Reversal of a trial court’s ruling on a plea withdrawal motion is" }, { "docid": "9673744", "title": "", "text": "to allow withdrawal of the plea.” Id. at 221. (emphasis added). Davila is here asking us to insulate him from the consequences of a similar “tactical error”. A guilty plea “frequently involves the making of difficult judgments”. McMann v. Richardson, supra, 397 U.S. at 769, 90 S.Ct. at 1448. Were withdrawal automatic in every case where the defendant decided it would be to his best interest to present his case to a jury, “guilty pleas would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim.” United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.1975) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682. Davila weighed his options and knowingly and intelligently decided not to risk presenting his case to a jury. He voluntarily acknowledged his guilt with intelligent understanding of the nature of the charge and the consequences of the plea. Entry of the guilty plea was a deliberate, reasoned decision. We do not find that the refusal of the district court to permit him to withdraw his plea was an abuse of discretion. IV. Conclusion We hold that Davila’s agreement to keep the payoff money until the perjured testimony was given was an affirmative act of concealment meeting the requirements of 18 U.S.C. § 4, that his misprision conviction can stand independently of the felony charge, and that the district court did not abuse its discretion in denying his motion to withdraw his plea. Accordingly, the decision of the district court must be affirmed. AFFIRMED. . The exchange between the district judge and Davila was as follows: THE COURT: Captain Davila, you are not required to plead guilty by law. In fact, you are entitled to plead not guilty or to persist in a plea of not guilty if you have not heretofore made that plea. You have the right to be tried either by the judge or by a jury at your election. You have the right to assistance of counsel at every stage of the proceedings. At trial you have the right to be present and to look" }, { "docid": "8091941", "title": "", "text": "his innocence, and claimed that counsel and others had erroneously advised and induced him to plead guilty. Without holding an evidentia-ry hearing, the district court denied the motion to withdraw. This appeal ensued. Discussion Defendant’s right to withdraw a guilty plea is not absolute. See, e.g., United States v. Burnett, 671 F.2d 709, 712 (2d Cir.1982). A court may grant a withdrawal application filed before sentencing upon a defendant’s showing of a “fair and just reason.” Fed.R.Crim.P. 32(d), codifying Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); see Annotation, Withdrawal of Plea of Guilty or Nolo Contendere Before Sentence, Under Rule 32(d) of the Federal Rules of Criminal Procedure, 6 A.L.R.Fed. 665 (1971 & Supp.1986). Although the standard for a presentence withdrawal remains a liberal one, this court will not set aside the district court’s findings unless a defendant unequivocally shows an abuse of discretion. United States v. Keefe, 621 F.2d 17, 20 (1st Cir. 1980); Núñez Cordero v. United States, 533 F.2d 723, 725 (1st Cir.1976). What constitutes a “fair and just” reason in light of the abuse of discretion standard is best resolved by the courts on a case-by-case basis. See Rule 32(d) advisory committee note. Several factors are relevant. One consideration, albeit insufficient per se for withdrawal, is defendant’s assertion of legal innocence at the time of his guilty plea. See United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). However, if defendant’s factual contentions create no “legally cognizable defense” to the charges, “he has not effectively denied his culpability,” and the motion can be denied. Id. at 220. The district court may also ascertain the reasons why the defenses raised in the withdrawal motion were not brought to the court’s attention at the time of the original pleading. United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983). The amount of time between the guilty plea and the filing of the" }, { "docid": "10797660", "title": "", "text": "not involved in the episode to which the indictment relates. In addition, he wishes to pursue an insanity defense. The Government responds that McKoy’s original plea was a reasoned, tactical decision, one that removed from the case the risk of conviction on a felony murder charge. Further, the Government points to an intervening event. After McKoy’s April 14 plea, on April 23, his co-defendants were sentenced. Although both had entered guilty pleas, cooperated with the Government, and agreed to testify against McKoy should he stand trial, they received substantial sentences. The Government suggests that McKoy could forecast from those sentences that his own would be heavier than he had anticipated. Judge Greene was called upon to determine whether permitting McKoy to withdraw his plea would be “fair and just” taking into account the particular facts and circumstances his case presented. United States v. Barker 514 F.2d 208, 218-19 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420,44 L.Ed.2d 682 (1975). Reversal of a trial court’s ruling on a plea withdrawal motion is uncommon; absent abuse of discretion, an appellate court will not overturn a decision that the plea should stand. Id. at 219. We cannot conclude from the record before us that Judge Greene exceeded the limits of his discretion in determining, after a full airing of the matter, that McKoy made an uncoerced, reasoned choice in pleading guilty, and that the justifications asserted for withdrawing the plea are post hoc explanations rooted in fear of a substantial sentence. See Tr. 105-08. McKoy does not assert that the hearing on his plea was conducted unfairly or without due regard for Rule 11 requirements. Nor was the withdrawal motion a swift attempt at retraction. McKoy’s motion thus attracts no special solicitude as a prompt application or as a challenge to questionable hearing procedures. See United States v. Barker, supra, 514 F.2d at 219-20. On the other hand, McKoy emphasizes that the Government asserts no prejudice to its case should the motion be granted. We therefore focus on two questions: does McKoy now present a plausible defense to the" }, { "docid": "1996344", "title": "", "text": "a plea agreement unless he also entered into a plea agreement, the government overreached; it used improper, indeed unconstitutional, pressure to force him to plead guilty. We note, however, that Pollard does not contest his guilt. He does not ask for a new trial to establish his innocence. Cf. United States v. Barker, 514 F.2d 208, 220 (D.C.Cir.) (en banc) (in deciding whether to permit withdrawal of a guilty plea, whether defendant claims innocence is an “important factor” to consider), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). We are not faced with the prospect that an innocent man was involuntarily compelled to plead guilty. Still, that is not dispositive. Government coercion of a eer-tain degree and kind would invalidate the plea agreement even though Pollard does not contest his guilt. See Fontaine v. United States, 411 U.S. 213, 214-15, 93 S.Ct. 1461, 1462-63, 36 L.Ed.2d 169 (1973) (per curiam). Pollard first argues that the district judge did not strictly follow the dictates of Fed.R.Crim.P. 11, which requires a district judge accepting a guilty plea to advise the defendant in open court of the rights he is surrendering and to determine that his plea is voluntary and “not the result of force or threats or of promises apart from a plea agreement.” Fed.R.Crim.P. 11(c) & (d). Chief Judge Robinson, although he questioned Pollard at great length as to his understanding of his rights and the significance of the plea, never in haec verba asked Pollard whether his plea was voluntary. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), holds, however, that failure to comply with the literal language of Rule 11 does not itself constitute the “complete miscarriage of justice” required before a court will grant a § 2255 motion. Id. at 784, 99 S.Ct. at 2087. Pollard’s more substantial involuntariness argument is that wired pleas are unconstitutional. The Supreme Court has specifically reserved judgment on “the constitutional implications of a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused.” Bordenkircher v." }, { "docid": "9673743", "title": "", "text": "to withdraw his plea. The defendant, Berry, had pleaded guilty to second degree murder pursuant to an agreement with the government that additional charges against him would be dropped. Berry agreed to testify for the government against another person charged in the same robbery and murder. Six days later, the co-defendant was found not guilty, and Berry filed a motion to withdraw his plea. Berry had apparently believed that the co-defendant would take the stand at his own trial and testify that Berry was the person who had shot the victim. The co-defendant did not testify. Consequently, Berry claimed, he had not made a “voluntary and intelligent choice” to plead guilty. In finding that the lower court had not abused its discretion in refusing to allow Berry to withdraw his plea under these circumstances, the Third Circuit stated that “Berry and his counsel may have made a tactical miscalculation by not considering the possibility that Francois [the co-defendant] would not testify at his own trial, but such a tactical error does not require the court to allow withdrawal of the plea.” Id. at 221. (emphasis added). Davila is here asking us to insulate him from the consequences of a similar “tactical error”. A guilty plea “frequently involves the making of difficult judgments”. McMann v. Richardson, supra, 397 U.S. at 769, 90 S.Ct. at 1448. Were withdrawal automatic in every case where the defendant decided it would be to his best interest to present his case to a jury, “guilty pleas would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim.” United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.1975) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682. Davila weighed his options and knowingly and intelligently decided not to risk presenting his case to a jury. He voluntarily acknowledged his guilt with intelligent understanding of the nature of the charge and the consequences of the plea. Entry of the guilty plea was a deliberate, reasoned decision. We do not find that the refusal of the district court to permit him to" }, { "docid": "16099356", "title": "", "text": "counts of the indictment. At the sentencing hearing, the judge refused to grant Gedde a two-level sentence reduction for acceptance of responsibility. On appeal, Gedde contests that decision and the sufficiency of the evidence supporting the conviction for possession with intent to distribute. Washington contests the sufficiency of the evidence against him with respect to both counts. II. Analysis A. Rejection of Gedde’s Guilty Plea 1. Abuse of Discretion Gedde’s first contention on appeal requires us to decide whether a trial court may reject a knowing and voluntary guilty plea because a defendant refuses to admit to facts external to the essential elements of the offense charged. The trial court held that, because Gedde and Washington were jointly charged with distribution, Gedde was required to incriminate Washington in order to enter a valid plea. While we recognize that a defendant has “no absolute right to have a guilty plea accepted,” and that a trial court can “reject a plea in exercise of sound judicial discretion,” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), we nonetheless find that the trial court abused its discretion in the unusual circumstances of this case. However, because no prejudice resulted, we find the error harmless. The validity of Gedde’s attempted plea hinges upon Rule 11 of the Federal Rules of Criminal Procedure, which governs the disposition of pleas generally. Fed. R.Crim.P. 11. Most Rule 11 litigation arises in the reverse context of this case. See, e.g., Santobello, 404 U.S. at 258-60, 92 S.Ct. at 497-98; McCarthy v. United States, 394 U.S. 459, 461-63, 89 S.Ct. 1166, 1168-69, 22 L.Ed.2d 418 (1969); United States v. Davis, 516 F.2d 574, 575-76 (7th Cir.1975); United States v. Barker, 514 F.2d 208, 216-18 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). In those more typical Rule 11 controversies, defendants attempt to withdraw their guilty pleas, often on the theory that the trial court did not follow proper procedure before accepting the plea. Rule 11 acts primarily as a safeguard to prevent the hasty acceptance of guilty" }, { "docid": "10267659", "title": "", "text": "with the written word, it was logical that he first raised his motion to withdraw orally at his first court appearance following the change of plea hearing, is inconsistent with his position that the written motion was actually made prior to sentencing. Indeed, Isom referred to the written motion in his oral motion. 4. Assertion of Innocence An assertion of innocence weighs the balance in favor of withdrawal; the failure to do so does the opposite. See Parrilla-Tirado, 22 F.3d at 373. Nonetheless, “the mere protestation of legal innocence cannot in and of itself be issue-determinative, for ‘[t]here are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal.’” Kobrosky, 711 F.2d at 455 (quoting Núñez-Cordero v. United States, 533 F.2d 723, 726 (1st Cir.1976)). Thus, “if defendant’s factual contentions create no ‘legally cognizable defense’ to the charges, ‘he has not effectively denied his culpability,’ and the motion can be denied.” Ramos, 810 F.2d at 312 (quoting United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975)). Isom’s assertion of innocence is addressed above. 5. Other Factors Finally, we note that Isom did, indeed, have a plea agreement with the government, which was not breached. “Since all the critical integers in the decisional calculus counsel affirmance, we need not embark upon an analysis of possible prejudice to the government.” Doyle, 981 F.2d at 596 n. 6. CONCLUSION For the reasons discussed above, the district court’s refusal to grant Isom’s motion to withdraw his plea is affirmed. . McKinney had already pled guilty to the two counts of the indictment. . Defendant testified at the change of plea hearing that he had a ninth-grade education. At the sentencing hearing, however, the court stated that Isom had a second-grade reading level." }, { "docid": "2871568", "title": "", "text": "seventeen years of age at the time he entered his plea and the record is barren of any indication of his having had any prior experience with the criminal justice system. At the next opportunity, six days later at sentencing, Miller’s first words to the court were, “I would like to withdraw my plea because I didn’t quite understand the proceedings.” The court’s only response was, “Denied.” Since the trial court made no effort whatsoever to give the defendant an opportunity to explain his problem, much less explore on its own (the court’s) the basis of Miller’s professed lack of understanding, we cannot determine whether it was related to the crimes he was charged with, the sentence he was to receive, the MSR period, or some other aspect of the plea proceedings. Trial judges are well advised to be very meticulous and circumspect when advising all defendants of their rights at a plea hearing, but this is especially true when, as is the case here, the defendant is a seventeen year old juvenile with, according to the record before us, no prior experience in the criminal justice system. Furthermore, when a seventeen year old, or anyone, particularly those inexperienced in the criminal justice system, expresses a quick change of heart (attempting to change his plea six days later at the next opportunity before sentencing) and implores the court to allow him to withdraw his previously entered guilty plea, the trial court should be alert to the possibility that the plea was “entered in haste and confusion,” and must explore the nature of the defendant’s confusion to verify that the guilty plea is in fact intelligently and voluntarily entered. Cf. United States v. Barker, 514 F.2d 208, 222 (D.C.Cir.1974), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). The district court dismissed these additional alleged errors, considering them to be mere “technical violations” as defined in Timmreck, and not rising to the level of constitutional violations. Accordingly, the district court determined that Miller’s constitutional right to due process would be vindicated by allowing the state of Illinois to" }, { "docid": "863213", "title": "", "text": "later moved to withdraw his plea, the defendant characterized his understanding of the charge in such a way to indicate he did not comprehend the charge. We held that on the record in that case, the defendant should have been allowed to withdraw his plea. Here, Rasmussen has in no way explained how he misunderstood the intent element of the charge or the concept of permission. In Pressley, we remanded for a fuller determination of the reasons for the district court’s refusal to allow withdrawal of a motion because the record indicated the defendant there was of questionable competence and because the record at the time of the plea raised questions as to whether the defendant understood the plea bargain agreement under which he was pleading. Here there is no question as to Rasmussen’s competence, and our review of the record convinces us that there is no question about Rasmussen’s understanding of the charge against him. As we read Rasmussen’s motion for withdrawal of plea, it amounts to a mere assertion of innocence. It is no stronger than the disclaimer of an intent to defraud which we found inadequate to require withdrawal of a plea in Meaton v. United States, 328 F.2d 379 (5th Cir. 1964). As noted by the District of Columbia Circuit, if the mere assertion of legal innocence were a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Barker held that, in addressing a withdrawal motion, the court must consider not only whether the defendant has asserted his innocence, but also the reason why the defenses now presented were not put forward at the time of the original pleading. Id.; see also United States v. Webster, 468 F.2d 769 (9th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973); Callaway v. United States, 367 F.d 140 (10th Cir. 1966); United States v. Giuliano, 348 F.2d 217 (2d Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 406, 15 L.Ed.2d" }, { "docid": "9638969", "title": "", "text": "burden of proving requisite intent held a violation of Rule 11). . In United States v. Barker, 514 F.2d 208, 222 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975), the D.C. Circuit noted that “[a] swift change of heart is itself strong indication that the plea was entered in haste and confusion.” We agree. . As the Supreme Court explained in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970): Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney desired. Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. Id. 91 S.Ct. at 167. . Although Dayton tells us that something more than a reading of the indictment is indicated only where the charges are complex, the act of entering an Alford plea to even simple charges may prove confusing to some defendants. Because of the unique nature of the Alford plea itself, judges accepting such pleas must take especial care to ensure that the defendant knows what he is doing; additional explanation of the nature of the plea as it relates to the charges may prove quite helpful in such cases. See United States v. Roberts, 570 F.2d 999 (D.C.Cir.1977), aff'd, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). . Even if we were to apply the Chapman standard, we could not under the circumstances of this case say that the error here was harmless. Counsel has indicated by sworn affidavit that he may well have overborne his client’s will in persuading him to enter an Alford plea. Punch has steadfastly maintained his innocence," }, { "docid": "21589577", "title": "", "text": "v. Barker, 514 F.2d 208, 211 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975)). While the defendant in the present case now asserts his innocence, we note that the evidence against him was strong, that in allocution the defendant admitted that he had “made a mistake,” and that the claim of innocence did not surface until more than seventeen months after his hearing and some months after he had been served notice of the deportation action against him. As we have previously stated: A swift change of heart is itself strong indication that the plea was entered in haste and confusion; furthermore, withdrawal shortly after the event will rarely prejudice the Government’s legitimate interests. By contrast, if the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times, the reasons given to support withdrawal must have considerably more force. Barker, 514 F.2d at 222. In reviewing Del Rosario’s collateral attack upon his conviction under § 2255, the District Court was properly mindful of its mandate to overturn the conviction only if it resulted in “a complete miscarriage of justice.” Hill, 368 U.S. 424 at 428, 82 S.Ct. 468 at 471, 7 L.Ed.2d 417. The District Court, after an evidentiary hearing, held that Del Rosario “fails to demonstrate that the outcome of his case would have been any different had he been aware of the likely deportation consequences of his guilty plea.” Del Rosario, Crim. No. 86-356-01, slip op. at 12. The District Court reached this conclusion upon finding that Del Rosario’s claim of innocence was not credible, and that had he gone to trial, “the odds are overwhelming that he would have been convicted.” Id. at 13. See United States v. Quin, 836 F.2d 654, 656 (1st Cir.1987) (affirming denial of § 2255 motion upon finding protestations of innocence not credible); United States v. Gavilan, 761 F.2d 226 (5th Cir.1985) (affirming denial of § 2255 motion for lack of claim of innocence or allegation defendant would have pled differently). This Court applies a highly" }, { "docid": "567624", "title": "", "text": "he lacked “ ‘real notice of the true nature of the charge against him,’ ” id. at 645, 96 S.Ct. at 2257, quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941), and that his guilty plea was therefore constitutionally deficient. In Henderson, the Supreme Court held that a guilty plea to second degree murder was involuntary where it was established as a fact that the defendant had not been informed and was not aware that under New York law intent to kill was an essential element of the offense to which he pled. As we have observed elsewhere, the Henderson Court did not purport to lay down an absolute requirement that “the technical elements of an offense, which are often confusing even to lawyers,” be recited to defendants wishing to plead guilty. McGuirk v. Fair, 622 F.2d 597, 598 (1st Cir.1980), cert. denied, 449 U.S. 882, 101 S.Ct. 233, 66 L.Ed.2d 106 (1980). The Henderson Court noted that [njormally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent. 426 U.S. at 647, 96 S.Ct. at 2258 (emphasis added). In the present case, the state court found as a fact that Nelson’s counsel “informed defendant of the elements that distinguish first degree from second degree murder,” and drew “a reasonable inference that counsel also informed defendant of the elements common to both offenses.... The Court concludes that in this case the defendant’s bare assertion that no one informed him of the element of malice is therefore insufficient to sustain his burden of proof on this issue.”" }, { "docid": "12142903", "title": "", "text": "the propriety of allegedly illegal police conduct which only produces some evidence of a fact now conclusively established and judicially admitted by an accused in his plea of guilty.” Dusenberry, supra, at 290, 49 C.M.R. at 539; Hamil, supra, at 111, 35 C.M.R. at 83. While there are sound arguments which can be made in favor of permitting conditional guilty pleas, military appellate courts consistently have held that a guilty plea waives appellate review of evidentiary objections, and this view has now been codified in Mil.R.Evid. 304(d)(5) and Sll(i). The parties to the trial have no authority to negotiate a change in the legal effect of a guilty plea or the scope of appellate review. Since the military judge incorrectly advised the appellant that he preserved his objections in spite of the guilty plea, the appellant’s plea was based on a substantial misunderstanding of the legal effect of his pleas. As such it was improvident. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); see United States v. Peters, 11 M.J. 875 (N.M.C.M.R.1981) ; see generally United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority. Senior Judge CARNE and Judge O’DONNELL concur. . The federal courts are split on the permissibility of a conditional guilty plea. See United States v. DePoli, 628 F.2d 779, 781 n.1 (2d Cir. 1980). However, unlike judges in courts-martial, federal judges may accept a “tactical” guilty plea even though the defendant continues to assert his innocence. See e.g., United States v. Neel, 547 F.2d 95 (9th Cir. 1977); United States v. Barker, 514 F.2d 208 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975); compare Rule 11, Fed.R. Crim.P., with Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 70b(3). There is no equivalent of Mil.R.Evid. 304(d)(5) and 31 l(i) in the Federal Rules of Evidence or the Federal Rules of Criminal Procedure. . Although the Navy-Marine Corps Court of Military" }, { "docid": "567623", "title": "", "text": "his decision to change pleas. The defendant’s primary if not sole motivation to enter a plea ... was to avoid the possible imposition of the death penalty. Moreover, counsel had informed him that second degree murder was punishable by life imprisonment. The Court is unable to find any evidence in the record to show that defendant was relying upon the erroneous assumption that he could receive only one life sentence if he changed his plea. We agree that any misunderstanding on Nelson’s part as to sentencing did not materially affect his pleas, and therefore does not rise to the level of a substantial constitutional objection. Nelson’s third contention goes to his understanding of the elements of the charged offenses, especially the malice requirement for second degree murder. He claims that neither the trial judge nor defense counsel explained to him the meaning of malice or the fact that it was an essential element of second degree murder. He argues, relying on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), that he lacked “ ‘real notice of the true nature of the charge against him,’ ” id. at 645, 96 S.Ct. at 2257, quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941), and that his guilty plea was therefore constitutionally deficient. In Henderson, the Supreme Court held that a guilty plea to second degree murder was involuntary where it was established as a fact that the defendant had not been informed and was not aware that under New York law intent to kill was an essential element of the offense to which he pled. As we have observed elsewhere, the Henderson Court did not purport to lay down an absolute requirement that “the technical elements of an offense, which are often confusing even to lawyers,” be recited to defendants wishing to plead guilty. McGuirk v. Fair, 622 F.2d 597, 598 (1st Cir.1980), cert. denied, 449 U.S. 882, 101 S.Ct. 233, 66 L.Ed.2d 106 (1980). The Henderson Court noted that [njormally the record contains either an explanation of the charge" }, { "docid": "9638968", "title": "", "text": "defendant ... pleaded guilty to a crime that requires a “knowing and willful” attempt to defraud the Government of its tax money; yet, throughout his sentencing hearing, he and his counsel insisted that his acts were merely “neglectful,” “inadvertent,” and committed without “any disposition to deprive the United States of its due.” Remarks of this nature cast considerable doubt on the Government’s assertion that petitioner pleaded guilty with full awareness of the nature of the charge. Id. 89 S.Ct. at 1173. See also United States v. Roberts, 570 F.2d 999 (D.C.Cir.1977), aff'd, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980): [Defendant’s] case for withdrawal is further advanced by the fact that he has never admitted his guilt to any of the charges against him. From the time of indictment, he has protested his innocence, and the Alford plea he ultimately was persuaded to enter, does not concede any wrongdoing on his part. Id. at 1009. . See United States v. Godwin, 687 F.2d 585, 589 (2d Cir.1982) (failure to explain that Government had burden of proving requisite intent held a violation of Rule 11). . In United States v. Barker, 514 F.2d 208, 222 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975), the D.C. Circuit noted that “[a] swift change of heart is itself strong indication that the plea was entered in haste and confusion.” We agree. . As the Supreme Court explained in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970): Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney desired. Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited" }, { "docid": "420853", "title": "", "text": "banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). The assertion of innocence, however, does not entitle defendant to an automatic withdrawal of his plea. Id. The second factor “is the possible existence of prejudice to the government’s case as a result of the defendant’s untimely request to stand trial.” United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982). The defendant’s reasons for withdrawing the plea “must meet exceptionally high standards where the delay between the plea and the withdrawal motion has substantially prejudiced the Government’s ability to prosecute the case.” Barker, 514 F.2d at 222. Finally, and most importantly, the district court must consider whether there was some defect in the original plea. “It should go without saying that the standard [for granting a motion to withdraw a guilty plea] is very lenient when the plea was entered unconstitutionally or contrary to Rule 11 procedures.” Id. at 221. A guilty plea cannot be considered voluntary under Rule 11 “if it is induced by threats or misrepresentation, or if the defendant is not ‘fully aware of the direct consequences’ of the plea.” Russell, 686 F.2d at 38 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). Appellant asserts that his guilty plea on September 5, 1990, was based on the as sumption that the court would give him credit for the six and one-half years he served in connection with the murder charge of which he was subsequently acquitted. See Appellant’s Brief at 16. Appellant argues that as soon as he learned that the district judge would not reduce the mandatory minimum sentence for time already served, he sought to withdraw his plea. It was, according to appellant, an abuse of discretion for the court to deny his motion. Appellant relies heavily on the colloquy between appellant’s counsel and the court on May 9, 1990, in which the district judge said that he would “make some allowance” for time served. See Transcript (D.D.C. May 9, 1990) at 7-8. This colloquy occurred before the court had determined that the" } ]
134180
provision is essential. Section 25 in no uncertain terms provides that an affidavit of personal bias or prejudice shall not be filed “unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith”. This is no meaningless provision; its purpose is obvious. A judge may not consider the truth or falsity of allegations in an affidavit of personal prejudice or bias, and the provision requiring the certificate of a member of- the bar is a precaution against abuse of the privilege afforded by the act. The “good faith” certificate of counsel of record is indispensable and affidavits which are not accompanied by the certificate are insufficient and may not be filed. REDACTED Newman v. Zerbst, 10 Cir., 83 F.2d 973; Currin v. Nourse, 8 Cir., 74 F.2d 273; Morse v. Lewis, 4 Cir., 54 F.2d 1027; Henry v. Speer, 5 Cir., 201 F. 869; Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; United States v. Flegenheimer, D.C., 14 F.Supp. 584. There is no merit in the contention that Beland was representing himself and that, therefore, certificate of counsel was not .required. Whatever may be said as to relaxing the requirement where a person has no counsel of record would not apply here for Beland had counsel of record at all times and they declined to sign the certificate. Beland could not shuttle his counsel in and out of the case
[ { "docid": "13604596", "title": "", "text": "PER, CURIAM. This is an application for a writ of mandamus to require respondent to make an order of record in connection with an affidavit of prejudice filed by petitioner against respondent in cause No. 116 in equity, pending in the District Court for the Western District of Missouri, St. Joseph Division, in which the petitioner, Jean Cuddy, is plaintiff, and John L. Cole, W. C. Cole, Bethany Trust Company, and L. G. Prentiss are defendants, and to certify the same to the senior circuit judge of this court for such proceedings in the designation of a judge to try said cause as are provided by law. The petition, supported by affidavits, the answer and return of respondent, and the reply of petitioner thereto are before us, and have been fully considered. The affidavit of prejudice upon which petitioner relies is made by one J. L. Love, as attorney in fact for petitioner, is unaccompanied by certificate of counsel, and states, as the facts and reasons for the belief that bias and prejudice exists, the rulings of repondent in denying certain applications for continuance filed on behalf of petitioner. No other basis for the charge of sueh bias or prejudice is shown. The controlling principles involved have been sueeinetly stated. A motion to disqualify a judge under section 25, vol. 28, U. S. C. A. (section 21, Judicial Code), can only be made by a party to the litigation. Anchor Grain Co. v. Smith (C. C. A. 5) 297 F. 204. The certificate of counsel that the affidavit and application are made in good faith is indispensable as a precaution against abuse, and strict and full compliance with the provisions of'the statute is required. Henry v. Speer (C. C. A. 5) 201 F. 869; Berger v. United States, 255 U. S. 22, 33, 41 S. Ct. 230, 233 (65 L. Ed. 481). The judge against whom the affidavit is filed may pass upon the sufficiency of the affidavit, but not upon the truth or falsity Of the facts alleged. Henry v. Speer, and Berger v. United States, supra. “Of course" } ]
[ { "docid": "22836551", "title": "", "text": "is a discretionary writ. Strictly, the district judge is the respondent in such mandamus proceedings, but with his assent, and in accordance with our customary practice, we have permitted intervenor Gazette to file an answer instead. We deal initially with its contention that the certificate of counsel accompanying the affidavit should have stated that counsel was acting in good faith, not that affiant was. The statute requires “a certificate of counsel of record stating that it is made in good faith.” The question is what, or who, the word “it” refers to. While some courts have assumed that the statute was aimed merely at counsel’s opinion that his client was acting in good faith, all agree that the affidavit has indispensable value. See Berger v. United States, 1921, 255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481; Beland v. United States, 5 Cir., 1941, 117 F.2d 958, 960, certiorari denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541; Currin v. Nourse, 8 Cir., 1934, 74 F.2d 273, 275, certiorari denied, 294 U.S. 729, 55 S.Ct. 638, 79 L.Ed. 1259; Morse v. Lewis, 4 Cir., 1932, 54 F.2d 1027, 1032, certiorari denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291; United States v. Gilboy, D.C.M.D.Pa.1958, 162 F.Supp. 384, 391, petition for writ of mandamus denied sub. nom. Green v. Murphy, 3 Cir., 1958, 259 F.2d 591. One may well question the value of counsel’s opinion of what is in his client’s mind, and we certainly must disagree with Flegenheimer v. United States, 3 Cir., 1936, 110 F.2d 379, 381, that it is a client’s “right” to have counsel’s certification when counsel believes the affidavit’s recitation to be false. If a certificate is to serve the purpose of shielding a court which cannot test the truth of claimed facts, it should at least carry the assertion that counsel believes the facts alleged to be accurate and correct. Beyond this, there is the element of legal sufficiency. It would seem meaningless to ask a lawyer to certify that his client believed an affidavit to be legally sufficient while thinking it" }, { "docid": "23663609", "title": "", "text": "and prejudice against them and in favor of Groups I, II and III of the claimants, and that such bias and prejudice prevented him from according the affiant and Lucinda Watashe a fair hearing. Those affidavits were likewise denied. Affidavits of four other intervenors were also denied. One of those parties did not appeal; and the other three did not argue the question in their briefs and are therefore deemed to have abandoned it. Travelers’ Insurance Co. v. Bancroft, 10 Cir., 65 F.2d 963, certiorari denied 290 U.S. 680, 54 S.Ct. 103, 78 L.Ed. 587; Colorado Central Power Co. v. City of Englewood, 10 Cir., 89 F.2d 233. Section 21 of’ the Judicial Code, 28 U.S.C.A. § 25, provides that when a party to a civil or criminal proceeding shall make and file an affidavit that the judge before whom the proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of an opposite party, such judge shall proceed no further, but instead another judge shall be designated to act; that the affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of court, or good cause shall be shown for failure to do so; and that no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The statute thus extending the privilege of dis qualifying a judge is remedial; but, due to its nature and the opportunity for abuse of the privilege, strict compliance with its provisions is exacted. Henry v. Speer, 5 Cir., 201 F. 869. When an affidavit of disqualification is filed it becomes the duty of the court to determine its legal sufficiency to comply with the statute on the basis of the facts therein stated. In doing so, the court is not permitted to give any consideration to the truth or falsity of the facts charged; the facts alleged" }, { "docid": "14059376", "title": "", "text": "reasons for the belief” of the. existence of such bias or prejudice, and was not accompanied by a certificate of counsel of record that the affidavit and application were made in good faith as required by the statute. Moreover, counsel for petitioner in open court stated he could not make such a certificate. The statutory requirements adverted to are not technical; they are required as a precaution against abuse of the privilege accorded. In Berger v. U.S., 255 U.S. 22, 33, 41 S.Ct. 230, 233, 65 L.Ed. 481, the court in adverting to the requirement that the. affidavit shall state the facts and the reasons for the belief of the existence of the bias or prejudice said: ' “It is a precaution against abuse, removes the averments and belief from the irresponsibility of unsupported opinion, and adds to the certificate of counsel the supplementary aid of the penalties attached to perjury.” The affidavit -was clearly insufficient in that it did not state the facts and the reasons for the belief that bias and prejudice existed, *****and was not accompanied by the requisite certificate of counsel; and it was properly overruled. The judgment is affirmed. Berger v. U. S., 255 U.S. 22, 41 S.ct. 230, 65 L.Ed. 481; Keovra v. Hughes (C.C.A. 1) 265 F. 572; Morse v. Lewis (C.C.A. 4) 54 F.(2d) 1027, 1031, 1032 (Cert. denied 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1201); Minnesota & Ontario P. Co. v. Molyneaux (C.C.A. 8) 70 F.(2d) 545 547 Cuddy v. Otis (C.C.A. 8) 33 F.(2d) 577; Currin v. Nourse (C.C.A.8) 74 F.(2d) 273 (Cert. denied 294 U.S. 729, 55 S.Ct 638, 79 L.Ed. 1259); Morse v. Lewis (C.C.A. 4) 54 F.(2d) 1027, 1032." }, { "docid": "17361568", "title": "", "text": "that the affidavit was legally insufficient and later in the trial ordered it stricken. Benedict v. Seiberling, D.C., 17 F.2d 831, 836; Sanders v. Allen, D.C., 58 F.Supp. 417, 419. The court, having stated unequivocally that he had no personal bias or prejudice against the Garden Homes, Inc., or in favor of the United States, declined to disqualify himself, and the trial proceeded. Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278, certiorari granted, 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, certiorari dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542; Sanders v. Allen, supra. The statute, Section 144 of Title 28 U.S.C., provides that a party may file an affidavit if it is accompanied by a certificate of counsel of record, stating that it is made in good faith. And one may not be counsel of record unless a member of the bar of the court before which appearance is made. Currin v. Nourse, 8 Cir., 74 F.2d 273, 275, certiorari denied, 294 U.S. 729, 55 S.Ct. 638, 79 L.Ed. 1259; United States v. Onan, 8 Cir., 190 F.2d 1, 6, certiorari denied, 342 U.S. 869, 72 S.Ct. 112, 96 L.Ed. 654. One of the salient reasons for the rule is that the court, “which has no means of protecting itself from unjustified attack, shall at least have the protection afforded by the certificate of a responsible member of the bar.” Morse v. Lewis, 4 Cir., 54 F.2d 1027, 1032, certiorari denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291. But the rejection was not based solely upon noncompliance with the rule. The complaints in the affidavit, considered separately or together, did not set out facts and reasons legally sufficient to have compelled the court to recuse itself from this case. Disqualification can be grounded only upon personal bias or prejudice, and this bias or prejudice is an attitude against a party to a proceeding, “derived otherwise than through judicial proceedings.” U. S. v. 16,000 Acres of Land, et seq., D.C., 49 F.Supp. 645, 649; Ryan v. United States, 8 Cir., 99 F.2d" }, { "docid": "2683554", "title": "", "text": "are not accompanied by the certificate are insufficient and may not be filed. Cuddy v. Otis, 8 Cir., 33 F.2d 577; Newman v. Zerbst, 10 Cir., 83 F.2d 973; Currin v. Nourse, 8 Cir., 74 F.2d 273; Morse v. Lewis, 4 Cir., 54 F.2d 1027; Henry v. Speer, 5 Cir., 201 F. 869; Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; United States v. Flegenheimer, D.C., 14 F.Supp. 584. There is no merit in the contention that Beland was representing himself and that, therefore, certificate of counsel was not .required. Whatever may be said as to relaxing the requirement where a person has no counsel of record would not apply here for Beland had counsel of record at all times and they declined to sign the certificate. Beland could not shuttle his counsel in and out of the case in order to circumvent the statute, to hold that he could do so would render meaningless and useless the plain provision of the statute which expressly requires certificate of counsel to accompany the affidavit. Moreover, had the affidavit been certified it would have been insufficient for it presents no facts showing personal prejudice or bias on the part of the trial judge. The affidavit, at most, expresses fear that the judge is not impartial; that this fear had been increased by the severity of sentences imposed in other narcotic cases, and by the fact that disbarment proceedings had been instituted against a lawyer who had certified to an affidavit of personal bias and prejudice in a former case. The allegations do not satisfy the statute which is designed to disqualify a judge because of personal bias and prejudice and not because his rulings and sentences are not acceptable to the affiant. The orderly administration of justice requires that affidavits filed under the statute be strictly construed so as to prevent abuse, and that they state facts, not baseless conclusions, showing personal bias or prejudice of the judge against the affiant. Simmons v. United States, 5 Cir., 89 F.2d 591; Ryan v. United States, 8 Cir., 99" }, { "docid": "11960408", "title": "", "text": "on June 17, 1941, when the case was called for trial, the appellant was represented by J. Forrest McCutcheon, but there is nothing in the record to indicate that attorney Smith had or did at any time withdraw his appearance as counsel of record for the appellant. Neither does the affidavit of personal bias and prejudice affirmatively state that on June 2, 1941 the appellant was not represented by counsel of record or his intention and desire to represent himself in his own right in the trial of the case. Section 21 of the Judicial Code, 28 U.S.C.A. § 25, provides that when a party to a civil or criminal proceedings shall make and file an affidavit that the judge before whom the proceedings is to be tried or heard has a personal bias or prejudice either against him or in favor of an opposing party, such judge shall proceed no further but instead another judge shall be designated to act; that the affidavit shall state the facts and the reasons for the belief that such bias and prejudice exists, and shall be filed not less than ten days before the beginning of the term of court or good cause shall be shown for failure to do so, and that no such affidavit shall be filed unless accompanied by a certificate of counsel of record and that such affidavit and application are made in good faith. When such an affidavit is filed, the truth of all of the allegations of fact contained therein is admitted, and it becomes the duty of the court to determine only its legal sufficiency, and if the affidavit meets the requirements of the statutes and is accompanied by a certificate of the counsel of record, the presiding judge can proceed no further but is disqualified. Scott v. Beams, 10 Cir., 122 F.2d 777; Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Henry v. Speer, 5 Cir., 201 F. 869; Lewis v. United States, 10 Cir., 14 F.2d 369; Nations v. United States, 8 Cir., 14 F.2d 507, certiorari denied 273" }, { "docid": "2683553", "title": "", "text": "court then held that the affidavit was insufficient under the statute and refused to recuse himself or to allow the affidavit to be filed. Beland charges that the refusal of the judge to recuse himself was error. The statute relied upon by Beland, 28 U.S.C.A. § 25, has been construed by the courts on many occasions. Its meaning is well settled. The courts have-held that compliance with its every provision is essential. Section 25 in no uncertain terms provides that an affidavit of personal bias or prejudice shall not be filed “unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith”. This is no meaningless provision; its purpose is obvious. A judge may not consider the truth or falsity of allegations in an affidavit of personal prejudice or bias, and the provision requiring the certificate of a member of- the bar is a precaution against abuse of the privilege afforded by the act. The “good faith” certificate of counsel of record is indispensable and affidavits which are not accompanied by the certificate are insufficient and may not be filed. Cuddy v. Otis, 8 Cir., 33 F.2d 577; Newman v. Zerbst, 10 Cir., 83 F.2d 973; Currin v. Nourse, 8 Cir., 74 F.2d 273; Morse v. Lewis, 4 Cir., 54 F.2d 1027; Henry v. Speer, 5 Cir., 201 F. 869; Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; United States v. Flegenheimer, D.C., 14 F.Supp. 584. There is no merit in the contention that Beland was representing himself and that, therefore, certificate of counsel was not .required. Whatever may be said as to relaxing the requirement where a person has no counsel of record would not apply here for Beland had counsel of record at all times and they declined to sign the certificate. Beland could not shuttle his counsel in and out of the case in order to circumvent the statute, to hold that he could do so would render meaningless and useless the plain provision of the statute which expressly requires certificate of counsel to" }, { "docid": "15533857", "title": "", "text": "the basis for the belief are of paramount importance and must give support to the charge of bias and prejudice. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Foster v. Medina, 2 Cir., 170 F.2d 632; Hurd v. Letts, 80 U.S.App.D.C. 233, 152 F.2d 121. The allegations here point to no impropriety. So far as can be gathered from the affidavit the Judge may simply have answered some inquiry as to the proper procedure. It is to be observed that Section 144 provides that such an affidavit “shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” We have held that this phrase “counsel of record” means an attorney at law admitted to the bar of the court who has been counsel of record in the case. Currin v. Nourse, 8 Cir., 74 F.2d 273; Ex parte N. K. Fairbank Co., D.C., 194 F. 978. Neither of the appellants who signed the affidavit is a member of any bar. They are laymen, and while Section 232, Title 31, United States Code Annotated, provides that such suit “may be brought and carried on by any person,” we do not think that Congress could have intended to authorize a layman to carry on such suit as attorney for the United States but must have had in mind that such a suit would be carried on in accordance with the established procedure which requires that only one licensed to practice law may conduct proceedings in court for anyone other than himself. While the Supreme Court has given this Section 232 a liberal construction, U. S. ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, it is unthinkable that Congress by this Act intended to license laymen to practice law. The practice of law is affected with a public interest and an attorney at law as distinguished from a layman, has both public and private obligations, being sworn to act with all good fidelity toward both his client and the court. Coun sel of record, as" }, { "docid": "23663610", "title": "", "text": "be designated to act; that the affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of court, or good cause shall be shown for failure to do so; and that no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The statute thus extending the privilege of dis qualifying a judge is remedial; but, due to its nature and the opportunity for abuse of the privilege, strict compliance with its provisions is exacted. Henry v. Speer, 5 Cir., 201 F. 869. When an affidavit of disqualification is filed it becomes the duty of the court to determine its legal sufficiency to comply with the statute on the basis of the facts therein stated. In doing so, the court is not permitted to give any consideration to the truth or falsity of the facts charged; the facts alleged must be assumed to be as stated. And when tested in that manner, if the affidavit and accompanying certificate of counsel of record meet the requirements of the statute, the presiding judge can proceed no further; he stands recused. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481, Henry v. Speer, supra; Lewis v. United States, 8 Cir., 14 F.2d 369; Nations v. United States, 8 Cir., 14 F.2d 507, certiorari denied, 273 U.S. 735, 47 S.Ct. 243, 71 L.Ed. 866; Craven v. United States, 1 Cir., 22 F.2d 605, certiorari denied, 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739; Morris v. United States, 8 Cir., 26 F.2d 444. The statute expressly requires in plain language that the affidavit shall state the facts and the reasons for the belief of bias and prejudice on the part of the judge. The excerpts from the proceedings of the trial, attached to the first affidavit and made a part of it, showed comments and criticisms but not personal bias and prejudice within the" }, { "docid": "2683552", "title": "", "text": "and no sentence should have been assessed on these counts. Before this case was tried Beland attempted to file an affidavit of personal bias or prejudice to disqualify the trial judge under the provisions of 28 U.S.C.A. § 25. The affidavit was signed “Charles Beland, In Propria Persona”, and was not accompanied by the certificate of counsel required Ey the statute. The clerk, therefore, refused to file the affidavit. At a hearing of preliminary matters Beland presented a written motion signed “Charles Beland, Defendant, and attorney in his own behalf”. In this motion Beland asked the court to consider his affidavit of prejudice and bias and permit it to be filed. Beland had two counsel of record, and the attorney who tried the case below and who argued the appeal here was present in court and conferred with Beland before he presented the motion to the judge. The court gave BelancFs counsel opportunity to certify to the affidavit, but counsel declined to'do so and stated that he was not representing Beland on the motion. The court then held that the affidavit was insufficient under the statute and refused to recuse himself or to allow the affidavit to be filed. Beland charges that the refusal of the judge to recuse himself was error. The statute relied upon by Beland, 28 U.S.C.A. § 25, has been construed by the courts on many occasions. Its meaning is well settled. The courts have-held that compliance with its every provision is essential. Section 25 in no uncertain terms provides that an affidavit of personal bias or prejudice shall not be filed “unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith”. This is no meaningless provision; its purpose is obvious. A judge may not consider the truth or falsity of allegations in an affidavit of personal prejudice or bias, and the provision requiring the certificate of a member of- the bar is a precaution against abuse of the privilege afforded by the act. The “good faith” certificate of counsel of record is indispensable and affidavits which" }, { "docid": "8546197", "title": "", "text": "page 787; Skirvin v. Mesta, supra, 141 F.2d at page 672; United States v. 16,000 Acres of Land, etc., supra, 49 F.Supp. at page 651; Cuddy v. Otis, supra, 33 F.2d at page 578; Foster v. Medina, 2 Cir., 1948, 170 F.2d 632, at page 633, and cf. Mitchell v. United States, supra, 126 F.2d at page 551, teach that the certificate should state that the affidavit and application were made in good faith. Here only the affidavit is covered. Although Attorney John Patrick Walsh, of Philadelphia, entered his appearance by letter and thereafter appeared with Attorney O’Brien as counsel for defendant at the arraignment, he is not and never has been a member of the bar of this court, see Rules of Court, Roll of Attorneys; United States v. Bergamo, 3 Cir., 1946, 154 F.2d 31; Ex parte Secombe, 1856, 19 How. 9, at page 13, 60 U.S. 9, at page 13, 15 L.Ed. 565, and therefore not one of “counsel of record” within the meaning of the statute. Currin v. Nourse, supra, 74 F.2d at page 275. “It is important that the court * * * shall at least have the protection afforded by the certificate of a responsible member of the bar.” Morse v. Lewis, supra, 54 F.2d at page 1032; Saunders v. Piggly-Wig-gly Corp., supra, 1 F.2d at pages 587, 588; Newman v. Zerbst, supra, 83 F.2d at page 974. “This requirement is founded on the assumption that a member of the bar * * * will not indulge in reckless disregard of the truth and * * * attests to the good faith and belief of the affiant.” Mitchell v. United States, supra, 126 F.2d at page 552; Beland v. United States, supra, 117 F.2d at page 960; United States v. Garden Homes, Inc., supra, 113 F.Supp. at page 418; United States v. Onan, 8 Cir., 1951, 190 F.2d 1, at page 6. “A motion to disqualify * * * is a serious undertaking * * Denis v. Perfect Parts, Inc., D.C.D.Mass.1956, 142 F.Supp. 263; see Id. as to the amount of preparation exercised by" }, { "docid": "11960409", "title": "", "text": "such bias and prejudice exists, and shall be filed not less than ten days before the beginning of the term of court or good cause shall be shown for failure to do so, and that no such affidavit shall be filed unless accompanied by a certificate of counsel of record and that such affidavit and application are made in good faith. When such an affidavit is filed, the truth of all of the allegations of fact contained therein is admitted, and it becomes the duty of the court to determine only its legal sufficiency, and if the affidavit meets the requirements of the statutes and is accompanied by a certificate of the counsel of record, the presiding judge can proceed no further but is disqualified. Scott v. Beams, 10 Cir., 122 F.2d 777; Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Henry v. Speer, 5 Cir., 201 F. 869; Lewis v. United States, 10 Cir., 14 F.2d 369; Nations v. United States, 8 Cir., 14 F.2d 507, certiorari denied 273 U.S. 735, 47 S.Ct. 243, 71 L.Ed. 866; Craven v. United States, 1 Cir., 22 F.2d 605, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739; Morris v. United States, 10 Cir., 26 F.2d 444. The purpose of this section is to secure for all litigants a fair and impartial trial before a tribunal completely divested of any personal bias or prejudice, either for or against any party to the proceedings, and it is the duty of all courts to scrupulously adhere to this admonition and to guard against any appearance of personal bias or prejudice which might generate in the minds of litigants a well-grounded belief that the presiding judge is for any reason personally biased or prejudiced against their cause. But the statute, by its own terms, provides a safeguard against the abuse of the privilege granted by the statute, and that well-founded safeguard is the requirement that the affidavit must be accompanied by a certificate of counsel of record, and without which the affidavit is ineffectual to disqualify the judge." }, { "docid": "11960410", "title": "", "text": "U.S. 735, 47 S.Ct. 243, 71 L.Ed. 866; Craven v. United States, 1 Cir., 22 F.2d 605, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739; Morris v. United States, 10 Cir., 26 F.2d 444. The purpose of this section is to secure for all litigants a fair and impartial trial before a tribunal completely divested of any personal bias or prejudice, either for or against any party to the proceedings, and it is the duty of all courts to scrupulously adhere to this admonition and to guard against any appearance of personal bias or prejudice which might generate in the minds of litigants a well-grounded belief that the presiding judge is for any reason personally biased or prejudiced against their cause. But the statute, by its own terms, provides a safeguard against the abuse of the privilege granted by the statute, and that well-founded safeguard is the requirement that the affidavit must be accompanied by a certificate of counsel of record, and without which the affidavit is ineffectual to disqualify the judge. This requirement is founded on the assumption that a member of the bar or counsel of record will not indulge in reckless disregard of the truth, and further attests to the good faith and belief of the affiant. Beland v. United States, 5 Cir., 117 F.2d 958, certi-orari denied 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541; Cuddy v. Otis, 8 Cir., 33 F.2d 577; Morse v. Lewis, 4 Cir., 54 F.2d 1027; Currin v. Nourse, 8 Cir., 74 F.2d 273; Newman v. Zerbst, 10 Cir., 83 F.2d 973. Here the appellant was represented by counsel of record on arraignment. He was represented by the same counsel of record when the affidavit was filed. He was represented by another counsel of record in the trial of the case, but the first counsel of record had not withdrawn his appearance. Appellant now attempts to avoid the requirement of a certificate of counsel of record by saying that he could not secure a certificate of counsel, but that he represented himself in the making and presentation" }, { "docid": "22836550", "title": "", "text": "Ex parte Simons, 1918, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094, and seemingly even where the right is debatable, compare majority opinion with dissenting opinion in Beacon Theatres, Inc. v. Westover, supra, both at page 511 of 359 U.S., at page 957 of 79 S.Ct. From the general standpoint of “the interest of justice,” the right to be tried before an unbiased judge is also basic in our judicial system. Although there are differences of opinion, we agree with the concurring judges in Green v. Murphy, 3 Cir., 1958, 259 F.2d 591, 595, that public confidence in the courts may require that such a question be disposed of at the earliest opportunity. In addition to the cases cited therein, see also United States v. Ritter, 10 Cir., 1959, 273 F.2d 30, 32, certiorari denied, 362 U.S. 946, 950, 80 S.Ct. 863, 4 L.Ed.2d 869. This need not commit us to entertaining every rejected affidavit of prejudice; nor need we presently set forth the limits. It is to be borne in mind that mandamus is a discretionary writ. Strictly, the district judge is the respondent in such mandamus proceedings, but with his assent, and in accordance with our customary practice, we have permitted intervenor Gazette to file an answer instead. We deal initially with its contention that the certificate of counsel accompanying the affidavit should have stated that counsel was acting in good faith, not that affiant was. The statute requires “a certificate of counsel of record stating that it is made in good faith.” The question is what, or who, the word “it” refers to. While some courts have assumed that the statute was aimed merely at counsel’s opinion that his client was acting in good faith, all agree that the affidavit has indispensable value. See Berger v. United States, 1921, 255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481; Beland v. United States, 5 Cir., 1941, 117 F.2d 958, 960, certiorari denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541; Currin v. Nourse, 8 Cir., 1934, 74 F.2d 273, 275, certiorari denied, 294 U.S. 729," }, { "docid": "1235034", "title": "", "text": "provision for others he owes his very office. If the affidavit and certificate of counsel strictly follow the statutory requirements the judge has no alternative but to recuse himself no matter how defamatory the charges may be and even if they are known to the court to be false. On the other hand, if the statutory requirements are not satisfied it is the duty of the judge to refuse to disqualify himself. United States v. Hanrahan, supra. The statutory requirement that an affidavit of prejudice be accompanied by a certificate of good faith filed by counsel of record is to prevent abuse and is founded on the assumption that a member of the Bar or counsel of record will not indulge in reckless disregard of the truth. Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967); Cox v. United States, 309 F.2d 614 (8th Cir. 1962); United States v. Onan, 190 F.2d 1 (8th Cir. 1951); United States v. Hanrahan, supra. With the foregoing principles in mind the court has examined both affidavits. Neither is accompanied by a certificate of counsel of record stating that it is made in good faith. Absent such a certificate, the affidavits are insüfficient on their face, 28 U.S.C. § 144 Mayes v. United States, 177 F.2d 505 (8th Cir. 1949); In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961). And though filed pro se the defendant is not relieved of this requirement. Boyance v. United States, 275 F. Supp. 772 (1967); Beland v. United States, 117 F.2d 958 (5th Cir. 1941). Furthermore, the second affidavit filed September 25, 1968, is plainly in disregard of the statutory mandate that a party “may file only one such affidavit in any case.” 28 U.S.C. § 144. Finally, a careful reading of both affidavits fails to disclose any factual allegations of personal bias or prejudice. For the foregoing reasons, it is the court’s view that said affidavits are legally insufficient. AMENDMENT TO MOTION TO PRODUCE BOOKS AND MATTERS Defendant seeks copies of certain civil service examinations used during the years years 1962 to 1966 inclusive and" }, { "docid": "20565970", "title": "", "text": "27 S.Ct. 165, 167, 51 L.Ed. 319, 324 (1906) (Holmes, J.). Similarly, a litigant’s case must stand on its own merits and not depend on being heard by any particular judge. THE APPLICABLE LAW In passing upon a motion to recuse on the grounds of bias or prejudice the facts alleged in the affidavit are taken as true, Berger v. United States, ,255 U.S. 22, 33-35, 41 S.Ct. 230, 233, 65 L.Ed. 481, 485 (1921), and the judge to whom the motion is presented determines only the legal sufficiency and timeliness of the affidavit and the certificate of counsel. Berger, supra, 255 U.S. at 33, 36, 41 S.Ct. at 233, 234, 65 L.Ed. at 485, 486; Albert v. United States District Court, for Western District of Michigan, 283 F.2d 61, 62 (6th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706 (1961). Where the affidavit and certificate pass the dual tests of sufficiency and timeliness the motion to recuse must be granted though the judge knows for a certainty that the allegations of prejudice and bias are false. Morse v. Lewis, 54 F.2d 1027, 1031 (4th Cir.), cert. denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291 (1932). The affidavit, however, is strictly construed against the affiant, for a judge is presumed to be impartial. Beland v. United States, 117 F.2d 958, 960 (5th Cir.), cert. denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541 (1941). The affidavit and certificate of counsel were timely filed on February 14, 1972, within the delay permitted by this court for the filing of special pleadings. The sufficiency of the affidavit, however, is quite another matter. Section 144 requires a “sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice . . . .” (Emphasis added.) Personal bias is defined as an attitude of extrajudicial origin. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793 (1966). Neither prior judicial exposure to a de fendant nor prior judicial rulings adverse to a defendant constitute" }, { "docid": "17361567", "title": "", "text": "but from a third party, and thus not within the purview of this regulation. MacNeil, as president of the defendant corporation, undertook to present an affidavit of bias or prejudice of the judge, but, not being a member of the bar and having failed to comply with the rule of this court (Rule 1, Sec. 4, requiring nonmembers of this bar to be associated with a member of the bar of this district) and several directives of this court, was not permitted to file this pleading. After lengthy colloquy with the court concerning this refusal and the matter of getting the trial under way, he assured the court that he was content with the court’s statement relative to claimed bias and that “that was the end of the affidavit question.” When hearing was resumed the following day, MacNeil, having been allowed qualifiedly to conduct the defense, proffered a similar affidavit, and the court, upon consideration and examination, directed the clerk to receive, stamp and file it; whereupon, the Government moved to strike. The court ruled that the affidavit was legally insufficient and later in the trial ordered it stricken. Benedict v. Seiberling, D.C., 17 F.2d 831, 836; Sanders v. Allen, D.C., 58 F.Supp. 417, 419. The court, having stated unequivocally that he had no personal bias or prejudice against the Garden Homes, Inc., or in favor of the United States, declined to disqualify himself, and the trial proceeded. Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278, certiorari granted, 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, certiorari dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542; Sanders v. Allen, supra. The statute, Section 144 of Title 28 U.S.C., provides that a party may file an affidavit if it is accompanied by a certificate of counsel of record, stating that it is made in good faith. And one may not be counsel of record unless a member of the bar of the court before which appearance is made. Currin v. Nourse, 8 Cir., 74 F.2d 273, 275, certiorari denied, 294 U.S. 729, 55 S.Ct. 638, 79" }, { "docid": "6199548", "title": "", "text": "allegations related to some action taken or statement made by Judge Sirica during the course of the trial proceedings. To properly evaluate the affidavits we, of course, must rely upon the statutory provisions which are as follows: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. (Emphasis supplied) “The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” 28 U.S.C. § 144. It is well established that when presented with an affidavit of prejudice, the judge may not pass upon the truth or falsity of the allegations contained therein but must accept them as true for the purposes of passing upon the legal sufficiency of the affidavits. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Ex Parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913). If the statutory standards are met, the judge must recuse himself, even if the allegations are known by the judge to be false. Morse v. Lewis, 54 F.2d 1027 (4th Cir. 1932), cert. denied 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291. On the other hand, if the statutory requirements are not met, it is the duty of the judge to refuse to disqualify himself. Simmons v. United States, 302 F.2d 71 (3rd Cir. 1962). Applying these standards to the specific provisions of the quoted statute, we" }, { "docid": "11960411", "title": "", "text": "This requirement is founded on the assumption that a member of the bar or counsel of record will not indulge in reckless disregard of the truth, and further attests to the good faith and belief of the affiant. Beland v. United States, 5 Cir., 117 F.2d 958, certi-orari denied 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541; Cuddy v. Otis, 8 Cir., 33 F.2d 577; Morse v. Lewis, 4 Cir., 54 F.2d 1027; Currin v. Nourse, 8 Cir., 74 F.2d 273; Newman v. Zerbst, 10 Cir., 83 F.2d 973. Here the appellant was represented by counsel of record on arraignment. He was represented by the same counsel of record when the affidavit was filed. He was represented by another counsel of record in the trial of the case, but the first counsel of record had not withdrawn his appearance. Appellant now attempts to avoid the requirement of a certificate of counsel of record by saying that he could not secure a certificate of counsel, but that he represented himself in the making and presentation of the affidavit. The appellant could not represent himself while he was represented by counsel of record; neither could he shuttle his counsel in and out of the case in order to avoid the statute. To so hold would render meaningless and useless the plain provision of the statute which expressly provides for certificate of counsel to accompany the affidavit. Beland v. United States, supra. Since we hold that the affidavit was ineffectual to disqualify the presiding judge, because it was not accompanied by the required certificate of counsel of record, it is unnecessary for us to determine the legal sufficiency of the facts alleged in the affidavit, and we do not decide that question. .When a witness for the government was asked by government counsel if he knew the appellant, he stated, “I saw the defendant at the trial last September in Albuquerque”, where upon appellant’s counsel objected and moved that the answer be stricken, and the jury be instructed not to consider it, which the court did immediately. If the answer was improper" }, { "docid": "15533856", "title": "", "text": "be filed not less than ten days before the beginning of the term at which the proceedings are to be heard, “or good cause shall be shown for failure to file it within such time.” The only basis for the charge of prejudice is that the Judge, in the absence of appellants, discussed with an attorney for appellees requirements relative to answering certain interrogatories filed by appellants. It is not alleged when this incident occurred. It appears from the record, however, that the interrogatories were filed May 6, 1950, and in the absence of any allegation as to when the conference occurred we are warranted in assuming that it occurred soon after the filing of the interrogatories, while the affidavit of prejudice was not filed until September 6, 1950, after the court entered its order of August 9, 1950, denying appellants leave to proceed with the prosecution of the action. While the facts alleged in the affidavit of prejudice must, for the purpose of the motion, be accepted as true, the reasons and facts forming the basis for the belief are of paramount importance and must give support to the charge of bias and prejudice. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Foster v. Medina, 2 Cir., 170 F.2d 632; Hurd v. Letts, 80 U.S.App.D.C. 233, 152 F.2d 121. The allegations here point to no impropriety. So far as can be gathered from the affidavit the Judge may simply have answered some inquiry as to the proper procedure. It is to be observed that Section 144 provides that such an affidavit “shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” We have held that this phrase “counsel of record” means an attorney at law admitted to the bar of the court who has been counsel of record in the case. Currin v. Nourse, 8 Cir., 74 F.2d 273; Ex parte N. K. Fairbank Co., D.C., 194 F. 978. Neither of the appellants who signed the affidavit is a member of any bar. They are laymen," } ]
701327
Priority in a Chapter 7 distribution is set by § 726(a). Section 726(a)(2)(C) allows the creditor to participate in the distribution despite a late filed proof of claim when the creditor did not have notice or knowledge of the bankruptcy and the proof of claim is filed in time to permit payment by the estate. If the claim is a general unsecured claim, the creditor will participate pari passu in the distribution, the same as if the claim had been timely filed. In re Global Precious Metals, Inc., 143 B.R. 204, 206 (Bankr.N.D.Ill.1992). Section 726(a)(3) allows the creditor to participate in the distribution despite a late filed proof of claim, when the creditor did have notice or knowledge of the bankruptcy. REDACTED However, that provision accords lower priority to a general unsecured claim filed by a creditor who did have timely notice or knowledge of the bankruptcy as well as by creditors who lacked timely notice or knowledge, but did not file their claims in time to permit payment. Id. In the present case, the Creditors had timely notice; therefore, they are relegated to a lower priority under § 726(a)(3). Timeliness The Federal Rules of Bankruptcy Procedure provide the time period for filing proofs of claim. In re Anderson, 159 B.R. 830, 835 (Bankr.N.D.Ill.1993). A creditor in a Chapter 7 case is required to file a proof of claim within ninety days after the date is first set for the § 341 creditors
[ { "docid": "1094460", "title": "", "text": "1246 (7th Cir.1990) (limiting application of Section 726 to cases under Chapter 7). Section 726(a) determines priority based on two factors. The first factor is the nature of the claim. The highest priority of distribution is accorded by Section 726(a)(1) to the “priority” claims designated by Section 507 of the Code, among which are the tax liabilities that make up the bulk of the IRS claim in this case. Next, are “general” unsecured claims — that is, claims which are not accorded special priority by Section 507. General unsecured claims are dealt with by subsections (a)(2) and (a)(3) of Section 726. Finally, Section 726(a)(4) accords the lowest claim priority to noncompensatory fines, penalties, forfeitures, and damage awards, including the relatively small penalty that is part of the IRS claim here. In addition to distinguishing claims by their nature, Section 726 also defines priority of distribution according to a second factor:- the timeliness of claim filing. Section 726(a)(2) accords the higher priority to two classes of claims: (a) claims that are filed on time, regardless of whether the claim is filed by the creditor holding the claim or by another party on behalf of the creditor; and (b) claims filed by creditors who did not receive notice or have knowledge of the bankruptcy in time for timely filing, but who nevertheless filed their claims in time to permit payment — a class of claims that can be called “effective late filings.” Section 726(a)(3) accords a lower priority to what can be called “ineffective late filings” — late claims filed by creditors who did have timely notice or knowledge of the bankruptcy, as well as by creditors who lacked timely notice or knowledge, but did not file their claims in time to permit payment. The question raised by the present case is whether the timeliness priorities set out in subsections (a)(2) and (a)(3) apply to Section 507 priority claims. There is an argument — advanced here by the trustee— that they do. Section 726(a)(3) accords third priority of distribution to “any allowed unsecured claim” that (1) is filed by a creditor (hence" } ]
[ { "docid": "5282944", "title": "", "text": "receive notice of the meeting. The IRS learned of the bankrupt cy on September 27, 1985. On October 7, 1985, the IRS filed its claim as a priority claim in the amount of $18,892.35. The claim is primarily for employment taxes for the second and third quarters of 1983 as reported on returns delinquently filed by the debtor. The United States Bankruptcy Court for the Eastern District of Kentucky determined that the fact that the IRS did not receive notice of the corporate debtor’s bankruptcy case in time to permit timely filing of a proof of claim does not affect the result dictated by applicable provisions of the Bankruptcy Rules. It held that the Rules do not permit it to enlarge the time to file this tardy claim. The Bankruptcy Court stated that Bankruptcy Rule 3002 requires that in a Chapter 7 liquidation case, an unsecured creditor, such as the IRS in this case, must file a claim within 90 days after the first date set for the meeting of creditors called pursuant to section 341 of the Bankruptcy Code in order for the claim to be allowed. The court noted that Bankruptcy Rule 3002(c)(1) permits a governmental entity to obtain an extension of time to file a proof of claim but only for cause shown on motion made before expiration of the 90 day period for filing claims; the court further noted that no such motion was filed in this case. The court also noted that Bankruptcy Rule 9006(b)(3) permits the court to enlarge the time for filing a proof of claim only under the conditions stated in Rule 3002(c) and that none of these conditions applies to the facts of this case. Finally, the Bankruptcy Court noted that although 11 U.S.C. § 726(a)(2)(C) authorizes pari passu distribution on a tardily filed unsecured claim if the creditor did not have notice or actual knowledge of the case in time to file a timely proof of claim, this provision excludes unsecured claims entitled to priority in distribution under 11 U.S.C. § 507, such as the claim of the IRS in" }, { "docid": "18505521", "title": "", "text": "143 B.R. 204 (Bankr.N.D.Ill.1992), discounted the analysis of the Cardinal Mine and related cases. Contrary to the assumption in Cardinal Mine that the creditor is deprived of property if not permitted to file a late proof of claim, the Global Precious Metals court noted three sections of the Code which protect the creditor: (1) section 726(a)(2)(C), which allows the creditor to participate in a Chapter 7 distribution despite a late filed claim if it did not have notice of the proceedings, (2) section 523(a)(3), which exempts from discharge claims not listed or scheduled, and (3) section 501(c), which authorizes the trustee or the debtor to file a proof of claim on behalf of the creditor who does not timely file. See id. at 206. While the court’s analysis in Global Precious Metals is helpful in connection with a case proceeding under Chapter 7, it is not persuasive in the Chapter 13 context. First, section 726(a)(2)(C) is not applicable in a Chapter 13 case, and there is no similar treatment giving recognition to tardily-filed claims in Chapter 13. Likewise, assuming a Chapter 13 debtor receives a discharge under section 1328(a) of the Code, which grants the debtor a discharge after all payments under the plan have been made, certain provisions of section 523 excepting debts from discharge do not apply. Section 523 pertains only to discharges under section 1328(b), which grants the debtor a discharge in hardship and good-faith cases. For example, section 523(a)(1) exempting priority claims from discharge would not apply, nor would a creditor whose debt was neither scheduled nor listed be protected by section 523(a)(3). But see In re Glow, 111 B.R. 209, 217 (Bankr.N.D.Ind.1990) (noting that creditor without notice of bankruptcy proceedings protected from deprivation of due process by section 523(a)(3) if discharge granted under section 1328(b)). Finally, a debtor contemplating a successful completion of plan payments under Chapter 13 has little incentive to file a proof of claim on behalf of a creditor under section 501. The purpose of section 501 is to protect the debtor if the creditor’s claim is nondischargeable, so that it may" }, { "docid": "4709645", "title": "", "text": "U.S.C. § 507(a)(7)(C). The bankruptcy trustee moved in the bankruptcy court to expunge the IRS claim for withholding and FICA taxes as untimely. The IRS responded that a priority claim, which is paid as part of the first-tier of distribution of an estate under 11 U.S.C. § 726(a)(1), does not have to be timely filed in order to retain its priority status. The bankruptcy court refused to afford the IRS’s claim priority status under § 726(a)(1) because it was filed late. However, instead of expunging the claim, the court reclassified it as a non-priority claim that would receive third-tier distribution pursuant to § 726(a)(3). The district court affirmed the bankruptcy court’s decision, see United States v. Vecchio, 147 B.R. 303 (E.D.N.Y.1992), and this appeal followed. DISCUSSION This appeal turns primarily on our interpretation of § 726(a) of the Bankruptcy Code which spells out the order in which the assets of a Chapter 7 bankruptcy estate are distributed to unsecured creditors. It states in relevant part: (a) Except as provided in section 510 of this title [which governs the subordination of claims], property of the estate shall be distributed— (1) first, in payment of claims of the kind specified in, and in the order specified in, section 507 of this title; (2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection, proof of which is— (A) timely filed under section 501(a) of this title; (B) timely filed under section 501(b) or 501(c) of this title; or (C) tardily filed under section 501(a) of this title, if— (i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of such claim under section 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; (3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified" }, { "docid": "5282946", "title": "", "text": "this case. Thus the court sustained the trustee’s objection to the tardily filed claim of the IRS and found that the order of distribution on the claim is that provided for by 11 U.S.C. § 726(a)(3), that is after the distribution on non-priority unsecured claims. The IRS appealed, and the District Court affirmed the decision of the Bankruptcy Court. The District Court stated that “[sjection 726(a)(2)(C) of Title 11 allows distribution for a late general unsecured claim if the creditor did not have notice or actual knowledge of the case in time for filing a proof of claim. However, this provision specifically excludes unsecured claims entitled to priority, such as the IRS’ claim here.” We do not agree that the Bankruptcy Code requires that exclusion. Section 501(a) of the Bankruptcy Code provides that a creditor may file a proof of claim. 11 U.S.C. § 501(a). The Code requires that appropriate notice be given (11 U.S.C. § 342) but does not specify what notice shall be given to creditors or when it shall be given. That was left to the Bankruptcy Rules. Bankruptcy Rule 3002(c) provides that a proof of claim in a Chapter 7 or 13 case shall be filed within 90 days after the first date set for the meetings of creditors. Rule 9006 provides that the court may enlarge the time under Rule 3002(c) only to the extent and under the conditions stated by that rule. It is clear that the IRS did not file its claim within the time period permitted by Rule 3002(c). The IRS argues, however, that a federal tax claim, filed late because the IRS was not notified and had no knowledge of the debt- or’s bankruptcy case or of the bar date, may not be subordinated to non-priority unsecured claims. Section 507 sets forth the types of claims that are to be given priority treatment, and sets forth the order that the priority is to take. 11 U.S.C. § 507. There is no question that the employment taxes claimed by the IRS would receive priority under section 507 had a claim for them" }, { "docid": "10169643", "title": "", "text": "Bankruptcy Code § 726(a)(2)(C) provides as follows: (a) Except as provided in § 501 of this title, property of the estate shall be distributed— Second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection, proof of which is— (c) tardily filed under § 501(a) of this title, if— (1) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing' of a proof of such claim under § 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; This Court concludes that the scope of its analysis pursuant to § 726(a)(2)(C) is narrow and is limited to determining whether IMPC did not have notice or actual knowledge of the bankruptcy case in time for timely filing a proof of claim and whether a final distribution has been made. The legislative history of § 726(a)(2)(C) of the Bankruptcy Code provides: The provision is written to permit distribution to creditors that tardily file claims if their tardiness was due to lack of notice or knowledge of the case. Though it is in the interest of the estate to encourage timely filing, when tardy filing is not the result of a failure to act by the creditor, the normal subordination penalty should not apply. H.Rep. No. 595, 95th Cong., 1st Sess. 383 (1977); S.Rep.No. 989, 95th Cong., 2d Sess. 96-97 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5882-5883, 6339; See also 4 Collier on Bankruptcy 11726.02[2] at 726-6 (15th ed.1985). The time limits for filing proofs of claim are not specified in the Code itself, but have been relegated to the Bankruptcy Rules. Bankruptcy Rule 3002(c)(5) provides: (c) Time for Filing. In a chapter 7 liquidation or Chapter 13 individual’s debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, except as follows: (5) If" }, { "docid": "1303786", "title": "", "text": "to the extent that a holder of a tardily filed claim is entitled to distribution under § 726(a)(1), (2), or (3). The phrase ‘in accordance with this rule’ is deleted from Rule 3002(a) to clarify that the effect of filing a proof of claim after the expiration of the time prescribed in Rule 3002(c) is governed by § 502(b)(9) of the Code, rather than by this rule. However, even though the Bankruptcy Code specifically permits tardily filed claims to receive a distribution, there is no assurance, even if funds are available in a debtor’s bankruptcy estate, that such a creditor will actually receive any distribution as § 726 provides that claims from the estate are to be paid in the following order: First, payment is to go to those creditors entitled to priority under § 507 (i.e., creditors have claims for wages, taxes, alimony, etc. ...). Second, after paying the priority claims in full, payment is to go on a pro-rata basis to those allowed unsecured creditors who timely file their proofs of claim, or to those unsecured creditors who tardily file their proofs of claim, but who did not have notice or actual knowledge of the debtor’s bankruptcy petition in time to file a proof of claim. §§ 726(a)(1), (2), (A), (B), (C). Finally, if there are any remaining funds available for distribution, those creditors, such as the Bank, who tardily file their claims, and who had notice or actual knowledge of the debtor’s bankruptcy, are entitled to receive a distribution. § 726(a)(3). Of course, it will be a rare situation that such a creditor actually receives any remuneration as rarely are sufficient funds even available to pay in full the first two levels of creditors. Notwithstanding, the Bank asserts that despite its low relegation on the distribution ladder, it will still in all likelihood receive a disbursement from the Debtor’s bankruptcy estate given the fact that, (1) potentially large assets are still available for recovery from the Debtor’s bankruptcy estate, and (2) no other creditor, besides Fifth Third Bank, has made a claim upon the Debtors’ bankruptcy estate." }, { "docid": "18597106", "title": "", "text": "502(h) or 502(i) of this title may be filed under subsection (a), (b), or (c) of this section the same as if such claim were a claim against the debtor and had arisen before the date of the filing of the petition. The Federal Rules of Bankruptcy Procedure set the time limits, the form and the procedure for filing which may determine whether claims are timely or tardily filed . FILING TIMELINE The Court’s initial inquiry as to the time for filing a Proof of Claim is governed by Bankruptcy Rule 3002 which states in relevant part that: C. Time for Filing In a Chapter 7 liquidation ... a Proof of Claim should be filed within 90 days of the first date set for the meeting of creditors called pursuant to Section 341(a) of the Code, except as follows: (5) If notice of insufficient assets to pay a dividend was given to creditors pursuant to Rule 2002(c), and subsequently the Trustee notifies the Court that payment of a dividend appears possible, the Clerk shall notify the creditors of that fact and that they may file Proofs of Claim within 90 days after the mailing of the notice. While it may appear that Fed.R.Bank.P. 3002 bars a claim filed outside the scope of time designated under the Rule, that is not the case . Late claims are allowed in some instances. PRIORITY STATUS The priority 'status of a claim is defined by 11 U.S.C. § 507. This provision establishes which claims against a bankruptcy estate receive priority distribution. In the instant case, the IRS claim is accorded priority status in accordance with 11 U.S.C. § 507(a)(7) which states: (a) The following expenses and claims have priority in the following order: (7) Seventh, allowed unsecured claims of governmental units, only to the extent that such claims are for — ... CLAIM DISTRIBUTION This Court must also examine 11 U.S.C. § 726(a)(3) to determine whether the IRS should share in pari passu with other creditors in the distribution of the Brenner estate. Moreover, distribution of the estate follows the order as established in" }, { "docid": "4771981", "title": "", "text": "Bankruptcy Rules where the creditor did not have notice. The court held that consistent with principles of due process, notice must be given “before the Rules time limits may be enforced.” Dodd 82 B.R. at 928. The holdings in Cardinal Mines and Dodd are based on the assumption that if the court does not extend the time for filing proofs of claims, then the creditor is deprived of property. These conclusions presume, and in fact the court in Cardinal Mines specifically stated, that the Code does not otherwise protect a creditor who does not receive notice or have actual knowledge of the bankruptcy. This Court disagrees with this presumption as there are provisions in the Bankruptcy Code which protect the creditor against the loss of its claim where the creditor is without notice of the bankruptcy. Section 726(a)(2)(C) allows the creditor to participate in the distribution despite a late filed claim when the creditor did not have notice or knowledge of the bankruptcy. If the claim is a general unsecured claim the creditor will participate pari passu in the distribution, the same as if the claim had been timely filed. The Sixth Circuit concluded that this section conflicted with the Bankruptcy Rules. This Court also disagrees with the Sixth Circuit’s conclusion that there is a conflict between the Bankruptcy Rules and the Bankruptcy Code. The conflict can be avoided by concluding that although the court is not authorized to extend the time for filing claims, the late claim will be accepted and the creditor will still be allowed to participate in the distribution if the creditor did not have notice or knowledge of the bankruptcy. The Bankruptcy Rule, therefore, precludes the court from extending the time on the court’s discretion, but does not prevent creditors from sharing in the distribution. If the creditor is to participate in the distribution under § 726, the creditor must know of the bankruptcy and file its claim before there is a distribution. In the event the creditor does not learn of the bankruptcy in time, the creditor’s interest is protected by § 523. Under" }, { "docid": "6178564", "title": "", "text": "the contamination occurred prior to the petition, without regard to when EPA discovered contamination, or incurred response costs). Although section 502(e)(1)(B) plainly does not require that a creditor’s right to payment be evidenced by a timely proof of claim, or a previously allowed claim, see In re Wedtech Corp., 85 B.R. 285, 289 (Bankr.S.D.N.Y.1988), it is nonetheless incumbent on the trustee to produce substantial evidence of the existence of a right to payment on the part of the creditor. The co-liability clause in section 502(e)(1), viz., “liable with the debtor,” interpreted in light of its singular purpose, might permit allowance of a non-fixed codebtor claim for CERCLA contribution if the creditor were foreclosed from participating in any distribution from the estate under Bankruptcy Code § 726(a). . Nevertheless, though we reject the trustee’s contention that the EPA might yet demonstrate “excusable neglect” warranting an extension of time to file a proof of claim, we must examine other means which may remain open to EPA’s participation in any chapter 7 distribution. The EPA may participate in a distribution to unsecured creditors under section 726(a)(2)(C) if it was never scheduled as a “creditor” of the estate, and had no actual knowledge of the proceedings in time to file a proof of claim. See In re Global Precious Metals, Inc., 143 B.R. 204, 205-06 (Bankr.N.D.Ill.1992) (chapter 7). Thus, a remote “double-dipping” prospect would remain if Juniper’s claim were to be allowed, as it is conceivable that EPA might yet file an allowable claim. In this case, however, the harsh results occasioned by Bankruptcy Code § 502(e)(1)(B) are mitigable through recourse to Bankruptcy Code § 501(e), which provides that, “[i]f a creditor does not timely file a proof of such creditor’s claim, the debt- or or the trustee may file a proof of such claim.” See also Fed.R.Bankr.P. 3004. Although section 501(e) is permissive (“may file”), rather than mandatory, and is designed principally to prevent creditors from depriving debtors of the benefit of a discharge under Bankruptcy Code § 727, 11 U.S.C. § 727, cf. supra note 8, in these circumstances there are sound" }, { "docid": "11406117", "title": "", "text": "the creditor had no notice or actual knowledge of the bankruptcy case and the proof of claim is filed in time to permit payment. These payments are allowed on the same priority as timely filed claims. Yet § 523(a)(3) fails to differentiate between timely filed claims and tardily filed claims that received the same priority as timely filed claims. Nowhere does the statute address this inconsistency. As pointed out in In re Sandoval, 102 B.R. 220, 222 (Bankr.D.N.M.1989): It is my opinion that the statute [11 U.S.C. § 523] requires that in order for the debt to be determined to be non-dis-chargeable, the creditor must show that as a practical matter, a timely proof of claim could not have been filed. 11 U.S.C. Section 726(a)(2)(C) provides that a creditor can share in a distribution from the estate even if the creditor’s claim is filed after the expiration of the claims filing period if the creditor did not have notice or actual knowledge of the case in time to timely file a proof of claim and the claim is filed in time for it to share in a distribution. In the instant case, the creditor alleges that it filed a proof of claim immediately upon being informed of the bankruptcy. As a practical matter, the claim was filed in time to share in any distribution by the trustee had there been one, or if the trustee discovers assets and reopens the case as an asset case in the future. In Sandoval, the court went on to find an omitted claim in a no-asset ease to be dis-chargeable. Bankruptcy Judge John E. Ryan was also critical of Laczko in In re Hendricks, 87 B.R. 114 (Bankr.C.D.Cal.1988). He stated: What perplexes me is why the BAP did not address the applicability of § 726(a)(2)(C) of the Bankruptcy Code. That section allows a creditor to participate in a distribution from the estate even if the claim is tardily filed provided (1) the creditor did not have notice or actual knowledge of the case in time to file and (2) the claim is filed in" }, { "docid": "5282945", "title": "", "text": "341 of the Bankruptcy Code in order for the claim to be allowed. The court noted that Bankruptcy Rule 3002(c)(1) permits a governmental entity to obtain an extension of time to file a proof of claim but only for cause shown on motion made before expiration of the 90 day period for filing claims; the court further noted that no such motion was filed in this case. The court also noted that Bankruptcy Rule 9006(b)(3) permits the court to enlarge the time for filing a proof of claim only under the conditions stated in Rule 3002(c) and that none of these conditions applies to the facts of this case. Finally, the Bankruptcy Court noted that although 11 U.S.C. § 726(a)(2)(C) authorizes pari passu distribution on a tardily filed unsecured claim if the creditor did not have notice or actual knowledge of the case in time to file a timely proof of claim, this provision excludes unsecured claims entitled to priority in distribution under 11 U.S.C. § 507, such as the claim of the IRS in this case. Thus the court sustained the trustee’s objection to the tardily filed claim of the IRS and found that the order of distribution on the claim is that provided for by 11 U.S.C. § 726(a)(3), that is after the distribution on non-priority unsecured claims. The IRS appealed, and the District Court affirmed the decision of the Bankruptcy Court. The District Court stated that “[sjection 726(a)(2)(C) of Title 11 allows distribution for a late general unsecured claim if the creditor did not have notice or actual knowledge of the case in time for filing a proof of claim. However, this provision specifically excludes unsecured claims entitled to priority, such as the IRS’ claim here.” We do not agree that the Bankruptcy Code requires that exclusion. Section 501(a) of the Bankruptcy Code provides that a creditor may file a proof of claim. 11 U.S.C. § 501(a). The Code requires that appropriate notice be given (11 U.S.C. § 342) but does not specify what notice shall be given to creditors or when it shall be given. That" }, { "docid": "18505520", "title": "", "text": "684 (Bankr.D.Del.1990) (recognizing that creditor with no notice of bar date may be constitutionally entitled to file late proof of claim). The bankruptcy court below rejected the Tenth Circuit’s decision in Reliable Electric and related cases because they involved Chapter 11 reorganizations (or the Bankruptcy Act equivalent) for which the rules for extensions of time for filing proofs of claim are different. See, e.g. Bankr.R. 3003, 9006(b) (permitting creditor to file late proof of claim for excusable neglect). The rationale supporting the allowance of the late proofs of claim in those cases, however, was not excusable neglect, but due process. Other courts have reaffirmed this view in the Chapter 13 setting. See, e.g., Smith v. Martinez (In re Martinez), 51 B.R. 944, 947 (Bankr.D.Colo.1985) (noting applicability of Reliable Electric and Harbor Tank Storage in Chapter 13 cases); In re Barnett, 42 B.R. 254 (Bankr.S.D.N.Y.1984); cf. In re Hausla-den, 146 B.R. 557 (Bankr.D.Minn.1992) (tardily-filed Chapter 13 claim not precluded by section 501 or Bankr.R. 3002). In contrast, the court in In re Global Precious Metals, Inc., 143 B.R. 204 (Bankr.N.D.Ill.1992), discounted the analysis of the Cardinal Mine and related cases. Contrary to the assumption in Cardinal Mine that the creditor is deprived of property if not permitted to file a late proof of claim, the Global Precious Metals court noted three sections of the Code which protect the creditor: (1) section 726(a)(2)(C), which allows the creditor to participate in a Chapter 7 distribution despite a late filed claim if it did not have notice of the proceedings, (2) section 523(a)(3), which exempts from discharge claims not listed or scheduled, and (3) section 501(c), which authorizes the trustee or the debtor to file a proof of claim on behalf of the creditor who does not timely file. See id. at 206. While the court’s analysis in Global Precious Metals is helpful in connection with a case proceeding under Chapter 7, it is not persuasive in the Chapter 13 context. First, section 726(a)(2)(C) is not applicable in a Chapter 13 case, and there is no similar treatment giving recognition to tardily-filed claims in" }, { "docid": "14920433", "title": "", "text": "the kind specified in paragraph (2)(C) of this subsection ... A review of § 726 reveals that claims given priority under § 507 are allowed if filed prior to the date that the trustee commences distribution. Thus, a priority unsecured claim is allowed, pursuant to § 502(b)(9), whether or not the claim is filed within the ninety-day period prescribed by Rule 3002(c), as long as the claim is filed prior to distribution. Knowledge or notice of the bankruptcy by the bar date set through Rule 3002(c) is of no moment to whether the claim is allowed or disallowed. In addition, § 726 provides that general unsecured claims, other than those which are given priority by § 507, are allowed, even if filed untimely. Under both § 726(a)(2)(C) and § 726(a)(3) late filed claims are allowed to participate in distribution of the debtor’s estate, if the late filed claim is filed under § 501(a), which establishes the statutory right of a creditor and indenture trustee to file proofs of claim and of equity security holders to file proofs of interest. The difference between the two provisions, however, emanates from a distinction between creditors with notice or knowledge of the bankruptcy and creditors who do not have notice or knowledge of the bankruptcy. Section 726(a)(2)(C) provides that claimants who did not receive notice of the bankruptcy ease are entitled to file a proof of claim which will be allowed as if the creditor had notice and had timely filed a proof of claim. Creditors, however, who had knowledge of the bankruptcy case in time, but who failed to file within the Rule 3002(c) period, will still be able to have their proofs of claim allowed, and thereby participate in the distribution of assets, but on a level subordinate to the claims of creditors who did filed proofs of claim after the bar date because they did not receive notice of the pendency of the debt- or’s bankruptcy case in time to meet the bar date. Effectively, § 726(a)(2)(C) places creditors who did not receive notice sufficient to allow the timely filing of" }, { "docid": "1114480", "title": "", "text": "(3), or (4) of this subsection, proof of which is— (A) timely filed under section 501(a) of this title; (B) timely filed under section 501(b) or 501(c) of this title; or (C) tardily filed under section 501(a) of this title, if— (i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of such claim under section 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; (3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified in paragraph (2)(C) of this subsection ... 11 U.S.C. § 726 (1988) Trustee’s objection seeks to reduce the IRS claim to zero because of late filing. IRS alleges the late filed priority claim is entitled to payment pursuant to Section 726(a)(1). Further, it asserts the general unsecured portion of the claim warrants payment under Section 726(a)(3). Alternatively, it maintains the entire claim should be paid by authority of Section 726(a)(3). The IRS is scheduled as a creditor, received notice of the claims bar date and failed to timely file. Bankruptcy Rule 3002(c) requires claims in a Chapter 7 case to be filed within 90 days after the first date set for the meeting of creditors. Fed. Bankr.R.Proc. 3002(c). Generally this rule is strictly construed as a statute of limitations to provide finality and insure swift distribution of the bankruptcy estate. In re Robert Stone Cut Off Equipment, Inc., 98 B.R. 158 (Bankr.N.D.N.Y.1989). Provisions therein for extension of the bar date are inapplicable in the within case. Bankruptcy Rule 9006 provides for enlargement of time only on conditions stated in Rule 3002(c). Fed.Bankr.R.Proc. 9006(b)(3). In United States v. Cardinal Mine Supply, Inc., 916 F.2d 1087 (6th Cir.1990), the Court held Section 726 of the Bankruptcy Code contemplates payment of some tardily filed claims and the bankruptcy rules cannot contradict the statute regarding that payment. The issue, therefore, is whether the IRS" }, { "docid": "10219679", "title": "", "text": "376, 379 (Bankr.Tenn.1982) (disallowing an untimely filed claim, absent fraud, lack of notice, or “extraordinary circumstances”). This Court, finding appellees’ arguments persuasive, concludes that § 726(a)(3) extends to all claims, both priority and non-priority. The Court notes that appellant received notice of the bankruptcy proceeding and, therefore, had ninety days within which to file its claim. Appellant failed to file its proof of claim within the prescribed period and, accordingly, is rele gated to a position below that of the other creditors. In declining to adopt appellant's interpretation of Cardinal Mine, this Court notes that other courts have refused to extend its holding beyond its specific facts. The court in In re Century Boat Co., No. NT 86-03517, 1991 WL 241808, 1991 U.S.Dist. LEXIS 11478 (W.D.Mich. Aug. 7, 1991), warns against misapplying the language of Cardinal Mine. That court emphasizes that in Cardinal Mine, the IRS did not have notice of the bankruptcy proceeding. Thus, it determined that a “rational construction” would extend Cardinal Mine no further than saying that “there must be some equity involved in extending the limitations period”. Id. 1991 WL 241808 at *2, 1991 U.S.Dist. LEXIS 11478 at *6-7. In In re Electrical Management, Inc., 133 B.R. 90 (Bankr.N.D.Ohio 1991), the IRS, having received notice of a bankruptcy proceeding, failed to file a claim within the ninety day period set forth in the bankruptcy rules. The court rejected the IRS’ argument that Cardinal Mine required priority claims to be paid first, regardless of the reason for untimely filing. Instead, the court affirmed the long-standing practice of applying the time limits set forth in the bankruptcy rules to all creditors, as long as notice was present. Id. at 92; see also In re Global Precious Metals, Inc., 143 B.R. 204 (Bankr.N.D.Ill.1992) (finding that a creditor without notice is protected by § 726(a)(2), but that otherwise the ninety day filing requirement applies); In re Crawford, 135 B.R. 128, 133 (D.Kan.1991) (holding that tardily filed claims by IRS should be subordinated under § 726(a)(3) to timely filed claims by general unsecured creditors). Finally, the Court notes that judicial efficiency," }, { "docid": "14920432", "title": "", "text": "and in the order specified in, section 507 of this title, proof of which is timely filed under section 501 of this title or tardily filed before the date on which the trustee commences distribution under this section; (2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection, proof of which is— (A) timely filed under section 501(a) of this title; (B) timely filed under section 501(b) or 501(c) of this title; or (C) tardily filed under section 501(a) of this title, if— (i) the creditor that holds such claim did not have notice or actual knowledge of this case in time for timely filing of a proof of such claim under section 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; (3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified in paragraph (2)(C) of this subsection ... A review of § 726 reveals that claims given priority under § 507 are allowed if filed prior to the date that the trustee commences distribution. Thus, a priority unsecured claim is allowed, pursuant to § 502(b)(9), whether or not the claim is filed within the ninety-day period prescribed by Rule 3002(c), as long as the claim is filed prior to distribution. Knowledge or notice of the bankruptcy by the bar date set through Rule 3002(c) is of no moment to whether the claim is allowed or disallowed. In addition, § 726 provides that general unsecured claims, other than those which are given priority by § 507, are allowed, even if filed untimely. Under both § 726(a)(2)(C) and § 726(a)(3) late filed claims are allowed to participate in distribution of the debtor’s estate, if the late filed claim is filed under § 501(a), which establishes the statutory right of a creditor and indenture trustee to file proofs of claim and of equity security holders to" }, { "docid": "14920434", "title": "", "text": "file proofs of interest. The difference between the two provisions, however, emanates from a distinction between creditors with notice or knowledge of the bankruptcy and creditors who do not have notice or knowledge of the bankruptcy. Section 726(a)(2)(C) provides that claimants who did not receive notice of the bankruptcy ease are entitled to file a proof of claim which will be allowed as if the creditor had notice and had timely filed a proof of claim. Creditors, however, who had knowledge of the bankruptcy case in time, but who failed to file within the Rule 3002(c) period, will still be able to have their proofs of claim allowed, and thereby participate in the distribution of assets, but on a level subordinate to the claims of creditors who did filed proofs of claim after the bar date because they did not receive notice of the pendency of the debt- or’s bankruptcy case in time to meet the bar date. Effectively, § 726(a)(2)(C) places creditors who did not receive notice sufficient to allow the timely filing of a proof of claim on a par equal to that which they would have enjoyed had they received notice from the outset of the bankruptcy case, and filed a proof of claim by the bar date. In this respect, a tardily filed claim under § 726(a)(2)(C) becomes the functional equivalent of a timely filed claim. The claim, though technically tardy, is allowed, and permitted status tantamount to that accorded timely filed proofs of claim. The exception within § 502(b)(9) applies only in Chapter 7 cases, as § 726 only applies in Chapter 7 cases. Thus, claims filed late in cases under Chapters 11, 12, and 13 do not fall within the ambit of the exception to disallowance in. § 502(b)(9). The full operation of § 528(a)(3)(A) is laid bare. The requirement within § 523(a)(3)(A) of notice sufficient to allow the “timely” filing of a proof of claim, protects the right of the creditor to participate in the distribution of the debtor’s estate. Creditors who do not file “timely” proofs of claim are generally prohibited from" }, { "docid": "9814485", "title": "", "text": "of First Citizens’ late claim would, in any case, have come from the estate had there been no settlement. According to Perry, Isabel agreed to pay significant settlement funds.for the estate only because the estate lacked sufficient assets to pay creditors in full. But regardless of the estate’s ability to have paid the claim from its own assets, we believe the bankruptcy court had authority to allow the claim in the present circumstances. The settlement agreement expressly permitted Perry to object to First Citizens’ late claim, and then provided that Isabel, Perry’s wife, would pay that claim if the court allowed it. This provision for payment would make no sense if the claim was, as a practical matter, unallowable. The bankruptcy court thereupon considered the objection, rejected it, and allowed the claim. The claim itself was, on its face, a legally proper and valid claim of the kind contemplated by Section 501(a) of the Bankruptcy Code, subject only to the issue of its late filing. The district court ruled that the untimeliness issue was effectively resolved in First Citizens’ favor by Sections 502(b)(9) and 726(a) of the Bankruptcy Code. See Perry, 304 B.R. at 21. By reference to paragraph (2)(C) of Section 726(a), Section 502(b)(9) authorizes a court to allow a claim in payment of any tardily filed unsecured claim if the creditor did not have notice or actual knowledge of the case in time for timely filing of a proof of claim. See 11 U.S.C. §§ 502(b)(9), 726(a)(2)(C); see also Perry, 304 B.R. at 21. At a lower level of priority, the court is also authorized to allow payment to tardy creditors with notice. See 11 U.S.C. §§ 502(b)(9), 726(a)(3). While Sections 726(a)(2)(C) and (a)(3) do not guarantee payment of tardily filed claims, courts are authorized to allow payment of such claims. See, e.g., In re Bargdill, 238 B.R. 711, 719-20 (Bankr.N.D.Ohio 1999) (late proof of claim of creditor- with notice and actual knowledge of the case in time to timely file a proof of claim would be allowed but subordinated to claims of other unsecured creditors); In re" }, { "docid": "11406116", "title": "", "text": "from reaching the goal which was the impetus for its creation. I am inclined to the belief that most district courts and bankruptcy courts would welcome BAP’s guidance on frontier bankruptcy issues and therefore might well favor such a proposal, (footnotes omitted) Laczko was not adopted as precedent by the Ninth Circuit when it was affirmed without an opinion at 772 F.2d 912 (9th Cir.1985). It was not intended as precedent because it was a “disposition that is not for publication,” as defined in Rule 21(c) of the July, 1984 version of the Ninth Circuit Rules. Additionally, it appears that Laczko may have been overruled by the BAP’s 1989 decision of In re Bowen, 102 B.R. 752 (9th Cir. BAP 1989). Bowen allowed a chapter 7 debtor to reopen his no-asset case to add an omitted creditor, under restricted circumstances. C. §§ 523 and 726. One problem with Laczko is its failure to reconcile 11 U.S.C. § 523(a)(3) with 11 U.S.C. § 726(a)(2)(C). Section 726(a)(2)(C) allows payments to unsecured claims that are “tardily filed” if the creditor had no notice or actual knowledge of the bankruptcy case and the proof of claim is filed in time to permit payment. These payments are allowed on the same priority as timely filed claims. Yet § 523(a)(3) fails to differentiate between timely filed claims and tardily filed claims that received the same priority as timely filed claims. Nowhere does the statute address this inconsistency. As pointed out in In re Sandoval, 102 B.R. 220, 222 (Bankr.D.N.M.1989): It is my opinion that the statute [11 U.S.C. § 523] requires that in order for the debt to be determined to be non-dis-chargeable, the creditor must show that as a practical matter, a timely proof of claim could not have been filed. 11 U.S.C. Section 726(a)(2)(C) provides that a creditor can share in a distribution from the estate even if the creditor’s claim is filed after the expiration of the claims filing period if the creditor did not have notice or actual knowledge of the case in time to timely file a proof of claim and" }, { "docid": "6178600", "title": "", "text": "conditions for extension of the ninety-day bar date set forth in Bankruptcy Rule 3002(c), it is precluded from asserting a timely proof of claim against the chapter 7 estate. See Fed.R.Bankr.P. 9006(b)(1). Rule 9006(b) plainly precludes resort to Rule 9006(b)(1) to extend a time period prescribed in Rule 3002(c), except \"to the extent and under the conditions stated in [Rule 3002(c) ].” Id. at 9006(b)(3). . Bankruptcy Code § 726(a)(2)(C) provides for \"payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection, proof of which is ... tardily filed under section 501(a) of this title, if (i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of such claim- under section 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim.” 11 U.S.C. § 726(a)(2)(C). The appellate record does not disclose whether EPA was listed as a creditor. In addition, it is conceivable, though unlikely, that EPA’s CERCLA claim might be entitled to share in any subordinate distribution under section 726(a)(3), as an “allowed unsecured claim proof of which is tardily filed,” even if EPA was scheduled, or had actual notice of the case prior to the bar date. See In re Melenyzer, 140 B.R. 143, 156 n. 42 (Bankr.W.D.Tex.1992) (chapter 7). . Of course, the bankruptcy court might condition its allowance of a codebtor’s claim on the ultimate failure of the creditor to file a proof of claim. See Bankruptcy Code § 502(j), 11 U.S.C. § 502(j) (\"A claim that has been allowed or disallowed may be reconsidered for cause.”). Instead of automatic disallowance, some courts have suggested that the bankruptcy court sharply discount the codebtor's claim to offset this all-or-nothing contingency, or direct that any distribution to the codebtor be placed in trust, to be expended only to reduce the common debt. See In re Allegheny Int'l., Inc., 126 B.R. 919, 924 (W.D.Pa.1991), aff'd, 950 F.2d 721 (3d Cir.1991). However," } ]
180587
PER CURIAM: Roberto Sorto seeks to appeal the district court’s amended order dismissing his 28 U.S.C. § 2255 (2000) motion as successive. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); REDACTED Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Sorto has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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. DISMISSED
[ { "docid": "22657502", "title": "", "text": "two preliminary questions. II Before AEDPA, appellate review of the dismissal of a ha-beas petition was governed by a version of 28 U. S. C. § 2253 enacted in 1948. Act of June 25, 1948, 62 Stat. 967. The statute provided no appeal could be taken from the final order in a habeas corpus proceeding “unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.” Ibid. The statute did not explain the standards for the issuance of a CPC, but the Court established what a prisoner must show to obtain a CPC in Barefoot v. Estelle, 463 U. S. 880 (1983): “a substantial showing of the denial of a federal right.” Id., at 893 (citation and brackets omitted). Effective April 24,1996, AEDPA amended § 2253. As relevant here, AEDPA added subsection (c), which provides: “(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— “(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or “(B) the final order in a proceeding under section 2255. “(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. “(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).” 28 U. S. C. § 2253(c) (1994 ed., Supp. III). The issue we consider at the outset is whether the pre- or post-AEDPA version of §2253 controls Slack’s right to appeal. In Lindh v. Murphy, 521 U. S. 320 (1997), the Court held that AEDPA’s amendments to 28 U. S. C. §2254, the statute governing entitlement to habeas relief in the district court, applied to cases filed after AEDPA’s effective date. 521 U. S., at 327. Slack contends that Lindh means § 2253(e) does not apply to him because his case was commenced in the District Court pre-AEDPA." } ]
[ { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "18491601", "title": "", "text": "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). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001). Additionally, under AEDPA, a petitioner must obtain a Certificate of Appealability (COA) before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "4885575", "title": "", "text": "determine whether to issue a certificate of appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). While Lassalle-Velázquez has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of his constitutional claims debatable or wrong. Lassalle-Velázquez may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. In this respect, we state that it has become common practice to collaterally challenge federal convictions in federal court by raising arguments of dubious merit. This practice is overburdening federal district courts to the point of having some of these criminal cases re-litigated on § 2255 grounds. We look at this matter with respect to the rights of litigants, but also must protect the integrity of the system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (in a motion to vacate judgment 25 under § 2255, the claimed error of law must be a fundamental defect which inherently results in a complete miscarriage of justice); see also Dirring v. U.S., 370 F.2d 862 (1st Cir.1967) (§ 2255 is a remedy available when some basic fundamental right is denied — not as vehicle for routine review for defendant who is dissatisfied with his sentence). V. Conclusion For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. IT IS SO ORDERED." }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "19629258", "title": "", "text": "Welch never claimed that the residual clause was unconstitutionally vague in his § 2255 motion, let alone that Johnson applies retroactively. Accordingly, courts below addressed neither issue. Indeed, Johnson was not even decided when the courts below issued their rulings. Those deficiencies should preclude us from deciding in this case whether Johnson is retroactive. Our role in reviewing the denial of a certificate of appealability is far more circumscribed than normal appellate review. The text of 28 U.S.C. § 2253 confirms this. Defendants can appeal their convictions and sentences as a matter of right on direct review, but § 2253 deprives courts of appeals of jurisdiction to review the denial of a petitioner's motion for federal postconviction relief unless he obtains a \"certificate of appealability.\" § 2253(c)(1). And he can obtain that certificate only if he makes \"a substantial showing of the denial of a constitutional right.\" § 2253(c)(2) ; see Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, this Court has instructed that review of the denial of a certificate of appealability is a retrospective inquiry into whether the movant's claims, as litigated in the district court, warrant further proceedings-not whether there is any conceivable basis upon which the movant could prevail. Courts must ask whether \"reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (emphasis added). They are to \"look to the District Court's application of [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ] to petitioner's constitutional claims and ask whether that resolution was debatable.\" Miller-El, supra, at 336, 123 S.Ct. 1029 (emphasis added). Until today, we did not require courts of appeals to consider all possible constitutional issues that might warrant relief as part of this inquiry. Those courts instead looked to how the movant framed his case in his motion to vacate. Even if, for example, a district court denies habeas relief based on procedural default and never reached the merits, the movant must establish not" }, { "docid": "2983002", "title": "", "text": "inquiry, the Supreme Court’s endorsement of the FBI warnings that did not expressly state there is a right to counsel during interrogation, and the circuit split regarding whether Miranda requires explicitly informing the suspect that he has the right to counsel during interrogation, we hold that the Court of Criminal Appeals’s conclusion that the warnings adequately conveyed the right to counsel during interrogation was not objectively unreasonable. Therefore, we affirm the district court’s denial of relief with respect to Bridgers’s Fifth Amendment claim. B. Fourth Amendment 1. COA Standard of Review The district court denied a COA with respect to Bridgers’s Fourth Amendment claim. Under AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. at 1034. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition" }, { "docid": "3835519", "title": "", "text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to- proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "23126929", "title": "", "text": "his right to bring a collateral attack except in limited circumstances not found here, and because enforcement of the waiver does not produce a miscarriage of justice, we affirm the district court’s denial of this claim. B. Certificate of Appealability This court lacks jurisdiction to consider the merits of a § 2255 issue unless a petitioner obtains a COA. See 28 U.S.C. § 2253(c)(1)(B). We may issue a COA only “if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make the requisite showing, Mr. Viera must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quotations omitted). Mr. Viera applies for a COA on several issues. The first one was raised in the district court. Mr. Viera argues that his plea was involuntary because he entered it under the mistaken belief he would not be deported and because he believed he would be eligible for a one-year sentence reduction upon completion of a residential drug abuse program (“RDAP”). He argues that his attorney rendered ineffective assistance for failure to withdraw the plea agreement and guilty plea once Mr. Viera discovered he would be deported and would not be eligible for the RDAP. We conclude that reasonable jurists could not debate with the district court’s thorough and well-reasoned order determining that Mr. Viera failed to show there was “a fair and just reason” to withdraw his plea. See United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000). Mr. Viera has not shown that, absent counsel’s alleged failure to advise him that he would be deported, he would have gone to trial. Furthermore, Mr. Viera expressed an intention to return to Mexico and never come back to the United States. Mr. Viera’s argument regarding a sentence reduction for completing RDAP is also unavailing because Mr. Viera admitted at the change" }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "9579645", "title": "", "text": "of the Confrontation Clause.”) (citations omitted). Accordingly, the petition for habeas relief based on a Sixth Amendment violation is denied. D. As to a Certificate of Appealability Rule 22(b) of the Federal Rules of Appellate Procedure provides that “[i]n a ha-beas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Section 2253(c) provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000). In the Court’s view, the petitioner has satisfied his burden for a certificate of appealability with regard to the issue of whether New York’s depraved indifference murder statute is unconstitutionally vague. This question is debatable among jurists of reason, as evidenced by the dissents of former Court of Appeals Judges Jasen, Bellacosa, and Rosenblatt, and the opinions of Judge Brieant in the Southern District of New York. Also, the question is one which should receive further review. The Second Circuit has not yet addressed whether New York’s depraved indifference murder statute, on its face or as interpreted, violates the Constitution. On two occasions, the Court found that the question was not properly exhausted and procedurally barred, and the petitioners failed to show either “cause and prejudice” or that they were actually innocent. See St. Helen v. Senkowski" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "11755177", "title": "", "text": "to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. See 28 U.S.C.A. § 2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West 2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will riot prevail.” Id. at 338, 123 S.Ct. 1029. Finally, “[bjecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We note that under the AEDPA, federal courts are to give a level of deference to state court findings per §§ 2254(d)(2) and (e)(1). At the" } ]
34019
99 L.Ed. 483 n. 8 (1955), the Court noted that under the IRC, personal injury recoveries are non-taxable on the theory that they correspond to a return of capital. The Court stated that damages for personal injury are compensatory only. Id. The court in Reed, supra at 1257, concluded that the settled meaning of “income” as expressed by the Supreme Court and in common usage has not been altered by the AFDC statute. The Reed court found that defining personal injury awards as income was totally irrational and in conflict with the statutory scheme of Congress. The court stated that there was no reason to apply a different meaning to “income” under the AFDC statute than under the IRC. Id. In REDACTED the court based its decision that personal injury awards could be treated as income on the specific exemption from gross income in the IRC for personal injury awards. The AFDC statute does not contain such an exemption. However, as the Reed court noted, this analysis is inconsistent with both the Supreme Court definition of income and the Glenshaw determination that damages are compensatory. Congress can be presumed to be aware of interpretations of “income” by the Court and of the common meaning of the word. Perrin, supra. If Congress had intended to include personal injury awards in the definition of income, it would have specifically defined income differently in the AFDC statute than in the IRC. Because Congress made no special
[ { "docid": "694529", "title": "", "text": "(1965). In light of the language and legislative history of the lump sum rule, this court cannot say that the Secretary’s regulation applying the lump sum rule to earned and unearned income is unreasonable. The legislative history clearly reveals an effort to give AFDC assistance units an incentive to budget the lump sum payment. This incentive exists whether or not there is earned income. The equation used to determine the period of eligibility accounts for earned and unearned income. The burden on recipients with no earned income, were they to budget according to the method of calculating ineligibility, is no different than the burden on recipients with earned income. That finding, however, does not end the matter. As stated earlier, plaintiffs also contend that the treatment of personal injury awards for pain and suffering as income violates federal law and Pennsylvania’s own regulations. The term “income” is not defined in the AFDC statute or regulations. The statute generally provides that “in determining need, [the State shall] take into consideration any ... income and resources” of an AFDC applicant except as otherwise disregarded. 42 U.S.C. § 602(a)(7). The regulations promulgated under the statute expressly provide for the exclusion or the disregard of certain items. See 45 C.F.R. § 233.20(a)(3). Personal injury awards are not among the excluded items. Furthermore, as noted, the agency responded to comments regarding the treatment of income when it is received as a settlement for specific bills by reiterating that such payments are not included as income. There is no indication of like treatment for personal injury damage awards. The plaintiffs argue that their position is supported by the exclusion of personal injury awards as income under the Internal Revenue Code. That exclusion, however, is expressly established by statute at 26 U.S.C. § 104(a)(2). Were such a provision not made, such awards could be considered income under the Internal Revenue Code general provision of income, 26 U.S.C. § 61(a). See Roemer v. Commissioner of Internal Revenue, 716 F.2d 693, 696 n. 2 (9th Cir.1983) (“Since there is no tax basis in a person’s health and other personal" } ]
[ { "docid": "23544484", "title": "", "text": "845, 42 U. S. C. §602(a)(17) (1982 ed., Supp. III). Although the 1981 amendments changed the treatment of excess income, “neither the language of [the amendment] nor its legislative history indicates that Congress intended to change the meaning of ‘income’ in 1981.” Brief for Secretary of HHS 15. Accordingly, the Secretary advised the States to adhere to their existing definitions of income. 47 Fed. Reg. 5648, 5656 (1982). Virginia responded to the 1981 amendments by promulgating a rule that payments for personal injuries must be counted as income in determining eligibility for AFDC benefits. Virginia Department of Social Services, ADC Manual (Va. ADC Manual) §305.4C (Jan. 1983), App. to Pet. for Cert. 71. Under the Virginia regulation at issue in this case, medical and legal expenses incurred prior to or within 30 days after the receipt of the award were not counted in income. The remainder of the personal injury award, “representing pain and suffering, loss of earning capacity, future medical expenses, and punitive damages,” was included in income. Brief for Petitioner 5, n. 5. The named re spondents, who had been entitled to AFDC benefits ranging from $181 to $255 per month, received personal injury or worker’s compensation awards of between $700 and about $10,250. App. 13-19; Brief for Respondents 3-5. As a result, the Virginia Department of Social Services ruled them ineligible for AFDC benefits for periods of from 2 months to 27 months. The respondents spent the awards primarily on basic living expenses, repayment of debts, and items such as used automobiles and appliances. App. 13-19. In each case, the families exhausted the modest awards long before they regained eligibility for AFDC benefits. r — < 1 — 1 The AFDC statute, as noted above, does not define “income.” “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). The plurality recognizes that income commonly is defined as “ ‘ “the gain derived from capital, from labor, or from both combined,” provided it be understood" }, { "docid": "21589391", "title": "", "text": "noted that the “legislative history of the ADEA indicates that Congress intended for liquidated damages to be punitive in nature.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Since the plaintiff’s recovery of liquidated damages is not based on the extent of the taxpayer’s injury but instead the employer’s degree of culpability, the Court’s interpretation of the legislative history seems to comport with the statute’s structure. Furthermore, at least one court has characterized liquidated damages under the ADEA as punitive. Kelly v. American Standard, Inc., 640 F.2d 974, 979 (9th Cir.1981). Cf. Dreyer v. ARCO Chem. Co., 801 F.2d 651, 657-58 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987) (looking to general punitive damage principles to determine the meaning of “willfulness” in the context of disparate treatment in a discrete employment situation). Moreover, it was not unreasonable for the Commissioner to have interpreted Glenshaw Glass as standing for the proposition that all punitive damage awards are includable in gross income. Although the court in Glenshaw Glass was apparently considering only whether treble damages under the antitrust laws were taxable under the IRC, its language was much broader: “Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes.” Glenshaw Glass, 348 U.S. at 432 n. 8, 75 S.Ct. at 477 n. 8. Both courts and commentators have generally interpreted Glenshaw Glass as having enunciated the broader proposition. See, e.g., Thomson v. Commissioner, 406 F.2d 1006, 1008 (9th Cir.1969); Frolik, supra p. 658, at 17-18. Thus, we hold that the Commissioner’s position that back pay and liquidated damages under the ADEA represent taxable income was substantially justified. Therefore, we will affirm the Tax Court’s decision to deny the taxpayer’s application for reasonable litigation expenses. IV. To summarize, we disagree with the Tax Court that half of the taxpayer’s settle ment is taxable income. Because age discrimination is analogous to a personal injury tort, all damages caused by that injury are excludable under" }, { "docid": "19903445", "title": "", "text": "agreement on account of 'such injuries or sickness.” 40 Stat. 1057, 1066 (1919). Because the 1918 Act followed soon after ratification of the Sixteenth Amendment, Murphy contends that the statute reflects the meaning of the Amendment as it would have been understood by those who framed, adopted, and ratified it. She observes that in Dotson v. United States, 87 F.3d 682 (5th Cir.1996), the court concluded upon the basis of the House Report that the “Congress first enacted the personal injury compensation exclusion ... when such payments were considered the return of human capital, and thus not constitutionally taxable ‘income’ under the 16th amendment.” Id. at 685. The Government attacks Murphy’s constitutional argument on all fronts. First, invoking the presumption that the Congress enacts laws within its constitutional limits, see Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the Government asserts at the outset that § 104(a)(2) is constitutional even if, as amended in 1996, it does permit the taxation of compensatory damages. Indeed, the Government goes further, contending the Congress could, consistent with the Sixteenth Amendment, repeal § 104(a)(2) altogether and tax compensation even for physical injuries. Noting that the power of the Congress to tax income “extends broadly to all economic gains,” Commissioner v. Banks, 543 U.S. 426, 433, 125 S.Ct. 826, 160 L.Ed.2d 859 (2005), the Government next maintains that compensatory damages “plainly constitute economic gain, for the taxpayer unquestionably has more money after receiving the damages than she had prior to receipt of the award.” On that basis, the Government contends Murphy’s reliance upon footnote eight of Glenshaw Glass is misplaced; merely because the Congress “has historically excluded personal injury recoveries from gross income, based on the make-whole or restoration-of-human-capital theory, does not mean that such an exclusion is mandated by the Sixteenth Amendment.” Because the Supreme Court in Glenshaw Glass was construing “gross income” with reference only to the IRC, the Government argues footnote eight addresses only a now abandoned congressional policy, not the outer limit of the Sixteenth Amendment. According to the Government, the same is true of" }, { "docid": "23544495", "title": "", "text": "amendments. Ante, at 378, n. 4. Based on this record, I conclude that the Secretary took no position on the treatment of personal injury awards prior to 1981. Justice Blackmun would defer to the Secretary’s interpretation of the statute. Because I conclude that the Secretary’s interpretation is inconsistent with the statute, I do not think it is entitled to the customary deference. The plurality concludes that “[t]he explicit differences between the definition of ‘income’ in the Food Stamp program and the HHS poverty guidelines on the one hand and the AFDC statute on the other are simply too great” to allow a presumption that they share a common definition of income. Ante, at 377. It is true that “income” is defined to exclude all nonrecurring lump-sum payments for purposes of the Food Stamp program, 7 U. S. C. § 2014(d)(8), and that the HHS poverty guidelines exclude capital gains, gifts, and lump-sum inheritances, 48 Fed. Reg. 7010, 7011 (1983). It also is undisputed that lump-sum payments representing a gain to the family, such as retroactive Social Security payments, must be included in income under the AFDC program. But the decision to include some lump-sum gains under the AFDC program that are excluded under other poverty programs does not indicate that Congress also intended to include payments that do not represent a gain, and that Congress has not included in income under any program. The plurality asserts that this objection is “simply irrelevant,” ante, at 383, because Virginia officials chose to treat personal injury awards as income. But Congress could not know in advance whether the treatment of personal injury awards would be left to the States. Indeed, as noted above, the Secretary now requires the States to include personal injury awards in income. See n. 2, supra. In my view, the possibility that AFDC families would be deprived of state tort remedies is sufficient to preclude inclusion of personal injury awards in income. In my view, Virginia’s treatment of personal injury awards was inconsistent with the Secretary’s “equitable treatment regulation,” which states that “the eligibility conditions imposed must not exclude" }, { "docid": "21430441", "title": "", "text": "“capital” as distinguished from “income” receipts. Finally, Murphy argues her interpretation of § 61 is reflected in the common law of tort and the provisions in various environmental statutes and Title VII of the Civil Rights Act of 1964, all of which provide for “make whole” relief. See, e.g., 42 U.S.C. § 1981a; 15 U.S.C. § 2622. If a recovery of damages designed to “make whole” the plaintiff is taxable, she reasons, then one who receives the award has not been made whole after tax. Section 61 should not be read to .create a conflict between the tax code and the “make whole” purpose of the various statutes. The Government disputes Murphy’s interpretation on all fronts. First, noting “the definition [of gross income in the IRC] extends broadly to all economic gains,” Banks, 543 U.S. at 433, 125 S.Ct. 826, the Government asserts Murphy “undeniably had economic gain because she was better off financially after receiving the damages award than she was prior to receiving it.” Second, the Government argues that the case law Murphy cites does not support the proposition that the Congress lacks the power to tax as income recoveries for personal injuries. In its view, to the extent the Supreme Court has addressed at all the taxability of compensatory damages, see, e.g., O’Gilvie, 519 U.S. at 86, 117 S.Ct. 452; Glenshaw Glass, 348 U.S. at 432 n. 8, 75 S.Ct. 473, it was merely articulating the Congress’s rationale at the time for not taxing such damages, not the Court’s own view whether such damages could constitutionally be taxed. Third, the Government challenges the relevance of the administrative rulings Murphy cites from around the time the Sixteenth Amendment was ratified; Treasury decisions dating from even closer to the time of ratification treated damages received on account of personal injury as income. See T.D. 2135, 17 Treas. Dec. Int. Rev. 39, 42 (1915); T.D. 2690, Reg. No. 33 (Rev.), art. 4, 20 Treas. Dec. Int. Rev. 126, 130 (1918). Furthermore, administrative rulings from the time suggest that, even if recoveries for physical personal injuries were not considered part of" }, { "docid": "21430471", "title": "", "text": "the foregoing reasons, we conclude (1) Murphy’s compensatory award was not received on account of personal physical injuries, and therefore is not exempt from taxation pursuant to § 104(a)(2) of the IRC; (2) the award is part of her “gross income,” as defined by § 61 of the IRC; and (3) the tax upon the award is an excise and not a direct tax subject to the apportionment requirement of Article I, Section 9 of the Constitution. The tax is uniform throughout the United States and therefore passes constitutional muster. The judgment of the district court is accordingly Affirmed. Insofar as compensation for nonphysical personal injuries appears to be excludable from gross income under 26 C.F.R. § 1.104-1, the regulation conflicts with the plain text of § 104(a)(2); in these circumstances the statute clearly controls. See Brown v. Gardner, 513 U.S. 115, 122, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (finding \"no antidote to [a regulation’s] clear inconsistency with a statute”). The Sixteenth Amendment provides: \"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” Murphy also suggests further insight into whether her award is income can be gleaned from application of the \"in lieu of” test. See Raytheon Prod. Corp. v. Comm’r, 144 F.2d 110, 113 (1st Cir.1944). As she acknowledges, however, we would still be required to determine whether her award was compensatory or an accession to wealth, which is the same analysis Glenshaw Glass and its progeny demand. As discussed below, it is unnecessary to determine if there was an accession to wealth in this case; § 61 encompasses Murphy’s award regardless. As evidence the presumption is well-founded in this case, we note the House Report ac companying the 1996 amendment to § 104 explicitly presumes recoveries for nonphysical injuries would be included in gross income: Part of the section explaining the effect of the amendment is entitled “Include in income damage recoveries for nonphysical injuries.” H.R.Rep. No. 104-586, at 143-44 (1996), reprinted in 1996-3 C.B. 331," }, { "docid": "7623000", "title": "", "text": "be understood to include profit gained through a sale or conversion of capital assets____ Eisner v. Macomber, 252 U.S. 189 at 207, 40 S.Ct. 189 at 193, 64 L.Ed. 521, quoting Stratton’s Independence v. Howbert, 231 U.S. 399, 415, 34 S.Ct. 136, 140, 58 L.Ed. 285 and Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185, 38 S.Ct. 467, 469, 62 L.Ed. 1054. Later, the Court clarified the basis for this definition: “this court has consistently refused to enter into the refinements of lexicographers or economists and has approved ... what it believed to be the commonly understood meaning of the term [“income”] which must have been in the minds of the people when they adopted the Sixteenth Amendment to the Constitution. Merchant’s Loan and Trust Company v. Smietanka, 255 U.S. 509, 519, 41 S.Ct. 386, 388, 65 L.Ed. 751 (1921); accord, U.S. v. Stewart, 311 U.S. 60, 63, 61 S.Ct. 102, 104, 85 L.Ed. 40 (1940). Finally, when determining that punitive damages must be included as “gross income” for tax purposes the Court held: [t]he long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property. Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 432 n. 8, 75 S.Ct. 473, 477 n. 8, 99 L.Ed. 483 (1954). The Internal Revenue Code also excludes from gross income compensation for personal injuries or sickness. 26 U.S.C. § 104. In light of the aforementioned treatment of personal injury awards, the court concludes that the settled meaning of “income” as expressed by the Supreme Court and as understood in common usage has not been altered by the AFDC statute. Congress has given the court no reason to apply a more particularized meaning of the word in the AFDC context. The court is of the opinion, therefore, that it is irrational to treat a damaged car or home" }, { "docid": "23544466", "title": "", "text": "assertion, Virginia’s revised regulations are consistent with a perfectly natural use of “income.” Respondents also seek to derive support from the fact that personal injury awards are not treated as income under the Internal Revenue Code, the Food Stamp program, or the HHS poverty guidelines. See 26 U. S. C. § 104(a); 91 Stat. 962, 7 U. S. C. § 2014(d)(8); 48 Fed. Reg. 7010, 7011 (1983). But in each of these instances there is an express provision that personal injury awards are not to be treated as income— which causes them not only to fail to support the proposition that the term “income” automatically excludes personal injury awards, but to support the opposite proposition that absent express exclusion it embraces them. Moreover, the fact that Congress was silent in the AFDC statute but has elsewhere been explicit when it wished to exclude personal injury awards from income tends to refute rather than support a legislative intent to exclude them from AFDC computations. Cf. Russello v. United States, 464 U. S. 16, 23 (1983). Nor is there any merit to respondents’ slightly different argument that since the relevant provisions of the Food Stamp program, the HHS poverty guidelines, and the AFDC statute have the common goal of defining who is needy, they should be presumed to have a common definition of “income” — one that necessarily excludes personal injury awards. The explicit differences between the definition of “income” in the Food Stamp program and the HHS poverty guidelines on the one hand and the AFDC statute on the other are simply too great to permit any such presumption. Compare 91 Stat. 962, 7 U. S. C. § 2014(d)(8) (Food Stamp program excludes all nonrecurring lump-sum payments, including retroactive lump-sum Social Security benefits), and 48 Fed. Reg. 7010, 7011 (1983) (HHS poverty guidelines exclude capital gains, gifts, and lump-sum inheritances), with Brief for Respondents 47 (conceding that retroactive Social Security benefits and other lump-sum payments that represent a true gain are income under the AFDC statute). Respondents’ next contention is that Virginia’s treatment of personal injury awards is inconsistent with the" }, { "docid": "13823199", "title": "", "text": "Internal Revenue determined that the entire judgment received by Roemer should have been included in gross income with a deduction for all costs and attorneys’ fees and assessed a deficiency of $32,980 against Roemer. The tax court, in an opinion by Judge Dawson reviewed by the court with three judges dissenting, upheld the Commissioner’s determination. The tax court ruled that: (1) the compensatory damages were not excludable from gross income under I.R.C. § 104(a)(2), because the taxpayer had failed to establish that the compensatory damages were received for injury to his personal reputation; (2) the punitive damages were also includa ble in gross income, since the tax court found that the compensatory damages were intended to reimburse the taxpayer for injury to his professional reputation; (3) both the compensatory and the punitive damages were taxable as ordinary income; and (4) the issue whether the costs were excludable from gross income as a recovery of capital or includable and deductible under I.R.C. § 212 was moot in the context of this case. Roemer v. Commissioner, 79 T.C. 398 (1982). ANALYSIS A. Compensatory Damages 1. Tax Treatment of Personal Injury Damages I.R.C. § 61(a) defines gross income as “all income from whatever source derived.” All realized accessions to wealth are presumed to be taxable income, unless the taxpayer can demonstrate that an acquisition is specifically exempted from taxation. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430, 75 S.Ct. 473, 476, 99 L.Ed. 483 (1955) (Congress intended to tax all gains except those specifically exempted). Since 1918 Congress has expressly excluded from gross income tort damages received on account of personal injuries. Revenue Act of 1918, § 213(b)(6), 40 Stat. 1066. An individual who wins a personal injury suit is usually given a lump-sum award that includes an amount for items that ordinarily would be taxable, such as lost income. Although it might be logical to allocate a lump-sum award between its excludable and taxable components, the Commissioner has long excluded from income the entire monetary judgment. See Sol.Op. 132, 1-1 C.B. 92, 93 (1922) (rights invaded and money value are incomparable," }, { "docid": "19903446", "title": "", "text": "the Congress could, consistent with the Sixteenth Amendment, repeal § 104(a)(2) altogether and tax compensation even for physical injuries. Noting that the power of the Congress to tax income “extends broadly to all economic gains,” Commissioner v. Banks, 543 U.S. 426, 433, 125 S.Ct. 826, 160 L.Ed.2d 859 (2005), the Government next maintains that compensatory damages “plainly constitute economic gain, for the taxpayer unquestionably has more money after receiving the damages than she had prior to receipt of the award.” On that basis, the Government contends Murphy’s reliance upon footnote eight of Glenshaw Glass is misplaced; merely because the Congress “has historically excluded personal injury recoveries from gross income, based on the make-whole or restoration-of-human-capital theory, does not mean that such an exclusion is mandated by the Sixteenth Amendment.” Because the Supreme Court in Glenshaw Glass was construing “gross income” with reference only to the IRC, the Government argues footnote eight addresses only a now abandoned congressional policy, not the outer limit of the Sixteenth Amendment. According to the Government, the same is true of the 1918 Act and the interpretive rulings that preceded it. Although the Government acknowledges that the dictum in Dotson, 87 F.3d at 685, accords with Murphy’s position, the Government notes the court there relied solely upon the House Report. Because the House Report merely states “it is doubtful whether ... compensation for personal injury or sickness ... [is] required to be included in gross income,” H.R.Rep. No. 65-767, at 9-10 (1918), the Government observes that the “report simply does not establish that Congress believed taxing compensatory personal injury damages would be unconstitutional.” In addition, the Government challenges the coherence of Murphy’s analogy between a return of “human capital or well-being” and a return of “financial capital,” the latter of which it acknowledges does not constitute income under the Sixteenth Amendment. See Doyle, 247 U.S. at 187, 38 S.Ct. 467; S. Pac. Co., 247 U.S. at 335, 38 S.Ct. 540. The Government first observes that financial capital, like all property, has a “basis,” defined by the IRC as “the cost of such property,” 26 U.S.C. §" }, { "docid": "8639612", "title": "", "text": "benefits, and inheritances, that all large lump sums are “income”; again the plaintiffs properly respond that the Secretary never said this, and that each of these three illustrations could be distinguished from awards of damages for personal injuries. Inheritances are “gain” by plaintiffs’ lights; retroactive payments of, say, workers’ compensation benefits are wage-substitutes; insurance proceeds could be from kinds of insurance other than disability. The inescapable fact is that Congress wanted to compel recipients of AFDC to budget lump-sum receipts of “income” but did not consider what “income” might be. Perhaps the Secretary and many Members of Congress assumed that all lump sums are “income,” but this was not the subject of debate or decision. The most that can be said is that Congress did not prescribe any restriction on the definition. Any definition that includes particular lump sums within the catgory “income” is consistent with the purpose of § 602(a)(17) to reduce the incentive to spend large receipts quickly. Because the Secretary has the discretion to define income in any way consistent with the will of Congress, this is enough support for his position. The plaintiffs have two final lines of argument. One is that because Congress did not change the definition of “income” in 1981, the Secretary should have stuck with the approach in force in 1981, which would have classified personal injury awards as “resources.” The other is that the Secretary must be consistent in defining resources, and that because a regulation defines the receipts from the sale or exchange of a resource as a resource, the Secretary also must define personal injury awards — the equivalent of receipts from the sale or exchange of the AFDC recipient’s person — as resources. The Fourth Circuit was persuaded in Reed that “income” means only net gain, and that becáuse Congress did not change this meaning in 1981 damages awards cannot be income. 774 F.2d at 1275. We have discussed above the reasons why “income” may mean gross receipts as easily as it means net gain, The Supreme Court in Heckler v. Turner used gross receipts as the meaning" }, { "docid": "8639613", "title": "", "text": "will of Congress, this is enough support for his position. The plaintiffs have two final lines of argument. One is that because Congress did not change the definition of “income” in 1981, the Secretary should have stuck with the approach in force in 1981, which would have classified personal injury awards as “resources.” The other is that the Secretary must be consistent in defining resources, and that because a regulation defines the receipts from the sale or exchange of a resource as a resource, the Secretary also must define personal injury awards — the equivalent of receipts from the sale or exchange of the AFDC recipient’s person — as resources. The Fourth Circuit was persuaded in Reed that “income” means only net gain, and that becáuse Congress did not change this meaning in 1981 damages awards cannot be income. 774 F.2d at 1275. We have discussed above the reasons why “income” may mean gross receipts as easily as it means net gain, The Supreme Court in Heckler v. Turner used gross receipts as the meaning of income for purposes of AFDC, and there is no reason why damages on account of personal injury should receive a different treatment. See also, e.g., Walker v. Adams, 741 F.2d 116 (6th Cir.1984) (treating as “income” for purposes of AFDC a payment received as an insurance settlement for the demolition of a car). The plaintiffs reply that the Secretary himself has treated personal injury awards as “resources” since 1957, when a “Handbook of Public Assistance Administration” informed states that they must treat as “income” any lump sum that represents “accumulated current income.” This meant, the Handbook said, that Social Security benefits and workers’ compensation benefits are “income” even if paid in lump sums. According to the plaintiffs, however, the Handbook told states to treat as “resources” compensatory payments for the loss of a hand or foot. This means, plaintiffs conclude, that all recoveries for personal injuries must be “resources.” The Handbook is not as clear as the plaintiffs portray it, however. It says only that payment for the loss of a hand or foot" }, { "docid": "19903442", "title": "", "text": "in Glenshaw Glass. There, in holding that punitive damages for personal injury were “gross income” under the predecessor to § 61, the Court stated: The long history of ... holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property .... Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes. 348 U.S. at 432 n. 8, 75 S.Ct. 473. In Murphy’s view, the Court thereby made clear that the recovery of compensatory damages for a “personal injury” — of whatever type — is analogous to a “return of capital” and therefore is not income under the IRC or the Sixteenth Amendment. In support of her reading of the caselaw, Murphy contends the IRC, as drafted shortly after “passage of the [Sixteenth] Amendment demonstrates that compensatory damages designed to make a person whole are excluded from the definition of ‘income.’ ” She focuses upon the three sources the Supreme Court quoted in O’Gilvie, 519 U.S. at 84-87, 117 S.Ct. 452, to wit, an Opinion of the Attorney General, a Decision of the Department of the Treasury, and a Report issued by the Ways and Means Committee of the House of Representatives — each of which predates the first version of § 104(a)(2), namely, § 213(b)(6) of the Revenue Act of 1918. See 40 Stat. 1057,1066 (1919). In an opinion rendered to the Secretary of the Treasury on the question whether proceeds from an accident insurance policy were income under the IRC as it stood prior to the 1918 Act, the Attorney General stated: Without affirming that the human body is in a technical sense the “capital” invested in an accident policy, in a broad, natural sense the proceeds of the policy do but substitute, so far as they go, capital which is the source of future periodical income. They merely take the place of capital in human ability which was destroyed by the accident. They are therefore “capital” as" }, { "docid": "23544486", "title": "", "text": "to include profit gained through a sale or conversion of capital assets Ante, at 375 (quoting Eisner v. Macomber, 252 U. S. 189, 207 (1920) (quoting Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415 (1913); Doyle v. Mitchell Brothers Co., 247 U. S. 179, 185 (1918))). In light of Macomber, which held that stock dividends are not taxable income, the Solicitor of Internal Revenue concluded: “If an individual is possessed of a personal right that is not assignable and not susceptible of any appraisal in relation to market values, and thereafter receives either damages or payment in compromise for an invasion of that right, it can not be held that he thereby derives any gain or profit. It is clear, therefore, that the Government can not tax him on any portion of the sum received.” 1-1 Cum. Bull. 93 (1922). In a later tax case, the Court defined income as “accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 431 (1955). In Glenshaw Glass, the Court observed that “[d]amages for personal injury are by definition compensatory only,” id., at 432, n. 8, and cited “[t]he long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital. . . ,” ibid, (citing 2 Cum. Bull. 71 (1920); 1-1 Cum. Bull. 92, 93 (1922); VII-2 Cum. Bull. 123 (1928); 1954-1 Cum. Bull. 179, 180). Congress continues to exclude personal injury awards from income under the Internal Revenue Code. 26 U. S. C. § 104(a). Congress also excludes personal injury awards from income for the purpose of determining eligibility for food stamps, 7 U. S. C. § 2014(d)(8), and under the HHS poverty guidelines, 48 Fed. Reg. 7010, 7010-7011 (1983). In deed, the plurality does not cite a single statute in which Congress has defined income to include personal injury awards, and I am aware of none. The plurality nevertheless concludes that Virginia reasonably interpreted the AFDC statute to include personal injury awards in income, even if" }, { "docid": "19903441", "title": "", "text": "as it would make the award taxable as income. Broad though the power granted in the Sixteenth Amendment is, the Supreme Court, as Murphy points out, has long recognized “the principle that a restoration of capital [i]s not income; hence it [falls] outside the definition of ‘income’ upon which the law impose[s] a tax.” O’Gilvie, 519 U.S. at 84, 117 S.Ct. 452; see, e.g., Doyle v. Mitchell Bros. Co., 247 U.S. 179, 187-88, 38 S.Ct. 467, 62 L.Ed. 1054 (1918); S. Pac. Co. v. Lowe, 247 U.S. 330, 335, 38 S.Ct. 540, 62 L.Ed. 1142 (1918) (return of capital not income under IRC or Sixteenth Amendment). By analogy, Murphy contends a damage award for personal injuries — including nonphysical injuries — is not income but simply a return of capital — “human capital,” as it were. See Gary S. Becker, Human Capital (1st ed.1964); Gary S. Becker, “The Economic Way of Looking at Life,” 43-45 (Nobel Lecture, Dec. 9, 1992). According to Murphy, the Supreme Court read the concept of “human capital” into the IRC in Glenshaw Glass. There, in holding that punitive damages for personal injury were “gross income” under the predecessor to § 61, the Court stated: The long history of ... holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property .... Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes. 348 U.S. at 432 n. 8, 75 S.Ct. 473. In Murphy’s view, the Court thereby made clear that the recovery of compensatory damages for a “personal injury” — of whatever type — is analogous to a “return of capital” and therefore is not income under the IRC or the Sixteenth Amendment. In support of her reading of the caselaw, Murphy contends the IRC, as drafted shortly after “passage of the [Sixteenth] Amendment demonstrates that compensatory damages designed to make a person whole are excluded from the definition of ‘income.’ ” She focuses upon" }, { "docid": "23544462", "title": "", "text": "awards as income but at the same time treat awards for property loss as resources. The District Court therefore issued an injunction forbidding Lukhard to apply the revised regulations to recipients of personal injury awards, ordering him to begin paying AFDC benefits to the named plaintiffs and other class members who would presently have been receiving them but for application of the revised regulations, and requiring him to notify AFDC recipients who had been deprived of past AFDC benefits as a result of the revised regulations. The court declined, however, to order Lukhard to pay retroactive AFDC benefits, and stayed the injunction pending appeal except insofar as it required Lukhard to begin paying AFDC benefits to the named plaintiffs. Lukhard and the Secretary appealed and the respondents cross-appealed. After the Court of Appeals for the Fourth Circuit affirmed the judgment in all respects, Reed v. Health & Human Services, 774 F. 2d 1270 (1985), Lukhard filed this petition. The Secretary did not file a separate petition but supported Lukhard’s petition and supports Lukhard’s position on the merits. r-H ) — I Respondents principal contention is that Virginia’s revised regulations are inconsistent with the meaning of “income” and “resources” as those terms are used in the AFDC statute. To support this argument they first advance the broader proposition that it does violence to common usage to interpret “income” to include personal injury awards. This argument begins from the premise that since personal injury awards are purely compensatory, they do not result in any gain to their recipients. And since both general and legal sources define “income” as involving gain, see, e. g., Webster’s Third New International Dictionary 1143 (1976) (“a gain or recurrent benefit that is usu. measured in money . . .”); 42 C. J. S., Income, p. 531 (1944) (“In common speech ‘income’ generally is understood as gain or profit. . .” (footnote omitted)); Eisner v. Macomber, 252 U. S. 189, 207 (1920) (“‘Income may be defined as the gain derived from capital, from labor, or from both combined/ provided it be understood to include profit gained through a" }, { "docid": "21430436", "title": "", "text": "her physical aliments, in support of Murphy’s “description of her mental anguish,” we cannot say the Board, notwithstanding its clear statements to the contrary, actually awarded damages because of Murphy’s bruxism and other physical manifestations of stress. Id. at *8. At best — and this is doubtful — at best the Board and the ALJ may have considered her physical injuries indicative of the severity of the emotional distress for which the damages were awarded, but her physical injuries themselves were not the reason for the award. The Board thus having left no room for doubt about the grounds for her award, we conclude Murphy’s damages were not “awarded by reason of, or because of, ... [physical] personal injuries,” O’Gilvie, 519 U.S. at 83, 117 S.Ct. 452. Therefore, § 104(a)(2) does not permit Murphy to exclude her award from gross income. C. Section 61 of the IRC Murphy and the Government agree that for Murphy’s award to be taxable, it must be part of her “gross income” as defined by § 61(a) of the IRC, which states in relevant part: “gross income means all income from whatever source derived.” The Supreme Court has interpreted the section broadly to extend to “all economic gains not otherwise exempted.” Comm’r v. Banks, 543 U.S. 426, 433, 125 S.Ct. 826, 160 L.Ed.2d 859 (2005); see also, e.g., James v. United States, 366 U.S. 213, 219, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961) (Section 61 encompasses “all accessions to wealth”) (internal quotation mark omitted); Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 430, 75 S.Ct. 473, 99 L.Ed. 483 (“the Court has given a liberal construction to [“gross income”] in recognition of the intention of Congress to tax all gains except those specifically exempted”). “Gross income” in § 61(a) is at least as broad as the meaning of “incomes” in the Sixteenth Amendment. See Glenshaw Glass, 348 U.S. at 429, 432 n. 11, 75 S.Ct. 473 (quoting H.R.Rep. No. 83-1337, at A18 (1954), reprinted in 1954 U.S.C.C.A.N. 4017, 4155); Helvering v. Bruun, 309 U.S. 461, 468, 60 S.Ct. 631, 84 L.Ed. 864 (1940). Murphy argues" }, { "docid": "2637004", "title": "", "text": "§ 602(a)(17). The facts in this case were not disputed, thus the case was before the district court on a question of law — the construction of the statute. Neither the statute itself nor the implementing regulation defines “income.” The starting point for construing the statute is therefore an examination of the ordinary meaning of the undefined term; “[wjhere Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981), citing Perrin v. United States, 444 U.S. 37, 42-43, 100 S.Ct. 311, 314-315, 62 L.Ed.2d 199 (1979). Taking that as its starting point, the district court held that personal injury awards would not be considered “income” as that term is ordinarily understood. Reed v. Lukhard, 591 F.Supp. 1247, 1256 (W.D.Va.1984). Personal injury awards serve to make one whole, in effect restoring one to the status quo before the injury was suffered. See Lilley v. Simmons, 200 Va. 791, 108 S.E.2d 245 (1959); 22 Am.Jur.2d, Damages § 85 (1965). Income on the other hand represents a “gain or profit,” 42 C.J.S. Income (1944), and is ordinarily understood to be a return on the investment of labor or capital, thereby increasing the wealth of the recipient. See Blacks Law Dictionary 687 (5th ed. 1979); see also Eisner v. Macomber, 252 U.S. 189, 207, 40 S.Ct. 189, 193, 64 L.Ed. 521 (1920). The defendants argue that the district court erred in looking to contexts other than the AFDC program for a definition of income. We disagree. As we noted, the AFDC statute does not define income. While other statutes’ definitions do not control our inquiry, it is instructive that Congress as well as the Department of Health and Human Services and other agencies have defined income in other contexts to exclude personal injury awards. See 26 U.S.C. § 104 (defining income for federal income tax purposes); 7 C.F.R. § 273.9(c)(8) (Department of" }, { "docid": "7623001", "title": "", "text": "[t]he long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property. Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 432 n. 8, 75 S.Ct. 473, 477 n. 8, 99 L.Ed. 483 (1954). The Internal Revenue Code also excludes from gross income compensation for personal injuries or sickness. 26 U.S.C. § 104. In light of the aforementioned treatment of personal injury awards, the court concludes that the settled meaning of “income” as expressed by the Supreme Court and as understood in common usage has not been altered by the AFDC statute. Congress has given the court no reason to apply a more particularized meaning of the word in the AFDC context. The court is of the opinion, therefore, that it is irrational to treat a damaged car or home more favorably than a damaged body. Consequently, the defendants’ interpretation of the lump sum rule as inclusive of personal injury awards is unreasonable and, as applied to such awards, cannot stand. Summary Judgment is hereby granted for plaintiffs on their second claim for relief. The case shall be set by petition of the parties for further proceedings to determine the appropriate relief to be granted. . The program is administered by the defendant Heckler, Secretary of the Department of Health and Human Services (HHS), at the federal level and by the defendant Lukhard as Commissioner of the Department of Social Services, at the state level. See § 63.1-86 et seq., Code of Virginia (1950). Regulations governing the AFDC Program in Virginia are found in ADC Manual § 201 et seq. . 45 C.F.R. § 233.20(a)(3)(ii)(D) is the federal regulation implementing § 602(a)(17): § 305.4c is the state implementing regulation. See supra notes 3 & 4 for full text. . 45 C.F.R. § 233.20(a)(3)(ii)(D) provides as follows: Net income, except as provided in paragraph (a)(3)(xii) of" }, { "docid": "23544487", "title": "", "text": "(1955). In Glenshaw Glass, the Court observed that “[d]amages for personal injury are by definition compensatory only,” id., at 432, n. 8, and cited “[t]he long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital. . . ,” ibid, (citing 2 Cum. Bull. 71 (1920); 1-1 Cum. Bull. 92, 93 (1922); VII-2 Cum. Bull. 123 (1928); 1954-1 Cum. Bull. 179, 180). Congress continues to exclude personal injury awards from income under the Internal Revenue Code. 26 U. S. C. § 104(a). Congress also excludes personal injury awards from income for the purpose of determining eligibility for food stamps, 7 U. S. C. § 2014(d)(8), and under the HHS poverty guidelines, 48 Fed. Reg. 7010, 7010-7011 (1983). In deed, the plurality does not cite a single statute in which Congress has defined income to include personal injury awards, and I am aware of none. The plurality nevertheless concludes that Virginia reasonably interpreted the AFDC statute to include personal injury awards in income, even if such awards do not result in any gain to the recipient. Ante, at 375-376. The plurality observes that the Internal Revenue Code, the Food Stamp statute, and the HHS poverty guidelines expressly exclude personal injury awards from income. In the plurality’s view, “the fact that Congress was silent in the AFDC statute but has elsewhere been explicit when it wished to exclude personal injury awards from income tends to refute rather than support a legislative intent to exclude them from AFDC computations.” Ante, at 376 (citation omitted; footnote omitted). This inference from congressional silence is unwarranted. Congress made a considered decision to exclude personal injury awards from income for purposes of the Internal Revenue Code and the Food Stamp statute. In contrast, as the Court of Appeals for the Seventh Circuit observed, “The inescapable fact is that Congress wanted to compel recipients of AFDC to budget lump-sum receipts of ‘income’ but did not consider what ‘income’ might be.” Watkins v. Blinzinger, 789 F. 2d 474, 480 (1986). The fact that Congress did not define income" } ]
740062
outlining the applicable law, the court will turn to the merits of the motion. DISCUSSION I. Standards Applicable To A Motion For Summary Judgment Summary judgment is appropriate only if there is “no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). On motions for summary judgment the court will not try issues of fact, but will determine only if there are issues to be tried. See Donahue v. Windsor Locks Bd. Of Fire Commissioners, 834 F.2d 54, 55 (2d Cir.1987). II. The FDCPA and the Required Validation Notice The FDCPA (the “Act”) was enacted to eliminate the use of unscrupulous practices in the debt collection industry. REDACTED Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 217 F.Supp.2d 336, 338 (E.D.N.Y.2002). The Act makes certain particular practices, including threats of violence made in connection with the attempt to collect a debt, expressly unlawful. See 15 U.S.C. § 1692d. Also made illegal by the FDCPA are the general use of any “false, deceptive or misleading representation or means” used in the attempt to collect a debt. See 15 U.S.C. § 1692e. In addition to the prohibition of certain practices, the FDCPA places an, affirmative duty, on those engaged in the business of debt collection, to provide certain information to debtors. -Specifically, the Act requires that particular language, that has come to be known as the “validation notice,” be
[ { "docid": "22051825", "title": "", "text": "plaintiff had brought her action in bad faith. See § 1692k(a)(3). Russell cross-moved for summary judgment with respect to liability. The district court granted summary judgment to defendant Equifax. It found that the language of the notices did not rise to the level of being a “threatening contradiction,” nor, it held, did the language overshadow the validation notice displayed on the reverse side of the initial or February notice. Thus, the district court ruled that defendant had not contravened § 1692g. It further determined that defendant did not make intentional false representations in order to deceive the plaintiff and, therefore, found no violation of § 1692e(10). Judgment was accordingly entered for defendant on November 28,1994. From this judgment, Russell appeals. DISCUSSION Both parties moved for summary judgment and there is no genuinely disputed material issue of fact. Only legal issues, which we review de novo, are contested. Before entering a discussion of the merits of those issues, it is helpful to trace a brief outline of the most salient features of the Fair Debt Collection Practices Act. The Act, consisting of 16 succinct sections, is based on Congress’ findings that debt collection abuses are serious and widespread, and a finding by the National Commission on Consumer Finance, referred to in the legislative history, which showed that the “vast majority of consumers who obtain credit fully intend to repay their debts.” S.Rep. No. 95-382, 95th Cong., 1st Sess. 3 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697 (Legis.History). Congress explained that although unscrupulous collectors comprise only a small portion of the industry, the less ethical debt collectors threaten consumers with violence, use profane or obscene language, make telephone calls at unreasonable hours, impersonate public officials and lawyers, disclose debtors’ personal affairs to employers and engage in other sorts of unscrupulous practices. Id. at 1696. The Act’s purpose is to eliminate such practices. See § 1692(e); Legis.History at 1696. Some enumerated actions — -for example, threats of violence and repeated telephone calls intended to harass — are expressly forbidden. § 1692d. The Act also bars the general use of any “false, deceptive, or" } ]
[ { "docid": "22101761", "title": "", "text": "all costs of transmitting these form letters, including printing and postage. The phone number included in the letter is issued to Citicorp and Citicorp pays all bills in connection with that number. Maguire did not take up the offer in the Debtor Assistance letter. Instead, she defaulted on her account and ultimately filed for bankruptcy. After emerging from bankruptcy proceedings, Maguire filed the instant action in the district court claiming that the . Debtor Assistance letter violates the FDCPA and the CUTPA. On January 6, 1997 Ma-guire filed a motion for partial summary judgment on the issue of liability under the FDCPA and the CUTPA; Citicorp cross-moved for summary judgment. The district court denied plaintiffs motion for partial summary judgment, granted Citi-corp’s motion for summary judgment, and dismissed the complaint. See Maguire v. Citicorp Retail Servs., No. 3:95CV2113 (AHN), 1997 WL 280540 (D.Conn. May 19, 1997). The district court held that Citicorp had not brought itself within the ambit of the FDCPA and that Maguire had failed to demonstrate any injury as required to state a claim under the CUTPA. This appeal followed. DISCUSSION We review a district court’s grant of summary judgment de novo, Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir.1991), construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We will affirm a district court’s decision to grant summary judgment if the record indicates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). This court will not try issues of fact, but will only determine whether there are issues to be tried. See Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 55 (2d Cir.1987). I. Fair Debt Collection Practices Act The FDCPA prohibits “debt collector[s]” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”" }, { "docid": "23145970", "title": "", "text": "action was brought “in bad faith and for the purpose of harassment,” 15 U.S.C. § 1692k(a)(3), the court awarded attorneys’ fees and costs to defendant. Jacobson, 434 F.Supp.2d. at 141. This appeal followed. Discussion I. The Merits Summary judgment is appropriate where the moving party shows 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). The facts relevant to this appeal are undisputed, and we review de novo the district court’s holding that the collection letter did not violate the FDCPA. See Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996). In passing the FDCPA in 1977, legislators noted “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692(a). Finding existing laws inadequate to address the problem, Congress acted with the aim of eliminating abusive practices in the debt collection industry, and also sought to ensure that “those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.” Id. § 1692(e). These purposes inform the FDCPA’s many provisions. Among other things, the Act regulates and restricts the acquisition of information about debtors. Id. §§ 1692b, 1692c. It further prohibits conduct whose natural consequence is to “harass, oppress, or abuse any person in connection with the collection of a debt.” Id. § 1692d. And it bars the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt,” id. § 1692e, while proscribing “unfair or unconscionable means to collect or attempt to collect any debt.” Id. § 1692f. As a response to “the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid,” S.Rep. No. 95-382, at 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1699, the FDCPA gives the consumer the right to dispute a debt claimed by a debt collector, and to seek verification of the validity of the debt. 15 U.S.C. § 1692g(b). If the consumer notifies the debt collector in writing," }, { "docid": "19967559", "title": "", "text": "the judgment to award her statutory damages of $1,000 — the maximum allowed — as well as attorney’s fees and costs. II. Discussion A. Standard of Review A district court’s grant of summary judgment is reviewed de novo. Matthews v. Milwaukee Area Local Postal Workers Union, AFL-CIO, 495 F.3d 438, 441 (7th Cir.2007). The evidence in the record must be viewed in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and on cross-motions for summary judgment, inferences are drawn in favor of the party against whom the motion under consideration was made. Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th Cir.2005). When the district court considers cross-motions for summary judgment, granting one and denying the other, the denial of summary judgment “has merged into the final judgment and is therefore appealable” as part of the appeal from the final judgment granting the opposing party’s motion. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir.1997). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.CivP. 56(c). B. McKinney’s FDCPA Claim The FDCPA was enacted to combat “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692. To that end, the Act regulates communications relating to debt collection (§ 1692c), abusive practices of debt collectors (§ 1692d), and using false or misleading information in collection notices (§ 1692e). Relevant to this case is § 1692g, which governs a debt collector’s “initial communication with a consumer in connection with the collection of any debt” and requires, among other things, that the debt collector provide notice of the consumer’s right to dispute the validity of the debt and receive verification of it. § 1692g(a). Consumers may sue to enforce the Act’s provisions and, if successful, recover actual damages, statutory damages, and attorney’s fees and costs. § 1692k." }, { "docid": "17304137", "title": "", "text": "show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In determining cross-motions for summary judgment, “[e]ach party’s motion must be reviewed on its own merits, and the Court piust draw all reasonable inferences against the party whose motion is under consideration.” Clear Channel Outdoor, Inc. v. City of New York, 608 F.Supp.2d 477, 492 (S.D.N.Y.2009) (citing Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.2001)). B. The FDCPA Under the FDCPA, a debt collector is prohibited from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt” 15 U.S.C. § 1692e. Among the enumerated prohibitions is a bar on false representations regarding the “character, amount, or legal ■ status of any debt,” § 1692e (2)(A), and the “use of any false representation or deceptive means to collect or attempt to collect any debt.” § 1692e (10). The Second Circuit has established two principles to assist courts in applying the statute. First, “because the FDCPA is primarily a consumer protection statute,” its terms must be construed liberally to achieve its congressional purpose. Avila, 817 F.3d at 75 (internal quotation and citations omitted). “That purpose is to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” Id. (internal quotation and citation omitted). The second principle in evaluating whether a collection letter violates the FDCPA is application of the “least sophisticated consumer” standard that instructs the court to ask how the least sophisticated consumer would understand the collection notice. Avila, 817 F.3d at 75. The least sophisticated consumer is “ ‘one not having the astuteness of a ‘Philadelphia lawyer’ or even the sophistication" }, { "docid": "17622147", "title": "", "text": "not have altered Judge Sprizzo’s decision. Plaintiffs timely appealed the dismissal of their TILA and FDCPA claims against The Money Store. DISCUSSION “We review a district court’s grant of summary judgment de novo,” Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002), and apply “the same standards applied by the district court,” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir.2011). “Summary judgment may be granted only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(a)). In determining whether there is a genuine dispute as to a material fact, we resolve all ambiguities and draw all inferences in favor of the non-moving party. Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir.2012). I. FDCPA Liability We start with plaintiffs’ FDCPA claims against The Money Store. Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). To further these ends, the FDCPA “establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection.” De-Santis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir.2001). As is relevant here, section 1692e of the FDCPA provides generally that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. In addition, “[wjithout limiting the general application of the foregoing,” section 1692e proscribes sixteen specific debt collection practices, including “[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney.” Id. § 1692e(3). Under our prior precedent, the plaintiffs have a triable claim that Moss Codilis’s breach letters violated section 1692e’s prohibition on the “use of false, deceptive, or misleading representation[s] ... in con nection with" }, { "docid": "6271123", "title": "", "text": "by paying now. Sincerely, Trans Union 475 Metro Place North, Suite 208 Dublin, OH At the bottom of the letter, in single spaced, significantly smaller, typeface, the June 15 Letter sets forth the validation notice described above. This notice includes the procedure for obtaining documentation regarding the validity of the debt and all information required to be disclosed by 15 U.S.C. § 1692g. DISCUSSION The Parties’ Motions As noted above, Bank One and Trans Union have moved for summary judgment dismissing the complaint. Plaintiff has moved for partial summary judgment declaring-that the June 15 Letter violates the FDCPA. Summary judgment is appropriate only if there are “no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). On motions for summary judgment the court will not try issues of fact, but will determine only if there are issues to be tried. See Donahue v. Windsor Locks Bd. Of Fire Commissioners, 834 F.2d 54, 55 (2d Cir.1987). With these principles in mind, the court will first consider Bank One’s contention that it is not a debt collector within the meaning of the FDCPA and therefore cannot be hable under that statutory scheme. The court will then consider the parties’ motions for summary judgment on the merits. Bank One’s Status As A Debt Collector The FDCPA prohibits deceptive and misleading practices by “debt collectors.” 15 U.S.C. § 1692e. The statute specifically defines debt collectors as those engaged in “any business the principle purpose of which is the collection of any debts, or who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692e (emphasis added). Thus, by its terras, the FDCPA limits its reach to those collecting the dues “of another” and does not restrict the activities of creditors seeking to collect their own debts. Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2d Cir.1998), Hanison v. NBD Inc., 968 F.Supp. 837, 841 (E.D.N.Y.1997). When restricting the reach of the FDCPA to exempt creditors, Congress" }, { "docid": "14616803", "title": "", "text": "issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”). When, as here, the parties file cross-motions for summary judgment, the governing standard “does not change.” Clevenger v. First Option Health Plan of N.J., 208 F.Supp.2d 463, 468-69 (D.N.J.2002) (citing Weissman v. U.S.P.S., 19 F.Supp.2d 254 (D.N.J.1998)). The court must consider the motions independently, in accordance with the principles outlined above. Goldwell of N.J., Inc. v. KPSS, Inc., 622 F.Supp.2d 168, 184 (2009); Williams v. Philadelphia Hous. Auth., 834 F.Supp. 794, 797 (E.D.Pa.1993), aff'd, 27 F.3d 560 (3d Cir.1994). That one of the cross-motions is denied does not imply that the other must be granted. For each motion, “the court construes facts and draws inferences in favor of the party against whom the motion under consideration is made” but does not “weigh the evidence or make credibility determinations” because “these tasks are left for the fact-finder.” Pichler v. UNITE, 542 F.3d 380, 386 (3d Cir.2008) (internal quotation and citations omitted). B. The Fair Debt Collection Practices Act (FDCPA) Under the FDCPA, “[a] debt collector may not use any false, deceptive, or misleading representations or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The same section sets forth, in its 16 subsections, a non-exhaustive list of acts constituting “a violation of this section,” including, in pertinent part: (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney. (9) The use or distribution of any written communication ... which creates a false impression as to its source, authorization, or approval. (10) The use of any false representation or deceptive means to collection or attempt to collect any debt or to obtain information concerning a consumer. Id. The courts construe Section 1692e broadly, to farther the FDCPA’s remedial purpose and goal of “eliminat[ing] abusive debt collection practices by debt collectors.” Lesher, 650 F.3d at 997; 15 U.S.C. § 1692(e). In assessing communications to debtors, the courts adopt the perspective of the “least sophisticated debtor,” so that the" }, { "docid": "5937549", "title": "", "text": "RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT DALY, District Judge. Plaintiff, Mary Gaetano, alleges that the defendant, Payco of Wisconsin, Inc. (“Pay- co”), violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692o, in its efforts to collect a credit card debt of $6,017.67 on behalf of Chase Manhattan Bank, N.A. (“Chase”). Both the plaintiff and the defendant seek summary judgment on plaintiff’s claims. Summary Judgment Standards Viewing the record in the light most favorable to the non-moving party, summary judgment is appropriate under Fed.R.Civ.P. 56(e) when the evidence offered raises no genuine disputes of material fact and the moving party is entitled to summary judgment as a matter of law. Cinema North Corp. v. Plaza at Latham Associates, 867 F.2d 135, 139 (2d Cir.1989). To defeat such a motion, the non-moving party must offer concrete evidence tending to show that its claim is more than fanciful, see id,.; Fed. R.Civ.P. 56(e); or, alternatively, must show that the movant is not entitled to summary judgment as a matter of law. This burden remains the same even when cross-motions for summary judgment have been filed. Knowles v. Postmaster General, 656 F.Supp. 593, 597 (D.Conn.1987). The Court must consider each party’s motion on its own merits, drawing all reasonable inferences from the record against the party’s whose motion is under review. Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir.1981). Since the facts of this case are straightforward, the Court will review them in the context of its evaluation of the legal merits of the pending motions. Discussion A) The FDCPA The FDCPA prohibits, inter alia, a debt collector from employing “false, deceptive, or misleading representations or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. To determine whether a collection demand is misleading or deceptive, courts employ the “least sophisticated consumer” standard— inquiring whether the least sophisticated debtor would likely be misled or deceived by the collection notice at issue. Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.1988); see also Exposition Press, Inc. v. F.T.C., 295 F.2d 869, 873" }, { "docid": "19992949", "title": "", "text": "fact and that the moving party is entitled to a judgment as a matter of law.” Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Fed.R.Civ.P. 56(c)). “Because we review the grant of summary judgment de novo, we may affirm the judgment on grounds other than those employed by the lower court, as long as the party opposing summary judgment is not denied the opportunity to respond.” Thornton v. Fed. Express Corp., 530 F.3d 451, 456 n. 2 (6th Cir.2008); see also Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 553 (6th Cir.2008). Medical Mutual of Ohio v. k. Amalia Enters. Inc., 548 F.3d 383, 389 (6th Cir.2008). B. Violation of the Fair Debt Collection Practices Act Hartman and Rice assert that Great Seneca’s and Javitch’s behavior violates three provisions of the FDCPA: (1) 15 U.S.C. § 1692e, which provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt”; (2) § 1692e(10), which prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer”; and (3) § 1692f, which provides that “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” We have explained the concerns and standards applicable to FDCPA claims as follows: Congress enacted the FDCPA to eliminate “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692(a). “When interpreting the FDCPA, we begin with the language of the statute itself.” Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir.1999). As this court has noted, the FDCPA is “extraordinarily broad,” crafted in response to what Congress perceived to be a widespread problem. Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir.1992). Courts use the “least sophisticated con sumer” standard, an objective test, when assessing whether particular conduct violates the FDCPA. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir.2006). This standard ensures “that the" }, { "docid": "12111866", "title": "", "text": "whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (quoting First Nat’l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). Thus, the standard for summary judgment mirrors that for a directed verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 259, 106 S.Ct. 2505. B. THE FAIR DEBT COLLECTION PRACTICES ACT Plaintiff contends that the voice messages left by Defendant on her answering machine violated the FDCPA because the messages failed to identify Niagara as the caller and failed to disclose that the messages were from a debt collector. In particular, Plaintiff argues that Defendant violated 15 U.S.C. § 1692d(6) and 15 U.S.C. § 1692e(ll). Congress enacted the FDCPA to “eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). The FDCPA prohibits the use of any “false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The FDCPA is a strict liability statute and thus does not require a showing of intentional conduct on the part of a debt collector; furthermore, a single violation of the statute is sufficient to establish civil liability. See Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2nd Cir.1993). In order to establish a claim under the FDCPA, Plaintiff must show that the Defendant is a debt collector and that it engaged in some act prohibited by the FDCPA, or failed to disclose information required by the FDCPA, in attempting to collect from Plaintiff on her consumer debt. See Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D.Fla.2000). In determining whether the Defendant has violated the FDCPA, the Court must apply the objective test focused on how the “least sophisticated consumer” would be affected by Defendant’s collection practices. See Jeter v. Credit Bureau, Inc., 760 F.2d" }, { "docid": "9814686", "title": "", "text": "of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. District courts “possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp., 477 U.S. at 326, 106 S.Ct. 2548; Schwarzer § 14:55. “Thus, where a motion for summary judgment has been filed, the court may sua sponte grant summary judgment to the opposing party even if no cross-motion has been filed. In such cases, however, the moving party must have had (1) adequate notice and (2) a reasonable opportunity to present an opposition.” Schwarzer § 14:55 (emphasis in original) (citing Kassbaum v. Steppenwolf Prods., Inc., 236 F.3d 487, 494-95 (9th Cir.2000)). IV. DISCUSSION A. FDCPA Plaintiff alleges several claims arising under the FDCPA. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to protect consumers against debt collection issues.” 15 U.S.C. 1692(e). 15 U.S.C. § 1692d protects against harassing, oppressive or abusive conduct by debt collectors. 15 U.S.C. § 1692d. 15 U.S.C. § 1692e protects against any “false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. 15 U.S.C. § 1692f prohibits debt collectors from using “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. (1) Section 1692d 15 U.S.C. § 1692d provides in relevant part: A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity. 15 U.S.C. § 1692d. a. Section 1692d," }, { "docid": "22426334", "title": "", "text": "a debt and that any information received would be used solely in collection efforts. See 15 U.S.C. sec. 1692e(ll). SKBN conceded before the district court that the letter lacked this required language. Both parties moved for partial summary judgment, and on March 4, 1996, the district court granted Bass’s motion, finding that 1) the Act applies to collectors of dishonored checks, and 2) the letter sent to Bass violated sec. 1692e(ll) of the Act. Before our court, defendants challenge only the district court’s finding that the Act applies to their collection activities. In finding that the Act applied, the district court reasoned that a consumer who issues a subsequently dishonored check has an obligation to pay that meets the Act’s definition of the term “debt.” We review a district court’s entry of partial summary judgment de novo, drawing all reasonable inferences in the light most favorable to the nonmovant. Daill v. Sheet Metal Workers’ Local 73 Pension Fund, 100 F.3d 62, 65 (7th Cir.1996); Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir.1995). Summary judgment is proper when there is no genuine issue of material fact left for the fact finder and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In this case, the parties have no dispute over the material facts. The sole disagreement concerns whether the district court correctly interpreted a dispositive provision of the FDCPA. Our task on appeal is simply to review the district court’s finding that the payment obligation arising from a dishonored check creates a “debt” under the FDCPA. We conduct this review pursuant to our jurisdiction under 28 U.S.C. sec. 1291. II. On September 20, 1977, premised on Congressional concern that state protections against questionable debt collection practices were insufficient, President Carter signed into law the Fair Debt Collection Practices Act as an amendment to the Consumer Credit Protection Act (“CCPA”). 15 U.S.C. sec. 1601 et seq. The primary goal of the FDCPA is to protect consumers from abusive, deceptive, and unfair debt collection practices, including threats of violence, use of obscene language, certain contacts with acquaintances of" }, { "docid": "9988038", "title": "", "text": "(1986)). To defeat a motion for summary judgment, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). III. The FDCPA Congress enacted the FDCPA in 1977 in order to check “abusive, deceptive, and unfair” practices employed by debt collectors. Wiener v. Bloomfield, 901 F.Supp. 771, 774 (S.D.N.Y.1995). As relevant to the present motion, the Act requires that, within five days after the initial communication with a consumer in connection with the collection of any debt, debt collectors send the consumer a validation notice which provides certain information regarding the debt. 15 U.S.C. § 1692g. It generally prohibits the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. The Act also proscribes debt collectors from using “unfair or unconscionable means to collect or attempt to collect any debt,” such as the collection of any amount “unless such amount is expressly authorized by the agreement creating the debt or permitted bylaw.” Id. § 1692f(l). If a plaintiff establishes a violation of the FDCPA, he or she may recover statutory damages in an amount not to exceed $1,000, plus any actual damages sustained. See id. § 1692k(a)(l), (a)(2)(A). Here, Plaintiffs’ claims under the FDCPA are based upon Defendants’ various written and oral communications, including the phone messages Defendants left on Plaintiffs’ voicemail. a. Least Sophisticated Consumer Standard In evaluating FDCPA claims, courts in this Circuit use “an objective standard based on whether the ‘least sophisticated consumer’ would be deceived by the collection practice.” Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 236 (2d Cir.1998). The Second Circuit has held that “[t]he hypothetical least sophisticated consumer does not have the astuteness of a Philadelphia lawyer or even the sophistication of the average, everyday, common consumer, but is neither irrational nor a dolt.” Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir.2010) (quotation marks and citation omitted). Although" }, { "docid": "16857111", "title": "", "text": "of “debt collectors” in collecting “debts” owed or allegedly owed by “consumers.” It is to be liberally construed to effectuate its purpose. See generally Daniel A. Edelman, An Overview of the Fair Debt Collection Practices Act, 113 PLI/Corp. 87 (1999). * * * * * * The FDCPA contains substantive prohibitions that apply to “communications” with consumers. A communication is defined to include “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). The FDCPA requires that debt collectors “disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.” 15 U.S.C. § 1692e(11). The FDCPA specifically proscribes “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. It also proscribes the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The statute provides the following with respect to false or misleading representations: Without limiting the general application of the foregoing, the following conduction is a violation -of this section: ... (2) The false representation of— (A) the character, amount, or legal status of any debt... * * * * * * (5) The threat to take any action that cannot legally be taken or that is not intended to be taken.... 15 U.S.C. § 1692e(2)(A) and (5). The FDCPA also makes it unlawful to “use unfair or unconscionable means to collect or attempt to collect any debt,” including “[t]he collection of any amount (including any interest, fee, charge, or expenses incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1). In evaluating whether communications or conduct violates the FDCPA, courts utilize the so-called “least sophisticated debtor” standard. Taylor v. Perrin, Landry, de Launay & Durand, 103 F.3d" }, { "docid": "19967560", "title": "", "text": "Cir.1997). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.CivP. 56(c). B. McKinney’s FDCPA Claim The FDCPA was enacted to combat “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692. To that end, the Act regulates communications relating to debt collection (§ 1692c), abusive practices of debt collectors (§ 1692d), and using false or misleading information in collection notices (§ 1692e). Relevant to this case is § 1692g, which governs a debt collector’s “initial communication with a consumer in connection with the collection of any debt” and requires, among other things, that the debt collector provide notice of the consumer’s right to dispute the validity of the debt and receive verification of it. § 1692g(a). Consumers may sue to enforce the Act’s provisions and, if successful, recover actual damages, statutory damages, and attorney’s fees and costs. § 1692k. 1. Cadleway’s Status as a “Debt Collector” The FDCPA applies only to “debt collectors” seeking satisfaction of “debts” from “consumers”; it does not apply to “creditors.” Schlosser, 323 F.3d at 536. The Act defines “creditor” as follows: The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. § 1692a(4) (emphasis added). The Act defines “debt collector” as follows: The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. § 1692a(6) (emphasis added). The statutory definition of “debt collector” thus has two subcategories. It includes any" }, { "docid": "11387177", "title": "", "text": "1251, 1255 (11th Cir. 2006) (citing Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278 (11th Cir.2006)). The moving party bears the initial burden of showing that there are no material issues of fact. Imaging Business Machines, LLC v. BancTec, Inc., 459 F.3d 1186, 1192 (11th Cir.2006). Once the moving party satisfies that burden, the non-moving party must introduce facts showing a genuine issue of material fact. Id. In determining whether summary judgment is appropriate, the Court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997), and “must resolve all reasonable doubts about the facts in favor of the non-movant,” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990). B. FDCPA Plaintiff argues that she is entitled to judgment as a matter of law on her claims under the FDCPA. Pl.’s Mot. Sum. Judg. at 5. Congress enacted the FDCPA to “eliminate abusive debt collection practices by debt collectors.... ” 15 U.S.C. § 1692e (1977). The FDCPA both requires and proscribes specific conduct by debt collectors. For example, under the FDCPA every initial debt communication must be accompanied within five days by a written debt validation notice that provides the debtor with thirty days to dispute the debt. 15 U.S.C. § 1692g(a). The FDCPA also prohibits the use of any “false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The FDCPA is a strict liability statute and, therefore, does not require a showing of intentional conduct on the part of a debt collector. Further, a single violation of the statute is sufficient to establish civil liability. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2nd Cir. 1993). To establish her claim under the FDCPA, Plaintiff must show that the Defendant is a debt collector and that it engaged in some act or omission prohibited by the FDCPA in attempting to collect" }, { "docid": "22566952", "title": "", "text": "district court’s rulings on the parties’ cross motions for summary judgment. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir.2010). Summary judgment is appropriate when “there is no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court reviews the evidence and draws all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). IV. DISCUSSION A. Bona Fide Error Defense In 1977, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA prohibits, inter alia, debt collectors from using “unfair or unconscionable means to collect or attempt to collect any debt.” Id. § 1692f. Debt collectors may collect only amounts that are “expressly authorized by the agreement creating the debt or permitted by law.” Id. § 1692f(l). Moreover, “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. The FDCPA provides for a civil cause of action to enforce its provisions, with debt collectors who violate the Act liable for actual damages, statutory damages up to $1,000, and reasonable attorney’s fees and costs. See Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir.2009) (citing 15 U.S.C. § 1692k(a)(1)-(3)). This appeal concerns only whether ICS or Owen was entitled to summary judgment as to ICS’s affirmative defense of bona fide error. In reviewing the parties’ cross motions for summary judgment, we assume, arguendo, that ICS committed the FDCPA violations alleged by Owen." }, { "docid": "3295745", "title": "", "text": "the motion as a motion for summary judgment under Fed.R.Civ.P. 56. See Hamm v. Rhone-Poulenc Rorer Pharmaceutical Inc., 176 F.R.D. 566, 570 (D.Minn.1997). However, in addressing motions to dismiss under Fed. R.Civ.P. 12(b)(6) and 12(c), courts may consider “materials that are ‘necessarily embraced by the pleadings’ ” or appear in the record of the case without converting the motion to a summary judgment motion. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999)(quoting Piper Jaffray Cos. v. National Union Fire Ins. Co., 967 F.Supp. 1148, 1152 (D.Minn.1997)). Here, the court need only apply the law to the collection letters that were attached to the complaint and are the subject of the litigation. Plaintiff alleges that defendant’s FDCPAmandated validation letter is confusing, misleading and deceptive. The FDCPA requires that within five days of its first communication with a debtor, a debt collector must inform the debtor in writing of the debtor’s statutory validation rights. See 15 U.S.C. § 1692g(a). The debtor must be informed of the thirty day validation period in which the debtor may dispute the validity of the debt. If the debtor disputes the debt in writing, within thirty days of receiving the mandated notice, the debt collector must provide verification of the debt to the debtor. See id. The FDCPA-mandated notice is often referred to as the “validation notice.” It is not enough that debt collectors timely provide the validation notice. The FDCPA is “designed to protect consumers from abusive debt collection practices and to protect ethical debt collectors from competitive disadvantage.” Peters v. General Service Bureau, Inc., 277 F.3d 1051, 1054 (8th Cir.2002). The Act forbids collection practices that are false, deceptive or misleading. See 15 U.S.C. § 1692e. Thus, the correspondence taken as a whole must be clear and not misleading or confusing. See Peters, 277 F.3d at 1055. Courts have used the term “overshadowing” to refer to collection letters which, although technically complying with the statute, use language, typeface or other means to confuse the debtor or disguise the debtor’s validation rights. See e.g., Miller v. Payco-General American Credits, Inc., 943 F.2d" }, { "docid": "23328066", "title": "", "text": "for abusive debt collection practices in violation of the FDCPA. He alleged that Checkmate unlawfully attempted to collect a service charge in violation of 15 U.S.C. § 1692f(l). Checkmate brought a motion for summary judgment. In his response to Checkmate’s motion, Freyermuth raised the new claim that Checkmate had further violated the FDCPA by attempting to collect on debts that were probably time-barred, and moved for partial summary judgment in his favor. The district court granted summary judgment to Checkmate, holding that the entire claim was barred by the FDCPA’s one year statute of limitation. Furthermore, the court held, Nebraska law did not prohibit the collection of a service fee for a bad check, and thus no violation of the FDCPA had occurred. II. This court reviews a grant of summary judgment de novo. Thus, summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hill v. St. Louis Univ., 123 F.3d 1114, 1118-19 (8th Cir.1997); Duffy v. Wolle, 123 F.3d 1026, 1033 (8th Cir.1997). The Fair Debt Collection Practices Act (FDCPA) makes it unlawful for debt collectors to use “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The Act prohibits a debt collector from collecting any service charge “unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(l). In addition, it is a violation of the Act to threaten to take “any action that cannot legally be taken.” 15 U.S.C. § 1692e(5). The FDCPA states that any action to enforce any liability created by the Act must be brought “.. .within one year from the day on which the violation occurs.” 15 U.S.C. § 1692k(d). This Court has previously held that in cases regarding abusive debt collection letters, the date of the violation of the FDCPA occurs on the date the letter that allegedly does not" }, { "docid": "22101762", "title": "", "text": "a claim under the CUTPA. This appeal followed. DISCUSSION We review a district court’s grant of summary judgment de novo, Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir.1991), construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We will affirm a district court’s decision to grant summary judgment if the record indicates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). This court will not try issues of fact, but will only determine whether there are issues to be tried. See Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 55 (2d Cir.1987). I. Fair Debt Collection Practices Act The FDCPA prohibits “debt collector[s]” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of- which is the collection of any debts, or who regularly collects or, attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). As a general matter, creditors are not subject to the FDCPA. However, a creditor becomes subject to the FDCPA if the creditor “in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect • such debts.”--- 15 U.S.C. § 1692a(6). A creditor uses a name other than its own when it uses a name that implies that a third party is involved in collecting its debts, “pretends to be someone else” or “uses a pseudonym or alias.” Villarreal v. Snow, 1996 WL 473386 at *3 (N.D.Ill. Aug.19, 1996). Although a creditor need not usé its" } ]
835704
875 F.2d 1361, 1367 (9th Cir.1988) (finding parole “regulation” was not an ex post facto law and noting that “the operative factor in assessing whether a directive constitutes a ‘lav/ for ex post facto purposes is the discretion that the Parole Commission retains to modify that directive or to ignore it altogether as the circumstances may require”); Inglese v. United States Parole Comm’n, 768 F.2d 932, 936 (7th Cir.1985) (“The power to exercise discretion indicates that the [parole] guidelines are merely guides, and not law: guides may be discarded when circumstances require; laws may not.”). Moreover, these cases involve the federal Parole Commission’s guidelines, which are “truly advisory” because the Commission possesses the authority to disregard them in the appropriate circumstances. REDACTED ., dissenting), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). The Commonwealth makes no claim that its aggregation policy was merely “advisory” or that it was free to disregard the policy in a particular case. The Commonwealth does postulate, however, that because it had discretion to adopt the 1977 aggregation policy in the first place and to modify the policy subsequently, as it did in 1988, the policy should not be considered a law. Although a number of the federal Parole Commission cases have relied in part on this reasoning, see, e.g., Smith, 875 F.2d at 1367, I would reject it here. The argument not only exalts form over substance but its logic suggests that
[ { "docid": "16878778", "title": "", "text": "new agency, the Office of Adult Release (“OAR”), to make future decisions regarding parole. These new regulations do not provide for a yearly review of an inmate's release date, and they limit the OAR's discretion in changing an inmate’s release date. Bailey claims that the failure of the new regulations to provide for an annual review of his release date — as was required under previous system — retroactively increases his punishment and thus contravenes the Ex Post Facto Clause. Although this Court has not yet decided whether the federal parole guidelines are “laws” within the meaning of the Ex Post Facto clause, see Yamamoto v. U.S. Parole Comm’n, 794 F.2d 1295 (8th Cir.1986), we have noted with favor the decisions of other circuits holding that the federal parole guidelines are not “laws”. Id. at 1299. We believe the reasoning used in those cases applies to the Minnesota parole regulations. “[T]he operative factor in assessing whether a directive constitutes a ‘law’ for ex post facto purposes is the discretion that the [paroling authority] retains to modify that directive.” Smith v. United States Parole Comm’n, 875 F.2d 1361, 1367 (9th Cir.1989). “The key to the finding that [federal parole] guidelines are guides merely, and not laws, is that the Parole Commission has a congressional mandate ... to exercise discretion_ How often that discretion is exercised is immaterial.” Inglese v. United States Parole Comm’n, 768 F.2d 932, 937 (7th Cir.1985) (citations omitted). “Applying the [ex post facto] rule to changes in parole administration ... would discourage the formulation and publication of administrative policies.” Prater v. U.S. Parole Comm’n, 802 F.2d 948, 953 (7th Cir.1986) (en banc). The Minnesota parole regulations are procedural aids to the body vested with the discretionary authority granted by the state legislature. The decision to promulgate the regulations first by the MCB and now by the Commissioner was itself a discretionary decision; neither was required by law to issue specific regulations. The “parole law” in effect at the time of Bailey’s illegal acts was that the paroling authority of the state (the MCB) was free to parole any" } ]
[ { "docid": "16878787", "title": "", "text": "I do so only as to the majority’s disposition of the ex post facto issue. The majority does not challenge Bailey’s assertion that the new parole regulations are more onerous to him, and clearly they are. Under the old regulations he was entitled to annual review of his parole date from an agency that had broad discretion to adjust that • date. See Minn.Stat. § 243.05 (1972). Under the new regulations annual review is abolished and the OAR can review and revise release dates only to correct mathematical errors or in accordance with overall changes in policy. Minn.Rules 2940.1500 (1989). Thus, the key issue for ex post facto analysis is whether Minn.Rules 2940.1500 constitutes a law. The majority addresses the ex post facto effect of the federal parole guidelines without giving proper consideration to the fact that this case involves entirely distinct state parole guidelines. The majority observes that a number of courts have held that the federal parole guidelines do not constitute a law for ex post facto purposes. See, e.g., Prater v. United States Parole Comm., 802 F.2d 948, 953 (7th Cir.1986) (en banc). These cases have limited relevance because the federal guidelines are truly advisory— the parole commission may disregard the guidelines in the exercise of its own discretion. See id. at 954. In contrast, it is undisputed that the OAR is firmly bound by the Minnesota regulations and has no discretion to adjust release dates. See State ex rel. Independent School Dist. No. 6 v. Johnson, 242 Minn. 539, 548, 65 N.W.2d 668, 673 (1954). Cases cited by the majority emphasize that the existence of agency discretion to deviate from parole regulations is a key issue in determining whether the regulation constitutes a law for ex post facto purposes. See, e.g., Smith v. United States Parole Comm., 875 F.2d 1361, 1367 (9th Cir.1988). Under this analysis the Minnesota regulations must be deemed law. The majority seeks to circumvent this conclusion by finding discretion in the agency’s power to revise its parole regulations. The majority in essence argues that the Commissioner of Corrections promulgated the regulations implemented" }, { "docid": "16878788", "title": "", "text": "States Parole Comm., 802 F.2d 948, 953 (7th Cir.1986) (en banc). These cases have limited relevance because the federal guidelines are truly advisory— the parole commission may disregard the guidelines in the exercise of its own discretion. See id. at 954. In contrast, it is undisputed that the OAR is firmly bound by the Minnesota regulations and has no discretion to adjust release dates. See State ex rel. Independent School Dist. No. 6 v. Johnson, 242 Minn. 539, 548, 65 N.W.2d 668, 673 (1954). Cases cited by the majority emphasize that the existence of agency discretion to deviate from parole regulations is a key issue in determining whether the regulation constitutes a law for ex post facto purposes. See, e.g., Smith v. United States Parole Comm., 875 F.2d 1361, 1367 (9th Cir.1988). Under this analysis the Minnesota regulations must be deemed law. The majority seeks to circumvent this conclusion by finding discretion in the agency’s power to revise its parole regulations. The majority in essence argues that the Commissioner of Corrections promulgated the regulations implemented by the OAR, and because the Commissioner (and previously the Minnesota Corrections Board) always has had discretion to revise the regulations, the entire parole scheme always has been subject to the Commissioner’s unbridled discretion. Under this view, Bailey never had any entitlement to any of the parole procedures in existence at the time of his offense. This theory ignores the practical realities of Minnesota’s parole scheme. The only valid test for distinguishing a law from a guideline lies in considering the discretion of the agency invested with the delegated authority to affect the rights of the prisoner. See Smith, 875 F.2d at 1367. In this case that agency is the OAR, not the Commissioner. The practical effect of the Commissioner’s new regulations is that the agency that determines Bailey’s rights has been deprived of the ability it once had to advance Bailey’s release date. It makes no difference whether that agency’s discretion was curtailed by legislative or administrative action. Under the majority’s reasoning every legislative act would be immune from ex post facto challenge because" }, { "docid": "11811330", "title": "", "text": "of the prisoner.” H.R.Rep. No. 838, 94th Cong., 2d Sess. 19, 26, reprinted in 1976 U.S.Code Cong. & Ad.News 351, 358; see also id. passim. Moreover, the regulations promulgated by the Parole Commission clearly indicate that the guidelines are merely guides to agency discretion rather than rigid rules. For example, the statement of general policy preceeding the guidelines provides in pertinent part: (a) To establish a national paroling policy, promote a more consistent exercise of discretion, and enable fairer and more equitable decision-making without remov ing individual case consideration, the United States Parole Commission has adopted guidelines for parole release consideration. (b) These guidelines indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics. The time ranges specified by the guidelines are established specifically for cases with good institutional adjustment and program progress. (c) These time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered. 28 C.F.R. § 2.20(a), (b) & (c) (1983). Finally, both the legislative history of the statute authorizing the guidelines and the Parole Commission regulations recognize that the guidelines should be periodically reviewed and revised or modified if decisions frequently go above or below the guidelines’ recommendations. H.R.Rep. No. 838 at 27, reprinted in 1976 U.S.Code Cong. & Ad.News at 360; 28 C.F.R. § 2.20(g) (1983). Offenders are thus given fair warning that the guidelines governing parole determinations are subject to change. See Inglese v. United States Parole Commission, 768 F.2d 932, 936 (7th Cir.1985); see also Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981) (“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated”) (emphasis added). In short: The statute, the parole regulations, and the policy statements contained therein clearly and repeatedly emphasize the discretionary aspect of the decision-making process of parole, particularly in the" }, { "docid": "14730548", "title": "", "text": "Kaufman’s analysis is applicable and instructive. However, DCR 100-1 has been changed again, and its constitutionality must be considered anew. The conventional approach of analysis requires that I make two inquiries in answering this question. First, I must determine whether the policies challenged by the plaintiffs are “laws” under the Ex Post Facto Clause. Second, I must decide whether, if they are such “laws,” they constitute retroactive punishment against plaintiffs. A. The Constitution prohibits ex post facto “laws.” Thus, the first question before me is whether the policies challenged by plaintiffs are “laws” for purposes of the Ex Post Facto Clause. The legal landscape of this issue is aptly set out in United States v. Ellen, 961 F.2d 462, 465 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 217, 121 L.Ed.2d 155 (1992): As the text of the Clause makes clear, the ex post facto prohibition applies only to “laws.” Accordingly, “[t]he constitutional prohibition against ex post facto laws ... is directed to the legislative branch of government rather than to the other branches.” Prater v. United States Parole Comm’n, 802 F.2d 948, 951 (7th Cir.1986) (en banc). This is not to say, however, that all actions of administrative agencies are exempt from Ex Post Facto Clause scrutiny. “When Congress has delegated to an agency the authority to make a rule instead of making the rule itself, the resulting administrative rule is an extension of the statute for purposes of the [C]lause.” Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 173 (7th Cir.1979).... But when an agency promulgates an interpretive rule, the Ex Post Facto Clause is inapplicable..... Unlike legislative rules, which “ha[ve] the force of law,” [Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety Comm’n, 874 F.2d 205, 207 (4th Cir.1989) ], interpretive rules “are statements of enforcement policy. They are ... ‘merely guides, and not laws: guides may be discarded where circumstances require; laws may not.’ ” Prater, 802 F.2d at 954 (quoting Inglese v. United States Parole Comm’n, 768 F.2d 932, 936 (7th Cir.1985)). In short, whether the challenged policies are “laws” depends on whether" }, { "docid": "2767015", "title": "", "text": "“merely guidelines. Where the circumstances warrant, decisions outside the guidelines (either above or below) may be rendered.” 28 C.F.R. § 2.20(c). Decisions outside the guidelines are subject to a stricter standard of review. See 28 C.F.R. §§ 2.24-2.26. The policy statement provides that “mitigating or aggravating circumstances,” or “clinical evaluation of risk” may give cause to override the guidelines. 28 C.F.R. § 2.20(d), (e). Moreover, the range of materials the Commission may consider in making its parole decision is broad, see 18 U.S.C. § 4207, 28 C.F.R. § 2.19(a)-(d), and “[t]he Commission encourages the submission of relevant information concerning an eligible prisoner by interested persons.” 28 C.F.R. § 2.20(b). Finally, the policy statement provides that “[t]he Commission shall review the guidelines, including the salient factor score, periodically and may revise or modify them at any time as deemed appropriate.” 28 C.F.R. § 2.20(g). The statute, the parole regulations, and the policy statements contained therein clearly and repeatedly emphasize the discretionary aspect of the decision-making process of parole, particularly in the use of the guidelines. While a heightened standard of review checks this discretion, the Commission’s inherent ability to exercise discretion is not thereby altered. The power to exercise discretion indicates that the guidelines are merely guides, and not laws: guides may be discarded where circumstances require; laws may not. An application of the 1983 Guidelines to petitioner then, rather than the 1973 Guidelines, does not violate the ex post facto prohibition. Moreover, the 1973 Guidelines reserved the Commission’s right to revise the guidelines, thereby giving petitioner fair warning when he was sentenced that the guidelines under which his parole release date would be determined would be subject to change. See Warren v. United States Parole Commission, 659 F.2d 183, 195-97 (D.C.Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982). The principle that parole guidelines are not laws has been approved in a general and summary way by this circuit, see Zeidman v. United States Parole Comm’n, 593 F.2d 806, 807 (7th Cir.1979), and by the majority of other circuits which have considered the question. See, e.g.," }, { "docid": "15559746", "title": "", "text": "also Iacaboni, 251 F.Supp.2d at 1041. Nor does it matter that the “law” charged to be ex post facto is not a congressional enactment, but a revision of agency policy. The Supreme Court held recently, in Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), that the Clause “is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.” Id. at 456, 121 S.Ct. 1693. The Court has yet to comment, however, on the applicability of the Ex Post Facto Clause to agency rule-making. In Hamm v. Latessa, 72 F.3d 947 (1st Cir.1995), the First Circuit observed in dictum: [Although the Supreme Court has not addressed the question of whether an administrative policy or regulation can be an ex post facto law, a number of courts have held that binding administrative regulations, as opposed to those that serve merely as guidelines for discretionary decisionmaking, are laws subject to ex post facto analysis. Id. at 956 n. 14 (citing Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir.1991), Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 174 (7th Cir.1979), and Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir.1972)). The Hamm court unearthed other cases that “can be read” to hold that agency rules are not “laws” for purposes of Ex Post Facto Clause analysis, e.g., Kelly v. Southerland, 967 F.2d 1531, 1532-33 (11th Cir.1992); Inglese v. United States Parole Comm’n, 768 F.2d 932, 936 (7th Cir.1985), but these cases involved Parole Commission Guidelines and therefore had no occasion to distinguish between non-binding guidelines (not “laws”) and binding regulations (“laws”). It is beyond dispute that the BOP’s recasting of § 3621(b), which strips it of its discretion in determining an inmate’s place of confinement, has the binding effect of law. The DAG Opinion to the BOP certainly appears to have trumped non-binding judicial recommendations. Given this result I would be hard pressed to view the policy change as anything other than law that binds the hands of the BOP. Finally, the government argues that" }, { "docid": "11811356", "title": "", "text": "not promulgated by any legislature. Rather, they are stated policy rules that show how agency discretion is likely to be exercised.”); Ruip v. United States, 555 F.2d 1331, 1336 (6th Cir.1977) (in distinguishing cases suggesting that retroactive changes in statutes affecting parole determinations might violate ex post facto clause, the court stated, \"Since the relevant provisions were statutes, there was no question that they were encompassed in the prohibition on ex post facto laws. The situation here is different.”); see also Inglese, 768 F.2d at 941 (Cudahy, J., concurring). . Promulgation of and changes to the guidelines are expressly subject to the rulemaking procedures of the Administrative Procedure Act notwithstanding the Parole Commission's designation of the guidelines as general statements of policy. See 18 U.S.C. § 4218(a)-(c) (1982). . See, e.g., United States ex rel. Forman v. McCall, 776 F.2d 1156, 1163 (3d Cir.1985); In-glese, 768 F.2d at 936; DiNapoli, 764 F.2d at 146-47; Dufresne, 744 F.2d at 1550. As one court stated, “The power to exercise discretion indicates that the guidelines are merely guides, and not laws: guides may be discarded where circumstances require; laws may not.” Inglese, 768 F.2d at 936." }, { "docid": "1803319", "title": "", "text": "that this regulation embodies only a presumptive policy. See Paroling, Recommitting and Supervising Federal Prisoners, 46 Fed.Reg. 35,635, 35,635-36 (1981). Thus, the 1980 version of section 2.47 was no more binding on the Parole Commission’s exercise of discretion than are the parole guidelines codified in section 2.20. Discretion to alter presumptive parole dates provided in a Parole Commission directive, as we recognized in Wallace, 802 F.2d at 1554, removes that directive from the purview of the ex post facto clause. See also Inglese, 768 F.2d at 936-37. Such discretion, in effect, makes section 2.47(c)(2) the same as a parole guideline that the Parole Commission consulted in arriving at the first approximation of a prisoner’s appropriate release date. Just as the Parole Commission had discretion whether to follow the parole guidelines, discretion to deviate from the policy set forth in section 2.47(c)(2) in 1980 was explicitly contemplated, particularly in cases like the one before us, where individual circumstances so warranted. Our conclusion that no ex post facto violation occurred in this ease is consistent with the Seventh Circuit’s decision in Rodriguez v. United States Parole Commission, 594 F.2d 170 (7th Cir.1979). In Rodriguez, the Seventh Circuit held that the ex post facto clause is violated by the retroactive application of a parole regulation that denies a prisoner sentenced under 18 U.S. C. § 4205(b)(2) any meaningful opportunity to be considered for parole. Id. at 170, 176. Here, by contrast, the parole regulation before us merely affected Smith’s presumptive parole date, much like the parole guidelines do. In addition, unlike the discretionary nature of section 2.47 in 1980, the prior parole regulation involved in Rodriguez required a hearing for any prisoner at the one-third point of his sentence. The newly-applied regulation eliminated the prisoner’s right to such a hearing. See id. at 172. Not surprisingly, the court in Rodriguez distinguished parole guidelines from that regulation on the grounds that parole guidelines are merely an aid to the Parole Commission’s exercise of its discretion. See id. at 176 n. 9. For similar reasons, we find the Supreme Court’s decision in Weaver v. Graham," }, { "docid": "1803316", "title": "", "text": "F.2d at 604; Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir.1986) (en banc) {Wallace). Smith contends that a parole regulation was retroactively applied during his dispositional revocation hearing. Smith maintains that when he violated his parole in 1980, then-applicable provisions of 28 C.F.R. § 2.47 (1980) would have allowed the unexpired portion of his original federal sentence to begin running concurrently with his state sentence after he had served only 18 months on his state conviction. Under the 1981 version of section 2.47, which remained in effect through 1983 when Smith was given his hearing and which was applied to Smith by the Parole Commission, Smith alleges that he was not entitled to any such concurrency provision. A “law” that increases the punishment over that permitted to be imposed when the crime was committed violates the ex post facto clause. See Wallace, 802 F.2d at 1553. Even if Smith’s reading of the two versions of section 2.47 is correct, we hold that, like the parole guidelines set forth in 28 C.F.R. § 2.20, the regulation involved is a mere procedural guidepost without the characteristics of law. Id. That the directive before us is denominated a “regulation,” rather than a “guideline,” does not necessarily render it a “law” for purposes of ex post facto scrutiny. Nor does its appearance in the Code of Federal Regulations decide the issue; the parole guidelines are printed in the Code also. We conclude, instead, that the operative factor in assessing whether a directive constitutes a “law” for ex post facto purposes is the discretion that the Parole Commission retains to modify that directive or to ignore it altogether as the circumstances may require. See id. at 1554 (observing that the Parole Commission “retains the discretion to set presumptive parole dates above or below the Guidelines for ‘good cause’ ”); see also Inglese v. United States Parole Commission, 768 F.2d 932, 936 (7th Cir.1985) (Inglese) (“The power to exercise discretion indicates that the [parole] guidelines are merely guides, and not law: guides may be discarded when circumstances require; laws may not.”). Ex post facto concerns" }, { "docid": "7947341", "title": "", "text": "incongruous to apply the Ex Post Facto Clause to Guidelines established by affirmative Congressional enactments and to not apply the Ex Post Facto Clause to the Guidelines that became effective because Congress did not act to disapprove the proposed Guideline, when both such Guidelines operate to retroactively increase punishment. A key consideration in determining whether guidelines promulgated by an agency are “laws” is how much discretion a promulgating authority retains to modify its guidelines. See Bailey v. Gardebring, 940 F.2d 1150, 1156 (8th Cir.1991) (opinion of Bowman, J.) (citing Smith v. United States Parole Comm’n, 875 F.2d 1361, 1367 (9th Cir.1989)), cert. denied, — U.S. -, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). Congress provided very explicit directions to the Sentencing Commission on how the Guidelines were to be structured. See 28 U.S.C. § 994; Mistretta, 488 U.S. at 374-78, 109 S.Ct. at 655-58. Congress retained oversight authority over those Guidelines. 28 U.S.C. § 994(p). In contrast, the Congressional direction to the Parole Commission was quite vague. See 18 U.S.C. §§ 4203, 4206. Congress retained no oversight authority over the parole guidelines. The court finds that the Sentencing Commission’s discretion with respect to the Sentencing Guidelines is substantially restricted as compared to the Parole Commission’s discretion. The court concludes that the Sentencing Guidelines are “laws” for the purpose of ex post facto analysis. 2. EASE OF DEPARTURE A departure from the Florida guidelines requires the sentencing judge to find “ ‘clear and convincing reasons’ that are ‘credible,’ ‘proven beyond a reasonable doubt,’ and ‘not ... a factor which has already been weighed in arriving at a presumptive sentence.’ ” Miller, 482 U.S. at 435, 107 S.Ct. at 2453. In contrast, the Parole Commission could depart from its guidelines for “good cause.” 18 U.S.C. § 4206(c). As discussed by the Supreme Court, the parole guidelines are “flexible ‘guideposts’ for use in the exercise of discretion,” while the Florida guidelines “create a high hurdle that must be cleared before discretion can be exercised.” Miller, 482 U.S. at 435, 107 S.Ct. at 2453. Review of the Parole Commission’s decision to depart was limited" }, { "docid": "11114142", "title": "", "text": "discretionary authority to release eligible inmates on parole. Bailey v. Gardebring, 940 F.2d 1150, 1156-57 (8th Cir.1991). The Ninth Circuit determined that “the operative factor in assessing whether a directive constitutes a ‘law for ex post facto purposes is the discretion that the [parole board] retains to modify that directive....” Smith v. United States Parole Comm’n, 875 F.2d 1361, 1367 (9th Cir.1988) (citing Wallace v. Christensen, 802 F.2d 1539, 1554 (9th Cir.1986) (en banc)). In this case, the Parole Board and the MDOC’s memoranda and directives in effect before 1982 merely operated as guidelines to aid the Parole Board in exercising its discretion. Moreover, the Parole Board retained discretion to modify its own policies. Thus, the memoranda and directives from the pre-1982 period, which did not provide any substantive rights or bind the Parole Board’s discretion, are not laws for ex post facto analysis. Furthermore, the policies behind the Ex Post Facto Clause do not support the position that internal policy directives and mem-oranda should be construed as laws. The Ex Post Facto Clause exists to protect citizens from retroactive increases in punishment. Changes in the administration and enforcement of statutes have little impact on these public expectations. Prater v. United States Parole Comm’n, 802 F.2d 948, 952-53 (7th Cir.1986) (en banc) (holding that written policies do not qualify as laws for purposes of ex post facto analysis). In this ease, the internal memoranda and policy directives, unlike administrative regulations promulgated under the APA, are not published in the Michigan Administrative Code or presented to the public for comment. Accordingly, the Parole Board and the MDOC’s policies and directives did not likely influence public expectations as to parole or create a reliance interest in the public on a particular parole hearing schedule. Therefore, we agree with the district court’s holding that the 1992 amendments as applied to members of Subclass 3 do not violate the Ex Post Facto Clause because the 1992 amendments only alter internal memo-randa and policy directives that did not provide Subclass 3 inmates with substantive rights or bind the discretion of the Parole Board members. IV." }, { "docid": "2767016", "title": "", "text": "a heightened standard of review checks this discretion, the Commission’s inherent ability to exercise discretion is not thereby altered. The power to exercise discretion indicates that the guidelines are merely guides, and not laws: guides may be discarded where circumstances require; laws may not. An application of the 1983 Guidelines to petitioner then, rather than the 1973 Guidelines, does not violate the ex post facto prohibition. Moreover, the 1973 Guidelines reserved the Commission’s right to revise the guidelines, thereby giving petitioner fair warning when he was sentenced that the guidelines under which his parole release date would be determined would be subject to change. See Warren v. United States Parole Commission, 659 F.2d 183, 195-97 (D.C.Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982). The principle that parole guidelines are not laws has been approved in a general and summary way by this circuit, see Zeidman v. United States Parole Comm’n, 593 F.2d 806, 807 (7th Cir.1979), and by the majority of other circuits which have considered the question. See, e.g., Dufresne v. Baer, 744 F.2d 1543 (11th Cir.1984); Roth v. United States Parole Commission, 724 F.2d 836, 837 (9th Cir.1984) (following Rifai v. United States Parole Comm’n, 586 F.2d 695 (9th Cir.1978)); Warren v. United States Parole Comm’n, 659 F.2d 183 (D.C.Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982); Ruip v. United States, 555 F.2d 1331 (6th Cir.1977). See also Portley v. Grossman, 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (1980) (in chambers opinion of Justice Rehnquist denying a stay of execution of the Court of Appeals’s judgment denying a habeas corpus writ, pending review on certiorari in the Supreme Court, and stating that feder al parole guidelines “operate only to provide a framework for the Commission’s exercise of its statutory discretion.” Id. at 1312, 100 S.Ct. at 715); Hayward v. United States Parole Commission, 659 F.2d 857 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982) (where no guidelines were in effect at the time of the crime application of guidelines in" }, { "docid": "14730549", "title": "", "text": "Prater v. United States Parole Comm’n, 802 F.2d 948, 951 (7th Cir.1986) (en banc). This is not to say, however, that all actions of administrative agencies are exempt from Ex Post Facto Clause scrutiny. “When Congress has delegated to an agency the authority to make a rule instead of making the rule itself, the resulting administrative rule is an extension of the statute for purposes of the [C]lause.” Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 173 (7th Cir.1979).... But when an agency promulgates an interpretive rule, the Ex Post Facto Clause is inapplicable..... Unlike legislative rules, which “ha[ve] the force of law,” [Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety Comm’n, 874 F.2d 205, 207 (4th Cir.1989) ], interpretive rules “are statements of enforcement policy. They are ... ‘merely guides, and not laws: guides may be discarded where circumstances require; laws may not.’ ” Prater, 802 F.2d at 954 (quoting Inglese v. United States Parole Comm’n, 768 F.2d 932, 936 (7th Cir.1985)). In short, whether the challenged policies are “laws” depends on whether they are legislative rules or merely interpretive guides. Ellen, 961 F.2d at 466. Viewed from this perspective, the new DCD 100-1 is a “law” for purposes of the Ex Post Facto Clause. First, it is a rule promulgated pursuant to legislatively delegated authority. The Commissioner of the Division of Correction has been delegated the authority to “adopt and promulgate reasonable rules and regulations for the operation and maintenance of the several institutions and agencies in the Division.” Md.Ann.Code art. 27, § 676. Second, the rule is not merely a guide that leaves discretion with classification teams, wardens, or the Parole Commission, in the security classification of lifers. The new DCD 100-1 may not be “discarded where circumstances require,” but is an inflexible rule that a lifer “shall not be reduced below medium security.” This inflexibility differentiates the new DCD 100-1 from the regulation examined in Faruq. Although the question is a closer one, I also find that the unwritten policy of the Parole Commission requiring plaintiffs to be on active work release and family leaves" }, { "docid": "11811342", "title": "", "text": "The Court then determined that the new statute had a more onerous effect because it reduced the amount of gain time that could be earned for good conduct, thus lengthening the period that the offender had to spend in prison. Id. at 35-36, 101 S.Ct. at 967-68. Weaver makes it clear that retroactive changes to the parole process such as the change involved in this case violate the ex post facto clause. Several courts have attempted to distinguish Weaver from cases involving retroactive application of the federal parole guidelines. These cases observe that in Weaver, the gain time credits for good conduct were automatic provided the offender avoid disciplinary infractions and perform assigned tasks, whereas in the case of the federal parole guidelines, the ultimate parole decision rests in the discretion of the Parole Commission. See, e.g., Inglese v. United States Parole Commission, 768 F.2d 932, 938 (7th Cir.1985). I find this a fragile distinction. The Court in Weaver expressly rejected the notion that a change in law can violate the ex post facto clause only if the change impairs a “vested right.” The Court stated, “When a court engages in ex post facto analysis, which is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred, it is irrelevant whether the statutory change touches any vested rights.” Weaver, 450 U.S. at 29-30 n. 13, 101 S.Ct. at 964-65 n. 13. Moreover, although Congress intended that the Parole Commission would retain discretion in making parole decisions, the Parole Commission and Reorganization Act places substantial constraints on the Commission’s exercise of it’s discretion. Prior to the adoption of the Act, the Parole Board was vested with almost unlimited discretion in making parole determinations. Under the Act, however, the Parole Commission is required to promulgate written parole guidelines, 18 U.S.C. § 4203(a)(1), and to make parole decisions “pursuant to” those guidelines, 18 U.S.C. § 4206(a)(2). Although the Commission “may grant or deny release on parole notwithstanding the guidelines,” it may deviate from the guidelines only if" }, { "docid": "11114141", "title": "", "text": "attached to the covered crime, and as such, do not violate the Ex Post Facto Clause as to Subclasses 1 and 2. B. Subclass 3 When the members of Subclass 3 were sentenced, internal operating memoranda and policy directives of the Parole Board and the MDOC established the timing of parole hearings. These memoranda and directives do not have the force and character of law for ex post facto-analysis, and, therefore, Subclass 3’s ex post facto challenge fails. This Court held in Ruip, 555 F.2d at 1335, that administrative guidelines for granting parole are not laws subject to the Ex Post Facto Clause because they are merely flexible guideposts which assist the Parole Commission in exercising its discretion, where the Parole Commission remains free to make parole decisions outside of the guidelines. Case law from other circuits supports this position. The Eighth Circuit held that parole regulations issued by the Minnesota Department of Corrections were not laws for ex post facto purposes because the regulations were simply procedural aids to the parole board vested with discretionary authority to release eligible inmates on parole. Bailey v. Gardebring, 940 F.2d 1150, 1156-57 (8th Cir.1991). The Ninth Circuit determined that “the operative factor in assessing whether a directive constitutes a ‘law for ex post facto purposes is the discretion that the [parole board] retains to modify that directive....” Smith v. United States Parole Comm’n, 875 F.2d 1361, 1367 (9th Cir.1988) (citing Wallace v. Christensen, 802 F.2d 1539, 1554 (9th Cir.1986) (en banc)). In this case, the Parole Board and the MDOC’s memoranda and directives in effect before 1982 merely operated as guidelines to aid the Parole Board in exercising its discretion. Moreover, the Parole Board retained discretion to modify its own policies. Thus, the memoranda and directives from the pre-1982 period, which did not provide any substantive rights or bind the Parole Board’s discretion, are not laws for ex post facto analysis. Furthermore, the policies behind the Ex Post Facto Clause do not support the position that internal policy directives and mem-oranda should be construed as laws. The Ex Post Facto Clause exists" }, { "docid": "1803318", "title": "", "text": "do not obtain where a regulation serves not as a binding constraint on the administrative de-cisionmaking process, but merely as a guide to the proper exercise of discretion. See Inglese, 768 F.2d at 936-37; Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.1977). Close examination of the relevant provisions of the 1980 version of section 2.47 convinces us that this regulation vested the Parole Commission with sufficient discretion to disregard its instructions that we should consider it the functional equivalent of a parole guideline. The Parole Commission has never regarded the concurrency provisions of the 1980 version of section 2.47 as a mandatory prescription. Rather, section 2.47(c)(2) expressly proclaims that it is merely “the general policy of the Commission” that the unexpired portion of a prisoner’s original federal sentence shall recommence and run concurrently thereafter with the state sentence then being served upon completion of 18-months’ service on the state sentence. (Emphasis added.) The comments of the Parole Commission in the Federal Register explicating the reasons behind the 1981 revisions of section 2.47 clarify that this regulation embodies only a presumptive policy. See Paroling, Recommitting and Supervising Federal Prisoners, 46 Fed.Reg. 35,635, 35,635-36 (1981). Thus, the 1980 version of section 2.47 was no more binding on the Parole Commission’s exercise of discretion than are the parole guidelines codified in section 2.20. Discretion to alter presumptive parole dates provided in a Parole Commission directive, as we recognized in Wallace, 802 F.2d at 1554, removes that directive from the purview of the ex post facto clause. See also Inglese, 768 F.2d at 936-37. Such discretion, in effect, makes section 2.47(c)(2) the same as a parole guideline that the Parole Commission consulted in arriving at the first approximation of a prisoner’s appropriate release date. Just as the Parole Commission had discretion whether to follow the parole guidelines, discretion to deviate from the policy set forth in section 2.47(c)(2) in 1980 was explicitly contemplated, particularly in cases like the one before us, where individual circumstances so warranted. Our conclusion that no ex post facto violation occurred in this ease is consistent with the" }, { "docid": "7947340", "title": "", "text": "so too would an agency acting pursuant to congressional mandate.” Yamamoto, 794 F.2d at 1300 (citations omitted). See also Prater v. U.S. Parole Commission, 802 F.2d 948, 954 (7th Cir.1986) (“[I]f Congress authorizes an agency to make rules ... the rules are as if made by Congress; Congress could have made them, if it had had time.”). “Subtle ex post facto violations are no more permissible than overt ones.... [T]he constitutional prohibition is addressed to laws, ‘whatever their form/ which ... increase the punishment.” Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 2721, 111 L.Ed.2d 30 (1990) (citations omitted). A serious difficulty with the government’s contention that the Guidelines are not laws is how courts should treat those crime and fact specific Guidelines that Congress expressly dictated be promulgated. See Guidelines Manual (Nov. 1, 1991) at 433-35. For example, Public Law 101-647, § 401 requires certain specific offense characteristic adjustments for the kidnapping of children. Other congressional enactments require the Commission to establish a minimum base offense level for certain offenses. It would be incongruous to apply the Ex Post Facto Clause to Guidelines established by affirmative Congressional enactments and to not apply the Ex Post Facto Clause to the Guidelines that became effective because Congress did not act to disapprove the proposed Guideline, when both such Guidelines operate to retroactively increase punishment. A key consideration in determining whether guidelines promulgated by an agency are “laws” is how much discretion a promulgating authority retains to modify its guidelines. See Bailey v. Gardebring, 940 F.2d 1150, 1156 (8th Cir.1991) (opinion of Bowman, J.) (citing Smith v. United States Parole Comm’n, 875 F.2d 1361, 1367 (9th Cir.1989)), cert. denied, — U.S. -, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). Congress provided very explicit directions to the Sentencing Commission on how the Guidelines were to be structured. See 28 U.S.C. § 994; Mistretta, 488 U.S. at 374-78, 109 S.Ct. at 655-58. Congress retained oversight authority over those Guidelines. 28 U.S.C. § 994(p). In contrast, the Congressional direction to the Parole Commission was quite vague. See 18 U.S.C. §§ 4203, 4206. Congress retained" }, { "docid": "11811331", "title": "", "text": "(1983). Finally, both the legislative history of the statute authorizing the guidelines and the Parole Commission regulations recognize that the guidelines should be periodically reviewed and revised or modified if decisions frequently go above or below the guidelines’ recommendations. H.R.Rep. No. 838 at 27, reprinted in 1976 U.S.Code Cong. & Ad.News at 360; 28 C.F.R. § 2.20(g) (1983). Offenders are thus given fair warning that the guidelines governing parole determinations are subject to change. See Inglese v. United States Parole Commission, 768 F.2d 932, 936 (7th Cir.1985); see also Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981) (“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated”) (emphasis added). In short: The statute, the parole regulations, and the policy statements contained therein clearly and repeatedly emphasize the discretionary aspect of the decision-making process of parole, particularly in the use of the guidelines. While a heightened standard of review checks this discretion, the Commission’s inherent ability to exercise discretion is not thereby altered. Inglese, 768 F.2d at 936. In light of Congress’ clearly expressed intent that the guidelines would not significantly restrict the Parole Commission’s discretion in determining the length of time a prisoner should serve before parole, we hold that the Parole Commission’s use of the 1983 federal parole guidelines in making Yama-moto’s parole determination did not result in a more onerous punishment. Accordingly, retroactive application of the guidelines does not violate the ex post facto clause. In holding that application of the 1983 federal parole guidelines to Yamamoto does not violate the ex post facto clause, we are aware of some limits to our decision. Our decision does not rest on the fact that the guidelines were promulgated by an agency rather than by Congress itself. Clearly, Congress may not, by delegation, escape constitutional limitations on its power. See McCall, 709 F.2d 852, 859 (3d Cir.1983), appeal after remand, 776 F.2d 1156" }, { "docid": "1803317", "title": "", "text": "regulation involved is a mere procedural guidepost without the characteristics of law. Id. That the directive before us is denominated a “regulation,” rather than a “guideline,” does not necessarily render it a “law” for purposes of ex post facto scrutiny. Nor does its appearance in the Code of Federal Regulations decide the issue; the parole guidelines are printed in the Code also. We conclude, instead, that the operative factor in assessing whether a directive constitutes a “law” for ex post facto purposes is the discretion that the Parole Commission retains to modify that directive or to ignore it altogether as the circumstances may require. See id. at 1554 (observing that the Parole Commission “retains the discretion to set presumptive parole dates above or below the Guidelines for ‘good cause’ ”); see also Inglese v. United States Parole Commission, 768 F.2d 932, 936 (7th Cir.1985) (Inglese) (“The power to exercise discretion indicates that the [parole] guidelines are merely guides, and not law: guides may be discarded when circumstances require; laws may not.”). Ex post facto concerns do not obtain where a regulation serves not as a binding constraint on the administrative de-cisionmaking process, but merely as a guide to the proper exercise of discretion. See Inglese, 768 F.2d at 936-37; Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.1977). Close examination of the relevant provisions of the 1980 version of section 2.47 convinces us that this regulation vested the Parole Commission with sufficient discretion to disregard its instructions that we should consider it the functional equivalent of a parole guideline. The Parole Commission has never regarded the concurrency provisions of the 1980 version of section 2.47 as a mandatory prescription. Rather, section 2.47(c)(2) expressly proclaims that it is merely “the general policy of the Commission” that the unexpired portion of a prisoner’s original federal sentence shall recommence and run concurrently thereafter with the state sentence then being served upon completion of 18-months’ service on the state sentence. (Emphasis added.) The comments of the Parole Commission in the Federal Register explicating the reasons behind the 1981 revisions of section 2.47 clarify" }, { "docid": "11811355", "title": "", "text": "U.S. 282, 300, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977). These decisions strongly suggest that an ex post facto inquiry must focus on the overall effect of a change in law, rather than on the actual result of the change in the particular case. The validity of Richardson and Rush in light of these Supreme Court cases is thus highly questionable. . The majority approves decisions of other circuits that hold that the federal parole guidelines are not laws. See footnote 7 of the majority opinion. At the same time, the majority states that it does not decide this issue. The majority also states that \"Congress may not by delegation escape constitutional limitations on its power.” The majority’s position is confusing because many of the decisions it approves rely on the specious reasoning that the federal parole guidelines are not passed by Congress. See infra note 9. . See, e.g., Dufresne v. Baer, 744 F.2d 1543, 1549-50 (11th Cir.1984), cert. denied, — U.S. —, 106 S.Ct. 61, 88 L.Ed.2d 49 (1985) (\"[The guidelines] are not promulgated by any legislature. Rather, they are stated policy rules that show how agency discretion is likely to be exercised.”); Ruip v. United States, 555 F.2d 1331, 1336 (6th Cir.1977) (in distinguishing cases suggesting that retroactive changes in statutes affecting parole determinations might violate ex post facto clause, the court stated, \"Since the relevant provisions were statutes, there was no question that they were encompassed in the prohibition on ex post facto laws. The situation here is different.”); see also Inglese, 768 F.2d at 941 (Cudahy, J., concurring). . Promulgation of and changes to the guidelines are expressly subject to the rulemaking procedures of the Administrative Procedure Act notwithstanding the Parole Commission's designation of the guidelines as general statements of policy. See 18 U.S.C. § 4218(a)-(c) (1982). . See, e.g., United States ex rel. Forman v. McCall, 776 F.2d 1156, 1163 (3d Cir.1985); In-glese, 768 F.2d at 936; DiNapoli, 764 F.2d at 146-47; Dufresne, 744 F.2d at 1550. As one court stated, “The power to exercise discretion indicates that the guidelines are merely guides," } ]
549992
The Insurers’ focus on facts with no nexus in either action misses the larger point of the indemnity sought by Chicagoland based on the outcome of the LaSalle action. Similarly, Wausau’s abstention arguments are unpersuasive. American and Continental argue that the “no joinder” clauses in those policies prevent the third-party action in this case. Wausau has also filed a motion to dismiss on this issue, which the court instructed would be treated as a motion for summary judgment. Such clauses contravene the purposes of Rule 14(a) and are ignored by most federal courts. 6 Federal Practice § 1449 at 395; see Colton v. Swain, 527 F.2d 296, 299 (7th Cir.1975); Jordan v. Stephens, 7 F.R.D. 140 (D.Mo.1945); see also REDACTED In Colton v. Swain, the Seventh Circuit held that although a procedural rule, Rule 14, should not create a substantive right of action where Illinois substantive law and the insurance contract disallow direct actions against insurers, the refusal to defend estops the insurer’s right to insist on adherence to this provision. 527 F.2d at 299-302. Therefore, the motion to reconsider the August 7 order will be denied and the duty to defend will be considered infra in connection with the motions of Chicagoland and Wausau for summary judgment. DUTY TO DEFEND Chicagoland and the Schaffners have moved for partial summary judgment as to Counts Four through Six of their first amended third-party complaint, asserting breach of the Insurers’ duty to
[ { "docid": "21544260", "title": "", "text": "Stephens, 7 F.R.D. 140 (W.D.Mo.1945), by Professors Wright and Miller, the Munday court stated that “no action” clauses, “ '... if permitted to become effective, should not operate ... [when] ... the third-party defendant is alleged to have breached its contract. According to the third-party complaint, [the insurer] has declined to perform the obligation of its undertaking in any way. It has refused to defend the defendants or third-party plaintiffs and has declined to meet the expenses contemplated by its contract. Under such circumstances it should not be permitted to interpose contractual provisions of a contract it has repudiated.’ [7 F.R.D. at 142.]” 323 S.E.2d at 195-96 (quoting 6 C. Wright & A. Miller, Federal Practice and Procedure § 1449 (1971)). Specifically considering “appellee’s denial of coverage coupled with its refusal to defend appellant in [the tort] action,” the Munday court applied the foregoing analysis and held that “the trial court erred in dismissing appellant’s third-party indemnity claim against appellee.” 323 S.E.2d at 196. Similarly, in Argonaut, the Court of Appeals held that a “no action” clause did not bar an immediate action by an insured for litigation expenses incurred due to her insurer’s refusal to defend. The court expressly rejected the Ginn court’s rationale for holding that the statute of limitations in that case was suspended during the pend-ency of the underlying tort action: The Insurers urge ... that ... there is a valid contractual impediment to the Insured’s right to assert a claim for the alleged breach of their duty to defend at any time prior to the entry of a “final judgment”_ [and] ... rely upon the presence in the policies issued to the Insured of a “no action” clause. There is authority for this proposition advanced by the Insurers. It is not, however, binding authority. See Ginn v. State Farm, etc., Ins. Co., [supra].... Under controlling Georgia authority, the “no action” clause will not ... bar the filing by the insured party himself of a direct prejudgment action for breach of contract against his own liability insurer. Munday v. State Farm Fire, etc., Co., [supra] 370" } ]
[ { "docid": "19271247", "title": "", "text": "does not join therein, but is exposed to liability on account of it. Sperry and Murray assert that they are creditor beneficiaries under Missouri law, a party for whom the performance of a contract will satisfy an actual, supposed, or asserted duty of the promise of the contract to the beneficiary, and as such may maintain a direct action against Foremost and Home to obtain reimbursement. The movants also contend that since CCC’s liability has been determined by the Court upon summary judgment, they have become judgment creditors of CCC and have an immediate and direct action against CCC’s liability insurers pursuant to RSMo § 379.200 for all damages, expenses and other costs of the litigation. 18. Third-party defendant insurer Wau-sau has filed a separate motion for summary judgment against the third-party defendants and cross-claimants Sperry and Murray. In its motion, Wausau points out that they have settled with CCC, and CCCI, and with other third-party plaintiffs (FMC, IBM, Armco, and AT & T-TI). Checks have been issued to the Settlement Fund for Wausau’s total aggregate policy limit for property damage. Wausau asserts that there is no basis for the claims of Sperry or Murray; they are neither named insureds nor do they fit within the definition of insureds, the policy’s contractual liability exclusion is not modified by any endorsement, and there is no evidence that Wau-sau, CCC or CCCI intended that Murray or Sperry would be beneficiaries under the Wausau policy. It should be noted that application of the rules for summary judgment precludes approval of a sizeable number of the motions that have been filed. Of the motions that should be denied on that basis, most present a straightforward question of fact or mixed fact and law. Time and space prevent a discussion of the facts of all the motions. Therefore, motions which cannot be granted because there are material facts in dispute are, for the most part, dealt with in a summary manner unless an important or novel question of law is also raised. However, the fact that a particular party’s motion is dealt with without full" }, { "docid": "906226", "title": "", "text": "coverage question. Pacific Indemnity asserts that no action can be maintained against it at this time because no final judgment has been rendered against the insured. It argues that this result is compelled by both the provisions of the policy and by the law and public policy of the state with the most relevant contacts with the contract in question. The essence of its argument is that. Rule 14 is procedural in nature and may not be used to “abridge, enlarge or modify” the substantive rights of any litigant. 3 J. Moore, Federal Practice 114.03[1], and cases cited therein. Pacific Indemnity argues that the substantive law to be applied is that established by the contract in question, as well as by virtue of Illinois law which prohibits direct actions (and by implication, impleader) until a final judgment has been entered against a person claiming the right to indemnity under an insurance policy which contains a no-action clause. A The insurance policy in the instant case contains a no-action clause and a no-impleader/joinder clause. Such clauses are directly opposed to the policies underlying Rule 14. That rule is designed to avoid circuity of actions and to expedite the resolution of secondary actions arising out of or in consequence of the action originally instituted. The rule guarantees consistent results, saves the time and cost involved in the needless repetition of evidence at a subsequent trial, and prevents the defendant in the original action from being handicapped by the time which may elapse between a judgment against him and a judgment in his favor against the insurance company. Jordan v. Stevens, 7 F.R.D. 140 (1945). As Jordan points out, the purposes served by the rule reflect the public policy against costly and unnecessary adjudications, and private contractual arrangements between individuals should not circumvent the policy of the rule. B Pacific Indemnity also contends that the third-party complaint should have been dismissed because the law and public policy of Illinois mandate that result. Pacific Indemnity’s position is that when a policy contains a no-action clause the substantive law of Illinois grants it the right" }, { "docid": "1379536", "title": "", "text": "Judgment Against Employers Insurance of Wau-sau (Dkt. 46), filed December 30, 1993, is DENIED. 3. Gencor’s Motion for Summary Judgment Against Employers Insurance of Wau-sau (Dkt. 48), filed December 30, 1993, is DENIED. 4. Gencor’s Motion for Summary Judgment Against Travelers Indemnity Company (Dkt. 50), filed December 30, 1993, is DENIED. 5. Gencor’s Motion for Summary Judgment Against Travelers Indemnity Company of Illinois (Dkt. 52), filed December 30,1993, is DENIED. 6. Gencor’s Motion for Summary Judgment Against Wausau Underwriters Insurance Company (Dkt. 44), filed December 30, 1993, is DENIED. 7. Wausau Underwriters Insurance Company and Employers Insurance of Wausau’s Cross-Motion for Summary Judgment (Dkt. 67), filed January 28, 1994, is GRANTED. 8. Travelers Indemnity Company and Travelers Indemnity Company of Illinois’ Cross-Motion for Summary Judgment (Dkt. 80), filed February 18, 1994, is GRANTED. 9. Travelers Indemnity Company and Travelers Indemnity Company of Illinois’ Motion for Summary Judgment (Dkt. 38), filed December 6, 1993, is DENIED AS MOOT. 10. National Union’s Motion to Dismiss the Amended Complaint (Dkt. 30), filed September 20, 1993, is treated as a motion for summary judgment and is GRANTED. 11. Travelers’ Motion to Strike Affidavits (Dkt. 66), filed January 27, 1994, is DENIED. 12. The Motion of Employers Insurance of Wausau and Wausau Insurance Underwriters to File Supplemental Authority in Support of Their Cross-Motion for Summary Judgment (Dkt. 83), filed February 25, 1994, is GRANTED. 13. The Motion of Employers Insurance of Wausau and Wausau Insurance Underwriters to File Additional Supplemental Authority in Support of Their Cross-Motion for Summary Judgment (Dkt. 94), filed May 5, 1994, is GRANTED. 14. Gencor’s Motion for Judicial Notice (Dkt. 86), filed February 28, 1994, is DENIED AS MOOT. 15. The Clerk is directed to enter judgment in favor of the defendants and against the plaintiff. DONE AND ORDERED. . Gencor also asserts a breach of contract claim against each insurer. . Standard Havens later amended its complaint to add E.J. Elliott (Gencor's Chairman and President) as a defendant, and to include a breach of contract claim. These changes are immaterial to resolution of the pending motions. . In its entirety," }, { "docid": "23683171", "title": "", "text": "consolidated appeal. We first consider Appeal No. 86-2080, the indemnity action against the Village’s insurer. No party contests the district court’s jurisdiction, but as stated above, it is appropriate to consider the issue. We have already determined that the mere fact that a nonparty is involved does not preclude jurisdiction to enforce the court’s judgment. We can again avoid deciding the question of whether a separate action distinction should be made in determining jurisdiction. In Appeal No. 86-2080 the indemnity proceeding against the insurer was brought as a post-judgment motion in the original action. In its brief, the Village quoted language from Kerr characterizing indemnity actions as being separate and apart from the underlying tort claim. The full quotation, however, is, “Claims for indemnity are separate and apart from tort claims and are not consolidated with the tort claim unless there is another contested issue such as the duty of the indemnitor to defend.” 424 F.2d at 1141-1142 (emphasis added). Thus in this Circuit an insurer ordinarily cannot obtain a declaratory judgment as to its liability prior to the insured first being found liable, Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165, 1169 (7th Cir.1969), certiorari denied, 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745; National Union Fire Insurance Co. of Pittsburgh v. Continental Illinois Corp., 646 F.Supp. 746, 750 (N.D.Ill.1986), and an insurer cannot ordinarily be joined as a third-party defendant. Kerr, 424 F.2d at 1141-1142; but compare Thomas, 740 F.2d at 486. However, where there is an actual controversy, such as over an insurer’s duty to defend, both declaratory relief, Sears, Roebuck and Co. v. Zurich Insurance Co., 422 F.2d 587, 589 (7th Cir.1970), and joining the insurer as a third party, Colton v. Swain, 527 F.2d 296, 302-303 (7th Cir.1975), are proper. See also Gianinni v. Bluthart, 132 Ill.App.2d 454, 460-461, 270 N.E.2d 480, 484-485 (1971); Loeber Motors, Inc. v. Sims, 34 Ill.App.3d 342, 351-352, 340 N.E.2d 132, 138-139 (1975); Wright & Miller, §§ 1444, 1449. In the present case the liability of the defendants had already been established and Hartford denied liability under the insurance" }, { "docid": "906224", "title": "", "text": "SWYGERT, Circuit Judge. There are two questions presented on this appeal: whether a liability insurance policy covers actions brought under 42 U.S.C. § 1983 and, even if it should, does the inclusion of a no-action clause and a no-impleader/joinder clause bar a third-party action to determine the extent of coverage prior to a judgment of liability against the insured? The district court denied the insurer’s motion to dismiss the third-party complaint, holding that the action was appropriate under Rule 14 of the Federal Rules of Civil Procedure, and granted the insureds’ motion for a summary judgment on the question of the company’s liability for section 1983 violations. The present controversy arose out of an action filed against the third-party plaintiffs, sheriff’s deputies in DuPage County, Illinois at the time of the incident in question, by Robert Colton who alleged that the deputies violated 42 U.S.C. § 1983 and the Fourth, Fifth, Seventh, and Fourteenth Amendments to the United States Constitution. The defendant-deputies filed their third-party complaint against Pacific Indemnity Company, their insured, after it had notified them that it would deny coverage on the grounds that section 1983 violations are not covered by the policy and that Colton’s complaint in the principal action failed to state any other cause of action which was within the provisions of the policy. There is no dispute that the policy was in effect at the time of the alleged incident which is the basis of Colton’s suit. I We must first consider whether the third-party action is barred at this time. Pacific Indemnity asserts that there is no rule of substantive law which gives the defendant-deputies the right to bring an action to define the company’s liability under the policy and to require it to defend them prior to judgment against them in the suit filed by Colton. A resolution of this issue must precede a consideration of the company’s contention that the policy does not anticipate cover age for a claim under section 1983. If the district court was incorrect in its conclusion that the impleader was proper, we need not reach the" }, { "docid": "23103910", "title": "", "text": "actions toward Anne Willard were not “intentional” within the meaning of the policy. Solo bases this argument on the premise that because the duties of indemnity and defense contained in the insurance contract are independent covenants, the mere fact that one covenant has not been breached does not preclude an opposite conclusion with respect to the remaining covenant. While it is true that the obligations of indemnity and defense contained in the contract are independent of each other, we are unable to agree that Federal may, absent the existence of a duty of defense regarding the EEOC claim, have any obligation of indemnity for the sums paid in settlement of that claim. This follows from the fact that under Illinois law, a duty to defend such as is embodied in this contract of insurance, is broader than a general duty to indemnify for liabilities, fees, and costs. Colton v. Swain, 527 F.2d 296, 301-302 (7th Cir. 1975) (applying Illinois law). The defense obligation is triggered when the insured tenders the defense of an action against it which is potentially within the policy coverage. By contrast, the indemnity obligation at issue here matures only when the insured becomes obligated to pay by reason of liability imposed by law. An insurer whose policy has an assumption of defense clause will therefore frequently have an independent duty to defend actions which will not ultimately result in an obligation to indemnify, either because the insured was not adjudged liable or because the facts were resolved in such a way as to bring the matter within a policy exclusion. Conversely, litigation over the independent duty to indemnify will result only: (1) when the insurer has already defended the action under a reservation of rights, the insured has been found liable, and the insurer thereafter contests the coverage of the policy; or (2) when the policy contains no defense clause. If the broader duty to defend has not been triggered, it is because the underlying action is not potentially within the coverage of the policy, and there could be, as a practical matter, no duty to" }, { "docid": "1277125", "title": "", "text": "role as a party is hardly more real than that of the casual ejector Richard Roe in common law ejectment actions. What is at stake in the suit is the plaintiff’s claim for the payment of his alleged damages by the insurer. Section 167, subdivision 1, of the New York Insurance Law and Section 38.1-380 of the Virginia Code are alike in making the insurer directly liable to the plaintiff not only if the judgment against the insured is not promptly paid but also if the insured becomes bankrupt. The insurance contract is, thus, not merely a contract with insured protecting the insured against loss, but it directly obligates the insurer to pay persons injured by the insured’s negligence. If the insurer refuses to defend, it may be brought in as a third party defendant under Rule 14 of the Federal Rules of Civil Procedure. Colton v. Swain, 7th Cir. 1975, 527 F.2d 296, 303. If the insurer in bad faith refuses to settle within policy limits, and judgment against the insured is in excess of the policy limits, the plaintiff in the action has been held to be entitled to recover directly from the insurer the excess over the policy limits. Davis v. National Grange Ins. Co., E.D.Va.1968, 281 F.Supp. 998. The emphasis in many of the cases on the supposedly contingent nature of the insurer’s obligation appears to be misplaced. The occurrence of the accident, the plaintiff’s injuries, and the insured’s connection with the accident are determinative events.' To be sure there may never be a suit, but the insured is under an immediate duty to give prompt notice of the accident to the insurer. Investigation usually commences at once, and the parties in interest, potential plaintiff, insurer and insured are identified. Control of investigation, defense and settlement are in the insurer’s hands. The prospective plaintiffs relationships are with the insurer, not with the insured. When an action is commenced the insurer controls the conduct of the defense, and, if the suit is in a federal court, plaintiff may obtain discovery of the existence and content of any" }, { "docid": "19271246", "title": "", "text": "those grounds. 17. Sperry and Murray (third-party defendant generators) have filed motions for summary judgment on their cross-claims against CCC and two of CCC’s insurers, Foremost and Home, on the issues of their right to indemnification by CCC for all obligations imposed as a result of this litigation, and their right to reimbursement by CCC’s insurers. These two movants contend that as an inducement to enter into business with CCC that CCC explicitly indemnified them against all loss, cost, expense or liability occasioned by CCC’s disposition of their waste, and that their liability in this litigation arises solely out of its dealings with CCC and CCC’s disposal activities. They contend further that CCC’s insurers are responsible for CCC’s liability based on contractual liability insurance covering such contracts; Foremost’s policy is the underlying insurance for Home’s excess coverage. Sperry and Murray also argue that they have an implied right of indemnity even absent an explicit contract based on Missouri law which allows non-contractual indemnity where one party creates a condition which causes injury and another party does not join therein, but is exposed to liability on account of it. Sperry and Murray assert that they are creditor beneficiaries under Missouri law, a party for whom the performance of a contract will satisfy an actual, supposed, or asserted duty of the promise of the contract to the beneficiary, and as such may maintain a direct action against Foremost and Home to obtain reimbursement. The movants also contend that since CCC’s liability has been determined by the Court upon summary judgment, they have become judgment creditors of CCC and have an immediate and direct action against CCC’s liability insurers pursuant to RSMo § 379.200 for all damages, expenses and other costs of the litigation. 18. Third-party defendant insurer Wau-sau has filed a separate motion for summary judgment against the third-party defendants and cross-claimants Sperry and Murray. In its motion, Wausau points out that they have settled with CCC, and CCCI, and with other third-party plaintiffs (FMC, IBM, Armco, and AT & T-TI). Checks have been issued to the Settlement Fund for Wausau’s total" }, { "docid": "906227", "title": "", "text": "are directly opposed to the policies underlying Rule 14. That rule is designed to avoid circuity of actions and to expedite the resolution of secondary actions arising out of or in consequence of the action originally instituted. The rule guarantees consistent results, saves the time and cost involved in the needless repetition of evidence at a subsequent trial, and prevents the defendant in the original action from being handicapped by the time which may elapse between a judgment against him and a judgment in his favor against the insurance company. Jordan v. Stevens, 7 F.R.D. 140 (1945). As Jordan points out, the purposes served by the rule reflect the public policy against costly and unnecessary adjudications, and private contractual arrangements between individuals should not circumvent the policy of the rule. B Pacific Indemnity also contends that the third-party complaint should have been dismissed because the law and public policy of Illinois mandate that result. Pacific Indemnity’s position is that when a policy contains a no-action clause the substantive law of Illinois grants it the right to be free of suit until a final judgment has been rendered in the principal action against its insured. Thus it attempts to characterize the question of the propriety of impleader as substantive rather than procedural under Rule 14. The company argues that if there were in fact a substantive right under Illinois law barring impleader, Rule 14 could not be used to circumvent that right. The defendant-deputies on the other hand urge that the question of impleader be considered independent of the substantive law of the State of Illinois. The district judge agreed and listed three alternative bases for allowing impleader: [t]he Illinois prohibition against direct action against an insurer is not a bar to a third party complaint under Rule 14. Since the original complaint alleges a federal cause of action based on violations of a federal statute, the third party complaint is ancillary to the primary claim and not necessarily dependent on state law or policy for its determination. Further, federal courts have allowed third party complaints under Rule 14 regardless of" }, { "docid": "906228", "title": "", "text": "to be free of suit until a final judgment has been rendered in the principal action against its insured. Thus it attempts to characterize the question of the propriety of impleader as substantive rather than procedural under Rule 14. The company argues that if there were in fact a substantive right under Illinois law barring impleader, Rule 14 could not be used to circumvent that right. The defendant-deputies on the other hand urge that the question of impleader be considered independent of the substantive law of the State of Illinois. The district judge agreed and listed three alternative bases for allowing impleader: [t]he Illinois prohibition against direct action against an insurer is not a bar to a third party complaint under Rule 14. Since the original complaint alleges a federal cause of action based on violations of a federal statute, the third party complaint is ancillary to the primary claim and not necessarily dependent on state law or policy for its determination. Further, federal courts have allowed third party complaints under Rule 14 regardless of state policy based on the federal procedural policy of efficiency in litigation. Federal courts have generally allowed third party complaints against insurers in actions brought under federal question jurisdiction. Colton v. Swain, 358 F.Supp. 859, 862-63 (N.D.Ill.1973). (citations omitted.) The first basis, that the principal action was founded on federal question jurisdiction, is inappropriate. Although jurisdiction in third-party actions under Rule 14 is ordinarily considered ancillary to the principal action, policies which mandate the application of state law in a diversity case (see Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny), apply with equal validity to the impleader of an insurance company under Rule 14. Here, the controversy between the third-party defendant-deputies and the insurance company is one which arises in contract. An insured should not be able to avoid the state law limiting his contractual rights by impleading an insurance company merely because a suit against him is fortuitously based on federal question jurisdiction rather than on diversity of citizenship. Cf. Kennedy v." }, { "docid": "1379533", "title": "", "text": "judgment against Wausau Underwriters Insurance Company will be denied. VII. WAUSAU UNDERWRITERS INSURANCE COMPANY AND EMPLOYERS INSURANCE OF WAU-SAU’S CROSS-MOTION FOR SUMMARY JUDGMENT (DKT. 67) Based on the reasoning set forth in parts IV and VI of this Memorandum Decision and Order, the Wausau defendants are not obligated to defend Gencor, and the Wausau policies do not cover Gencor’s patent infringement liability to Standard Havens. Accordingly, the Wausau defendants are entitled to final summary judgment against Gen-cor. VIII. TRAVELERS INDEMNITY COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS’ CROSS-MOTION FOR SUMMARY JUDGMENT (DKT. 80) Based on the reasoning set forth in part V of this Memorandum Decision and Order, the Travelers defendants are not obligated to defend Gencor, and the Travelers policies do not cover Gencor’s liability to Standard Havens. These motions will be granted. IX.TRAVELERS INDEMNITY COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS’ MOTION FOR SUMMARY JUDGMENT (DKT. 38) This motion seeks summary judgment on the basis of late notice to the moving insurers. Because the Travelers defendants are entitled to summary judgment on other grounds, the Court need not reach the notice issue. Accordingly, this motion will be denied as moot. X. NATIONAL UNION’S MOTION TO DISMISS THE AMENDED COMPLAINT (DKT. 30) This motion and Gencor’s response address substantially the same issues as Gen-cor’s motion for summary judgment (Dkt. 54) against National Union, and National Union’s response to that motion. Those issues have been thoroughly briefed. As discussed in part IV of this Memorandum Decision and Order, there is no coverage under National Union’s policy, and the insurer need not defend Gencor. Accordingly, despite the fact that National Union elected to file a motion to dismiss, rather than a summary judgment motion, the Court will grant summary judgment in National Union’s favor. See Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir.1985) (when only one party moves for summary judgment, district court may in appropriate case grant summary judgment in favor of the non-moving party); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2720 (1983). XI. OTHER PENDING MOTIONS A. Travelers’ Motion" }, { "docid": "12631868", "title": "", "text": "may not. Moveover, while apportionment may be a logical solution retrospectively, when the merits of the lawsuit have been disposed of through settlement or otherwise, apportionment may be well-nigh impossible prospectively when defense against an action based on several theories of recovery and/or factually distinct claims must be coordinated. American Motorists says nothing about apportionment in such a situation and in fact holds to the general rule that when an insurer is potentially liable for indemnifica tion based on some allegations in the complaint, the duty to defend against the entire claim is triggered: I conclude that the Pritchard complaint alleged damages for which there was potential coverage under the American Motorists policy. In these circumstances American Motorists had a duty to defend Trane, even though not all of the Pritchard allegations were within American Motorists’ coverage. Crawford v. Ranger Insurance Co., 653 F.2d 1248, 1253 (9th Cir.1981); Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 537 (8th Cir.1970). American Motorists, 544 F.Supp. at 695. See also, Colton v. Swain, 527 F.2d 296, 304 (7th Cir.1975) (applying Illinois law). Furthermore, when an insurer accepts a tender of defense from its insured under a reservation of rights indicating that it will indemnify the insured under some outcomes but not others, it becomes in the insurer’s interest to promote outcomes under which it will not be liable for indemnification, an interest that conflicts with the interests of its insured. In these circumstances it would be especially detrimental to the insured’s overall ability to defend against the action to allow the insurer to fragment the defense in fulfilling its contractual duty to defend. Therefore, because some of the allegations of Engsberg’s complaint against the Town of Milford fall within the coverage of its policy with Tower Insurance and because apportionment of responsibility for the defense is neither practical nor desirable, Tower Insurance has the duty to defend the entire action against the town. Accordingly, ORDER IT IS ORDERED that the motion for summary judgment of third-party defendant Employers Mutual Casualty Company, Inc. is GRANTED, and that judgment be entered in its" }, { "docid": "23103909", "title": "", "text": "v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24, 28 (1976) (emphasis supplied). An insurer may not refuse the tendered defense of an action unless a comparison of the policy with the underlying complaint shows on its face that there is no potential for coverage. Weed v. Ohio Farmer’s Insurance Co., 53 Ill.App.3d 826, 11 Ill.Dec. 564, 566, 368 N.E.2d 1310, 1312 (1977). In making the comparison any ambiguous or equivocal expressions in the policy will be strictly construed against the insurer. Pioneer Insurance Co. v. Alliance Insurance Co., 374 Ill. 576, 586, 30 N.E.2d 66, 71-72 (1940). See generally 7C Appleman, Insurance Law and Practice § 4683 (1979). Solo contends, however, that even if Federal’s refusal to provide a defense was proper under the above described duty of defense and was therefore not a breach of the agreement contained in Endorsement 1 of the policy, quoted supra, Federal may nevertheless be required to indemnify Solo for the $25,000 paid in settlement of the underlying action if, on remand, a trier of fact concludes that Solo’s actions toward Anne Willard were not “intentional” within the meaning of the policy. Solo bases this argument on the premise that because the duties of indemnity and defense contained in the insurance contract are independent covenants, the mere fact that one covenant has not been breached does not preclude an opposite conclusion with respect to the remaining covenant. While it is true that the obligations of indemnity and defense contained in the contract are independent of each other, we are unable to agree that Federal may, absent the existence of a duty of defense regarding the EEOC claim, have any obligation of indemnity for the sums paid in settlement of that claim. This follows from the fact that under Illinois law, a duty to defend such as is embodied in this contract of insurance, is broader than a general duty to indemnify for liabilities, fees, and costs. Colton v. Swain, 527 F.2d 296, 301-302 (7th Cir. 1975) (applying Illinois law). The defense obligation is triggered when the insured tenders the defense of an action against" }, { "docid": "5376934", "title": "", "text": "SWAN, Circuit Judge. The original action by Rosalis sought damages for breach of contract by Universal. The complaint was filed May 20, 1955. Federal jurisdiction was based on diverse citizenship, the plaintiff being a citizen of Mississippi and the defendant a Connecticut corporation. The defendant’s answer denied making the contract alleged in the complaint. Thereafter the plaintiff filed a demand for a jüry trial and took oral depositions in preparation for trial. In March 1956 Judge Smith made a pre-trial order which is set out in the margin. Nothing further occurred until September 24, 1957 when defendant moved under Rule 14(a), Fed. Rules Civ.Proc., 28 U.S.C.A., for leave to implead its insurer, Aetna. This motion was granted by Judge Anderson on plaintiff’s consent and without notice to Aetna. Promptly after service of summons on the third party defendant, it moved to dismiss the third party complaint. Under Rule 14(a) a third party complaint may be filed against a person not a party to the action “who is or may be liable” to the defendant for all or part of the plaintiff’s claim against him. Aetna does not assert in its motion papers that it may not be liable to indemnify its insured, if Rosalis obtains a judgment against Universal. It asserts only that the question of liability under its policy is doubtful, without referring to the particular clauses which create the doubt. Nor has the movant argued that the third party complaint should be dismissed because plaintiff’s complaint states no cause of action against Universal. Viewed strictly as a motion to dismiss, the motion must be denied. Although denominated a motion to dismiss, the motion may properly be viewed as a motion to vacate the prior order granting leave to bring in Aetna as third party defendant. Such a motion is familiar practice. Jordan v. Stephens, D.C., 7 F.R.D. 140; Jenkins v. Black & White Cab Co., D.C., 15 F.R.D. 5. In argument the movant suggested that its motion might be so viewed and opposing counsel conceded that it might be. It will be so considered. The motion of September" }, { "docid": "2075901", "title": "", "text": "Fund, Inc. v. Hagopian, 417 F.Supp. 738 (S.D.N.Y.1976). In order to maintain a third-party complaint, a direct line of liability must be alleged to exist between the third-party plaintiff and third-party defendant. Moorhead Construction Company, Inc. v. City of Grand Forks, 508 F.2d 1008 (8th Cir.1975), citing 6 Wright and Miller, Federal Practice and Procedure § 1442. It is not enough that the third-party claim is alleged to stem from the same transaction. Nagunst v. Western Union Tel. Co., 76 F.R.D. 631 (D.C.Kansas 1977). Finally, while Rule 14 should be liberally construed, the permissibility of a third-party action is committed to the discretion of the court. Farmers & Merchants Mutual Fire Insurance Company v. Pulliam, 481 F.2d 670 (10th Cir.1973); General Electric Company v. Irvin, 274 F.2d 175 (6th Cir.1960); Wright and Miller, Federal Practice & Procedure: Civil § IMS. Borreson’s third-party complaint does arise out of the same factual circumstances as the trustee’s preference action. The outcome of the preference action with respect to two of the payments in particular may well depend on resolution of the issue of whether the debtor or Peterson himself owes Borreson $44,000.00. That same question appears to be the sole issue in the third-party complaint. Furthermore, assuming there is a basis for the indemnity claim, Peterson’s liability can be characterized as dependent on the outcome of the main action. But again, this is not enough without some showing that there exists a direct line of liability between Borreson and Peterson, which brings us to the substance of the third-party complaint. Rule 14 is procedural only; impleader is properly limited to situations where a right to relief exists under the applicable substantive law. Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir.1983); Colton v. Swain, 527 F.2d 296 (7th Cir.1975); Murray v. Reliance Ins., Co., 60 F.R.D. 390 (D.C.Minn.1973). The purpose of the inquiry into the substance of both counts of the third-party complaint is twofold. In addition to deciding whether the action is proper under Rule 14(a), which would in turn support ancillary jurisdiction, Peterson alleged that both counts of the complaint fail" }, { "docid": "906247", "title": "", "text": "a consideration of the law of Illinois, the appropriate substantive law to govern impleader under Rule 14. . We need not decide what the result would be if the third-party plaintiff sought to implead the insurer on the question of liability when the company had fulfilled its obligation under the contract to defend and merely notified the insured that there was a genuine dispute as to ultimate coverage under the policy. In a case where there has been a refusal to defend, the insured is immediately disadvantaged and the cause of action against the insurer under Illinois law exists at that time because the company has breached provisions of its policy. Impleader in this situation serves to prevent prejudice to the insured from the delay between the filing of the action against him and the resolution of the company’s liability in a subsequent suit. This result merely accelerates or expedites the presentation of the substantive rights of the parties. Jeub v. B/G Foods, Inc., 2 F.R.D. 238 (D.C.Minn.1942). For this reason, Pacific Indemnity’s additional contention in the instant case that impleader was inappropriate under the rationale of Rule 14 even should it be liable to defend is incorrect. The impleader made it unnecessary to institute an expensive and circuitous declaratory relief action and in this way .the purpose of the rule is served. . Colton’s complaint alleges among other things that the deputies: . . . menaced and threatened the plaintiff with firearms. The defendant John B. Swain, set upon, pushed and pummelled the plaintiff, threw him to the ground and struck him repeatedly with a blackjack. Then each of the defendants kicked, beat, and viciously attacked the plaintiff with their feet and hands inflicting injury to the plaintiff. The plaintiff was then dragged and pushed into the County Jail by the defendants. The defendant was falsely and without probable cause charged with the following crimes: a) criminal damage to property of the County of Du Page; b) unlawful possession of a controlled substance; and c) obstructing a police officer in the performance of his duties. Thereafter the Office of" }, { "docid": "19271216", "title": "", "text": "INDIVIDUAL INSURER’S MOTIONS FOR SUMMARY JUDGMENT The conclusions and recommendations of the Special Master concerning the following nine Insurance Companies' motions for summary judgment are adopted in their entirety: (a) Evanston (b) Mutual Fire (c) Lincoln (d) Centaur (e) Foremost (f) Continental Casualty (g) Home (h) Central National (i) American Centennial 13. MOTIONS OF MURRAY OHIO AND SPERRY CORPORATION— As there are questions of fact regarding the identical motions of Murray Ohio Manufacturing Company and the Sperry Corporation for judgments on their cross-claims against CCC for indemnification for all obligations imposed on them as a result of the present litigation, summary judgment is denied. At this time no action will be taken on the motion of Sperry and Murray Ohio against Illinois Employers Insurance of Wausau. 14. CONTRACTUAL INDEMNITY— The Original Generator Defendants’ separate motions for summary judgment against CCC on the issue of indemnification must be denied pending development of those factors which would enable a determination of the state possessing the most significant relationship to the parties and indemnity. Accordingly, subject only to the expressed exceptions contained above, it is ORDERED that the Special Master’s Report of June 27, 1986 is adopted. It is further ORDERED that, subject to the exceptions contained above, the pending motions for summary judgment are ruled in accordance with the Master’s Report. ON REQUEST FOR CLARIFICATION Upon the request of Illinois Employers Insurance Company of Wausau for clarification of this Court’s September 2, 1986, Summary Judgment Order, it is hereby ordered: 1. Claims brought by Murray Ohio and Sperry against Illinois Employers of Wau-sau were dismissed by this Court’s Order of July 18, 1986. Accordingly, no motions between Sperry and Murray Ohio and Illinois Employers Insurance of Wausau remain before the Court for consideration. 2. This Court’s Summary Judgment Order of September 2,1986, does not apply to Illinois Employers Insurance of Wausau because Illinois Employers Insurance of Wausau, having settled with third-party plaintiffs, was not a party to the summary judgment motions addressed in the Court’s ruling. SPECIAL MASTER’S RECOMMENDATIONS ON MOTIONS FOR SUMMARY JUDGMENT REGARDING INSURANCE AND INDEMNIFICATION TABLE OF CONTENTS Page" }, { "docid": "23683172", "title": "", "text": "liability prior to the insured first being found liable, Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165, 1169 (7th Cir.1969), certiorari denied, 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745; National Union Fire Insurance Co. of Pittsburgh v. Continental Illinois Corp., 646 F.Supp. 746, 750 (N.D.Ill.1986), and an insurer cannot ordinarily be joined as a third-party defendant. Kerr, 424 F.2d at 1141-1142; but compare Thomas, 740 F.2d at 486. However, where there is an actual controversy, such as over an insurer’s duty to defend, both declaratory relief, Sears, Roebuck and Co. v. Zurich Insurance Co., 422 F.2d 587, 589 (7th Cir.1970), and joining the insurer as a third party, Colton v. Swain, 527 F.2d 296, 302-303 (7th Cir.1975), are proper. See also Gianinni v. Bluthart, 132 Ill.App.2d 454, 460-461, 270 N.E.2d 480, 484-485 (1971); Loeber Motors, Inc. v. Sims, 34 Ill.App.3d 342, 351-352, 340 N.E.2d 132, 138-139 (1975); Wright & Miller, §§ 1444, 1449. In the present case the liability of the defendants had already been established and Hartford denied liability under the insurance policy. Therefore a controversy existed that permitted Hartford to be joined in the action. Gianinni, 132 Ill.App.2d at 460-461, 270 N.E.2d at 484-485; Skevofilax, 810 F.2d at 386 n. 6; Wright & Miller, § 1449 at 267. Thus the indemnity claim in this case need not be brought in a separate action and we perceive no other reason why the district court might possibly have lacked jurisdiction. Even if this were to be considered a separate action, we doubt that the result would be different. The garnishment certainly is in aid of the court’s jurisdiction and it is adequately related to the original action. Compare Skevofilax, 810 F.2d at 385; id. at 389-390 (Becker, J., concurring); Barrett, 346 F.2d 345; Chambers, 313 F.2d 252; Castro, 386 F.Supp. at 1282; Green, 271 F.Supp. at 93. Additionally, even if there were no supplementary jurisdiction in Appeal No. 86-2080, there may be diversity jurisdiction in that case. See Berry, 795 F.2d at 456. Last, Appeals No. 86-3131 and No. 86-3132 are simply further proceedings of Nos. 86-1960 and" }, { "docid": "2075902", "title": "", "text": "resolution of the issue of whether the debtor or Peterson himself owes Borreson $44,000.00. That same question appears to be the sole issue in the third-party complaint. Furthermore, assuming there is a basis for the indemnity claim, Peterson’s liability can be characterized as dependent on the outcome of the main action. But again, this is not enough without some showing that there exists a direct line of liability between Borreson and Peterson, which brings us to the substance of the third-party complaint. Rule 14 is procedural only; impleader is properly limited to situations where a right to relief exists under the applicable substantive law. Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir.1983); Colton v. Swain, 527 F.2d 296 (7th Cir.1975); Murray v. Reliance Ins., Co., 60 F.R.D. 390 (D.C.Minn.1973). The purpose of the inquiry into the substance of both counts of the third-party complaint is twofold. In addition to deciding whether the action is proper under Rule 14(a), which would in turn support ancillary jurisdiction, Peterson alleged that both counts of the complaint fail to state a claim upon which relief can be granted. In this regard Borreson correctly pointed out that a Rule 12(b)(6) motion shall be treated as one for summary judgment where matters outside the pleadings are presented to and not excluded by the court. Here Peterson submitted an affidavit together with his motion and that affidavit has not been excluded. Accordingly, that part of Peterson’s motion alleging a failure to state a claim upon which relief can be granted shall be treated as a motion for summary judgment. Rule 56, Fed.R.Civ.P., which is made applicable to this proceeding by Bankruptcy Rule 7056, provides that summary judgment shall be granted where “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”. In deciding the summary judgment motion, I must view each fact in the light most favorable to Borreson, the non-moving party. Snell v. United States, 680 F.2d 545, 547 (8th Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 344, 74 L.Ed.2d" }, { "docid": "906225", "title": "", "text": "notified them that it would deny coverage on the grounds that section 1983 violations are not covered by the policy and that Colton’s complaint in the principal action failed to state any other cause of action which was within the provisions of the policy. There is no dispute that the policy was in effect at the time of the alleged incident which is the basis of Colton’s suit. I We must first consider whether the third-party action is barred at this time. Pacific Indemnity asserts that there is no rule of substantive law which gives the defendant-deputies the right to bring an action to define the company’s liability under the policy and to require it to defend them prior to judgment against them in the suit filed by Colton. A resolution of this issue must precede a consideration of the company’s contention that the policy does not anticipate cover age for a claim under section 1983. If the district court was incorrect in its conclusion that the impleader was proper, we need not reach the coverage question. Pacific Indemnity asserts that no action can be maintained against it at this time because no final judgment has been rendered against the insured. It argues that this result is compelled by both the provisions of the policy and by the law and public policy of the state with the most relevant contacts with the contract in question. The essence of its argument is that. Rule 14 is procedural in nature and may not be used to “abridge, enlarge or modify” the substantive rights of any litigant. 3 J. Moore, Federal Practice 114.03[1], and cases cited therein. Pacific Indemnity argues that the substantive law to be applied is that established by the contract in question, as well as by virtue of Illinois law which prohibits direct actions (and by implication, impleader) until a final judgment has been entered against a person claiming the right to indemnity under an insurance policy which contains a no-action clause. A The insurance policy in the instant case contains a no-action clause and a no-impleader/joinder clause. Such clauses" } ]
433739
In, one of the very few attempts to provide more than a conclusory definition of deliberate indifference, a panel of the Eleventh Circuit described what it referred to as the “hazy” or “conceptually vague” distinction between deliberate indifference and negligence. Howell v. Evans, 922 F.2d 712, 720 n. 7, vacated, 931 F.2d 711 (11th Cir.1991). Deliberate indifference, according to Howell, requires a knowing action or refusal to take a necessary course of action, plus the knowledge that the action creates a hazard of serious harm. 922 F.2d at 720-21. See also Edivards v. Gilbert, 867 F.2d 1271,1276 (11th Cir.1989) (“strong likelihood” of harm). The United States Court of Appeals for the Third Circuit has declined to define “deliberate indifference,” see REDACTED cert. denied 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989) (“Colburn I”); Col-burn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d Cir.1991) (“Colburn II”), though it is in accord with the prevailing view that deliberate indifference “implies that there must be ‘a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur’ ” and that “the custodial officials ‘knew or should have known’ of that strong likelihood.” Id. (citations omitted). By the plain meaning of the adjectives modifying the noun “indifference,” it would seem that “deliberate indifference” requires a greater showing of constitutional neglect than does “reckless indifference,” which is the standard of liability applicable to individual officers whose actions result in constitutional injuries. However,
[ { "docid": "22048062", "title": "", "text": "process he perceives are: 1. the due process that incorporates specific protections defined in the Bill of Rights; 2. substantive due process; and 3. procedural due process. In this case, Colburn cannot allege a violation of a specific provision of the Bill of Rights, and issues concerning adequate notice and proper hearings are patently ludicrous in this case where Stierheim has taken her own life. Clearly Colburn is alleging a violation of substantive due process and it is precisely this type of due process violation which requires some modicum of intent or conduct tantamount to intent, as I have explained in text, supra, in order to state a viable cause of action. . This court’s in banc decision in Davidson, 752 F.2d 817 (3d Cir.1984) (in banc), which was affirmed by the Supreme Court, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), recognized the requirement that some level of intent be pleaded and proved in a § 1983 due process claim or, in other words, that mere negligence is not enough. Indeed, had it held otherwise, I would not have joined the in banc opinion. The reference in our Davidson opinion to gross negligence or recklessness, 752 F.2d at 828, is obviously dicta because Davidson involved no more than mere negligence. See note 4 infra. . The district court's charge requiring intentional conduct, which was affirmed in Campbell, reads as follows: In order for plaintiff to prevail it must be shown that defendants actually intended to deprive him of reasonable protection, or that defendants acted with deliberate indifference to plaintiffs legitimate need for protection. When I use the phrase \"deliberate indifference\" I mean conduct which intentionally or deliberately or recklessly ignores any person's constitutional rights. Deliberate indifference is established only if there is actual knowledge of impending harm rather than a mere suspicion that plaintiffs would be assaulted and [if] the defendants consciously and culpably refused to take steps to prevent this assault. Mere negligence or inadvertence does not constitute deliberate indifference. (Emphasis added) Campbell v. Greer, 831 F.2d 700, 702 (7th Cir.1987). . The Partridge allegations, if" } ]
[ { "docid": "10980625", "title": "", "text": "in Stewart v. Love, 696 F.2d 43 (6th Cir.1982), to simply one of deliberate indifference. We agree with the district court that while “the standard of liability may have become narrower, [that fact] does not preclude a finding that defendants were on notice in 1985 that a higher degree of culpability, namely, deliberate indifference, was actionable.” However, Marsh may not rely solely on the fact that Stewart and other pre-1986 circuit decisions established “deliberate indifference” as the standard of liability for proof that there was a clearly established eighth amendment right which was violated. As Judge Graham recognized, “deliberate indifference” is not easily defined: In preparing jury instructions in this case, this Court had some difficulty explaining the concept of deliberate indifference. Part of the difficulty lies in the fact that there is a degree of inherent conflict between the two words chosen to express the standard. Deliberate refers to action ‘characterized by or resulting from slow, careful, thorough calculation and consideration of effects and consequences.’ Webster’s Third New International Dictionary 596 (3d ed. 1981). Indifferent, on the other hand, means to be ‘marked by a total or nearly total lack of interest in or concern about something.’ Its synonyms include ‘unconcerned, aloof, detached, uninterested.’ [Id. at 1151]. Using these two words together is in nearly the same category as mixing the concepts of willfulness and lack of due care, such as would occur if one were to coin the phrase ‘intentionally negligent.’ See also Howell v. Evans, 922 F.2d 712 (11th Cir.1991) (distinction between deliberate indifference and negligence is conceptually vague because ‘indifference’ generally implies a lack of attention by the actor similar to what is referred to as negligence, whereas ‘deliberate’ requires that the actor recklessly ignore the situation despite information a reasonable person would know requires action); Redmond, 475 F.Supp. at 1117 (“The difficulty arises in formulating a concrete definition of the cryptic phrase, ‘deliberate indifference.’ ”). We recognize that there is no definitive guide as to when a right is “clearly established.” Zweibon v. Mitchell, 720 F.2d 162, 168-69 (D.C.Cir.1983). “The right in question, however, cannot" }, { "docid": "18896995", "title": "", "text": "plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). Although the Supreme Court has not expressly recognized a prisoner’s right to be protected from self-inflicted harm, several circuit courts have extended the Eighth Amendment analysis of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), to prisoner suicide cases. Under Estelle, a prisoner’s Eighth Amendment rights are violated if his custodians exhibit deliberate indifference to his serious medical needs. Id. at 106, 97 S.Ct. at 292. Medical needs encompass treatment for mental ills as well as aid for the prisoner’s physical maladies. “A psychological or psychiatric condition can be as serious as any physical pathology or injury, especially when it results in suicidal tendencies.” Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.1986); see also Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.1991) (“the eighth amendment also protects against deliberate indifference to an inmate’s serious mental health and safety needs”). However, a complaint that a jailer was negligent in failing to recognize an inmate’s suicidal tendencies does not rise to a valid claim of mistreatment under the Eighth Amendment. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106, 97 S.Ct. at 292. Because inmate suicides are analyzed as the jailer’s failure to provide appropriate medical care, “deliberate indifference has become the barometer” by which these claims are tested. Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990). “The deliberate standard is met only if there were a ‘strong likelihood, rather than a mere possibility,’ that self-infliction of harm would result.” Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir.1989) (citing State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983)). Recently, our own circuit identified deliberate indifference as the governing standard in section 1983 jail suicide cases. Rellergert ex rel. Rellergert v. Cape Girardeau County, Mo.," }, { "docid": "23165176", "title": "", "text": "can qualify. Wilson, — U.S. at -, 111 S.Ct. at 2325 (emphasis in original). The Court articulated that the requisite state of mind for an Eighth Amendment violation concerning a prisoner’s conditions of confinement or protection afforded him against other inmates, is deliberate indifference. Wilson, — U.S. at -, 111 S.Ct. at 2326-27. See also Estelle, 429 U.S. at 103, 97 S.Ct. at 290; LaFaut v. Smith, 834 F.2d 389, 391 (4th Cir.1987). Since Wilson, there has been a split among circuit courts regarding the quantum of knowledge possessed by a prison official, necessary to satisfy the deliberate indifference requirement. In Colburn v. Upper Darby Township, 946 F.2d 1017 (3d Cir.1991) (“Colburn II”), we held that the Fourteenth Amendment imposes an obligation on government officials who know or should know of an inmate’s particular vulnerability to suicide, not to act with reckless indifference to that vulnerability. See also Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989); Freedman v. City of Allentown, 853 F.2d 1111 (3d Cir.1988). Consistent with our approach in Colburn II, the Ninth Circuit Court of Appeals has held that a prison official is deliberately indifferent for purposes of the Eighth Amendment when he “knows or should know” of the danger facing the inmate. See Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir.1991), quoting Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3d Cir.1988). On the other hand, the Seventh Circuit Court of Appeals has held, after Wilson, that liability should only be imposed on prison officials if they had “actual knowledge of impending harm,” and has rejected liability for prison officials who merely “should have known” of danger to an inmate. McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir.1991). Because we agree with Redman that it is appropriate to use the same standard under the Fourteenth and Eighth Amendments here, Redman, 942 F.2d at 1442, we hold that a prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate. We stress, however, that in constitutional context “should have" }, { "docid": "4978409", "title": "", "text": "aggravate the suggestiveness of the confrontation. Id. In this case, the perpetrator allegedly circled the parking lot in which Dick-enson and his companion were standing four times. The perpetrator was approximately 30 feet away. Dickenson Deposition, pp. 10-12. The culprit pointed a gun at Dickenson and his friend, gaining Dick-enson’s full attention. The description which Dickenson gave of the perpetrator quickly led the police to the decedent. Approximately one hour later at the police station, Dickenson positively identified the decedent as the culprit, and Dickenson had no doubt in his mind that the decedent was the perpetrator. Dickenson Deposition, p. 32. Throughout the identification procedure, Dickenson was under the impression that the police were trying not to prejudice the process. Dickenson Deposition, p. 38. The police warned Dickenson not to be hasty. Dickenson Deposition, p. 38. Considering all of these circumstances, the identification of the decedent was not unnecessarily suggestive and did not violate the decedent’s constitutional rights. As to the alleged deliberate indifference of the police officers, in Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3d Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989) (Colburn I), the Court of Appeals for the Third Circuit stated that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the [due process clause] imposes on them an obligation not to act with reckless indifference to that vulnerability.” A plaintiff in a prison suicide case has the burden of establishing three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer or officers knew or should have known of the vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. Colburn v. Upper Darby Township, 946 F.2d 1017, 1023 (3d Cir.1991) (Colburn II). All of these elements require a level of culpability higher than a negligent failure to protect the detainee from self-inflicted harm. Id., 946 F.2d at 1024. Plaintiff asserts that summary judgment should be granted in his favor because “[t]he deposition testimony clearly shows that Perciavalle was well known" }, { "docid": "22195556", "title": "", "text": "is that the City was deliberately indifferent because it did not supplement its existing policy in the face of a suicide frequency for intoxicated detainees of .00015. That is at best a tenuous argument that I am not prepared to accept. This Court in Colburn v. Upper Darby Township, (“Colburn II”), 946 F.2d 1017, 1024 (3d Cir.1991), observed that “several of our sister circuits have recently pointed out the requirement of ‘reckless or deliberate indifference’ implies that there must be ‘a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.’ ” See also Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991). The suicide frequency for intoxicated detainees of .00015 fails to establish that as a “class” these detainees presented such a “strong likelihood” of committing suicide that the City was indifferent in not taking additional precautions. Cf. Colburn II, at 1026 (the Court was unwilling on the record in that case to equate intoxication with a “particular vulnerability to suicide”); Belcher v. Oliver, 898 F.2d 32, 35 (4th Cir.1990). The majority’s position here is inconsistent with Colburn II The attempt to distinguish that case on minor points is unpersuasive because it fails to address the basic thrust of that opinion. Moreover, the fact remains that if the police had followed the department policy and placed the decedent in a cell with someone else, whether at the Sixth District Jail or some other location, the suicide likely would not have occurred. The plaintiffs experts opined that the City could have taken a variety of measures to provide for potentially suicidal intoxicated prisoners. The suggested measures included plexiglass screens in place of some cell bars, audio or video monitors, relocation of the turnkeys desk to an area within the cell block, or calling in police personnel from street duty to assist in constant observation when intoxicated prisoners could not be put in a cell with other persons. Opinions of this Court and other Courts of Appeals have held that expert evidence of this nature does not support a claim of deliberate indifference by a municipality. In Williams v." }, { "docid": "3119728", "title": "", "text": "97 L.Ed.2d 523 (1987) (“The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”). By 1986 it was clearly established that police officers violate the fourteenth amendment due process rights of a detainee if they display a “deliberate indifference” to the unusually strong risk that a detainee will commit suicide. Colburn v. Upper Darby Tp., 946 F.2d 1017, 1023 (3d Cir.1991); Elliott, 940 F.2d at 10 (citing Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir.1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990); Rellergert v. Cape Girardeau County, Mo., 924 F.2d 794, 796 (8th Cir.1991); Buffington v. Baltimore County, Md., 913 F.2d 113, 119 (4th Cir.1990); Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.1986). The “deliberate indifference” standard means more than simple negligence. Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.1991). We have held, for example, that a plaintiff may establish deliberate indifference in a prison suicide case by showing (1) an unusually serious risk of harm (self-inflicted harm, in a suicide case), (2) defendant’s actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendant’s failure to take obvious steps to address that known, serious risk. The risk,' the knowledge, and the failure to do the obvious, taken together, must show that the defendant is “deliberately indifferent” to the harm that follows. Manarite v. Springfield, 957 F.2d 953, 956 (1st Cir.1992). Appellants must therefore show that a reasonable officer in the position of Officer DiSabato should have known that his actions, or willful failure to act, amounted to “deliberate indifference” to the serious risk that Mr. Bowen would commit suicide. Appellant asserts that Officer DiSabato’s conduct in abandoning the lockup to pick up other detainees and in failing “to understand the signals given by one at high risk [of] suicide [was] blatantly unreasonable.” Appellant’s argument is wide off the mark. The issue is not whether Officer DiSabato’s conduct was reasonable or not; rather the qualified immunity inquiry turns on whether an objective" }, { "docid": "23163549", "title": "", "text": "and [that] the prisoner’s medical needs ... be serious.’ ” Colburn II, 946 F.2d at 1023 (quoting Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.1987)). The detainee’s condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury, or death. Moreover, the condition must be one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor’s attention. Colburn II, 946 F.2d at 1023 (citation and internal quotations omitted). A particular vulnerability to suicide represents a serious medical need. Colburn II, 946 F.2d at 1023. “The requirement of a ‘particular vulnerability to suicide’ speaks to the degree of risk inherent in the detainee’s condition.” Colburn II, 946 F.2d at 1024. “[TJhere must be a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.” Id. (citations omitted). However, “[e]ven where a strong likelihood of suicide exists, it must be shown that the custodial officials ‘knew or should have known’ of that strong likelihood.” Colburn II, 946 F.2d at 1024. “[I]t is not necessary that the custodian have a subjective appreciation of the detainee’s ‘particular vulnerability.’ ” Id. at 1024-25. “Nevertheless, there can be no reckless or deliberate indifference to that risk unless there is something more culpable on the part of the officials than a negligent failure to recognize the high risk of suicide.” Id. at 1025. Therefore, the “should have known” element does not refer to a failure to note a risk that would be perceived with the use of ordinary prudence. It connotes something more than a negligent failure to appreciate the risk of suicide presented by a particular detainee, though something less than subjective appreciation of that risk. The strong likelihood of suicide must be so obvious that a lay person would easily recognize the necessity for preventative action; the risk of self-inflicted injury must not only be great, but also sufficiently apparent that a lay custodian’s failure to appreciate it evidences an absence of" }, { "docid": "22993356", "title": "", "text": "detainee suicide cases. In the course of doing so, we recognized that neither the due process clause with its focus on “arbitrariness and abuse of power” nor the Eighth Amendment with its focus on the “unnecessary and wanton infliction of pain” imposes liability for a negligent failure to protect a detainee from self-inflicted injury. A higher level of culpability, one involving “reckless or deliberate indifference,” is required. We have so held on two occasions since Colburn I. See Williams v. Borough of West Chester, supra; Freedman v. Allentown, supra. In Colburn I, we referred to “reckless indifference” as the standard for judging the defendant’s conduct. 838 F.2d at 669. In Williams, we referred to “deliberate indifference.” 891 F.2d at 464. Both panels expressly declined to distinguish or precisely define these two concepts. We find it unnecessary to do so in this case. It will suffice for present purposes to note that a level of culpability higher than a negligent failure to protect from self-inflicted harm is required and that this requirement is relevant to an evaluation of the first two Colburn I elements as well as the third. The requirement of a “particular vulnerability to suicide” speaks to the degree of risk inherent in the detainee’s condition. As several of our sister circuits have recently pointed out, the requirement of “reckless or deliberate indifference” implies that there must be “a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.” See, e.g., Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991); Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990). Even where a strong likelihood of suicide exists, it must be shown that the custodial officials “knew or should have known” of that strong likelihood. As the latter portion of this phrase from Colburn I indicates, it is not necessary that the custodian have a subjective appreciation of the detainee’s “particular vulnerability.” Nevertheless, there can be no reckless or deliberate indifference to that risk unless there is something more culpable on the part of the officials than a negligent failure to recognize the high risk of" }, { "docid": "22195555", "title": "", "text": "according to Officer Pa-nati, the turnkey, was not markedly different than other intoxicated persons who had been committed previously. This case is quite unlike those where individual jailers had actual knowledge of, or had reason to suspect suicidal tendencies on the part of specific detainees. In those cases, the conduct of a defendant turnkey has been measured under the deliberate indifference standard for purposes of section 1983. It is important here to remember that in determining the liability of the City, the question is not whether Officer Panati was deliberately indifferent (the jury found he was not), but whether the Philadelphia policymakers had adopted or followed a policy of deliberate indifference. Plaintiff does not argue that the City’s policy failed to protect those prisoners it knew were suicidal, rather she urges on this Court a far broader and unprecedented basis of liability. She argues that based solely on the statistics of prior prisoner suicides, the City should have known not only that the decedent was suicidal but that its policies were inadequate. Essentially, her position is that the City was deliberately indifferent because it did not supplement its existing policy in the face of a suicide frequency for intoxicated detainees of .00015. That is at best a tenuous argument that I am not prepared to accept. This Court in Colburn v. Upper Darby Township, (“Colburn II”), 946 F.2d 1017, 1024 (3d Cir.1991), observed that “several of our sister circuits have recently pointed out the requirement of ‘reckless or deliberate indifference’ implies that there must be ‘a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.’ ” See also Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991). The suicide frequency for intoxicated detainees of .00015 fails to establish that as a “class” these detainees presented such a “strong likelihood” of committing suicide that the City was indifferent in not taking additional precautions. Cf. Colburn II, at 1026 (the Court was unwilling on the record in that case to equate intoxication with a “particular vulnerability to suicide”); Belcher v. Oliver, 898 F.2d 32, 35 (4th Cir.1990). The majority’s" }, { "docid": "22300412", "title": "", "text": "of Foley, 30 F.3d 1390, 1396 (11th Cir.1994) (quoting Tittle, 10 F.3d at 1539 n. 3). Nevertheless, “in regard to providing pretrial detainees with such basic necessities as ... medical care[,] the minimum standard allowed by the due process clause is the same as that allowed by the eighth amendment for convicted persons.” Id. (quoting Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.1985)). Thus, pretrial detainees like Tessier plainly have a Fourteenth Amendment due process right “to receive medical treatment for illness and injuries, which encompasses a right to psychiatric and mental health care, and a right to be protected from self-inflicted injuries, including suicide.” Id. (citations omitted); see also Cagle v. Sutherland, 334 F.3d 980, 985 (11th Cir.2003). “[I]n a prisoner suicide case, to prevail under section 1983 for violation of substantive rights, under ... the ... fourteenth amendment, the plaintiff must show that the jail official displayed ‘deliberate indifference’ to the prisoner’s taking of his own life.” Cagle, 334 F.3d at 986 (quoting Edwards v. Gilbert, 867 F.2d 1271, 1274-75 (11th Cir.1989)). “To establish a defendant’s deliberate indifference, the plaintiff has to show that the defendant had ‘(1) subjective knowledge of a risk of serious harm; [and] (2) disregarded] ... that risk; (3) by conduct that is more than mere negligence.’ ” Id. at 987 (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999)). Under this Circuit’s precedent, in a prison suicide case, deliberate indifference requires that the defendant deliberately disregard “a strong likelihood rather than a mere possibility that the self-infliction of harm will occur.” Id. at 986 (emphasis in original) (quoting Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990)). “[T]he mere opportunity for suicide, without more, is clearly insufficient to impose liability on those charged with the care of prisoners.” Id. (quoting Tittle, 10 F.3d at 1540). When, as here, the defendant is the county sheriff, the suit is effectively an action against the governmental entity he represents — in this case, Monroe County. McMillian v. Monroe County, 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1" }, { "docid": "23163548", "title": "", "text": "(3d Cir.1991) (“Col-burn II”), where we wrote that ' a plaintiff in a prison suicide case has the burden of establishing three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. Colburn II, 946 F.2d at 1023. In Colburn II, we explained that Colburn I rested.primarily upon the Supreme Court’s decision in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Estelle involved an Eighth Amendment claim arising from allegations of inadequate medical care. Colburn II, 946 F.2d at 1023. We noted in Colburn II that the Supreme Court held in Estelle, that “prison officials violate the Eighth Amendment’s proscription of cruel and unusual punishment when they exhibit ‘deliberate indifference to serious medical needs of prisoners.’ ” Colburn II, at 1023. (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). The Estelle standard “ ‘requires deliberate indifference on the part of prison officials and [that] the prisoner’s medical needs ... be serious.’ ” Colburn II, 946 F.2d at 1023 (quoting Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.1987)). The detainee’s condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury, or death. Moreover, the condition must be one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor’s attention. Colburn II, 946 F.2d at 1023 (citation and internal quotations omitted). A particular vulnerability to suicide represents a serious medical need. Colburn II, 946 F.2d at 1023. “The requirement of a ‘particular vulnerability to suicide’ speaks to the degree of risk inherent in the detainee’s condition.” Colburn II, 946 F.2d at 1024. “[TJhere must be a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.” Id. (citations omitted). However, “[e]ven where a strong likelihood of suicide exists, it must be shown that the custodial" }, { "docid": "23165177", "title": "", "text": "II, the Ninth Circuit Court of Appeals has held that a prison official is deliberately indifferent for purposes of the Eighth Amendment when he “knows or should know” of the danger facing the inmate. See Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir.1991), quoting Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3d Cir.1988). On the other hand, the Seventh Circuit Court of Appeals has held, after Wilson, that liability should only be imposed on prison officials if they had “actual knowledge of impending harm,” and has rejected liability for prison officials who merely “should have known” of danger to an inmate. McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir.1991). Because we agree with Redman that it is appropriate to use the same standard under the Fourteenth and Eighth Amendments here, Redman, 942 F.2d at 1442, we hold that a prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate. We stress, however, that in constitutional context “should have known” is a phrase of art with a meaning distinct from its usual meaning in the context of the law of torts. We have expressed that “should have known:” [D]oes not refer to a failure to note a risk that would be perceived with the use of ordinary prudence. It connotes something more than a negligent failure to appreciate the risk ..., though something less than subjective appreciation of that risk. The “strong likelihood” of [harm] must be “so obvious that a lay person would easily recognize the necessity for” preventative action, Monmouth] C[ounty] C[orrectional] I[nst. Inmates v. Lanzaro], 834 F.2d [326,] 347 (3d Cir.1987) ]; the risk of ... injury must be not only great, but also sufficiently apparent that a lay custodian’s failure to appreciate it evidences an absence of any concern for the welfare of his or her charges. Colburn II, 946 F.2d at 1025 (emphasis added). Therefore, in order for Young to withstand the government’s motion for summary judgment, he must have raised genuine issues of material fact that the alleged" }, { "docid": "12065131", "title": "", "text": "who might show a tendency to suicide. This court recently held that to prevail under section 1983 for a constitutional violation of substantive due process, that “deliberate indifference” to the prisoner’s taking of his own life must be displayed. Edwards v. Gilbert, 867 F.2d 1271, 1274-75 (11th Cir.1989). This is a difficult burden for a plaintiff to meet and becomes the key issue in this case. The deliberate indifference standard arose in the context of a medical case in which a prisoner claimed inadequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, (1976). Because jail suicides are analogous to the failure to provide medical care, deliberate indifference has become the barometer by which suicide eases involving convicted prisoners as well as pretrial detainees are tested. See Anderson v. City of Atlanta, 778 F.2d 678, 686-87 (11th Cir.1985) (pretrial detainee’s constitutional rights are denied by deliberate indifference to his serious medical needs just as deliberate indifference denies the rights of a convicted prisoner). The standard requires a strong likelihood rather than a mere possibility that the self-infliction of harm will occur, State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.1983), and will not be found to exist in the face of negligence only. Stewart v. Love, 696 F.2d 43, 44 (6th Cir.1982) (prison officials’ mere negligence is insufficient to give rise to culpability under the Eighth Amendment); Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989) (despite eight previous suicides, plaintiff showed mere negligence which does not establish a § 1983 claim). Boyd v. Harper, 702 F.Supp. 578 (E.D.Va.1988) (merely negligent conduct displayed by failure to respond to information that detainee was weeping in cell and by failure to basically “jail train” official in charge of classification interview). In the context of jail suicides, an allegation of deliberate indifference must be considered in light of the level of knowledge possessed by the officials involved, or that which should have been known as to an inmate’s suicidal tendencies. See," }, { "docid": "22993357", "title": "", "text": "evaluation of the first two Colburn I elements as well as the third. The requirement of a “particular vulnerability to suicide” speaks to the degree of risk inherent in the detainee’s condition. As several of our sister circuits have recently pointed out, the requirement of “reckless or deliberate indifference” implies that there must be “a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.” See, e.g., Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991); Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990). Even where a strong likelihood of suicide exists, it must be shown that the custodial officials “knew or should have known” of that strong likelihood. As the latter portion of this phrase from Colburn I indicates, it is not necessary that the custodian have a subjective appreciation of the detainee’s “particular vulnerability.” Nevertheless, there can be no reckless or deliberate indifference to that risk unless there is something more culpable on the part of the officials than a negligent failure to recognize the high risk of suicide. Freedman v. City of Allentown, 853 F.2d 1111 (3d Cir.1988), illustrates the point. Jerry Freedman committed suicide while being detained in the Allentown Police Station. There was no allegation of “actual knowledge by the individual police officers of Freedman’s suicidal tendencies.” Id. at 1115. Rather, the plaintiffs relied on Colburn I and alleged that the defendants “should have known” that Freedman had a particular vulnerability to suicide. The plaintiffs based their theory on the “large prominent scars” that Freedman showed the defendants “on his wrists, inside of his elbows and neck.” Id. at 1116. The court was willing to assume “that a reasonably competent prison official should have known and identified these marks as ‘suicide hesitation cuts,’ as described by the forensic pathologist.” Id. Nevertheless, the court dismissed the plaintiffs’ claim because the allegations, if true, amounted only to negligence. “In the absence of any allegations suggesting more than mere negligence by the individual police officers in failing to recognize Freedman’s suicidal tendencies from the scars that were readily apparent, we conclude that plaintiffs" }, { "docid": "4361692", "title": "", "text": "for failure to properly monitor decedent’s jail cell failed absent some knowledge of a strong likelihood, rather than a mere possibility, that self-infliction would occur. Id. at 1563-64. Implicit in Popham is a holding that simple knowledge that the detainee fits the profile of a high suicide risk is not enough. It must be knowledge specific to that particular detainee. See Id. at 1564; see also Edwards v. Gilbert, 867 F.2d 1271, 1275-76 (11th Cir.1989). In Popham, the decedent was “emotional, depressed, and angry at the time of his arrest.” Popham, 908 F.2d at 1563. Decedent was left alone in a cell with a surveillance camera which could not monitor the entire cell. No one checked on him for six hours during which time he hung himself. The decedent’s emotional and depressed state was not enough to indicate a strong likelihood that self-inflicted harm would occur. Id. at 1564. See also Edwards, 867 F.2d 1271 (absent knowledge of strong likelihood that detainee would try to commit suicide, failure to take special precautions was not deliberately indifferent). Other circuits also require some specific knowledge of suicidal danger before liability under section 1983 can attach. See, e.g., Belcher v. Oliver, 898 F.2d 32 (4th Cir.1990); Estate of Cartwright v. City of Concord, 856 F.2d 1437 (9th Cir.1988); State Bank of St. Charles v. Camic, 712 F.2d 1140 (7th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983). Accordingly, we adopt the Eleventh Circuit’s holding in Popham that the proper inquiry concerning the liability of a City and its employees in both their official and individual capacities under section 1983 for a jail detainee’s suicide is: whether the decedent showed a strong likelihood that he would attempt to take his own life in such a manner that failure to take adequate precautions amounted to deliberate indifference to the decedent’s serious medical needs. See, e.g., Elliott v. Cheshire County, N.H., 940 F.2d 7 (1st Cir.1991) (Summary judgment in favor of corrections personnel in section 1983 action was improper where genuine issue of material fact existed as to whether corrections personnel" }, { "docid": "23163550", "title": "", "text": "officials ‘knew or should have known’ of that strong likelihood.” Colburn II, 946 F.2d at 1024. “[I]t is not necessary that the custodian have a subjective appreciation of the detainee’s ‘particular vulnerability.’ ” Id. at 1024-25. “Nevertheless, there can be no reckless or deliberate indifference to that risk unless there is something more culpable on the part of the officials than a negligent failure to recognize the high risk of suicide.” Id. at 1025. Therefore, the “should have known” element does not refer to a failure to note a risk that would be perceived with the use of ordinary prudence. It connotes something more than a negligent failure to appreciate the risk of suicide presented by a particular detainee, though something less than subjective appreciation of that risk. The strong likelihood of suicide must be so obvious that a lay person would easily recognize the necessity for preventative action; the risk of self-inflicted injury must not only be great, but also sufficiently apparent that a lay custodian’s failure to appreciate it evidences an absence of any concern for the welfare of his or her charges. Id. (citation and internal quotations omitted). “[Njeither the due process clause with its focus on arbitrariness and abuse of power, nor the Eighth Amendment with its focus on the unnecessary and wanton infliction of pain, imposes liability for a negligent failure to protect a detainee from self-inflicted injury.” 946 F.2d at 1024. We referred to that level of culpability as “reckless indifference” in Colburn I. 838 F.2d at 669. In Williams v. Borough of West Chester, 891 F.2d 458, 465 (3d Cir.1989), a case decided after Col-burn I but before Colburn II, we referred to the heightened culpability that is required as “deliberate indifference.” However, we did not elaborate upon those terms in either case. It was not necessary to elaborate upon either term in Col-burn II. Instead, we simply said that “a level of culpability higher than a negligent failure to protect from self-inflicted harm is required and ... this requirement is relevant to an evaluation of the first two Colburn I elements as" }, { "docid": "23163551", "title": "", "text": "any concern for the welfare of his or her charges. Id. (citation and internal quotations omitted). “[Njeither the due process clause with its focus on arbitrariness and abuse of power, nor the Eighth Amendment with its focus on the unnecessary and wanton infliction of pain, imposes liability for a negligent failure to protect a detainee from self-inflicted injury.” 946 F.2d at 1024. We referred to that level of culpability as “reckless indifference” in Colburn I. 838 F.2d at 669. In Williams v. Borough of West Chester, 891 F.2d 458, 465 (3d Cir.1989), a case decided after Col-burn I but before Colburn II, we referred to the heightened culpability that is required as “deliberate indifference.” However, we did not elaborate upon those terms in either case. It was not necessary to elaborate upon either term in Col-burn II. Instead, we simply said that “a level of culpability higher than a negligent failure to protect from self-inflicted harm is required and ... this requirement is relevant to an evaluation of the first two Colburn I elements as well as the third.” 946 F.2d at 1024. The phrase, “deliberate indifference” first appeared in Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct. 285. However, the Court did not define the term with precision. Rather, the Court explained that it was “a state of mind more blameworthy than negligence.” Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Court did more precisely define the phrase in Farmer v. Brennan. However, there, the Court was referring to the degree of culpability that would support liability under the Eighth Amendment. The Court explained: [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 511 U.S. at 837,114 S.Ct. 1970. In Beers-Capitol v. Whetzel, 256 F.3d 120" }, { "docid": "14362743", "title": "", "text": "of such condition shall be bound in any municipal jail or lockup. b. In the event such type prisoner is received, he shall be afforded protective custody and individualized supervision until such time as he is transferred to another facility. c. Such prisoner shall immediately be referred for appropriate professional study and diagnosis. . Case law from other Circuits confirms the correctness of this rule. Elliott v. Cheshire Co., 940 F.2d 7, 10-11 (1st Cir.1991) (\"The key to deliberate indifference in a prison suicide case is whether the defendants knew, or reasonably should have known, of the detainee’s suicidal tendencies”); Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3rd Cir.1988) (\"If such officials know or should know of the particular vulnerability to suicide of an inmate then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability”), certiorari denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808; Belcher v. Oliver, 898 F.2d 32, 34-35 (4th Cir.1990) (applying deliberate indifference standard to a pre-trial detainee’s suicide); Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir.1986) (noting that failure to take steps to prevent a suicidal detainee from harming himself may constitute a due process violation); Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir.1988) (affirming jury verdict finding defendants deliberately indifferent with regard to prisoner who had previously attempted suicide in his cell), vacated, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 reinstated, 886 F.2d 235, certiorari denied, 494 U.S. 1091, 110 S.Ct. 1838, 108 L.Ed.2d 966; Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990) (“deliberate indifference has become the barometer by which suicide cases involving convicted prisoners as well as pre-trial detainees are tested”). Danese v. Asman, 875 F.2d 1239 (6th Cir.1989), certiorari denied, 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 on which defendants rely is not to the contrary. There the police department had no prior notice of the plaintiffs suicidal tendencies. In addition, the conduct in question there took place in 1982, four years before the" }, { "docid": "18896996", "title": "", "text": "needs”). However, a complaint that a jailer was negligent in failing to recognize an inmate’s suicidal tendencies does not rise to a valid claim of mistreatment under the Eighth Amendment. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106, 97 S.Ct. at 292. Because inmate suicides are analyzed as the jailer’s failure to provide appropriate medical care, “deliberate indifference has become the barometer” by which these claims are tested. Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990). “The deliberate standard is met only if there were a ‘strong likelihood, rather than a mere possibility,’ that self-infliction of harm would result.” Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir.1989) (citing State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983)). Recently, our own circuit identified deliberate indifference as the governing standard in section 1983 jail suicide cases. Rellergert ex rel. Rellergert v. Cape Girardeau County, Mo., 924 F.2d 794, 796 (8th Cir.1991). Thus, as correctly stated by the District Court, “to prevail under section 1983 for a violation of substantive rights, under either the eighth or fourteenth amendments, plaintiffs must establish that defendant ] displayed ‘deliberate indifference’ to a strong likelihood, rather than a mere possibility that Sam Bell would attempt suicide.” 741 F.Supp. at 1358 (citing Edwards, 867 F.2d at 1274-76). Based on our review of the record, we conclude that the plaintiffs have not made a showing sufficient to establish that Stigers was deliberately indifferent to a strong likelihood that Sam Bell would attempt suicide. We are guided by the reasoning of Rellergert: Generally, the deliberate indifference issue in inmate suicide eases arises under one of two broad fact situations. First is a suicide or attempt that occurs when jailers fail to discover the decedent’s suicidal tendencies. Second is a suicide or attempt that occurs when jailers have discovered the tendencies and have taken preventative measures. The legal inquiry is the same in both sets of cases: whether the" }, { "docid": "12308751", "title": "", "text": "prisoner’s jailers if they are shown to have acted with “deliberate indifference to the risk of [the prisoner’s] suicide.” Rellergert v. Cape Girardeau County, 924 F.2d 794, 796 (8th Cir.1991). A defendant cannot be found liable under the “deliberate indifference” standard, however, unless that defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. “The deliberate standard is met only if there were a ‘strong likelihood, rather than a mere possibility,’ that self-infliction of harm would result.” Bell v. Stigers, 937 F.2d 1340, 1343 (8th Cir.1991) (quoting Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir.1989)). A showing that a jailer was negligent in failing to recognize a prisoner’s suicidal tendencies is insufficient to satisfy this standard. Bell, 937 F.2d at 1343. The district court denied the Appellants’ motion for summary judgment on the Ap-pellee’s conditions-of-confinement claim because it found that “there is some evidence that the defendants should have known of Lambert’s suicidal tendencies .... ” This conclusion, however, is irrelevant to the liability vel non of the Appellants because it applies an incorrect legal standard. To establish liability for a conditions-of-confinement claim under the Eighth Amendment, the Appellee must show that the officers had actual knowledge of a substantial risk of harm to Lambert and then disregarded that knowledge. A finding of negligence is insufficient, because “deliberate indifference” involves a subjective standard of culpability. See Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. Prior to the Supreme Court’s decision in Farmer, we had held that a plaintiff could show “deliberate indifference” in a conditions-of-confinement case by demonstrating that the defendant “knew or should have known” of a risk of harm to the plaintiff. See Jensen v. Clarke, 73 F.3d 808, 810-11 (8th Cir.1996) (explaining the change in Eighth Amendment jurisprudence brought about by Farmer). In Randle v. Parker, 48 F.3d 301 (8th Cir.1995), we made clear that the “knew or should have known” standard “is nothing more than a common-law tort standard, and has no place in Eighth Amendment jurisprudence.” Id. at 304. As we" } ]
307486
"AABC. See Nat'l Assoc. of Realtors, 894 F.2d at 939-40 (concluding that for diversity purposes, the inquiry into the relevant citizenship of an incorporated trade association depends upon whether the members or the association are the real parties in interest). . In at least one part of the record, there is a reference to an additional complaint filed against International prior to the complaints filed in early 1997. (See Def.'s Mem. in Opp'n at Ex. 4.). That complaint, lodged by Western in October 1996, accused International of failing to complete its work. Because neither party provides further elaboration on that complaint, the court will not deem it relevant for purposes of this discussion. . In REDACTED the Supreme Court affirmed the Second Circuit’s decision. International fails to cite the Supreme Court’s decision and instead limits its discussion to the Second Circuit’s opinion. . ""Illinois courts have endorsed the Bar Committee’s interpretation of the [Illinois Antitrust Act].” Sportmart, 1996 WL 296643, at * 17 (citing Ethan Allen, Inc., 204 Ill.Dec. 769, 642 N.E.2d at 474). . The Noerr-Pennington Doctrine is not at issue here. Roughly speaking, the doctrine defines the boundary between an industry's concerted governmental lobbying efforts, which are legal, and ""abuses of administrative or judicial processes that may result in antitrust violations."" Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500, 108 S.Ct. 1931, 100 L.Ed.2d 497"
[ { "docid": "22892845", "title": "", "text": "and the argument that efforts to influence the Code were immune under Noerr as indirect attempts to influence state and local governments. 817 F. 2d 938 (1987). We granted certiorari to address important issues regarding the application of Noerr immunity to private standard-setting associations. 484 U. S. 814 (1987). H — t HH Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability under the doctrine established by Noerr; Mine Workers v. Pennington, 381 U. S. 657, 669-672 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). The scope of this protection depends, however, on the source, context, and nature of the anticompetitive restraint at issue. “[W]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action,” those urging the governmental action enjoy absolute immunity from antitrust liability for the anti-competitive restraint. Noerr, 365 U. S., at 136; see also Pennington, supra, at 671. In addition, where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is “incidental” to a valid effort to influence governmental action. Noerr, supra, at 143. The validity of such efforts, and thus the applicability of Noerr immunity, varies with the context and nature of the activity. A publicity campaign directed at the general public, seeking legislation or executive action, enjoys antitrust immunity even when the campaign employs unethi cal and deceptive methods. Noerr, supra, at 140-141. But in less political arenas, unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations. California Motor Transport, supra, at 512-513. In this case, the restraint of trade on which liability was predicated was the Association’s exclusion of respondent’s product from the Code, and no damages were imposed for the incorporation of that Code by any government. The relevant context is thus the standard-setting process of a private association. Typically, private standard-setting associations, like the Association in this case, include members having horizontal and vertical business relations." } ]
[ { "docid": "17069742", "title": "", "text": "the Supreme Court held that they were still immune. This is because the Sherman Act is designed to control “business activity” and not “political activity.” Id. at 129, 81 S.Ct. 523. With this underpinning, the Court stated, “[Because] [t]he right of petition is one of the freedoms protected by the Bill of Rights, ... we cannot, of course, lightly impute to Congress an intent to invade these freedoms.” Noerr, 365 U.S. at 136, 81 S.Ct. 523. The antitrust laws were enacted to regulate private business and do not abrogate the right to petition. The scope of Noerr-Pennington immunity, however, depends on the “source, context, and nature of the competitive restraint at issue.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). If the restraint directly results from private action there is no immunity. See id. at 500, 108 S.Ct. 1931 (where the “restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action,” there is immunity). Passive government approval is insufficient. Private parties cannot immunize an anticompetitive agreement merely by subsequently requesting legislative approval. Under the Noerr-Pennington doctrine, private parties may be immunized against liability stemming from antitrust injuries flowing from valid petitioning. This includes two distinct types of actions. A petitioner may be immune from the antitrust injuries which result from the petitioning itself. See Noerr, 365 U.S. at 143, 81 S.Ct. 523 (finding trucking industry plaintiffs’ relationships with their customers and the public were hurt by the railroads’ petitioning activities, yet the railroads were immune from liability). Also, and particularly relevant here, parties are immune from liability arising from the antitrust injuries caused by government action which results from the petitioning. See Pennington, 381 U.S. at 671, 85 S.Ct. 1585 (holding plaintiffs could not recover damages resulting from the state’s actions); Mass. Sch. of Law at Andover, Inc. v. Am. Bar Assoc., 107 F.3d 1026, 1037 (3d Cir.1997) (holding Noerr gave immunity for any damages stemming from state adoption of requirements for bar admission to petitioners who lobbied for their adoption);" }, { "docid": "638169", "title": "", "text": "that impairs the opportunities of rivals and either does not further competition on the merits or does so in an unnecessarily restrictive way may be deemed anticompetitive. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 604-05 & n. 32, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). Conduct that merely harms competitors, however, while not harming the competitive process itself, is not anticompetitive. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993) (“It is axiomatic that the antitrust laws were passed for ‘the protection of competition, not competitors.’ ” (quoting Brown Shoe, 370 U.S. at 320, 82 S.Ct. 1502)); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (“The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.”). In activities that enjoy First Amendment protection, such as lobbying, firms may enjoy broad immunity from antitrust liability for concerted efforts to influence political action in restraint of trade, even when such efforts employ unethical or deceptive methods. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136-38, 144-45, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); Mine Workers v. Pennington, 381 U.S. 657, 669—72, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); see also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). “[I]n less political arenas,” however, such as here, “unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations.” Allied Tube, 486 U.S. at 500, 108 S.Ct. 1931. Private standards-determining organizations, in contrast to legislative or quasi-legislative bodies, have historically been subject to antitrust scrutiny. Id.; Am. Soc. of Mech. Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 571, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (“[A] standard-setting organization ... can be rife with opportunities for anticompetitive activity.”). The primary goal of antitrust law is to maximize consumer welfare by promoting competition among firms." }, { "docid": "148036", "title": "", "text": "The Court addresses each of these contentions in turn. a. Noerr-Pennington Immunity The Noerr-Pennington doctrine grants antitrust immunity to persons and organizations who, with the intent to restrain trade and diminish competition, act in concert to petition the government to adopt laws and implement policies that are anticompetitive in nature. See Allied, Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). Although it originally arose in the context of an individual’s right to entreat the legislature and the executive, see United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669-70, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), the doctrine has since been deemed to cover advocacy before all organs of government, including, most relevantly for the present inquiry, courts, see, e.g., California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Moreover, the Supreme Court has held that the Noerr-Pennington doctrine extends not only to “direct” petitioning but also to activities that are “ ‘incidental’ to a valid effort to influence governmental action.” Allied Tube, 486 U.S. at 499, 108 S.Ct. 1931 (quoting Noerr, 365 U.S. at 143, 81 S.Ct. 523). Ultimately, though, “[t]he scope of [Noerr-Pennington’s] protection depends ... on the source, context, and nature of the anticompetitive restraint at issue.” Id. Writing on behalf of all of the Defendants, AstraZeneca argues that because the New Jersey District Court entered consent judgments sanctioning settlement agreements struck between AstraZeneca and each of the three Generic Defendants, any anticompetitive harms that flow from such agreements are properly attributable to governmental — not private — action. See AstraZeneca’s Mem. 5-6. For support, AstraZeneca contends that the settlement agreements (1) imposed upon the Defendants only the obligation “to file an executed consent judgment in the [New Jersey District Court] within five business days of signing the agreement,” (2) “would become effective only when the consent judgment was entered as an order by the [New" }, { "docid": "14419331", "title": "", "text": "657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (extending Noerr-Pennington immunity to efforts to influence agency decisionmaking, stating that “joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition”). The Supreme Court has extended Noerr-Pennington immunity to a wide range of activities in addition to traditional lobbying, including publicity campaigns, sales and marketing efforts, and court litigation. See, e.g., Omni Outdoor, 499 U.S. at 373, 111 S.Ct. 1344 (granting Noerr-Pennington immunity to company’s effort to persuade city to adopt ordinance, even though ordinance would exclude company’s competitor); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (“Petitioner, and others ... can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression.”); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (extending Noerr-Pennington immunity to court litigation). There are few exceptions to the application of Noerr-Pennington immunity. The Noerr court warned that neither the subjective intent of the defendant nor the “unethical character of the conduct involved” is relevant to the application of immunity. See, e.g., Prof'l Real Estate Investors, 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); Pennington, 381 U.S. at 670 (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”); BusTop Shelters, Inc. v. Convenience & Safety Corp., 521 F.Supp. 989, 995 (S.D.N.Y.1981). Thus, Defendants are entitled to . Noerr-Pennington protection even if they pressured government officials, lied to the government about the merits of Doron’s simulator, or otherwise drew the public transit authorities into their scheme as “co-conspirators,” as long as their conduct was part of a good faith campaign aimed as securing government action. See, e.g., Omni Outdoor, 499 U.S. at 382-83, 111 S.Ct. 1344; Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 229-31 (7th Cir.1975); N.Y. Jets, 2005 WL 2649330, at *6; BusTop Shelters, 521 F.Supp. at 995-96. Similarly," }, { "docid": "148035", "title": "", "text": "Co., 448 U.S. 176, 215, 100 S.Ct. 2601, 65 L.Ed.2d 696 (1980) (echoing “the long-settled view that the essence of a patent grant is the right to exclude others from profiting by the patented invention”), these rights are not limitless, see, e.g., Standard Oil Co. (Ind.) v. United States, 283 U.S. 163, 169, 51 S.Ct. 421, 75 L.Ed. 926 (1931) (“The limited monopolies granted to patent owners do not exempt them from the prohibitions of the Sherman Act and supplementary legislation.”). Accordingly, this Court holds that the Direct Purchasers have pled facts sufficient at the motion-to-dismiss stage to establish violations of sections 1 and 2 of the Sherman Act under the rule of reason. 3. Exceptions to Antitrust Liability The Defendants contend that even if their actions are deemed anticompetitive, (1) all of the agreements between AstraZeneca and the Generic Defendants ought enjoy Noerr-Pennington immunity, see AstraZeneca’s Mem. 4-8; and (2) the relevant statute of limitations bars any Sherman Act claims arising out of the AstraZeneca/Ranbaxy agreement, Ranbaxy’s Mem. 5-6; see also AstraZeneca’s Mem. 17-20. The Court addresses each of these contentions in turn. a. Noerr-Pennington Immunity The Noerr-Pennington doctrine grants antitrust immunity to persons and organizations who, with the intent to restrain trade and diminish competition, act in concert to petition the government to adopt laws and implement policies that are anticompetitive in nature. See Allied, Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). Although it originally arose in the context of an individual’s right to entreat the legislature and the executive, see United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669-70, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), the doctrine has since been deemed to cover advocacy before all organs of government, including, most relevantly for the present inquiry, courts, see, e.g., California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Moreover, the Supreme Court has" }, { "docid": "14419330", "title": "", "text": "to develop a bus-driving simulator. Given the language of the NYCTA enabling statute, this action was clearly foreseeable to, and therefore clearly authorized by, the New York legislature. Accordingly, the Court finds that NYCTA’s decision to enter into the February 1999 Contract with FAAC falls squarely within the purview of the Parker doctrine, rendering NYCTA immune from antitrust liability arising from this conduct. B. Noerr-Pennington Immunity Defendants’ conduct in marketing the FAAC bus-driving simulator to other potential customers is also immunized from federal antitrust liability by the Noerr-Pennington doctrine. The NoerrPennington doctrine, which is grounded in the Petition Clause of the First Amendment, protects the right of private entities to petition government by shielding such lobbying activities from liability under the antitrust laws. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (immunizing from antitrust liability lobbying efforts by 24 railroads and an association of railroad presidents to obtain legislative and executive action unfavorable to competing trucking firms); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (extending Noerr-Pennington immunity to efforts to influence agency decisionmaking, stating that “joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition”). The Supreme Court has extended Noerr-Pennington immunity to a wide range of activities in addition to traditional lobbying, including publicity campaigns, sales and marketing efforts, and court litigation. See, e.g., Omni Outdoor, 499 U.S. at 373, 111 S.Ct. 1344 (granting Noerr-Pennington immunity to company’s effort to persuade city to adopt ordinance, even though ordinance would exclude company’s competitor); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (“Petitioner, and others ... can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression.”); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (extending Noerr-Pennington immunity to court litigation). There are few exceptions to the application" }, { "docid": "1914299", "title": "", "text": "Noerr-Pennington immunity doctrine; and (2) HMRI’s initiation and continued prosecution of the HMRI/ Andrx patent infringement litigation was a valid effort to influence government action; i.e., it was not sham litigation. If the Court disagrees with HMRI’s initial legal argument and finds that the HMRI/Andrx Agreement is separate and distinct activity that cannot be considered an incidental effect of the HMRI/Andrx patent litigation, there is no need to address the factual premise of Defendant’s argument; i.e., that Plaintiffs have failed to alleged facts showing that HMRI’s filing and continued prosecution of the HMRI/Andrx patent case was a sham. Accordingly, this Court addresses the legal argument first. a. Noerr-Pennington Doctrine The Noerr-Pennington doctrine immunizes defendants from antitrust liability for anticompetitive harm that results from government-petitioning activity, including litigation. “Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability”. Allied, Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). “The doctrine stands for the proposition that the exercise of First Amendment rights in seeking governmental action—including litigation—cannot form the basis of antitrust liability, even if the action injures a competitor.” TRW Financial Systems, Inc. v. Unisys Corp., 835 F.Supp. 994, 1011, n. 25 (E.D.Mich.1993). The doctrine has developed from a trio of Supreme Court decisions. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). “In Noerr and Pennington, the Court held that ‘the Sherman Act does not prohibit ... persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly.’ ” Noerr, 365 U.S. at 136, 81 S.Ct. at 529; Pennington, 381 U.S. at 669, 85 S.Ct. at 1592. “In California Motor Transport, the Court extended Noerr to protect from antitrust" }, { "docid": "8179331", "title": "", "text": "85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). “The doctrine is an ‘expression[ ] of the principle that the antitrust laws regulate business, not politics,’ and is designed to protect ‘citizens’ participation in government.’ ” City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 383, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). Thus, “ ‘[w]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action,’ those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (quoting Noerr, 365 U.S. at 136, 81 S.Ct. 523). However, private actors remain liable for anticompetitive activity not associated with government petitioning or antitrust violations that they directly cause. Id. at 501, 108 S.Ct. 1931. “The dividing line between restraints resulting from governmental action and those resulting from private action may not always be obvious.” Id. at 501-02, 108 S.Ct. 1931. “The Supreme Court has interpreted ‘petitioning’ to encompass activities other than legislative lobbying. For example, Noerr-Pennington immunity protects private actors when they file court documents and enter contracts with the government.” Sanders v. Brown, 504 F.3d 903, 912 (9th Cir.2007) (citing Calif. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), and Greenwood Utils. Comm’n v. Miss. Power Co., 751 F.2d 1484, 1505 (5th Cir.1985)). Petitioning also includes the acts of “negotiating and entering into settlements or other agreements with the government.” Sanders, 504 F.3d at 912 (citing Campbell v. City of Chicago, 823 F.2d 1182, 1186-87 (7th Cir.1987)). Some courts have held that a competitor’s conduct of boycotting constitutes protected petitioning intended to induce government action, so long as the boycotting is not for the purposes of contracting for higher prices and does not amount to direct marketplace injury. See Armstrong Surgical Ctr., Inc. v. Armstrong Cnty. Mem’l Hosp., 185 F.3d 154," }, { "docid": "2304685", "title": "", "text": "both “actual or threatened infringement suits” the same for purposes of Noerr-Pennington immunity, 174 F.3d at 1344, we reject it, as well as the other three cases, to the extent they imply that the mere threat of suit between private parties constitutes a petition to the government. The Supreme Court’s decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) also lends support to our conclusion. That case involved the National Fire Protection Association (NFPA), a private, voluntary organization which publishes the National Electrical Code. “Revised every three years, the Code is the most influential electrical code in the nation. A substantial number of state and local governments routinely adopt the Code into law with little or no change.” 486 U.S. at 495, 108 S.Ct. 1931. Changes in the Code could be approved by a simple majority vote of the members present at the NFPA’s annual meeting. Respondent proposed amending the Code to include polyvinyl chloride conduit as an approved type of electrical conduit. Petitioner, the Nation’s largest producer of steel conduit, feared that such approval would harm its business. It recruited over 150 people to attend the NFPA meeting and vote against the new proposal. Polyvinyl chloride conduit was rejected by a mere four votes, and respondent brought suit alleging violation of the Sherman Act. Petitioner argued that it was immune from suit under Noerr-Pennington. The Court disagreed. “In this case, the restraint of trade on which liability was predicated was the Association’s exclusion of respondent’s product from the Code, and no damages were imposed for the incorporation of that Code by any government.” Allied Tube, 486 U.S. at 500, 108 S.Ct. 1931. Here petitioner’s actions took place within the context of the standard-setting process of a private association. Having concluded that the Association is not a “quasi-legislative” body, we reject petitioner’s argument that any efforts to influence the Association must be treated as efforts to influence a “quasi-legislature” and given the same wide berth accorded legislative lobbying. Id. at 504, 108 S.Ct. 1931. The Court specifically noted" }, { "docid": "9616855", "title": "", "text": "colorable claims within the jurisdiction of the particular tribunal. Where administrative or judicial processes are invoked for the purpose of causing collateral effects such as delaying entry by competitors, see California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), or where those processes are invoked by means that violate ethical standards applicable to adjudicative tribunals, see Landmarks Holding Corp. v. Bermant, 664 F.2d 891 (2d Cir.1981), the Noerr-Pennington immunity is not available. Central to the agreement between the Developers and the City was the Developers’ desire for the City’s support in the Act 250 proceedings regarding their application. The City’s views were important to the Commission, and it was formally a party to the FZA Act 250 proceedings. Whether gaining support from the City was essential or merely helpful, seeking it was within the realm of conduct protected by the First Amendment and thus immunized by the Noerr-Pennington doctrine. We believe, therefore, that the activities of the Developers and the City in negotiating their agreement are immunized from antitrust liability. The Supreme Court’s decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), in which it distinguished “anticompetitive political activity that is immunized despite its commercial impact from anticompetitive commercial activity that is unprotected despite its political impact,” id. at 507-08 n. 10, 108 S.Ct. at 1941 n. 10, does not preclude application of the Noerr-Pennington doctrine in the instant matter. In Allied Tube, members of the steel industry packed an annual meeting of the National Fire Protection Association with new members solely to vote against a new type of electrical conduit that posed an economic threat to steel conduit. See id. at 495-97, 108 S.Ct. at 1937. The Supreme Court, in holding that this action was not immune under Noerr-Pennington, stated that “this is itself a case close to the line” between anti-competitive political activity and anticom-petitive commercial activity, and it cautioned that its decision “depends on the context and nature of the activity.” See id. at 508 n. 10," }, { "docid": "193046", "title": "", "text": "Pennington, 381 U.S. at 671, 85 S.Ct. 1585, 14 L.Ed.2d 626 (holding plaintiffs could not recover damages resulting from the state’s actions) .... Therefore, if its conduct constitutes valid petitioning, the petitioner is immune from antitrust liability whether or not the injuries are caused by the act of petitioning or are caused by government action which results from the petitioning. Bedell, 263 F.3d at 251. Defendants assert that Santana’s claims are premised upon decisions made by governmental actors, and are therefore barred by Noerr/Pennington. “[T]he right to petition extends to all departments of the Government.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Protected “petitioning” activity runs the gamut of efforts to persuade governmental actors, extending well be yond “filing formal grievances directly with the government.” Bedell, 263 F.3d at 252. It encompasses not only direct lobbying of legislative and executive officials, but also publicity campaigns and other marketing efforts. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988)(“Petitioner, and others concerned about the safety or competitive threat of polyvinyl chloride conduit, can, with full antitrust immunity, engage in concerted efforts to influence [state and local] governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression.”). In this case, the conduct challenged by Santana consisted of a multi-faceted advertising campaign that sought to address the “competitive threat” of HPDE toilet partitions by representing that the partitions were subject to flammability requirements for wall finish, as opposed to those applicable to furniture and fixtures, and by disseminating information concerning the flammability of HPDE compartments. Such a campaign, to the extent it targeted governmental decisionmakers, falls within the broad ambit of Noerr/Pennington. Id. Santana, however, contends that the nature and context of the defendants’ activities remove this case from the Noerr/Pen-nington doctrine. Santana alternatively asserts that this case falls within several purported exceptions to Noerr/Pennington immunity. 1. Defendants’ Activities Are Within the Ambit of Noerr/Pennington Immunity Observing that the scope of immunity nonetheless “depends on the source," }, { "docid": "9616856", "title": "", "text": "from antitrust liability. The Supreme Court’s decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), in which it distinguished “anticompetitive political activity that is immunized despite its commercial impact from anticompetitive commercial activity that is unprotected despite its political impact,” id. at 507-08 n. 10, 108 S.Ct. at 1941 n. 10, does not preclude application of the Noerr-Pennington doctrine in the instant matter. In Allied Tube, members of the steel industry packed an annual meeting of the National Fire Protection Association with new members solely to vote against a new type of electrical conduit that posed an economic threat to steel conduit. See id. at 495-97, 108 S.Ct. at 1937. The Supreme Court, in holding that this action was not immune under Noerr-Pennington, stated that “this is itself a case close to the line” between anti-competitive political activity and anticom-petitive commercial activity, and it cautioned that its decision “depends on the context and nature of the activity.” See id. at 508 n. 10, 108 S.Ct. at 1941 n. 10. If the activity in Allied Tube, which involved influencing a private organization’s position on a potentially public issue, was close to the line, then the activities of the Developers and the City in this case, which involved the City’s direct support as a party to the Act 250 proceedings, falls on the side of the line protected by Noerr-Pennington immunity. The Supreme Court’s recent decision in Federal Trade Comm’n v. Superior Court Trial Lawyers Ass’n, — U.S. -, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990), also does not alter this conclusion. In Superior Court, the Court held that a boycott by trial lawyers in private practice who acted as court-appointed counsel for indigent defendants was not immune from antitrust liability. In doing so, the Court reviewed its decisions in Noerr and Allied Tube, distinguishing the former from Superior Court on the grounds that the restraint of trade effected by the boycott in Superior Court “was the means by which respondents sought to obtain favorable legislation.” Superior Court, 110 S.Ct." }, { "docid": "1914298", "title": "", "text": "Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir.1988). III. Analysis A. Immunity under the Noerr-Pen-nington Doctrine Issues: (1) Whether the HMRI/Andrx Agreement is “incidental to” a valid effort to influence governmental action and thus immune from antitrust liability under the Noerr-Pennington Doctrine; (2) Whether Plaintiffs have failed to allege facts showing that the HMRI/Andrx Patent Infringement Litigation was a Sham; and (3) Whether Hoechst’s communications with the FDA regarding the scope of the Right of Reference Granted to Biovail are protected under the Noerr-Pennington doctrine? 1. Noerr-Pennington Immunity for Conduct “Incidental To” Non-Sham Governmental Petitioning Defendant HMRI argues that, because the HMRI/Andrx Agreement is an “incidental effect” of non-sham patent infringement litigation; i.e., it is conduct reasonably attendant to litigation (a protected activity), it is immune from antitrust liability under the Noerr-Pennington doctrine. HMRI’s argument has two premises; the first presents a legal argument, and the second presents a factual one: (1) private agreements, like the HMRI/Andrx Agreement, can be considered “incidental effects” of litigation and thus fall within the protection of the Noerr-Pennington immunity doctrine; and (2) HMRI’s initiation and continued prosecution of the HMRI/ Andrx patent infringement litigation was a valid effort to influence government action; i.e., it was not sham litigation. If the Court disagrees with HMRI’s initial legal argument and finds that the HMRI/Andrx Agreement is separate and distinct activity that cannot be considered an incidental effect of the HMRI/Andrx patent litigation, there is no need to address the factual premise of Defendant’s argument; i.e., that Plaintiffs have failed to alleged facts showing that HMRI’s filing and continued prosecution of the HMRI/Andrx patent case was a sham. Accordingly, this Court addresses the legal argument first. a. Noerr-Pennington Doctrine The Noerr-Pennington doctrine immunizes defendants from antitrust liability for anticompetitive harm that results from government-petitioning activity, including litigation. “Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability”. Allied, Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). “The doctrine stands for the proposition that the exercise of First Amendment" }, { "docid": "16773144", "title": "", "text": "at 536 (citing Omni Resource Dev. Corp. v. Conoco, Inc., 739 F.2d 1412, 1414 (9th Cir.1984)). We conclude, that Kottle’s vague allegations of misrepresentation “are therefore insufficient to overcome Noerr-Pennington protection.” Id. AFFIRMED. . Because this is an appeal from a dismissal for failure to state a claim, we take Kottle’s factual allegations as true. Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). . Tl^record does not indicate whether Kottie exercised his right to appeal the Department's decision to an adjudicatoiy hearing. . Of course, since the Petition Clause mentions only the right \"to petition the Government for a redress of grievances,” U.S. Const, amend. I, cl. 6 (emphasis added), the Noerr-Pennington doctrine does not protect lobbying efforts directed at private organizations. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). Kottle reads into Allied Tube a distinction between \"political” and \"economic” lobbying activity, from which he argues that the Noerr-Pennington doctrine does not apply in this case because NWK's activities were designed only to promote NWK’s own economic gain. Such a distinction would render the doctrine a nullity since it is doubtful that an antitrust defendant exists that was not motivated by economic gain. We read Allied Tube more narrowly, as merely recognizing the public/private distinction recognized in the Petition Clause itself. . The present case is also analogous to Assigned Container Ship Claims, Inc. v. American President Lines, Ltd., 784 F.2d 1420 (9th Cir.1986), in which we extended Noerr-Pennington immunity to petitions before the Federal Maritime Administration concerning the need for additional American flag ocean carrier service. Id. at 1422. . The Supreme Court suggested as much in California Motor Transp. when it lumped together courts and certain administrative agencies, and referred to them collectively as “adjudicatory tribunals” for purposes of the sham exception. 404 U.S. at 512, 92 S.Ct. 609. As should be clear from our opinion, this circuit does not read California Motor Transp. to say that all administrative entities are equivalent to judicial ones for purposes of" }, { "docid": "7388262", "title": "", "text": "governmental action,” and therefore are entitled to Noerr-Pennington immunity. Noerr, 365 U.S. at 140, 81 S.Ct. 523. See also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (“a publicity campaign directed at the general public, seeking legislative or executive action, enjoys ... immunity even when the campaign employs unethical or deceptive methods.”) Accordingly, FEI cannot rely on these statements to support its claims. C. RICO FEI alleges violations under RICO sections 1962(c) and (d). “A violation of § 1962(c) ... consists of four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering.” Western Assocs. Ltd. P’ship v. Market Square Assocs., 235 F.3d 629, 633 (D.C.Cir.2001) (citations omitted). Section 1962(d) provides in part: “It shall be unlawful for any person to conspire to violate any of the provisions of Subsection [ ](c) of this section.” 18 U.S.C. § 1962(d). The defendants argue that the RICO claims are barred by the statute of limitations, that FEI has failed to allege adequately the existence of a pattern, an enterprise, that defendants conducted the enterprise, the existence of predicate acts, and that FEI has standing. In addition to the arguments made by all defendants, three defendants: HSUS, Jonathan Loworn and Kimberly Ockene have filed supplemental motions to dismiss. The Court will first address defendants’ global arguments, then will address arguments advanced with respect to individual defendants. 1. Statute of Limitations Statute of limitations is an affirmative defense which need not be asserted in a pre-answer motion. Fed.R.Civ.P. 8(c)(1). “A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint.” DePippo v. Chertoff, 453 F.Supp.2d 30, 33 (D.D.C.2006) (citing Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 578 (D.C.Cir.1998)). “Because statute of limitations issues often depend on contested questions of fact, however, the court should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.” Id. (citing Firestone" }, { "docid": "2304684", "title": "", "text": "of other circuits are to the contrary. See Glass Equip. Dev., Inc. v. Besten, Inc., 174 F.3d 1337 (Fed.Cir.1999); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552 (11th Cir.1992); CVD, Inc. v. Raytheon Co., 769 F.2d 842 (1st Cir.1985); Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358 (5th Cir.1983). These cases are distinguishable. First, CVD merely held that “the threat of unfounded trade secrets litigation in bad faith is sufficient to constitute a cause of action under the antitrust laws, provided that the other essential elements of a violation are proven.” 769 F.2d at 851. We do not agree with MLBPA that the First Circuit thereby implied that good faith threats are immunized by Noerr-Pennington. Second, and most importantly, all four cases arise in the antitrust context. As discussed earlier, both Coastal States and McGuire Oil grant immunity to prelitigation threats under a construction of the Sherman Act, not the right to petition. Neither Glass Equip. Dev. nor CVD even mention the right to petition. Although Glass Equip. Dev. does appear to treat both “actual or threatened infringement suits” the same for purposes of Noerr-Pennington immunity, 174 F.3d at 1344, we reject it, as well as the other three cases, to the extent they imply that the mere threat of suit between private parties constitutes a petition to the government. The Supreme Court’s decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) also lends support to our conclusion. That case involved the National Fire Protection Association (NFPA), a private, voluntary organization which publishes the National Electrical Code. “Revised every three years, the Code is the most influential electrical code in the nation. A substantial number of state and local governments routinely adopt the Code into law with little or no change.” 486 U.S. at 495, 108 S.Ct. 1931. Changes in the Code could be approved by a simple majority vote of the members present at the NFPA’s annual meeting. Respondent proposed amending the Code to include polyvinyl chloride conduit as an approved type of electrical conduit." }, { "docid": "17973506", "title": "", "text": "or solicit any other government agency or court. Rather, MID briefly argues that an alleged anti-competitive agreement between PG & E and DESTEC was not “incidental” to bringing a valid FERC petition because the agreement was solely the result of defendants’ private actions, and not the result of any valid governmental action. In doing so, it wrongly asserts that Noerr stands for the proposition that Noerr-Pen-nington immunity attaches only where a restraint or monopolization is the result of valid government action, as opposed to private action. See Noerr, 365 U.S. at 136, 81 S.Ct. 523; compare Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 503-06, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (citing Noerr, 365 U.S. at 143, 81 S.Ct. 523) (Noerr immunity extends to situations “where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis of antitrust liability if it is ‘incidental’ to a valid effort to influence governmental action”). Moreover, MID misconstrues its own complaint in asserting that its section 2 claim and resultant antitrust injury arises out of an alleged agreement between PG & E and DESTEC not to supply power to the Praxair substation. See FAC at ¶¶ 36-43 & 45-6. Finally, in an important concession, MID maintains that because the Noerr-Pennington doctrine does not apply it need not plead facts to establish that defendants’ conduct falls within the “sham exception” to the Noerr-Pennington doctrine. Cf. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (no Noerr immunity if petitioning activity is “mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor”); Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir.1991) (“the filing of a lawsuit is immune from the antitrust laws unless the suit is a sham”), aff'd, 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). Under the Noerr-Pennington doctrine, one who files a lawsuit or otherwise petitions the government for redress is generally immune from" }, { "docid": "10862454", "title": "", "text": "even when undertaken for anticompetitive purposes. Miracle Mile Associates v. City of Rochester, 617 F.2d 18, 20 (2d Cir.1980). Plaintiffs complaint only alleges that the pri vate sector defendants entered into an agreement with the City defendants that, at most, could be considered successful lobbying activity. While plaintiff uses the words “conspiracy,” “restraint of trade,” and “monopoly” in its complaint, no facts are presented other than the entering into of an agreement. No bad acts are alleged, and no fraud is alleged. “[A]ssuming arguendo that the agreement between the City and the Developers restricts competition, they are immune from liability under the antitrust laws.” Juster Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269 (2d Cir.1990). Furthermore, the “sham exception” to the Noerr-Pennington doctrine, which would overcome Noerr-Pennington immunity, does not apply to invalidate the actions of the private sector defendants in the case at bar. A ‘sham’ situation involves a defendant whose activities are ‘not genuinely aimed at procuring favorable government action’ at all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 n. 4, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), not one who “genuinely seeks to achieve his governmental result, but does so through improper means, id., at 508, n. 10, 108 S.Ct. 1931 (quoting Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F.2d 458, 465, n. 5 ([9th Cir.]1987)).” Columbia, 499 U.S. at 380, 111 S.Ct. 1344. In City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991), the Supreme Court held “that a ‘conspiracy’ exception to Noerr must be rejected.”’ Id. at 383, 111 S.Ct. 1344. \"While a jury had found that the defendant billboard company had conspired with the City of Columbia to keep the plaintiff, a rival, out of the city, the District Court granted defendants’ motions for judgment notwithstanding the verdict. The Court of Appeals reversed and reinstated the verdict. The Supreme Court reversed the Court of Appeals and explained: Insofar as the identification of an immunity-destroying “conspiracy” is concerned, Parker and Noerr generally present two faces of" }, { "docid": "19210137", "title": "", "text": "Cir.1987). The Supreme Court, however, vacated our decision and remanded it for further consideration in light of the then-recent decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 487 U.S. 1213, 108 S.Ct. 2862, 101 L.Ed.2d 899 (1988). We remanded the case to the district court. Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 852 F.2d 484 (9th Cir.1988). After a bench trial the district court ruled that Noerr immunity does not protect Joor from antitrust liability. The district court focused its analysis on whether Joor’s machinations in the Article 79 subcommittee constituted a “valid effort to influence government action.” Sessions, 786 F.Supp. at 1525. Engaging in the “intensely factual inquiry” mandated by the Supreme Court’s opinion in Allied Tube, the district court found that Robbins had knowingly made false statements to the subcommittee. It also found that Robbins had taken advantage of his affiliation with the subcommittee to promote the tank lining ban and prevent the proponents of tank lining from effectively presenting their side of the issue to the subcommittee. Concluding that Joor’s conduct could not be deemed a valid effort to petition lawmakers, the district court ruled that Joor was not shielded by Noerr immunity. Id. at 1526-27. The court found Joor liable for a violation of section 1 of the Sherman Act, 15 U.S.C. § 1, and for the California tort of intentional interference with prospective advantage. Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 786 F.Supp. 1518 (C.D.Cal.1991). It is the district court’s judgment against Joor that we review here. ISSUES ON APPEAL In this case we are called upon to decide whether a private party can be held liable, under federal antitrust laws and the California common law, for anticompetitive restraints resulting from valid governmental action. DISCUSSION I. The Antitrust Claim Joor contends that the district court erred in ruling that Joor is not shielded by Noerr-Pennington immunity from liability on the antitrust claim. Antitrust petitioning immunity has its roots in the Supreme Court’s" }, { "docid": "5248118", "title": "", "text": "It is because of their adoption by these two governmental bodies that plaintiffs are supposedly restrained from practicing law. As the Supreme Court held in Noerr, “Where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out.” 365 U.S. at 136, 81 S.Ct. at 529. It is immaterial that these rules were prompted by the defendant bar associations, because Noerr also decided that “the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive [here the judiciary acting in a legislative capacity] to take particular action with respect to the law that would produce a restraint or monopoly.” Id. It is immaterial too that the bar associations encouraged the adoption of these rules because Allied Tube & Conduit Corporation v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 1936, 100 L.Ed.2d 497 decided that “those urging the governmental action enjoy absolute immunity for the anticompetitive restraint.” The plaintiffs also challenge as anti-competitive certain ethical opinions promulgated by the defendant bar associations. However, this Court has held that “when a trade association provides information” (by giving its approval in that case, its disapproval in this case) “but does not constrain others to follow its recommendations, it does not violate the antitrust laws.” Schachar v. American Academy of Ophthalmology, Inc., 870 F.2d 397, 399 (7th Cir.1989) (citing Consolidated Metal Products, Inc. v. American Petroleum Institute, 846 F.2d 284 (5th Cir.1988)). This is so even where the organization at issue has a towering reputation. Id. Even if the Illinois State Bar Association had issued an opinion that it believed certain types of conduct to be violative of the Illinois Rules of Professional Conduct, that opinion could have no anticompetitive effect unless the Illinois State Supreme Court or the Northern District agreed with the ISBA’s assessment. It is Illinois’ and the Northern District’s promulgation and enforcement of the challenged ethics rules and not private parties’ interpretation of those rules that restrains competition." } ]
774474
place of their own choosing, outside of the confines of the Government’s regulatory scheme.” Pis.’ Mot. at 33-34. Neither argument, however, supports plaintiffs’ claim that the accommodation’s self-certification requirement violates the Free Speech Clause. 1. Requiring plaintiffs to file a self-certification form that ultimately results in the provision of contraceptive services coverage does not violate plaintiffs’ free speech rights. Plaintiffs point to the consequences of the self-certification form and argue that requiring them to file the form is compelled speech because it makes their speech the “trigger” for the provision of contraceptive services. Id. at 33. To support this consequence-based argument, they direct this Court’s attention to the Supreme Court’s decision in REDACTED See Pls.’ Opp. & Cross-Mot. at 37. Plaintiffs’ reliance on Bennett is misplaced. In Bennett, the Supreme Court addressed the constitutionality of an Arizona law that gave publicly financed political candidates matching funds for every dollar donated to, or spent on behalf of, a privately funded candidate. 131 S.Ct. at 2813. The Court concluded that “the matching funds provision ‘impose[d] an unprecedented penalty on any candidate who robustly exercise[d] [his] First Amendment right[s]’ ” by creating a situation where, simply by engaging in free speech, the privately funded candidate guaranteed that his or her opponent would receive a cash subsidy from the state of Arizona. Id. at 2818, quoting Davis v. FEC, 554 U.S. 724, 739, 128 S.Ct. 2759,
[ { "docid": "21738560", "title": "", "text": "to the original con tribution cap. Davis argued that this scheme “burden[ed] his exercise of his First Amendment right to make unlimited expenditures of his personal funds because” doing so had “the effect of enabling his opponent to raise more money and to use that money to finance speech that counteracted] and thus diminishe[d] the effectiveness of Davis’ own speech.” Id., at 736. In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that the provision did not impose an outright cap on a candidate’s personal expenditures. Id., at 738-739. We nonetheless concluded that the-. Amendment was unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.” Id., at 739. Any candidate who chose to spend more than $350,000 of his own money was forced to “shoulder a special and potentially significant burden” because that choice gave fundraising advantages to the candidate’s adversary. Ibid. We determined that this constituted an “unprecedented penalty” and “impose[d] a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech,” and concluded that the Government had failed to advance any compelling interest that would justify such a burden. Id., at 739-740. A 1 The logic of Davis largely controls our approach to this action. Much like the burden placed on speech in Davis, the matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].” Id., at 739. Under that provision, “the vigorous exercise of the right to use personal funds to finance campaign speech” leads to “advantages for opponents in the competitive context of electoral politics.” Ibid. Once a privately financed candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar spent by the privately financed candidate results in an award of almost one additional dollar to his opponent. That plainly forces the privately financed candidate to “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on behalf" } ]
[ { "docid": "9778837", "title": "", "text": "(2011), is misplaced. Arizona Free Enterprise Club concerned a state campaign finance law under which candidates for state office who accepted public funding could receive additional state funds in the event that privately financed candidates and independent expenditure groups exceeded spending limits. See id. at 2813. Under Arizona’s law, the volume of political expenditures by or in support of a privately financed candidate triggered funding to his or her opponent. See id. at 2818-19. Plaintiffs’ completion of the self-certification form has no similar triggering role, and there is no interest or effect here to level competing voices, which was a significant aspect of the constitutional infirmity of Arizona’s campaign finance law. See id. at 2825. Furthermore, contrary to Plaintiffs’ argument, nothing in Arizona Free Enterprise Club suggests that the prohibition on compelling a party to “help disseminate hostile views” the party opposes, id. at 2821 n., 8 (internal quotation marks omitted), applies to laws that require a party to engage in non-expressive behavior, such as the provision of health insurance. Second, Plaintiffs argue that completing the self-certification form requires them to express a particular view, namely, that they oppose providing their plan participants with coverage for contraceptive services, and that it deprives them of the freedom to speak on this issue on their own terms. The self-certification form and alternative notice are the methods through which Plaintiffs can opt out of the requirement to provide their employees with health insurance coverage for contraceptive services. The filing of the form, though it may include “elements of speech,” is “a far cry from the compelled speech” that the Supreme Court previously has found to be unconstitutional. FAIR, 547 U.S. at 61-62, 126 S.Ct. 1297 (citing W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and Wooley v. Maynard, 430 U.S. 705, 717, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977)). Just as the compelled speech that the law schools identified in FAIR was “plainly incidental to the Solomon Amendment’s regulation of conduct,” id. at 62, 126 S.Ct. 1297, any speech required by the self-certification" }, { "docid": "3461794", "title": "", "text": "financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations.” 424 U.S. at 57 n. 65, 96 S.Ct. 612; see Bennett, 131 S.Ct. at 2828. As in Buckley, “by forgoing public financing, ... [the candidates here] retain the unfettered right” to receive contributions within the limits from lobbyists, persons associated with lobbyists, and other individuals with business dealings with the City. Davis, 554 U.S. at 739-40, 128 S.Ct. 2759. The matching provision at issue here is clearly distinguishable. First, it applies to contribution limits, which the Supreme Court has recognized to be less onerous restrictions on speech than campaign expenditure limits. Second, while the matching provisions here may burden the candidates who choose to participate in the public financing scheme, the provision in Bennett substantially burdened nonparticipating candidates, effectively forcing them to put money in their opponent’s campaign coffers. Bennett, 131 S.Ct. at 2819. Third, unlike the provisions challenged in Bennett and Davis, New York City’s scheme does not impose different limits on different candidates. Bennett, 131 S.Ct. at 2828 (invalidating Arizona’s matching funds provision which “substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest”); Davis, 554 U.S. at 738, 128 S.Ct. 2759 (“We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other....”). Certain contributors—those with direct financial stakes in the elected candidate’s decisions—are treated differently, see infra Part III.D; but the way in which these contributors are treated differently is the same for all candidates. Additionally, the use of the broader definition of lobbyist for non-matching purposes does not render it overinclusive. Insofar as the provision reaches some contributors peripheral to the business dealings, such as a lobbyist’s secretary or spouse, it does so only to prevent circumvention and does not form “a substantial portion of the burden on speech.” Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 682, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (quoting Simon & Schuster, Inc. v. Members of" }, { "docid": "17456280", "title": "", "text": "Ind-Exp-O, and Board Form DR-3. Compl. ¶ 30. IRTL argues that these provisions impose “burdensome, PAC-style requirements [that] cannot be constitutionally imposed on groups simply for making independent expenditures.” Pl.’s Br. at 11 (citing Citizens United, 130 S.Ct. at 897-99). 1. Standard of review. According to IRTL, the challenged provisions are “PAC-style requirements” and “[l]aws that impose the kind of burdens imposed on PACs, e.g. registration and termination requirements, are ... subject to strict scrutiny.” Pl.’s Br. at 11 (citing Citizens United, 130 S.Ct. at 897-98;) Fed. Election Comm’n v. Mass. Citizens for Life, Inc. (“MCFL”), 479 U.S. 238, 262-63, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). However, neither of the cases cited by IRTL squarely support this legal proposition. In both Citizens United and MCFL, the Supreme Court considered the constitutionality of federal statutes that prohibited corporations and unions from using them general treasury funds to make certain independent expenditures. See Citizens United, 130 S.Ct. at 886; MCFL, 479 U.S. at 241, 107 S.Ct. 616. In this case, however, the challenged provisions do not ban any independent expenditures. See Iowa Code §§ 68A.402B(3), 68A.404(3), 68A.404(4); Iowa Admin. Code r. 351— 4.9(15); Form Ind-Exp-O; Form DR-3. They “impose no ceiling on campaign-related activities and do not prevent anyone from speaking.” See Citizens United, 130 S.Ct. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) and McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)) (internal quotation marks omitted). They do not substantially burden speech by “imposing] an unprecedented penalty on [those] who robustly exereise[ ] [their] First Amendment rights.” See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, — U.S. -, 131 S.Ct. 2806, 2818,180 L.Ed.2d 664 (2011) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 739, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008)) (applying strict scrutiny to a state matching-funds requirement that substantially burdened certain candidate-related speech). Therefore, although they “may burden the ability to speak,” they are only subject to exacting scrutiny — not strict scrutiny. See Citizens United, 130 S.Ct." }, { "docid": "21738574", "title": "", "text": "Petitioner AFEC’s Freedom Club PAC et al. 14-21 (AFEC Brief) (same); Brief for Petitioner McComish et al. 30-37 (same). The State contends that if the matching funds provision truly burdened the speech of privately financed candidates and independent expenditure groups, spending on behalf of privately financed candidates would cluster just below the triggering level, but no such phenomenon has been observed. Brief for State Respondents 39; Brief for Respondent Clean Elections Institute 18-19. That should come as no surprise. The hypothesis presupposes a privately funded candidate who would spend his own money just up to the matching funds threshold, when he could have simply taken matching funds in the first place. Furthermore, the Arizona law takes into account all manner of uncoordinated political activity in awarding matching funds. If a privately funded candidate wanted to hover just below the triggering level, he would have to make guesses about how much he will receive in the form of contributions and supportive independent expenditures. He might well guess wrong. In addition, some candidates may be willing to bear the burden of spending above the cap. That a candidate is willing to do so does not make the law any less burdensome. See Davis, 554 U. S., at 739 (that candidates may choose to make “personal expenditures to support their campaigns” despite the burdens imposed by the Millionaire’s Amendment does not change the fact that “they must shoulder a special and potentially significant burden if they make that choice”). If the State made privately funded candidates pay a $500 fine to run as such, the fact that candidates might choose to pay it does not make the fine any less burdensome. While there is evidence to support the contention of the candidates and independent expenditure groups that the matching funds provision burdens their speech, “it is never easy to prove a negative” — here, that candidates and groups did not speak or limited their speech because of the Arizona law. Elkins v. United States, 364 U. S. 206, 218 (1960). In any event, the burden imposed by the matching funds provision is evident" }, { "docid": "15202517", "title": "", "text": "candidate “intends to exceed the $1.8 million threshold and believes he will raise more than three times the funds his participating opponents can raise.” Id. at 948. Nonetheless, the court held that the significant “incentives for participation” did not “step over the line of unconstitutional coercion.” Id. at 949. Unlike the Kentucky system at issue in Gable, the matching funds provided by North Carolina are given in a one-to-one ratio and are subject to a cap equal to twice the initial trigger amount, which for a 2006 supreme court campaign was $216,650. The incentive to opt for this limited level of public funding (a maximum of $649,950 for a 2006 supreme court general election campaign) is far from unconstitutional coercion, especially in light of the fact that judicial campaigns in several other states have raised and spent multiple millions of dollars. See Br. Amici Curiae of Ten Organizations Concerned About the Influence of Money on Judicial Integrity, Impartiality, and Independence, at 5-9; see also Daggett, 205 F.3d at 466-472 (upholding public financing system as non-coercive); Vote Choice, 4 F.3d at 38-39 (same). B. The thrust of the plaintiffs’ First Amendment argument against the matching funds provision is that it “chill[s] and penalized] contributions and independent expenditures made on behalf of [nonparticipating] candidates.” Appellants’ Br. at 32. The plaintiffs argue that their political speech is chilled because spending in excess of the specified trigger results in public funds being disbursed to a participating candidate whom the plaintiffs do not support. Therefore, according to the plaintiffs, they choose to spend less money (and thus engage in less political speech) in order to prevent candidates they oppose from receiving public funds. There is some conflict in the circuits as to whether the provision of matching funds burdens or chills speech in a way that implicates the First Amendment. The Eighth Circuit struck down a matching funds provision, reasoning that the potential “self-censorship” created by the scheme “is no less a burden on speech ... than is direct government censorship.” Day v. Holahan, 34 F.3d 1356, 1360 (8th Cir.1994). The First Circuit, on the" }, { "docid": "21738559", "title": "", "text": "disclose their identities, Citizens United, supra, at 371. Although the speech of the candidates and independent expenditure groups that brought this suit is not directly capped by Arizona’s matching funds provision, those parties contend that their political speech is substantially burdened by the state law in the same way that speech was burdened by the law we recently found invalid in Davis v. Federal Election Comm’n, 554 U. S. 724 (2008). In Davis, we considered a First Amendment challenge to the so-called “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C. § 441a-1(a). Under that Amendment, if a candidate for the United States House of Representatives spent more than $350,000 of his personal funds, “a new, asymmetrical regulatory scheme [came] into play.” 554 U. S., at 729. The opponent of the candidate who exceeded that limit was permitted to collect individual contributions up to $6,900 per contributor — three times the normal contribution limit of $2,300. See ibid. The candidate who spent more than the personal funds limit remained subject to the original con tribution cap. Davis argued that this scheme “burden[ed] his exercise of his First Amendment right to make unlimited expenditures of his personal funds because” doing so had “the effect of enabling his opponent to raise more money and to use that money to finance speech that counteracted] and thus diminishe[d] the effectiveness of Davis’ own speech.” Id., at 736. In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that the provision did not impose an outright cap on a candidate’s personal expenditures. Id., at 738-739. We nonetheless concluded that the-. Amendment was unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.” Id., at 739. Any candidate who chose to spend more than $350,000 of his own money was forced to “shoulder a special and potentially significant burden” because that choice gave fundraising advantages to the candidate’s adversary. Ibid. We determined that this constituted an “unprecedented penalty” and “impose[d] a substantial burden on the exercise" }, { "docid": "15202519", "title": "", "text": "other hand, explicitly rejected the “logic of Day ” by holding that the provision of matching funds “does not create a burden” on the First Amendment rights of nonparticipating candidates or independent entities. Daggett, 205 F.3d at 464-65; see also Gable, 142 F.3d at 947-49 (Sixth Circuit upholding a matching funds scheme against a constitutional challenge without addressing the Day analysis). We conclude that the state’s provision of matching funds does not burden the First Amendment rights of nonparticipating candidates (like plaintiff Duke) or independent entities (like plaintiff NCRL-IEPAC) that seek to make expenditures on behalf of nonparticipating candidates. The plaintiffs remain free to raise and spend as much money, and engage in as much political speech, as they desire. They will not be jailed, fined, or censured if they exceed the trigger amounts. The only (arguably) adverse consequence that will occur is the distribution of matching funds to any candidates participating in the public financing system. But this does not impinge on the plaintiffs’ First Amendment rights. To the contrary, the distribution of these funds “furthers, not abridges, pertinent First Amendment values” by ensuring that the participating candidate will have an opportunity to engage in responsive speech. See Buckley, 424 U.S. at 92-93, 96 S.Ct. 612. In reaching this conclusion, we reject as unpersuasive the Eighth Circuit’s decision in Day, which concluded that a matching funds scheme created an impermissible chilling effect on speech. Day's key flaw is that it equates the potential for self-censorship created by a matching funds scheme with “direct government censorship.” See Day, 34 F.3d at 1360. Day attempts to support this flawed proposition with a citation to a Supreme Court case that addresses the danger of self-censorship that occurs when a licensing statute gives government officials unbridled discretion to permit or deny expressive activity. Id. (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757-58, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). The principle underlying the Lakewood case, however, has no application in the context of a matching funds provision. In Lakewood the Supreme Court was concerned that speakers would be" }, { "docid": "9778836", "title": "", "text": "(internal quotation marks omitted); see Knox v. Serv. Emps. Int’l Union, Local 1000, — U.S.-■, 132 S.Ct. 2277, 2282, 183 L.Ed.2d 281 (2012) (“The government may not ... compel the endorsement of ideas that it approves.”). Plaintiffs contend that the regulations impermissibly compel their speech in three ways. First, Plaintiffs claim that the regulations require them to authorize and facilitate health care coverage for counseling that encourages and promotes contraception, in violation of their right against compelled speech. Plaintiffs appear to contend that the regulations commandeer them to echo or facilitate the words of medical professionals who might communicate to insured women the availability and potential appropriateness of various contraceptive methods. But the regulations do not require Plaintiffs to communicate any procontraceptive-coverage message, nor to authorize or facilitate counseling in favor of contraception. See supra Section IV.A.2; Mich. Catholic Conf., 755 F.3d at 391. They leave Plaintiffs free to voice their opposition to contraception. Plaintiffs’ reliance on Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, — U.S. -, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011), is misplaced. Arizona Free Enterprise Club concerned a state campaign finance law under which candidates for state office who accepted public funding could receive additional state funds in the event that privately financed candidates and independent expenditure groups exceeded spending limits. See id. at 2813. Under Arizona’s law, the volume of political expenditures by or in support of a privately financed candidate triggered funding to his or her opponent. See id. at 2818-19. Plaintiffs’ completion of the self-certification form has no similar triggering role, and there is no interest or effect here to level competing voices, which was a significant aspect of the constitutional infirmity of Arizona’s campaign finance law. See id. at 2825. Furthermore, contrary to Plaintiffs’ argument, nothing in Arizona Free Enterprise Club suggests that the prohibition on compelling a party to “help disseminate hostile views” the party opposes, id. at 2821 n., 8 (internal quotation marks omitted), applies to laws that require a party to engage in non-expressive behavior, such as the provision of health insurance. Second, Plaintiffs argue that completing" }, { "docid": "17456281", "title": "", "text": "ban any independent expenditures. See Iowa Code §§ 68A.402B(3), 68A.404(3), 68A.404(4); Iowa Admin. Code r. 351— 4.9(15); Form Ind-Exp-O; Form DR-3. They “impose no ceiling on campaign-related activities and do not prevent anyone from speaking.” See Citizens United, 130 S.Ct. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) and McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)) (internal quotation marks omitted). They do not substantially burden speech by “imposing] an unprecedented penalty on [those] who robustly exereise[ ] [their] First Amendment rights.” See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, — U.S. -, 131 S.Ct. 2806, 2818,180 L.Ed.2d 664 (2011) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 739, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008)) (applying strict scrutiny to a state matching-funds requirement that substantially burdened certain candidate-related speech). Therefore, although they “may burden the ability to speak,” they are only subject to exacting scrutiny — not strict scrutiny. See Citizens United, 130 S.Ct. at 914; see also Minn. Citizens Concerned for Life, Inc. v. Swanson, 640 F.3d 304, 315 (8th Cir.2011) (“Unlike outright bans on corporate independent expenditures, which are ... subjected to strict scrutiny, courts generally view corporate disclosure laws as beneficial and subject such regulations to the less-rigorous exacting-scrutiny standard.”); Doe v. Reed, — U.S.-, 130 S.Ct. 2811, 2818, 177 L.Ed.2d 493 (2010) (applying exacting scrutiny where the challenged provision was “not a prohibition on speech ... ”). 2. Analysis of the challenged provisions. “[U]nder exacting scrutiny, the government must only show a substantial relation between the disclosure requirement and the government’s important in terest in providing information to the electorate.” Swanson, 640 F.3d at 315 (quoting Citizens United, 130 S.Ct. at 914 (internal quotation marks omitted)). The challenged provisions require certain persons who make independent expenditures to: (1) file Form Ind-Exp-O “within forty-eight hours of the making of an independent expenditure in excess of seven hundred fifty dollars in the aggregate, or within forty-eight hours of disseminating the communication to its intended audience, whichever is" }, { "docid": "21738562", "title": "", "text": "of his candidacy. Ibid. If the law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably, does so as well. The penalty imposed by Arizona’s matching funds provision is different in some respects from the penalty imposed by the law we struck down in Davis. But those differences make the Arizona law more constitutionally problematic, not less. See Green Party of Conn. v. Garfield, 616 F. 3d 213, 244-245 (CA2 2010). First, the penalty in Davis consisted of raising the contribution limits for one of the candidates. The candidate who benefited from the increased limits still had to go out and raise the funds. He may or may not have been able to do so. The other candidate, therefore, faced merely the possibility that his opponent would be able to raise additional funds, through contribution limits that remained subject to a cap. And still the Court held that this was an “unprecedented penalty,” a “special and potentially significant burden” that had to be justified by a compelling state interest — a rigorous First Amendment hurdle. 554 U. S., at 739-740. Here the benefit to the publicly financed candidate is the direct and automatic release of public money. That is a far heavier burden than in Davis. Second, depending on the specifics of the election at issue, the matching funds provision can create a multiplier effect. In the Arizona Fourth District House election previously discussed, see supra, at 731-732, if the spending cap were exceeded, each dollar spent by the privately funded candidate would result in an additional dollar of campaign funding to each of that candidate’s publicly financed opponents. In such a situation, the matching funds provision forces privately funded candidates to fight a political hydra of sorts. Each dollar they spend generates two adversarial dollars in response. Again, a markedly more significant burden than in Davis. Third, unlike the law at issue in Davis, all of this is to some extent out of the privately financed candidate’s hands. Even if that candidate opted to spend less than the initial public financing cap, any spending" }, { "docid": "3412869", "title": "", "text": "Court should apply strict scrutiny and conclude that Section 1019-B(3) violates the First Amendment because it: “eoerc[es] involuntary participation in public campaign financing by punishing and burdening those entities ... who intend to make independent expenditures over $100 supporting a traditionally funded candidate or opposing a publicly funded candidate;” and the burden imposed is “not narrowly tailored to serve an anticorruption interes[t] ... and unconstitutionally includes issue advocacy.” (Compl. ¶¶ 33-35; Mot. for PI at 14-15.) In Count II, Plaintiffs assert that the same independent reporting requirement is overbroad and thereby unconstitutionally burdens the rights of free speech and association in violation of the First Amendment. (Compl. ¶¶ 39-41.) In Count III, Plaintiffs challenge MCEA’s matching funds provision as violative of the First and Fourteenth Amendments. This provision allows for supplemental grants of public funding, also referred to as “rescue funds,” under certain circumstances. See 21-A M.R.S.A. § 1125(9). Plaintiffs mount a four-prong challenge arguing that the matching funds provision (1) “treats speech differently depending on whether it opposes or favors a publicly funded candidate;” (2) is driven by the improper governmental purpose of “attempting to equalize the relative financial resources of candidates;” (3) creates a chilling effect on candidates’ and contributors’ speech because of the “knowledge that making an expenditure that opposes a publicly funded candidate or supports a traditionally funded one will directly result in that publicly funded candidate receiving a dollar-for-dollar matching public subsidy;” and (4) is a “content-based regulation of speech opposing a funded candidate that is not narrowly drawn to serve a compelling interest.” (Compl. ¶¶ 44-47.) Finally, in Counts IV and VI, Plaintiffs claim that the $750.00 per-election contribution limit for gubernatorial candidates violates the First Amendment. Specifically, in Count TV, Plaintiffs argue that Maine’s contribution limits, 21-A M.R.S.A. § 1015, fail intermediate scrutiny because they are not “closely” drawn to the “sufficiently important interest” of “preventing corruption and the appearance of corruption.” (Compl. ¶¶ 50-52; Mot. for PI at 18.) And, in Count VI, Plaintiffs assert that the state law’s contribution limit is unconstitutionally low because it “burden[s] First Amendment interests in a" }, { "docid": "21738576", "title": "", "text": "and inherent in the choice that confronts privately financed candidates and independent expenditure groups. Cf. Davis, supra, at 738-740. Indeed even candidates who sign up for public funding recognize the burden matching funds impose on private speech, stating that they participate in the program because “matching funds ... discouraged opponents, special interest groups, and lobbyists from campaigning against” them. GAO, Campaign Finance Reform: Experiences of Two States That Offered Full Public Funding for Political Candidates 27 (GAO-10-390, 2010). As in Davis, we do not need empirical evidence to determine that the law at issue is burdensome. See 554 U. S., at 738-740 (requiring no evidence of a burden whatsoever). It is clear not only to us but to every other court to have considered the question after Davis that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries. See, e. g., Green Party of Conn., 616 F. 3d, at 242 (matching funds impose “a substantial burden on the exercise of First Amendment rights” (internal quotation marks omitted)); 611 F. 3d, at 524 (case below) (matching funds create “potential chilling effects” and “impose some First Amendment burden”); Scott v. Roberts, 612 F. 3d 1279, 1290 (CA11 2010) (“we think it is obvious that the [matching funds] subsidy imposes a burden on [privately financed] candidates”); id., at 1291 (“we know of no court that doubts that a [matching funds] subsidy like the one at issue here burdens” the speech of privately financed candidates); see also Day v. Holahan, 34 F. 3d 1356, 1360 (CA8 1994) (it is “clear” that matching funds provisions infringe on “protected speech because of the chilling effect” they have “on the political speech of the person or group making the [triggering] expenditure” (cited in Davis, supra, at 739)). The dissent’s disagreement is little more than disagreement with Davis. The State correctly asserts that the candidates and independent expenditure groups “do not. . . claim that a single lump sum payment to publicly funded candidates,” equivalent to the maximum amount of state financing that a candidate" }, { "docid": "21738570", "title": "", "text": "the newspaper’s own expression.” Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 10 (1986) (plurality opinion). Such a penalty, we concluded, could not survive First Amendment scrutiny. The Arizona law imposes a similar penalty: The State grants funds to publicly financed candidates as a direct result of the speech of privately financed candidates and independent expenditure groups. The argument that this sort of burden promotes free and robust discussion is no more persuasive here than it was in Tornillo, Arizona asserts that no “candidate or independent expenditure group is ‘obliged personally to express a message he disagrees with’ ” or “ ‘required by the government to subsidize a message he disagrees with.’” Brief for State Respondents 32 (quoting Johanns v. Livestock Marketing Assn., 544 U. S. 550, 557 (2005)). True enough. But that does not mean that the matching funds provision does not burden speech. The direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival. That cash subsidy, conferred in response to political speech, penalizes speech to a greater extent and more directly than the Millionaire’s Amendment in Davis. The fact that this may result in more speech by the other candidates is no more adequate a justification here than it was in Davis. See 554 U. S., at 741-742. In disagreeing with our conclusion, the dissent relies on cases in which we have upheld government subsidies against First Amendment challenge, and asserts that “[w]e have never, not once, understood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another.” Post, at 769. But none of those cases— not one — involved a subsidy given in direct response to the political speech of another, to allow the recipient to counter that speech. And nothing in the analysis we employed in those cases suggests that the challenged subsidies would have survived First Amendment scrutiny if they were triggered by someone else’s political speech. The State also argues, and the Court of Appeals concluded, that any burden" }, { "docid": "21738569", "title": "", "text": "19. Thus, even if the matching funds provision did result in more speech by publicly financed candidates and more speech in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates and independent expenditure groups. This sort of “beggar thy neighbor” approach to free speech — “restricting] the speech of some elements of our society in order to enhance the relative voice of others” — is “wholly foreign to the First Amendment.” Id., at 48-49. We have rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context. In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 244, 258 (1974), we held unconstitutional a Florida law that required any newspaper assailing a political candidate’s character to allow that candidate to print a reply. We have explained that while the statute in that case “purported to advance free discussion, ... its effect was to deter newspapers from speaking out in the first instance” because it “penalized the newspaper’s own expression.” Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 10 (1986) (plurality opinion). Such a penalty, we concluded, could not survive First Amendment scrutiny. The Arizona law imposes a similar penalty: The State grants funds to publicly financed candidates as a direct result of the speech of privately financed candidates and independent expenditure groups. The argument that this sort of burden promotes free and robust discussion is no more persuasive here than it was in Tornillo, Arizona asserts that no “candidate or independent expenditure group is ‘obliged personally to express a message he disagrees with’ ” or “ ‘required by the government to subsidize a message he disagrees with.’” Brief for State Respondents 32 (quoting Johanns v. Livestock Marketing Assn., 544 U. S. 550, 557 (2005)). True enough. But that does not mean that the matching funds provision does not burden speech. The direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival." }, { "docid": "21738650", "title": "", "text": "six pages’ worth) that the matching funds provision has not put a dent in privately funded candidates’ spending. Of course, only publicly funded candidates receive the subsidy. But that is because only those candidates have agreed to abide by stringent spending caps (which privately funded candidates can exceed by any amount). And Buckley specifically approved that exchange as consistent with the First Amendment. See 424 U. S., at 57, n. 65, 95. By contrast, Davis involved a scheme in which one candidate in a race received concrete fundraising advantages, in the form of asymmetrical contribution limits, just because his opponent had spent a certain amount of his own money. The majority also briefly relies on Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), but that case is still wider of the mark. There, we invalidated a law compelling newspapers (by threat of criminal sanction) to print a candidate’s rejoinder to critical commentary. That law, we explained, overrode the newspaper’s own editorial judgment and forced the paper both to pay for and to convey a message with which it disagreed. See id., at 256-258. An analogy might be if Arizona forced privately funded candidates to purchase their opponents’ posters, and then to display those posters in their own campaign offices. But that is very far from this case. The Arizona statute does not require petitioners to disseminate or fund any opposing speech; nor does it in any way associate petitioners with that speech. Notably, the Court found this conclusion obvious even though an across-the-board increase in contribution limits works to the comparative advantage of the non-self-financing candidate — that is, the candidate who actually depends on contributions. Such a system puts the self-financing candidate to a choice: Do I stop spending, or do I allow the higher contribution limits (which will help my opponent) to kick in? That strategic choice parallels the one that the Arizona statute forces. See supra, at 769. The legislative findings also echo what the Buckley Court found true of public financing — that it “encourage[s] citizen participation in the political process” and “promote[s]" }, { "docid": "3412879", "title": "", "text": "amount of money one can spend engaging in political speech, nor does it threaten censure or penalty for such expenditures.” Id. at 464 (relying on Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). Accordingly, the First Circuit “comfortably ... conclude[d] that the provision of matching funds based on independent expenditures does not create a burden on speakers’ First Amendment rights.” Id. In 2008, the United States Supreme Court decided Davis v. Federal Election Commission, 554 U.S. 724, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). The Davis case involved the so-called “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act, which provided that “when a candidate spends more than $350,000 in personal funds and creates what the statute apparently regards as a financial imbalance, that candidate’s opponent may qualify to receive both larger individual contributions than would otherwise be allowed and unlimited coordinated party expenditures.” Davis, 128 S.Ct. at 2770. The Dams Court held that the “scheme impermissibly burdens [the] First Amendment right to spend [one’s] own money for campaign speech,” because “it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right [by requiring] a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.” Id. at 2771. In Plaintiffs’ view, Davis calls into question the constitutionality of Maine’s publicly funded matching funds scheme and, thus, should cause this Court to reassess the continued vitality of Daggett. In so arguing, Plaintiffs rely heavily on two very recent decisions from the Second and Eleventh circuits that have invalidated state matching funds and independent expenditure provisions based largely on the Davis analysis. See Green Party of Conn. v. Garfield, 616 F.3d 213 (2d Cir.2010); Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010). Plaintiffs also argue that the re cent Supreme Court decision in Citizens United v. Federal Election Commission, — U.S. -, 130 S.Ct. 876, 909, 175 L.Ed.2d 753 (2010) establishes that “[independent expenditures, however, are not corrupting.” (Motion for PI at 16.). Despite these interesting developments in other circuits, the First Circuit’s" }, { "docid": "15202518", "title": "", "text": "Vote Choice, 4 F.3d at 38-39 (same). B. The thrust of the plaintiffs’ First Amendment argument against the matching funds provision is that it “chill[s] and penalized] contributions and independent expenditures made on behalf of [nonparticipating] candidates.” Appellants’ Br. at 32. The plaintiffs argue that their political speech is chilled because spending in excess of the specified trigger results in public funds being disbursed to a participating candidate whom the plaintiffs do not support. Therefore, according to the plaintiffs, they choose to spend less money (and thus engage in less political speech) in order to prevent candidates they oppose from receiving public funds. There is some conflict in the circuits as to whether the provision of matching funds burdens or chills speech in a way that implicates the First Amendment. The Eighth Circuit struck down a matching funds provision, reasoning that the potential “self-censorship” created by the scheme “is no less a burden on speech ... than is direct government censorship.” Day v. Holahan, 34 F.3d 1356, 1360 (8th Cir.1994). The First Circuit, on the other hand, explicitly rejected the “logic of Day ” by holding that the provision of matching funds “does not create a burden” on the First Amendment rights of nonparticipating candidates or independent entities. Daggett, 205 F.3d at 464-65; see also Gable, 142 F.3d at 947-49 (Sixth Circuit upholding a matching funds scheme against a constitutional challenge without addressing the Day analysis). We conclude that the state’s provision of matching funds does not burden the First Amendment rights of nonparticipating candidates (like plaintiff Duke) or independent entities (like plaintiff NCRL-IEPAC) that seek to make expenditures on behalf of nonparticipating candidates. The plaintiffs remain free to raise and spend as much money, and engage in as much political speech, as they desire. They will not be jailed, fined, or censured if they exceed the trigger amounts. The only (arguably) adverse consequence that will occur is the distribution of matching funds to any candidates participating in the public financing system. But this does not impinge on the plaintiffs’ First Amendment rights. To the contrary, the distribution of these" }, { "docid": "3461793", "title": "", "text": "limit and subject to the less stringent standard of review. For the reasons discussed, the non-matching provision is closely drawn to address a sufficiently important governmental interest. The public financing scheme generously matches eligible contributions of up to $175 using tax dollars at the rate of 6 to 1. The program encourages small, individual contributions, and is consistent with Randall’s interest in discouraging the entrenchment of incumbent candidates. See Randall, 548 U.S. at 248, 126 S.Ct. 2479; Crowell, supra, at 77 (noting the public financing scheme’s “purpose of encouraging grassroots fundraising and diminishing the influence of special interests”). When participation is voluntary and public money is used, stricter restrictions may be imposed, perhaps even restrictions that would normally be impermissible. See Davis, 554 U.S. at 739-40, 128 S.Ct. 2759. Candidates who choose not to participate, and their contributors, are not prevented from freely expressing their political speech and associations; the legislature has merely decided not to amplify their contributions with tax dollars. That decision is entirely permissible. Buckley held that Congress “may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations.” 424 U.S. at 57 n. 65, 96 S.Ct. 612; see Bennett, 131 S.Ct. at 2828. As in Buckley, “by forgoing public financing, ... [the candidates here] retain the unfettered right” to receive contributions within the limits from lobbyists, persons associated with lobbyists, and other individuals with business dealings with the City. Davis, 554 U.S. at 739-40, 128 S.Ct. 2759. The matching provision at issue here is clearly distinguishable. First, it applies to contribution limits, which the Supreme Court has recognized to be less onerous restrictions on speech than campaign expenditure limits. Second, while the matching provisions here may burden the candidates who choose to participate in the public financing scheme, the provision in Bennett substantially burdened nonparticipating candidates, effectively forcing them to put money in their opponent’s campaign coffers. Bennett, 131 S.Ct. at 2819. Third, unlike the provisions challenged in Bennett and Davis, New York City’s scheme does not impose different limits" }, { "docid": "13158865", "title": "", "text": "limits First Amendment rights as follows: When a privately funded candidate speaks out in the First Amendment marketplace, the State unconstitutionally enters the marketplace and offsets the privately funded candidate’s voice by providing money for the publicly funded opponent to raise his/her voice in response. That, the plaintiffs say, is not content-neutral, but results in the State unconstitutionally taking sides in the First Amendment marketplace. The plaintiffs’ argument proves too much. The Supreme Court has already upheld public funding subsidies of election candidates as furthering First Amendment values. Such programs are an “effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge discussion and participation in the electoral process, goals vital to a self-governing people.” Buckley, 424 U.S. at 92-93, 96 S.Ct. 612. They “further[], not abridge[ ], pertinent First Amendment values.” Id. at 93, 96 S.Ct. 612. As the Court noted, “[o]ur statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media, and preferential postal rates and antitrust exemptions for newspapers.” 424 U.S. at 93 n. 127, 96 S.Ct. 612 (citations omitted). The test for constitutionality of candidate public funding mechanisms in this Circuit and elsewhere is whether the decision for a candidate to participate in a public funding scheme remains essentially voluntary. See Vote Choice, 4 F.3d at 38; Rosenstiel, 101 F.3d at 1649-53; Gable, 142 F.3d at 948. There is nothing unfair, and no profound disparity, in Maine’s decision to make the public funding equivalent to that which a privately funded candidate may raise, see Gable, 142 F.3d at 949 (supporting a 2-for-1 match), particularly when the public funding has a modest cap. Consequently, I reject the plaintiffs’ contention that the matching fund provision infringes on the plaintiffs’ First Amendment rights. (2) Receipts vs. Spending The plaintiffs argue that it is unfair to tie the public funding match to amounts the privately funded candidates raise, rather than limit it to amounts they spend. They point out that not every dollar a candidate" }, { "docid": "21738555", "title": "", "text": "expenditure groups until that publicly financed candidate received a total of $64,437 in state funds (three times the initial allocation for a State House race). B Petitioners in this action, plaintiffs below, are five past and future candidates for Arizona state office — four members of the House of Representatives and the Arizona state treasurer — and two independent groups that spend money to support and oppose Arizona candidates. They filed suit chal lenging the constitutionality of the matching funds provision. The candidates and independent expenditure groups argued that the matching funds provision unconstitutionally penalized their speech and burdened their ability to fully exercise their First Amendment rights;' The District Court agreed that this provision “constitute[d] a substantial burden” on the speech of privately financed candidates because it “award[s] funds to a [privately financed] candidate’s opponent” based on the privately financed candidate’s speech. App. to Pet. for Cert, in No. 10-239, p. 69 (internal quotation marks omitted). That court further held that “no compelling interest [was] served by the” provision that might justify the burden imposed. Id., at 69, 71. The District Court entered a permanent injunction against the enforcement of the matching funds provision, but stayed implementation of that injunction to allow the State to file an appeal. Id., at 76-81. The Court of Appeals for the Ninth Circuit stayed the District Court’s injunction pending appeal. Id., at 84-85. After hearing the action on the merits, the Court of Appeals reversed the District Court. The Court of Appeals concluded that the matching funds provision “imposes only a minimal burden on First Amendment rights” because it “does not actually prevent anyone from speaking in the first place or cap campaign expenditures.” 611 F. 3d 510, 513, 525 (2010). In that court’s view, any burden imposed by the matching funds provision was justified because the provision “bears a substantial relation to the State’s important interest in reducing quid pro quo political corruption.” Id., at 513. We stayed the Court of Appeals’ decision, vacated the stay of the District Court’s injunction, see 560 U. S. 938 (2010), and later granted certiorari, 562" } ]
34671
rules does not provide an independent basis of liability, at least where suits by customers are involved. Architectural League of New York v. Bartos, 404 F.Supp. 304, 314 (S.D.N.Y.1975). A breach of NASD rules alone is simply a breach of a private association’s rules and does not present a question which arises under the laws of the United States. Lange v. H. Hentz Co., 418 F.Supp. 1376, 1380-81 (N.D. Tex.1976). While the Second Circuit has not addressed this jurisdictional issue, the Second Circuit has stated that a determination of whether a private right of action exists for violation of dealer association rules depends upon the nature of the particular rule and its place in the regulatory scheme. REDACTED cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966). The critical issue in considering plaintiff’s motion to remand, then, is whether a controversy with respect to the Exchange Act, as opposed to the NASD rules or by-laws, is essential to plaintiff’s causes of action and are disclosed upon the face of the complaint. While the court must ascertain from the complaint whether federal law is a pivotal issue in the case, the lack of any reference to federal law in the complaint is not controlling. North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir.1978). Thus, further inquiry must be made as to whether, regardless of artful pleading, in fact the
[ { "docid": "22096730", "title": "", "text": "to protect investors and the public interest, * '* Under the NYSE Constitution, Art. XIV, § 6, disciplinary measures may be taken against a member found- guilty “of conduct or proceeding inconsistent with just and equitable principles of trade”; the NASD By-Laws, Art. I, § 2(a), and Rules of Fair Practice, Art. III, § 1, prohibit membership by persons disciplined on this account and require members to “observe high standards of commercial hon- or and just and equitable principles of trade.” The complaint alleged simply that Bache’s dealings were not consistent with such principles without elaborating how, save insofar as this can be gleaned from the charges of breach of contract and of failure to use due care to protect its customer’s interests. Colonial relies largely on Baird v. Franklin, 141 F.2d 238 (2 Cir.), cert. denied, 323 U.S. 737, 65 S.Ct. 38, 89 L.Ed. 591 (1944), in which this court recognized that culpable failure by a stock exchange to enforce rules adopted pursuant to § 6(b) of the Securities Exchange Act may give rise to a federal claim against the exchange by an investor injured thereby. See Brown v. Bullock, 294 F.2d 415, 421 (2 Cir. 1961); Silver v. New York Stock Exchange, 302 F.2d 714, 719 (2 Cir. 1962), rev'd on other grounds, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). Colonial urges that the civil liability thus implied from § 6(b) cannot reasonably be limited to an exchange but must extend to a member firm whose conduct has violated rules adopted by the exchange under the statute; it says that the delinquent broker in the Baird case would also have had to be held for an implied federal liability. Although we agree that a federal claim against the member firm existed in Baird since the misconduct charged was a violation of the statute itself, see 141 F.2d at 242, this does not establish that implication of a private right of action against an exchange for culpable failure to enforce its rules necessarily calls for recognizing a similar right against an individual broker who is claimed" } ]
[ { "docid": "8132871", "title": "", "text": "in the complaint is not controlling. North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir.1978). Thus, further inquiry must be made as to whether, regardless of artful pleading, in fact the action is one governed by federal law. State of New York v. Local 144, 410 F.Supp. 225, 226 (S.D.N.Y.1976); see Coditron Corp. v. AFA Protective Systems, Inc., 392 F.Supp. 158, 160 (S.D.N.Y.1975); Hearst Corp. v. Shopping Center Network, 307 F.Supp. 551, 556 (S.D.N.Y.1969). Moreover, the nature of plaintiff’s claim must be evaluated on the basis of the record as it stands at the time the petition for removal is filed. Westmoreland Hospital Ass’n v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 123 (3d Cir.), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980). Although certain allegations may be unnecessary for the ultimate disposition of the case, surplusage of federal claims is not the test. Id. Accordingly, federal jurisdiction is proper where a complaint is based in part on federal statutes or federal legal principles. Id. at 124. In the case at hand, plaintiff’s complaint discloses a federal question involving the federal statutory authority of NASD. The complaint alleges that defendants attempted to expand the jurisdiction of NASD “beyond that authorized by law,” that defendants’ action was “clearly beyond the NASD’s jurisdictional authority,” and that NASD’s directive was “beyond defendants’ legal jurisdiction.” While the complaint lacks specific references to NASD’s jurisdictional authority under federal securities law, it is clear that the complaint’s references to NASD’s legal jurisdiction and jurisdiction “authorized by law” aré inartful attempts to disguise reliance upon federal securities law. Obviously, any determination by a court as to whether NASD exceeded its legal jurisdiction necessarily involves a federal question controversy with respect to NASD’s proper jurisdiction under federal securities law. Thus, at least upon the face of the complaint, federal law is a pivotal issue in the case. Plaintiff’s argument that the complaint was intended to allege only a violation of NASD’s by-laws is without merit. Having alleged in its complaint that defendants exceeded NASD’s legal jurisdiction, plaintiff" }, { "docid": "18826574", "title": "", "text": "to a probable defense.”). Instead: The court must ascertain from the complaint whether federal law is a pivotal issue in the case, one that is basic in the determination of the conflict between the parties. Gully v. First National Bank, 299 U.S. 109, 117-18, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Ivy Broadcasting Co. v. AT & T, 391 F.2d 486, 489 (2d Cir.1968). However, the lack of any reference to federal law in the complaint is not controlling. Sylgab Steel & Wire Corp. v. Strickland Transportation Co., 270 F.Supp. 264, 267 (E.D.N.Y.1967); 1A Moore’s Federal Practice ¶ 0.160 at 185-87 (2d ed. 1974). North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir. 1978). Accord State of New York v. Local 144, Hotel, Nursing Home and Allied Health Services Union, 410 F.Supp. 225, 226-27 (S.D.N.Y.1976) (“inquiry must be made as to whether, regardless of artful pleading, in fact the action is one governed by federal law.”). The deceptively obvious distinction between claims asserted by plaintiffs on the one hand, and defenses raised by defendants on the other, breaks down when a state defendant removes the proceeding to federal court on the ground that the state law under which a plaintiff is claiming relief is preempted by federal statute. Some courts have viewed preemption merely as a defense to claims under state law, and therefore have remanded actions removed under a theory of preemption. For example, in Long Island Railroad Co. v. United Transportation Union, 484 F.Supp. 1290 (S.D.N.Y.1980), former Chief Judge MacMahon remanded an action in which defendant argued that plaintiff’s claims under New York’s Taylor Law, N.Y. Civil Service Law §§ 201 et seq. (McKinney 1973), were preempted by the Federal Railway Labor Act, 45 U.S.C. §§ 151 et seq. After noting that the Railway Labor Act, if it applied, would prohibit plaintiff’s suit for injunctive relief against the union’s threatened strike, Judge MacMahon wrote: We do not believe this is a case where the plaintiff has skillfully avoided mentioning the federal right upon which it relies. The complaint is clearly drawn only" }, { "docid": "5006811", "title": "", "text": "which demonstrate fraud, independently cognizable under the antifraud provisions of the securities laws, violation of NASD rules does not provide an independent basis for liability. Colonial Realty Cory. v. Bache & Co., 358 F.2d 178 (2d Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966); Jenny v. Shearson, Hammill & Co., Inc., CCH Fed. Sec.L.Rep. ¶ 95,021 (S.D.N.Y.1975); Schonholtz v. American Stock Exchange, 376 F.Supp. 1089 (S.D.N.Y. 1974); State of Utah v. duPont Walston, Inc., CCH Fed.Sec.L.Rep. ¶ 94,812 (D.Utah 1974). Cases cited by plaintiff to the contrary, Bush v. Bruns Nordeman & Co., CCH Fed.Sec.L.Rep. ¶ 93,674 (S.D.N.Y.1972) and Buttrey v. Merrill Lynch, Pierce, Fenner & Smith, 410 F.2d 135 (7th Cir. 1969), are not on point. Both involved alleged violations of the New York Stock Exchange “know your customer” rule, not the NASD rule. Furthermore, in Buttrey the alleged rule violation was joined with allegations of fraud, and in Bush the court held only that it was too early in the proceedings to determine whether the rule was violated and whether such a violation gives rise to a private cause of action. As we have already discussed, defendants committed no actionable fraud; plaintiff therefore has no cause of action. Regardless of the cause of action issue, the facts are that Bartos followed an investment course suited to the League’s needs. The League faced a chronic shortage of operating funds and Bartos was told while at Flaks, Zaslow that the League was very anxious to have some profits. He had already been told to pursue an “aggressive” investment policy. (Tr. 146; Ex. A-5, A-6, A-9 through A-ll, A-16 and A-20) Under such circumstances we find that the NASD “know your customer” rule has been satisfied. For all these reasons, then, we find in favor of defendant Bartos. Since as to these claims the liability of the Flaks, Zaslow defendants is purely derivative, we find in their favor as well. We go now to those claims which are brought directly against the Flaks, Zaslow defendants. 4. Claims against the Flaks, Zaslow defendants In addition to the" }, { "docid": "675372", "title": "", "text": "conclude that plaintiffs would not have purchased the Bonds had they been aware that no taxing authority was liable thereon. Without such a finding, the requirement of causality is lacking in law. See Rochez Brothers v. Rhoades, 491 F.2d 402, 410 (3d Cir. 1974). In addition to their claims under the Exchange Act, plaintiffs in count II of the complaint assert that defendant violated Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a). As we noted in Architectural League of New York v. Bartos, supra (at 313), “Insofar as the Second Circuit is concerned, the question of whether section 17(a), a criminal provision, implies a private right of action is still open.” See Globus v. Law Research Service Inc., 418 F.2d 1276, 1283 (2d Cir. 1969). In Architectural League of New York, supra, we held that Section 17(a) does not provide a private right of action for damages. We reiterate that holding here. See Welch Foods, Inc. v. Goldman Sachs & Co., 398 F.Supp. 1393 (S.D.N.Y.1974); SEC v. Texas Gulf Sulphur, 401 F.2d 833, 867 (2d Cir. 1968) (Friendly, J., concurring). Accordingly, Count II of the complaint, which is based upon Section 17(a) of the Securities Act of 1933 must be dismissed. Plaintiffs’ final claim (Count IV) is based upon alleged violations by Bache of Rule 405 of the Rules of the New York Stock Exchange (“NYSE”) and of Article III, Section 2 of the Rules of Fair Practice of the National Association of Securities Dealers, Inc. (“NASD”). Rule 405 of the NYSE, the “Know Your Customer Rule” or “Rule of Due Diligence,” requires members of the Stock Exchange to “ ‘learn the essential facts relative to every customer’ ” or margin account and “ ‘to supervise diligently all accounts handled by registered representatives of the organization.’ ” Starkman v. Seroussi, 377 F.Supp. 518, 520-21 (S.D.N.Y.1974) (Weinfeld, J.). Article III, Section 2 of the Rules of Fair Practice adopted by NASD, the “Suitability Rule” provides: “In recommending to a customer the purchase, sale or exchange of any security a member shall have reasonable grounds for believing that" }, { "docid": "8132868", "title": "", "text": "revenge for plaintiff’s pointing out that the prohibition of options trading was clearly beyond NASD’s jurisdictional authority. 3) In February, 1980, the individual defendants wrongfully caused NASD to selectively and invidiously institute formal disciplinary proceedings against plaintiff. In its second cause of action, plaintiff alleges that the individual defendants knew that NASD did not have jurisdiction to prohibit plaintiff from conducting options business, and that the individual defendants wrongfully, wilfully, intentionally, and maliciously interfered with plaintiff’s business and customer relations. In its third cause of action, plaintiff alleges that defendants wrongfully, wilfully, intentionally, and maliciously represented to plaintiff in writing that plaintiff was prohibited from conducting any transactions in options, and that defendants knew that this directive was false, misleading, and beyond defendants’ legal jurisdiction. Plaintiff seeks $250,000 in compensatory damages and $750,000 in punitive damages on each cause of action. Motion to Remand To warrant removal of an action from a state to a federal court on the ground that there exists a federal question, a controversy with respect to a federal question must be essential to plaintiff’s cause of action and must be disclosed upon the face of the complaint. Gully v. First National Bank, 299 U.S. 109, 112, 112-13, 57 S.Ct. 96, 97, 97-98, 81 L.Ed. 70 (1936). It is not enough that a defense founded upon federal law is, or will be asserted. Louisville & N.R. Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911). In the case at hand, plaintiff argues that its three causes of action-conspiracy, interference with business, and fraud-are common law causes of action which involve a directive by NASD outside the jurisdiction of NASD’s own by-laws. Plaintiff argues that, accordingly, its complaint does not allege a violation of the Exchange Act, or even the NASD rules, and that removal was thus improper. It is well-established that violation of NASD rules does not provide an independent basis of liability, at least where suits by customers are involved. Architectural League of New York v. Bartos, 404 F.Supp. 304, 314 (S.D.N.Y.1975). A breach of NASD rules alone is simply a" }, { "docid": "10998396", "title": "", "text": "this Court\" upholding \"an implied private cause of action from violations of NYSE Rule 405 and the NASD constitution, Article III, Section 2.”); Juster v. Rothschild, Unterberg, Tow-bin, 554 F.Supp. 331, 333 (S.D.N.Y.1983); Picard v. Wall St. Discount Corp., 526 F.Supp. 1248, 1250-52 (S.D.N.Y.1981). See generally, Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 182-183 (2d Cir.1966), cert, denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966) (although rules of securities exchanges impose a duty on members not to engage in conduct inconsistent with fair and equitable principles of trade, violation of these rules does not give rise to implied federal civil liability). . See also Leist v. Simplot, 638 F.2d 283, 296-97 n. 11 (2d Cir.1980) aff'd on other grounds, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982); (no private right of action exists for violations of provisions like NYSE Rule 405). Jablon v. Dean Witter & Co., 614 F.2d 677, 679 (9th Cir.1980) (no private right of action for violation of either NYSE Rule 405 or the NASD Rule.) Mauriber v. Shearson/American Express, Inc., 546 F.Supp. 391, 394 (S.D.N.Y. 1982) (no implied right of action under NYSE and NASD \"know your customer” and “suitability” of investments rules.); Picard v. Wall Street Discount Corp., supra, 526 F.Supp. at 1250-52. (no implied right of action for violation of NYSE Rule 405); Klitzman v. Bache Halsey Stuart Shields, Inc., 499 F.Supp. 255, 258-59 (S.D.N.Y.1980) (no private right of action for violation of NASD Rule); Alvord v. Shearson Hayden Stone, Inc., 485 F.Supp. 848, 855-56 (D.Conn.1980) (no private right for investor under NYSE Rule 405 or NASD Rule); Plunkett v. Dominick & Dominick, Inc., 414 F.Supp. 885, 889-90 (D.Conn.1976) (no private right of action for violation of NYSE Rule 405 or NASD Rule). . Plaintiff argues that all of his contract claims are governed by New York law by virtue of the choice of law provisions in the agreements executed by the parties. However, even if these provisions are held not to apply to these contract claims, plaintiff contends, New York law must still control under" }, { "docid": "8132870", "title": "", "text": "breach of a private association’s rules and does not present a question which arises under the laws of the United States. Lange v. H. Hentz Co., 418 F.Supp. 1376, 1380-81 (N.D. Tex.1976). While the Second Circuit has not addressed this jurisdictional issue, the Second Circuit has stated that a determination of whether a private right of action exists for violation of dealer association rules depends upon the nature of the particular rule and its place in the regulatory scheme. Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 182 (2d Cir. 1966), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966). The critical issue in considering plaintiff’s motion to remand, then, is whether a controversy with respect to the Exchange Act, as opposed to the NASD rules or by-laws, is essential to plaintiff’s causes of action and are disclosed upon the face of the complaint. While the court must ascertain from the complaint whether federal law is a pivotal issue in the case, the lack of any reference to federal law in the complaint is not controlling. North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir.1978). Thus, further inquiry must be made as to whether, regardless of artful pleading, in fact the action is one governed by federal law. State of New York v. Local 144, 410 F.Supp. 225, 226 (S.D.N.Y.1976); see Coditron Corp. v. AFA Protective Systems, Inc., 392 F.Supp. 158, 160 (S.D.N.Y.1975); Hearst Corp. v. Shopping Center Network, 307 F.Supp. 551, 556 (S.D.N.Y.1969). Moreover, the nature of plaintiff’s claim must be evaluated on the basis of the record as it stands at the time the petition for removal is filed. Westmoreland Hospital Ass’n v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 123 (3d Cir.), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980). Although certain allegations may be unnecessary for the ultimate disposition of the case, surplusage of federal claims is not the test. Id. Accordingly, federal jurisdiction is proper where a complaint is based in part on federal statutes or federal legal principles." }, { "docid": "23339232", "title": "", "text": "In the second place, the jurisdictional grounds now being advanced in this court are insufficient as a matter of law. Notwithstanding that the Securities and Exchange Commission had an opportunity to review the NASD rule that prescribes arbitration as a means of resolving disputes such as this one, the mere fact that the arbitration was conducted before the NASD as required by the association’s rules does not make the case one that arises out of the federal securities laws. The NASD is a private organization, not an arm of the government. See Lange v. H. Hentz & Co., 418 F.Supp. 1376, 1379 (N.D.Tex.1976) (“despite owing its existence and in large measure its power and prestige to the SEC, NASD is still a private association governed by its own rules as developed and applied by its own members”). A breach of the NASD rules does not present a question that arises under the laws of the United States within the meaning of 28 U.S.C. § 1331, Lange at 1380-81, and it follows a fortiori that compliance with NASD rules does not give rise to federal question jurisdiction. See In re Prudential Sec., Inc., 795 F.Supp. 657, 659 (S.D.N.Y.1992) (“NASD rules are established and enforced by a private association and do not give rise to federal question jurisdiction”). Cf. Raymond James & Assoc., Inc. v. Nat’l Ass’n of Sec. Dealers, 844 F.Supp. 1504, 1507 (M.D.Fla.1994) (“the NASD rules themselves do not give rise to federal question jurisdiction”) (idictum). See also Parks v. McGrath, 1992 WL 80957, at * 1, 1992 U.S. Dist. LEXIS 5712, at * 2 (N.D. Ill. April 14, 1992) (“the fact that the partnership was involved in the federally regulated field of securities trading does not automatically create a federal question and confer jurisdiction [over a motion to vacate an arbitration award for breach of a partnership agreement]”); Ness v. Dean Witter Reynolds, Inc., 677 F.Supp. 861, 865 (D.S.C.1987) (no federal-question jurisdiction to compel arbitration between securities dealer and a former employee who made claims for negligence, defamation, and false arrest). IV As an alternative basis for federal jurisdiction," }, { "docid": "8132869", "title": "", "text": "be essential to plaintiff’s cause of action and must be disclosed upon the face of the complaint. Gully v. First National Bank, 299 U.S. 109, 112, 112-13, 57 S.Ct. 96, 97, 97-98, 81 L.Ed. 70 (1936). It is not enough that a defense founded upon federal law is, or will be asserted. Louisville & N.R. Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911). In the case at hand, plaintiff argues that its three causes of action-conspiracy, interference with business, and fraud-are common law causes of action which involve a directive by NASD outside the jurisdiction of NASD’s own by-laws. Plaintiff argues that, accordingly, its complaint does not allege a violation of the Exchange Act, or even the NASD rules, and that removal was thus improper. It is well-established that violation of NASD rules does not provide an independent basis of liability, at least where suits by customers are involved. Architectural League of New York v. Bartos, 404 F.Supp. 304, 314 (S.D.N.Y.1975). A breach of NASD rules alone is simply a breach of a private association’s rules and does not present a question which arises under the laws of the United States. Lange v. H. Hentz Co., 418 F.Supp. 1376, 1380-81 (N.D. Tex.1976). While the Second Circuit has not addressed this jurisdictional issue, the Second Circuit has stated that a determination of whether a private right of action exists for violation of dealer association rules depends upon the nature of the particular rule and its place in the regulatory scheme. Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 182 (2d Cir. 1966), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966). The critical issue in considering plaintiff’s motion to remand, then, is whether a controversy with respect to the Exchange Act, as opposed to the NASD rules or by-laws, is essential to plaintiff’s causes of action and are disclosed upon the face of the complaint. While the court must ascertain from the complaint whether federal law is a pivotal issue in the case, the lack of any reference to federal law" }, { "docid": "18826573", "title": "", "text": "must exist with reference thereto ..., and the controversy must “be disclosed on the face of the complaint, unaided by the answer or the petition for removal.” See also Westmoreland Hospital Association v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 122 (3d Cir.1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980); 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3721 at 530 (1976). The rule that the essence of the controversy must be determined from the perspective of the plaintiff, whose interests in control over his litigation and in his choice of forum must be respected, does not limit the reviewing court to the words on the face of the complaint or to pláintiff’s characterization of his claims. Cf. Gully v. First National Bank in Meridian, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936) (“the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff’s cause of action and anticipates or replies to a probable defense.”). Instead: The court must ascertain from the complaint whether federal law is a pivotal issue in the case, one that is basic in the determination of the conflict between the parties. Gully v. First National Bank, 299 U.S. 109, 117-18, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Ivy Broadcasting Co. v. AT & T, 391 F.2d 486, 489 (2d Cir.1968). However, the lack of any reference to federal law in the complaint is not controlling. Sylgab Steel & Wire Corp. v. Strickland Transportation Co., 270 F.Supp. 264, 267 (E.D.N.Y.1967); 1A Moore’s Federal Practice ¶ 0.160 at 185-87 (2d ed. 1974). North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir. 1978). Accord State of New York v. Local 144, Hotel, Nursing Home and Allied Health Services Union, 410 F.Supp. 225, 226-27 (S.D.N.Y.1976) (“inquiry must be made as to whether, regardless of artful pleading, in fact the action is one governed by federal law.”). The deceptively obvious distinction between claims asserted by plaintiffs on the one hand," }, { "docid": "23339231", "title": "", "text": "or duty created by such laws or by the rules and regulations adopted thereunder. Federal subject matter jurisdiction thus did not arise under § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, which gives federal district courts “exclusive jurisdiction of violations of [the Act] or the rules and regulations thereunder, and of all suits ... brought to enforce any liability or duty created by [the Act] or the rules and regulations thereunder.” The parties contend, nonetheless, that the district court could exercise jurisdiction in this case because the rules of the National Association of Securities Dealers, pursuant to which the dispute was submitted to arbitration, are subject to review by the Securities and Exchange Commission. The contention is not persuasive. In the first place, as we have seen, federal questions must be disclosed on the face of the complaint. Phillips Petroleum, 415 U.S. at 127-28, 94 S.Ct. at 1003-04. Cf. Rule 8(a)(1), Fed.R.Civ.P. The facts set out in the supplemental briefs filed in this court were not included in the complaint. In the second place, the jurisdictional grounds now being advanced in this court are insufficient as a matter of law. Notwithstanding that the Securities and Exchange Commission had an opportunity to review the NASD rule that prescribes arbitration as a means of resolving disputes such as this one, the mere fact that the arbitration was conducted before the NASD as required by the association’s rules does not make the case one that arises out of the federal securities laws. The NASD is a private organization, not an arm of the government. See Lange v. H. Hentz & Co., 418 F.Supp. 1376, 1379 (N.D.Tex.1976) (“despite owing its existence and in large measure its power and prestige to the SEC, NASD is still a private association governed by its own rules as developed and applied by its own members”). A breach of the NASD rules does not present a question that arises under the laws of the United States within the meaning of 28 U.S.C. § 1331, Lange at 1380-81, and it follows a fortiori that compliance" }, { "docid": "11546884", "title": "", "text": "to sell at One and 00/100 Dollar ($1.00) and by selling the options at %, at most, was a breach of contract. The breach of contract does not automatically result in a violation of the antifraud provisions of the federal securities laws. See Broad v. Rockwell International Corp., 614 F.2d 418 (5th Cir.1980), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981); Fenstermacher v. Philadelphia National Bank, 493 F.2d 333 (3d Cir.1974). There are no facts alleged to raise a question of material fact whether Pruette engaged in any intentional or recklessly manipulative or deceptive conduct. Plaintiff has merely alleged that Pruette did not obey his directive to sell at One and 00/100 Dollar ($1.00). Accordingly, defendants’ motion for summary judgment with respect to claims under the federal securities laws against Ronald Pruette is granted. Defendants next argue that there is no implied private cause of action arising from either the rules of the National Association of Securities Dealers (hereinafter “NASD”) or from the rules of the New York Stock Exchange (hereinafter “NYSE”) and that, accordingly, Counts II, III, IV, and V of the complaint should be dismissed for failure to state a claim for which relief can be granted. Those claims are for a violation of the NASD Rules of Fair Practice, article III, sections 2,15,16,18,19, and 27; a violation of rule 10b-5 arising from a violation of the NASD rules; a violation of the NYSE rules 405, 408, 723, and 726; and a violation of rule 10b-5 arising from a violation of the NYSE rules, respectively. The circuits are divided on the question whether there is an implied private cause of action for violations of the NASD and/or NYSE rules. See generally, Annot., 54 A.L.R. Fed. 11 (1981). Some courts have flatly refused to find an implied private cause of action for violation of these rules. See, Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir.1980); Parsons v. Hornblower & Weeks-Hemphill, Noyes, 447 F.Supp. 482 (M.D.N.C.1977), aff’d, 571 F.2d 203 (4th Cir. 1978); Scharman v. E.F. Hutton & Co., Inc., No. 80-74348 (E.D.Mich." }, { "docid": "5541127", "title": "", "text": "simply a breach of a private association’s rules, although that association is one which is closely related to the SEC. This case, therefore, does not present a question which arises under the laws of the United States. Construing Section 1331 narrowly as I must, I find no remedy expressly granted by Congress for a breach of NASD rules, no claim which is based upon a direct construction of the SEA and no distinct policy of the SEA which requires that federal principles control the disposition of the claim. I find instead a simple claim for the breach of a private association’s rules of fair trade. See T. B. Harms Co. v. Eliscu, 339 F.2d 823 (2nd Cir. 1964); Cf. Romero v. International Terminal Operating Co., 358 U.S. 354, 379, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). Under those circumstances, á breach of NASD rules, even if such a breach were to give rise to liability, is not a question which properly “arises under the Constitution, laws or treaties of the United States” within the meaning of Section 1331. IV. CIVIL LIABILITY FOR BREACH OF NASD RULES OF FAIR TRADE Implied Liability: Whether this Court has the jurisdiction to hear a claim for a breach of NASD rules under Section 27 and/or Section 1331 is a separate and distinct question from that of whether civil liability arises from a breach of those rules. In addition to finding no jurisdictional base to support a claim for breach of NASD rules, I also hold that no civil liability flows from a breach of Sections 2, 13, or 18 of NASD rules. Judge Friendly in the seminal case Colonial Realty v. Bache and Co., 358 F.2d 178 (2d Cir. 1965), cert. denied, 385 U.S. 817, 87 5. Ct. 40, 17 L.Ed.2d 56 (1966), refused to imply a private right of relief from NASD’s general business conduct rule. See NASD Manual Art. III, § 1 12151 at 2014 (1973). In Colonial Realty, Bache sold securities in Colonial’s margin account during a dip in the market. Claiming that Bache failed to conduct its business in a" }, { "docid": "18907138", "title": "", "text": "Section 206 of the Investment Advisers Act, 15 U.S.C. § 80b-6. The wording of this provision, making it unlawful “to employ any device, scheme or artifice to defraud”, is identical to the language employed in R. 10b-5. Consequently, the same pleading requirements with respect to particularity and scienter apply— which requirements we have already found not to have been met. See Abrahamson v. Fleschner (S.D.N.Y.1975) 392 F.Supp. 740, 750. With respect to the claim asserted under the provisions of Art. Ill Section 2 of the Rules of Fair Practice of the N.A.S.D. (regarding suitability) and Rule 405 of the New York Stock Exchange (“know your customer” rule), it is well settled that a federal private right of action based on an alleged violation of said rules will be implied only when there are well-pleaded allegations of fraudulent conduct on the part of the defendant and not where the action is nothing more than a “garden-variety customer-broker suit”, as here. Colonial Realty Corp. v. Bache & Co. (2d Cir. 1966) 358 F.2d 178, 183, cert. den., 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56; Schonholtz v. American Stock Exchange Inc. (S.D.N.Y.) 376 F.Supp. 1089, 1092, aff’d per curiam, 505 F.2d 699 (2d Cir. 1974). Such allegations being here wanting, the claims must be dismissed. The remaining claims (in the original complaint) or counts (in the proposed pleading) are common law breach of contract and negligence claims which cannot be maintained, in light of our dismissal of the federal claims, in the absence of diversity jurisdiction. Plaintiff is a citizen of New Jersey. The defendant Bear, Stearns is a limited partnership, of which many of the partners (both general and limited) are also citizens of New Jersey. Under these circumstances, complete diversity is lacking and the remaining counts (or claims) are dismissed for lack of subject matter jurisdiction. In conclusion, therefore, both complaints — the gravamen of which is a claim that defendants, in their capacity as investment advisors, exercised poor business judgment in fulfilling their contractual obligations to plaintiff — fail to state a claim for fraud or deceit under" }, { "docid": "5319749", "title": "", "text": "of the New York Stock Exchange or the National Association of Security Dealers, gives rise to a private cause of action in favor of a customer damaged as a result of the violation is a “troublesome one.” Shull v. Dain, Kalman & Quail, Inc., supra, 561 F.2d at 160. Most of the cases have answered the question affirmatively but with some reservations. See Avern Trust v. Clarke, 415 F.2d 1238, 1242 (7th Cir. 1969); Buttrey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 410 F.2d 135, 142 (7th Cir.), cert. denied, 396 U.S. 838, 90 S.Ct. 98, 24 L.Ed.2d 88 (1969); Evans v. Kerbs & Co., 411 F.Supp. 616, 624 (S.D.N.Y.1976); cf. Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 181-83 (2d Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966) (sets forth test under which to evaluate whether to imply private cause of action from federal regulatory statutes); see generally Lowenfels, Implied Liabilities Based Upon Stock Exchange Rules, 66 Colum.L.Rev. 12 (1966); Note, Private Rights of Action for Commodity Futures Investors, 55 B.U.L.Rev. 804 (1974). In particular, the courts have typically found no private right of action exists for violation of exchange or dealer association rules in the absence of a finding of fraud. See, e. g., Shull v. Dain, Kalman & Quail, Inc., supra, 561 F.2d at 160; Lincoln Commodity Services v. Meade, 558 F.2d 469, 474 n.l (8th Cir. 1977); Carras v. Burns, supra, 516 F.2d at 260; Evans v. Kerbs & Co., supra, 411 F.Supp. at 624; Architectural League v. Bartos, supra, 404 F.Supp. at 314. In the present case the district court should not have dismissed Count III because appellant did state a private cause of action by alleging violations of exchange and dealer association rules accompanied by allegations of fraud. See Evans v. Kerbs & Co., supra, 411 F.Supp. at 624 (cases cited therein). As noted above, however, the district court permissibly found that appellant failed to prove fraud on the part of Merrill Lynch. Even if Merrill Lynch had been found to have violated the exchange and/or" }, { "docid": "8357205", "title": "", "text": "(1913), meaning that the plaintiff in such a case can confine its complaint to a state law theory and proceed in state court without fear of removal to federal court. 1A Moore’s Federal Practice ¶ 0.160, at 185 (2d ed. 1981); see Great Northern Railway Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239, 62 L.Ed. 713 (1918); Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 964 (2d Cir. 1981). However, where the allegations of the complaint support only a federal claim, and not a state law claim as well, “arising under” removal is always proper, even where the complaint relies, on its face, exclusively on state law. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2, 101 S.Ct. 2424, 2427 n.2, 69 L.Ed.2d 103 (1981). This exception to the “face-of-the-complaint rule” derives from the principle that removal should not be defeated merely because the plaintiff has inadvertently, mistakenly, or fraudulently concealed the federal question that would necessarily have appeared if the complaint had been well pleaded. 1A Moore’s Federal Practice ¶ 0.160, at 185-87 (2d ed. 1981). One result of this exception is the rule that “arising under” removal is proper, even where the complaint relies solely on state law, if the state law relied upon by the plaintiff has been preempted by federal law, meaning that federal law, by definition, provides the only possible legal basis for the relief sought by the plaintiff. North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233-34 (2d Cir. 1978) ; Palm Beach Co. v. Journeymen’s and Production Allied Services Local 157, 519 F.Supp. 705, 708 (S.D.N.Y.1981); Billy Jack for Her, Inc. v. New York Coat, Suit, Dress, Rainwear and Allied Workers’ Local 1-35, 511 F.Supp. 1180, 1187 (S.D.N.Y.1981). Having these principles in mind, the Court considers the petition filed by Alameda in this case. While Alameda’s petition nowhere mentions federal law, the allegations of the petition make it plain that Alameda could have commenced this action on a federal law theory. The gravamen of Alameda’s second petition is its request for a stay" }, { "docid": "821433", "title": "", "text": "Stearns & Co., 549 F.2d 164, 169 (10th Cir.), cert. denied, 434 U.S. 890, 98 S.Ct. 262, 54 L.Ed.2d 176 (1977). Plaintiff also urges, however, in its memorandum of law, that a private right of action be implied from the defendant’s Listing Agreement with the Exchange and the Company Manual. There is Second Circuit authority indicating that certain rules of a stock exchange promulgated pursuant to § 6(b) of the Exchange Act may provide a private right of action against members of the Exchange and issuers of securities. Van Gemert v. Boeing Co., 520 F.2d 1373, 1382 (2d Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 364, 46 L.Ed.2d 282 (1975). Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 181-82 (2d Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966). There is also dictum to the effect that provisions of an Exchange’s Listing Agreement and Company Manual may constitute the “rules” of an exchange from which a private right of action can be implied. See Van Gemert v. Boeing Co., 520 F.2d at 1380. Recent case law indicates, however, that the issue of whether a private right of action can be implied from exchange rules is still an “open question” in this circuit. See Van Alen v. Dominick & Dominick, Inc., 560 F.2d 547, 552 (2d Cir. 1977). See also Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d at 43 n.6; Wellman v. Dickinson, 475 F.Supp. 783, 835 (S.D.N.Y.1979). Assuming, arguendo, that a private right of action may be implied from certain rules of a securities exchange, the question then becomes whether such a right can be implied from the rules relied on here. In deciding whether a private right of action exists under a particular rule, a court must look to the nature of the particular rule and its place in the regulatory scheme, with the party urging the implication of a federal liability carrying a considerably heavier burden of persuasion than when the violation is of the statute or an SEC regulation. The case for implication would be strongest when the" }, { "docid": "2659431", "title": "", "text": "Smith, Inc. (S.D.N.Y.1978) 79 F.R.D. 130, 135. See also Carroll v. Bear, Stearns & Co. (S.D.N.Y. 1976) 416 F.Supp. 998, 1001; Berman v. Bache, Halsey, Stuart, Shields, Inc. (S.D. Ohio 1979) 467 F.Supp. 311, 314-15. With regard to the claim of unsuitability, plaintiffs likewise allege only that defendant Joblon’s transactions were “not consistent with [plaintiff Helen Vetter’s] investment objective.” (Complaint ¶ 10) In order to support this cause of action, plaintiffs must identify the transactions in question and the securities involved, and at least give some indication why they consider such securities to have been unsuitable. See Rotstein v. Reynolds & Co. (N.D. Ill.1973) 359 F.Supp. 109, 114. Similar considerations apply to the claim of unauthorized trading. If nothing else, plaintiffs must specify the transactions they allege to have been unauthorized, indicate when such transactions took place, ánd identify the securities that were the subject of the transactions. Finally, as regards defendants’ alleged violations of Rule 408 of the New York Stock Exchange, regardless of whether a private action against a stock exchange member based on a violation of a rule of the exchange may be maintained at all, cf. Van Alen v. Dominick & Dominick, Inc. (2d Cir. 1977) 560 F.2d 547, 552, we have previously held in Carroll v. Bear, Stearns & Co., supra, 416 F.Supp. at 1002, that: “it is well settled that a federal private right of action based on an alleged violation of [such a rule] will be implied only when there are well-pleaded allegations of fraudulent conduct on the part of the defendant and not where the action is nothing more than a ‘garden-variety customer-broker suit’, as here. Colonial Realty Corp. v. Bache & Co. (2d Cir. 1966) 358 F.2d 178, 183, cert. den., 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56; Schonholtz v. American Stock Exchange Inc. (S.D.N.Y.) 376 F.Supp. 1089, 1092, aff’d per curiam, 505 F.2d 699 (2d Cir. 1974).” However, “because we are hesitant to preclude the prosecution of a possibly meritorious claim because of defects in the pleadings, we believe that the plaintiffs should be afforded an additional, albeit" }, { "docid": "5006810", "title": "", "text": "disregard for the truth, or knowing use of a device, scheme or artifice to defraud. Mere negligence is not enough. Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 445 (2d Cir. 1971). Here there has been no such showing and for this reason too plaintiff’s claim under § 10(b) fails. Finally we turn to that portion of plaintiff’s claim which seeks to state a claim under Article III, Section 2 of the NASD Rules of Fair Practice (“know your customer” rule). That section states: In recommending to a customer the purchase, sale or exchange of any security, a member shall have reasonable grounds for believing that the recommendation is suitable for such customer upon the basis of the facts, if any, disclosed by such customer as to his other security holdings and as to his financial situation and needs. CCH NASD Manual |J 2152, Art. Ill, § 2. Plaintiff argues that defendants violated this rule giving rise to a private federal right of action. As we read them, the cases hold otherwise. Absent facts which demonstrate fraud, independently cognizable under the antifraud provisions of the securities laws, violation of NASD rules does not provide an independent basis for liability. Colonial Realty Cory. v. Bache & Co., 358 F.2d 178 (2d Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966); Jenny v. Shearson, Hammill & Co., Inc., CCH Fed. Sec.L.Rep. ¶ 95,021 (S.D.N.Y.1975); Schonholtz v. American Stock Exchange, 376 F.Supp. 1089 (S.D.N.Y. 1974); State of Utah v. duPont Walston, Inc., CCH Fed.Sec.L.Rep. ¶ 94,812 (D.Utah 1974). Cases cited by plaintiff to the contrary, Bush v. Bruns Nordeman & Co., CCH Fed.Sec.L.Rep. ¶ 93,674 (S.D.N.Y.1972) and Buttrey v. Merrill Lynch, Pierce, Fenner & Smith, 410 F.2d 135 (7th Cir. 1969), are not on point. Both involved alleged violations of the New York Stock Exchange “know your customer” rule, not the NASD rule. Furthermore, in Buttrey the alleged rule violation was joined with allegations of fraud, and in Bush the court held only that it was too early in the proceedings to determine whether the rule was violated" }, { "docid": "4987450", "title": "", "text": "U.S. 677, 742, 99 S.Ct. 1946, 1981, 60 L.Ed.2d 560 (1979) (Powell, J., dissenting)). Because we find that the legislative intent and scheme did not provide a private right of action to the plaintiff, see Cort v. Ash, supra, 422 U.S. at 78, 95 S.Ct. at 2088 (second and third factors), it is irrelevant whether the stock exchange and association rules were created for the “especial benefit” of people like plaintiff. Id. See Touche Ross, supra, 442 U.S. at 575-76, 99 S.Ct. at 2489. Therefore, under the test in Cort v. Ash plaintiff may not maintain a right of action for damages based on NYSE Rule 405 and Article III, section 2 of the NASD rules. Further, plaintiff cannot maintain a private right of action under these rules on the basis of Colonial Realty Corp. v. Bache & Co., 358 F.2d 178 (2d Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966). In Colonial, the plaintiff alleged that defendant failed “to conduct its dealings in a manner ‘consistent with just and equitable principles of trade’ ” within the meaning of, inter alia, some sections of the NYSE and NASD rules. In deciding whether courts could imply liability for violation of these rules, the Second Circuit concluded that the court must look to the nature of the particular rule and its place in the regulatory scheme, with the party urging the implication of a federal liability carrying a considerably heavier burden of persuasion than when the violation is of the statute or an SEC regulation. The case for implication would be strongest when the rule imposes an explicit duty unknown to the common law. Although [the rules here at issue] do impose a duty upon members not to engage in conduct inconsistent with fair and equitable principles of trade ... they are something of a catch-all which Congress could well not have intended to give rise to a legal claim. Id. at 182. Applying NYSE Rule 405 and Article III, section 2 of the NASD rules to the Colonial reasoning, the Court in Colman found that the" } ]
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108 months. Cross did not appeal either judgment until November 2001, when he filed a pro se notice of appeal from the February 2001 judgment order. Cross’ attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising as potentially meritorious issues four allegations of error relating to the indictment and original sentencing, but asserting that in his view there are no meritious issues for appeal. Cross has filed a pro se supplemental brief raising two additional issues relating to his original sentencing. A criminal defendant has ten days from the entry of the judgment or order at issue to file a notice of appeal. See Fed. R.App. P. 4(b); REDACTED The appeal periods established by Rule 4 are mandatory and jurisdictional. See Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Cross alleges that this court assumed jurisdiction over his appeal when a deputy clerk informed him that he had “an absolute right of appeal.” However, because Cross’ notice of appeal from the February 14, 2001, amended judgment was filed beyond the ten-day appeal period and beyond the thirty-day period in which the district court could find excusable neglect and extend the appeal period, this court cannot assert jurisdiction over his appeal. In his pro se supplemental brief, Cross claims that he would have
[ { "docid": "22113872", "title": "", "text": "court a motion for that court to vacate its December 1st dismissal order and to reinstate the Rule 35(b) motion on the docket. The court had dismissed the Rule 35(b) motion by ruling that even though the motion was filed within the required 120-day time period of the rule, the court lacked jurisdiction to rule on the motion outside the expiration of the 120-day period. Relying on the January 26, 1984 decision of this court in United States v. Schafer, 726 F.2d 155 (4th Cir.1984), Breit’s February 14th motion to vacate was on the ground that Schafer, reaffirming prior Fourth Circuit case law, demonstrated that a district court has a reasonable period of time beyond the 120th day within which it may decide a timely-filed Rule 35(b) motion. On June 7, 1984, the district court denied Breit’s motion to vacate its order of December 1, 1983, and Breit took an appeal from the June 7th order. This latest appeal, from the district court’s denial of the motion to vacate, is treated as an appeal supplemental to Breit’s previously filed appeal on the issue of excusable neglect, and we address both questions. We first consider whether the district court abused its discretion in denying Breit’s motion to extend the time within which to file an appeal from the dismissal order of December 1. Under FRAP 4(b), a notice of appeal in a criminal case must be filed within 10 days after entry of the order from which an appeal is to be taken. Rule 4(b), however, permits a district court to extend this time period up to 30 days upon a showing of excusable neglect. The latest date under Rule 4(b) upon which Breit could file his appeal of the December 1st dismissal order was December 12, 1983. See supra note 3. Breit failed to file by that date, and on December 15th delivered to the court a notice of appeal accompanied by a motion for extension of time to file the appeal based on excusable neglect. While no affidavit was filed, the brief filed in support of the motion for" } ]
[ { "docid": "23369756", "title": "", "text": "applications of federal law.” The district court entered judgment on February 19,1999. On March 17, 1999 (25 days later), An-drade deposited in the prison mail system a Motion for Order Extending Time for Appeal, in which he requested a 60-day extension of time to file his notice of appeal. In a supporting declaration, An-drade explained that he needed the extra time to conduct research in the prison library,.to which he was permitted access for only two hours each Friday and Saturday. In a memorandum order, the district court denied Andrade’s motion, stating in relevant part: In his Motion, petitioner claims that he has been denied adequate access to the prison law library to prepare his notice of appeal, [citation omitted] This court is not persuaded by petitioner’s argument. He has not met the standard under Fed. R.App. P. 4(a)(5) to warrant an extension of time. Accordingly, petitioner’s Motion is denied. On April 11, 1999 (50 days after the district court entered its judgment), An-drade deposited a Notice of Appeal in the prison mail system. Subsequently, the district court entered an order denying Andrade a certificate of appealability. We granted Andrade a certificate of ap-pealability to raise his Eighth Amendment claim. Although Andrade initially filed his appeal pro se, we appointed counsel and ordered supplemental briefing. II. JURISDICTION We must consider as a threshold matter whether we have jurisdiction over this appeal. A timely notice of appeal is mandatory and jurisdictional. Fed. R.App. P. 3(a); Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir.1994). Rule 4(a)(1)(A) requires that a notice of appeal be filed within 30 days after the district court enters judgment where, as here, the United States is not a party. The district court may extend this period if “(i) a party so moves no later than 30 days after the time prescribed by [ ] Rule 4(a)[ (1) ] expires” and “(ii) that party shows excusable neglect or good cause.” Fed. R.App. P. 4(a)(5)(A); see also Vahan, 30 F.3d" }, { "docid": "9938876", "title": "", "text": "PER CURIAM. Pro se petitioner, Richard Leonard, appeals from the district court’s denial of his application for a writ of habeas corpus, 28 U.S.C. § 2254. We dismiss the appeal for lack of jurisdiction. Petitioner was convicted of murder and sentenced to a term of imprisonment of thirty to sixty years. After exhausting his state remedies, Leonard petitioned the district court for a writ of habeas corpus, alleging violations of his fifth, sixth, eighth, and fourteenth amendment rights, The district court granted summary judgment in favor of respondents on October 4, 1984 and entered judgment on October 10, 1984. Although petitioner’s notice of appeal was dated October 22, 1984, the notice was not filed with the district court until November 13, 1984. On November 14, 1984, the district court granted petitioner a certificate of probable cause. On December 6, 1984, the district court amended the November 14,1984 order nunc pro tunc to grant petitioner leave to file a late notice of appeal pursuant to Fed.R.App.P. 4(a)(5). The court stated that “[t]he required excusable neglect is evidenced by the apparent delay between the date the pro se prisoner sent his notice of appeal and the date of receipt by the court.” The timely filing of a notice of appeal is mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Wort v. Vierling, 778 F.2d 1233 (7th Cir.1985); Spika v. Village of Lombard, 763 F.2d 282 (7th Cir.1985). A notice of appeal in a civil suit is required to be filed within thirty days of the entry of judgment. Fed.R.App.P. 4(a)(1). Thus, petitioner should have filed his notice of appeal no later than November 9, 1984. Under Rule 4(a)(5), “[t]he district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).” Fed.R.App.P. 4(a)(5). The district court apparently construed petitioner’s late notice as an implicit request for an extension of time. Petitioner did" }, { "docid": "20737092", "title": "", "text": "notice of appeal, Suzette McKenna stated that she “hereby appeals ... from the Order on Plaintiffs Motion for Reconsideration of this [District] Court’s Memorandum of Order entered in this action on May 11, 2011 ” (underlining in original). But whereas the notice of appeal lists only the denial of the motion for reconsideration, McKenna’s opening (and only) brief on appeal directly attacks only the district court’s original Rule 12(b)(6) order. The problem here has regularly bedeviled circuit courts and has not been consistently resolved. A notice of appeal from a final order of the district court must “designate the judgment, order, or part thereof being appealed,” Fed. R.App. P. 3(c)(1)(B); and, with certain exceptions, the notice must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R.App. P. 4(a)(1)(A). The Supreme Court deems these Rule 3 and 4 requirements to be “jurisdictional.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). “Jurisdiction” is a term used multiple ways, but it is settled that a civil appeal filed out of time is barred, that the error in timing cannot be waived, and that circuit courts are expected to notice the error sua sponte if not raised by the opponent. Browder v. Dir., Ill. Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Thus, if Suzette McKenna had filed no reconsideration motion but waited 31 days before appealing from the original dismissal of her case, the appeal would be barred, and Suzette McKenna would be left only with a malpractice suit against her lawyer. While McKenna’s appeal was not filed within 30 days of the original March 21, 2011, dismissal, that time limit was suspended once she filed a motion for reconsideration under Rule 59(e) and 60(b) on April 12. See Fed. R.App. P. 4(a)(4)(A) (time to file an appeal does not begin to run until last order on a Rule 59 motion, provided that motion is timely filed, or last order on a Rule 60 motion, provided that motion is filed no later" }, { "docid": "8150664", "title": "", "text": "Dismissed by published opinion. Senior Judge LAY wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined. OPINION LAY, Senior Circuit Judge: Steven M. Alston, an African-American male, appeals from the grant of summary judgment in favor of MCI Telecommunications, Inc. (“MCI”) on his allegation that MCI racially discriminated against him when it terminated him in violation of 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 1981. The district court granted summary judgment to MCI on the basis that Alston faded to produce any direct or circumstantial evidence that would provide a material issue of fact relating to his claim of racial discrimination. We find this court lacks jurisdiction to review the merits asserted on appeal because the plaintiff failed to file a timely notice of appeal. We therefore dismiss the appeal for lack of jurisdiction. JURISDICTION The district court entered judgment for the defendant on December 30,1994. On January 12,1995, Alston moved to extend the period of time to file a motion to alter or amend the judgment. On January 13, 1995, the district court granted Alston’s motion, extending the period to January 23, 1995. Alston filed his motion to alter or amend the judgment, under Rule 59(e) of the Federal Rules of Civil Procedure, on January 24, 1995. The district court denied this motion on the merits on February 16, 1995. Alston filed his notice of appeal on March 17, 1995. Under the Federal Rules of Appellate Procedure, a party must file a notice of appeal with the district court clerk “within 30 days after the date of entry of the judgment or order appealed from[.]” Fed.R.App.P. 4(a)(1). This time limitation is “ ‘mandatory and jurisdictional.’ ” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). The thirty-day time period is deferred, however, if the party makes a “timely motion” under Rule 59(e) or other specified rules. See Fed. R.App.P. 4(a)(4). The thirty-day period may also be extended by the district" }, { "docid": "23605677", "title": "", "text": "31. Months later, on November 19, after appellate briefing had been completed, KFC moved to dismiss the appeal for lack of jurisdiction because of Williams’s late filing. We reserved decision. We now deny KFC’s motion to dismiss and, reaching the merits, conclude that Williams raised a genuine issue of material fact as to KFC’s responsibility for the accident. We therefore vacate the judgment and remand for further proceedings. II. DISCUSSION A. Appellate Jurisdiction Under Rule 4(a), a notice of appeal in a civil case must be filed within 30 days after entry of judgement. Fed. R.App. P. 4(a)(1)(A). The district court may extend that time period if (i) a party moves for the extension no later than 30 days after the time prescribed by Rule 4(a) expires and (ii) the moving party establishes excusable neglect or good cause. Fed. R.App. P. 4(a)(5). Compliance with Rule 4(a) is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir.2003). This Court has previously explained that “[t]he power of the federal courts to extend this time limitation is severely circumscribed.” Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir.1997). We review for abuse of discretion a district court’s decision to grant or deny an extension of time to file a notice of appeal, but if an appeal is filed outside the time limitations provided in Rule 4(a)(5), we lack jurisdiction. Goode v. Winkler, 252 F.3d 242, 245 (2d Cir.2001). Williams’s motion sought to establish “excusable neglect” solely on the ground that “plaintiffs counsel inadvertently closed plaintiffs case after ... the Court had dismissed her case and the plaintiff failed to instruct [her counsel] to file a Notice of Appeal” and that “plaintiff, recently, on March 21, 2003, contacted [her counsel] and indicated that she wanted [counsel] to file a Notice of Appeal herein.” Appellant Mot. for Ext. of Time. The motion further contended that Williams had “good cause for the instant appeal” because the evidence demonstrated that" }, { "docid": "8150665", "title": "", "text": "district court granted Alston’s motion, extending the period to January 23, 1995. Alston filed his motion to alter or amend the judgment, under Rule 59(e) of the Federal Rules of Civil Procedure, on January 24, 1995. The district court denied this motion on the merits on February 16, 1995. Alston filed his notice of appeal on March 17, 1995. Under the Federal Rules of Appellate Procedure, a party must file a notice of appeal with the district court clerk “within 30 days after the date of entry of the judgment or order appealed from[.]” Fed.R.App.P. 4(a)(1). This time limitation is “ ‘mandatory and jurisdictional.’ ” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). The thirty-day time period is deferred, however, if the party makes a “timely motion” under Rule 59(e) or other specified rules. See Fed. R.App.P. 4(a)(4). The thirty-day period may also be extended by the district court up to an additional thirty days if the party properly requests an extension of time from the district court “upon a showing of excusable neglect or good cause[.]” Fed.R.App.P. 4(a)(5). A Rule 59(e) motion to alter or amend the judgment “shall be served not later than 10 days after entry of the judgment.” Fed. R.Civ.P. 59(e) (1995). Under the Federal Rules of Civil Procedure, the ten-day time period does not include Saturdays, Sundays, or legal holidays. Fed.R.Civ.P. 6(a). Thus, in order to file a timely Rule 59(e) motion, Alston was required to file his motion by January 17,1995. However, Alston failed to do so, presumably because the district court, on January 13, 1995, granted him an extension of time to file his Rule 59(e) motion to alter or amend the judgment until January 23,1995. It is clear, however, that the district court was without power to enlarge the time period for filing a Rule 59(e) motion. See Fed. R.Civ.P. 6(b) (“[The district court] may not extend the time for taking any action under Rules" }, { "docid": "11173630", "title": "", "text": "first determine our appellate jurisdiction over the litany of issues Rinaldo raises on appeal. Rinaldo’s April 23, 1999, notice of appeal was untimely as to the judgment entered on March 10, 1999, because the notice was filed more than thirty days from the entry of final judgment on March 10. See Fed. R.App. P. 4(a)(1)(A) and 26(a)(3). “This 30-day time limit is ‘mandatory and jurisdictional.’ ” See Browder v. Dir., Illinois Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). Thus, in order for us to have appellate jurisdiction over the March 10 judgment and the orders that predate it, Rinaldo must have either filed a motion which would toll the appeal period, or he must have filed a document within Rule 4’s thirty-day time limit that we may construe as his notice of appeal. Rinaldo’s March 19, 1999, motion for extension of time to file his notice of appeal is the only motion filed within Rule 4’s 30-day time frame that might be considered his notice of appeal. In Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), the Supreme Court examined whether a pro se appellant’s brief could constitute a notice of appeal when filed within the time prescribed by Rule 4. The Court reasoned that Federal Rule of Appellate Procedure “3(c) governs the content of notices of appeal,” and that its requirements are to be “liberally construe[d].” Id. at 247-48, 112 S.Ct. at 681. Rule 3(c)(1) explains that a notice of appeal “must ... (A) specify the party or parties taking the appeal ... (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken.” Fed. R.App. P. 3(c)(1). Barry explains that in determining whether a document may be construed as a notice of appeal, we must first ask if “the litigant’s action is the functional equivalent of what ... [R]ule [3] requires.” Id. at 248, 112 S.Ct. at 681-82 (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 2408-09 (1988)). Next, Barry" }, { "docid": "23096079", "title": "", "text": "HENRY, Circuit Judge. Manual Espinosa-Talamantes (defendant), a federal prisoner appearing pro se, appeals the district court’s denial of his motion to modify his term of imprisonment under 18 U.S.C. § 3582(c)(2). We con- elude that defendant failed to file his notice of appeal within the ten-day period required by Fed. R.App. P. 4(b)(1)(A). However, because defendant filed his notice of appeal within the thirty-day extension period provided by Fed. R.App. P. 4(b)(4), we remand this case to the district court for the limited purpose of determining whether excusable neglect or good cause exists for the untimely filing of defendant’s notice of appeal. I. In March 2001, defendant, a non-citizen who was previously deported after being convicted of an aggravated felony, pled guilty to the offense of unlawfully reentering the United States in violation of 8 U.S.C. § 1326. In July 2001, the district court sentenced defendant to a prison term of thirty-seven months. In February 2002, defendant filed a motion under 18 U.S.C. § 3582(c)(2) to modify his term of imprisonment in light of the November 2001 amendment to USSG § 2L1.2. On February 13, 2002, the district court entered an order denying the motion, concluding that the amendment to § 2L1.2 was neither retroactive nor clarifying and that defendant was therefore not entitled to a reduction in his sentence. On March 11, 2002, defendant filed his notice of appeal regarding the February 13, 2002 order. II. “A timely notice of appeal is both mandatory and jurisdictional.” United States v. Langham, 77 F.3d 1280, 1280 (10th Cir.1996). Here, the district court docketed defendant’s motion under § 3582(c)(2) as a civil proceeding. Thus, we must determine whether the time period for filing a notice of appeal from the denial of a § 3582(c)(2) motion is the ten-day period for criminal cases under Fed. R.App. P. 4(b)(1)(A) or the sixty-day period for civil cases in which the United States is a party under Fed. R.App. P. 4(a)(1)(B). Several of our sister circuits have addressed this issue, and they have all “concluded that the ten-day period applies, reasoning that a § 3582(c)(2) motion" }, { "docid": "23067912", "title": "", "text": "In considering defendant’s appeal, we address whether Fed.R.Civ.P. 15(c) allows his amended motion to relate back to the date of his original filing. Because this presents a question of first impression in this circuit, we conclude that the issue merits further judicial consideration, and we grant a certificate of appealability. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291, and we affirm. I. Defendant pled guilty to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 841(b)(1)(C), and 18 U.S.C. § 2, and one count of conspiracy to commit the same in violation of 21 U.S.C. § 846. The sentencing court found defendant to be a career offender and sentenced him to 151 months on the conspiracy count and sixty months on the possession count, to be served concurrently. Defendant timely filed a pro se notice of appeal raising the issue of the sentencing court’s denial of a downward departure based on his ill health. Defendant’s counsel also filed a notice of appeal, a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. In his response, defendant asserted several ineffective assistance of trial counsel claims. This court granted counsel’s request to withdraw, dismissed the appeal for lack of jurisdiction over the sentencing court’s refusal to depart downward, and expressly advised defendant to bring his ineffective assistance of counsel claims in a § 2255 motion. Defendant timely filed a pro se § 2255 motion, asserting that the sentencing court erred in sentencing him on a count on which he had been found not guilty, and that the pre-sentence report inappropriately used a 1995 escape charge to enhance his criminal history category. After the expiration of his one-year limitations period under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and while his first motion was still pending, defendant filed a supplemental motion asserting a number of ineffective assistance of counsel claims. The magistrate judge found the claims in defendant’s first motion to" }, { "docid": "2550102", "title": "", "text": "orders. That is the appeal which we address now. II. The threshold issue we must consider is whether we are required to dismiss this appeal for lack of jurisdiction. By statute, for an appeal to be considered timely it must be filed “within thirty days after the entry of ... judgment, order or decree.” 28 U.S.C. § 2107(a). The Rules of Appellate Procedure contain this same deadline, providing that: “In a civil case ... the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Since Maricopa County is the party seeking to invoke our jurisdiction, it “has the burden of establishing that jurisdiction exists.” Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir.1977) (citing KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936)). Carrying this burden is no small matter, since “[t]he requirement of a timely notice of appeal is mandatory and jurisdictional,” Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir.1988) (citing Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)), meaning that we are not at liberty to overlook a defect with the notice of appeal no matter how compelling an appellant’s argument may be. The thirty-day deadline serves an important purpose, which is “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appel-lees that they are freed of the appellant’s demands.” Browder, 434 U.S. at 264, 98 S.Ct. 556 (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943) (per curiam)). Rule 4 does provide certain exceptions to and extensions of the thirty-day time requirement, such as cases in which the United States is a party, Fed. R.App. P. 4(a)(1)(B), and cases in which a party files certain post-judgment motions, Fed. R.App. P. 4(a)(4)." }, { "docid": "1903772", "title": "", "text": "Appellate Rules underscore the exclusivity of the 4(a)(6) remedy by explicitly excluding it from the blanket Rule regarding extension of other appellate time prescriptions, “For good cause, the court may extend the time prescribed by these rules.... [b]ut the court may not extend the time to file a notice of appeal (except as authorized in Rule 4).” Fed. R.App. P. 26(b); see Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir.1998). Petitioner moved to reopen pursuant to Rule 4(a)(6) on December 12, 2003. In accordance with the Rules, the motion was filed within seven days of December 5, the date on which petitioner received notice of the final judgment. This is also earlier than 180 days after the judgment, March 7, 2004. Finally, December 5 is not within 21 days of the entry of judgment, September 9. On February 10, 2004, the motion was granted and a marginal order reopened the period for appeal, extending it until February 27, 2004. However, according to the Rule, the new appeal period can only extend fourteen days after the date when the order is entered. Since the order was entered on the 10th, the Rule’s outermost deadline would have been February 24. See Fed. R.App. P. 26(a) (computing time). Petitioner filed his notice of appeal on February 26, 2004, inside of the deadline stated in the order, but outside of the Rule’s deadline. Ill A Rule 4(a) has been interpreted as both mandatory and jurisdictional by the Supreme Court and this Circuit. See Browder v. Dir., Dept. of Corrs. of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); In re Sulzer Orthopedics & Knee Prosthesis Prods. Liab. Litig., 399 F.3d 816, 817 (6th Cir.2005); Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016, 1018 (6th Cir.1983); Oja v. Dep’t of Army, 405 F.3d 1349, 1358 (Fed. Cir.2005) (noting that it is “beyond cavil” that 4(a)(6) is mandatory and jurisdictional). Other circuits have described Rule 4(a)(6)’s limited opportunity to reopen the time for appeal as one that “balances the inequity of foreclosing appeals by parties who" }, { "docid": "16773825", "title": "", "text": "District Court’s October 5 order was an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). The appeal from that order was, however, not timely. Federal Rule of Appellate Procedure 4(a)(1) provides that a notice of appeal must be filed within thirty days of the date of entry of the order appealed from. Denley’s notice of appeal was filed seventy-eight days after the October 5 order. The thirty-day period is mandatory and jurisdictional and may not be extended for substantial compliance or otherwise. E.g., Browder v. Director, Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Moorer v. Griffin, 575 F.2d 87 (6th Cir.1978); Schlink v. Chesapeake & Ohio Railway Co., 276 F.2d 116 (6th Cir.1960). Federal Rule of Appellate Procedure 4(a)(4) provides that the filing of a timely motion for reconsideration will extend the period for filing an appeal until thirty days after the order disposing of the motion. Denley’s pro se petition was considered a motion for reconsideration by the District Court, although never docketed. Reconsideration was not denied until November 26, within thirty days of the notice of appeal. However, in order to extend the time for appeal a motion for reconsideration must be timely. Browder, 434 U.S. 257, 264-65, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Schlink, 276 F.2d 116, 117 (6th Cir.1960). Federal Rule of Civil Procedure 59(e) provides that such a motion must be brought within ten days after entry of the judgment. The October 27 motions were brought twenty-two days after the order appealed from, and were therefore untimely. That the District Court nonetheless considered the motion cannot affect the timeliness of the appeal; the District Court is without power to enlarge the time for making Rule 59(e) motions. Fed.R.Civ.P. 6(b). See also, e.g., Textile Banking Co. v. Rentschler, 657 F.2d 844, 849 (7th Cir.1981); Scola v. Boat Frances, R., Inc., 618 F.2d 147, 154 (1st Cir.1980). The District Court’s pronouncement of November 26 that the appeal could be taken within thirty days of that date can also not be considered an extension of time in which to appeal" }, { "docid": "23059050", "title": "", "text": "was excusable in light of information they received from the district court clerk’s office. They maintain that we thus have jurisdiction over the appeal and should decide the case on its merits. A. General Rule We turn first to the Federal Rules of Appellate Procedure. Those rules provide that a notice of appeal in a civil case to which the United States is not a party must be filed within 30 days of entry' of the judgment from which the appeal is taken. See Fed. R.App. P. 4(a)(1). Rule 4(a), which-sets out the 30-day time limit within which this appeal had to have been taken, serves the salutary purpose of fixing the point at which litigation shall end — if an appeal has not been taken before-that date — thereby relieving prospective appellees of the demands appellant is making against them. The Rule 4(a) time limit is mandatory, and when an appeal is taken beyond the time set out in the Rule, an appellate court is, without jurisdiction to entertain and decide it. Thus, the limit is said to be “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). The time period for filing a notice of appeal. can be extended only in certain narrow circumstances, including the timely filing of one of the tolling motions specified under Fed. RApp. P. 4(a)(4), which encompasses motions under Fed.R.Civ.P. 59 to amend the judgment or for a new trial. Fed. R.App. P. 4(a)(4)(iii)-(iv). Upon denial of one of these motions, the 30-day period starts anew. But, to receive the benefit of this tolling effect, the .appealing party must file the amending motion within ten days of the entry of the underlying judgment. See Fed. R. Civ. P 6(b), 59(b); Fed. RApp. P. 4(a)(4). Having discussed the Rules, we pass next .to their application in the case at hand. The original judgment -was entered on November 26, 1997 and appellants thereafter filed two motions: a motion for a new trial and a motion to reconsider. Both motions were filed on December 15," }, { "docid": "23369757", "title": "", "text": "the district court entered an order denying Andrade a certificate of appealability. We granted Andrade a certificate of ap-pealability to raise his Eighth Amendment claim. Although Andrade initially filed his appeal pro se, we appointed counsel and ordered supplemental briefing. II. JURISDICTION We must consider as a threshold matter whether we have jurisdiction over this appeal. A timely notice of appeal is mandatory and jurisdictional. Fed. R.App. P. 3(a); Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir.1994). Rule 4(a)(1)(A) requires that a notice of appeal be filed within 30 days after the district court enters judgment where, as here, the United States is not a party. The district court may extend this period if “(i) a party so moves no later than 30 days after the time prescribed by [ ] Rule 4(a)[ (1) ] expires” and “(ii) that party shows excusable neglect or good cause.” Fed. R.App. P. 4(a)(5)(A); see also Vahan, 30 F.3d at 103. Such an extension, however, is limited to 30 days after the time prescribed by Rule 4(a)(1) or 10 days after the district court order granting the party’s motion, whichever is later. Fed. R.App. P. 4(a)(5)(C). Andrade did not file a notice of appeal until April 11, 1999, 50 days after the district court entered judgment. He did file, however, pursuant to Rule 4(a)(5)(A), a motion for extension of time on March 17, within 30 days of entry of the district court judgment. Although the district court denied the motion, Andrade asserts that his motion for extension of time was the functional equivalent of a notice of appeal. We agree. We have previously held that a motion for extension of time may not be construed as a notice of appeal. Selph v. Council of City of Los Angeles, 593 F.2d 881, 883 (9th Cir.1979), overruled on other grounds by United Artists Carp. v. La Cage Aux Folles, Inc., 771 F.2d 1265 (9th Cir.1985). In so deciding, we distinguished the case from “those few criminal" }, { "docid": "4857517", "title": "", "text": "of previous counsel; (2) improper advice by previous counsel; (3) lack of timely knowledge of this Court’s entry of summary judgment; (4) lack of sufficient time to seek new counsel; and (5) lack of financial ability to secure new counsel.” (Pl.’s Mot. at 1-2.) Plaintiffs motion, defendants’ opposition, and plaintiffs reply are now before the Court. ANALYSIS I. LEGAL STANDARD The filing of a timely notice of appeal is both mandatory and jurisdictional. Moore v. S.C. Labor Bd., 100 F.3d 162, 163 (D.C.Cir.1996) (per curiam) (citing Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)). Parties must file a notice of appeal within thirty days after judgment or the order appealed from is entered. Fed. R.App. P. 4(a)(1)(A). However, a district court retains discretion to determine whether plaintiff has shown “excusable neglect” or “good cause” sufficient to warrant the filing of a notice of appeal after the prescribed deadline has passed. See Fed. R.App. P. 4(a)(5)(A) (“The district court may extend the time to file a notice of appeal .... ”); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 n. 5 (D.C.Cir.2001) (“We review [Rule 4(a)(5)] orders on an abuse of discretion standard, see Johnson v. Lehman, 679 F.2d 918, 919-20 (D.C.Cir.1982)[.]”). “The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant.” Fed. R.App. P. 4(a)(5)(A)(ii), Advisory Committee Notes to 2002 Amendments. In contrast, the “good cause” standard applies where the motion for extension is “occasioned by something that is not within the control of the movant.... If, for example, the Postal Service fails to deliver a notice of appeal____” Id. Because the reasons given for delay were largely within plaintiffs control, the question before the Court is whether plaintiff has demonstrated “excusable neglect” to justify an extension of time to file his notice of appeal. II. EXCUSABLE NEGLECT The Supreme Court established, in Pioneer Investment Services, Inc. v. Brunswick Associates, Ltd., 507 U.S. 380, 392-94," }, { "docid": "23205494", "title": "", "text": "the cross-appeal based on defendants’ late filing of their notice of cross-appeal, and we previously issued an order to show cause why the cross-appeal should not be dismissed due to the untimely notice. A timely notice of appeal is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Browder v. Director, Department of Corrections of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978). A notice of appeal for a cross-appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from” or “within 14 days after the date when the first notice was filed, ... whichever period last expires.” •Fed.R.App.P. 4(a)(1) & (3). The judgment and denial of summary judgment in this case were entered August 17, 1993. No time tolling motion was filed. Plaintiffs filed their notice of appeal on September 15, 1993, exactly 30 days after the entry of final judgment. Defendants’ notice of cross-appeal was stamped filed on Thursday, September 30, 1993, 45 days after entry of judgment, and 15 days after the filing of plaintiffs’ notice of appeal. See Fed.R.App.P. 26(a) (directing that in computing filing times the day of the event from which the designated period begins to run is not counted but the last day of the period is counted unless it is a weekend or holiday). Therefore, if the stamped filing date is the date upon which the notice of cross-appeal is deemed to have been filed, then the notice was filed one day late, and this court would arguably not have jurisdiction over the cross-appeal. See Cyrak v. Lemon, 919 F.2d 320, 323-24 (5th Cir.1990) (applying requirements of Fed. R.App.P. 4(a)(3) strictly and dismissing cross-appeal). But see Texport Oil Co. v. M/V Amolyntos, 11 F.3d 361, 366 (2d Cir.1993) (holding that requirements of Fed. R.App.P. 4(a)(3) are more a matter of practice than jurisdictional prerequisites and exercising discretion to entertain cross-appeal even though filed one day late). However, defendants have presented an affidavit of counsel that indicates that the date stamped on the notice of cross-appeal" }, { "docid": "11173629", "title": "", "text": "the time for filing his notice of appeal. Third, on March 30, 1999, Rinaldo filed a motion for the entry of a declaratory judgment. And, on April 1, 1999, Rinaldo filed a motion to enforce the judgment in his favor. On April 12, 1999, the district court denied the motion for the entry of declaratory judgment. The following day, April 13, the court denied the motion to extend the time for filing a notice of appeal. And, finally, on May 24, the district court granted in part, and denied in part, Rinaldo’s motion to tax costs, and denied Rinaldo’s motion to enforce the judgment in his favor. In the meantime, on April 23, Rinaldo filed his first notice of appeal from the March 10 judgment and any and all orders against him or in favor of the defendants. On June 7, 1999, Rinaldo filed an amended notice of appeal, purporting to appeal all orders listed in his original notice of appeal, as well as the court’s May 24th order. APPELLATE JURISDICTION Sua sponte, we must first determine our appellate jurisdiction over the litany of issues Rinaldo raises on appeal. Rinaldo’s April 23, 1999, notice of appeal was untimely as to the judgment entered on March 10, 1999, because the notice was filed more than thirty days from the entry of final judgment on March 10. See Fed. R.App. P. 4(a)(1)(A) and 26(a)(3). “This 30-day time limit is ‘mandatory and jurisdictional.’ ” See Browder v. Dir., Illinois Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). Thus, in order for us to have appellate jurisdiction over the March 10 judgment and the orders that predate it, Rinaldo must have either filed a motion which would toll the appeal period, or he must have filed a document within Rule 4’s thirty-day time limit that we may construe as his notice of appeal. Rinaldo’s March 19, 1999, motion for extension of time to file his notice of appeal is the only motion filed within Rule 4’s 30-day time frame that might be considered his notice of appeal." }, { "docid": "4857516", "title": "", "text": "their representation agreement did not cover “post judgment litigation” and that plaintiff would “need to seek other counsel to advise and/or represent you in your appeal.” (Pl.’s Mot. Ex. 1; see also Pl.’s Reply at 1 n. 1.) Plaintiff contacted current counsel, Hnin Khaing, via e-mail on January 4, 2012, but due to scheduling conflicts, Khaing could not meet with plaintiff until January 10, and at that time, she agreed to represent him. (Pl.’s Mot. at 2-3.) On January 9, 2012, the period to file a notice of appeal lapsed. See Fed. R.App. P. 4(a)(1)(A). On January 11, 2012, plaintiff, through an associate of Khaing’s, filed a notice of appeal. (Notice of Appeal [Dkt. No. 24].) On February 6, 2012, plaintiff timely filed a motion requesting that this Court extend the deadline to file a notice of appeal to January 11, 2012. See Fed. R.App. P. 4(a)(5)(A)®. Plaintiff alleges that the following circumstances amount to both “good cause” and “excusable neglect” justifying the Court’s granting of such extension under Rule 4(a)(5): “(1) termination of representation of previous counsel; (2) improper advice by previous counsel; (3) lack of timely knowledge of this Court’s entry of summary judgment; (4) lack of sufficient time to seek new counsel; and (5) lack of financial ability to secure new counsel.” (Pl.’s Mot. at 1-2.) Plaintiffs motion, defendants’ opposition, and plaintiffs reply are now before the Court. ANALYSIS I. LEGAL STANDARD The filing of a timely notice of appeal is both mandatory and jurisdictional. Moore v. S.C. Labor Bd., 100 F.3d 162, 163 (D.C.Cir.1996) (per curiam) (citing Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)). Parties must file a notice of appeal within thirty days after judgment or the order appealed from is entered. Fed. R.App. P. 4(a)(1)(A). However, a district court retains discretion to determine whether plaintiff has shown “excusable neglect” or “good cause” sufficient to warrant the filing of a notice of appeal after the prescribed deadline has passed. See Fed. R.App. P. 4(a)(5)(A) (“The district court may extend the time to file a notice" }, { "docid": "21639745", "title": "", "text": "read the Dismissal Order. To the extent that Palmer now contends that the district court’s decision to dismiss rather than amend the pre-AEDPA motion was “mistaken,” the time to challenge that aspect of the Dismissal Order is long past. A motion to alter or amend a judgment must be filed no later than 10 days after entry of the judgment. See Fed. R. Civ. Pro. 59(e). In addition, a federal prisoner appealing the dismissal of a section 2255 petition must file the notice of appeal within 60 days of final judgment although the district court may, upon a showing of good cause, extend the period an additional 30 days. See Rules Governing Section 2255 Proceedings For the United States District Courts, Rule 11 (“time for appeal from an order entered on a motion for [section 2255] relief ... is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure”); Fed. R.App. P. 4(a)(1) (in civil case where United States is party, notice of appeal must be filed within sixty days after date of entry of final judgment). The specified period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). It applies to a pro se section 2255 motion as well. See Kapsalis v. Wilson, 380 F.2d 365, 366 (9th Cir.) (rejecting pro se petitioner’s appeal as untimely), cert. denied, 389 U.S. 878, 88 S.Ct. 180, 19 L.Ed.2d 168 (1967). Were we to conclude that Palmer by his motion to amend intended to withdraw his previously filed motion to dismiss and instead to adopt the FPD 2255 Motion, that motion was dismissed. Palmer failed to move the court to reconsider the ruling, to appeal the dismissal or to challenge the district court’s failure to rule on his outstanding motion to amend. By failing to file a notice of appeal, Palmer has waived his right to now argue that the dismissal was “mistaken.” Because the FPD 2255 Motion filed before" }, { "docid": "22929855", "title": "", "text": "I. This court cannot exercise jurisdiction absent a timely notice of appeal. United States v. Langham, 77 F.3d 1280, 1280 (10th Cir.1996) (“A timely notice of appeal is both mandatory and jurisdictional.”). The timing requirements for filing appeals in the federal courts are set out in Rule 4 of the Federal Rules of Appellate Procedure. “In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after ... the entry of either the judgment or the order being appealed.” Fed. R.App. P. 4(b)(1). If that deadline is missed, Fed. R.App. P. 4(b)(4) permits the district court, upon a proper showing of “excusable neglect or good cause,” to “extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).” In the instant ease, final judgment was entered on February 25, 1998. Since ten days after entry of judgment fell on a Saturday, March 7, the ten-day window of opportunity for a notice of appeal pursuant to Rule 4(b)(1) ended on the following Monday, March 9. See Fed. R.App. P. 26(a)(3). Smith did not file a notice of appeal by that date. On March 27, 1998, Smith filed a pro se “Motion For Out of Time Notice of Appeal” asking for a thirty-day grace period to file his appeal. The district court waited until April 16 to grant Smith’s pro se motion after finding the requisite “excusable neglect.” Smith filed his Notice of Appeal on May 4, 1998. The “time otherwise prescribed” by Rule 4(b), which triggers the beginning of the thirty-day period constraining the district court’s power to extend the appeal time, is the expiration of the original appeal period, which in this case was March 9, 1998. Thus, even though the district court’s order did not state a specific deadline for Smith to file his notice of appeal, Rule 4(b)(4) authorized the district court to grant Smith an extension of time to file his notice of appeal up to April 8, which was thirty" } ]
258638
Court noted the McCollam decision of the Supreme Court of Florida, but distinguished McCollam because in McCollam the Debtor was named the beneficiary of an actual annuity contract. In In re Conner, 172 B.R. 119 (Bankr. M.D.Fla.1994), the same court which allowed the exemption of the income stream to a lottery winner as payment under an annuity contract, rejected the exemption claim because the parties to the agreement did not intend for the settlement agreement to be an annuity. The Court agreed with the Pizzi Court, which held that there must be an actual annuity contract before the payments may be exempt pursuant to Florida Statute 222.14. The Eleventh Circuit Court of Appeals had an occasion to revisit the issue in REDACTED stating that McCollam required the existence of an actual annuity contract before a series of payments may be exempt under Florida Statute 222.14. According to Solomon, the mere fact that the payoff, which the debtor was to receive under a pre-petition settlement agreement pursuant to which the insurer made a periodic series of payments was not sufficient to transform the settlement agreement into an annuity contract. Based on the holdings, of McCollam, supra and Solomon, supra, it is evident that the periodic payments that the Debtor is to receive do not fall within the exemption provided for by Fla. Stat. 222.14. Both McCollam and Solomon require an actual annuity contract before the periodic payments fall within the exemption. In the present
[ { "docid": "18552407", "title": "", "text": "Solomon does not qualify for the exemption provided by section 222.14. We recognize that the Florida Supreme Court has broadly defined section 222.14 to include “all annuity contracts,” stating that “had the legislature intended to limit the exemption to particular annuity contracts, it would have included such restrictive language [in the statute].” McCollam, 986 F.2d at 437-38 (quoting Florida Supreme Court’s opinion with regard to question certified). But the statute does not shield all debts or “accounts receivable” structured to resemble annuities from a debtor’s bankruptcy estate. We read McCollam to require the existence of an actual annuity contract before a series of payments may be exempt under section 222.14. Accord In re Conner, 172 B.R. 119, 121 (Bankr.M.D.Fla.1994) (stating that “[i]f all that is required to establish an annuity contract is a stream of payments over time, ail installment contracts would qualify as an annuity and that is clearly not what the McCollam decision requires”). The district court concluded that, because McCollam’s broad definition of “annuity” includes “debts structured as annuities,” “the settlement agreement in this case constitutes proceeds of an annuity contract exempt under Fla.Stat. § 222.14.” Solomon, 186 B.R. at 538. The district court read McCollam too broadly; the fact that Solomon received a series of payments under the settlement agreement does not necessarily transform the agreement into an annuity contract exempted by section 222.14. To qualify for the exemption, the parties to the agreement must have intended to create an annuity contract. See Conner, 172 B.R. at 121; In re Dillon, 166 B.R. 766, 769 (Bankr.S.D.Fla.1994). The language of the agreement between Solomon and Union Mutual reveals that the parties did not intend to create such a contract. See Conner, 172 B.R. at 121 (agreement must be identified as an annuity within four corners of the contract); Dillon, 166 B.R. at 768 (“Had the Debtor intended the settlement payments to be paid under an annuity contract, he had the ability to create such a document.”); Pizzi, 153 B.R. at 362 (lottery winnings never termed proceeds of an annuity; winner never called “beneficiary” or “payee”). The settlement" } ]
[ { "docid": "12946678", "title": "", "text": "debtor’s argument herein. Unlike McCo-llam, this case involves a settlement agreement which includes, in addition to monthly payments, a single payment upon closing of the agreement, a single balloon payment at the conclusion of the term of the monthly payments, and the payment of Solomon’s attorneys fees. Only the monthly payments and the single balloon payment at the end are required to be funded by the purchase of an annuity contract. Beyond the monthly payments, the remaining payments under the settlement agreement in this case are not periodic and bear no resemblance to an annuity. If the balloon payment in this case were construed to constitute an annuity, it is hard to conceive of any limitation on the exemption provided by Florida Statutes § 222.14. Moreover, unlike McCollam, this case involves an annuity contract of which the debtor is neither owner nor beneficiary. Indeed, the agreement in this case provides that Solomon will have no legal or equitable interest, vested or contingent, in the annuities. The Florida exemption applies only to annuity contracts issued to citizens or residents of the state and of which the debtor is the beneficiary. In its opinion in McCollam, the Court noted that, unlike Solomon, the debtor was the beneficiary/payee under the annuity contract. 986 F.2d at 436. The Bankruptcy Court opinion in McCollam, 110 B.R. 599, 601 (Bankr.S.D.Fla.1990), additionally reveals that, unlike Solomon, the debtor in that case had the right to change beneficiaries. In this regard, the instant case is more like In re Pizzi, 153 B.R. 357 (Bankr.S.D.Fla.1993), wherein Judge Robert A. Mark held that the proceeds of an annuity contract issued to the State of Connecticut to provide the funds for the payment of lottery winnings by the State of Connecticut to the debtor were not exempt under Florida Statutes § 222.14. Judge Mark reasoned that the annuity contract was issued to the State of Connecticut, and that the debtor was not the beneficiary of the annuity contract. Similarly, the annuity contract at issue herein does not meet the statutory requirements for exemption under Florida Statutes § 222.14 in that the" }, { "docid": "18552405", "title": "", "text": "the Transameriea annuity. Id. The district eourt affirmed in part and reversed in part. The court agreed with the bankruptcy court that the payment earmarked as attorney’s fees by the agreement did not qualify under section 222.14 for an exemption. But the eourt concluded that, under the broad definition of “annuity” provided by the Florida Supreme Court, see LeCroy v. McCollam (In re McCollam), 612 So.2d 572 (Fla.1993), answering question certified in 955 F.2d 678 (11th Cir.1992), answer conformed to, 986 F.2d 436 (11th Cir.1993), it was bound to hold that the payments other than the attorney’s fees required by the settlement agreement constituted an annuity contract, exempt under section 222.14 from Solomon’s bankruptcy estate. Guardian Life, 186 B.R. at 538. Guardian Life appeals the district court’s order to the extent that it reversed the bankruptcy court. DISCUSSION On appeal, we are presented with the same issue addressed by the district court: whether Solomon’s settlement agreement with Union Mutual constitutes an annuity contract within the meaning of Fla.Stat. § 222.14, so that it is exempt from Solomon’s bankruptcy estate. We review de novo determinations of law, whether made by the bankruptcy court or the district court. Reid-er v. Federal Deposit Ins. Corp. (In re Reider), 31 F.3d 1102, 1104 (11th Cir.1994) (citing Equitable Life Assurance Soc. v. Sublett (In re Sublett), 895 F.2d 1381 (11th Cir.1990)). Guardian Life contends that the district court erred in concluding that the settlement agreement is an annuity contract exempt from Solomon’s bankruptcy estate. Guardian Life asserts that the agreement is not exempt because it is not an annuity contract at all. Guardian Life alleges that neither Solomon nor Union Mutual intended for the agreement to be considered an annuity contract, and it asserts that, except for the monthly payments, none of the agreement’s other provisions bear any similarity to an annuity. By contrast, Solomon urges that we affirm the district court, arguing that the court correctly relied upon McCollam’s broad definition of “annuity” to conclude that the settlement agreement qualifies for the section 222.14 exemption. We conclude that the agreement between Union Mutual and" }, { "docid": "18506820", "title": "", "text": "CLARK, Senior Circuit Judge: This case involves whether an asset (classified as an annuity) of a debtor qualifies as an exemption from creditor claims in bankruptcy under Fla.Stat. § 222.14. The Supreme Court of Florida has never addressed the specific issue presented here: whether an annuity contract which is established in lieu of a creditor paying a debtor a lump sum presently owed is exempt under this statute. Although the plain language of the statute appears to exempt all annuity contracts from creditor claims, our research reveals that courts in jurisdictions other than Florida have held that statutes similar to Fla.Stat. § 222.14 do not exempt annuity contracts established in settlement of a debt. Since this same issue could arise in a Florida court as a consequence of a levy or garnishment filed against a debtor, the issue is appropriate for resolution by Florida’s highest court. Accordingly, we certify the question to the Supreme Court of Florida. CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA PURSUANT TO ARTICLE 5, SECTION 3(b)(1) OF THE FLORIDA CONSTITUTION. TO THE SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES: I. Statement of the Facts and Procedural Background The facts in this case are undisputed. The debtor, McCollam, is a beneficiary/payee under an annuity contract purchased by Travelers Insurance Company (“Travelers”) to provide payments in connection with a general release and settlement agreement entered into on July 9, 1985. The debtor, as survivor of her father, was awarded the contract as part of a settlement of her father’s estate’s wrongful death claim against National Car Rental System, Inc.; Maurice Elijah Moore, M.P.; and Travelers. Under the agreement, the debt obligation of Travelers is liquidated and discharged by the amount of each successive annuity payment. As beneficiary and payee under the contract, McCollam is entitled to receive monthly payments of $1,320.00, subject to a 3% annual increase, ceasing upon her death or, if she dies before August 1, 2015, payable to her personal representative until August 1, 2015. In addition, McCollam receives five periodic lump sum" }, { "docid": "18552408", "title": "", "text": "in this case constitutes proceeds of an annuity contract exempt under Fla.Stat. § 222.14.” Solomon, 186 B.R. at 538. The district court read McCollam too broadly; the fact that Solomon received a series of payments under the settlement agreement does not necessarily transform the agreement into an annuity contract exempted by section 222.14. To qualify for the exemption, the parties to the agreement must have intended to create an annuity contract. See Conner, 172 B.R. at 121; In re Dillon, 166 B.R. 766, 769 (Bankr.S.D.Fla.1994). The language of the agreement between Solomon and Union Mutual reveals that the parties did not intend to create such a contract. See Conner, 172 B.R. at 121 (agreement must be identified as an annuity within four corners of the contract); Dillon, 166 B.R. at 768 (“Had the Debtor intended the settlement payments to be paid under an annuity contract, he had the ability to create such a document.”); Pizzi, 153 B.R. at 362 (lottery winnings never termed proceeds of an annuity; winner never called “beneficiary” or “payee”). The settlement agreement wholly concerns itself with resolving Solomon’s 1984 claims against Union Mutual; it is a garden variety release of liability. The district court therefore erred by concluding that section 222.14 applies to exempt the payments made under the agreement from Solomon’s bankruptcy estate. CONCLUSION We reverse the district court’s order overruling Guardian Life’s objection to the claimed exemption and remand to the district court for further proceedings consistent with this opinion. REVERSED and REMANDED. . Guardian Life also argues that the Trans-america annuily purchased by Union Mutual to ensure adequate funding of the agreement does not qualify for an exemption under § 222.14. But Solomon concedes that the Transameriea annuily cannot be the basis for an exemption, because he has never had a legal or equitable interest in that annuity contract. See In re Pizzi, 153 B.R. 357, 360-61 (Bankr.S.D.Fla.1993) (construing § 222.14 to require that debtor be the beneficiary of annuity contract in question in order to qualify for exemption). In this appeal, then, we address only the character of the settlement agreement between" }, { "docid": "1194953", "title": "", "text": "in § 522(d), thus debtor’s right to exempt property from the estate is controlled by Florida law. Section 222.20 Fla.Stat. Debtor claims as exempt, pursuant to Fla. Stat. 222.14, the payments received and the right to receive future payments pursuant to the property settlement and judgment. Section 222.14 states in relevant part: The cash surrender value of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor. The sole issue before the Court is whether the property settlement payments provided in the judgment of dissolution of marriage are proceeds of an annuity contract pursuant to section 222.14. The Florida Supreme Court addressed the definition of annuity contract in the context of section 222.14 in In re McCollam, 612 So.2d 572 (Fla.1993). In McCollam, the Supreme Court answered the question “whether as a matter of law, an annuity contract which is established in lieu of a creditor paying a debtor a lump sum presently owed is exempt from creditor claims in bankruptcy under Fla.Stat. 222.14” in the affirmative. The Court declined to focus on the underlying obligation, rather, the Court focused on the payment structure of the contract. In reaching its conclusion that the term should be broadly construed and that the contract qualified as an annuity contract pursuant to 222.14, the Court considered the definition of annuity used by other courts and Black’s Law Dictionary. However, the Court specifically found that the debtor was the beneficiary/payee of an annuity contract purchased to provide payments pursuant to the settlement agreement between debtor and Travelers Insurance Company. The trustee relies upon In re Pizzi, 153 B.R. 357 (Bankr.S.D.Fla.1993) in urging this Court to hold that" }, { "docid": "9970989", "title": "", "text": "Kathleen Pizzi should be considered annuity payments. Does this income stream fall within the definition of annuity under Fla.Stat. § 222.-14? The definition of an annuity under Florida law has been recently addressed by the Florida Supreme Court. In re McCollam, 612 So.2d 572 (Fla.1993). McCollam involved another tragic automobile accident and the damage settlement stemming from the wrongful death action. Under the terms of the agreement Travelers Insurance Company purchased an annuity contract. The debtor was listed as the beneficiary and payee under the contract. Traveler’s debt obligation to the debtor is liquidated and discharged by the amount of each successive annuity payment. The bankruptcy and district court concluded that the contract was an annuity contract and held that the proceeds were exempt assets in the debtor beneficiary’s bankruptcy case. On further appeal, the 11th Circuit deemed it appropriate for the Florida Supreme Court to determine the scope of the “annuity contract” exemption in Fla.Stat. § 222.14. It certified the following question to the Florida Supreme Court: Whether, as a matter of law, an annuity contract which is established in lieu of a creditor paying a debtor a lump sum presently owed is exempt from creditor claims in bankruptcy under Fla.Stat. § 222.14. In re McCollam, 955 F.2d 678 (11th Cir.1992). In a four to three decision, the Florida Supreme Court employed the plain meaning doctrine and concluded that, on its face, the statute applies to all annuity contracts. The Court rejected the dissent’s resort to legislative history stating that “legislative history is irrelevant where the wording of a statute is clear.” Utilizing a broad definition of “annuity,” the Court concluded that the contract at issue was within the statutory exemption. 612 So.2d at 574. McCollam holds that the purpose or source of funds of an annuity contract does not affect the exemption. McCollam’s holding should not be extended further to enable debtors to exempt payment streams that are not payments under an actual annuity contract. Thus, McCollam does not compel a finding that the payment stream from Connecticut to the Debtor is itself an annuity and this Court" }, { "docid": "1194954", "title": "", "text": "Florida Supreme Court addressed the definition of annuity contract in the context of section 222.14 in In re McCollam, 612 So.2d 572 (Fla.1993). In McCollam, the Supreme Court answered the question “whether as a matter of law, an annuity contract which is established in lieu of a creditor paying a debtor a lump sum presently owed is exempt from creditor claims in bankruptcy under Fla.Stat. 222.14” in the affirmative. The Court declined to focus on the underlying obligation, rather, the Court focused on the payment structure of the contract. In reaching its conclusion that the term should be broadly construed and that the contract qualified as an annuity contract pursuant to 222.14, the Court considered the definition of annuity used by other courts and Black’s Law Dictionary. However, the Court specifically found that the debtor was the beneficiary/payee of an annuity contract purchased to provide payments pursuant to the settlement agreement between debtor and Travelers Insurance Company. The trustee relies upon In re Pizzi, 153 B.R. 357 (Bankr.S.D.Fla.1993) in urging this Court to hold that receiving periodic payments is merely an incidence of an annuity and that alone is not sufficient to establish an annuity. In Pizzi, the State of Connecticut purchased an annuity contract with Metropolitan Life Insurance Company to fulfill its obligation to debtor as lottery winner. Connecticut was listed as the beneficiary, contingent beneficiary and owner of the contract. The Court held that the payments received by debtor from the state, which received the payments from the annuity, were not exempt because the state was not a citizen or resident of the State of Florida and because the debtor was not the beneficiary or payee of the annuity but merely received the proceeds from the annuity. The Pizzi Court declined to stretch McCollam beyond its already broad outline, stating “McCollam’s holding should not be extended further to enable debtors to exempt payment streams that are not payments under an actual annuity contract.” Id. at 362. This Court agrees with the Pizzi court that McCollam requires an actual annuity contract before payments received may be exempt pursuant to" }, { "docid": "1196715", "title": "", "text": "or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor. Fla.Stat.Ann. § 222.14 (West 1990) (emphasis added). A strict reading of the above statute, accompanied by this Court’s review of the undisputed facts, complies this Court to hold that the instant contract issued to McCollam was an annuity contract, McCo-llam is a resident of this state and the beneficiary of the annuity contract. See, General Release and Settlement Agreement between Paula Lea Coombs (McCo-llam), et al. and Travelers Insurance Co., et al., dated July 9, 1985. The Court, therefore, concludes that McCollam’s annuity contract is exempt property under the Homestead protection of Florida Statute § 222.14, and that as a creditor of McCollam, LeCroy cannot at tach, garnish or serve legal process against McCollam’s annuity contract. The appellant, creditor LeCroy, states several theories to support his position. Specifically, the appellant claims that: 1. The payment to the debtor from the annuity company are not “proceeds” of an annuity contract; 2. The Florida exemption statute required that an annuity be issued to a Florida resident debtor; 3. The debtor is merely a third party beneficiary, and has no property interest in the annuity; 4. The annuity obligation itself is not claimed to be exempt under bankruptcy law, because it is secured by an annuity owned by Travelers; and 5. The debtor is merely investing in a personal injury settlement which is a tax shelter and not an answer. The Court finds that none of these theories are compelling or sustain any merit. The appellant’s argument over the semantics behind the term “proceeds” do not carry any weight, as the settlement agreement clearly entitles McCollam to payments under the annuity. There is no dispute that McCollam is a Florida resident. McCollam is the named beneficiary in the annuity policy and is protected by § 222.14. The statute merely requires that the proceeds of the annuity contracts be paid to a Florida resident, and does not state any requirement as to the annuity" }, { "docid": "1196716", "title": "", "text": "of an annuity contract; 2. The Florida exemption statute required that an annuity be issued to a Florida resident debtor; 3. The debtor is merely a third party beneficiary, and has no property interest in the annuity; 4. The annuity obligation itself is not claimed to be exempt under bankruptcy law, because it is secured by an annuity owned by Travelers; and 5. The debtor is merely investing in a personal injury settlement which is a tax shelter and not an answer. The Court finds that none of these theories are compelling or sustain any merit. The appellant’s argument over the semantics behind the term “proceeds” do not carry any weight, as the settlement agreement clearly entitles McCollam to payments under the annuity. There is no dispute that McCollam is a Florida resident. McCollam is the named beneficiary in the annuity policy and is protected by § 222.14. The statute merely requires that the proceeds of the annuity contracts be paid to a Florida resident, and does not state any requirement as to the annuity contract itself. In re Benedict, 88 B.R. at 389. Finally, as the bankruptcy court has stated, the argument by the creditor that the annuity was motivated by tax considerations has no bearing on McCollam’s entitlement to statutory exemption. The creditor’s arguments in his reply brief similarly do not compel this Court to remove McCollam’s annuity proceeds from statutory exemption. The annuity itself is not what is exempted by Florida Statute § 222.14. The proceeds from the annuity contracts, because they are paid directly to a beneficiary who is a Florida resident, are protected by the exemption. The fact remains, therefore, that debtor McCollam meets the statutory requirements of Florida Statute § 222.14. The Court has reviewed the appellate briefs, the record, and being otherwise duly advised, it is hereby: ORDERED AND ADJUDGED that appellant herein has failed to demonstrate that the factual findings of the Bankruptcy Court were clearly erroneous, and has failed to demonstrate that the Bankruptcy Court committed any errors of law. It is ORDERED therefore that the Order of the Bankruptcy Court" }, { "docid": "9970991", "title": "", "text": "will not broadly interpret McCollam to reach that result. Indeed, considering the strong dissent by three of the Justices, this Court believes a majority of the Florida Supreme Court would emphatically reject the Debtor’s argument here. Moreover, the facts in McCollam are distinguishable from the facts presented here, and therefore McCollam is not controlling. In McCollam the court analyzed an annuity contract purchased to settle a personal injury .lawsuit. Although the reasons for purchasing the annuity are unique, the facts remain that what was bought was an annuity in the name of the debtor. Here, the income stream flowing directly to the Debtor is not an annuity at all. The monies are prize winnings stemming from the winning of the lottery. The Connecticut Lottery regulations never refers to the winnings as proceeds of an annuity, and the winner is never referred to as the beneficiary or payee of an annuity. The only annuity contract here is the annuity purchased by the State of Connecticut for its benefit and as discussed earlier, the Debtor is not a beneficiary of that contract. Even under the broad definition of annuity adopted in McCollam, the monies Ms. Pizzi receives from Connecticut each year are not the “proceeds of an annuity contract” under Fla.Stat. § 222.14. POLICY ARGUMENTS The Debtor argues that exemptions should be liberally construed in favor of debtors. She cites to both In re Mart, 88 B.R. 436 (Bankr.S.D.Fla.1988) and Killian v. Lawson, 387 So.2d 960 (Fla.1980) for the proposition that the “exemption statutes rest on considerations of public policy and should be liberally construed in favor of a debtor so that he and his family will not become public charges.” 387 So.2d at 962. The banks argue that § 222.14 is intended to protect annuity contracts which provide life insurance and retirement benefits. To broadly interpret the statute and allow lottery winnings to be claimed as exempt would, they argue, be unfair and beyond the intended purpose of the exemption. This Court agrees that it would be inequitable for a Debtor to obtain loans in reliance upon her lottery winnings and" }, { "docid": "9970993", "title": "", "text": "then discharge these obligations without turning over the winnings to her estate. The exemption laws were not intended to protect instant millionaires from paying their legitimate debts. See In re Meyers, 139 B.R. 868 (Bankr.N.D.Ohio 1992), citing In re Brown, 86 B.R. 944, 947 (N.D.Ind.1988) (lottery payments, as a matter of law and policy, are included in the bankruptcy estate). Notwithstanding strong policy arguments to include lottery winnings in the estate, the Court’s decision today does not and could not rest on policy grounds given the Florida Supreme Court’s broad interpretation of § 222.14 in McCollam. Inequitable or not, if a lottery winner is specifically named as a beneficiary of an annuity contract purchased to fund a state’s obligations, the winnings may be exempt. That result is compelled by the McCollam majority’s conclusion that the purpose and nature of an annuity is irrelevant if the contract fits the broad definition of an annuity contract. Thus, while the Court is denying Debt- or’s exemption claim here because she is not the beneficiary under the annuity contract, the Court would not and could not deny the exemption on policy grounds. If exempting lottery winnings is against public policy, the legislature should clarify and expressly limit the scope of § 222.14. As it now reads and as it has been interpreted by the Florida Supreme Court, the payment of lottery winnings, litigation settlements and other obligations through the vehicle of an annuity could allow debtors to successfully exempt the payments in a bankruptcy case. CONCLUSION Section 222.14 of the Florida Statutes allows debtors to exempt the payments received under annuity contracts. Based upon the Florida Supreme Court’s broad interpretation of this section, even the payout of a lottery jackpot could be exempt if the state discharged its obligations by purchasing an annuity contract naming the debtor as beneficiary. In this case, the State of Connecticut purchased an annuity to facilitate but not discharge its obligation to pay Kathleen Pizzi $128,105.17 per year for twenty years. She is not a beneficiary under the annuity contract and therefore cannot claim the payments as exempt. Moreover," }, { "docid": "9970988", "title": "", "text": "the State receives from the annuity. Although the State of Connecticut chose to purchase annuities to pay off its lottery prizes, it is doing so for its own purposes and benefit and not for the benefit of the Debtor. If the State was unable to meet its obligations to the Debt- or, the Debtor would have no claim against Met Life. Likewise, the State of Connecticut would still have the obligation to pay the Debtor regardless of Met Life’s solvency or its receipt of annuity payments from Met Life. The privity of the annuity contract is exclusively between Met Life and the State of Connecticut. There is no privity between the Debtor and Met Life. In sum, the Debtor is not a “beneficiary” of the annuity purchased by the State of Connecticut from Met Life and therefore cannot exempt the proceeds under § 222.14. C. The Payments From the State of Connecticut to Ms. Pizzi Are Not Annuity Payments The Court must alternatively consider whether the yearly payments paid by the State of Connecticut to Kathleen Pizzi should be considered annuity payments. Does this income stream fall within the definition of annuity under Fla.Stat. § 222.-14? The definition of an annuity under Florida law has been recently addressed by the Florida Supreme Court. In re McCollam, 612 So.2d 572 (Fla.1993). McCollam involved another tragic automobile accident and the damage settlement stemming from the wrongful death action. Under the terms of the agreement Travelers Insurance Company purchased an annuity contract. The debtor was listed as the beneficiary and payee under the contract. Traveler’s debt obligation to the debtor is liquidated and discharged by the amount of each successive annuity payment. The bankruptcy and district court concluded that the contract was an annuity contract and held that the proceeds were exempt assets in the debtor beneficiary’s bankruptcy case. On further appeal, the 11th Circuit deemed it appropriate for the Florida Supreme Court to determine the scope of the “annuity contract” exemption in Fla.Stat. § 222.14. It certified the following question to the Florida Supreme Court: Whether, as a matter of law, an" }, { "docid": "18552404", "title": "", "text": "Mutual was named as the payee under the Trans-america annuity contract; Solomon is not a party to that annuity contract. Solomon filed a Chapter 7 bankruptcy petition in December 1993. Solomon listed the settlement agreement as property exempt from his bankruptcy estate as an annuity under Fla.Stat. § 222.14 (West 1989), which provides, in relevant part: the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be Hable to attachment, garnishment or legal process in favor ... of any creditor of the person who is the beneficiary of such annuity contract.... Guardian Life, a creditor, objected to the claimed exemption. After a hearing, the bankruptcy eourt sustained the objection, concluding that the “Florida exemption applies only to annuity contracts issued to citizens or residents of the state and of which the debtor is the beneficiary.” Solomon, 166 B.R. at 999. The bankruptcy court held that Solomon’s settlement agreement was not exempt, both because of its payment structure and because Solomon had no interest in the Transameriea annuity. Id. The district eourt affirmed in part and reversed in part. The court agreed with the bankruptcy court that the payment earmarked as attorney’s fees by the agreement did not qualify under section 222.14 for an exemption. But the eourt concluded that, under the broad definition of “annuity” provided by the Florida Supreme Court, see LeCroy v. McCollam (In re McCollam), 612 So.2d 572 (Fla.1993), answering question certified in 955 F.2d 678 (11th Cir.1992), answer conformed to, 986 F.2d 436 (11th Cir.1993), it was bound to hold that the payments other than the attorney’s fees required by the settlement agreement constituted an annuity contract, exempt under section 222.14 from Solomon’s bankruptcy estate. Guardian Life, 186 B.R. at 538. Guardian Life appeals the district court’s order to the extent that it reversed the bankruptcy court. DISCUSSION On appeal, we are presented with the same issue addressed by the district court: whether Solomon’s settlement agreement with Union Mutual constitutes an annuity contract within the meaning of Fla.Stat. § 222.14, so that it is exempt" }, { "docid": "12946679", "title": "", "text": "citizens or residents of the state and of which the debtor is the beneficiary. In its opinion in McCollam, the Court noted that, unlike Solomon, the debtor was the beneficiary/payee under the annuity contract. 986 F.2d at 436. The Bankruptcy Court opinion in McCollam, 110 B.R. 599, 601 (Bankr.S.D.Fla.1990), additionally reveals that, unlike Solomon, the debtor in that case had the right to change beneficiaries. In this regard, the instant case is more like In re Pizzi, 153 B.R. 357 (Bankr.S.D.Fla.1993), wherein Judge Robert A. Mark held that the proceeds of an annuity contract issued to the State of Connecticut to provide the funds for the payment of lottery winnings by the State of Connecticut to the debtor were not exempt under Florida Statutes § 222.14. Judge Mark reasoned that the annuity contract was issued to the State of Connecticut, and that the debtor was not the beneficiary of the annuity contract. Similarly, the annuity contract at issue herein does not meet the statutory requirements for exemption under Florida Statutes § 222.14 in that the annuity contract was not issued to Solomon and Solomon is not the beneficiary under the annuity. Finally, Solomon’s argument that the Settlement Agreement and Release were motivated by tax considerations and that the language therein was tailored to meet specific rulings of the Internal Revenue Service has no bearing on the debtor’s entitlement to claim a statutory exemption. CONCLUSION For the foregoing reasons, Guardian’s objection to the debtor’s exemption of the annuity is sustained. DONE and ORDERED. . In response to Guardian's Request for Production of Documents seeking the actual annuity contracts with TransAmerica, Solomon's counsel represented that Solomon was not the beneficiary of the contracts and did not have copies of the contracts." }, { "docid": "12946677", "title": "", "text": "986 F.2d 436 (11th Cir.1993) (applying Florida law). In Black’s Law Dictionary, an annuity is defined as “a right to receive fixed, periodic payments, either for life or for a term of years.” Under each of these definitions, the single lump sum payment of $450,000 in 1985 cannot be considered the proceeds of an annuity contract. Solomon’s reliance on McCollam, supra, is misplaced. In McCollam, the Court considered an annuity contract purchased by Travelers to provide payments in connection with a structured settlement agreement between Travelers and the debtor. The agreement provided for monthly payments of $1,320 during the life of the debtor or until the year 2015, and for five (5) lump sum payments on specified dates prior to the year 2015. The Court relied upon the above-referenced definitions to hold that the payments were exempt under Florida Statutes § 222.14. Although there are some similarities between the instant case and McCollam, in that both involve annuity contracts purchased to fund a structured settlement agreement, the dissimilarities are more striking and fatal to the debtor’s argument herein. Unlike McCo-llam, this case involves a settlement agreement which includes, in addition to monthly payments, a single payment upon closing of the agreement, a single balloon payment at the conclusion of the term of the monthly payments, and the payment of Solomon’s attorneys fees. Only the monthly payments and the single balloon payment at the end are required to be funded by the purchase of an annuity contract. Beyond the monthly payments, the remaining payments under the settlement agreement in this case are not periodic and bear no resemblance to an annuity. If the balloon payment in this case were construed to constitute an annuity, it is hard to conceive of any limitation on the exemption provided by Florida Statutes § 222.14. Moreover, unlike McCollam, this case involves an annuity contract of which the debtor is neither owner nor beneficiary. Indeed, the agreement in this case provides that Solomon will have no legal or equitable interest, vested or contingent, in the annuities. The Florida exemption applies only to annuity contracts issued to" }, { "docid": "9970992", "title": "", "text": "a beneficiary of that contract. Even under the broad definition of annuity adopted in McCollam, the monies Ms. Pizzi receives from Connecticut each year are not the “proceeds of an annuity contract” under Fla.Stat. § 222.14. POLICY ARGUMENTS The Debtor argues that exemptions should be liberally construed in favor of debtors. She cites to both In re Mart, 88 B.R. 436 (Bankr.S.D.Fla.1988) and Killian v. Lawson, 387 So.2d 960 (Fla.1980) for the proposition that the “exemption statutes rest on considerations of public policy and should be liberally construed in favor of a debtor so that he and his family will not become public charges.” 387 So.2d at 962. The banks argue that § 222.14 is intended to protect annuity contracts which provide life insurance and retirement benefits. To broadly interpret the statute and allow lottery winnings to be claimed as exempt would, they argue, be unfair and beyond the intended purpose of the exemption. This Court agrees that it would be inequitable for a Debtor to obtain loans in reliance upon her lottery winnings and then discharge these obligations without turning over the winnings to her estate. The exemption laws were not intended to protect instant millionaires from paying their legitimate debts. See In re Meyers, 139 B.R. 868 (Bankr.N.D.Ohio 1992), citing In re Brown, 86 B.R. 944, 947 (N.D.Ind.1988) (lottery payments, as a matter of law and policy, are included in the bankruptcy estate). Notwithstanding strong policy arguments to include lottery winnings in the estate, the Court’s decision today does not and could not rest on policy grounds given the Florida Supreme Court’s broad interpretation of § 222.14 in McCollam. Inequitable or not, if a lottery winner is specifically named as a beneficiary of an annuity contract purchased to fund a state’s obligations, the winnings may be exempt. That result is compelled by the McCollam majority’s conclusion that the purpose and nature of an annuity is irrelevant if the contract fits the broad definition of an annuity contract. Thus, while the Court is denying Debt- or’s exemption claim here because she is not the beneficiary under the annuity contract," }, { "docid": "1194955", "title": "", "text": "receiving periodic payments is merely an incidence of an annuity and that alone is not sufficient to establish an annuity. In Pizzi, the State of Connecticut purchased an annuity contract with Metropolitan Life Insurance Company to fulfill its obligation to debtor as lottery winner. Connecticut was listed as the beneficiary, contingent beneficiary and owner of the contract. The Court held that the payments received by debtor from the state, which received the payments from the annuity, were not exempt because the state was not a citizen or resident of the State of Florida and because the debtor was not the beneficiary or payee of the annuity but merely received the proceeds from the annuity. The Pizzi Court declined to stretch McCollam beyond its already broad outline, stating “McCollam’s holding should not be extended further to enable debtors to exempt payment streams that are not payments under an actual annuity contract.” Id. at 362. This Court agrees with the Pizzi court that McCollam requires an actual annuity contract before payments received may be exempt pursuant to section 222.14. The critical distinction between this case and the cases cited by the parties is that the contract in those cases is identified as an annuity within the four comers of the contract. In re McCollam, 612 So.2d 572; In re Dixson, 153 B.R. 594 (Bankr.M.D.Fla.1993); In re Mart, 88 B.R. 436 (Bankr.S.D.Fla.1988). In this case, there is no evidence that the parties intended to create an annuity, rather, the language of the contract supports the conclusion that the parties did not intend to create an annuity. Debtor and her former husband entered into a contract and bargained for exchange of debtor’s half interest in their joint property for cash. The bargain was structured so that the former husband could pay installments. Paragraph 7 refers to the exchange as an “equitable distribution” and refers to the debtor and her former husband as parties to the contract, not as beneficiary or payee. It is clear, from the four corners of the agreement, that the parties did not intend for the settlement agreement to be an" }, { "docid": "14607161", "title": "", "text": "property of Wentworth. The Court finds that Debtor’s actions fall within the Supreme Court’s intended meaning of willful and malicious injury to property of another. Accordingly, Wentworth’s pre-petition loss of $14,500.00 is a debt that will be excepted from Debtor’s discharge. Additionally, the Court notes that all post-petition annuity payments belong to Wentworth and should be turned over to Wentworth immediately. Any deficit from the full amount of post-petition funds due to Wentworth, derived from Debtor receiving and spending such funds, is a debt owed to Wentworth and Wentworth may seek to collect such debt in an appropriate forum. c. Objection to Exemption Wentworth’s Objection to Exemptions is also before the Court. Annuities used to fund structured settlement agreements have been found not to fall within Florida’s exemptions for annuities provided in Florida Statutes § 222.14. Guardian Life Inc. Co. v. Solomon (In re Solomon), 95 F.3d 1076 (11th Cir.1996). However, upon the distinguishable facts of this case and the broad interpretation of the meaning of annuity by the Supreme Court of Florida, the Court finds that any interest that Debtor did not sell under the Purchase Agreement and amendments thereto is exempt property under Florida Statutes § 222.14. See LeCroy v. McCollam (In re McCollam), 986 F.2d 436 (11th Cir.1993) (Supreme Court of Florida broadly interprets meaning of annuity upon certification of question by the Eleventh Circuit Court of Appeals). CONCLUSION While the Court is sympathetic toward that which results from Debtor’s poor financial management, and what this Court perceives as a gambling problem, there is just no basis to find that Debtor’s right to receive payments under the annuity was property of the estate upon Debtor’s filing for bankruptcy protection. Additionally, the facts support the requisite burden necessary to except the debt created by Debt- or’s redirecting annuity payments to himself that Debtor had already validly sold to Wentworth. Finally, Debtor’s remaining interest in the annuity is exempt under state law. A separate Order will be entered in accordance with these Findings of Fact and Conclusions of Law. JUDGMENT This Proceeding is before the Court upon a Complaint" }, { "docid": "9970990", "title": "", "text": "annuity contract which is established in lieu of a creditor paying a debtor a lump sum presently owed is exempt from creditor claims in bankruptcy under Fla.Stat. § 222.14. In re McCollam, 955 F.2d 678 (11th Cir.1992). In a four to three decision, the Florida Supreme Court employed the plain meaning doctrine and concluded that, on its face, the statute applies to all annuity contracts. The Court rejected the dissent’s resort to legislative history stating that “legislative history is irrelevant where the wording of a statute is clear.” Utilizing a broad definition of “annuity,” the Court concluded that the contract at issue was within the statutory exemption. 612 So.2d at 574. McCollam holds that the purpose or source of funds of an annuity contract does not affect the exemption. McCollam’s holding should not be extended further to enable debtors to exempt payment streams that are not payments under an actual annuity contract. Thus, McCollam does not compel a finding that the payment stream from Connecticut to the Debtor is itself an annuity and this Court will not broadly interpret McCollam to reach that result. Indeed, considering the strong dissent by three of the Justices, this Court believes a majority of the Florida Supreme Court would emphatically reject the Debtor’s argument here. Moreover, the facts in McCollam are distinguishable from the facts presented here, and therefore McCollam is not controlling. In McCollam the court analyzed an annuity contract purchased to settle a personal injury .lawsuit. Although the reasons for purchasing the annuity are unique, the facts remain that what was bought was an annuity in the name of the debtor. Here, the income stream flowing directly to the Debtor is not an annuity at all. The monies are prize winnings stemming from the winning of the lottery. The Connecticut Lottery regulations never refers to the winnings as proceeds of an annuity, and the winner is never referred to as the beneficiary or payee of an annuity. The only annuity contract here is the annuity purchased by the State of Connecticut for its benefit and as discussed earlier, the Debtor is not" }, { "docid": "1196714", "title": "", "text": "this Court to reverse the bankruptcy court’s order on the exemption of the annuity contract from legal process. LeCroy also prays that this Court find as a matter of law that the annuity owed McCollam by Travelers not be exempted by the debtor and instead adjudge that the annuity constitute assets of McCollam’s bankruptcy estate. Residents of the State of Florida are subject to Florida’s own set of exemptions under the Homestead protection of Article X, Section 4 of the Florida Constitution. In re Benedict, 88 B.R. 387, 389 (M.D.Fla.1988). These exemptions are the sole protection for Florida debtors. Id. Florida Statute § 222.14, under the Homestead and Exemptions chapter, specifically provides that: The cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor. Fla.Stat.Ann. § 222.14 (West 1990) (emphasis added). A strict reading of the above statute, accompanied by this Court’s review of the undisputed facts, complies this Court to hold that the instant contract issued to McCollam was an annuity contract, McCo-llam is a resident of this state and the beneficiary of the annuity contract. See, General Release and Settlement Agreement between Paula Lea Coombs (McCo-llam), et al. and Travelers Insurance Co., et al., dated July 9, 1985. The Court, therefore, concludes that McCollam’s annuity contract is exempt property under the Homestead protection of Florida Statute § 222.14, and that as a creditor of McCollam, LeCroy cannot at tach, garnish or serve legal process against McCollam’s annuity contract. The appellant, creditor LeCroy, states several theories to support his position. Specifically, the appellant claims that: 1. The payment to the debtor from the annuity company are not “proceeds”" } ]
749147
favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), citing Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 72 L,Ed.2d 91 (1982). The Court notes the Supreme Court statement of the standard does not attempt to quantify the degree of likelihood of success. The purpose of a preliminary injunction is to preserve a court’s power to render a meaningful decision after a trial on the merits. REDACTED quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil, § 2946. Although the fundamental fairness of preventing irremediable harm to a party is an important factor on a preliminary-injunction application, the most compelling reason in favor of entering a Rule 65(a) order is the need to prevent the judicial process from being rendered futile by defendant’s action or refusal to act.... [T]he preliminary injunction is appropriate whenever the policy of preserving the court’s power to decide the case effectively outweighs the risk of imposing an interim restraint before it has done so. Id. at § 2947. In a case such as this, a § 1983 challenge to the constitutionality of an imminently pending execution, failure to enjoin the
[ { "docid": "3832231", "title": "", "text": "the court does not order injunctive relief. Newman, 683 F.2d at 1319 (relying on Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), and Beacon Theatres, 359 U.S. at 506, 79 S.Ct. 948). It has been recognized, however, that if a court does not act until a trial on the merits of the cause of action, the party seeking relief might be irreparably harmed in the meantime. Moreover, the judicial process can be rendered futile by a defendant’s action or refusal to act during the pendency of the suit. Thus, in order to protect a party “from irreparable harm and to preserve the court’s power to render a meaningful decision after a trial on the merits” a preliminary injunction can issue even though the right to permanent relief is still uncertain. 11A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2947. However, in issuing such an order before the entire case has been fully and fairly heard, great care must be taken to assure , that the power of a court to require or deter action does not result in unwarranted harm to the defendant or the public. See id. Accordingly, a district court may grant preliminary injunctive relief when the moving party shows that: (1) it has a substantial likelihood of success on the merits of the underlying case when the case is ultimately tried; (2) irreparable injury during the pendency of the suit will be suffered unless the injunction issues immediately; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Klay, 376 F.3d at 1097 (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc) (per curiam)). Because of the extraordinary nature of a preliminary injunction, and the possibility of error when an action is predicated on less than a full and complete trial, Congress by passing 28 U.S.C. § 1292 created an exception to the rule that an appeal will lie only after final" } ]
[ { "docid": "3419120", "title": "", "text": "and the Public Interest The United States also has the burden to show that the balance of equities tips in its favor and that a preliminary injunction is in the public interest. Winter, 129 S.Ct. at 374. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 376 (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008)). “In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief,’ ” paying particular attention to the public consequences. Id. at 376-77 (quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). The Ninth Circuit Court of Appeals has concluded that allowing a state to enforce a state law in violation of the Supremacy Clause is neither equitable nor in the public interest. Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir.2009); Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1059-60 (9th Cir.2009). If Arizona were to enforce the portions of S.B. 1070 for which the Court has found a likelihood of preemption, such enforcement would likely burden legal resident aliens and interfere with federal policy. A preliminary injunction would allow the federal government to continue to pursue federal priorities, which is inherently in the public interest, until a final judgment is reached in this case. See Am. Trucking, 559 F.3d at 1059-60. The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the traffick ing of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. See Edmondson, 594 F.3d at 771. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced. See Cal. Pharmacists, 563 F.3d at 852-53;" }, { "docid": "2835043", "title": "", "text": "the district court denied the Navy’s motion to vacate or stay the injunction. See NRDC v. Winter, 527 F.Supp.2d 1216 (C.D.Cal.2008). The Navy noticed its appeal on February 6, 2008. Oral argument on this appeal occurred on February 27, 2008. STANDARD OF REVIEW I. Injunctive Relief Standard Injunction is an equitable remedy, the issuance of which is appropriate only where the intervention of a court of equity is essential in order to protect property rights against injuries otherwise irremediable. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at an adjustment and reconciliation between the competing claims. Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944). In such cases, the court “balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.” Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944). “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould [sic] each decree to the necessities of the particular case.” Hecht v. Bowles, 321 U.S. at 329, 64 S.Ct. 587. The traditional bases for injunctive relief are irreparable injury and inadequacy of legal remedies. High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). The Ninth Circuit has established criteria for the issuance of injunctions. Under the traditional method, a court may grant a preliminary injunction if a plaintiff shows: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest (in certain eases). Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1158 (9th Cir.2006). Alternatively, a court may grant a preliminary" }, { "docid": "16638110", "title": "", "text": "permanent injunction.” Monsanto Co. v. Geertson Seed Farms, — U.S.-, 130 S.Ct. 2743, 2756, 177 L.Ed.2d 461 (2010) (emphasis added) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). The Court went on to state, “the traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation,” (emphasis added) citing Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (U.S.2008), for this proposition even though Winter involved preliminary injunctive relief. In Winter, the Court set forth a different four-factor test to determine whether to grant a preliminary injunction. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. Admittedly, the tests are quite similar. Indeed, “[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546, 107 S.Ct. 1396, 94 L.Ed.2d 542 (U.S.1987). This court nonetheless finds it necessary to set forth precisely the standard to apply to plaintiffs’ motion. In this case, plaintiffs seek nine interim measures that would remain in place until the defendants have remedied their ESA violation by completing a new BiOp. The requested measures are not preliminary in the conventional sense in that the court has already decided the merits of this case. However, the measures are not permanent in the conventional sense in that they may be lifted once the defendants comply with this courts remand order by preparing a new BiOp. Additionally, the circumstances of this case differ from a typical permanent injunction request in that plaintiffs request measures to prevent future irreparable harm, even if they have not proven that irreparable harm has already" }, { "docid": "167724", "title": "", "text": "factual finding or an error of law. Id. “A preliminary injunction is an ‘extraordinary and drastic remedy.’ ” Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, p. 129 (2d ed.1995)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A motion for stay pending appeal is subject to the exact same standards. In other words, “[i]n ruling on such a request, this court makes the same inquiry as it would when reviewing a district court’s grant or denial of a preliminary injunction.” Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001). A. Plaintiffs’ likelihood of success on the merits of Counts 2 and 7 The district court in this case grounded its denial of plaintiffs’ motion for preliminary injunction, in large measure, on its conclusion that plaintiffs failed to establish a likelihood of success on the merits of Counts 2 and 7. On appeal, plaintiffs assert a number of challenges to that conclusion. In addressing those challenges, we begin by outlining the general principles applicable to Counts 2 and 7. We then review the precise basis for the district court’s conclusion that plaintiffs failed to establish a likelihood of success on these two counts. Lastly, we shall explain why, in our view, plaintiffs’ challenges to the district court’s decision lack merit. 1. Applicable constitutional principles This is far from the first constitutional challenge mounted to a State’s proposed method of execution. Consequently, we have several related and well-established principles upon which we can rely. The first is that capital punishment itself has been held not to violate the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishments." }, { "docid": "23109749", "title": "", "text": "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Id. at 376-77 (quotation marks and citations omitted) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008); Amoco Prod., 480 U.S. at 542, 107 S.Ct. 1396; Weinberger, 456 U.S. at 312, 102 S.Ct. 1798). III. This Court’s pre-eBay standard for when preliminary injunctions may issue in copyright cases is inconsistent with the principles of equity set forth in eBay. The Supreme Court’s decision in Winter tells us that, at minimum, we must consider whether “irreparable injury is likely in the absence of an injunction,” we must “ ‘balance the competing claims of injury,’ ” and we must “ ‘pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’ ” . 129 S.Ct. at 375-77 (quoting Amoco, 480 U.S. at 542, 107 S.Ct. 1396; Weinberger, 456 U.S. at 312, 102 S.Ct. 1798). Therefore, in light of Winter and eBay, we hold that a district court must undertake the following inquiry in determining whether to grant a plaintiffs motion for a preliminary injunction in a copyright case. First, as in most other kinds of cases in our Circuit, a court may issue a preliminary injunction in a copyright case only if the plaintiff has demonstrated “either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the [plaintiffj’s favor.” NXIVM Corp., 364 F.3d at 476; see also, e.g., Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2d Cir.2009). Second, the court may issue the injunction only if the plaintiff has demonstrated “that he is likely to suffer irreparable injury in the absence of an injunction.” Winter, 129 S.Ct. at 374. The court must not adopt a “categorical” or “general” rule or presume that the plaintiff will suffer irreparable harm (unless such a “departure from the long tradition of equity practice” was intended by" }, { "docid": "11207753", "title": "", "text": "(internal quotation omitted). The other critical factor in the injunctive relief analysis is irreparable injury. A movant must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Finally, “courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The Supreme Court has observed “that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and “tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990). B. The Court Denies the Plaintiffs Motion for a Preliminary Injunction The defendants argue that the plaintiff has offered no evidence to justify his assertion that preliminary injunctive relief is warranted in this case. Defs.’ Opp’n at 3. The plaintiff, the defendants maintain, is seeking to freeze the newspaper’s assets, an action which is inappropriate prior to" }, { "docid": "536506", "title": "", "text": "showing of likelihood of success on the merits. Instead, a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, — U.S. -, -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (citations omitted). In this recent case, the Supreme Court found that the Ninth Circuit’s standard of the likelihood of irreparable injury was too lenient and held that a plaintiff must demonstrate that irreparable injury is “likely in the absence of an injunction.” Id. at 375. “Issuing a preliminary injunction based only a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 375-76 (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)). Because a preliminary injunction is an extraordinary remedy, “[i]n each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’ ” Id. at 376 (citing Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). “ ‘In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’ ” Id. at 376-77 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)). 2. Procedural History. Plaintiff appealed this Court’s denial of his original motion for preliminary injunction on the issue of copyright infringement. The Federal Circuit court found that this Court had erred in its legal finding that a copyright holder of work open and available to the public free of charge under an “open source” nonexclusive copyright license may not control future distribution and modification of such work under federal" }, { "docid": "23109748", "title": "", "text": "for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”). Second, in Winter, the Supreme Court in fact applied eBay in a case involving a preliminary injunction. Reversing the Ninth Circuit, which had preliminarily enjoined the Navy’s use of sonar in training exercises based on a “strong” likelihood of success on the merits and a “possibility” of irreparable harm, the Court stated: “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 129 S.Ct. at 375-76. And using broad, unqualified language, the Court discussed the preliminary injunction standard as follows: A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Id. at 376-77 (quotation marks and citations omitted) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008); Amoco Prod., 480 U.S. at 542, 107 S.Ct. 1396; Weinberger, 456 U.S. at 312, 102 S.Ct. 1798). III. This Court’s pre-eBay standard for when preliminary injunctions may issue in copyright cases is inconsistent with the principles of equity set forth in eBay. The Supreme Court’s decision in Winter tells us that, at minimum, we must consider whether “irreparable injury is likely in the absence of an injunction,” we must “ ‘balance the competing claims of injury,’ ” and we must “ ‘pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’ ” . 129 S.Ct. at 375-77 (quoting Amoco, 480 U.S. at 542, 107 S.Ct. 1396; Weinberger, 456 U.S. at 312, 102 S.Ct. 1798). Therefore, in light of Winter and eBay, we hold that a" }, { "docid": "16429691", "title": "", "text": "The Court emphasized that it “has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed,” and based on its experience in copyright cases, similarly rejected the invitation to adopt a categorical rule in patent infringement cases. Id. at 392-93, 126 S.Ct. 1837. Thus, under eBay, a presumption of irreparable harm is equally improper in a case based on copyright infringement as it is in a case based on patent infringement. Nor does the fact that eBay concerned a permanent injunction rather than a preliminary injunction sufficiently distinguish the cases to result in a different outcome. The Supreme Court has been more than clear on this point: Finally, the Ninth Circuit distinguished [Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) ] on the ground that the District Court in that case refused to issue a permanent injunction after a trial on the merits whereas in this case the District Court denied preliminary injunctive relief. We fail to grasp the significance of this distinction. The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success. Amoco Prod. Co. v. Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Indeed, the eBay Court relied on a preliminary injunction case in reaching its holding. 547 U.S. at 391, 126 S.Ct. 1837 (citing Amoco, 480 U.S. at 542, 107 S.Ct. 1396). Thus, we conclude that eBay applies with equal force to preliminary injunction cases as it does to permanent injunction cases. 2. Winter v. Natural Resources Defense Council, Inc. If we harbored any doubts about the applicability of eBay in the preliminary injunction context, they have been dispelled by the Supreme Court’s decision in Winter. In Winter, the Supreme Court reaffirmed the equitable nature of the four-factor framework and applied it to a case involving a preliminary injunction. The district court had issued an injunction restricting the" }, { "docid": "167723", "title": "", "text": "22, 2014, the district court ruled from the bench and denied plaintiffs’ motion for preliminary injunction. In doing so, the district court concluded that plaintiffs failed to establish a likelihood of success on the merits of Counts 2 or 7. The district court also concluded that plaintiffs “failed to establish any of the [other] prerequisites to a grant of preliminary injunc-tive relief.” ROA, Vol. 3 at 930. Plaintiffs filed a notice of appeal on December 23, 2014. They have since filed an emergency motion for stay of execution pursuant to Federal Rules of Appellate Procedure 8 and 27. Ill We review a district court’s decision to deny a preliminary injunction under a deferential abuse of discretion standard. Citizens United v. Gessler, 773 F.3d 200, 209 (10th Cir.2014). “Under this standard, we examine the district court’s legal determinations de novo, and its underlying factual findings for clear error.” Id. (internal quotation marks omitted). Thus, we will find an abuse of discretion if the district court denied the preliminary injunction on the basis of a clearly erroneous factual finding or an error of law. Id. “A preliminary injunction is an ‘extraordinary and drastic remedy.’ ” Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, p. 129 (2d ed.1995)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A motion for stay pending appeal is subject to the exact same standards. In other words, “[i]n ruling on such a request, this court makes the same inquiry as it would when reviewing a district court’s grant or denial of a preliminary injunction.” Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001). A. Plaintiffs’ likelihood" }, { "docid": "11207752", "title": "", "text": "parties’ arguments. III. ANALYSIS A. Legal Standard for Injunctive Relief This court may issue interim injunctive relief only when the movant demonstrates “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., — U.S. -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success on the merits, “there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.” Am. Bankers Ass’n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999) (internal quotation omitted). The other critical factor in the injunctive relief analysis is irreparable injury. A movant must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Finally, “courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102" }, { "docid": "8777192", "title": "", "text": "States will succeed on the merits of its claim that Sections 11(a), 13, 16, and 17 of H.B. 56 are preempted by federal law. The court further finds that the United States will suffer irreparable harm if these sections of H.B. 56 are not enjoined, the balance of equities favors the entry of an injunction, and its entry would not be adverse to the public interest. Therefore, the Motion for Preliminary Injunction will be granted as to these sections. II. PRELIMINARY INJUNCTION STANDARD “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (internal quotations and citations omitted). “In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)(internal quotations and citations omitted). In this Circuit— In order to prevail on an application for a preliminary injunction, the plaintiff must clearly establish all of the following requirements: (1) ... a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.2011)(quoting Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1198 (11th Cir.2009)). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305," }, { "docid": "3419119", "title": "", "text": "preemption is not enjoined, the United States is likely to suffer irreparable harm. This is so because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379-80 & n. 14, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). For this injury, the United States will have no remedy at law. The Court thus finds a likelihood of irreparable harm to the interests of the United States that warrants preliminary injunctive relief. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413, 427, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (enjoining permanently the enforcement of a state statute that is preempted by federal law because it interferes with the federal government’s ability to enforce its policies); Crosby, 530 U.S. at 372, 379-80, 120 S.Ct. 2288 (same). D. The Balance of Equities and the Public Interest The United States also has the burden to show that the balance of equities tips in its favor and that a preliminary injunction is in the public interest. Winter, 129 S.Ct. at 374. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 376 (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008)). “In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief,’ ” paying particular attention to the public consequences. Id. at 376-77 (quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). The Ninth Circuit Court of Appeals has concluded that allowing a state to enforce a state law in violation of the Supremacy Clause is neither equitable nor in the public interest. Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir.2009); Am. Trucking Ass’ns, Inc. v. City of" }, { "docid": "8017868", "title": "", "text": "480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.2002) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). . See, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.2004) and Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.2002). . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir.2000)). . eBay Inc. v. MercExchange, L.L.C.,-U.S. -, 126 S.Ct. 1837, 1841, 164 L.Ed.2d 641 (2006). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-15, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642-643 (9th Cir.2004). . The dissent argues a NEPA violation requires an injunction prohibiting all action pending NEPA compliance. On the contrary, there is no such absolute rule, and were we to impose one, it would run afoul of Supreme Court precedent and our own precedent. The Supreme Court and Ninth Circuit precedents clearly establish that courts must apply the usual equitable factors in determining the scope of an injunction pending NEPA compliance. In Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) and Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-13, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the Supreme Court held that courts must apply the usual equitable factors in determining the scope of an injunction pending compliance with procedural environmental laws. And in High Sierra Hikers Ass’n v. Blackwell, 390" }, { "docid": "8017867", "title": "", "text": "interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action ... Will not prejudice the ultimate decision on the program. Interim action - prejudices the ultimate decision on the program when’ it tends to determine subsequent development or limit alternatives.” 40 C.F.R. § 1506.1(c)(3). . Appellants cite United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) and Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for this general proposition, but do not cite any authority holding a NEPA violation requires an automatic, full injunction rather than a partial injunction. . United States v. Alisal Water Corp., 431 F.3d 643, 654 (9th Cir.2005). . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.2004). . Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.2002). . eBay Inc. v. MercExchange, L.L.C.,-U.S. -, 126 S.Ct. 1-837, 1839, 164 L.Ed.2d 641 (2006). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.2002) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). . See, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.2004) and Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.2002). . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir.2000)). . eBay Inc. v. MercExchange, L.L.C.,-U.S. -, 126 S.Ct. 1837, 1841, 164 L.Ed.2d 641 (2006). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-15, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct." }, { "docid": "1987152", "title": "", "text": "WLIS III were both resolved in favor of Huntington in Huntington I. The only issue to be resolved on this appeal is whether the injunction issued upon remand was properly entered. As we recognized in Huntington I, provision is made for injunctive relief in the Ocean Dumping Act, 33 U.S.C. § 1415(g)(1) (1982). 859 F.2d at 1143. We further recognized that injunctive relief has been used when appropriate for violations of NEPA. Id., Natural Resources Defense Council v. Callaway, 524 F.2d 79, 94-95 (2d Cir.1975). We also noted, however, that injunctive relief does not follow automatically upon a finding of statutory violations, including environmental violations. 859 F.2d at 1143. “On the contrary, ‘[a]n injunction should issue only where the intervention of a court of equity is essential in order effectually to protect property rights against injuries otherwise irremediable.’ ” Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982) (quoting Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354 (1919))); see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542-45, 107 S.Ct. 1396, 1402-04, 94 L.Ed.2d 542 (1987) (preliminary injunction). The Supreme Court has repeatedly held that the basis for injunctive relief is irreparable injury and the inadequacy of legal remedies. Amoco Prod. Co., 480 U.S. at 542, 107 S.Ct. at 1402; Weinberger, 456 U.S. at 312, 102 S.Ct. at 1803; Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S.Ct. 2069, 2077, 45 L.Ed.2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959); see also Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944) (essence of equity jurisdiction is power of chancellor to do equity and mould decree to necessities of particular case). In applying these general equitable standards for the issuance of injunctions in the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction" }, { "docid": "11644150", "title": "", "text": "162 L.Ed.2d 729 (2005). Discussion “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). These traditional four factors “apply with equal force to disputes arising under the Patent Act.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The parties dispute the district court’s decision to grant injunctive relief based on its analysis of the likelihood of success and irreparable harm factors. To the extent we deem necessary, we address these arguments below. I. Irreparable Harm It is well established that as the party seeking emergency relief, Apple “must make a clear showing that it is at risk of irreparable harm, which entails showing a likelihood of substantial and immediate irreparable injury.” Apple, Inc. v. Samsung Electronics Co., 678 F.3d 1314, 1325 (Fed.Cir.2012) (hereinafter Apple I) (citing Winter, 555 U.S. at 22, 129 S.Ct. 365; Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)); see also Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) (“The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.”). But in cases such as this — where the accused product includes many features of which only one (or a small minority) infringe — a finding that the patentee will be at risk of irreparable harm does not alone justify injunctive relief. Rather, the patentee must also establish that the harm is sufficiently related to the infringement. Apple I, 678 F.3d at 1324. Thus, to satisfy the irreparable harm factor in a patent infringement suit, a patentee must establish both of the following" }, { "docid": "6063180", "title": "", "text": "“[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19, 171 L.Ed.2d 1 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success on the merits, “there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.” Am. Bankers Ass'n v. Nat’l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999) (internal quotation omitted). The other critical factor in the injunctive relief analysis is irreparable injury. A movant must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Finally, “courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968," }, { "docid": "7061547", "title": "", "text": "United States, 581 F.3d 1375, 1379 (Fed.Cir.2009) (internal citation and quotation marks omitted). To the extent a court’s decision to grant or deny a preliminary injunction “hinges on questions of law,” this court’s review is de novo. Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed.Cir.2004). III. Legal Framework A. Standard for Preliminary Injunctions “A plaintiff seeking a preliminary injunction must establish [ (1) ] that he is likely to succeed on the merits, [ (2) ] that he is likely to suffer irreparable harm in the absence of preliminary relief, [ (3) ] that the balance of equities tips in his favor, and [ (4) ] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citations omitted). As observed by the CIT, “[i]n anti-dumping and countervailing duty cases preliminary injunctions against liquidation have become almost automatic due to the retrospective nature of U.S. trade remedies, the length of the judicial review process, and the cruciality of unliquidated entries for judicial review.” Wind Tower Trade Coal., 904 F.Supp.2d at 1352 (citing 19 C.F.R. § 351.212(a) (2012); Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983); SKF USA Inc. v. United States, 512 F.3d 1326, 1329 (Fed.Cir.2008) (“The Zenith rule renders a court action moot once liquidation occurs.”); Qingdao Taifa, 581 F.3d at 1381-82). However, “[a] preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (citing Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008)); see also Qingdao Taifa, 581 F.3d at 1382 (noting the Supreme Court’s “emphasis on the importance of the likelihood of success in the preliminary injunction calculus” in Munaf, 553 U.S. at 689-90, 128 S.Ct. 2207). Therefore, “even if a party establishes that it will be irreparably harmed, the party must also demonstrate that it has at least a fair chance of success on the merits for a preliminary injunction to be appropriate.” Qingdao Taifa, 581 F.3d at" }, { "docid": "15086276", "title": "", "text": "exercise of any voting or other right attached to the shares of Sea Containers Ltd., except that nothing in this Order shall prevent any party from complying with its federal securities law obligations to make public disclosures. The district court later embodied these terms in a preliminary injunction, and denied Stena’s motion for a stay pending appeal. On June 23, we stayed the preliminary injunction, and on July 6, Chief Justice Rehnquist, in chambers, denied Sea Containers’ application to vacate our stay. Letter from Joseph F. Spaniol, Jr., Clerk of the Supreme Court, to John Nannes (July 6, 1989). II. Analysis Although the decision whether to grant a preliminary injunction under Rule 65(a), Fed.R.Civ.P., is left largely to the discretion of the trial court, its exercise of that discretion is subject to the Supreme Court’s repeated admonition regarding the caution with which the district court should order any injunctive relief. As reiterated most recently in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982): “An injunction should issue only where the intervention of a court of equity ‘is essential in order effectually to protect property rights against injuries otherwise irremediable.’ ” Id. at 312, 102 S.Ct. at 1803 (quoting Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354 (1919)); see also Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). As that standard is applied in this Circuit, preliminary relief is to be granted only if the moving party establishes that (1) it has a substantial likelihood of succeeding on the merits; (2) it will suffer irreparable harm if the injunction is not granted; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) the public interest will be furthered by the injunction. See Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C.Cir.1985); Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). Because the decision whether to grant a preliminary injunction is committed to the discretion of the district" } ]
704875
the just compensation for the converted property, and would not have been received but for the involuntary conversion of the trust’s property, petitioners argue that it was part of the “gain” on the conversion eligible for nonrecognition under section 1033. The Government does not challenge petitioners’ claim that the “interest” was part of the just compensation to which the trust was entitled under Connecticut law. However, the Government contends that State law is not controlling as to the income tax consequences of the receipt of the “interest,” and that interest received as part of a condemnation award is properly taxable as ordinary income, not as gain from the sale of property. We agree with the Government. The Supreme Court’s decision in REDACTED a case with facts almost identical to those presented herein, points the way to our decision here. In Kieselbach, property owned by the taxpayer was condemned by the city of New York. New York law provided that title vested in the city as of the date of entry of the condemnation order. However, if full payment for the property was not made on that date, the Greater New York Charter required that the just compensation paid the property owners include interest on the value of the property from the date of the taking until the date of payment. 317 U.S. at 400-401. In holding that the interest component of the condemnation award received by the taxpayers was ordinary income, and not part
[ { "docid": "22564533", "title": "", "text": "Mr. Justice Reed delivered the opinion of the Court. This writ of certiorari was granted limited to a single narrow point in the law of income taxes. The sum in question was received as part of the compensation in a condemnation proceeding instituted by the City of New York. Payment was made several years after the actual taking. The issue concerns the nature of that portion of the payment which is called “interest” by the Greater New York Charter and which the owner must receive, in addition to the value of the property fixed as of the time of the taking, to produce, when actually paid, the full equivalent of that value. Was this portion a capital gain or ordinary income? The writ was granted because of conflict upon the point between this case below, Commissioner v. Kieselbach, 127 F. 2d 369 (C. C. A. 3), and Seaside Improvement Co. v. Commissioner, 106 F. 2d 990 (C. C. A. 2). The taxpayers owned a piece of realty in the City of New York. In December, 1932, that city's Board of Estimate passed a resolution which directed that upon January 3, 1933, the title in fee to a large part of the parcel would vest in the city. The condemnation proceeding, of which the resolution was a part, was pursuant to § 976 of the Greater New York Charter, which provides in part as follows: “Upon the date of the entry of the order granting the application to condemn, or of the filing of the damage map in the proceeding, as the case may be, or upon such subsequent date as may be specified by resolution of said board, the city of New York shall become and be seized in fee of or of the easement, in, over, upon or under, the said real property described in the said order or damage map, as the board of estimate and apportionment may determine, the same to be held, appropriated, converted and used to and for such purpose accordingly. Interest at the legal rate upon the sum or sums to which the owners" } ]
[ { "docid": "11813215", "title": "", "text": "date on which title is passed to the condemnor. In federal condemnation cases this occurs upon the filing of the condemnation proceeding and the depositing of the estimated “just compensation” into court. Covered Wagon, Inc. v. Commissioner, supra. In state condemnation cases the court considers the local state law as determinative as to when title passes. Dwight v. United States, 328 F.2d 973 (2 Cir. 1964) held that under New York law, title passed upon the filing of a map and a description of the property in the county clerk’s office and not when the condemnation award was paid. Wendell v. Commissioner of Internal Revenue, 326 F.2d 600 (2 Cir. 1964); Wood Harmon Corp. v. United States, 206 F.Supp. 773 (S.D.N.Y.1962); Driscoll Bros & Co. v. United States, 221 F.Supp. 603 (N.D.N.Y.1963) are all New York cases holding that title passes to the condemnor upon the ex parte entry granting application to condemn under a New York City ordinance, and that insofar as the application of § 337 is concerned the sale is made at the date title passes. An adoption of a complete liquidation plan occurring after that date would not bring the corporation with the purview of § 337. It would appear, however, that when title does not pass upon the mere filing of condemnation proceedings, the sale would not occur until at least the condemnation award was made and either paid or made available to the condemnee. In Mountain Water Company of La Cresenta, 35 T.C. 418 (1960) the Tax Court held that an involuntary conversion of the taxpayer’s operating and capital assets by condemnation did not occur until the taxpayer made a decision not to appeal the condemnation award and accepted payment of the award. In Mountain Water the condemnation award was entered on January 13, 1955 and it was not until April 25, 1955 that the Directors of the taxpayer decided not to appeal and adopted on that same date an informal plan of liquidation of all of the capital assets. The capital gain realized on the condemnation was eligible for nonrecognition under § 337." }, { "docid": "22564535", "title": "", "text": "are justly entitled upon the date of the vesting of title in the city of New York, as aforesaid, from said date to the date of the final decree shall be awarded by the court as part of the compensation to which such owners are entitled.” The city took possession on the date named in the resolution and received all rents thereafter accruing. The Supreme Court of New York entered its final decree in the proceedings on March 31,1937. It was for $73,246.57 and was stated to be the just compensation which the owners were entitled to receive. Payment was made on May 12,1937. It has been stipulated that: “The amount of said payment was computed by adding to the principal amount of $58,000.00, interest thereon as provided by Section 976 of the Greater New York Charter, in the sum of $15,246.57, computed at the rate of 6% per annum from January 3, 1933 to May 12, 1937, or a total of $73,246.57.” We accept as a fact that the $58,000, principal amount just referred to, was, as petitioners allege, an award to them. We assume it was the value on January 3, 1933, of this property then taken by the city. Section 22 of the Revenue Act of 1936, c. 690, 49 Stat. 1648,1657, contains the general definition of gross income. It reads as follows: “(a) General Definition. — 'Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. . . .” The taxpayers’ basis on the condemned property was around $42,000. In their original return the difference between the basis and the total sum received was treated as capital gain and only a percentage was" }, { "docid": "5303019", "title": "", "text": "restriction upon the Commissioner may, however, be waived, under Section 272(d), by a written consent between the Commissioner and the taxpayer. Plaintiff concedes that such a waiver was made in this case on November 8, 1956. (Def.’s Ex. C). Plaintiff argues, however, that such a waiver made prior to the issuance of the statutory notice of deficiency, which here was issued on March 1, 1957, is invalid and is not effective to lift the restriction upon the Commissioner. Although there have been cases so holding, See McCarthy Co. v. Commissioner, 80 F.2d 618, 621 (9 Cir. 1935), cert, den., 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1381, it is now settled that such a waiver, even if filed prior to the issuance of a statutory notice of deficiency, is effective. United States v. Price, 361 U.S. 304, 80 S.Ct. 326, 4 L.Ed.2d 334 (1950). It follows that the restriction on the Commissioner, having been validly waived, the assessment made on March 15th was both timely and valid. II. Interest Plaintiff contends that the interest portion of the condemnation award was correctly reported as capital gain, and was not ordinary income as determined by the Commissioner. Plaintiff refers to the trial Court’s award (Plt.’s Ex. 1), which included interest as part of the just compensation, and argues that, since the whole award was “compensation,” that portion of it which included interest would be entitled to capital gain treatment. A similar contention was rejected by the Supreme Court in Kieselbach v. Commissioner, 317 U.S. 399, 63 S.Ct. 303, 87 L.Ed. 358 (1943). There, a condemnation decree awarded as just compensation the value of the property on the day of the taking with interest thereon from that date to the date of payment. The Court held that the part of the award designated as “interest”, although part of the “just compensation”, was not a part of the sales price of a capital asset under Section 117(a) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Acts, and was taxable as income under Section 22 of that Code. We consider this ease controlling" }, { "docid": "8071268", "title": "", "text": "Court’s decision in Kieselbach v. Commissioner, 317 U.S. 399 (1943), a case with facts almost identical to those presented herein, points the way to our decision here. In Kieselbach, property owned by the taxpayer was condemned by the city of New York. New York law provided that title vested in the city as of the date of entry of the condemnation order. However, if full payment for the property was not made on that date, the Greater New York Charter required that the just compensation paid the property owners include interest on the value of the property from the date of the taking until the date of payment. 317 U.S. at 400-401. In holding that the interest component of the condemnation award received by the taxpayers was ordinary income, and not part of the sales price of a capital asset, the Court stated (317 U.S. at 403): The sum paid these taxpayers above the award * * * was paid because of the failure to put the award in the taxpayers’ hands on the day * * * when the property was taken. This additional payment was necessary to give the owner the full equivalent of the value of the property at the time it was taken. Whether one calls it interest on the value or payments to meet the constitutional requirement of just compensation is immaterial. It is income * * * paid to the taxpayers in lieu of what they might have earned on the sum found to be the value of the property on the day the property was taken. It is not a capital gain upon an asset sold * * * Accord, Filippini v. United States, 318 F.2d 841, 844 n. 2 (9th Cir.), cert. denied 375 U.S. 922 (1963), affg. 200 F. Supp. 286, 289 (N.D. Cal. 1961); Isaac G. Johnson & Co. v. United States, 149 F.2d 851, 852 (2d Cir. 1945); Smith v. Commissioner, 59 T.C. 107, 111 (1972); see 320 E. 47th St. Corp. v. Commissioner, 26 T.C. 545, 547 (1956), revd. on other grounds 243 F.2d 894 (2d Cir. 1957)." }, { "docid": "15927839", "title": "", "text": "at issue, together with interest in the amount of $84,531.73. The Board first held that the basic award was not taxable, on the ground that “the sum received by the petitioner remains the payment of a judgment for damages and does not constitute rent ‘from property located in the United States.’” Id. at 834. The Board then went on to hold that no part of the payment was interest from sources within the United States, on the ground that the “interest” was included in the judgment as part of just compensation for damages sustained. * * * Here, the stipulation denominated the sum of $84,531.73 as the “amount received for damages measured by interest” and in its opinion the Court of Claims stated: “The plaintiff is entitled to interest, as has been said, because such allowance is ‘rightful’ and is necessary adequately to compensate it for the damage.” * * * Here the obligation of the United States is to make just compensation for the unlawful detention of the vessel. Just compensation for the damage so suffered requires that the party damaged be made whole. An integral part of a payment for such purpose is interest covering the period of detention. In such a case it is merely a convenient method of measuring the amount of one of the factors of damage. It is not a separable item of interest on an obligation. [Id. at 834-835; citations omitted.] F. Authorities Arguably in Point In reaching our conclusion in Aames v. Commissioner, 94 T.C. 189 (1990), we relied on cases dealing with interest on condemnation awards. Id. at 192 (citing Kieselbach v. Commissioner, 317 U.S. 399 (1943); Tiefenbrunn v. Commissioner, 74 T.C. 1566 (1980); Smith v. Commissioner, 59 T.C. 107, 111-113 (1972); Wheeler v. Commissioner, 58 T.C. 459 (1972)). The question common to those cases was whether a taxpayer who had received a condemnation award could treat as capital gain, rather than as ordinary income, any interest or delay damages for the taking. Reviewing the taxability of a New York City condemnation award, the Supreme Court, in Kieselbach v. Commissioner, supra," }, { "docid": "11979543", "title": "", "text": "71 L.Ed. 1083; Shoshone Tribe v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 361. Such “interest” is also considered as part of the condemnation award by the courts- of New York. Matter of City of New York, 222 N.Y. 370, 373, 118 N.E. 807; Woodward-Brown Realty Co. v. City of New York, 235 N.Y. 278, 139 N.E. 267. It is accorded similar treatment by section 976 of the Greater New York Charter which provides that “interest at the legal rate upon the sum or sums to which the owners are justly entitled * * * shall be awarded * * * as part of the compensation to which such owners are entitled.” Cases dealing with payments made to individuals by the Mixed Claims Commission afford a persuasive analogy to the rule that should be applied in the cases at bar. Drier v. Helvering, 63 App.D.C. 283, 72 F.2d 76; Commissioner v. Speyer, 2 Cir., 77 F.2d 824; Helvering v. Drier, 4 Cir., 79 F.2d 501. In each of these cases a portion of the payments received by the taxpayer had been designated as interest, and the commissioner contended that sudh “interest” was part of the taxpayer’s normal income; but this argument was rejected on the ground that no taxable income was received so long as the total of the award did not exceed the value of the property taken. It is obvious that in these cases the interest on the award was treated as part of the capital, for if it had been considered normal interest it would have been taxable as such irrespective of whether the taxpayer had already received a sum equal to the value of the property taken. In United States Trust Co. v. Anderson, 2 Cir., 65 F.2d 575, this court held that interest on a condemnation award was taxable, but whether it was normal income or capital gain was not discussed. For the reasons above stated we think that the portion of the awards denominated interest should be taxed as capital gain. The orders are affirmed in the cases of Seaside Improvement" }, { "docid": "8071266", "title": "", "text": "\"Interest” on condemnation award. — Section 1033, I.R.C. 1954, permits nonrecognition of gain on the involuntary conversion of property to the extent that the amount realized on the conversion is utilized to purchase property similar in use to the converted property. It is not disputed that the trust purchased replacement property with a cost in excess of the amount of the condemnation award. However, section 1033 is applicable to provide nonrecognition only of “gain” on the involuntary conversion of “property * * * into money or * * * [other] property.” If the condemnation award includes amounts other than compensation for the value of the condemned property, such amounts do not qualify under the nonrecognition of gain provisions of section 1033. See Graphic Press, Inc. v. Commissioner, 523 F.2d 585, 588 (9th Cir. 1975), revg. 60 T.C. 674 (1973); Asjes v. Commissioner, 74 T.C. 1005, 1010-1011 (1980). The condemnation award the trust received pursuant to the judgment of the Connecticut Superior Court included $103,912.76 in “interest,” and we must determine whether this amount is part of the gain qualifying for nonrecognition under section 1033. Petitioners argue that under Connecticut law, “interest” on the value of the condemned property from the date of the taking until the date of payment is an essential element of the constitutionally required just compensation for property taken by eminent domain. Since the “interest” was a part of the just compensation for the converted property, and would not have been received but for the involuntary conversion of the trust’s property, petitioners argue that it was part of the “gain” on the conversion eligible for nonrecognition under section 1033. The Government does not challenge petitioners’ claim that the “interest” was part of the just compensation to which the trust was entitled under Connecticut law. However, the Government contends that State law is not controlling as to the income tax consequences of the receipt of the “interest,” and that interest received as part of a condemnation award is properly taxable as ordinary income, not as gain from the sale of property. We agree with the Government. The Supreme" }, { "docid": "15927840", "title": "", "text": "so suffered requires that the party damaged be made whole. An integral part of a payment for such purpose is interest covering the period of detention. In such a case it is merely a convenient method of measuring the amount of one of the factors of damage. It is not a separable item of interest on an obligation. [Id. at 834-835; citations omitted.] F. Authorities Arguably in Point In reaching our conclusion in Aames v. Commissioner, 94 T.C. 189 (1990), we relied on cases dealing with interest on condemnation awards. Id. at 192 (citing Kieselbach v. Commissioner, 317 U.S. 399 (1943); Tiefenbrunn v. Commissioner, 74 T.C. 1566 (1980); Smith v. Commissioner, 59 T.C. 107, 111-113 (1972); Wheeler v. Commissioner, 58 T.C. 459 (1972)). The question common to those cases was whether a taxpayer who had received a condemnation award could treat as capital gain, rather than as ordinary income, any interest or delay damages for the taking. Reviewing the taxability of a New York City condemnation award, the Supreme Court, in Kieselbach v. Commissioner, supra, held that any part of the amount received as “just compensation” that was payment for delay was ordinary interest income and would not receive capital gain tax treatment, even though paid as part of an award for the taking of a capital asset. As such, the interest was includable as ordinary income under a statutory predecessor of section 61(a)(4). Id. at 403. Absent section 104(a)(2) and its requirement that we focus on the tort or tortlike nature of the taxpayer’s personal injury claim to determine the tax treatment of amounts received in compensation thereof, United States v. Burke, 504 U.S. _, 112 S. Ct. 1867 (1992); Downey v. Commissioner, supra; Threlkeld v. Commissioner, 87 T.C. 1294 (1986), affd. 848 F.2d 81 (6th Cir. 1988); sec. 1.104-1(c), Income Tax Regs., the reasoning in Kieselbach would not allow us to exclude the interest included in petitioners’ award from gross income as damages for personal injuries. However, Kieselbach did not concern damages on account of personal injuries, and the Supreme Court, in that case, had no occasion to" }, { "docid": "8071265", "title": "", "text": "taxpayer, filed fiduciary income tax returns for taxable years 1971 and 1973. Although the trust reported interest income on its 1971 return in the amount of $3,399.26, no amount was included as interest income in respect of the receipt of the proceeds from the condemnation of trust property. The Commissioner determined that $103,912.76 of the amount received on the condemnation of the trust property was interest income to the trust, and increased the petitioners’ respective shares of distributable net income from the trust in accordance with this determination. The trust’s 1971 return claimed a deduction of $9,504 for depreciation of property purchased by the trust to replace the property taken by condemnation. A similar depreciation deduction in the amount of $7,514.11 was claimed by the trust on its 1973 return. The Commissioner determined that the trust itself was not entitled to any deduction for depreciation in 1971 or 1973, and made allegedly corresponding adjustments to petitioners’ respective shares of distributable net income from the trust and allowable depreciation on property held by the trust. (1) \"Interest” on condemnation award. — Section 1033, I.R.C. 1954, permits nonrecognition of gain on the involuntary conversion of property to the extent that the amount realized on the conversion is utilized to purchase property similar in use to the converted property. It is not disputed that the trust purchased replacement property with a cost in excess of the amount of the condemnation award. However, section 1033 is applicable to provide nonrecognition only of “gain” on the involuntary conversion of “property * * * into money or * * * [other] property.” If the condemnation award includes amounts other than compensation for the value of the condemned property, such amounts do not qualify under the nonrecognition of gain provisions of section 1033. See Graphic Press, Inc. v. Commissioner, 523 F.2d 585, 588 (9th Cir. 1975), revg. 60 T.C. 674 (1973); Asjes v. Commissioner, 74 T.C. 1005, 1010-1011 (1980). The condemnation award the trust received pursuant to the judgment of the Connecticut Superior Court included $103,912.76 in “interest,” and we must determine whether this amount is part" }, { "docid": "5303020", "title": "", "text": "portion of the condemnation award was correctly reported as capital gain, and was not ordinary income as determined by the Commissioner. Plaintiff refers to the trial Court’s award (Plt.’s Ex. 1), which included interest as part of the just compensation, and argues that, since the whole award was “compensation,” that portion of it which included interest would be entitled to capital gain treatment. A similar contention was rejected by the Supreme Court in Kieselbach v. Commissioner, 317 U.S. 399, 63 S.Ct. 303, 87 L.Ed. 358 (1943). There, a condemnation decree awarded as just compensation the value of the property on the day of the taking with interest thereon from that date to the date of payment. The Court held that the part of the award designated as “interest”, although part of the “just compensation”, was not a part of the sales price of a capital asset under Section 117(a) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Acts, and was taxable as income under Section 22 of that Code. We consider this ease controlling with respect to the 1939 Code, applicable here. Cf. 320 E. 47th Street Corporation, 26 T.C. 545 (1956). III. Replacement The remaining question, involving the major portion of the recovery sought in this refund suit, is whether the money expended in the acquisition of the decedent’s new property should be recognized as gain, under Section 112 of the Internal Revenue Code of 1939, 26 U.S. C.A. § 112. Section 112(a) of the 1939 Code provides that upon sale or exchange of property the entire amount of gain shall be recognized, except, as is the case here, where there has been an involuntary conversion. Section 112(f) provides with respect to this exception: “If property (as a result of its * * * condemnation * * * is compulsorily or involuntarily converted— “(3) Into money * * * and the disposition of the converted property * * * occurred after December 31,1950, the gain (if any) shall be recognized except to the extent hereinafter provided in this paragraph: “(A) If the taxpayer * * * purchases other" }, { "docid": "8071269", "title": "", "text": "* * * when the property was taken. This additional payment was necessary to give the owner the full equivalent of the value of the property at the time it was taken. Whether one calls it interest on the value or payments to meet the constitutional requirement of just compensation is immaterial. It is income * * * paid to the taxpayers in lieu of what they might have earned on the sum found to be the value of the property on the day the property was taken. It is not a capital gain upon an asset sold * * * Accord, Filippini v. United States, 318 F.2d 841, 844 n. 2 (9th Cir.), cert. denied 375 U.S. 922 (1963), affg. 200 F. Supp. 286, 289 (N.D. Cal. 1961); Isaac G. Johnson & Co. v. United States, 149 F.2d 851, 852 (2d Cir. 1945); Smith v. Commissioner, 59 T.C. 107, 111 (1972); see 320 E. 47th St. Corp. v. Commissioner, 26 T.C. 545, 547 (1956), revd. on other grounds 243 F.2d 894 (2d Cir. 1957). Petitioners correctly note that Kieselbach did not decide the precise question presented herein, whether interest paid as part of a condemnation award is part of the “gain” from the conversion of “property * * * into money” qualifying under section 1033. Petitioners argue that section 1033 is a broad relief provision that should be construed to provide nonrecognition for all gains arising from the involuntary conversion of property, and that we should not divide a condemnation award into its component parts. To the extent that Kieselbach is applicable, petitioners urge that it be reexamined. We do not find petitioners’ arguments persuasive, and it is certainly not a legitimate function of a lower court to “reexamine” a decision of the Supreme Court. We hold that the interest portion of the condemnation award is properly classifiable as taxable income in the hands of the trust and is consequently taxable to petitioners, income beneficiaries, in 1971. The principal difficulty with petitioners’ arguments is the language of section 1033. Section 1033 provides nonrecognition treatment only for “gain” from the" }, { "docid": "11734413", "title": "", "text": "purporting to hold that when, as a matter of law, moving expenses may not be considered as a separate item in computing a condemnation award but may be considered as an element of the fair market value of the land, such expenses may nevertheless be considered a separate item for the purposes of taxation. Rather, the cases upon which the defendant relies stand for the proposition that expenses which are separate from the fair market value of the land may be taxed as ordinary income. Thus, in Kieselbach v. Commissioner of Internal Revenue, 317 U.S. 399, 63 S.Ct. 303, 87 L.Ed. 358 (1943), the City of New York had condemned property owned by the taxpayers and worth $58,000. The City took title on January 3, 1933. The final decree in the proceedings was entered on March 31, 1937, and the taxpayers were paid $73,246.57 on May 12, 1937. The difference between the latter sum and the $58,000 value of the property was called “interest” by the Greater New York Charter: it was a sum which the owner of the property was entitled to receive, in addition to the value of the property fixed as of the time of the taking, to produce, when actually paid, the full equivalent of the value. The only issue before the Supreme Court was whether the “interest” amount was a capital gain, as the taxpayers contended, or ordinary income, as the Commissioner claimed. The Supreme Court held that the “interest” amount was not part of the just compensation for the land taken and therefore was taxable as ordinary income: “The sum paid these taxpayers above the award of $58,000 was paid because of the failure to put the award in the taxpayers’ hands on the day, January 3, 1933, when the property was taken. This additional payment was necessary to give the owner the full equivalent of the value of the property at the time it was taken. Whether one calls it interest on the value or payments to meet the constitutional requirement of just compensation is immaterial. It is income under § 22, paid" }, { "docid": "8071270", "title": "", "text": "Petitioners correctly note that Kieselbach did not decide the precise question presented herein, whether interest paid as part of a condemnation award is part of the “gain” from the conversion of “property * * * into money” qualifying under section 1033. Petitioners argue that section 1033 is a broad relief provision that should be construed to provide nonrecognition for all gains arising from the involuntary conversion of property, and that we should not divide a condemnation award into its component parts. To the extent that Kieselbach is applicable, petitioners urge that it be reexamined. We do not find petitioners’ arguments persuasive, and it is certainly not a legitimate function of a lower court to “reexamine” a decision of the Supreme Court. We hold that the interest portion of the condemnation award is properly classifiable as taxable income in the hands of the trust and is consequently taxable to petitioners, income beneficiaries, in 1971. The principal difficulty with petitioners’ arguments is the language of section 1033. Section 1033 provides nonrecognition treatment only for “gain” from the involuntary conversion of “property * * * into money.” The statute does not afford nonrecognition of all gains — instead, it provides nonrecognition treatment only for gains from the conversion of property. Kieselbach makes it clear that the interest component of a condemnation award is not gain derived from the property itself, but rather is compensation for the delay in payment of the sale price. See Kieselbach v. Commissioner, 317 U.S. at 404. To be sure, the trust would not have realized the interest income involved herein but for the condemnation of its property, but it would have received no interest income at all if full payment for the property had been made on the date of the condemnation. The delay in payment, not the condemnation, was the reason the trust received the “interest.” Petitioners further argue that we are precluded from dividing the condemnation award into its component parts by E. R. Hitchcock Co. v. United States, 514 F.2d 484 (2d Cir. 1975), and other cases. See Graphic Press v. Commissioner, 523 F.2d at" }, { "docid": "8071267", "title": "", "text": "of the gain qualifying for nonrecognition under section 1033. Petitioners argue that under Connecticut law, “interest” on the value of the condemned property from the date of the taking until the date of payment is an essential element of the constitutionally required just compensation for property taken by eminent domain. Since the “interest” was a part of the just compensation for the converted property, and would not have been received but for the involuntary conversion of the trust’s property, petitioners argue that it was part of the “gain” on the conversion eligible for nonrecognition under section 1033. The Government does not challenge petitioners’ claim that the “interest” was part of the just compensation to which the trust was entitled under Connecticut law. However, the Government contends that State law is not controlling as to the income tax consequences of the receipt of the “interest,” and that interest received as part of a condemnation award is properly taxable as ordinary income, not as gain from the sale of property. We agree with the Government. The Supreme Court’s decision in Kieselbach v. Commissioner, 317 U.S. 399 (1943), a case with facts almost identical to those presented herein, points the way to our decision here. In Kieselbach, property owned by the taxpayer was condemned by the city of New York. New York law provided that title vested in the city as of the date of entry of the condemnation order. However, if full payment for the property was not made on that date, the Greater New York Charter required that the just compensation paid the property owners include interest on the value of the property from the date of the taking until the date of payment. 317 U.S. at 400-401. In holding that the interest component of the condemnation award received by the taxpayers was ordinary income, and not part of the sales price of a capital asset, the Court stated (317 U.S. at 403): The sum paid these taxpayers above the award * * * was paid because of the failure to put the award in the taxpayers’ hands on the day" }, { "docid": "9576324", "title": "", "text": "GOODRICH, Circuit Judge. The taxpayer, Henry Kieselbach, inherited from his father a parcel of real property in the City of New York on April 2, 1927. In 1930 the City of New York began condemnation proceedings in the Supreme Court of New York; an order was entered authorizing the taking of the property by the City and providing that compensation would be determined by the Court. The resolution of the New York Board of Estimate and Apportionment, passed pursuant to § 976 of the Greater New York Charter, provided that fee title of the property should become vested in the City January 3, 1933. The City took possession on this date and rents thereafter accruing were collected by or turned over to it. Following litigation as to the amount of compensation, the court on March 31, 1937 entered a final decree entitling the taxpayer to $73,246.57, computed by adding to the principal sum of $58,000 interest thereon at 6% per annum from January 3, 1933 to May 12, 1937. The amount fixed in the decree was paid to the taxpayer on the latter date. No deposit or security to cover compensation was given by the City prior to final payment. The case is brought to this court by the Commissioner from the decision of the Board of Tax Appeals.. It embraces three questions, involving the application and interpretation of § 117 of the Revenue Act of 1936. That section provides for the taxation of capital gains and losses upon the sale or exchange of capital assets. The first question is whether the gain realized from the condemnation of the taxpayer’s property was gain from a sale of a capital asset. The second is whether the amount designated as interest in the condemnation award was part of the price, and therefore to be taxed as capital gain, or was “true” interest, taxable as ordinary income when received, in 1937. The third concerns itself with the determination of the period for which the taxpayer held this land: is the termination date May 12, 1937, when the price was paid, or January 3," }, { "docid": "8071271", "title": "", "text": "involuntary conversion of “property * * * into money.” The statute does not afford nonrecognition of all gains — instead, it provides nonrecognition treatment only for gains from the conversion of property. Kieselbach makes it clear that the interest component of a condemnation award is not gain derived from the property itself, but rather is compensation for the delay in payment of the sale price. See Kieselbach v. Commissioner, 317 U.S. at 404. To be sure, the trust would not have realized the interest income involved herein but for the condemnation of its property, but it would have received no interest income at all if full payment for the property had been made on the date of the condemnation. The delay in payment, not the condemnation, was the reason the trust received the “interest.” Petitioners further argue that we are precluded from dividing the condemnation award into its component parts by E. R. Hitchcock Co. v. United States, 514 F.2d 484 (2d Cir. 1975), and other cases. See Graphic Press v. Commissioner, 523 F.2d at 585; McKitrick v. United States, 373 F. Supp. 471 (S.D. Ohio 1974); Conran v. United States, 322 F. Supp. 1055 (E.D. Mo. 1971). See also Buffalo Wire Works Co. v. Commissioner, 74 T.C. 925 (1980). We do not read the Second Circuit’s opinion in E. R. Hitchcock Co., or the other cases cited by petitioners, to require nonrecognition of the interest income received on the condemnation award. In E. R. Hitchcock Co., the taxpayer received a condemnation award including an amount to compensate the taxpayer for the costs of moving the machinery and equipment in the condemned property. The taxpayer used the entire award to purchase qualified replacement property but the Commissioner sought to tax the difference between the taxpayer’s actual moving expenses and the moving expense portion of the award as ordinary income. The Court of Appeals concluded that the award of moving expenses was part of the money into which the taxpayer’s property was converted. To be sure, the court first noted that State law was not controlling as to the Federal tax" }, { "docid": "11813214", "title": "", "text": "the circumstances, without the benefit of § 337. In Covered Wagon, Inc. v. Commissioner of Internal Revenue, 369 F.2d 629 (8 Cir. 1966), this Court held that an involuntary conversion of a corporate capital asset in a federal condemnation proceeding was within the purview of § 337(a), but that where the taking of the property had occurred prior to the adoption of a complete plan of liquidation, the resulting capital gain was ineligible for nonrecognition treatment and was taxable income. We there held that the sale occurred at the time the Government filed the declaration of taking and deposited in court the estimated value thereof, which acts caused title to pass from the condemnee to the condemnor. As noted in Towanda, supra, an involuntary conversion is literally not a sale but is treated as a sale or exchange for tax purposes. The significant question then arises in involuntary conversion cases as to the precise date the sale or exchange occurs. In condemnation cases the law appears to be settled that the significant factor is the date on which title is passed to the condemnor. In federal condemnation cases this occurs upon the filing of the condemnation proceeding and the depositing of the estimated “just compensation” into court. Covered Wagon, Inc. v. Commissioner, supra. In state condemnation cases the court considers the local state law as determinative as to when title passes. Dwight v. United States, 328 F.2d 973 (2 Cir. 1964) held that under New York law, title passed upon the filing of a map and a description of the property in the county clerk’s office and not when the condemnation award was paid. Wendell v. Commissioner of Internal Revenue, 326 F.2d 600 (2 Cir. 1964); Wood Harmon Corp. v. United States, 206 F.Supp. 773 (S.D.N.Y.1962); Driscoll Bros & Co. v. United States, 221 F.Supp. 603 (N.D.N.Y.1963) are all New York cases holding that title passes to the condemnor upon the ex parte entry granting application to condemn under a New York City ordinance, and that insofar as the application of § 337 is concerned the sale is made at" }, { "docid": "10378323", "title": "", "text": "opinion. Kice, Judge: Petitioner argues that the $20,728.81 which it reported as interest on the condemnation award did not constitute interest within the meaning of section 502 (a) ; that such amount was a part of the condemnation award itself; and that it in fact is entitled to a refund since the amount of so-called interest was not ordinary income. The respondent argues that what was denominated as interest in the Administrative Code of the City of New York, in the decree of the Supreme Court of New York, in the payment which the City made to petitioner, and as reported by petitioner on its return, was both in name and in fact interest and, therefore, clearly within the meaning of the word “interest” as used in section 502 (a) of the Code. In support of his position, he cites Kieselbach v. Commissioner, 317 U. S. 399 (1943). In the KieseTbaoJi case, the Supreme Court held that a similar interest payment received by a taxpayer from the City of New York was ordinary income within the meaning of section 22, and was not a capital gain realized upon the sale of an asset under section 117. In the course of its opinion, the Court said of such an interest payment, page 403: Whether one calls it interest on the value or payments to meet the constitutional requirement of just compensation is immaterial. It is income under § 22, paid to the taxpayers in lieu of what they might have earned on the sum found to be the value of the property on the day the property was taken. It is not a capital gain upon an asset sold under § 117. * * * The property was turned over in January, 1933, by the resolution. This was the sale. Title then passed. The subsequent earnings of the property went to the city. The transaction was as though a purchase money lien at legal interest was retained upon the property. Such interest when paid would, of course, be ordinary income. [Emphasis added.] We, therefore, think it clear that petitioner correctly reported" }, { "docid": "9576325", "title": "", "text": "was paid to the taxpayer on the latter date. No deposit or security to cover compensation was given by the City prior to final payment. The case is brought to this court by the Commissioner from the decision of the Board of Tax Appeals.. It embraces three questions, involving the application and interpretation of § 117 of the Revenue Act of 1936. That section provides for the taxation of capital gains and losses upon the sale or exchange of capital assets. The first question is whether the gain realized from the condemnation of the taxpayer’s property was gain from a sale of a capital asset. The second is whether the amount designated as interest in the condemnation award was part of the price, and therefore to be taxed as capital gain, or was “true” interest, taxable as ordinary income when received, in 1937. The third concerns itself with the determination of the period for which the taxpayer held this land: is the termination date May 12, 1937, when the price was paid, or January 3, 1933, when the City took fee title and possession? The points will be discussed in the order stated. Is the transfer of property through condemnation proceedings to be classified as a sale within the meaning of § 117 of the Revenue Act of 1936? The answer to this question will determine whether the increase in value realized by the taxpayer is to be treated as capital gain or ordinary gain, with the corresponding difference as to the base of the tax imposed. The Commissioner makes the suggestion that in view of the statement by the Supreme Court in Helvering v. William Flaccus Oak Leather Co., 1941, 313 U.S. 247, 250, 61 S. Ct. 878, 880, 85 L.Ed. 1310, condemnation of property does not effect a sale within § 117. The Commissioner advanced this position solely for the purpose of preserving 'the point in the event of an adverse decision in a case then pending in the Ninth Circuit. Since the instant case was argued, however, that decision has come down and the holding is squarely" }, { "docid": "11734414", "title": "", "text": "the owner of the property was entitled to receive, in addition to the value of the property fixed as of the time of the taking, to produce, when actually paid, the full equivalent of the value. The only issue before the Supreme Court was whether the “interest” amount was a capital gain, as the taxpayers contended, or ordinary income, as the Commissioner claimed. The Supreme Court held that the “interest” amount was not part of the just compensation for the land taken and therefore was taxable as ordinary income: “The sum paid these taxpayers above the award of $58,000 was paid because of the failure to put the award in the taxpayers’ hands on the day, January 3, 1933, when the property was taken. This additional payment was necessary to give the owner the full equivalent of the value of the property at the time it was taken. Whether one calls it interest on the value or payments to meet the constitutional requirement of just compensation is immaterial. It is income under § 22, paid to the taxpayers in lieu of what they might have earned on the sum found to be the value of the property on the day the property was taken. It is not a capital gain upon an asset sold under § 117. The sale price was the $58,000. [Footnote omitted.] . [Petitioner contends that as just compensation requires the payment of these sums for delay in settlement, they are a part of the damages awarded for the property. But these payments are indemnification for delay, not a part of the sale price.” 317 U.S. at 403-404, 63 S.Ct. at 305. See also Isaac G. Johnson & Co. v. United States, 149 F.2d 851 (2d Cir. 1945). The defendant also seeks to draw support from Johnston v. Commissioner of Internal Revenue, 42 T.C. 880 (1964), and other cases involving “severance damages.” This reliance is misplaced. This Court agrees with the holding in Conran v. United States, 322 F.Supp. 1055 (E.D.Mo.1971), that gain arising from severance damages awarded for condemnation of property qualifies for deferred recognition when" } ]
599940
motion without the benefit of a response. The district judge might have decided the defendants’ motion to dismiss on the merits when the plaintiff missed the deadline for responding, a risk the plaintiff knew he was running because the judge had indicated that he would rule on the motion by mail, implying that the ruling could come anytime after September 15. See N.D. Ill. R. 78.3. A plaintiffs failure to respond that delays the litigation can be a basis for a dismissal for lack of prosecution, Link v. Wabash R. Co., 370 U.S. 626, 629, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), or, what often amounts to the same thing, see Fed. R.Civ.P. 41(b); REDACTED as a sanction for misconduct. But the judge should warn the plaintiff that he is considering the imposition of such a sanction, Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000); Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993); Gardner v. United States, 211 F.3d 1305, 1309-10 (D.C.Cir.2000); Angulo-Alvarez v. Aponte de la Torre, 170 F.3d 246, 252 (1st Cir.1999); but cf. Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000), either explicitly or by making clear that no further extensions of time will be granted. Williams v. Chicago Board of Education, 155 F.3d 853 (7th Cir.1998) (per curiam); In re Bluestein & Co., 68 F.3d 1022, 1027 (7th Cir.1995); Patterson by Patterson v. Coca
[ { "docid": "11693162", "title": "", "text": "discretion to manage litigation. “Because district judges have a better understanding of their litigants and their docket, review of managerial decisions such as this one are appropriately deferential.” Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994). In this case, however, we believe the district court acted beyond its discretionary authority in dismissing sua sponte the first action. In Link, the Supreme Court held that the absence of express notice prior to a sua sponte dismissal with prejudice for failure to prosecute is not an automatic denial of due process. 370 U.S. at 632, 82 S.Ct. 1386. However, in Ball v. City of Chicago, 2 F.3d 752 (7th Cir.1993), we restricted a district court’s dismissal powers in this regard by requiring the court to provide “due warning” to plaintiffs counsel. Although we recognized in Ball that there may be extreme circumstances in which an explicit warning is unnecessary before sua sponte dismissal is used as a sanction, id. at 756; see also Johnson, 34 F.3d at 468 (encouraging, but not requiring, a warning before dismissing a case for failure to prosecute where the plaintiff repeatedly delayed the litigation and finally failed to attend the trial without sufficient excuse), we have repeatedly emphasized the general rule that explicit warning must be given to a plaintiffs counsel prior to dismissal. See Williams v. Chicago Bd. of Educ., 155 F.3d 853, 858 (7th Cir.1998). “[D]ismissals without warning are appropriate in only the most extreme cases, where it is clear that counsel must have expected his actions (or inaction) to be answered with dismissal.” In re Bluestein & Co., 68 F.3d 1022, 1026 (7th Cir.1995). Although we do not excuse the Commission’s conduct—indeed, we are puzzled that the Commission put itself in this position at all—it is hard to see how the recitation of the local rules in the April order would have highlighted the possibility of sanctions far beyond those authorized by the rules themselves. Under Ball, the district court’s actions in this case amount to abuse of discretion. B. Nevertheless, despite our conclusion that the district court abused its discretion in dismissing" } ]
[ { "docid": "23652615", "title": "", "text": "the SSA does not assert that it was prejudiced by Kruger’s late filing. Under Hunger, the district court should have considered Kruger’s objections. This would have obligated the district judge to review de novo anything Kruger objected to in the magistrate judge’s recommendation. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.1999). But even without considering the objections, the district judge should have reviewed the magistrate judge’s recommendation for clear error. Id. Under either the de novo or clear error standard of review, the district court should have rejected the recommendation because, as we will explain, the district court did not give Kruger’s counsel the requisite warning before dismissing his case for failure to prosecute. B. Failure to Warn Before Dismissal Kruger argues that the district court abused its discretion in dismissing his case because his counsel was not given a prior warning as required by Ball v. City of Chicago, 2 F.3d 752 (7th Cir.1993). We stated in Ball, “the judge should not dismiss a case [for failure to prosecute] without due warning to the plaintiffs counsel.... [Tjhere should be an explicit warning in every case.” 2 F.3d at 755. Here, the district court abused its discretion because it did not give Kruger’s counsel the requisite warning. SSA counters that no such warning is required and cites Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994), as support. But Johnson is distinguishable and should be confined to its facts. In Johnson, the district court dismissed the case when, after numerous other delays largely caused by the plaintiffs dilatory conduct, the plaintiff failed to appear on the first day of trial and lied to the court about the reason for his absence. 34 F.3d at 467-68. We have repeatedly stated that “[dismissal for failure to prosecute is an extraordinarily harsh sanction” that should be used “ ‘only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.’ ” Dunphy, 134 F.3d at 1299 (quoting In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995))." }, { "docid": "23540454", "title": "", "text": "sanctions have proven unavailing.” Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir.2008) (internal quotation marks and citations omitted). The appropriateness of this measure depends on all the circumstances of the case. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 641 — 12, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Link v. Wabash R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). We have suggested a number of factors that are relevant to the district court’s decision: the frequency of the plaintiffs failure to comply with deadlines; whether the responsibility for mistakes is attributable to the plaintiff herself or to the plaintiffs lawyer; the effect of the mistakes on the judge’s calendar; the prejudice that the delay caused to the defendant; the merit of the suit; and the consequences of dismissal for the social objectives that the litigation represents. Aura Lamp & Lighting Inc. v. International Trading Corp., 325 F.3d 903, 908 (7th Cir.2003); Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993). Most of these factors weighed against dismissing Kasalo’s individual case. Most strikingly, all of the errors appear to be the fault of Albukerk and none seems to have anything to do with Kasalo’s complaint against Harris. In addition, while the class claims were dubious, Kasalo’s claim had merit, and the dismissal of that claim (about which more shortly) frustrates Congress’s desire to provide a remedy for those wronged by abusive debt-collection tactics. The defendants have not explained any way in which they were prejudiced by the delay. This is partly because the most significant delay was that between the April 7 deadline for Albukerk’s brief and the third status hearing in June; but although the district court twice reset the status hearing, there is no evidence that this was at Albukerk’s prompting. No one involved in the case did anything between April 7 and June 18. When we asked Harris’s lawyer at oral argument what harm his client had suffered, he could say only that attorney’s fees had accrued along the way. But Harris presented no evidence of" }, { "docid": "23540453", "title": "", "text": "court denied the motion, saying, “Plaintiff failed to appear at the status hearing. Because the Court’s dismissal of this case for want of prosecution was based on the entire history of this case, the Court denies plaintiffs motion to reconsider.” II Albukerk is guilty of poor lawyering, and the district court’s exasperation with his dogged determination to invent a class action was justified. Nonetheless, we must conclude that the court dismissed the case as a whole too hastily. Albukerk’s conduct, which related entirely to the class allegations, was not so inexcusable that dismissal for want of prosecution without any advance warning was appropriate. The district judge had more reasonable options before it for addressing Albukerk’s unprofessional behavior. Contrary to the flippant suggestion made by Harris’s attorney, the district courts do not have the power to do “whatever they’d like to do.” Dismissal for want of prosecution “is an extraordinarily harsh sanction that should be used only in extreme situations, when there is a clear record of delay or contumacious conduct, or where other less drastic sanctions have proven unavailing.” Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir.2008) (internal quotation marks and citations omitted). The appropriateness of this measure depends on all the circumstances of the case. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 641 — 12, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Link v. Wabash R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). We have suggested a number of factors that are relevant to the district court’s decision: the frequency of the plaintiffs failure to comply with deadlines; whether the responsibility for mistakes is attributable to the plaintiff herself or to the plaintiffs lawyer; the effect of the mistakes on the judge’s calendar; the prejudice that the delay caused to the defendant; the merit of the suit; and the consequences of dismissal for the social objectives that the litigation represents. Aura Lamp & Lighting Inc. v. International Trading Corp., 325 F.3d 903, 908 (7th Cir.2003); Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993). Most of these" }, { "docid": "22477583", "title": "", "text": "may cause them to forfeit valuable entitlements. Otis waited until the time had run, and we need not decide today what would have happened if she had appealed earlier. Ill Appellate review of orders dismissing litigation for want of prosecution is deferential, Roland v. Salem Contract Carriers, 811 F.2d 1175, 1177 (7th Cir.1987), and we conclude that the district court did not abuse its discretion. All questions about counsel to one side, the district court undoubtedly was entitled to dismiss the suit. It required five efforts to obtain Otis's deposition: she failed to appear at three and was late to a fourth. She failed to answer interrogatories or supply documents. Plaintiffs must submit to discovery in litigation they initiate, and failure to do so leads straight to dismissal. Newman v. Metropolitan Pier & Exposition Authority, 962 F.2d 589 (7th Cir.1992). Although not required to do so, Link v. Wabash R.R., 370 U.s. 626, 632, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734 (1962); Ball v. Chicago, 2 F.3d 752, 755-56 (7th Cir.1993), the district judge twice warned Otis that continued lack of cooperation would lead to the end of her suit. The judge displayed considerable forbearance, affording the plaintiff more opportunities than were accorded in other recent cases in which we have sustained dismissals or default judgments. E.g., Brill v. McDonald's Corp., 28 F.3d 633 (7th Cir.1994); United States v. Golden Elevator Co., 27 F.3d 301 (7th Cir.1994); United States v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir.1994). Not until Otis declared in open court that she was unable to prosecute the case did the district judge dismiss it-arid even then he allowed six months for plaintiff to recover from her depression or engage another lawyer. Otis contends that, once the district court realized that she could not carry on alone, the court should have appointed a second lawyer to assist her, and that with the aid of another lawyer she could have avoided dismissal. Again our review is deferential, Darden v. Illinois Bell Telephone Co., 797 F.2d 497, 500 (7th Cir.1986), and again we believe that the district" }, { "docid": "9750264", "title": "", "text": "the untenable position of putting on a case without an essential witness (Moffitt herself). To then dismiss the case when her counsel announced that she could not proceed in her client’s absence was an unreasonably harsh measure that effectively penalized Moffitt for a recognized disability. Our review of the district court’s decision not to grant Moffitt a continuance, and to dismiss the case for want of prosecution is, of course, deferential. Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993). We ask not what we ourselves might have done, but whether the district judge abused his discretion in deciding to act as he did. See, e.g., Esposito v. Piatrowski, 223 F.3d 497, 499 (7th Cir.2000) (Rule 41(b) dismissal); United States v. Cruz-Velasco, 224 F.3d 654, 666-67 (7th Cir.2000) (denial of continuance). So long as the district judge’s analysis was not tainted by a legal error or the failure to consider an essential factor, see Kruger v. Apfel, 214 F.3d 784, 786 (7th Cir.2000) (per curiam), we will reverse only if no reasonable person could concur in the district judge’s decision or, put another way, only if the decision strikes us as fundamentally wrong, In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam). Several points deserve making at the outset. First, we agree with Moffitt that there is no real record of delay or contumacious behavior on her part in this case. See, e.g., Kruger, 214 F.3d at 787, quoting Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998). Nor is it a case in which sanctions less severe than dismissal had already proven ineffective as a means of preventing further noncompliance with the court’s orders. See, e.g., 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987); but see also Ball, 2 F.3d at 756 (“[t]he judge is not required to impose graduated sanctions ... before dismissing a case for failure to prosecute”). Nor had the court expressly warned Mof-fitt that it would dismiss the case for want of prosecution if she was not prepared to go forward on" }, { "docid": "9750263", "title": "", "text": "wrong party, mainly, the taxpayers, as well as the Defendant who came ready for trial.” Id. at 18. II. Moffitt contends on appeal that the district court erred when it refused her request for a continuance and dismissed her case for want of prosecution pursuant to Rule 41(b). This is not a case, Moffitt argues, in which there was a record of delay or contumacious conduct on the part of the plaintiff. Discovery had concluded, all pre-trial matters had been resolved, and the case had been ready for trial for nine months. But when the trial date arrived, she was hospitalized for drug and alcohol rehabilitation. As a result, she could neither be present for the trial nor assist her counsel in the prosecution of her lawsuit. The right thing for the court to have done, in Moffitt’s view, was to grant her a short continuance; this would have enabled her to complete her rehabilitation without undue prejudice to the Board. When the court refused that request, Mof-fitt asserts, the court placed her counsel in the untenable position of putting on a case without an essential witness (Moffitt herself). To then dismiss the case when her counsel announced that she could not proceed in her client’s absence was an unreasonably harsh measure that effectively penalized Moffitt for a recognized disability. Our review of the district court’s decision not to grant Moffitt a continuance, and to dismiss the case for want of prosecution is, of course, deferential. Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993). We ask not what we ourselves might have done, but whether the district judge abused his discretion in deciding to act as he did. See, e.g., Esposito v. Piatrowski, 223 F.3d 497, 499 (7th Cir.2000) (Rule 41(b) dismissal); United States v. Cruz-Velasco, 224 F.3d 654, 666-67 (7th Cir.2000) (denial of continuance). So long as the district judge’s analysis was not tainted by a legal error or the failure to consider an essential factor, see Kruger v. Apfel, 214 F.3d 784, 786 (7th Cir.2000) (per curiam), we will reverse only if no reasonable" }, { "docid": "23524593", "title": "", "text": "601, 607 (7th Cir.1986). “It is well-established that district courts possess inherent authority to dismiss a case sua sponte for a plaintiffs failure to prosecute.” GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). A court is permitted to infer a lack of intent to prosecute a case from a pattern of failure to meet court-imposed deadlines. See id.; Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061—62 (7th Cir.1989). Where the pattern of dilatory conduct is clear, dismissal need not be preceded by the imposition of less severe sanctions. See Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993); Pyramid Energy, 869 F.2d at 1062. Moreover, because a district court’s dismissal for failure to prosecute under Fed.R.Civ.P. 41(b) is reviewed only for an abuse of discretion, see GCIU Employer Retirement Fund, 8 F.3d at 1199, a court’s decision under Rule 60(b) not to reinstate a case dismissed for want of prosecution has been described as “discretion piled on discretion.” Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir.1986). Dickerson contends that the court committed an abuse of discretion in denying her motion to reconsider its refusal to vacate the Rule 41(b) dismissal for the following reasons: (1) the court’s application of Rule 21(a) of the Local General Rules of the Northern District of Illinois was improper on its face; (2) the dismissal for failure to prosecute was unsupported by a record of delay or contumacious conduct, and unaccompanied by any explanation why a less severe sanction was inadequate; and (3) counsel did not willfully miss deadlines but did so only because he was “inundated by unexpected and severe personal problems.” In advancing these arguments, Dickerson appears to be asking the court to review the merits of the underlying dismissal for want of prosecution rather than its denial of her Rule 60(b) motion. Cf. Webber v. Eye Corp., 721 F.2d 1067 (7th Cir.1983) (per curiam) (appeal of Rule 41(b) dismissal). An appeal from" }, { "docid": "20954837", "title": "", "text": "mail today,” then acknowledging that she hadn’t been able to comply “because I work six days a week” and later still “because I had a [real estate] trial,” then returning to her first point: “I was ready for my — ready to put it in the mail today.” She told the court that she was prepared to be deposed on July 15 as agreed, but then she backtracked, saying that “we had agreed on a Thursday for all of my depositions, and [Cingular] did not give me Thursdays.” The district judge rejected Fischer’s excuses and told her “it is not a question of preparedness, it is a question of doing.” Noting the inconsistencies in her explanations and the fact that the case had been dismissed once before for failure to prosecute, the judge now dismissed the case with prejudice, precipitating this appeal. He did so without warning Fischer that dismissal loomed, though Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993), says there “must” be such a warning, and Ball’s “must” was quoted in Aura Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d 903, 907-08 (7th Cir.2003); see also Williams v. Chicago Board of Education, 155 F.3d 853 (7th Cir.1998), while In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam), says that the court “should” warn attorneys but “must” warn pro se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.2000), that the court generally “should” warn but “must” warn if the plaintiffs failure to prosecute is due only to ordinary misconduct. Most of our cases, however, soften “must” to “should,” Harrington v. City of Chicago, 433 F.3d 542, 549 (7th Cir.2006); Moffitt v. Illinois State Board of Education, 236 F.3d 868, 873 (7th Cir.2001); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (per curiam); Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir.1998), or treat the terms as interchangeable (as in Ball, Bluestein, and Williams), or term the requirement of a warning merely the “general” rule. Federal Election Comm’n v. Al Salvi for Senate Committee, 205 F.3d 1015," }, { "docid": "4473371", "title": "", "text": "under an abuse of discretion standard. See Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir.1998) (citations omitted). In its December 20, 1996 order, the trial court states: [t]he order setting the case for trial ... has been in the court’s file and computer since April 3, 1993. Grun has long had constructive notice of the long-passed trial date and the court’s clerical error. However, Grun waited three years to bring any error to the court’s attention for status or trial, disregarding his responsibility to move the ease forward. He demonstrated an intent to abandon his action. Consequently, in the alternative, the court dismisses the case for want of prosecution pursuant to Local General Rule 21(A). Undoubtedly, district courts possess the inherent authority to dismiss cases sua sponte for a failure to prosecute. See GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993) (citation omitted). However, dismissal for failure to prosecute is “a harsh sanction which should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.” Pyramid Energy Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989) (emphasis in original) (citations omitted). Moreover, we have held that “there must be an explicit warning before the case is dismissed [for failure to prosecute].” Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993) (emphasis added). And, “dismissals without warning are appropriate in only the most extreme cases, where it is clear that counsel must have expected his actions (or inaction) to be answered with dismissal.” In re Bluestein & Co., 68 F.3d 1022, 1026 (7th Cir.1995) (emphasis in original). Grun references and distinguishes several eases in which a plaintiffs suit was dismissed for failure to prosecute because of a pattern of dilatory or contumacious behavior. Grun argues that, unlike those plaintiffs, he has not engaged in such dilatory or contumacious tactics and thus, dismissal for failure to prosecute is unwarranted. Grun asserts that he and his counsel did not prosecute his case because he" }, { "docid": "13111181", "title": "", "text": "the record; counsel for defendants Hamlin, Doerr, and Wisely conceded “[i]t was the understanding of the undersigned that plaintiffs expert, Dr. Lewan, was not barred from testifying at trial.” Nonetheless, the court rejected Gabriel’s contention of mistake and denied the motion. In doing so the judge elaborated that even if Dr. Lewan’s testimony had not been barred, “plaintiffs counsel’s failure to secure his testimony by deposition, for use at trial or otherwise, was sufficient grounds for this Court to ... dismiss the action.” This appeal followed. II. Discussion We review a district court’s denial of a continuance and dismissal for want of prosecution for abuse of discretion and will reverse “only if the decision strikes us as fundamentally wrong.” Moffitt v. Ill. State Bd. of Educ., 236 F.3d 868, 873 (7th Cir.2001). Although this hurdle is admittedly high, it is not insurmountable. To that effect, we have also stated “ ‘dismissal for failure to prosecute is an extraordinarily harsh sanction’ that should be used ‘only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.’ ” See Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (citing Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998)). Further, “we have repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without first providing an explicit warning to the plaintiff.” Sharif v. Wellness Intern. Network, Ltd., 376 F.3d 720, 725 (7th Cir.2004); see also Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993). We agree with Gabriel that the record simply does not support the district court’s conclusion that Dr. Lewan’s testimony remained barred at the time of trial. The August 31, 2004 order reopening discovery specifically granted Gabriel additional time to provide his expert’s report following Dr. Garcia’s deposition, and its language that “[p]laintiff s expert shall review [Dr. Garcia’s] deposition and provide his report” plainly indicates that expert and deponent are not one and the same. Although there is some ambiguity given the order’s failure to mention Dr. Lewan" }, { "docid": "13111182", "title": "", "text": "delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.’ ” See Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (citing Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998)). Further, “we have repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without first providing an explicit warning to the plaintiff.” Sharif v. Wellness Intern. Network, Ltd., 376 F.3d 720, 725 (7th Cir.2004); see also Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993). We agree with Gabriel that the record simply does not support the district court’s conclusion that Dr. Lewan’s testimony remained barred at the time of trial. The August 31, 2004 order reopening discovery specifically granted Gabriel additional time to provide his expert’s report following Dr. Garcia’s deposition, and its language that “[p]laintiff s expert shall review [Dr. Garcia’s] deposition and provide his report” plainly indicates that expert and deponent are not one and the same. Although there is some ambiguity given the order’s failure to mention Dr. Lewan by name, this ambiguity is easily clarified by Gabriel’s motion and exhibits, which listed Dr. Lewan as his only expert and explained that he was unable to provide a final report without Dr. Garcia’s deposition. No defendant objected when Gabriel provided Dr. Lewan’s expert report and listed him as a testifying expert witness after the order had been issued; moreover, the defendants conceded in the district court that they did not understand Dr. Lewan’s testimony to remain barred. To the extent the dismissal sanction was premised on the district court’s mistaken impression that Dr. Lewan’s testimony was barred, it cannot stand. The only additional reason the court cited in support of its dismissal sanction was Gabriel’s failure to secure a trial deposition of Dr. Lewan as a contingency. Although taking trial depositions is unquestionably a wise precaution, Gabriel’s only request for a continuance — filed immediately upon learning of the court’s sua sponte alteration of the trial schedule— does not come close to the type of misbehavior we have held warrants a dismissal with prejudice." }, { "docid": "20954839", "title": "", "text": "1018 (7th Cir.2000). Several of our cases (two discussed in the next paragraph — plus Ball itself, the original of the “must” requirement) are explicit that a warning is not always required, as are a number of cases in other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir.2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000); Rodgers v. Curators of the University of Missouri, 135 F.3d 1216, 1221 (8th Cir.1998); Ehrenhaus v. Reynolds, 965 F.2d 916, 919, 921-22 (10th Cir.1992). Ball’s use of “must” was not intended to lay down a rigid rule, as is clear from discussion elsewhere in the opinion. 2 F.3d at 756. It was intended rather as a useful guideline to district judges — a safe harbor to minimize the likelihood of appeal and reversal. Ball differs only in tone and nuance from the earlier discussion of the warning issue in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir.1994), where we said that “although district courts are encouraged to warn litigants before dismissing a case for failure to prosecute, whether they in fact do so is clearly within their discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991). Leaving the decision to the district courts ensures that dilatory tactics are sanctioned appropriately. The prejudice incurred by a delay in one case may far outweigh that caused in another. Were district courts required to warn litigants before dismissing a case, we would in effect be granting each litigant one opportunity to disregard the court’s schedule without fear of penalty regardless of the harm done to other litigants. Such a rule would impermissibly burden the district courts in their efforts to manage their dockets. Using this standard, we held in Lockhart that inconsistencies in the plaintiffs excuse for not attending a discovery-related status hearing combined with the plaintiffs record of dilatory conduct supported the trial judge’s decision to dismiss the case with prejudice even though he did not provide a warning beforehand.” Granted, the facts in Johnson were more extreme than in this case, and Kruger v. Apfel, supra, 214" }, { "docid": "23330009", "title": "", "text": "motions for summary judgment. Even if we were to view Easley’s attorney’s failure to respond to the defen dants’ summary judgment motions as even partially justified by contradictory signals from the court, and therefore “within the gray area between carelessness and excusable neglect,” it was Easley’s attorney’s responsibility to seek clarification from the court before attempting to make self-serving unilateral assumptions about the court’s adjustment of the pretrial calendar. Hough v. Local 134, Int’l Bhd. of Elec. Workers, 867 F.2d 1018, 1022 (7th Cir.1989); see also Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir.1993) (“A party has a duty of diligence to inquire about the status of a case.”). Although attorney carelessness can constitute “excusable neglect” under Rule 60(b)(1), see Castro, 214 F.3d at 934; Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 359-60 (7th Cir.1997), attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney’s somnolent behavior may have on a litigant. See Robb, 122 F.3d at 360; Helm v. Resolution Trust Corp., 84 F.3d 874, 878 (7th Cir.1996); In re Plunkett, 82 F.3d 738, 742 (7th Cir.1996) (“Missing a filing deadline because of slumber is fatal.”). Easley’s attorney’s conduct can only be classified as inexcusable inattentiveness or neglect, rather than excusable carelessness. Indeed, a trial court has an obligation to control and manage its own docket, and this type of outright and consistent disregard of a court’s scheduling orders- — such as that exhibited here by Easley’s attorney- — certainly gives the trial court sufficient reason under Fed. R.Civ.P. 41(b) to involuntarily dismiss an action for want of prosecution. See, e.g., Aura Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 909-10 (7th Cir.2003) (holding that the power to control a court’s docket is vested in the trial judge, and that there comes a point when a litigant’s disregard of scheduling orders becomes so serious that a sanction, including the rendering of the ultimate sanction of dismissal, is in order); Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir.1998) (per curiam) (“District courts" }, { "docid": "23571527", "title": "", "text": "when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998) (citations omitted). Until 1993, this circuit did not require judges to fire a “warning shot” before dismissing a case for want of prosecution. See Lockhart v. Sullivan; 925 F.2d 214, 219 (7th Cir.1991); see also Link, 370 U.S. at 632-33, 82 S.Ct. 1386 (lack of express notice before dismissal did not automatically violate the plaintiff’s due process rights; whether to give advanced warning was left to the district court’s discretion). However, in Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993), we tightened the dismissal procedure in this circuit by requiring district courts to provide “due warning” to plaintiffs counsel before dismissing a suit for want of prosecution in most cases. We explained the meaning of “due warning” as follows: “Due warning” need not be repeated warnings and need not be formalized in a rule to show cause. A judge is not obliged to treat lawyers like children. But there should be an explicit warning in every case.... A district judge’s standing order that merely repeats, what is anyway well known, that dismissal for failure to prosecute is a possible sanction for failing to comply with the schedule set by the court is too general. Id. at 755 (internal citations omitted). In Ball, the plaintiffs lawyer repeatedly failed to appear at scheduled pretrial conferences, failed to respond to the defendant’s motion to dismiss, and missed numerous filing deadlines. The district court warned the plaintiff that any further disregard of the court’s orders would result in appropriate sanctions, including the possible dismissal of the suit for want of prosecution. Id. at 753-54. After an additional transgression, the court warned the plaintiffs lawyer “that the next disregard of any court order will result in the dismissal of this case for want of prosecution.” Id. at 754. The plaintiffs attorney did not heed the warning and proceeded to miss additional discovery deadlines. The court, understandably worn-out, dismissed the suit on its own" }, { "docid": "23524592", "title": "", "text": "relief from a final judgment, order, or proceeding on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. “It is well-established that Rule 60(b) relief ‘is an extraordinary remedy and is granted only in exceptional circumstances.’ ” Harold Washington Party v. Cook County, Illinois Democratic Party, 984 F.2d 875, 879 (7th Cir.) (quoting C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984)), cert. denied, — U.S.-, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993). Relief under Rule 60(b) from a dismissal for lack of prosecution is thus warranted “only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust.” Daniels v. Brennan, 887 F.2d 783, 790 (7th Cir.1989) (quoting 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 340 (7th Cir.1987)) (citations, internal quotations omitted). The district court’s denial of a Rule 60(b) motion is reviewed under a highly deferential standard, and is reversed only for an abuse of discretion. See id.; Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th Cir.1986). “It is well-established that district courts possess inherent authority to dismiss a case sua sponte for a plaintiffs failure to prosecute.” GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). A court is permitted to infer a lack of intent to prosecute a case from a pattern of failure to meet court-imposed deadlines. See id.; Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061—62 (7th Cir.1989). Where the pattern of dilatory conduct is clear, dismissal need not be preceded by the imposition of less severe sanctions. See Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993); Pyramid Energy, 869 F.2d at 1062. Moreover, because a district court’s dismissal for failure to prosecute under Fed.R.Civ.P. 41(b) is reviewed only for an abuse of discretion, see GCIU Employer Retirement Fund, 8 F.3d at 1199, a court’s decision under Rule 60(b) not to reinstate a case dismissed for" }, { "docid": "13789062", "title": "", "text": "of Hoffman’s attorney, a sole practitioner, to bear his workload; that the attorney was willing to accept reasonable sanctions for his delays; and that the Appellant’s Brief had been completed and was ready to be filed. The district court denied the motion, and Hoffman appeals the dismissal. II. Analysis District courts possess the inherent authority to dismiss a case sua sponte for want of prosecution as part of the “control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). In exercising this authority, the district courts must “perpetually balance the competing interests of keeping a manageable docket against deciding eases on their merits.” GCIU Employer Retirement Fund v. Chicago Tribune, 8 F.3d 1195, 1199 (7th Cir.1993) (citing Webber v. Eye Corp., 721 F.2d 1067, 1071 (7th Cir.1983)). Dismissal for want of prosecution is an undeniably harsh sanction, having the procedural effect of an adjudication on the merits against the plaintiff. See Fed.R.Civ.P. 41(b). This severity requires that district courts resort to dismissal “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.” GCIU, 8 F.3d at 1199 (quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989)) (emphasis omitted). In light of the district courts’ need to maintain effective control over their dockets, their exercise of this inherent authority demands our deference. As a result, we review a district court’s dismissal for want of prosecution only for an abuse of discretion. Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1373, 131 L.Ed.2d 228 (1995); Halas v. Consumer Services, Inc., 16 F.3d 161, 163 (7th Cir.1994); GCIU, 8 F.3d at 1199. Applying this standard, reversal is warranted only if the district court’s decision “strike[s] us as fundamentally wrong,” Anderson v. United Parcel Service, 915 F.2d 313, 315 (7th Cir.1990), or if “it is clear that no" }, { "docid": "20954838", "title": "", "text": "in Aura Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d 903, 907-08 (7th Cir.2003); see also Williams v. Chicago Board of Education, 155 F.3d 853 (7th Cir.1998), while In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam), says that the court “should” warn attorneys but “must” warn pro se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.2000), that the court generally “should” warn but “must” warn if the plaintiffs failure to prosecute is due only to ordinary misconduct. Most of our cases, however, soften “must” to “should,” Harrington v. City of Chicago, 433 F.3d 542, 549 (7th Cir.2006); Moffitt v. Illinois State Board of Education, 236 F.3d 868, 873 (7th Cir.2001); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.2000) (per curiam); Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir.1998), or treat the terms as interchangeable (as in Ball, Bluestein, and Williams), or term the requirement of a warning merely the “general” rule. Federal Election Comm’n v. Al Salvi for Senate Committee, 205 F.3d 1015, 1018 (7th Cir.2000). Several of our cases (two discussed in the next paragraph — plus Ball itself, the original of the “must” requirement) are explicit that a warning is not always required, as are a number of cases in other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir.2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000); Rodgers v. Curators of the University of Missouri, 135 F.3d 1216, 1221 (8th Cir.1998); Ehrenhaus v. Reynolds, 965 F.2d 916, 919, 921-22 (10th Cir.1992). Ball’s use of “must” was not intended to lay down a rigid rule, as is clear from discussion elsewhere in the opinion. 2 F.3d at 756. It was intended rather as a useful guideline to district judges — a safe harbor to minimize the likelihood of appeal and reversal. Ball differs only in tone and nuance from the earlier discussion of the warning issue in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir.1994), where we said that “although district courts are encouraged to warn litigants before dismissing a" }, { "docid": "6826127", "title": "", "text": "the ease of court-appointed counsel? If so, did the district court here abuse its discretion in dismissing Dunphy’s case? If not, what additional considerations should be taken into account when counsel is court-appointed, and how does Dunphy’s case fare under them? We begin with several well established propositions. First, as the Supreme Court held in Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the district courts have the authority to dismiss complaints “for failure ... to prosecute or to comply with ... any order of the court” on motion of the defendant, id. at 630, 82 S.Ct. at 1388, quoting Fed. R. Civ. P. 41(b), or sua sponte as part of the “control necessarily vested in courts ... to achieve the orderly and expeditious disposition of cases.” 370 U.S. at 630-31, 82 S.Ct. at 1388. Dismissal for failure to prosecute is an extraordinarily harsh sanction, to which courts should resort “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.” In the Matter of Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam) (quot ing GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993), in turn quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989) (emphasis omitted in GCIU)). Appellate review of these orders is oniy for abuse of discretion, see Bluestein, 68 F.3d at 1022; Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994). Nonetheless, abuse of discretion review is not the same thing as a rubber stamp, and we have not hesitated to find such an abuse where the facts warranted. See Bluestein, 68 F.3d at 1025-26; Penny v. Shansky, 884 F.2d 329, 330 (7th Cir.1989) (pro se plaintiff); Sisk v. United States, 756 F.2d 497, 499-500 (7th Cir.1985) (same); Heidelberg v. Hammer, 577 F.2d 429 (7th Cir.1978) (same). Accord, Hernandez v. Whiting, 881 F.2d 768, 771 (9th Cir.1989); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.1980). Here, we have the classic problem" }, { "docid": "9750265", "title": "", "text": "person could concur in the district judge’s decision or, put another way, only if the decision strikes us as fundamentally wrong, In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam). Several points deserve making at the outset. First, we agree with Moffitt that there is no real record of delay or contumacious behavior on her part in this case. See, e.g., Kruger, 214 F.3d at 787, quoting Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998). Nor is it a case in which sanctions less severe than dismissal had already proven ineffective as a means of preventing further noncompliance with the court’s orders. See, e.g., 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987); but see also Ball, 2 F.3d at 756 (“[t]he judge is not required to impose graduated sanctions ... before dismissing a case for failure to prosecute”). Nor had the court expressly warned Mof-fitt that it would dismiss the case for want of prosecution if she was not prepared to go forward on the scheduled trial date. See id. at 755 (“there should be an explicit warning in every case”). On the other hand, what the court confronted in this case was the plaintiffs unwillingness to proceed on the date scheduled for trial, as opposed to the more typical failure to comply with her discovery obligations on time, or to meet some other pre-trial deadline. As Judge Mills recognized, “ ‘it is not unreasonable to treat a failure to attend trial more severely than a failure to comply with discovery orders in a timely fashion.’” R. 62 at 17, quoting Johnson v. Kamminga, 34 F.3d 466, 469 (7th Cir.1994), cert. denied, 514 U.S. 1023, 115 S.Ct. 1373, 131 L.Ed.2d 228 (1995); see also Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir.1993) (cases are typically dismissed for failure to prosecute “when the plaintiff is not ready for trial' or fails to appear”); Knoll v. AT&T, 176 F.3d 359, 364-65 (6th Cir.1999) (collecting cases); 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2370, at" }, { "docid": "23571526", "title": "", "text": "evidence and improperly refused to reset its scheduling order. This court reviews for an abuse of discretion the district court’s decision to sanction a plaintiff by dismissing her suit. Ladien v. Astrachan, 128 F.3d 1051, 1056 (7th Cir.1997). “The abuse of discretion standard ‘means something more than our belief that we would have acted differently if placed in the circumstance confronting the district judge.’ ” Id. (quoting Anderson v. United Parcel Service, 915 F.2d 313, 315 (7th Cir.1990) (internal citations omitted)). “ ‘The district court's decision must strike us as fundamentally wrong for an abuse of discretion to occur.’ ” Id. District courts inherently possess the authority to dismiss a case sua sponte for want of prosecution. Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal is one of the tools available to district courts “to achieve the orderly and expeditious disposition of cases.” Id. at 630-31, 82 S.Ct. 1386. Dismissal is a very harsh sanction, however, and should be used “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.1998) (citations omitted). Until 1993, this circuit did not require judges to fire a “warning shot” before dismissing a case for want of prosecution. See Lockhart v. Sullivan; 925 F.2d 214, 219 (7th Cir.1991); see also Link, 370 U.S. at 632-33, 82 S.Ct. 1386 (lack of express notice before dismissal did not automatically violate the plaintiff’s due process rights; whether to give advanced warning was left to the district court’s discretion). However, in Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993), we tightened the dismissal procedure in this circuit by requiring district courts to provide “due warning” to plaintiffs counsel before dismissing a suit for want of prosecution in most cases. We explained the meaning of “due warning” as follows: “Due warning” need not be repeated warnings and need not be formalized in a rule to show cause. A judge is not obliged to" } ]
581459
district court that he understood the nature and essential elements of both charges. That he did comprehend is evident because, when asked by the district court to comment on the accuracy of the factual basis, Underwood disputed aspects of the proffer even though endorsing it generally. However, in any event his representations at the change-of-plea hearing are binding. See Seybold, 979 F.2d at 587 (binding defendants to sworn statements made during plea colloquy is necessary to “ ‘deter abuses in the withdrawal of guilty pleas ... and to protect the integrity of the judicial process’ ” (citation omitted)). Moreover, having conducted the plea colloquy, the district court was in the best position to evaluate Underwood’s later protestations of confusion. See REDACTED United States v. Redig, 27 F.3d 277, 281 (7th Cir.1994). The court disbelieved them, and its finding is not clearly erroneous. AFFIRMED.
[ { "docid": "23122352", "title": "", "text": "F.2d 341, 348 (7th Cir.1993) (citation omitted). “We give great deference to the district court’s determination that the hearsay is worthy of credence, and will review that ruling only for an abuse of discretion.” Id. (citation omitted). A. Initially, Messino argues that the trial court abused its discretion when it denied his motion to withdraw his guilty plea without holding a hearing on his reasons for withdrawal. Messino contends that he presented “fair and just” reasons including that he was coerced into making the plea, that he misunderstood the consequences of his plea, that he was denied effective assistance of counsel, that he had a colorable entrapment defense, and that his responses at the Rule 11 hearing did not preclude the withdrawal of his plea. The government argues that Messino’s plea was given freely, voluntarily, and knowingly under the totality of the circumstances, that he was effectively represented by counsel, and that there was no factual basis for the giving of an entrapment defense. A hearing on a motion to withdraw a plea is to be ‘routinely granted’ if the movant offers any ‘substantial evidence that impugns the validity of the plea.’ But if no such evidence is offered, or if the allegations advanced in support of the motion ‘are mere conclusions or are inherently unreliable,’ the motion may be denied without a hearing. Further, if the allegations set forth in the motion contradict statements made by the defendant at an acceptance-of-plea hearing which satisfied the requirements of Rule 11, the allegations must overcome the ‘presumption of verity’ that attaches to such statements. United States v. Redig, 27 F.3d 277, 280 (7th Cir.1994) (citations omitted). When a defendant wishes to withdraw his plea after he states at a Rule 11 hearing that it was freely and knowingly given, he “faces an uphill battle in persuading the judge that his purported reason for withdrawing his plea is ‘fair and just.’ ” United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993) (quoting United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992)). The presumption of verity is overcome only if the" } ]
[ { "docid": "11383157", "title": "", "text": "Cir.1994). “A hearing on a motion to withdraw a plea is to be routinely granted if the movant offers any substantial evidence that impugns the validity of the plea.” United States v. Redig, 27 F.3d 277, 280 (7th Cir.1994) (quotations omitted). However, “if no such evidence is offered, or if the allegations advanced in support of the motion are mere conclusions or are inherently unreliable, the motion may be denied without a hearing.” Id. (quotation omitted). Furthermore, the defendant “must overcome the presumption of verity that attaches to [statements made at the Rule 11 colloquy].” Id. (quotation omitted). At his Rule 11 colloquy, Johnson explicitly affirmed that he understood how relevant conduct could be used to increase the length of his sentence. He confirmed that he had discussed this matter with his attorney. He also unequivocally denied that anyone — not his own lawyer, not the government attorneys — had attempted to force him to plead guilty. Johnson’s motion to withdraw his guilty plea directly contradicts his statements at the change of plea hearing; his motion lacks any proof for his allegations besides his own self-serving assertions. See Winston, 34 F.3d at 578-79 (explaining that affidavits containing only conclusions do not provide a basis for an evidentiary hearing). The district judge was well within his discretion in crediting Johnson’s Rule 11 testimony as conclusive. See United States v. Stewart, 198 F.3d 984, 987 (7th Cir.1999). 2. Bobby Davis Apparently unsatisfied with the result of his plea bargain (twenty years in prison), Davis appeals and asks us to rule, contrary to precedent, that an appeal waiver is either constitutionally invalid or void as against public policy, or, alternately, that his plea agreement was not knowing and voluntary. Along with the appeal, Davis’s attorney submitted a request for withdrawal as counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), claiming that no non-frivolous issue was available for appeal. There is no indication that Davis’s guilty plea was anything but knowing and voluntary. As with Johnson, the trial judge addressed Davis personally to ensure that his plea" }, { "docid": "5262537", "title": "", "text": "of the plea upon a showing by the defendant of any fair and just reason.” The standard for granting a Rule 32(d) motion is liberal, but one within the sound discretion of the district court. United States v. Seavoy, 995 F.2d 1414, 1420 (7th Cir.), cert. denied, — U.S.-, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993); United States v. Ellison, 798 F.2d 1102, 1104 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). We do not think the district court abused that discretion in this case. As the district court pointed out, Mr. Winston had ample opportunity at the change of plea hearing to inform the district court that he did not have sufficient information with which to make a rational plea decision. Instead of taking advantage of that opportunity, however, he expressly asserted the contrary. District courts do not and need not treat lightly responses given under oath at a hearing conducted pursuant to Rule 11. As we stated in Ellison: Rule ll’s provisions specifically seek to ensure that entry of a plea is not a meaningless act. Great care is taken when accepting pleas under Rule 11. Plea agreements are placed on the record, the voluntariness and accuracy of the plea is ascertained, and detailed advice is provided to the defendant concerning his rights and the consequences of his plea as well as a determination that defendant understands these matters. Ellison, 798 F.2d at 1106. We have therefore made clear that the record of a Rule 11 proceeding is entitled to a “presumption of verity,” and that answers contained therein are binding. United States v. Seybold, 979 F.2d 582, 587 (7th Cir.1992) (citations omitted), cert. denied, — U.S. -, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993); see also United States v. LeDonne, 21 F.3d 1418, 1428 (7th Cir.1994). As a result, we cannot allow Mr. Winston to disavow the answers he gave as easily as he wishes. See United States v. Price, 988 F.2d 712, 717 (7th Cir.1993) (“ ‘A defendant who presents a reason for withdrawing his plea that contradicts the answers" }, { "docid": "6169727", "title": "", "text": "the propriety of the reasons given for seeking to set aside a guilty plea. Schilling, 142 F.3d at 398. And because the decisiowhether to permit withdrawal is one committed to the district court’s discretion, Abdul, 75 F.3d at 329, we will uphold the denial of a motion to withdraw a guilty plea unless that discretion is abused, Schilling, 142 F.3d at 398. United States v. Underwood, 174 F.3d 850, 852-53 (7th Cir.1999); see also Schilling, 142 F.3d at 398. Furthermore, “[w]hen a defendant wishes to withdraw his plea [of guilty] after he states at a Rule 11 hearing that it was freely and knowingly given, he faces an uphill battle in persuading the judge that his purported reason for withdrawing his plea is fair and just.” Schilling, 142 F.3d at 398 (internal quotations and citations omitted); see also United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995); United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992). Alvarez has failed to convince us that the district court committed error. Prior to accepting Alvarez’s guilty plea, the trial judge conducted a thorough examination of the defendant, during which time Alvarez’s answers were both coherent and responsive. It was only after having had the opportunity to assess his responses, demeanor, conduct, and appearance, that the judge determined that Alvarez was competent. Additionally, when queried by the same judge, neither his own counsel nor the government were cognizant of any manifestations of mental incapacity or any other reason to question Alvarez’s competence to enter a plea of guilty. Furthermore, the district court conducted a lengthy Rule 11 plea colloquy during which Alvarez consistently stated that he understood all the consequences of pleading guilty. Finally, Alvarez, at the court’s request, gave a short narrative of his role in the offense. The trial judge found that these factors, when combined, undercut any argument that Alvarez should be permitted to withdraw his guilty plea. We are convinced that the lengthy and coherent exchange between the district court judge and Alvarez during the Rule 11 colloquy demonstrates that Alvarez was competent to plead guilty and that" }, { "docid": "2658565", "title": "", "text": "one is so cited. See 18 U.S.C. § 924(c); Willoughby, 27 F.3d at 266. At no time during the change-of-plea hearing was the offense of possession of cocaine base with intent to distribute discussed in relation to the firearm possession. Moreover, no one discussed the change in the predicate drug trafficking crime from the cocaine base offense charged in the indictment to the marijuana offense relied upon in the plea colloquy. As crowning evidence of the confusion, the facts to which Mr. Bradley admitted, both in the plea agreement and at the Rule 11 colloquy, did not establish the § 924(c) offense with which he was charged. When there is no evidence that the requisite elements of the charged offense were comprehended by any party to the proceeding, confidence in the defendant’s understanding of that charge certainly is undermined. As we previously have explained, “[u]nless the defendant understands the elements of the crime he is admitting, his plea cannot be said to have been knowingly and voluntarily entered.” United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir.1994); see also United States v. Musa, 946 F.2d 1297, 1303 (7th Cir.1991) (describing as a violation of due process a court’s acceptance of a plea to which the elements of the crime charged are not understood (citing McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969))). “[A] defendant’s clear understanding of the nature of the charge to which he is pleading guilty relates to the very heart of the protections afforded by the Constitution and Rule 11.” Fernandez, 205 F.3d at 1027. Misunderstanding of the nature of the charge — shared by all participants in this change-of-plea hearing — is not harmless error. See id. Indeed, the Government does not attempt to defend the validity of the plea in light of this misunderstanding. Given this fundamental misapprehension, Mr. Bradley’s guilty plea was not made knowingly and intelligently. In reaching this conclusion, we note the Supreme Court’s opinion in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In Bousley, the petitioner" }, { "docid": "16248997", "title": "", "text": "have entered a plea of guilty knowingly, understandingly, and voluntarily. . 2. Analysis Mendoza claims that his plea colloquy did not comply with Rule 11 because he never understood the nature of the charge against him. Because Mendoza never sought to withdraw his plea in the district court, our review is for plain error. United States v. Vonn, 535 U.S. 55, 63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Burnside, 588 F.3d 511, 520 (7th Cir.2009). We review Mendoza’s claim of a Rule 11 violation to determine whether (1) an error has occurred; (2) it was plain; (3) it affected Mendoza’s substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See Burnside, 588 F.3d at 520. Rule 11 requires that “before the court accepts a plea of guilty or nolo contendere ... the court must address the defendant personally in open court ... [and] inform the defendant of, and determine that the defendant understands ... the nature of each charge to which the defendant is pleading.” Fed.R.Crim.P. 11(b)(1)(G). It requires that a district court “ensure that [the defendant] understands the law of his crime in relation to the facts of his case.” Vonn, 535 U.S. at 62, 122 S.Ct. 1043. Unless a defendant “fully comprehends the elements of the crime to which he is confessing, his plea cannot be said to have been knowingly and voluntarily entered.” United States v. Fernandez, 205 F.3d 1020, 1025 (7th Cir.2000) (quotation and citation omitted). To determine whether a defendant in fact understands the nature of a charge, we take a totality-of-the-circumstances approach and consider (1) the complexity of the charge; (2) the defendant’s intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the district judge’s inquiry during the plea hearing and the defendant’s own statements; and (5) the evidence proffered by the government. Id. (citing United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir.1994)). Our assessment of these factors in Fernandez is instructive here. In Fernandez, a native Spanish-speaking defendant with a fifth grade education and limited" }, { "docid": "8328288", "title": "", "text": "the defendant to [his] admissions at the [plea colloquy].” Id. At the hearing on defendant’s pro se motion to withdraw his plea, Patterson stated that his lawyer “promised [him] a sentence that [he] didn’t get” and that he did not have enough time to review the plea agreement. While on their face, those reasons appear compelling, we have stated that “[c]laims of involuntariness or confusion that in the abstract seem like sufficient reasons to allow a defendant to withdraw his plea, or at least look into the matter further, may be insufficient in the context of a record containing substantial indications of voluntariness and lack of confusion.” United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992); see also Messino, 55 F.3d at 1248 (citation omitted). “One especially important consideration is the defendant’s answers to the questions posed at his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here, defendant’s reasons to withdraw his plea plainly contradicted his sworn statements during the plea colloquy. Moreover, Patterson’s attorney, who was present at the hearing, told the court he believed the pro se motion lacked merit. It is also worth noting that defendant did not indicate to the district court (and has not indicated on appeal) that he would have presented any other evidence of involuntariness or confusion at a putative evidentiary hearing. Thus, even if defendant had properly requested an evidentiary hearing regarding his request to withdraw his guilty plea, based on these facts, and in light of the heavy burden shouldered by a defendant when requesting to withdraw a guilty plea, we could not conclude that the district court abused its discretion when it denied an evidentiary hearing. B. Patterson’s Plea Patterson argues that, even aside from his request for an evidentiary hearing, the district court should have vacated his guilty plea because his plea agreement was based on the parties’ “mutual mistake” regarding the application of the career offender guideline, or, in an alternative read ing of the same events, because the government “breached the agreement.” The government maintains that Patterson’s “underestimat[ion of] his sentence” at the time he" }, { "docid": "11176153", "title": "", "text": "just reason for withdrawal of the defendant’s guilty plea because the witness’ statement “raise[d] new questions about [the defendant’s] involvement in the illegal activity”). Additionally, unlike the defendant in Groll, Mr. Bryant did not introduce evidence that, at the time of his plea, he was unaware of a legal defense to the crime charged. Groll, 992 F.2d at 758, 759-60 (stating that “being legally innocent of the crime is a fair and just reason to withdraw a guilty plea” and concluding that the district court abused its discretion in denying the defendant’s motion to withdraw her guilty plea when unrebutted evidence in the record could have supported her entrapment defense and the defendant may have been unaware of the entrapment defense at the time she pleaded guilty). The evidence and legal arguments that Mr. Bryant relied upon in his motion at best relate to the strength of the Government’s case against him, not his factual or legal innocence. As we previously have noted, “[a] defendant is not entitled to withdraw his plea merely because he has misapprehended the strength of the government’s case.” Silva, 122 F.3d at 415. When a defendant has been apprised of the facts giving rise to the charges against him, the mere fact that he does not know, at the time of his plea, what evidence the Government will use against him does not present a “fair and just” reason for him to withdraw his plea. See Underwood, 174 F.3d at 853-54 (concluding that “[the defendant’s] reevaluation of his trial prospects afforded no basis for withdrawing his validly-entered guilty pleas”); United States v. Seybold, 979 F.2d 582, 587 (7th Cir.1992) (noting that Rule 11 “does not require the trial judge at the plea hearing to air all of the government’s evidence”). Furthermore, it is far from clear that Mr. Bryant’s discovery of the problem with one of the Government’s chemists would have impacted his decision to plead guilty. Although Mr. Bryant pleaded guilty to the charged conspiracy, he specifically reserved for a bench trial the issues of the type and quantity of drugs involved in the" }, { "docid": "15018256", "title": "", "text": "a fair and just reason for withdrawal for clear error. United States v. Milquette, 214 F.3d 859, 861 (7th Cir.2000). As the basis for withdrawing his guilty plea, Hodges claims that he is actually innocent, despite his lengthy Rule 11 colloquy to the contrary. He claims that he rushed into a plea agreement and admission of guilt in his plea hearing, without adequate assistance of counsel (a claim we have rejected) and in a state of confusion, again all contrary to his statements in his Rule 11 colloquy. Further, Hodges relies on his swift recantation (three weeks later), as evidence of his innocence. Last, he claims that all the government witnesses were lying concerning his involvement. Legal innocence has been recognized by this circuit, and rightfully so, as a fair and just reason to withdraw a guilty plea. See United States v. Gomez-Orozco, 188 F.3d 422, 425 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993). But a defendant’s bare protestations of innocence-espeeially after a knowing and voluntary guilty plea in a thorough Rule 11 colloquy-will not suffice, regardless of how swiftly they are made. The defendant must proffer some credible evidence, Gomez-Orozco, 188 F.3d at 425, and this defendant has proffered none. When a defendant makes no more than naked claims of innocence, a court need not allow the defendant to withdraw his guilty plea nor allow the defendant an evidentiary hearing. United States v. Redig, 27 F.3d 277, 280 (7th Cir.1994). We therefore find no clear error in the district court’s factual findings, which relied on the Rule 11 colloquy, and no abuse of discretion in the district court’s decision not to allow Hodges to withdraw his guilty plea. Ill For the foregoing reasons, the judgment of the district court is AffiRmed. . A second motion to withdraw the guilty plea was filed on November 15, 1999, alleging that the plea agreement was null and void. That motion was also denied and is not at issue in this appeal. . For reasons that will become apparent in the text, we are reluctant to hear, and" }, { "docid": "22845985", "title": "", "text": "motion after a careful review of the Rule 11 hearing transcript); United States v. Castello, 724 F.2d 813, 815 (9th Cir.1984) (upholding the denial of a plea withdrawal motion where the district court conducted a “particularly searching” Rule 11 hearing). The Rule 11 inquiry here was thorough. The district court first questioned Nostra-tis to make sure that he understood the plea proceeding and that he was not under the influence of any drugs. Then the court informed Nostratis about the nature of the crime and its elements, the maximum and minimum sentences for his crime, the role of the Sentencing Guidelines, and the constitutional rights that he waived by pleading guilty. Nostratis said that he had read the plea agreement and discussed it with his lawyer, and that he was satisfied with his representation. Finally, Nostratis accepted the plea agreement’s statement of facts and pled guilty. All the court’s questions and Nostratis’ answers were in English; throughout the hearing, Nostratis coherently responded to the court in English without the aid of an interpreter. See Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir.1994) (upholding the district court’s decision that no interpreter was necessary because, during the Rule 11 plea colloquy, “[t]he defendant’s answers were consistently responsive, if brief and somewhat inarticulate, and he only occasionally consulted with his attorney”). Nostratis points to a particular exchange where the court asked him whether he comprehended his plea agreement, and he responded, “I understand, but not hundred percent clearly from my mind.” In isolation, this response seems to support Nos-tratis’ argument. When we view this response in context, however, we find that the court continued to question Nostratis until it was satisfied that he comprehended the plea agreement. It is true that, during the hearing on Nostratis’ motion to withdraw his plea, Nostratis testified through an interpreter that he did not understand English well enough to comprehend his plea agreement. However, the district court could reasonably have chosen to credit Nostratis’ declarations made in open court while under oath during the Rule 11 hearing over his subsequent testimony more than two years" }, { "docid": "2658564", "title": "", "text": "263, 266 (7th Cir.1994) (“ ‘To wit’ is an expression of limitation which, as our cases indicate, makes what follows an essential part of the charged offense.”). It is clear that Mr. Bradley was misinformed during the change-of-plea hearing as to what conduct would suffice to establish the § 924(c) offense with which he was charged. In considering the court’s inquiry, Mr. Bradley’s admissions and the Government’s evidence, the circumstances reveal general confusion and misunderstanding as to the nature of the § 924(c) charge against Mr. Bradley. When describing the elements of the § 924(c) offense at the change-of-plea hearing, the Government’s attorney suggested that it need establish only that Mr. Bradley committed a “drug possession crime” and that it must prove the firearm was possessed in furtherance of that crime. Change of Plea Tr. at 7. However, this statement was inaccurate, given that, to prove a § 924(c) violation, the Government actually must establish a “drug trafficking crime,” as defined in § 924(c)(2), and the specific drug trafficking crime described in the indictment when one is so cited. See 18 U.S.C. § 924(c); Willoughby, 27 F.3d at 266. At no time during the change-of-plea hearing was the offense of possession of cocaine base with intent to distribute discussed in relation to the firearm possession. Moreover, no one discussed the change in the predicate drug trafficking crime from the cocaine base offense charged in the indictment to the marijuana offense relied upon in the plea colloquy. As crowning evidence of the confusion, the facts to which Mr. Bradley admitted, both in the plea agreement and at the Rule 11 colloquy, did not establish the § 924(c) offense with which he was charged. When there is no evidence that the requisite elements of the charged offense were comprehended by any party to the proceeding, confidence in the defendant’s understanding of that charge certainly is undermined. As we previously have explained, “[u]nless the defendant understands the elements of the crime he is admitting, his plea cannot be said to have been knowingly and voluntarily entered.” United States v. LeDonne, 21 F.3d 1418," }, { "docid": "5262538", "title": "", "text": "entry of a plea is not a meaningless act. Great care is taken when accepting pleas under Rule 11. Plea agreements are placed on the record, the voluntariness and accuracy of the plea is ascertained, and detailed advice is provided to the defendant concerning his rights and the consequences of his plea as well as a determination that defendant understands these matters. Ellison, 798 F.2d at 1106. We have therefore made clear that the record of a Rule 11 proceeding is entitled to a “presumption of verity,” and that answers contained therein are binding. United States v. Seybold, 979 F.2d 582, 587 (7th Cir.1992) (citations omitted), cert. denied, — U.S. -, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993); see also United States v. LeDonne, 21 F.3d 1418, 1428 (7th Cir.1994). As a result, we cannot allow Mr. Winston to disavow the answers he gave as easily as he wishes. See United States v. Price, 988 F.2d 712, 717 (7th Cir.1993) (“ ‘A defendant who presents a reason for withdrawing his plea that contradicts the answers he gave at a Rule 11 hearing faces an uphill battle in persuading the judge that his purported reason for withdrawing his plea is “fair and just.” ’ ”) (quoting United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992)). In concluding that the district court committed no reversible error in relying on Mr. Winston’s statements at the change of plea hearing, we do not overlook Mr. Winston’s contention that he did not know enough at the time he made the statements to have stated otherwise. Cf. United States v. Giardino, 797 F.2d 30, 32 (1st Cir.1986) (“The government relies chiefly on the fact that Giardino admitted his guilt at the plea hearing and also expressed satisfaction with his counsel. All this took place, however, before Giardino found out what he says is the truth.”). Even if we disregard Mr. Winston’s Rule 11 testimony and assume arguendo the truth of the facts he asserts, he has failed to allege, either in his motion or in his affidavit, facts that would constitute grounds for allowing withdrawal" }, { "docid": "11383156", "title": "", "text": "Johnson that he understood relevant conduct could be used to enhance the length of his sentence and that the maximum term of imprisonment he could face for his count of conviction was twenty years. The trial judge also made sure that Johnson understood he could plead not guilty and receive all the constitutional protections of a fair trial. Thus, Johnson cannot challenge the district court’s application of the Sentencing Guidelines. The government, however, appropriately concedes that the appellate waiver does not apply to the district court’s denial of an evidentiary hearing. After entering his guilty plea but before the sentencing hearing, Johnson attempted to withdraw his plea. He claimed that he had been coerced by the government and uninformed about the consequences of a guilty plea. The district judge, finding his Rule 11 colloquy with Johnson to be determinative of these issues, denied the request for an evidentiary hearing. We review the district court’s refusal to allow an evidentiary hearing for an abuse of discretion. See United States v. Winston, 34 F.3d 574, 578-79 (7th Cir.1994). “A hearing on a motion to withdraw a plea is to be routinely granted if the movant offers any substantial evidence that impugns the validity of the plea.” United States v. Redig, 27 F.3d 277, 280 (7th Cir.1994) (quotations omitted). However, “if no such evidence is offered, or if the allegations advanced in support of the motion are mere conclusions or are inherently unreliable, the motion may be denied without a hearing.” Id. (quotation omitted). Furthermore, the defendant “must overcome the presumption of verity that attaches to [statements made at the Rule 11 colloquy].” Id. (quotation omitted). At his Rule 11 colloquy, Johnson explicitly affirmed that he understood how relevant conduct could be used to increase the length of his sentence. He confirmed that he had discussed this matter with his attorney. He also unequivocally denied that anyone — not his own lawyer, not the government attorneys — had attempted to force him to plead guilty. Johnson’s motion to withdraw his guilty plea directly contradicts his statements at the change of plea hearing; his" }, { "docid": "394873", "title": "", "text": "for spurning the other justification Underwood gave for withdrawal. Though conceding his criticism related “mostly” to the money laundering charge, Underwood urged the district court to set aside his entire “package deal” because, as he explained, the guilty pleas were entered “during a hearing which most graciously can be termed confusing.” But this contention is contradicted by Underwood’s concession that his guilty pleas were voluntary, and under oath at the change-of-plea hearing he expressly assured the district court that he understood the nature and essential elements of both charges. That he did comprehend is evident because, when asked by the district court to comment on the accuracy of the factual basis, Underwood disputed aspects of the proffer even though endorsing it generally. However, in any event his representations at the change-of-plea hearing are binding. See Seybold, 979 F.2d at 587 (binding defendants to sworn statements made during plea colloquy is necessary to “ ‘deter abuses in the withdrawal of guilty pleas ... and to protect the integrity of the judicial process’ ” (citation omitted)). Moreover, having conducted the plea colloquy, the district court was in the best position to evaluate Underwood’s later protestations of confusion. See United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995); United States v. Redig, 27 F.3d 277, 281 (7th Cir.1994). The court disbelieved them, and its finding is not clearly erroneous. AFFIRMED." }, { "docid": "8328287", "title": "", "text": "to pursue, we conclude that the district court’s denial of Patterson’s motion without an evidentiary hearing was not an abuse of discretion. However, even if Patterson had properly raised this issue through counsel, the district court would not have abused its discretion by denying the motion without an evidentiary hearing. Federal Rule of Criminal Procedure 11 allows a defendant to withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). But a defendant who states at a plea colloquy that his plea was “freely and knowingly given ... faces an uphill battle” in convincing a judge that his reasons for withdrawal are “fair and just” because representations made at a plea colloquy are under oath and are given a “presumption of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995). We have stated that district courts are “generally justified in discrediting the proffered reasons for the motion to withdraw and holding the defendant to [his] admissions at the [plea colloquy].” Id. At the hearing on defendant’s pro se motion to withdraw his plea, Patterson stated that his lawyer “promised [him] a sentence that [he] didn’t get” and that he did not have enough time to review the plea agreement. While on their face, those reasons appear compelling, we have stated that “[c]laims of involuntariness or confusion that in the abstract seem like sufficient reasons to allow a defendant to withdraw his plea, or at least look into the matter further, may be insufficient in the context of a record containing substantial indications of voluntariness and lack of confusion.” United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992); see also Messino, 55 F.3d at 1248 (citation omitted). “One especially important consideration is the defendant’s answers to the questions posed at his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here, defendant’s reasons to withdraw his plea plainly contradicted his sworn statements during the plea colloquy. Moreover, Patterson’s attorney, who was present at the hearing, told the" }, { "docid": "23541292", "title": "", "text": "averred that he did not need to discuss his case further with his attorney, who did not object to Mosley’s pleading guilty, and that the government’s evidence, which included the interstate commerce of the handguns found on Mosley, would establish the elements of his crime. See id. at 238 & n. 6 (finding it significant in affirming guilty pleas that defendants never said that they did not understand the nature of the charges and that their counsel did not object to the guilty pleas). We also consider that “[t]he crime of being a felon in possession of a firearm is easily understood,” although Mosley had only a ninth-grade education. Jones, 143 F.3d at 1419. In addition to the government’s having explained and established the interstate nexus at trial, Mosley plainly admitted to the judge that he possessed the handguns seized from him and that he had prior felony convictions after the judge had determined that he had no impairments to preclude his decision to plead guilty. See id. (finding admissions of committing the factual elements of § 922(g)(1) by defendant with tenth-grade education significant to accepting plea); DePace, 120 F.3d at 236 (affirming guilty pleas where defendants agreed with government’s factual proffer and admitted commission of crime). Furthermore, Mosley had the opportunity, even encouragement from the district judge, to proceed with his jury trial if he was not absolutely certain that he wanted to plead guilty. In view of the entire record, including the opening statements, witnesses’ testimonies, and the plea colloquy, we conclude that the district judge was not clearly erroneous in his implicit determination that Mosley sufficiently understood the interstate commerce element of his crime and in accepting his guilty plea; with no objection to the plea colloquy on this basis until this appeal, nothing in the record contradicts our decision. See DePace, 120 F.3d at 238 (“holding] that the district court’s implicit factual finding that [the defendant] understood the nature of the charges was not clearly erroneous” because the record did not “contradict the district court’s conclusion that [the defendant] adequately comprehended the basis for his plea”)." }, { "docid": "15018257", "title": "", "text": "thorough Rule 11 colloquy-will not suffice, regardless of how swiftly they are made. The defendant must proffer some credible evidence, Gomez-Orozco, 188 F.3d at 425, and this defendant has proffered none. When a defendant makes no more than naked claims of innocence, a court need not allow the defendant to withdraw his guilty plea nor allow the defendant an evidentiary hearing. United States v. Redig, 27 F.3d 277, 280 (7th Cir.1994). We therefore find no clear error in the district court’s factual findings, which relied on the Rule 11 colloquy, and no abuse of discretion in the district court’s decision not to allow Hodges to withdraw his guilty plea. Ill For the foregoing reasons, the judgment of the district court is AffiRmed. . A second motion to withdraw the guilty plea was filed on November 15, 1999, alleging that the plea agreement was null and void. That motion was also denied and is not at issue in this appeal. . For reasons that will become apparent in the text, we are reluctant to hear, and ordinarily do not hear, claims of ineffective assistance of counsel on direct appeal. We will, however, hear such appeals when the defendant is represented by a different attorney on appeal and the claim rests on the trial record alone, if the record is complete enough for us to address the claim. United States v. Martinez, 169 F.3d 1049, 1052 (1999). . The government asserts that this argument has been waived by Hodges’ plea agreement. But a valid appellate waiver contained in a plea agreement does not preclude a defendant’s claim that the plea agreement itself was the product of ineffective assistance of counsel. Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir.1999)." }, { "docid": "394872", "title": "", "text": "plea, however, is not a “road-show tryout,” Hugi v. United States, 164 F.3d 378, 382 (7th Cir.1999), and we “will not ‘degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess,’ ” United States v. Silva, 122 F.3d 412, 415-16 (7th Cir.1997) (quoting United States v. Hyde, 520 U.S. 670, 677, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997)). In essence, as the government observes, Underwood decided when he saw the PSR that he overestimated the strength of the evidence developed during the continuing investigation, but his reevaluation of his trial prospects afforded no basis for withdrawing his validly-entered guilty pleas. See Silva, 122 F.3d at 415. A contrary interpretation of Rule 32(e) would give Underwood the benefits of his plea agreement without any of the risks, see Hugi, 164 F.3d at 382, and we discern, no error in the district court’s conclusion that by advocating this result Underwood did not present a “fair and just” reason to support withdrawal. Nor can we fault the district court for spurning the other justification Underwood gave for withdrawal. Though conceding his criticism related “mostly” to the money laundering charge, Underwood urged the district court to set aside his entire “package deal” because, as he explained, the guilty pleas were entered “during a hearing which most graciously can be termed confusing.” But this contention is contradicted by Underwood’s concession that his guilty pleas were voluntary, and under oath at the change-of-plea hearing he expressly assured the district court that he understood the nature and essential elements of both charges. That he did comprehend is evident because, when asked by the district court to comment on the accuracy of the factual basis, Underwood disputed aspects of the proffer even though endorsing it generally. However, in any event his representations at the change-of-plea hearing are binding. See Seybold, 979 F.2d at 587 (binding defendants to sworn statements made during plea colloquy is necessary to “ ‘deter abuses in the withdrawal of guilty pleas ... and to protect the integrity of the judicial process’ ” (citation omitted)). Moreover," }, { "docid": "394869", "title": "", "text": "offenses, Underwood concedes that in his zeal to end the ongoing investigation he “assumed the risk” and entered voluntary pleas without waiting for further discovery. Nonetheless, says Underwood, a defendant who negotiates a pre-indictment plea agreement should be free to take back his guilty plea if, after learning what evidence the government had available for trial, he “takes the position that the government’s evidence against him is false.” We disagree. Underwood's contention, regardless of how it is framed, is not about discovery. He negotiated a plea to the Information before it was filed, and we do not understand him to argue that he was entitled to pre-charge discovery during the government's ongoing investigation. To the contrary, Underwood makes the point that \"discovery\" was unavailable precisely because the government had not finished investigating. Moreover, Underwood concedes that with respect to the indicted § 922(g) counts the government had tendered everything due him under Federal Rule of Criminal Procedure 16, and that rule compelled no additional disclosures concerning matters under investigation but not yet charged. See Fed.R.Crim.P. 16(a). In any event it would not have mandated disclosure of the kinds of materials-a list of the government's witnesses and their statements-that Underwood complains was unavailable to him when he executed his plea agreement. See Fed.R.Crim.P. 16(a)(2); United States v. Moore, 936 F.2d 1508, 1514-45 (7th Cir.1991); United States v. Bouye, 688 F.2d 471, 473-74 (7th Cir.1982); United States v. Disston, 612 F.2d 1036, 1037-38 (7th Cir.1980). And we note that a guilty plea entered by a defendant who does not see the prosecution’s hand in advance will still be voluntary if, as was true in this case, the plea follows disclosure of an adequate factual basis. See United States v. Winston, 34 F.3d 574, 578-79 (7th Cir.1994) (where defense counsel allegedly withheld discovery materials from defendant, district court properly denied motion to withdraw guilty plea since defendant had ample opportunity at the change-of-plea hearing to alert the court if he needed more information to enter an informed plea); United States v. Seybold, 979 F.2d 582, 587 (7th Cir.1992) (Fed. R.Crim.P. 11 “does not" }, { "docid": "5892927", "title": "", "text": "counsel rendered the pleas involuntary. We perceive no abuse of discretion in the district court’s refusal to accept either contention as a basis to set aside Carroll’s guilty pleas. As to the first, actual innocence is a valid ground for withdrawing a guilty plea. United States v. Hodges, 259 F.3d 655, 661 (7th Cir.2001). “But a defendant’s bare protestations of innocence— especially after a knowing and voluntary guilty plea in a thorough Rule 11 colloquy — will not suffice.... The defendant must proffer some credible evidence.” Id. Carroll provided no evidence other than his own denials with respect to Counts Four and Five of the superseding indictment, which not only contradicted his earlier sworn testimony during the plea colloquy, but also ignores that as to those two counts the government would have offered at trial the methamphetamine, the gun, and the associated items suggesting drug distribution that were found in Carroll’s quarters. And of course the government would have presented testimony from reservists who saw Carroll with juveniles while he was at Fort McCoy, and from the juveniles themselves. The district court was thus understandably skeptical of the claim of innocence, especially since it came only after Carroll saw the presentencing report. See United States v. Underwood, 174 F.3d 850, 854 (7th Cir.1999). It is also not lost upon us that Carroll’s rhetoric about actual innocence focuses solely on the dates he allegedly committed counts that were dismissed as part of his plea agreement. Ineffective assistance of counsel renders a guilty plea involuntary, Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and thus is also a valid basis for withdrawing a guilty plea. United States v. Wallace, 276 F.3d at 360. But to have shown ineffective assistance, Carroll was required to demonstrate both that Brown’s performance was “objectively unreasonable” and that, but for Brown’s errors, Carroll would not have pleaded guilty. Hays v. United States, 397 F.3d 564, 568 (7th Cir.2005). “This test is ‘highly deferential’ to counsel and presumes reasonable judgment and effective trial strategy.” Id. (citation omitted). Any contention that Brown’s performance" }, { "docid": "394870", "title": "", "text": "16(a). In any event it would not have mandated disclosure of the kinds of materials-a list of the government's witnesses and their statements-that Underwood complains was unavailable to him when he executed his plea agreement. See Fed.R.Crim.P. 16(a)(2); United States v. Moore, 936 F.2d 1508, 1514-45 (7th Cir.1991); United States v. Bouye, 688 F.2d 471, 473-74 (7th Cir.1982); United States v. Disston, 612 F.2d 1036, 1037-38 (7th Cir.1980). And we note that a guilty plea entered by a defendant who does not see the prosecution’s hand in advance will still be voluntary if, as was true in this case, the plea follows disclosure of an adequate factual basis. See United States v. Winston, 34 F.3d 574, 578-79 (7th Cir.1994) (where defense counsel allegedly withheld discovery materials from defendant, district court properly denied motion to withdraw guilty plea since defendant had ample opportunity at the change-of-plea hearing to alert the court if he needed more information to enter an informed plea); United States v. Seybold, 979 F.2d 582, 587 (7th Cir.1992) (Fed. R.Crim.P. 11 “does not require the trial judge at the plea hearing to air all of the government’s evidence”). What Underwood really advocates is that we countenance the use of Rule 32(e) to undermine the plea negotiation process. Plea agreements essentially are contracts between government and defendant, e.g., United States v. Standiford, 148 F.3d 864, 867-68 (7th Cir.1998); Schilling, 142 F.3d at 394, and their utility to either party depends upon the assurance of enforcement, see United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995). By his own account Underwood pressed the government to stop investigating “numerous” potential charges, a point that leads us to note the probation officer’s observation that informant accounts linking Underwood to crack dealing were not considered in assessing relevant conduct. Underwood was under no compulsion to negotiate with the government, and all he needed to do was wait for a superseding indictment if in weighing his options he wanted to assess the discovery that would become available under Rule 16. Instead, he knowingly “assumed the risk” and accepted the government’s offer. A guilty" } ]
874766
Id. at 52. . Id. . Beal Bank, 780 So.2d at 52. . Id. at 53 (internal citations omitted). . Id. . Beal Bank, 780 So.2d at 58-59 (emphasis supplied) (internal citations and footnotes omitted). . Julia v. Russo, 984 So.2d 1283, 1285 (Fla. 4th DCA 2008) (“In absence of evidence to the contrary, co-tenants are presumed to owe [sic] equal undivided interests”) (quoting Levy v. Docktor, 185 B.R. 378, 381 (S.D. Fla. 1995)). . See Sneed v. Davis, 135 Fla. 271, 184 So. 865 (1938); see also In re Goldberg, 229 B.R. 877, 882-83 (Bankr. S.D. Fla. 1998). . .In re Short, 188 B.R. 857, 860 (Bankr. M.D. Fla. 1995). . See Fla. Stat. § 726.102(2)(c). . REDACTED . Wiand v. Wells Fargo Bank, N.A., 86 F.Supp.3d 1316, 1325 (M.D. Fla. 2015) (quoting § 726.105(l)(a), Florida Statutes). . See Fla. Stat. § 726.102(14). . Doc. No. 35-10, marked as Exhibit J. . Doc. No. 48-21. . Beal Bank, 780 So.2d at 59. . Id. at 53; see also Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So.2d 1227, 1229 ' (Fla. 4th DCA 2002) (“Absent other provision, however, the shares in the joint account are presumed to be equal for purposes of alienation.”). . Doc. Nos. 35-5, 35-6, 35-7, 35-8, marked as Exhibits E, F, G, and H, respectively. . Beal Bank, 780 So.2d at 61. . Doc. No. 35-11, marked as Exhibit K. . Doc. No.
[ { "docid": "3781039", "title": "", "text": "Bankruptcy Code. See Malone v. Short, 188 B.R. 857, 860 (Bankr.M.D.Fla.1995) (holding transfer of interest in homestead to non-debtor spouse was not avoidable pursuant to Section 548); Kapila v. Fornabaio, 187 B.R. 780, 782 (Bankr.S.D.Fla.1995) (holding Chapter 7 trustee could not avoid transfer pursuant to Section 548 where debtor executed Quit Claim Deed to his homestead property in favor of his non-debtor wife); Gennet v. Docktor, 185 B.R. 378, 386 (Bankr.S.D.Fla.1995) (holding transfer of debtor’s undivided one-half interest in condominium unit to joint tenant was not avoidable pursuant to Section 548); Tavormina v. Robinett, 47 B.R. 591, 593 (Bankr.S.D.Fla.1985) (holding conveyance of condominium by debtor-wife to both debtors as tenants by the entireties was not avoidable pursuant to Section 548). The foregoing cases are all distinguishable from the instant case, however, because they involve transfers of interests in homestead, as opposed to a transfer of an interest in the proceeds of homestead. If the Debtor in the instant case had transferred his interest in the homestead to his wife prior to the sale, such transfer would not have been avoidable because an interest in homestead is “generally exempt under nonbankruptcy law.” Fla.Stat. § 726.102(2). Nevertheless, an interest in the proceeds of homestead generally is not exempt under nonbankruptcy law. As discussed at length in this Court’s recent opinion in In re Simms, 243 B.R. 156, 158-59 (Bankr.S.D.Fla.2000), the proceeds from a voluntary sale of homestead retain homestead exemption status only if the debtor proves by a preponderance of the evidence “ ‘an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time.’ ” Id. at 158 (quoting Orange Brevard Plumbing & Heating v. La Croix, 137 So.2d 201, 206 (Fla.1962)). Based on the stipulated facts of the instant case, the Court finds that the proceeds of the September 5, 1996 homestead sale, as a matter of law, did not retain homestead exemption status. The proceeds were admittedly used by the Debt- or’s wife to purchase collateral for a business loan; and, nearly" } ]
[ { "docid": "14539430", "title": "", "text": "and insured as co-clients of the firm in the absence of a conflict of interest”) (quoting Gen. Sec. Ins. Co. v. Jordan, Coyne & Savits, LLP, 357 F.Supp.2d 951, 956 (E.D.Va.2005)); Pine Island Farmers Coop v. Erstad & Riemer, P.A., 649 N.W.2d 444, 449 (Minn.2002) (explaining \"it is clear that in an insurance defense scenario, defense counsel has an attorney-client relationship with the insured”). . Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 908 (Fla. 3d DCA 2004). . Doc. No. 686 at p. 58,1.25-p. 59,1.5. . In re Ginn-LA St. Lucie, Ltd., 439 B.R. 801 (Bankr.S.D.Fla.2010). . Transmark, USA, Inc. v. State Dep’t of Ins., 631 So.2d 1112, 1116-17 (Fla. 1st DCA 1994). Ashcraft & Gerel v. Shaw, 126 Md.App. 325, 728 A.2d 798, 812-13 (1999). . Doc. No. 613 at 7. . Doc. No. 621 at 7 (citing Ashcraft, 728 A.2d at 812-13). . Ashcraft, 728 A.2d at 812-13. . Sky Valley Ltd. P’ship v. ATX Sky Valley, Ltd., 150 F.R.D. 648 (N.D.Cal.1993); see also FDIC v. Ogden Corp., 202 F.3d 454, 461-62 (1st Cir.2000). . Sky Valley, 150 F.R.D. at 651. . Id. . Id. . Id. at 652. . Id. at 652-53. . Id. at 659-663. . Id. . Id. at 653. . U.S. Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So.2d 686, 691 (Fla. 4th DCA 2006) (explaining that \"an insurer's duty to defend rises to the level of a fiduciary duty”). . Id. . Doc. No. 624-1 at § 6(c)(vi)(c). . Doc. No. 402 at p. 126,1.8-p. 129,1.3. . Doc. No. 613 at 8. .Doc. No. 610 at 9. . Id. (emphasis added). . . Doc. No. 610-2. . Those law firms include: Fowler White; Fudge & McArthur; Mancuso & Dias; Quin-tairos Prieto; Romaguerra Baker; the Rydberg firm; Schutt Schmidt; Wilkins Tipton; and Wisler Pearlstine. . Sky Valley Ltd. P'ship v. ATX Sky Valley, Ltd., 150 F.R.D. 648, 653 (N.D.Cal.1993). .The Court, of course, is not finding that such claims exist or have merit. If the Receiver's allegations regarding the conduct by Wilkes & McHugh are true, then no such" }, { "docid": "21655955", "title": "", "text": "Banking & Tr. Co., 119 F.Supp.3d 1328, 1356 (S.D. Fla. 2015); see also Fla. Stat, § 670.102 cmt. (“Consequently, resort to principles of law or equity outside of Article 4A is no.t appropriate to create rights, duties and liabilities in consistent with those stated in this Article”). Why does this distinction between the UCC and common law matter? Florida’s statutes of limitations applying to the latter are considerably more generous than the statute of repose for the former. Compare Fla. Stat. § 95.11, with id. § 670.505. The Court thus first confirms whether the claims are truly displaced by—ie., specifically provided for by—the UCC before examining the Code’s statute of repose, a. UCC Displacement Determining whether the UCC covers a particular genus of claim is inherently a somewhat fact-intensive inquiry. See, e.g., Corfan Banco Asuncion Paraguay v. Ocean Bank, 715 So.2d 967, 971 (Fla. 3d DCA 1998) (finding negligence claims in case displaced but declining to reach whether to adopt blanket rule displacing all negligence claims); In re Bancredit Cayman Ltd., 419 B.R. 898, 914-15 (Bankr. S.D. Fla. 2009) (finding contract claims displaced whex-e they regarded only the fund transfer). Some further detail into the Complaint’s allegations are thus necessary. Trudel and Ruslan complain of the unauthorized wire transfer, but these objections take many forms. They assert that the faxed request had various ‘Ted flags”: the instruction misspelled the name of the Czech bank; Gwynfe did not list a corporate address; and the sender did not use SunTrust’s proper wire-transfer form. See SAC, ¶¶ 52-53, 56. In this situation, Plaintiffs contend that SunTrust employees should have attempted to contact Nikitina or investigated the faxed instructions with the Czech bank, but they approved the fund transfer without a second thought. Id., ¶¶ 49-51, 53-55. Closer inspection of the UCC reveals that Article 4A covers these circumstances in full. With regard to the Czech-bank misspelling, Article 4A addresses the “rights and obligations” of SunTrust and Plaintiffs in cases where the sender of the wire-transfer instructions misidentifies the bank. See Fla. Stat. § 670.208(2)(b). As to the absence of Gwynfe’s corporate address, other" }, { "docid": "997853", "title": "", "text": "to state when the alleged default occurred. (Doc. 23, ¶ 8). . Doc. 23, Ex. H. . Id. . Doc, 23. . Id. . Doc.31. . Id. . A motion to reopen may be filed by a party in interest such as Space Coast. Fed. R. Bankr. P. 5010. . In re Shondel, 950 F.2d 1301, 1304 (7th Cir. 1991). . Id.; see also Jester v. Wells Fargo Bank N.A. (In re Jester), 656 Fed.Appx. 425, 427-28 (10th Cir, 2016); Zinchiak v. CIT Small Business Lending Corp. (In re Zinchiak), 406 F.3d 214, 223 (3d Cir. 2005); Curry v. Castillo (In re Castillo), 297 F.3d 940, 944 (9th Cir. 2002). . In re Shondel, 950 F,2d at 1304. . 11 U.S.C. §§ 101-1532 (\"Code” or “Bankruptcy Code”). Unless otherwise indicated, all sectional references are to the Bankruptcy Code. . In re Failla, 838 F.3d at 1179. . Section 521(a)(2) requires chapter 7 debtors with secured obligations to file a statement of intentions with respect to the \"retention or surrender of such property ,,,. ” The statement must be filed within 30 days of the chapter 7 petition, and the debtors must perform their intention within 30 days after the first date set for the meeting of creditors under section 341(a). . In re Failla, 529 B.R. 786, 787-88 (Bankr. S.D. Fla, 2014). .Id. . In re Failla, 838 F.3d at 1176. . Id. at 1179. Section 105(a) provides that the bankruptcy court \"may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” Id. (emphasis added). The court’s discretionary authority under section 105(a) is \"broad,” Failla, 838 F.3d at 1179 (quoting Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007)). . Id. at 1178-79. . In re Failla, 529 B.R. at 787-88. . On their Statement of Financial Affairs, the Ayalas disclosed a sizeable payment to Space Coast made shortly before the bankruptcy petition was filed. The payment appears to constitute three monthly payments when compared to the Schedule J. . In" }, { "docid": "21735986", "title": "", "text": "922—23 (Bankr. M.D. Fla. 2009) (explaining that ‘‘[f]or res judicata to apply, a party must establish the following four elements; ‘(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases involve the same parties or their privies; and (4) both cases must involve the same causes of action’ ”) (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)); In re DeMasi, 2015 WL 3956135, at *5 (Bankr. M.D. Fla, 2015) (explaining that \"Florida’s collateral estoppel doctrine forecloses relitigation if: ‘(1) the parties are identical with those from the prior case, (2) the issues are identical, (3) there was a full and fair opportunity to litigate the issues and they were actually litigated, and (4) those issues were necessary to the prior adjudication’ ”) (quoting Agripost, LLC v. Miami-Dade Cnty., 525 F.3d 1049, 1055 (11th Cir. 2008)), . 457 B.R. 130, 136 (Bankr. M.D. Fla. 2011) (citing Aeacus Real Estate Ltd. P'ship v. 5th Ave. Real Estate Dev., Inc., 948 So.2d 834 (Fla. 4th DCA 2007)); see also State v. McBride, 848 So.2d 287, 291 (Fla. 2003) (explaining that the Florida Supreme Court \"has long recognized that res judicata will not be invoked where it would defeat the ends of justice\" and that \"collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice”). . Anson, 457 B.R. at 136. . McBride, 848 So.2d at 291. . Id. . Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366, 369 (Fla. 1953) (quoting Gordon v. Gordon, 59 So.2d 40 (Fla. 1952)). . Anson, 457 B.R. at 135—36, . Id. at 133. . Id. . Id. at 133—34. . Id. at 136. . Id. . Debtor’s Ex. 11 at p. 30, 1. 24—p. 33, 1, 3. . Id. at p. 19, 11. 1—6. . Debtor's Ex. 2 at Amended Plan, § C.3.n . See Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (\"Put differently, we do not believe" }, { "docid": "9239466", "title": "", "text": "action); Bank of Am., N.A. v. Beverly, 183 So.3d 1099, 1102 (Fla. 4th DCA 2015) (holding that \"res judicata and collateral estoppel\" apply to a prior arbitration if the two actions have the required identities); Bates v. Betty & Ross Co., 46 So.3d 615, 617 (Fla. 3d DCA 2010) (\"[A] determination made during an arbitration proceeding can provide an appropriate foundation for the application of collateral estoppel.\") (quoting Dadeland, 945 So.2d at 1235 ); ICC Chem. Corp. v. Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994) (upholding the dismissal of a case because it was precluded by a prior arbitration). In Florida, claim preclusion bars a subsequent action for \"matters actually raised and determined in the original proceeding and also to matters which could have properly been raised and determined.\" Id. For claim preclusion to apply the two actions must share four identities: \"(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties; and (4) identity of the quality [or capacity] of the persons for or against whom the claim is made.\" Lozman, 713 F.3d at 1074 (citations and internal quotation marks omitted) (applying Florida law). Claim preclusion requires that \"the original claim was disposed on the merits.\" Id. The party asserting claim preclusion has the burden of proving that the four identities exist and that the matter was formally adjudicated on the merits. State St. Bank & Tr. Co. v. Badra, 765 So.2d 251, 253 (Fla. 4th DCA 2000). Crowley and National Union acknowledge that three of the required identities link the arbitration and current action: (1) the identity of the thing sued for-Farmer's defense costs from 2008 through 2012; (2) the identity of the persons and parties-Crowley and National Union; and (3) the identity of the quality of the persons for or against whom the claim is made-National Union is the adverse party in both actions. (Doc. 25 at 3). Thus, National Union must show that no genuine issue of material fact exists concerning the identity of the cause of action. See Lozman, 713 F.3d at 1077" }, { "docid": "20981637", "title": "", "text": "based on her inconsistent statements should, under the facts of this case, be left to the state court. Accordingly, it is ORDERED that the Bank’s motion to reopen this case is DENIED. . Doc. No. 1 at Schedule A. . Id. at Schedules A & D. . Id. at Statement of Intentions. . Doc. No. 14. . Doc. No. 18 at ¶ 5. . Id, at ¶ 8. . Id. . Id.; see also Doc. No. 23. . Doc. No. 18 at ¶ 10. . In re Metzler, 530 B.R. 894 (Bankr.M.D.Fla.2015). . Id. at 896-97. . Id. at 900. . Id. . 539 B.R. 625 (Bankr.S.D.Fla.2015). . Id. at 627. . Id. at 628. . Id. (quoting Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 781 F.3d 1271, 1283 (11th Cir.2015)). . The Court notes it is not unusual for a bank's bankruptcy counsel to be different from its foreclosure counsel. And foreclosure counsel cannot reasonably be expected to conduct a nationwide search to see if its borrower has previously filed for bankruptcy. That is why discharge in bankruptcy is generally an affirmative defense. . In re Digital Comty. Networks, Inc., 496 B.R. 243, 249 (Bankr.M.D.Fla.2013) (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002)); Carter v. State, 980 So.2d 473, 484 (Fla.2008) (explaining that \"[judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings”) (quoting Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001)). . 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). . Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001) (internal citations omitted). . It is not clear that is the case here since it is undisputed the Debtor has not made any .Doc. No. 18. mortgage payments since 2009, which is troubling to the Court," }, { "docid": "16130508", "title": "", "text": "165. . It was public knowledge that Facebook planned an initial public offering. See http:// www.cbsnews.com/news/facebook-poised-for-ipo. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 110-1, ¶¶ 28-29. . Adv. Pro. No. 8:13-ap-479-CED. . Berkman Case, Doc. No. 213. . Fla. Stat. § 726.101, et seq. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 1. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 109. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 62. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 91. . SAM Case, Doc. No. 168. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 1, 45. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 31, 41. . Adv. Pro. No. 8:13-ap-336-CED, Doc. Nos. 94-98; Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 75-78. Alco is a party only to Adv. Pro. No. 8:13-ap-336-CED. . Each. No. 150. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 122, ¶¶ 15-16. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 124. . See, e.g., In re Equipment Acquisition Resources, Inc., 2014 WL 1979366 (N.D.Il. May 15, 2014) (granting summary judgment to transferee on issue of good faith defense under § 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably" }, { "docid": "16130511", "title": "", "text": "284, 332 (Fla. 2013). . Id. . Sharp v. Bowling, 511 So.2d 363, 365 (Fla. 5th DCA 1987). . Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976). . Marshall-Shaw v. Ford, 755 So.2d 162, 165 (Fla. 4th DCA 2000) (“where the defendant has appropriated the plaintiff s money, or has taken his property and sold it, a quasi-contract count will lie for money had and received”) (emphasis supplied). . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 95, pp. 27-29. . 11 U.S.C. § 541(a)(3) and (a)(7). . 233 F.3d 922 (6th Cir.2000). . 233 F.3d at 930 (emphasis supplied) (citation omitted). . See U.S. Securities & Exchange Commission v. Universal Express, Inc., 2008 WL 1944803, *3 (S.D.N.Y. Apr. 30, 2008). \"Simply put, ‘one acting in good faith may obtain title to money from a thief.’\" Id. (citing Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1279 (11th Cir.2003)). . 138 B.R. 410 (Bankr.S.D.N.Y.1992). . 91 B.R. 705 (Bankr.E.D.Pa.1988). . 91 B.R. at 712. . Exh. No. 145, pp. 52-53. . Inman v. Rowsey, 41 So.2d 655, 659 (Fla. 1949). See also Ruwitch v. First National Bank of Miami, 291 So.2d 650, 652 (Fla. 3d DCA 1974) (\"As between two innocent parties suffering from the fraud of a third, the party whose own negligence or misplaced confidence enabled the third party to consummate the fraud must bear the loss”). . In re Alexander SRP Apartments, LLC, 2012 WL 2339347, *2 (Bankr.S.D. Ga. June 4, 2012) (preliminary injunction); In re Daytona Beach General Hospital, 153 B.R. 947, 950 (Bankr.M.D.Fla.1993) (permanent injunction). . American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Board, 557 F.3d 1177, 1198 (11th Cir.2009)." }, { "docid": "10135400", "title": "", "text": "undisputed objective facts of this case, Cl Bank has met that burden. By separate order, the Court will deny the Debtor’s motion to avoid the judgment lien of Cl Bank. . Art. X, § 4, Florida Constitution.' . The Court’s findings of fact are based on the Debtor’s testimony at a July 15, 2015 final evidentiary hearing on his motion to avoid Cl Bank’s judicial lien. At the July 15 final evi-dentiary hearing, the Court also received into evidence Debtor’s Exhibits 1 and 2, as well as Cl Bank’s Exhibits 1-3. .Debtor’s Ex. 1. . Debtor's Composite Ex. 2. . Id. . Id. . Id. . Doc. No. 1. . Doc. No. 23. . Art. X, § 4, Fla. Const, . In re Bennett, 395 B.R. 781, 789 (Bankr. M.D. Fla. 2008) (quoting Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943)); see also Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla. 1962) (holding that \"intent alone is not a sufficient basis for the establishment of a homestead\") (emphasis added). . In re Harle, 422 B.R. 310, 313-14 (Bankr. M.D, Fla, 2010). . Semple v. Semple, 82 Fla. 138, 89 So. 638, 639 (1921) (emphasis added). . Cl Bank’s Trial Ex. 2. . In re McClain, 281 B.R. 769, 773-74 (Bankr. M.D. Fla. 2002). . In re Bratty, 202 B.R. 1008, 1010 (Bankr. S.D. Fla, 1996) (citing Smith v. Hamilton, 428 So.2d 382 (Fla. 4th DCA 1983)). . Debtor's Composite Ex. 2. . 19 Fla. 191, 195-96 (Fla. 1882) (emphasis added). . 18 Fla, 756 (Fla. 1882). . Id, at 757. . Id, at 758. . Id. at 760. . Arguably, there is one other distinguishing fact. In Hewlett, the homeowner failed to allege he had undertaken any repairs to make the claimed homestead livable. Here, by contrast, the Debtor ripped up the carpet, sprayed some mold killer, and purchased some minimal supplies to repair the property. Those minimal steps, taken over a three-year period, do not make this case meaningfully different from Hewlett. . The Court is aware, from testimony" }, { "docid": "15422719", "title": "", "text": "46 Fla. 575, 35 So. 6 (Fla. 1903)). . Adding to the confusion in this area is the conclusion of some courts that, although a debtor’s fraudulent conversion of non-exempt assets into a homestead does not provide a basis for denying him the homestead exemption, the debtor’s fraudulent transfer may serve as the predicate for denying the discharge. See, e.g. Marine Midland Bank, N.A. v. Mollon, 160 B.R. 860 (M.D.Fla.1993) (denying discharge under 11 U.S.C. § 727(a)(2)(A) when the \"[d]ebtor who clearly by law is entitled to convert nonexempt assets to exempt assets did so in this case with a fraudulent intent”); In re Hendricks, 237 B.R. at 826; In re Young, 235 B.R. at 671. . Fla. Stat. § 222.30(2) states in pertinent part: Any conversion by a debtor of an asset that results in the proceeds of the asset becoming exempt by law from the claims of a creditor of the debtor is a fraudulent asset conversion as to the creditor, whether the creditor’s claim to the asset arose before or after the conversion of the asset, if the debt- or made the conversion with the intent to hinder, delay, or defraud the creditor. .For further discussion of this issue see Jules S. Cohen, The Use of the Florida Homestead to Defraud Creditors, 72-DEC Fla. B.J. 35 (1998); Greta K. Kolcon, Common Law Equity Defeats Florida’s Homestead Exemption, 68-NOV Fla. B.J. 54 (1994); David E. Peterson, Robert F. Higgins, & Matthew E. Beal, Is the Homestead Subject to the Statute of Fraudulent Assets Conversions?, 68-DEC Fla. B.J. 12 (1994); Richard Blackstone Webber, II, Florida’s Homestead Exemption in the Eye of the Hurricane, 71-APR Fla. B.J. 60 (1997); R. Wade Wetherington, Eleventh-Hour Conversions: A Journey into the Labyrinth of Prebankruptcy Planning, 69-JAN Fla. B.J. 18 (1995)." }, { "docid": "20873364", "title": "", "text": "pursuant to express contracts, under Florida law, a quasi-contract claim cannot exist and therefore the question of whether retention of the fees would be inequitable is irrelevant. b. Payments for Services Rendered Likewise, it is settled law in Florida that “[w]hen a defendant has given adequate consideration to someone for the benefit conferred, a claim of unjust enrichment fails.” Am. Safety Ins. Serv., Inc. v. Griggs, 959 So.2d 322, 331-32 (Fla. 5th DCA 2007); N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla. 3d DCA 2000) (“The [plaintiff] received exactly what it bargained for. Unjust enrichment ‘cannot exist where payment has been made for the benefit conferred.’ ”) (quoting Gene B. Glick Co. v. Sunshine Ready Concrete Co., 651 So.2d 190, 190 (Fla. 4th DCA 1995)). The account service fees and interest payments made by the Nadel entities were the product of arms-length transactions between the parties. {See Dkt. 157-1 § 1(10); Dkt. 162-1; Dkt. 164-1; Dkt. 166-1). There is no evidence that any benefits were conferred on the Bank over and above those bargained for in the agreements. In sum, the Bank agreed to provide account services and loans to the Nadel entities, in exchange for which those entities agreed to pay account service fees and interest. The Receiver’s claim for unjust enrichment therefore fails as a matter of law. Gene B. Glick Co., 651 So.2d at 190. See B.E.L.T., Inc. v. Wachovia Corp., 403 F.3d 474, 477 (7th Cir.2005). (“Unjust enrichment is equitable in nature and cannot exist where payment has been made for the benefit conferred.”). c. Statute of Limitations The Receiver’s unjust enrichment claims are subject to a four year statute of limitations under Florida law. Fla. Stat. § 95.051. Neither delayed discovery nor equitable tolling applies. In re Wiand, 2008 U.S. Dist. LEXIS 27929, at *24-27; Lesti v. Wells Fargo Bank, N.A., 960 F.Supp.2d 1311, 1320-21 (M.D.Fla.2013). Therefore, as with the FUFTA claims, unjust enrichment claims based on “benefits] conferred” prior to February 9, 2008 are time barred. Id. at 25. Accordingly, for the foregoing reasons, summary'judgment is due to be granted" }, { "docid": "16867254", "title": "", "text": "2 Motion to Dismiss, Adv. No. 09-715, Doc. No. 53. . Moran v. Hong Kong & Shanghai Banking Corp. (In re Deltacorp, Inc.), 179 B.R. 773, 779 (Bankr.S.D.N.Y. 1995). . Bankruptcy Code § 548(a)(1)(A); Fla. Stat. § 726.105(l)(a). . Cuthill v. Greenmark (In re World Vision Entertainment, Inc.), 275 B.R. 641, 656 (Bankr.M.D.Fla.2002). Badges of fraud include, but are not limited to: (1) the transfer was to an insider; (2) the debtor retained possession or control of the property after the transfer; (3) the transfer was concealed; (4) before the transfer was made the debtor had been sued or threatened with suit; (5) the transfer was of substantially all of the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor transferred the essential assets of the business to a lienor who transferred the asset to an insider of the debtor. Fla. Stat. § 726.105(l)(a). .World Vision, 275 B.R. at 656; see also Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1312 (M.D.Fla.2009); In re Old Naples Securities, Inc., 343 B.R. 310, 319-20 (Bankr.M.D.Fla.2006); In re McCam’s Allstate Finance, Inc., 326 B.R. 843, 849-52 (Bankr.M.D.Fla.2005). . World Vision, 275 B.R. at 656. . Memorandum Opinion Denying Plaintiff's Motion for Partial Summary Judgment (Doc. No. 157) and Order Denying Plaintiff's Motion for Partial Summary Judgment (Doc. No. 158). . Doc. No. 157, at 6-7. . Affidavit of Soneet R. Kapila in Opposition to TD Bank's Motion for Summary Judgment (Doc No. 176). . Id. ¶ 36. . Id. at Ex. B.l. . Id. at 11. . Id. ¶ 67. . Id. ¶ 65. . Id. ¶¶ 57, 66. . Id. at ¶ 42. . Doc. No. 189. Before the 2010 amendments to the Federal Rules of Civil Procedure, Rule 56(e)(1) stated, in pertinent part, \"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" }, { "docid": "16130509", "title": "", "text": "§ 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably equivalent value when judgment creditor received payment under a supersedeas bond and subsequently released its judgment). . 138 B.R. at 830. . At the time, the United States Trustee had not yet filed suit to revoke Berkman’s discharge. . In re Seminole Walls & Ceilings Corp., 446 B.R. 572, 596 (Bankr.M.D.Fla.2011). . Nelson v. Cravero Constructors, Inc., 117 So.2d 764, 766 (Fla. 3d DCA 1960). . Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1319 (M.D.Fla.2009); In re Evergreen Security, Ltd., 319 B.R. 245, 254 (Bankr.M.D.Fla. 2003). . Wiand, 611 F.Supp.2d at 1319. . Evergreen Security, 319 B.R. at 255. . Exh. No. 108; Berkman Case, Doc. No. 162, ¶ 19. . Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). . Thompkins v. Lil Joe Records, Inc., 476 F.3d 1294, 1314 (11th Cir.2007). . 834 So.2d 285 (Fla. 2d DCA 2003). . 959 So.2d 322, 331-32 (Fla. 5th DCA 2007). . Thompkins v. Lil Joe Records, Inc., 476 F.3d at 1314. . In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d" }, { "docid": "10135401", "title": "", "text": "a homestead\") (emphasis added). . In re Harle, 422 B.R. 310, 313-14 (Bankr. M.D, Fla, 2010). . Semple v. Semple, 82 Fla. 138, 89 So. 638, 639 (1921) (emphasis added). . Cl Bank’s Trial Ex. 2. . In re McClain, 281 B.R. 769, 773-74 (Bankr. M.D. Fla. 2002). . In re Bratty, 202 B.R. 1008, 1010 (Bankr. S.D. Fla, 1996) (citing Smith v. Hamilton, 428 So.2d 382 (Fla. 4th DCA 1983)). . Debtor's Composite Ex. 2. . 19 Fla. 191, 195-96 (Fla. 1882) (emphasis added). . 18 Fla, 756 (Fla. 1882). . Id, at 757. . Id, at 758. . Id. at 760. . Arguably, there is one other distinguishing fact. In Hewlett, the homeowner failed to allege he had undertaken any repairs to make the claimed homestead livable. Here, by contrast, the Debtor ripped up the carpet, sprayed some mold killer, and purchased some minimal supplies to repair the property. Those minimal steps, taken over a three-year period, do not make this case meaningfully different from Hewlett. . The Court is aware, from testimony elicited at trial, that a renter had been living at the 36415 Eunice Drive property at some point before the Debtor moved in for ten days. This fact does not change the Court's analysis. To the extent it belies the point that the property was unlivable when the Debtor moved it, it would likewise defeat the Debtor’s claim that he intends to make the property his permanent residence but is prevented from doing so by its state of disrepair. . See, e.g., Drucker v. Rosenstein, 19 Fla. 191, 194 (Fla. 1882). . In re Alexander, 346 B.R. 546, 549 (Bankr. M.D. Fla. 2006)." }, { "docid": "21442275", "title": "", "text": "of his equity in the home or the value of the house. The Trustee’s Objection to the debtor’s use of the Statutory Personal Property Exemption is sustained. A separate order consistent with the Memorandum Opinion shall be entered. . Unless otherwise stated, all references to the Bankruptcy Code refer to Title 11 of the United States Code. . Six unities must exist simultaneously for property to be owned as tenants by the entire-ties in Florida: (1) unity of possession (joint ownership and control); (2) unity of interest (the interests must be identical); (3) unity of title (the interest must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the properly became titled in their joint names). Beal Bank, 780 So.2d at 52. “Should one of these unities never have existed or be de stroyed, there is no entireties estate.” United States v. One Single Family Residence With Out Buildings Located at 15621 S.W. 209th Ave., Miami Fla., 894 F.2d 1511, 1514 (11th Cir.1990). A presumption that marital personal property is held as tenants by the entire-ties arises when all six unities are present. In re Daniels, 309 B.R. 54, 59 (Bankr.M.D.Fla.2004) (extending the presumption created in Beal regarding marital bank accounts \"to include all marital personal property, not just financial accounts.”). . A debtor may claim an exemption either pursuant to the federal exemptions provided in Section 522(d) of the Bankruptcy Code or by state law where a state has opted out of the federal exemption scheme. Florida has opted out of the federal bankruptcy exemption scheme, and a debtor filing for bankruptcy protection in Florida is limited to the use of Florida's state law exemptions. Fla. Stat. Section 222.20 (1988). . Absent contrary legislative intent, legal terms in a statute are presumed to have been used in their legal sense. Williams v. Dicken-son, 28 Fla. 90, 9 So. 847, 849 (1891) (disapproved of on other grounds by, Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906))." }, { "docid": "3793424", "title": "", "text": "Services or the appropriate agency to make a final disposition of the claim in writing within six months of its filing is deemed a final denial of the claim. See Fla. Stat. § 768.28(6)(d). Thus, absent receipt of a denial in writing, section 768.28(6)(d) essentially requires a claimant to wait six months from the date of notice prior to commencing a tort action against a Florida state entity. See id. Florida law requires strict compliance with the notice requirement of section 768.28(6) in order to maintain an action against the State, its agencies or subdivisions, and a suit may be dismissed for lack of notice. Osten, 757 So.2d at 1244. Indeed, “[t]he purpose of the notice requirement in statutory subsection 6(a) is to give the appropriate public bodies an opportunity to investigate all claims.” Medberry v. McCallister, 937 So.2d 808, 813 (Fla. 1st DCA 2006) (internal quotation marks omitted) (quoting Metro. Dade County v. Reyes, 688 So.2d 311, 313 (Fla.1996); Maynard v. State Dept. of Corrections, 864 So.2d 1232, 1233-34 (Fla. 1st DCA 2004)). Accordingly, under Florida law, “a complaint brought without first providing statutory notice must be dismissed without prejudice in order to allow the plaintiff to comply with the notice requirement, if the time has not expired to provide notice.” Brown v. City of Miami Beach, 684 F.Supp. 1081, 1084 (S.D.Fla.1988) (citing Wemett v. Duval County, 485 So.2d 892 (Fla. 1st DCA 1986); Thigpin v. Sun Bank of Ocala, 458 So.2d 315 (Fla. 5th DCA 1984); Burkett v. Calhoun County, 441 So.2d 1108 (Fla. 1st DCA 1983)). As Count III is solely a claim under Florida law, Plaintiff must comply with the notice requirements of section 768.28(6) as a condition precedent to maintaining an action against the Florida DOC. In the Motion, Defendant argues that “Plaintiff has not presented the claim in writing to the appropriate agency, and also, to the Department of Financial Services ... [but] purports only to have presented the claim the Department of Financial Services.” Motion at 5. However, Plaintiff alleges that she complied with the notification requirements, and further represents that “[c]opies of" }, { "docid": "19128702", "title": "", "text": "257 So.2d 576 (Fla. 4th DCA 1971) (citing Folks v. Chesser, 106 Fla. 836, 145 So. 602 (1932)). . See In re Phillips, 368 B.R. 733, 744 (Bankr.N.D.Ind.2007) (holding that in a lien theory state, “the mortgagor continues to be the owner of the estate until foreclosure”). . Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). . Cf. In re Canning, 706 F.3d 64, 72 (1st Cir.2013) (discussing the debtor’s vacation of their surrendered residence before the creditor foreclosed on the property, stating that the debtors \"placed many of the burdens of dealing with an abandoned property on their neighbors, their town, and their city — in other words, on everyone but them”). . Hickey’s Exhibits 5 and 6. . See Doc. No. 91, Exhibit 3 at ¶ 6. . In re Hardy, 97 F.3d 1384, 1388-89 (11th Cir.1996). . 11 U.S.C. § 524(a) (2013). . Hickey's Exhibit 9 at ¶ 10(b). . Id. . 11 U.S.C. § 722 (2013). . 11 U.S.C. § 524(a)(1) (2013). . See In re Egleston, 448 F.3d 803 (5th Cir. 2006) (holding those parts of the state court damages award based on pre-petition conduct void, but maintaining parts of the judgment based on post-petition conduct found not to violate the discharge injunction). . 11 U.S.C. § 524(a)(1) (2013). . In re Nibbelink, 403 B.R. 113, 119-20 (Bankr.M.D.Fla.2009) (citing In re Hardy, 97 F.3d 1384, 1389-90 (11th Cir.1996)). . Jove Engineering v. I.R.S. (In re Jove Engineering), 92 F.3d 1539, 1553 (11th Cir.1996) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991)). . Chambers, 501 U.S. at 43, 111 S.Ct. 2123. . In re Hardy, 97 F.3d 1384, 1390 (11th Cir.1996). . Id. . In re Dynamic Tours & Transp., Inc., 359 B.R. 336, 343 (Bankr.M.D.Fla.2006) (citing Davis v. United States (In re Davis), 201 B.R. 835, 837 (Bankr.S.D.Ala.1996)). . Id. (citations omitted). . In re Martin, 474 B.R. 789, 2012 WL 907090 at *6 (6th Cir. BAP 2012). . Dynamic Tours, 359 B.R. at 343 (citing Hardy, 97 F.3d" }, { "docid": "20243979", "title": "", "text": "and Denying in Part Motion to Stay Proceedings as to the Principals, which stayed NTAE’s claims against Clewes and Sayers for breach of contract and unjust enrichment but allowed all other claims to proceed “unless and until the automatic stay provision in Xenerga, Inc.’s bankruptcy case, Case No. 6:09-bk-13954, in the Middle District of Florida, Orlando Division is deemed to apply to these claims.” Ex. 6 (Doc. No. 70). . Doc. No. 53. . In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir.1990). . All references to the Bankruptcy Code are to Title 11 of the United States Code. . Icarus Holding, 391 F.3d at 1319. . Id. . See, e.g., Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972). . Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987, 990 (Fla. 4th DCA 1998). . Id. . Icarus, 391 F.3d at 1321. . Id. (quoting Koch Refining v. Fanners Union Cent. Exch., Inc., 831 F.2d 1339, 1349 (7th Cir.1987)). . Id.; Steinberg v. Buczynski, 40 F.3d 890, 893 (7th Cir.1994). . Ex. 1, ¶¶ 56-70. . See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1118 (Fla.1984). . Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120 (Fla.1984) (quoting Advertects, Inc. v. Sawyer Industries, Inc., 84 So.2d 21 (Fla.1955)) (emphasis added). . NTAE's breach of contract claim against Raptor (Count II) has been resolved to the extent Raptor is no longer a defendant to the state court action. . The amended complaint is numbered incorrectly and does not have a Count IV. Regardless, the Court refers to the count numbers as stated in the amended complaint. . KC Leisure, Inc. v. Haber, 972 So.2d 1069, 1074 (Fla. 5th DCA 2008); Aboujaoude v. Poinciana Development Co. II, 509 F.Supp.2d 1266 (S.D.Fla.2007); Anden v. Litinsky, 472 So.2d 825 (Fla. 4th D.C.A.1985). . Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984) (noting it is unnecessary to pierce the corporate veil because the individual defendant was a direct participant in the dealings). . Doc. No. 53." }, { "docid": "10135399", "title": "", "text": "outcome than in Hewlett. The Court, like the Debtor, is unable to locate any authority setting a minimum occupancy in order to establish the homestead exemption; nonetheless, the Court concludes that the Debtor’s ten-day “occupancy” here — if it can be called that — is not sufficient. During the decade he has owned the property, the Debtor has occupied the 36415 Eunice Drive property for (at most) ten days. This is not a case where some catastrophic event rendered the Debtor’s property unlivable shortly (or at any point) after he moved in. It was unlivable from the outset. If the Debtor’s “occupancy” were enough to establish homestead here, any judgment debtor could overcome the Florida Supreme Court’s long line of cases holding that vacant land cannot constitute homestead by simply erecting a ramshackle structure on the property and enduring it for a week or so. Conclusion As the objecting party, Cl Bank has the burden of proving that the Debtor is not entitled to claim the 36415 Eunice Drive property as exempt homestead. Under the undisputed objective facts of this case, Cl Bank has met that burden. By separate order, the Court will deny the Debtor’s motion to avoid the judgment lien of Cl Bank. . Art. X, § 4, Florida Constitution.' . The Court’s findings of fact are based on the Debtor’s testimony at a July 15, 2015 final evidentiary hearing on his motion to avoid Cl Bank’s judicial lien. At the July 15 final evi-dentiary hearing, the Court also received into evidence Debtor’s Exhibits 1 and 2, as well as Cl Bank’s Exhibits 1-3. .Debtor’s Ex. 1. . Debtor's Composite Ex. 2. . Id. . Id. . Id. . Doc. No. 1. . Doc. No. 23. . Art. X, § 4, Fla. Const, . In re Bennett, 395 B.R. 781, 789 (Bankr. M.D. Fla. 2008) (quoting Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943)); see also Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla. 1962) (holding that \"intent alone is not a sufficient basis for the establishment of" }, { "docid": "16130510", "title": "", "text": "equivalent value when judgment creditor received payment under a supersedeas bond and subsequently released its judgment). . 138 B.R. at 830. . At the time, the United States Trustee had not yet filed suit to revoke Berkman’s discharge. . In re Seminole Walls & Ceilings Corp., 446 B.R. 572, 596 (Bankr.M.D.Fla.2011). . Nelson v. Cravero Constructors, Inc., 117 So.2d 764, 766 (Fla. 3d DCA 1960). . Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1319 (M.D.Fla.2009); In re Evergreen Security, Ltd., 319 B.R. 245, 254 (Bankr.M.D.Fla. 2003). . Wiand, 611 F.Supp.2d at 1319. . Evergreen Security, 319 B.R. at 255. . Exh. No. 108; Berkman Case, Doc. No. 162, ¶ 19. . Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). . Thompkins v. Lil Joe Records, Inc., 476 F.3d 1294, 1314 (11th Cir.2007). . 834 So.2d 285 (Fla. 2d DCA 2003). . 959 So.2d 322, 331-32 (Fla. 5th DCA 2007). . Thompkins v. Lil Joe Records, Inc., 476 F.3d at 1314. . In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d 284, 332 (Fla. 2013). . Id. . Sharp v. Bowling, 511 So.2d 363, 365 (Fla. 5th DCA 1987). . Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976). . Marshall-Shaw v. Ford, 755 So.2d 162, 165 (Fla. 4th DCA 2000) (“where the defendant has appropriated the plaintiff s money, or has taken his property and sold it, a quasi-contract count will lie for money had and received”) (emphasis supplied). . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 95, pp. 27-29. . 11 U.S.C. § 541(a)(3) and (a)(7). . 233 F.3d 922 (6th Cir.2000). . 233 F.3d at 930 (emphasis supplied) (citation omitted). . See U.S. Securities & Exchange Commission v. Universal Express, Inc., 2008 WL 1944803, *3 (S.D.N.Y. Apr. 30, 2008). \"Simply put, ‘one acting in good faith may obtain title to money from a thief.’\" Id. (citing Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1279 (11th Cir.2003)). . 138 B.R. 410 (Bankr.S.D.N.Y.1992). . 91 B.R. 705 (Bankr.E.D.Pa.1988). . 91 B.R. at 712. . Exh. No. 145, pp." } ]
429062
the expert witness would have been accepted as conclusive on the question of insured’s sanity and the plaintiff would have had judgment. Thus in Kane v. St. Louis Refrigerator Transit Company, Mo.App., 83 S.W.2d 593, 596, it is said: “The question as to whether or not Kane was suffering with bilateral lobar pneumonia at the time he met with his accident is not within the knowledge of laymen, and the commission had no power to disregard the uncontradicted evidence of the three qualified expert witnesses.” It is argued by defendant, however, that the court was not required to accept or credit the testimony of the expert witnesses, and in support of that contention counsel cite REDACTED In that case we said that expert testimony is not controlling if unreasonable and improbable or is such that reasonable men might draw different conclusions therefrom. In the instant case the expert testimony does not stand alone, as we have already observed. The insured was suffering from a brain disease and it can not be said that the testimony of the expert is unreasonable nor improbable. It is sustained and corroborated by the proven facts. But there is, we think, a conclusive answer to this contention. The court did not decide the case on the ground that this testimony was incompetent or that it was not credible, but merely on the ground that the plaintiff had not sustained the burden. In other words,
[ { "docid": "21074117", "title": "", "text": "during a considerable period of time, produce in some consumers chronic lead or arsenic poisoning; while the claimant’s experts were not in accord, and expressed the belief that lead and arsenic were largely insoluble in the gastric juices and that the body would throw off excess amounts of such poisons accumulated through the eating of food products containing such amounts as were found in the apple chops here involved and in the apple butter which would be made therefrom. It is obvious that the question whether such an amount of arsenate of lead as is present in these apple chops and would be present in the apple butter made from them may make the chops and the resulting butter injurious to health, is, under the evidence, a controversial and doubtful question of fact. It is to be noted, in this connection, that no expert who testified upon the trial was able to say that he knew of any case of lead or arsenic poisoning resulting from eating apples which had been sprayed with arsenate of lead, or the products of such apples. The burden of proving the facts alleged in this libel as the basis for the condemnation of the apple chops was upon the government. The duty of passing upon the credibility of the witnesses and the weight of their evidence, and of determining the issues of fact, was that of the trial court. While the trial judge, in determining the issues of fact, was not free to disregard the uncontradicted evidence of unimpeached and credible witnesses, he was not obliged to accept as true and controlling evidence which, although uncontroverted, might be regarded as unreasonable or improbable, or from which reasonable men might honestly draw different conclusions. Quock Ting v. United States, 140 U.S. 417, 11 S.Ct. 733, 851, 35 L.Ed. 501; F. T. Dooley Lumber Co. v. United States (C.C.A.8) 63 F.(2d) 384, 388, and cases therein cited; Reiss v. Reardon (C.C.A.8) 18 F.(2d) 200, 202; Rasmussen v. Cresly (C.C.A.8) 77 F.(2d) 252, 254. Where a jury is waived, a trial judge functions as both judge and" } ]
[ { "docid": "19347938", "title": "", "text": "i.e., where the witness has neither tested the product nor purports to report the consensus of medical opinion— is admissible on the question of therapeutic value. In John J. Fulton Co. v. Federal Trade Commission, 9 Cir., 130 F.2d 85, 86, certiorari denied, 317 U.S. 679, 63 S.Ct. 158, 87 L.Ed. 544, we said: “The findings have support in the testimony of expert witnesses called by the Commission. But the petitioner argues that since none of the experts had prescribed Uvursin or observed its effects in concrete cases their testimony was incompetent and inadmissible. We think otherwise. The witnesses were shown to possess wide knowledge in the field under inquiry. There is no good reason to suppose them incompetent to express an opinion as to the lack of therapeutic value of petitioner’s preparation merely because they had had no personal experience with it in the treatment of the disease. Their general medical and pharmacological knowledge qualified them to testify.” [Cases cited.] The same doctrine has been followed in misbranding cases tried before juries. In Goodwin v. United States, 6 Cir., 2 F.2d 200, 201, cited by us with approval in the Fulton case, supra, it was said: “Upon the trial of the issue of fact joined by the libel charging the misbranding of mineral water and the answer of the intervener, expert evidence may be properly admitted. If it appears from the testimony of a witness upon preliminary examination that he is learned in the science of chemistry or has been regularly and legally admitted to the practice of medicine, and that he has knowledge of the drug elements contained in the article transported in interstate commerce and their efficacy or lack of efficacy as curative agents, used either separately or in combination in the treatment of the diseases specified on the label, his opinion on that subject is competent evidence regardless of whether he has had actual experience or observation of the effect of the use of such drugs in the exact form in which they are transported in interstate commerce. The weight of his evidence is a question" }, { "docid": "9609970", "title": "", "text": "his counsel, and had heard the detailed instructions read by the court in the language requested by plaintiff. The jury knew that it was plaintiff’s contention that in releasing the money deposited by Waltner, and thus disabling itself from using that money to secure the release of the $5,000 mortgage, the defendant had breached its agreement with the plaintiff. Taking the charge as a whole and considering it in the light of the circumstances, it would be captious to say that the jury went astray because the court, in stating the substance of the alleged agreement, did not refer to the holding of the papers and deposits. We are also of the opinion that the court did not err in giving the usual instructions relative to the jurors being the sole judges of the credibility of the witnesses and of the weight of the evidence. It is true that much of the evidence was not in dispute, but there -was a direct conflict as to whether the plaintiff knew that the defendant was acting under the letter of instructions given by the Bank to its representative. Furthermore, it can not be said that all of the testimony given by the plaintiff and his witnesses was free from improbabilities. In Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 440, this court said: “It is elementary that in the trial of an action at law, the jurors are the sole and exclusive judges of the facts, ofi the credibility of the witnesses, and of the weight of the evidence. Evidence which is uncontradicted is not necessarily to be accepted as true. Its weight and the credibility of the witnesses who- gave it are usually for the jury to determine.” While a jury is not free to disregard the uncontradicted evidence of unimpeached and credible witnesses, it is not obliged to accept as true and controlling, evidence which, although uncontroverted, might be regarded as unreasonable or improbable or from which reasonable men might honestly draw different conclusions. United States v. Washington Dehydrated Food Co., 8 Cir., 89 F.2d 606, 609, and cases cited." }, { "docid": "10585110", "title": "", "text": "for the act. The embezzler, for example, is ofttimes a paragon of virtue in his community. Here, however, there is evidence of more than a difference in conduct. Two experts on the operations of the mind, whose qualifications were conceded by the Government, testified that the accused’s conduct was the result of a mental disease and that he could not adhere to the right. Their testimony was uncontradicted. If credited, the testimony goes further than raising a reasonable doubt of the accused’s sanity; it would, in fact, establish that he was not legally accountable for his act. United States v Smith, 5 USCMA 314, 17 CMR 314; United States v Kunak, 5 USCMA 346, 17 CMR 346. Psychiatry is not an exact science and psychiatrists differ in their opinions on the existence or the extent of certain aberrations in a particular individual. United States v Schick, supra; United States v Dunnahoe, 6 USCMA 745, 21 CMR 67; Holloway v United States, 148 F2d 665 (CA DC Cir) (1945). However, the testimony of a medical expert which is not impeached or discredited cannot be arbitrarily ■disregarded. Wirz v Wirz, 96 Cal App 2d 171, 214 P2d 839, 843. In fact, the Manual for Courts-Martial, United States, 1951, indicates that the testimony of the medical expert “may be given greater weight than that of a lay witness.” Paragraph 122c, Manual for Courts-Martial, United States, 1951, page 203. In the Dunnahoe case we pointed out that, especially for the purpose of drawing the line between psychoneurotic disorder and a personality disorder, “courts must rely on the expert witness.” The question, then, is whether the record contains evidence sufficient to support the court-martial’s finding of sanity, despite the testimony of Drs. Myers and Sheffield. The fact that the medical testimony for the defense is not contradicted by other medical testimony on behalf of the prosecution does not necessarily mean reasonable men must entertain a reasonable doubt as to the accused’s sanity. A finding of guilty, which includes a finding of sanity contrary to expert opinion, can be sustained if it is supported by substantial" }, { "docid": "12214687", "title": "", "text": "doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The OCCA cited a state law case rather than Jackson, but it correctly articulated and applied the Jackson standard for a sufficiency of evidence review. It recognized “the State bears the burden of proving beyond a reasonable doubt” that the defendant does not fall within the state’s legal definition of insanity. Valdez, 900 P.2d at 375. After determining that the jury had been correctly instructed on this matter, the OCCA thoroughly reviewed the testimony and concluded the evidence was sufficient to support the jury’s conclusion that Mr. Valdez was sane beyond a reasonable doubt, see id. at 376-77 (citing Kiser v. State, 782 P.2d 405, 407 (Okla.Crim.App.1989)). Despite Mr. Valdez’s contention that this was an incorrect application of “state evidence law,” this standard is the same whether cited from the Jackson opinion or from state caselaw. The OCCA’s application of this standard was thus in accordance with federal constitutional requirements. Mr. Valdez also contends the OCCA’s determination that the evidence was sufficient was an objectively unreasonable determination of the facts, entitling him to habeas relief under section 2254(d)(2). He first maintains the OCCA should have disregarded the expert witness testimony of Drs. Romero and Mynatt because it was less credible than the testimony of Dr. Murphy, due to his extensive testing. As the OCCA recognized, whether Dr. Murphy’s testimony at trial was more credible was an issue solely within the province of the jury. See United States v. Castaneda-Reyes, 703 F.2d 522, 524 (11th Cir.1983) (whether testimony of one expert witness is more believable than testimony of another expert witness is issue for trier of fact); United States v. Walker, 524 F.2d 1125, 1128 (10th Cir.1975) (same). Despite the relative strengths of the expert testimony, only the fact-finder may determine whether the defendant was legally sane. See, e.g., United States v. Madrid, 673 F.2d 1114, 1123 (10th Cir.1982) (evidence of sanity was sufficient to sustain conviction although four of five experts concluded defendant was not legally sane); Walker, 524 F.2d at 1128-29 (same where defense expert who extensively examined defendant testified" }, { "docid": "12096714", "title": "", "text": "to testify for the state about Guidroz’s sanity, also said that she had seen Guidroz shortly before the murder and that his behavior seemed normal. In sum, the defendants introduced substantial expert testimony that Guidroz was insane at the time of the offense, while the prosecution introduced the testimony of four lay witnesses, three of whom were close relatives of the victim, that Guidroz did not appear insane and that he might have faked the symptoms of insanity to the doctors who examined him. Absent any other consideration, this quantum of evidence would perhaps be sufficient to sustain a jury verdict, in view of the Texas requirement that the defendant establish insanity by a preponderance of the evidence. See Guidroz v. State, 679 S.W.2d 586, 589 (Tex.App.-San Antonio 1984) (holding that “expert testimony, even if uncontradicted, does not establish insanity as a matter of law. Such unrebutted testimony only raises an issue of fact to be resolved by the trier of fact.”) (citing Graham v. State, 566 S.W.2d 941, 949-50 (Tex.Crim.App.1978)). This court, however, must consider the evidence of Guidroz’s insanity in the context of the prosecutor’s improper arguments to the jury concerning the stipulation and the effect of returning a verdict of not guilty by reason of insanity. Considered in that context, we find the evidence wanting. We cannot say that, without these errors, the verdict would have been the same. We emphasize the unusual nature of this case. The information in the record is that every mental health professional that examined Guidroz concluded that he suffered from a mental disease. In addition, every professional that expressed an opinion on the subject said that Guidroz was insane at the time of the offense. Moreover, at a time when most of the psychiatric examinations of Guidroz had been completed, the prosecution even stipulated that “all of the evidence” was to the effect that Guidroz was insane at the time of the offense. Despite these circumstances, the prosecution nevertheless chose to try Guidroz for murder. The only evidence of sanity it could produce, however, was the testimony of four lay witnesses" }, { "docid": "23012371", "title": "", "text": "already shown that there was. The Sufficiency of the Evidence to Support the Verdict. As to the fall, there was, in addition to the testimony of Block, the testimony of the caddy that the knickers of the insured were clean when he left the club house and that he noticed while on the seventh fairway that he had some mud on them between the knee and hip; the payment by the defendant of the indemnity for total disability for the three days prior to death; and the testimony as to the insured’s changed condition after the golf game. The question vdiether the insured fell during the golf game was clearly for the jury. The medical testimony given at the trial was in direct conflict. That introduced by the plaintiff was to the effect that the aorta of the insured was normal for a man of his years, and that the fall caused, or could have caused, the rupture of the aorta and his death, independently of any disease. The medical experts testifying for the defendant gave it as their opinion that death was due primarily to a diseased condition of the aorta and that a fall such as it was claimed the insured sustained could not rupture a normal aorta of a man sixty years of age. The defendant urges us to disregard the opinions of the plaintiff’s experts on the ground that they are unreasonable and absuyd, and to accept those of its experts. Whether the normal aorta of a man sixty years of age can be injured by a fall on a golf course, so as to cause his death several days later, is a medical question. The same argument as is made by the defendant was made in Mutual Life Ins. Co. of New York v. Still (C.C.A.8) 78 F.(2d) 748, where, an insured with a diseased gall bladder developed a degeneration of the liver following a fall. The court said [78 F.(2d) 748, at page 750]: “In this case, the expert testimony was directly in conflict! The court below could not say, nor can we say," }, { "docid": "12823456", "title": "", "text": "BAZELON, Chief Judge. Rollerson appeals from two convictions : one for robbery and one for contempt of court during the robbery trial. He claims that his insanity defense was not sufficiently rebutted by the psychiatrists’ “conclusory” testimony that he suffered no mental disease. He says the psychiatrists “usurped the function of the jury” by testifying to the “ultimate fact” of insanity rather than- explaining the “basis of their conclusions.” Although we do not reverse this conviction, we think it necessary to point out that the value of a psychiatrist’s testimony depends largely upon his opportunities for observation and the facts he observes. The testimony of an expert, like that of any other witness, may be excluded if it reports mere opin ion, unsupported by “underlying facts.” In its discretion, a trial court may require an expert witness to amplify his conclusions with an explanation of the basis for them. This discretion should be exercised where evidence of either sanity or insanity appears inadequate. True, it is difficult to draw the line between underlying facts and conclusions. On the issue of responsibility, moreover, the psychiatric conclusion that a man is or is not mentally diseased has evidentiary worth. A jury which must decide the issue of responsibility is aided by knowing whether qualified psychiatrists think there is some recognized psychiatric disorder to which the defendant’s symptoms are referable. Yet the jury must make a determination of responsibility, not a clinical evaluation of disease. McDonald v. United States, 114 U. S.App.D.C. 120, 312 F.2d 847 (1962). Thus, the conclusion of the psychiatrists that a man is “not mentally diseased” may not be enough in any particular case to meet the Government’s burden of proving sanity beyond a reasonable doubt. The Government can best meet its burden by bringing forth from psychiatric witnesses both the conclusion of “no mental illness” and a full explanation of the dynamics of the defendant’s personality. In the instant case, the jury’s verdict was not against the weight of the evidence and, subject to the condition noted in Part II, we affirm the robbery conviction. However, the frequent" }, { "docid": "1597872", "title": "", "text": "that of experts.” The court further said in that ease: “In the instant ease the jury cannot, without expert testimony, get at the cause from the other evidence, because the evidence has no tendency to prove to the lay mind a relation of cause and effect. It could not logically find the cause from the expert testimony if the rule in question is applied to restrict expert opinion to what might or could result from the injury, since that does not necessarily go further than a possibility, and a mere possibility does not satisfy the burden of proof. * * * It may be said the jury may decide which of the experts it will believe, and then find accordingly. The difficulty is that, after the jury has determined which expert it will believe and credits him, it comes to nothing, because what it has concluded to believe is merely that a certain thing 'might or could’ produce a stated result or condition. In this case, the fact that a cause for which appellant is liable might or could have produced the diseased ulna does not show that a cause for which appellant was not liable did not cause it.” But it is said that these assignments are not reviewable because there was no offer of proof made. As to some of these witnesses there might be reason for declining to review the assignments, but as to others the witness was first allowed to answer and the ruling was made on motion to strike out the answer. It therefore affirmatively appears what the plaintiff was seeking to prove by the witness,- and, in view of the fact that the case must be reversed on other grounds, it seems important to refer to these questions which are likely to recur on a retrial of the action. We are of the view that the court unduly limited 'the scope of the testimony of plaintiff’s experts, and that it was error to sustain the objections to the questions propounded to them. A number of other assignments as to the rulings of the court" }, { "docid": "23109018", "title": "", "text": "that on the proof it could make an award, and it did so, in the total amount of $5,161.88. The contractor, having solicited a “jury verdict” on self-contradictory and otherwise noncompelling testimony, is under a heavy burden in its present effort to upset that verdict. It has not met this burden. It has failed to show the prerequisites for application of the “total cost” method. It has failed to show that the evidence which it presented and which the Board rejected was either uncontradicted or, more important, substantial in the sense of deserving of weight or acceptance. The fact alone that the government presented no witnesses does not make plaintiff’s evidence compelling or substantial. The testimony said to have been rejected as uncontradicted was in part contradicted, and in part self-contradictory. The witness in question was moreover an expert giving opinion testimony. Even uncontradicted opinion testimony is not conclusive if it is intrinsically nonpersuasive. Cf. Dayton P. & L. Co. v. Public Utilities Commission, 292 U.S. 290, 299 (1934) (citing cases). “The substantiality of evidence must fairly take into account whatever in the record detracts from its weight.” Universal Camera Corp. v. Labor Board, 340 U.S. 474, 488 (1951). Exaggeration, inherent improbability, self-contradiction, omissions in a purportedly complete account, imprecision and errors may all breed disbelief and therefore the disregard of even uncontradicted nonopinion testimony. Quock Tig v. United States, 140 U.S. 417, 420-21 (1891); Duwamish et al. v. United States, 79 Ct. Cl. 530, 576 (1934). Such testimony, in Judge Hutcheson’s words, “carries its own death wound.” N.L.R.B. v. Robbins Tire & Rubber Co., 161 F. 2d 798, 800 (5th Cir. 1947). Some of the defects and inconsistencies hi the testimony have already been recounted above. Others will appear below in the disposition of the several assignments of error by the B oard. Lastly, the evidence rej ected was the testimony of claimant’s expert witness and the decision appears to have been in part a judgment on credibility. This court normally defers to the judgment of the Boards of Contract Appeals on the credibility of witnesses who have testified" }, { "docid": "3840214", "title": "", "text": "would be about the same. The trier of fact, however, is not bound by expert testimony and is entitled to weigh the credibility of all witnesses, expert or lay. See Webster v. Offshore Food Serv., Inc., 434 F.2d 1191, 1193 (5th Cir.1970). ‘Although the jury was not bound to accept the testimony of Dr. Khalil, the claimant in an LPLA products liability claim has the burden of proving every element of the claim, including enhanced injury' from the air bag failing to deploy. La.Rev.Stat. AnN. § 9:2800.54(D). Caboni claims that he presented ample evidence at trial to establish that he sustained more severe injuries than he would have received if the air bag had deployed. Caboni argues that, despite GM’s contention that Dr. Khalil was the only expert witness to testify on Caboni’s enhanced injuries, Ca-boni also presented expert testimony, specifically: (1) Dr. Khalil testified that Cabo-ni suffered head injuries when he hit the steering wheel; (2) McPhate testified that Caboni’s head would probably not have hit the steering wheel had the air bag deployed properly; and (3) Dr. Morteza Shamsnia established that as a result of his head hitting the steering wheel, Caboni suffered a brain injury. In Caboni I, we determined that plaintiffs had adduced sufficient evidence, through the opinion of three experts (Dr. Khalil, McPhate, and Dr. Roberta Bell), to create a genuine issue of material fact regarding whether the fact that the express warranty was untrue proximately caused additional injuries. 278 F.3d at 455. However, the conclusion reached in Caboni I by this court was based in significant part on the opinion of Dr. Roberta Bell, which the district court excluded at trial following our vacating the summary judgment in Caboni I and remanding for trial. Dr. Bell had stated in her affidavit that “had the air bag in Mr. Caboni’s vehicle deployed in this accident, his closed head or brain injury, more probably than not, would not have occurred or would not have been as severe.” At trial, none of the experts presented by Caboni testified that he suffered enhanced injuries as a result of" }, { "docid": "6380626", "title": "", "text": "his experience, “it would have been reasonably easy to ascertain, by one experienced in that class of service, whether or not this particular meat at the time •it was served * * * was in a fresh or tainted condition.” Objection was made to the question on the ground that the witness had not qualified himself to answer it, and, besides, that it was somethingthe jury knew as much about as the witness. The court sustained the objection. We think-the witness had shown himself competent. If the matter was not a subject for expert testimony, because no special experience was necessary in order to judge correctly of it, then it was for the jury to say whether, from the facts disclosed, the railroad company was negligent in serving the food, and it was error to take the matter from the jury. We recognize the rule that expert testimony is permissible only where the thing to which it relates is so far removed from ordinary human experience that a jury will presumably not possess the skill or knowledge requisite to draw a proper inference from the facts, even if such facts could be ascertained. 22 C. J. 652; Lynch v. Larivee Lumber Co., 223 Mass. 335, 111 N. E. 861. Whether or not the matter in the instant case was one proper for expert testimony is a close question, but we believe it would have been better to have received the testimony. Manifestly, the answer desired, if given, would have been in harmony with the deduction which the jury might have drawn from the facts disclosed, and therefore no injury could have resulted to the defendant. If the answer was not of that character, it would have been injurious to the plaintiff, and the defendant would have no ground for complaint. After the court had sustained the objection, counsel did not make an offer of what he expected to prove by the interrogatory, and this, it is said, precludes appellant from having the ruling reviewed here. While it is the general rule that such an offer should be made, it is" }, { "docid": "12330454", "title": "", "text": "however, is beside the point. It has been the consistent teaching of our past cases that whenever “some evidence” of mental disease or defect is presented, the question of responsibility must be answered by the jury. Therefore, the question before us is whether the evidence in this case required the mental issue to be submitted to the jury. Appellant relies upon the 1946 diagnosis and the report of the St. Elizabeths psychologist as providing “some evidence” of mental disorder. This court, in Lyles v. United States, 103 U.S.App.D.C. 22, 28, 254 F.2d 725, 731 (1957) (en banc), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), held that a report containing a psychiatric opinion could not be admitted into evidence as a record under the Federal Shop Book Act, 28 U.S.C. § 1732. While an expert who testifies that the defendant was not suffering from a mental disease or defect can be questioned about reports he considered in reaching that conclusion, this alone does not convert the reports into affirmative evidence of insanity. Competent counsel for the defendant, being familiar with this principle, did not offer the reports for this purpose. Nor is there any indication in the record that the knockouts as a boxer or Smith’s unstable family background and disorganized youth affected his mental condition. Thus, when boiled down to its essentials, the claim that a question of mental responsibility exists on this record rests on the fact that Dr. Platkin did not categorically deny the possibility of Smith’s “temporary insanity” during the criminal venture. Dr. Platkin did, however, deny the likelihood of such temporary insanity in as strong language as his knowledge of the science of psychiatry would allow. He said “it is highly improbable” and he “never heard of such a brief psychotic episode.” Thus appellant Smith’s theory was not supported by any credible testimony in the record. Moreover, it was discredited by the only psychiatric witness appearing in the case. While our decided cases have constantly emphasized the importance of leaving the issue of mental responsibility to the jury, they have consistently" }, { "docid": "9609971", "title": "", "text": "the letter of instructions given by the Bank to its representative. Furthermore, it can not be said that all of the testimony given by the plaintiff and his witnesses was free from improbabilities. In Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 440, this court said: “It is elementary that in the trial of an action at law, the jurors are the sole and exclusive judges of the facts, ofi the credibility of the witnesses, and of the weight of the evidence. Evidence which is uncontradicted is not necessarily to be accepted as true. Its weight and the credibility of the witnesses who- gave it are usually for the jury to determine.” While a jury is not free to disregard the uncontradicted evidence of unimpeached and credible witnesses, it is not obliged to accept as true and controlling, evidence which, although uncontroverted, might be regarded as unreasonable or improbable or from which reasonable men might honestly draw different conclusions. United States v. Washington Dehydrated Food Co., 8 Cir., 89 F.2d 606, 609, and cases cited. It is, no doubt, true that the falsus in ano, falsus in omnibus rule is not an appropriate instruction in every case, but it is to be noted that plaintiffs exception did not direct the court’s attention to the inclusion of that rule in the instruction or ask its elimination. Even if the exception had done that, we would still be of the opinion that the propriety of stating the rule to the jury was for the trial court to determine. It would certainly be a rare case in which an appellate court would be justified in granting a reversal for the giving of an instruction such as that here complained of. We are satisfied that if the judgment in this case is erroneous, as plaintiff asserts, it is because of errors of fact committed by the jury and not because any errors of law were committed by the court. Compare, Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 444. The judgment is affirmed. ' Appellee Kansas City Title Insurance Company is the successor of" }, { "docid": "23265113", "title": "", "text": "A Understanding Clark’s claim requires attention to the categories of evidence with a potential bearing on mens rea. First, there is “observation evidence” in the everyday sense, testimony from those who observed what Clark did and heard what he said; this category would also include testimony that an expert witness might give about Clark’s tendency to think in a certain way and his behavioral characteristics. This evidence may support a professional diagnosis of mental disease and in any event is the kind of evidence that can be relevant to show what in fact was on Clark’s mind when he fired the gun. Observation evidence in the record covers Clark’s behavior at home and with friends, his expressions of belief around the time of the killing that “aliens” were inhabiting the bodies of local people (including government agents), his driving around the neighborhood before the police arrived, and so on. Contrary to the dissent’s characterization, see post, at 782 (opinion of Kennedy, J.), obser vation evidence can be presented by either lay or expert witnesses. Second, there is “mental-disease evidence” in the form of opinion testimony that Clark suffered from a mental disease with features described by the witness. As was true here, this evidence characteristically but not always comes from professional psychologists or psychiatrists who testify as expert witnesses and base their opinions in part on examination of a defendant, usually conducted after the events in question. The thrust of this evidence was that, based on factual reports, professional observations, and tests, Clark was psychotic at the time in question, with a condition that fell within the category of schizophrenia. Third, there is evidence we will refer to as “capacity evidence” about a defendant’s capacity for cognition and moral judgment (and ultimately also his capacity to form mens rea). This, too, is opinion evidence. Here, as it usually does, this testimony came from the same experts and concentrated on those specific details of the mental condition that make the difference between sanity and insanity under the Arizona definition. In their respective testimony on these details the experts disagreed: the defense" }, { "docid": "23031144", "title": "", "text": "he was insane at the time of the alleged offense. As we said in Mims, “questions of the credibility and weight of expert opinion testimony are for the trier of facts, and * * * such testimony is ordinarily not conclusive even where it is uncontradicted.” 375 F.2d at 140. Of course, we have reversed convictions when the Government did not come forward with sufficient evidence to rebut the defendant’s expert witnesses. See, e. g., Bishop v. United States, 5 Cir. 1968, 394 F.2d 500; Nagell v. United States, 5 Cir. 1968, 392 F.2d 934; Brock v. United States, 5 Cir. 1967, 387 F.2d 254. Nevertheless, although reversing those convictions, we stressed that “each [case] must be decided upon its own facts with careful attention to the weight of the evidence on each side.” Nagell v. United States, 5 Cir. 1968, 392 F.2d 934, 937; Brock v. United States, 5 Cir 1967, 387 F.2d 254, 258. In this case both Harper and the Government introduced expert testimony on the question of his mental condition during the period from June 1968 to July 1969. Harper’s witnesses generally concluded that he was then and is now suffering from paranoid schizophrenia, as a result of which he was not legally responsible for his actions. The Government’s experts concluded that although emotionally disturbed Harper was not then and is not now suffering from any mental defect or disease. There were of course weaknesses in all the experts’ testimony. For example, one of the Government’s witnesses examined Harper only once for about forty-five minutes. The other Government witness, although he had found Harper sane in July 1969, would not say, out of all fairness to the defendant, whether he believed that Harper had been sane during the period in question. On the other hand, Harper put no psychiatrist on the stand; only one of Harper’s witnesses was a psychologist; the others were medical doctors. One of the medical doctors admitted that when he examined him in early 1968 Harper was not then insane. None of the experts actually examined Harper during the period from June" }, { "docid": "19347937", "title": "", "text": "ingredient! which would be effective as a treatment for shoeboils or poll evil; that it has no value in the treatment of enlarged glands; and that no drug or mixture of drugs is known to the profession generally, or agreed upon by the consensus of veterinary opinion, that can do all of the things claimed by this label. “The record also discloses that the professional witnesses for the government testified that the opinions expressed by them were in accord with the consensus of veterinary opinion. * * ^ * * * * “In the instant case, the question was reduced to one of fact, as distinguished from mere opinion, [cases cited], and, as defendants’ testimony made for conflicting evidence, a question of weighing the evidence was presented. To weigh the evidence is not within the power of this court.” See also 28 C.J.S., Druggists, § 12k (2). (c) Even Opinion Testimony as to Therapeu-tic Value Is Admissible In this circuit and elsewhere, it has been held that expert testimony even in its broadest sense — i.e., where the witness has neither tested the product nor purports to report the consensus of medical opinion— is admissible on the question of therapeutic value. In John J. Fulton Co. v. Federal Trade Commission, 9 Cir., 130 F.2d 85, 86, certiorari denied, 317 U.S. 679, 63 S.Ct. 158, 87 L.Ed. 544, we said: “The findings have support in the testimony of expert witnesses called by the Commission. But the petitioner argues that since none of the experts had prescribed Uvursin or observed its effects in concrete cases their testimony was incompetent and inadmissible. We think otherwise. The witnesses were shown to possess wide knowledge in the field under inquiry. There is no good reason to suppose them incompetent to express an opinion as to the lack of therapeutic value of petitioner’s preparation merely because they had had no personal experience with it in the treatment of the disease. Their general medical and pharmacological knowledge qualified them to testify.” [Cases cited.] The same doctrine has been followed in misbranding cases tried before juries. In Goodwin" }, { "docid": "22042450", "title": "", "text": "one of the most generally accepted rules in all jurisprudence, state and federal, civil and criminal, is that the questions of the credibility and weight of expert opinion testimony are for the trier of facts, and that such testimony is ordinarily not conclusive even where it is uncontradicted. The Supreme Court of the United States has said that the trier of the facts is not limited to a compromise and balancing of opinions of expert witnesses in reaching its decisions, and that there is no rule of law that requires the judgment of witnesses to be substituted for that of the jury. There is no good reason to make an exception for expert opinion evidence on insanity. It is just as subject to error as expert testimony on other matters. Psychiatry itself has progressed rapidly; but it is still a comparatively young profession dealing, not with an exact science, but with a controversial and rapidly developing one. In addition, the psychiatrist and the jury in a criminal case where insanity is an issue are concerned with entirely different questions. The psychiatrist deals with the question of the defendant’s behavior problems from a clinical standpoint in an atmosphere of a physician-patient relationship. On the other hand, a jury is charged with the duty of determining from the evidence admitted in an adversary proceeding the broader question of the criminal responsibility of the accused. That issue includes the questions not only of whether the defendant had a mental defect or disease at the time of the alleged offense, but also of whether any such defect or disease, if found to exist, met the legal test of insanity, as an accused may have a mental disorder or deficiency and in some cases still be mentally competent to be held legally responsible for his crime. The sound rule is that the issue of insanity, when raised as a defense in a criminal case, should be determined by the jury from all the evidence, rather than from the opinions of experts alone, subject to the control that the court may always set aside an unreasonable" }, { "docid": "13710475", "title": "", "text": "ordinary experience.” In Samuelson v. Central Nebraska Public Power & Irr. Dist., supra, in answering a contention similar to that now before us, we said [125 F.2d 840] : “As we have indicated in the Burnett case, supra, a jury is never required, in an ordinary condemnation proceeding, to accept as conclusive the estimates of value made by expert witnesses on either side. There ordinarily is in such cases some general testimony as to the location, character, use, etc., of the property, and other pertinent facts usually also are developed on direct or cross examination of the witnesses. All of this the jury is entitled to consider, together with any reasonable inferences which may be made therefrom, and it may properly exercise its own deliberate judgment on the amount of the damages, from the evidence as a whole, in the light of its common knowledge and ordinary experience, giving to the estimate of the expert witnesses only such weight as it conscientiously , feels they are entitled to receive under all the circumstances.” What is said by us in Equitable Life Assur. Soc. of United States v. Carmody, supra [131 F.2d 321], with reference to the elements that may be considered by the jury in determining value is here apposite. We there said: “A full reading of the testimony of the debtor’s witnesses shows that they had taken into account and described on the witness stand such various elements entering into the value of the property involved as its location, topography, soil formation and quality, existence of depreciating defects and blemishes, nature and condition of improvements, et cetera. Appellant overlooks, we think, what we have had occasion to point out in other cases, that the determination of land value in an ordinary case is not necessarily a mere alternative choosing between the arithmetical estimates of opposing experts.” We conclude that the valuation of the scrap or salvage here involved as fixed by the jury in its answer to interrogatory number two is sustained by substantial evidence and plaintiff’s motion to set it aside was properly denied. We think the proper" }, { "docid": "22042449", "title": "", "text": "the expert opinion testimony of appellant’s witnesses by like evidence in order to discharge its burden of proving appellant’s sanity beyond a reasonable doubt. We agree with the appellant’s statement of the general rule governing the burden of proof on the sanity issue in federal criminal cases. The sanity of the accused is always an element of the offense charged; and the presumption of sanity, standing in the place of evidence when no question is raised about the issue, takes care of the prosecution’s burden of proving sanity. But when evidence of insanity is received, regardless of the source, that presumption disappears, and the prosecution has the burden of proving the mental capacity of the accused beyond a reasonable doubt. However, no case has been cited to us, and we have found none, laying down the arbitrary rule that an accused is entitled to a judgment of acquittal merely because he offers expert opinion evidence on the issue of his insanity and the prosecution attempts to rebut it without expert witnesses. On the other hand, one of the most generally accepted rules in all jurisprudence, state and federal, civil and criminal, is that the questions of the credibility and weight of expert opinion testimony are for the trier of facts, and that such testimony is ordinarily not conclusive even where it is uncontradicted. The Supreme Court of the United States has said that the trier of the facts is not limited to a compromise and balancing of opinions of expert witnesses in reaching its decisions, and that there is no rule of law that requires the judgment of witnesses to be substituted for that of the jury. There is no good reason to make an exception for expert opinion evidence on insanity. It is just as subject to error as expert testimony on other matters. Psychiatry itself has progressed rapidly; but it is still a comparatively young profession dealing, not with an exact science, but with a controversial and rapidly developing one. In addition, the psychiatrist and the jury in a criminal case where insanity is an issue are concerned" }, { "docid": "23012372", "title": "", "text": "gave it as their opinion that death was due primarily to a diseased condition of the aorta and that a fall such as it was claimed the insured sustained could not rupture a normal aorta of a man sixty years of age. The defendant urges us to disregard the opinions of the plaintiff’s experts on the ground that they are unreasonable and absuyd, and to accept those of its experts. Whether the normal aorta of a man sixty years of age can be injured by a fall on a golf course, so as to cause his death several days later, is a medical question. The same argument as is made by the defendant was made in Mutual Life Ins. Co. of New York v. Still (C.C.A.8) 78 F.(2d) 748, where, an insured with a diseased gall bladder developed a degeneration of the liver following a fall. The court said [78 F.(2d) 748, at page 750]: “In this case, the expert testimony was directly in conflict! The court below could not say, nor can we say, that it conclusively appears from the medical evidence that the degeneration of the insured’s liver was not due to the accident, but was caused, in whole or in part, by infection from the gall bladder. The existence of the disease and the causes of the disease were medical questions. United States v. Clapp (C.C.A. 2) 63 F.(2d) 793, 794; Ætna Life Ins. Co. of Hartford, Conn., v. Kelley (C.C.A. 8) 70 F.(2d) 589, 593, 93 A.L.R. 471. “Whether the death of the insured was caused solely by the accident or wholly by the diseased gall bladder, or partly by the accident and partly by the diseased gall bladder, was, under the evidence, clearly for the jury to determine, and the jury’s finding is conclusive. Atchison, T. & S. F. Ry. Co. v. Condos (C.C.A.8) 30 F.(2d) 669, 671; Illinois Power & Light Corporation v. Hurley et al. (C.C.A.8) 49 F.(2d) 681, 686; Concordia Fire Ins. Co. of Milwaukee v. Commercial Bank of Liberty, Mo. (C.C.A.8) 39 F.(2d) 826, 830; Preferred Accident Ins. Co. of New" } ]
617573
New York state and federal courts as proper fora to contest or confirm awards. Section 9 of the Federal Arbitration Act (“FAA”) states that venue is appropriate in any jurisdiction to which the parties have agreed. 9 U.S.C. § 9. As discussed, the Cash Account Agreements make venue appropriate in the S.D.N.Y. Even without the forum-selection clauses in the Cash Account Agreements, venue in the S.D.N.Y. would be appropriate. In REDACTED As this matter was before the district court based on diversity jurisdiction under 28 U.S.C. § 1332, the applicable venue statute provides that: [a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time
[ { "docid": "22593780", "title": "", "text": "v. Ets-Hokin Corp., 397 F. 2d 935, 939 (CA9 1968) (§ 10 mandatory). We reverse. HH H-< Section 9 of the FAA governs venue for the confirmation of arbitration awards: “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” 9 U. S. C. §9. Section 10(a), governing motions to vacate arbitration awards, provides that “the United States court in and for the district wherein the [arbitration] award was made may make an order vacating the award upon the application of any party to the arbitration [in any of five enumerated situations].” And under § 11, on modification or correction, “the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration.” The precise issue raised in the District Court was whether venue for Cortez Byrd’s motion under §§ 10 and 11 was properly laid in the southern district of Mississippi, within which the contract was performed. It was dearly proper under the general venue statute, which provides, among other things, for venue in a diversity action in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U. S. C. § 1391(a)(2). If §§ 10 and 11 are permissive and thus supplement, but do" } ]
[ { "docid": "11530893", "title": "", "text": "in this district is improper under 28 U.S.C. § 1391(a), which provides: (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial party of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391(a) (2004). In Setco Enterprises Corp. v. Robbins, 19 F.3d 1278 (8th Cir.1994), the Eighth Circuit Court of Appeals stated that under the amended venue statute, “we no longer ask which district is the ‘best’ venue” but rather “we ask whether the district the plaintiff chose had a substantial connection to the claim, [and] whether or not other forums had greater contacts.” Id. at 1281. In light of the facts in this case, including Dr. Gue’s residence in Iowa from 1990 through August 1997 while employed by Trans Ova Genetics, Inc., his employment operating under a contract negotiated and executed in Iowa, and his employment by Iowa entities up to April 8, 2005, the court finds that a substantial part of the events giving rise to this claim occurred in this judicial district making venue proper pursuant to 28 U.S.C. § 1391(a). Further, the previous finding of personal jurisdiction over Dr. Gue supports the court’s finding of appropriate venue under 28 U.S.C. § 1391(a)(3) which states that the matter can be brought in a “judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(a)(3). In summary, the court holds that venue in this action, in which Dr. Gue is the only remaining defendant, is appropriate in this district under 28 U.S.C. § 1391(a) and the defendants’ motion to dismiss is denied in part to the extent it seeks dismissal on this ground. In light of this holding, the court turns to the" }, { "docid": "22121503", "title": "", "text": "Broker for fraudulently and negligently handling the Investors’ investment accounts. These accounts were located and managed in New York. Thus, there is a sufficient nexus between the transaction of the business and the claim to comply with the requirements of N.Y. C.P.L.R. § 302(a). Finally, the constitutional requirements of personal jurisdiction are satisfied because application of N.Y. C.P.L.R. § 302(a) meets due process requirements. See United States v. Montreal Trust Co., 358 F.2d 239, 242 (2d Cir.1966). b) Venue The Investors also argue that the district court erred in denying their motion to transfer venue to the S.D. Fla. We review a denial of a motion to transfer venue for abuse of discretion. A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 444 (2d Cir.1966). We find that venue was proper in the S.D.N.Y. As discussed above, the Cash Account Agreements signed by the Investors specifically designate New York state and federal courts as proper fora to contest or confirm awards. Section 9 of the Federal Arbitration Act (“FAA”) states that venue is appropriate in any jurisdiction to which the parties have agreed. 9 U.S.C. § 9. As discussed, the Cash Account Agreements make venue appropriate in the S.D.N.Y. Even without the forum-selection clauses in the Cash Account Agreements, venue in the S.D.N.Y. would be appropriate. In Cortez Byrd Chips, Inc. v. Bill Harbert Const. Co., the Supreme Court held that the FAA’s venue provision must be read permissively to allow a motion to confirm, vacate, or modify an arbitration award either where the award was made or in any district proper under the general venue statute, 28 U.S.C. § 1391. 529 U.S. 193, 195, 204, 120 S.Ct. 1331, 146 L.Ed.2d 171 (2000). As this matter was before the district court based on diversity jurisdiction under 28 U.S.C. § 1332, the applicable venue statute provides that: [a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial" }, { "docid": "10665217", "title": "", "text": "under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. . Section 9 provides, in relevant part: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. And 9 U.S.C. §§ 10 and 11 authorize the \"United States court in and for the district wherein the [arbitration] award was made” to vacate, modify or correct that award. . In part, those general venue statutes provide that for a case in federal court based only upon diversity jurisdiction, venue is proper, except as otherwise provided by law, ... only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action" }, { "docid": "8532543", "title": "", "text": "Defendants, however, attempt to cozen us with a semantic sleight-of-hand. In its Petition to Compel Arbitration, DAI averred that: “[v]enue is proper under 28 U.S.C. § 1391(a)(3) because this Court has personal jurisdiction over the defendants, and the District of Connecticut is the only judicial district in which this action may be brought under 9 U.S.C. § 4.” Plaintiffs Petition to Compel Arbitration ¶ 5. Pursuant to the arbitration clause in one of Defendants’ franchise agreements, however, arbitration may be commenced “in Bridgeport, Connecticut, or whichever city in which the company is then headquartered.” (Emphasis added); see supra note 1 and accompanying text. DAI is now headquartered in Fort Lauder-dale, Florida. Thus, pursuant to the language of the arbitration clause, Defendants claim: [t]hat means arbitration is required to take place in either Fort Lauderdale, Florida or Bridgeport, Connecticut. Accordingly, venue does not lie in Connecticut under 28 U.S.C. § 1391(a)(3) because there is another district in which the action may otherwise be brought. Defendants have argued that venue lies in the Southern District of Florida, not Connecticut. Defendants would be es-topped to make the same argument about venue in the Southern District of Florida. Accordingly, this Court has no choice but to transfer this case to the Southern District of Florida. Appellants’ Brief at 12 (citation omitted). This argument borders on the absurd. Section 1391(a) provides: (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a) (emphasis added). The phrase “if there is no district in which" }, { "docid": "7054396", "title": "", "text": "of venue, which is primarily a matter of choosing a convenient forum.”); 14D C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, at 2-3 (2007). Any rights conferred by the federal venue statutes are waivable, and they implicate no constitutional, rights. See Leroy v. Great W. United Corp., 443 U.S. 173, 183-87, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). “To the extent that they are relevant, the laws relating to venue give added protection to defendants beyond those that are provided by the statutory and constitutional prerequisites of personal jurisdiction.” 14D C. Wright, A. Miller & E. Cooper, supra § 3801, at 15. 28 U.S.C. § 1391(a) governs venue for cases founded only on diversity of citizenship: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). Section 1391(a)(3) is a “fail-back provision” used where “venue will be unavailable under § 1391(a)(1).” Algodonera De Las Cabezas, SA. v. Am. Suisse Capital, Inc., 432 F.3d 1343, 1345 (11th Cir.2005) (citations omitted). The Tenth Circuit has noted: There have been ... occasional gaps in the venue laws, i.e., eases in which the federal courts have jurisdiction but there is no district in which venue is proper. One such gap arose in connection with cases involving multiple plaintiffs and defendants. Venue was fixed at the residence of the defendant.... When there were multiple ... defendants, the district of residence for venue purposes was the districts where ... all the defendants reside. If they resided in different districts" }, { "docid": "10950794", "title": "", "text": "16.) Although not cited in the Amended Complaint, the Plan of Merger contained an integration clause that provided that [t]his agreement constitutes the entire agreement between the parties; there are no agreements, warranties, or representations, express or implied, except those expressly set forth herein. All agreements, representations, and warranties contained in this agreement shall apply as of the closing date and shall survive the closing of this agreement. (Quality’s Notice of Mot., Ex. 2 at 7, § 20 (merger agreement).) II. The Court first turns to Quality’s motion to dismiss the breach of contract claim for lack of venue pursuant to Fed.R.Civ.P. 12(b)(3). The amended complaint alleges diversity jurisdiction under 28 U.S.C. § 1332. (Am.Compl. ¶ 5.) Accordingly, the venue statute applicable to this action is 28 U.S.C. § 1391(a), which provides: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. Once an objection to venue has been raised, the plaintiff has the burden of showing that venue is proper. Reina v. Morgan Drive Away Inc., No. 94-6495, 1995 WL 66585, at *1 (S.D.N.Y. Feb. 15, 1995). Because the current action involves multiple defendants and claims, PI must show that venue is proper for each claim. Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, No. 92-9002,1994 WL 74860, at *3 (S.D.N.Y. Mar. 7, 1994). The plaintiff alleges that venue over the breach of contract claim is proper under § 1391(a)(2) or § 1391(a)(3). Section 1391(a)(2) fails to provide a basis for venue for the plaintiffs breach of contract claim. Under this" }, { "docid": "15417641", "title": "", "text": "Steelcase is attempting to sidestep its argument at the preliminary injunction hearing that Defendants possessed property in Puerto Rico that is central to its claims in this case. The Court finds nothing inconsistent about Steelcase’s arguments because they addressed different issues. In fact, at the preliminary injunction hearing, Steelcase’s counsel explained to the Court why there was both a basis for personal jurisdiction over Defendants and a basis for the Court to issue a prejudgment restraining order prohibiting Defendants from disposing of assets in their possession belonging to Steelcase. Whether the Court has the authority to freeze assets which may be the subject of equitable relief is separate from the question of whether Defendants’ conduct, which gave rise to the claim for equitable relief, is based upon Defendants’ activities in the forum state. Therefore, Defendants have not shown that the exercise of personal jurisdiction would be unreasonable. II. Venue Defendants contend that venue is improper under 28 U.S.C. § 1391(a). That statute provides: A civil action where jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). When a defendant raises a venue challenge, the plaintiff has the burden of proving that venue is proper in the forum state. Saferstein v. Paul, Mardinly, Durham, James, Flandreau & Rodger, P.C., 927 F.Supp. 731, 735 (S.D.N.Y.1996). In addition, where the plaintiff alleges multiple claims, the plaintiff must show that venue is proper with respect to all claims. Id. at 736. Steel-case asserts that the basis for venue is § 1391(a)(2) because a substantial part" }, { "docid": "10665218", "title": "", "text": "made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. And 9 U.S.C. §§ 10 and 11 authorize the \"United States court in and for the district wherein the [arbitration] award was made” to vacate, modify or correct that award. . In part, those general venue statutes provide that for a case in federal court based only upon diversity jurisdiction, venue is proper, except as otherwise provided by law, ... only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). And for a case where “jurisdiction is not founded solely upon diversity of citizenship,” venue is proper, except as otherwise provided by law, ... only in (1) the judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. Id. § 1391(b). . Because we conclude Ansari did not deprive the district court of its ability to adjudicate Reynolds's motion to compel arbitration, we need not address Reynolds's additional argument that 9 U.S.C. § 3, permitting a court to stay pending litigation while the parties arbitrate, provided the district court in this case with an alternate jurisdictional basis to adjudicate Reynolds’s motion to" }, { "docid": "16960582", "title": "", "text": "on May 30, 2002 defendant filed a motion to compel discovery, which this Court promptly denied in light of the stay. DISCUSSION I. Defendant Convera’s Motion to Dismiss for Improper Venue and/or Transfer Plaintiffs amended complaint includes the following five claims: 1) Misappropriation of Trade Secrets in violation of the D.C.Code; 2) the common law tort of Civil Conspiracy; 3) the common law tort of Unjust Enrichment; 4) the federal Copyright Act; 5) the federal Digital Millennium Copyright Act. Defendant Convera has moved to dismiss all of these claims for lack of venue pursuant to 12(b)(3), and in the alternative to transfer the case to the Eastern District of Virginia. Which federal venue statute applies depends on the basis for this Court’s jurisdiction. This Court has jurisdiction over plaintiffs first two claims by virtue of diversity of citizenship of the parties, as DSMCi is a Maryland corporation with its principal place of business in Maryland and Convera is a Delaware corporation with its principle place of business in Virginia. The other two claims arise under federal statutes. A. Diversity Claims Because some but not all of plaintiffs claims arise under diversity jurisdiction, the venue provision at 28 U.S.C. § 1391(b) applies. That statute states: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). With respect to corporations, the venue statute also states: “a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” § 1391(c). DSMCi" }, { "docid": "18419092", "title": "", "text": "the instant case should be dismissed, pursuant to 28 U.S.C. § 1391(b) (“Section 1391(b)”), for improper venue, or, in the alternative, transferred, pursuant to 28 U.S.C. § 1406 (“Section 1406”), to the Southern District of Florida. For the following reasons, the Court finds that plaintiff has shown that venue for this action is proper in the Eastern District of New York. 1. Legal Standard Section 1391(b) provides, in relevant part, that: (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). It is undisputed that the “substantial part” provision of Section 1391(b)(2) directs the venue inquiry in this case. (Defs.’ Mem. at 22-23.) Courts conduct a two-part inquiry to determine whether venue is appropriate under Section 1391(b)(2). First, the Court must “identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir.2005). Second, the Court determines whether “a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether ‘significant events or omissions material to [those] claim[s] ... have occurred in the district in question.’ ” Id. (quoting Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir.2005)). As to the second part of this inquiry, the Court notes that “ ‘[substantiality’ for venue purposes is more a qualitative than a quantitative inquiry.” Daniel, 428 F.3d at 432-33. As such, “[w]hen material acts or omissions within the forum bear a close nexus to the claims," }, { "docid": "8532544", "title": "", "text": "not Connecticut. Defendants would be es-topped to make the same argument about venue in the Southern District of Florida. Accordingly, this Court has no choice but to transfer this case to the Southern District of Florida. Appellants’ Brief at 12 (citation omitted). This argument borders on the absurd. Section 1391(a) provides: (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a) (emphasis added). The phrase “if there is no district in which the action may otherwise be brought” indicates that venue may be based on § 1391(a)(3) “only if neither [§ 1391(a)(1) or (2) ] can be satisfied.” 1A Moore’s Federal Practice ¶ 0.342[3], at 4083. It does not mean that venue is improper in one district merely because there is another equally appropriate district in which the defendants are subject to personal jurisdiction at the time the action is commenced. See id. Pursuant to the arbitration agreement, both Florida and Connecticut are proper venues, and thus Defendants “consented to the jurisdiction of the district court in [Connecticut], where the petition [to compel arbitration] was filed.” Farr & Co., 243 F.2d at 346. III. Jury Trial Demand Defendants assert that they are entitled to a jury trial on their arbitration defenses of fraud and waiver. A party resisting arbitration “cannot obtain a jury trial merely by demanding one;” rather, he bears “ ‘the burden of showing that he is entitled to a jury trial under § 4 of the [FAA].’ ” Dillard v. Merrill Lynch, Pierce, Fenner" }, { "docid": "5331368", "title": "", "text": "Horne, supra, remains sound law, we would find that specific jurisdiction does exist under the effects theory. However, ■ as discussed above, Horne, supra, was ábrógated by Max Daetwyler, supra, and the United States Supreme Court decisions which came later. Motion to transfer venue Plaintiff alleges that venue is proper under 28 U.S.C. §§ 1391(b) and (c) or 1400(b). Section 1391(b) provides, in relevant part: (b) A civil action wherein jurisdiction is not founded .solely, on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3)' á judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). Section 1400(b) provides: Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. § 1400(b). Under.section 1391(c), for purposes of venue, a corporation is “deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” _ Having determined that personal jurisdiction over Methode is proper based on, inter alia, its sales to customers in the Middle District of Pennsylvania, we find that venue is proper in this district. Methode also moves to transfer this action to the Northern District of Illinois pursuant to 28 U.S.C. 1404(a). The party seeking a transfer bears the burden of proving that trying the action in another forum would be more convenient. The balance of relevant interests “must weigh heavily in favor of the transfer” to justify granting the motion. PPG Industries, Inc. v. Systonetics, Inc., 614 F.Supp. 1161, 1163 (W.D.Pa.1985). “A party’s choice of forum should" }, { "docid": "10475961", "title": "", "text": "7 was libelous, portrayed him in a false light and effectively invaded his privacy by publicizing certain private facts about him “which the defendants knew or should have known would be highly offensive to a reasonable person” and which were “un related to any legitimate issue.” Because an excerpted portion of Chapter 7 was published in the December 1,1992 edition of the Village Voice, Mr. Weinstein brought this suit against W Publishing as well as Mr. Friedman and Random House Publishing. By way of the motion which is now before the court, the defendants primarily seek the transfer of this action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a) on the grounds that that is a far more appropriate and convenient forum for all of the parties to this action. In support of their motion, the defendants additionally argue that since the plaintiff is in actuality a citizen and resident of Israel — not Pennsylvania, venue clearly does not lie in the Eastern District of Pennsylvania. After careful review of the affidavits and exhibits attached to the defendants’ motion and the plaintiffs response thereto as well as the plaintiffs deposition, we must agree with the defendants and this case shall therefore be transferred to the U.S. District Court for the Southern District of New York. II. DISCUSSION. As is apparent from the laws which govern them, the concepts of venue and forum convenience are closely intertwined. Under 28 U.S.C. § 1391(a) [governing venue generally in cases premised upon diverse citizenship], “A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced," }, { "docid": "16894322", "title": "", "text": "York. Therefore, this court does not have personal jurisdiction over the corporate defendants and all claims against Fleet and Marine are dismissed. Venue Defendants also argue that plaintiffs claims for tortious interference and misuse of confidential information should be dismissed for improper venue because all of the alleged events upon which these claims depend occurred in Louisiana, where all defendants reside. Plaintiff bears the burden of establishing that venue is properly laid in the district in which the complaint was filed. See Pilates, Inc. v. Pilates Institute, Inc., 891 F.Supp. 175, 182 (S.D.N.Y.1995). The venue rule in diversity cases appears in 28 U.S.C. § 1391(a), which states: A civil action wherein jurisdiction is founded only on diversity of • citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is .subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. “In the ease of multiple claims, proper venue must be established with respect to each cause of action asserted.” Saferstein v. Paul, Mardinly, Durham, James, Flandreau & Rodger, P.C., 927 F.Supp. 731, 736 (S.D.N.Y.1996) (citing PI, Inc. v. Quality Products, Inc., 907 F.Supp. 752, 757 (S.D.N.Y.1995); Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 1994 WL 74860 at *3 (S.D.N.Y. Mar.7, 1994)). “Venue is proper in each district that is the situs of a substantial part of the events or omissions giving rise to the claim.” PI, Inc. v. Quality Products, Inc.,. 907 F.Supp. 752, 757 (S.D.N.Y.1995). Thus, the fact that venue may be proper in Louisiana does not preclude a finding that venue is also proper in New York. Plaintiffs tortious interference claim states that “[t]he wrongful means employed by Defendants include false" }, { "docid": "14167318", "title": "", "text": "this one, venue is governed by 28 U.S.C. § 1391(a), which provides: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, by brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. Maryland constitutes one judicial district. See -28 U.S.C. § 100. Many of the acts and omissions occurred within Maryland and therefore fall within the judicial district of the United States District Court for the District of Maryland. For the Convenience of the Parties and in the Interests of Justice this Case Should be Transferred to the United States District Court for the District of Maryland The remaining issue is whether a transfer would be more convenient for the parties and witnesses and whether such transfer would promote the interests of justice. This Court Weighs Several Factors in Assessing Whether It Should Transfer Venue In deciding whether a case should be transferred, this Court recently stated that it will weigh several factors, including: (1) the plaintiffs choice of forum; (2) the locus of the operative facts; (3) the convenience and relative means of the parties; (4) the convenience of witnesses; (5) the availability of process to compel the attendance of witnesses; (6) the location of physical evidence, including documents; (7) the relative familiarity of the courts with the applicable law; (8) the interests of justice, including the interests of trial efficiency. Smart v. Goord, 21 F.Supp.2d 309, 315 (S.D.N.Y.1998). Choice of Forum Billing is a New Jersey resident, so New York is not his “home turf.” See ZPC 2000, Inc. v. SCA Group, Inc., 86 F.Supp.2d 274, 280 (S.D.N.Y.2000) (“[PJlaintiff" }, { "docid": "23141531", "title": "", "text": "dis miss on the basis of improper venue. The plaintiffs refer to the district court’s finding that “the most substantial event giving rise to plaintiffs’ complaint ... was the Bramlets’ filing of an arbitration action, which they initiated in Florida.” First of Michigan and Sobol argue that proper venue is not limited to the district where the most substantial event giving rise to the complaint arose. Rather, the plaintiffs cite 28 U.S.C. § 1391(a)(2) to support their argument that venue is proper wherever “a substantial part” of the events giving rise to the claim occurred. 28 U.S.C. § 1391(a) states in relevant part: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ... or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). The statute was amended in 1990 in order to broaden the venue provisions. The commentary following the 1990 revisions to § 1391(a)(2) states: The fact that substantial activities took place in district B does not disqualify district A as proper venue as long as “substantial” activities took place in A, too. Indeed, district A should not be disqualified even if it is shown that the activities in district B were more substantial, or even the most substantial. Any other approach would restore the pinpointing problem that created the difficulties under the now discarded “claim arose” standard. If the selected district’s contacts are “substantial,” it should make no difference that another’s are more so, or the most so. David D. Siegel, Commentary on the 1988 and 1990 Revisions of Section 1391, Subdivision (a), Clause (2), 28 U.S.C.A. § 1391 (1993). Before 1990, § 1391 limited proper venue to the judicial" }, { "docid": "18419091", "title": "", "text": "that adjudicating this case in New York would be unreasonable. (Defs.’ Mem. at 21-22.) In sum, defendants fail to show that the exercise of jurisdiction in New York would be unreasonable. The second, third, fourth and fifth factors all either favor jurisdiction in New York or are neutral as to the reasonableness inquiry. The first factor does not so heavily counsel against the exercise of jurisdiction as to make this the “exceptional situation” where defendants with minimum contacts in the forum state would not be subject to jurisdiction in that state. Accordingly, the Court finds that plaintiff has made a prima facie showing that the exercise of personal jurisdiction over defendants would not offend the requirements of due process. C. Venue “When venue is challenged by a defendant, plaintiff bears the burden of proving that venue is proper in the forum state” for each claim against each defendant. Jaguar Cars, Ltd. v. Nat’l Football League, 886 F.Supp. 835, 338 (S.D.N.Y. 1995); PI, Inc. v. Quality Products, Inc., 907 F.Supp. 752, 757 (S.D.N.Y.1995). Defendants argue that the instant case should be dismissed, pursuant to 28 U.S.C. § 1391(b) (“Section 1391(b)”), for improper venue, or, in the alternative, transferred, pursuant to 28 U.S.C. § 1406 (“Section 1406”), to the Southern District of Florida. For the following reasons, the Court finds that plaintiff has shown that venue for this action is proper in the Eastern District of New York. 1. Legal Standard Section 1391(b) provides, in relevant part, that: (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. §" }, { "docid": "6083258", "title": "", "text": "1197 (11th Cir.1991). Before considering the factors justifying a transfer, the threshold inquiry is twofold. The initial question is whether venue is proper in the district in which the action is actually brought. See U.S. Fidelity and Guaranty Co. v. Mayberry, et. al., 789 F.Supp. 901 (E.D.Tenn.1992). The second inquiry is whether the transferee state is a venue where the action could have been brought. See Mason v. Smithkline Beecham Clinical Lab., 146 F.Supp.2d 1355 (S.D.Fla.2001). Section 28 U.S.C. § 1391(a) provides that: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ...., or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. The parties do not dispute that venue is proper in the Middle District of Georgia since a substantial part of the events or omissions giving rise to the claim occurred in Georgia. (Compl., Doc. No. 1). As to the second inquiry, a court addressing the enforceability of a forum selection clause is considering whether it must, in its discretion, decline jurisdiction and defer to the selected forum. See Lambert v. Kysar, 983 F.2d 1110, 1119 (1st Cir.1993)(emphasis in original). The valid forum selection clause in this case establishes that this is a case that might have been brought in the United States District Court for the Eastern District of Missouri. See Cinram, Inc. v. Worldwide Entertainment Group, LLC 2000 WL 1124591, *3 (S.D.Ind.2000)(finding that when a valid forum selection clause exists, personal jurisdiction and venue challenges are waived). Under Section 1404(a), the court should consider: 1) convenience of the parties; 2) convenience of the witnesses; and 3) the interest of justice. The choice of forum clause is “a significant factor that figures centrally" }, { "docid": "4018370", "title": "", "text": "1332. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Id. § 1331. Section 1332 provides generally that “[t]he district courts shall have original jurisdiction” of civil actions where the amount in controversy exceeds a certain sum and the parties are not citizens of the same state. Id. § 1332. These provisions specify that the district courts have “jurisdiction” to decide the types of cases specified therein. In contrast, the general federal venue provisions set out in 28 U.S.C. § 1391 specify, for the principal types of cases over which the district courts have subject matter jurisdiction, the “judicial distriet[s]” in which an “action ... may ... be brought.” Id. §§ 1391(a), (b), (e), (f). Subsection (b), for example, provides that [a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. Id. § 1391(b). The venue provisions do not confer or deny jurisdiction; they assume that the court in question has subject matter jurisdiction, and they simply limit the locations in which the action may be brought. Specific procedural provisions in substantive federal statutes sometimes have their own jurisdictional and venue provisions, and the courts have generally taken care to distinguish one type of provision from the other. For example, § 27 of the Securities Exchange Act of 1934 (“Securities Exchange Act”) provides in relevant part that [t]he district courts ... shall have exclusive jurisdiction of violations of this chapter. ... Any criminal proceeding may be brought in the district wherein any act" }, { "docid": "22121504", "title": "", "text": "appropriate in any jurisdiction to which the parties have agreed. 9 U.S.C. § 9. As discussed, the Cash Account Agreements make venue appropriate in the S.D.N.Y. Even without the forum-selection clauses in the Cash Account Agreements, venue in the S.D.N.Y. would be appropriate. In Cortez Byrd Chips, Inc. v. Bill Harbert Const. Co., the Supreme Court held that the FAA’s venue provision must be read permissively to allow a motion to confirm, vacate, or modify an arbitration award either where the award was made or in any district proper under the general venue statute, 28 U.S.C. § 1391. 529 U.S. 193, 195, 204, 120 S.Ct. 1331, 146 L.Ed.2d 171 (2000). As this matter was before the district court based on diversity jurisdiction under 28 U.S.C. § 1332, the applicable venue statute provides that: [a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. 1391(a). For present purposes, Section 1391(a)(2) is dispositive. “[A] substantial part of the events or omissions giving rise to the claim occurred” in the S.D.N.Y. Under Cortez, with regard to enforcement of arbitration awards, the “events giving rise to the claim” are those events giving rise to the claim resolved in the arbitration, not just the arbitration proceeding itself. Cortez, 529 U.S. at 198, 120 S.Ct. 1331. The fraud and manipulation alleged by the Investors involved conduct by Broker relating to securities traded on the New York exchanges or underwritten by Broker itself (“house stocks”), and the alleged breaches of fiduciary duties and negligent supervision arose out" } ]
451302
spoke on a matter of public concern; 2) whether the plaintiff spoke as a private citizen or public employee; 3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; 4) whether Defendants had an adequate justification for treating the employee differently from the general public; and 5) whether the Defendants would have taken the adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d 1062, 1070-74 (9th Cir.2009). As to the freedom of association claim, the parties agree that the relevant test is: 1) Plaintiff engaged in protected association; 2) Defendants took an adverse employment action; and 3) Plaintiffs association was a substantial or motivating factor for the adverse employment action. REDACTED Plaintiffs Section 1983 claims are subject to a three-year period of limitation. Rose v. Rinaldi, 654 F.2d 546, 547 (9th Cir.1981). The first step is to identify the speech at issue, and whether it was on a matter of public concern. Plaintiff admits that he has not filed an unfair labor practices charge since he was Union president — in 1993. He last filed a grievance in 2003. Plaintiff apparently contends that his bringing up and speaking on issues of “safe staffing” and “minimum manning” constitute protected speech on a matter of public concern. (ECF No. 29, p. 12). It is not clear from the factual record .when Plaintiff spoke on these issues. Plaintiff claims he spoke on these issues
[ { "docid": "21724695", "title": "", "text": "a public employee like Hudson “must show that (1) she engaged in protected speech; (2) the defendants took an adverse employment action against her; and (3) her speech was a substantial or motivating factor for the adverse employment action.” Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.2004) (internal quotations and citations omitted). Once that showing has been made, the burden shifts to the employer who must demonstrate either that, under the balancing test established by Pickering [,] the employer’s legitimate administrative interests outweigh the employee’s First Amendment rights or that, under the mixed motive analysis established by Mt. Healthy [,] the employer would have reached the same decision even in the absence of the employee’s protected conduct. Id. (internal alterations, quotations, and citations omitted). Hudson’s claim, however, is not prototypical. As the district court explained, her claim is “more one involving freedom of association than freedom of speech.” Hudson does not claim that Clark College terminated her employment because of any statements she made to her students or to anyone else. She was free to express her views about the WTO, which her supervisor in fact shared, both inside and outside the classroom. She also was free to participate in the anti-WTO rally as an expression of her views. Nor does Hudson claim that the College curtailed her right to associate with other anti-WTO protesters unconnected to the College. Hudson concedes in her brief that “[i]t was fine with Craven if Hudson went or if individuals who happened to be students at the College went to the WTO rally; he just objected to them going together.” The deprivation of First Amendment rights that Hudson asserts is thus very narrow — essentially, the right to associate with a small group of students during a specific time frame for the particular purpose of attending an anti-WTO rally. Yet, while Hudson’s claim revolves around a right to associate with students, it is not purely associational. The very purpose of the rally was to speak out against the WTO, an exercise that implicates core speech rights. Even though associational aspects predominate," } ]
[ { "docid": "2409609", "title": "", "text": "dismiss, a “plaintiff must allege enough facts to state a claim to relief that is plausible on its face.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008) (internal quotation marks omitted); Fed.R.Civ.P. 12(b)(6). In assessing whether a party has stated a claim upon which relief can be granted, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party; but “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a probability requirement.” Id. (internal quotation marks omitted). “In order to state a claim against a government employer for violation of the First Amendment, an employee must show (1) that he or she engaged in protected speech; (2) that the employer took ‘adverse employment action’; and (3) that his or her speech was a ‘substantial or motivating’ factor for the adverse employment action.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). A public employee’s speech is protected under the First Amendment if the employee spoke “as a citizen upon matters of public concern.” Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see also Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. “If employee expression relates to an issue of political, social, or other concern to the community, it may fairly" }, { "docid": "11455521", "title": "", "text": "court improperly dismissed on summary judgment Huppert and Salgado’s § 1983 claims for violations of the First Amendment. Second, whether the presiding judge also erred by granting summary judgment on Salgado’s claim alleging violations of the Fourth, Sixth, and Fourteenth Amendments. Finally, whether the district court incorrectly awarded costs to the Appellees. A The Supreme Court has clearly stated that public employees do not shed their First Amendment rights simply because they are employed by the government. The First Amendment shields a public employee if he speaks as a citizen on a matter of public concern. See, e.g., Ceballos, 547 U.S. at 417, 126 S.Ct. 1951; Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 142-143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391 U.S. 563, 569-70, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). While this protection is applicable to such individuals, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. “The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), we distilled the Supreme Court’s prior holdings on this issue into “a sequential five-step” inquiry: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and" }, { "docid": "5196232", "title": "", "text": "S.Ct. 1951, 164 L.Ed.2d 689 (2006); Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Out of recognition for “the State’s interests as an employer in regulating the speech of its employees,” Connick, 461 U.S. at 140, 103 S.Ct. 1684, however, we must “arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). We strike this balance when evaluating a First Amendment retaliation claim by asking “a sequential five-step series of questions.” Eng, 552 F.3d at 1070. First, we consider whether the plaintiff has engaged in protected speech activities, which requires the plaintiff to show that the plaintiff: (1) spoke on a matter of public concern; and (2) spoke as a private citizen and not within the scope of her official duties as a public employee. If the plaintiff makes these two showings, we ask whether the plaintiff has further shown that she (3) suffered an adverse employment action, for which the plaintiffs protected speech was a substantial or motivating factor. If the plaintiff meets her burden on these first three steps, thereby stating a prima facie claim of First Amendment retaliation, then the burden shifts to the government to escape liability by establishing either that: (4) the state’s legitimate administrative interests outweigh the employee’s First Amendment rights; or (5) the state would have taken the adverse employment action even absent the protected speech. See Robinson v. York, 566 F.3d 817, 822 (9th Cir.2009); Eng, 552 F.3d at 1070; see also Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 803 (9th Cir.2009). Here, the parties’ dispute concerns only the first, second, and fifth steps of the analysis. 1. Public Concern Whether an employee’s speech addresses a matter of public concern is a pure question of law that must be determined “by the content, form, and context of" }, { "docid": "19693996", "title": "", "text": "may be held liable in their personal capacities, Plaintiffs First Amendment claim remains viable against the School District-employee Defendants in their individual capacities. 2. Sufficiency of the Pleadings In his First Amendment retaliation claim, Plaintiff asserts that he was terminated from his employment “in retaliation for the fact that [he] voluntarily spoke with the FBI regarding the circumstances surrounding the camera surveillance project.” (Pl.’s Compl. ¶ 167.) In order to plead a First Amendment retaliation claim, a plaintiff must demonstrate that his speech was protected, and that it was a motivating factor in the alleged retaliatory act. If the plaintiff meets this burden, a defendant may still defeat the claim by showing that, even in the absence of the protected speech, the adverse action at issue would have been taken. Walker v. City of Camden, 57 Fed. Appx. 943, 945 (3d Cir.2003) (citing Watters v. City of Phila., 55 F.3d 886, 892 (3d Cir.1995)). A public employee’s speech is entitled to First Amendment protection where: (1) the employee spoke as a citizen; (2) the statement implicated a matter of public concern; and (3) the government employer did not have “an adequate justification for treating the employee differently from any other member of the general public” as a result of the statement he made. Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.2006). “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). This rule reflects a public employer’s prerogative to control “what the employer itself has commissioned or created.” Id. at 411, 126 S.Ct. 1951. Further, the inquiry into whether particular speech is made pursuant to official duties is a “practical one.” Id. at 422, 126 S.Ct. 1951. “[A] claimant’s speech might be considered part of his official duties if it relates to ‘special knowledge’ or ‘experience’ acquired through his job.” Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir.2009) (quoting Foraker" }, { "docid": "5032894", "title": "", "text": "officer was present here. B Brownfield also appeals the district court’s dismissal of his First Amendment retaliation claim. Although public employees “do not shed their First Amendment rights simply because they are employed by the government,” courts considering a claim such as Brownfield’s must carefully balance “the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir.2009) (quotation and alteration omitted). To conduct this balancing, we employ a sequential five-step test, considering: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). The district court determined that Brownfield failed at the first step of the Eng test. Whether an employee’s speech addresses a matter of public concern is a question of law, id., that “must be determined by the content, form, and context of a given statement, as revealed by the whole record,” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). This court has broadly described two categories of speech: that which “can fairly be considered to relate to any matter of political, social, or other concern to the community,” Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.1995) (quotation omitted); and that which “deals with individual personnel disputes and grievances” such that “the information would be of no relevance to the public’s evaluation of the performance of governmental agencies,” McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983). The former is protected; the latter is not." }, { "docid": "22252891", "title": "", "text": "at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. In the forty years since Pickering, First Amendment retaliation law has evolved dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history reveals a sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Analysis of these questions, further complicated by restraints on our interlocutory appellate jurisdiction, involves a complex array of factual and legal inquiries requiring detailed explanation. First, the plaintiff bears the burden of showing that the speech addressed an issue of public concern. See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Bauer v. Sampson, 261 F.3d 775, 784 (9th Cir.2001). “Speech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.’ ” Johnson v. Multno-mah County, Or., 48 F.3d 420, 422 (9th Cir.1995) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). But “speech that deals with ‘individual personnel disputes and grievances’ and that would be of ‘no relevance to the public’s evaluation of the performance of governmental agencies’ is generally not of ‘public concern.’ ” Coszal-ter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983)). “ ‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.’ ” Johnson, 48" }, { "docid": "5212792", "title": "", "text": "We have distilled this evolution into a “sequential five-step” inquiry: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng, 552 F.3d at 1070. Notably, “because these are sequential steps,” a plaintiffs failure to satisfy a single one “necessarily concludes our inquiry.” Huppert v. City of Pittsburg, 574 F.3d 696, 703 (9th Cir.2009). Despite Pickering and its progeny, the district court concluded that “the Pickering balancing test for government employee speech is the wrong test to apply” to measure the legality of Poway’s actions. Johnson v. Poway Unified Sch. Dist., No. 07-cv-783-BEN-NLS, 2010 WL 768856, at *8 (S.D.Cal. Feb. 25, 2010). It rested this conclusion on a single fact — that Johnson’s speech occurred in school, noting “‘[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ ” Id. at *7 (alteration in original) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (emphasis added)). On appeal, Johnson urges us to follow suit. We decline his invitation. Contrary to Johnson’s belief and the district court’s determination, no justifiable cause exists for refusing to apply our Pickering-based analysis to Johnson’s claim. See Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir.1996) (applying Pickering) (“Casting these red herrings aside, we look instead to applicable doctrine, which is found in the case law governing employee speech in the workplace.”); see also Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 649-50 (9th Cir.2006) (rejecting an employee’s contention that a “stricter test” than our Pickering-based analysis should apply when the underlying speech is religious); Downs v. L.A. Unified" }, { "docid": "5196233", "title": "", "text": "duties as a public employee. If the plaintiff makes these two showings, we ask whether the plaintiff has further shown that she (3) suffered an adverse employment action, for which the plaintiffs protected speech was a substantial or motivating factor. If the plaintiff meets her burden on these first three steps, thereby stating a prima facie claim of First Amendment retaliation, then the burden shifts to the government to escape liability by establishing either that: (4) the state’s legitimate administrative interests outweigh the employee’s First Amendment rights; or (5) the state would have taken the adverse employment action even absent the protected speech. See Robinson v. York, 566 F.3d 817, 822 (9th Cir.2009); Eng, 552 F.3d at 1070; see also Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 803 (9th Cir.2009). Here, the parties’ dispute concerns only the first, second, and fifth steps of the analysis. 1. Public Concern Whether an employee’s speech addresses a matter of public concern is a pure question of law that must be determined “by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48 & n. 7, 103 S.Ct. 1684. Of these three factors, the content of the speech is generally the most important. Clairmont, 632 F.3d at 1103. “[Sjpeech that deals with ‘individual personnel disputes and grievances’ and that would be of ‘no relevance to the public’s evaluation of the performance of governmental agencies’ is generally not of ‘public concern.’ ” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983)). By contrast, “[sjpeech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.’ ” Johnson v. Multnomah Cnty., 48 F.3d 420, 422 (9th Cir.1995) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). Applying these principles to a public employee’s speech in the context of a judicial or administrative proceeding, we have identified two categories of speech that satisfy the public concern doctrine. First," }, { "docid": "3201442", "title": "", "text": "the record that Anthoine had a duty, like the prison guard in Freitag and the deputy district attorney in Garcetti to report such misconduct within the proper channels. See Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (concluding that the distinguishing consideration was that in sending the memo, Ceballos “spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case”); Alaska v. EEOC, 564 F.3d 1062, 1070 (9th Cir.2009) (holding that an aide to the governor who spoke publicly about misconduct was not acting within the scope of her official duties, because those duties “didn’t require her to complain”). But even assuming that Anthoine had such a duty, there is no evidence in the record that his speech directly to the chairman of the NCCC board was within the scope of his duties. Accordingly, we hold that Anthoine has presented an issue of fact as to whether he spoke as a private citizen, rather than a public employee, in reporting Newton’s misrepresentations to Freeman. 3. Substantial or Motivating Factor for Adverse Employment Action “Th[e] third step is purely a question of fact.” Eng, 552 F.3d at 1071. In a First Amendment case, “[t]o constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind.” Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.2003). “Depending on the circumstances, even minor acts of retaliation can infringe on an employee’s First Amendment rights.” Id. A plaintiff can establish a valid claim of retaliation by showing that “the actions taken by the defendants were reasonably likely to deter [plaintiff] from engaging in protected activity under the First Amendment.” Id. at 976 (internal quotation marks and alterations omitted). Anthoine was subjected to a series of adverse actions following his statements to Freeman: a verbal warning for a “pattern of incidents of insubordination,” an unsatisfactory evaluation, and termination of his employment. To show that retaliation was a substantial or motivating factor behind an adverse employment action, a plaintiff can (1) introduce evidence that" }, { "docid": "587375", "title": "", "text": "right was clearly-established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (courts may decide which of the two prongs should be addressed first in light of the particular circumstances). In evaluating a First Amendment retaliation claim, we address “a sequential five-step series of questions.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). First, the plaintiff bears the burden of showing: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; [and] (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action.” Id. Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: “(4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Id. at 1070-73. Public Concern To warrant First Amendment protection, an employee’s speech must address “a matter of legitimate public concern.” Pickering, 391 U.S. at 571, 88 S.Ct. 1731. The public concern inquiry is purely a question of law, which we review de novo. Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir.2006). As a matter of law, “the competency of the police force is surely a matter of great public concern.” McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983). Only speech that deals with “individual personnel disputes and grievances” and that would be of “no relevance to the public’s evaluation of the performanee of governmental agencies” is generally not of “public concern.” Id. Robinson alleges Defendants retaliated against him for, among other things, testifying in a class action lawsuit that the County had engaged in systematic discrimination and harassment against OPS officers, reporting numerous instances of possible corruption, discrimination, or misconduct by fellow OPS" }, { "docid": "11455522", "title": "", "text": "duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. “The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), we distilled the Supreme Court’s prior holdings on this issue into “a sequential five-step” inquiry: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Id. at 1070. We reaffirmed this test in Robinson v. York, 566 F.3d 817, 822 (9th Cir.2009), where we again considered whether the district court had improperly denied qualified immunity in a § 1983 retaliation case. Our sister circuits and the Supreme Court have said that the question whether the plaintiff acted pursuant to his or her job duties is antecedent to a determination whether the plaintiff spoke regarding a matter of public concern. See, e.g., Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th Cir.2009) (“[Ceballos ] requires a threshold determination regarding whether the public employee spoke in his capacity as a private citizen or as an employee.”); Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008) (“it is clear that [Ceballos ] added a threshold layer to our previous analysis”); Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir.2007) (stating that it must decide “at the outset (1) if the government employee spoke as an employee or citizen" }, { "docid": "8233813", "title": "", "text": "of the Federal Rules of Civil Procedure for failure to state a claim. Monterey Plaza Hotel Ltd. v. Local 483 of Hotel Employees Union, 215 F.3d 923, 926 (9th Cir.2000). We review a district court’s award of attorney fees for abuse of discretion. Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985). But we review de novo the legal standards used by the district court in awarding fees. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619 (9th Cir.1987). DISCUSSION A. Neither Goode-Parker’s private malpractice action nor Gibson’s representation of her was constitutionally protected speech. In evaluating a First Amendment retaliation claim, this Court uses “a sequential five-step series of questions.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). Those questions are as follows: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Id. The pivotal element in this case is the first one: whether Plaintiffs spoke on a matter of public concern. Unlike the determination regarding whether the plaintiff spoke as a private citizen or as a public employee, which presents a mixed question of fact and law, Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1123 (9th Cir.2008), the “public concern inquiry is purely a question of law, which we review de novo.” Eng, 552 F.3d at 1070. Moreover, the facts regarding the public concern inquiry are undisputed here. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir.2001) (per curiam) (holding that, in the absence of disputed facts, qualified immunity is a question of law). The question presented here is, therefore, a legal one: whether Plaintiffs’ private malpractice suit is an issue of public concern. The Supreme Court has held that" }, { "docid": "8233812", "title": "", "text": "protected First Amendment activity. The district court agreed with Defendants, but gave Plaintiffs an opportunity to file an amended complaint to address the protected activity at issue and the adverse employment actions taken. With regard to the contract claim, the district court held that Plaintiffs failed to allege conduct that was inconsistent with the terms of the transfer agreement. The district court also held that, even if Plaintiffs had alleged breach of a particular contractual term, they failed to allege any foreseeable contract damages. As a result, the district court dismissed Plaintiffs’ contract claim with prejudice but allowed Plaintiffs to file an amended complaint with regard to their § 1983 claims. Plaintiffs did not file an amended pleading. Accordingly, Defendants asked the district court to dismiss the entire action, and the district court did so. Plaintiffs timely appealed. When the district court issued its order granting attorney fees of $21,803.52 to Defendants, Plaintiffs timely appealed that decision as well. We consolidated the appeals. STANDARDS OF REVIEW We review de novo a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Monterey Plaza Hotel Ltd. v. Local 483 of Hotel Employees Union, 215 F.3d 923, 926 (9th Cir.2000). We review a district court’s award of attorney fees for abuse of discretion. Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985). But we review de novo the legal standards used by the district court in awarding fees. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619 (9th Cir.1987). DISCUSSION A. Neither Goode-Parker’s private malpractice action nor Gibson’s representation of her was constitutionally protected speech. In evaluating a First Amendment retaliation claim, this Court uses “a sequential five-step series of questions.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). Those questions are as follows: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate" }, { "docid": "22252890", "title": "", "text": "on Eng’s behalf, in his role as counsel.” The Defendants do not dispute this characterization. Because Geragos spoke on Eng’s behalf in his capacity as Eng’s lawyer, his words were Eng’s words as far as the First Amendment is concerned. Eng himself therefore had a personal First Amendment interest in Geragos’s speech. 2. The First Amendment Retaliation Test Having determined that Eng had a personal constitutional interest in his own speech about the leak to the IRS and in Geragos’s interview with the Los Angeles Times, we turn now to the question whether Eng has alleged a violation of that interest. It is well settled that the state may not abuse its position as employer to stifle “the First Amendment rights[its employees] would otherwise enjoy as citizens to comment on matters of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Acknowledging the limits on the state’s ability to silence its employees, the Supreme Court has explained that “[t]he problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. In the forty years since Pickering, First Amendment retaliation law has evolved dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history reveals a sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Analysis of these questions, further complicated by restraints on our interlocutory appellate jurisdiction, involves a complex array of factual and legal inquiries requiring detailed explanation. First, the plaintiff" }, { "docid": "587374", "title": "", "text": "district court’s denial of qualified immunity is subject to immediate appeal as a collateral order, our appellate jurisdiction is limited to questions of law. Id. at 843 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 & n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (“A public-official defendant may appeal the ‘purely legal’ issue.‘whether the facts alleged .... support a claim of [violation of] clearly established law.’ ”). “Where disputed facts exist, we assume that the version of the material facts asserted by [the] Plaintiff[ ], as the non-moving party, is correct.” KRL v. Estate of Moore, 512 F.3d 1184, 1189 (9th Cir.2008). Our review is therefore limited to whether the Defendants would be entitled to qualified immunity as a matter of law assuming all factual disputes were resolved in Robinson’s favor. III. DISCUSSION Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly-established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (courts may decide which of the two prongs should be addressed first in light of the particular circumstances). In evaluating a First Amendment retaliation claim, we address “a sequential five-step series of questions.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). First, the plaintiff bears the burden of showing: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; [and] (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action.” Id. Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: “(4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether" }, { "docid": "14055240", "title": "", "text": "sketch is fleshed out into five questions: (1) Did the plaintiff speak on a matter of public interest? (2) Did the plaintiff speak as a private citizen or as a public employee? (3) Was the plaintiffs protected speech a substantial or motivating factor in the adverse employment action? (4) Did the state have adequate justification for treating the employee differently from other members of the general public? (5) Would the state have taken the adverse employment action even absent the protected speech? Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). Plaintiffs’ complaint falters on the first three prongs — prongs on which Plaintiffs bear the burden. Eng, 552 F.3d at 1070-71. Plaintiffs allege that they (1) “reported widespread unconstitutional searches, improper officer behavior ... and the many negative impacts of implementing lower training standards,” (2) “discussed malfeasance” regarding the K9 program’s funding, and (3) “discussed the frustration, interference, and sabotage of the K9 Program.” (Complaint #1 at ¶ 387.) However, coming on the heels of almost eighty pages of factual recitation, Plaintiffs’ retaliation claim fails to identify the “form and context” of the speech at issue, Connick, 461 U.S. at 147, 103 S.Ct. 1684, rendering it impossible to discern which speech gave rise to which acts of retaliation. This failure not only deprives Defendants of the ability to suss out speech made as an employee from speech made as a citizen, Garcetti 547 U.S. at 421, 126 S.Ct. 1951, but it also undermines any causal connection between the speech and the alleged retaliatory acts. Therefore, Plaintiffs have failed to state a prima facie case of First Amendment retaliation. D. State Civil Conspiracy Plaintiffs have failed to plead a conspiracy with an unlawful objective. “An actionable civil conspiracy consists of a combination of two or more persons who, by some concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from the act or acts.” Consol. Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 971 P.2d 1251, 1256 (1998) (quotation marks and citation omitted). The alleged conspiracy’s objective here was to" }, { "docid": "14055239", "title": "", "text": "Zeil could not have implemented an actual restraint on Moonin’s expression. Most importantly, even if Zeil’s comments did enact a prior restraint, this restraint swept more narrowly than Tice’s email in its prohibition of speech. Zeil prohibited the discussion of “our business” with outside entities, regulating “only speech grounded in the public employee’s professional duties.” See Clarke, 574 F.3d at 383 (quoting Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1052 (7th Cir.2008)). Since this type of speech is not speech made as “[a] citizen[] for First Amendment purposes,” Garcetti 547 U.S. at 421, 126 S.Ct. 1951, Zeil’s prohibition is not subject to Pickering balancing. Plaintiffs claim against Zeil thus fails as a matter of law. 2. First Amendment Retaliation Claim Plaintiffs’ First Amendment retaliation claim also fails as a matter of law. The sketch of a First Amendment retaliation claim under 42 U.S.C. § 1983 includes protected speech, an adverse employment action, and causation between the two. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). In the Ninth Circuit, this sketch is fleshed out into five questions: (1) Did the plaintiff speak on a matter of public interest? (2) Did the plaintiff speak as a private citizen or as a public employee? (3) Was the plaintiffs protected speech a substantial or motivating factor in the adverse employment action? (4) Did the state have adequate justification for treating the employee differently from other members of the general public? (5) Would the state have taken the adverse employment action even absent the protected speech? Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). Plaintiffs’ complaint falters on the first three prongs — prongs on which Plaintiffs bear the burden. Eng, 552 F.3d at 1070-71. Plaintiffs allege that they (1) “reported widespread unconstitutional searches, improper officer behavior ... and the many negative impacts of implementing lower training standards,” (2) “discussed malfeasance” regarding the K9 program’s funding, and (3) “discussed the frustration, interference, and sabotage of the K9 Program.” (Complaint #1 at ¶ 387.) However, coming on the heels of almost eighty pages of factual recitation, Plaintiffs’ retaliation claim" }, { "docid": "3201434", "title": "", "text": "other employees. Bill Rottman and Ed Morrison, the only other men on the eleven-person NCCC staff, were terminated on the same day as Anthoine. Anthoine brought suit in federal district court, asserting, inter alia, claims for retaliation in violation of the First Amendment; gender-based employment discrimination in violation of the Equal Protection Clause; and wrongful discharge in violation of California law. The district court granted summary judgment against Anthoine on all three of these claims. Anthoine timely appealed. II. Standard of Review We review de novo a grant of summary judgment. Huppert v. City of Pittsburg, 574 F.3d 696, 701 (9th Cir.2009). III. Discussion A. First Amendment Claim Anthoine contends that he engaged in protected speech when he informed Freeman, the chairman of NCCC’s board, that NCCC was in violation of its legal obligations and that Newton had misrepresented to the board that NCCC was current in meeting those obligations. Anthoine contends that he was subjected to a “cascade of adverse employment actions” in retaliation for having communicated this information to Freeman. “The First Amendment shields a public employee if he speaks as a citizen on a matter of public concern.” Huppert, 574 F.3d at 702. However, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). We employ a “sequential five-step series of questions” to determine whether an employer impermissibly retaliated against an employee for protected speech: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009);" }, { "docid": "3201435", "title": "", "text": "shields a public employee if he speaks as a citizen on a matter of public concern.” Huppert, 574 F.3d at 702. However, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). We employ a “sequential five-step series of questions” to determine whether an employer impermissibly retaliated against an employee for protected speech: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009); see Huppert, 574 F.3d at 702 (applying Eng test). For the reasons that follow, we conclude that summary judgment should not have been granted against Anthoine on his First Amendment retaliation claim. We analyze the five steps of the test in turn. 1. Matter of Public Concern “Speech involves a matter of public concern when it fairly can be said to relate to any matter of political, social, or other concern to the community.” Huppert, 574 F.3d at 703 (internal quotation marks and alterations omitted). “Public concern” does not have a precise definition, but “the essential question is whether the speech addressed matters of ‘public’ as opposed to ‘personal’ interest.” Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir.2009). Subjects of public concern include “unlawful conduct by a government employee” and the “misuse of public funds, wastefulness, and inefficiency in managing and operating government entities.” Huppert, 574 F.3d at 703-04 (citing cases). “[S]peeeh that deals with individual personnel disputes and grievances and that would be of no relevance to the public’s evaluation" }, { "docid": "5212791", "title": "", "text": "and the government employer’s right to protect its own legitimate interests in performing its mission.” Roe, 543 U.S. at 82, 125 S.Ct. 521. As initially described in Pickering, this analysis required only that courts balance “ ‘the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Eng, 552 F.3d at 1070 (alteration in original) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). Since Pickering, however, the test has evolved. See, e.g., Ceballos, 547 U.S. at 423-24, 426, 126 S.Ct. 1951 (speech must not be made pursuant to duties as employee); Roe, 543 U.S. at 82-83, 125 S.Ct. 521 (“speech must touch on a matter of ‘public concern’ ”) (citing Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (causation). We have distilled this evolution into a “sequential five-step” inquiry: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng, 552 F.3d at 1070. Notably, “because these are sequential steps,” a plaintiffs failure to satisfy a single one “necessarily concludes our inquiry.” Huppert v. City of Pittsburg, 574 F.3d 696, 703 (9th Cir.2009). Despite Pickering and its progeny, the district court concluded that “the Pickering balancing test for government employee speech is the wrong test to apply” to measure the legality of Poway’s actions. Johnson v. Poway Unified Sch. Dist., No. 07-cv-783-BEN-NLS, 2010 WL 768856, at *8 (S.D.Cal. Feb. 25, 2010). It rested this conclusion on a" } ]
21855
accordance with, and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of Title 11.” 15 U.S.C. § 78fff(b). See also Securities Investor Protection Corp. v. Stratton Oakmont, Inc., 229 B.R. 273, 279 (Bankr.S.D.N.Y.1999) (a SIPA proceeding is essentially a bankruptcy liquidation). SIPA does not provide protection for claims based on ex-ecutory contracts except for those which may be raised by brokers or dealers. See 15 U.S.C. § 78fff — 2(e)(1). Other claimants are not entitled to preferential treatment from claims arising out of a broker’s failure to complete a sell order; such claims are equivalent to general unsecured claims, not entitled to priority treatment. See, e.g., REDACTED In re A.R. Baron Co., Inc., 226 B.R. 790, 796 (Bankr.S.D.N.Y.1998). It is undisputed that Fifth Third Bank was acting as a Trustee for a pension plan, not a broker or dealer. Thus, it does not have a claim premised upon a broker/dealer exec-utory contract under SIPA. “For purposes of the Bankruptcy Code, an executory contract is one in which the obligations of each party remain substantially unperformed.” In re C & S Grain Co., Inc., 47 F.3d 233, 237 (7th Cir.1995) (citation omitted). The Seventh Circuit limits the definition of executory contract to those contracts in which significant unperformed obligations remain on each side. In re Streets & Beard Farm Partnership, 882 F.2d 233, 235 (7th Cir.1989). The Sale Agreement
[ { "docid": "18553064", "title": "", "text": "at 984 (citing SEC v. Aberdeen Securities Co., Inc., 480 F.2d 1121, 1123 (3d Cir.), cert. denied sub nom. Seligsohn v. SEC, 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973)); In re MV Securities, Inc., 48 B.R. 156, 160 (Bankr.S.D.N.Y.1985) (quoting SEC v. S.J. Salmon & Co., Inc., 375 F.Supp. 867, 871 (S.D.N.Y.1974)). SIPC is a non-profit corporation whose members include most interstate broker-dealers. SIPA establishes SIPC and, among other things, sets forth the procedures for liquidating financially troubled SIPC members. A broker or dealer automatically becomes a member of SIPC upon registration as a broker or dealer with the Securities and Exchange Commission (“SEC”) under § 15(b) of the Securities Exchange Act of 1934. See 15 U.S.C. § 78ccc(a)(2)(A). SIPC initiates a SIPA liquidation by filing an application for a customer protective decree in federal district court. 15 U.S.C. § 78eee(a)(3). SIPA protects customers of registered broker-dealers who have entrusted those broker-dealers with cash or securities in the ordinary course of business. Matter of Oberweis Securities, Inc., 135 B.R. 842, 845 (Bankr.N.D.U1.1991). For these purposes, a “customer” is any person ... who has a claim on account of securities received, acquired, or held by the debtor in the ordinary course of is business as a broker or dealer from or for the securities accounts of such person for safekeeping, with collateral security, or for purposes of effecting a transfer. The term ‘customer’ includes any person who has a claim against the debtor arising out of sales or conversions of such securities, an any person who has deposited cash with the debtor for the purpose of purchasing securities.... 15 U.S.C. § 78lll(2). See In re Omni Mutual, Inc., 193 B.R. 678, 681 (S.D.N.Y.1996). Notwithstanding the special protection afforded customers under SIPA, a SIPA liquidation is essentially a bankruptcy liquidation tailored to achieve the special purposes of SIPA. See 15 U.S.C. § 78fff(b) (to the extent consistent with SIPA, a liquidation “shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of" } ]
[ { "docid": "12412073", "title": "", "text": "as their respective pro rata shares of customer property will be insufficient to satisfy their Net Equity claims. A third category of customers similarly withdrew less money than they deposited, with net investment amounts under the $500,000 statutory limit (“Under the Limits Net Losers”) (together with “Over the Limits Net Losers,” “Net Losers”). An Under the Limits Net Loser receives a SIPC advance against his pro rata share of customer property in the amount of his net investment. This is so even though his November 30th Statement may reflect a balance higher than $500,000. These customers are not entitled to a further distribution from the fund of customer property because their Net Equity claims will be fully satisfied by the SIPC advance. In general, Net Winners will be concentrated among early investors, while a critical mass of Net Losers will be found among later investors. DISCUSSION I. THE HISTORY OF SIPA A. Generally As a backdrop for the Court’s review of the Net Equity issue in this SIPA proceeding, a brief overview of the history and purpose of the statute will provide helpful context. Congress enacted SIPA in 1970 for the primary purpose of protecting customers from losses caused by the insolvency or financial instability of broker-dealers. See SEC v. S.J. Salmon & Co., Inc., 375 F.Supp. 867, 871 (S.D.N.Y.1974). In doing so, Congress sought to “reinforce the confidence that investors have in the U.S. securities markets” and “strengthen[ ] ... the financial responsibilities of broker-dealers.” H.R.Rep. No. 91-1613, at 2-4 (1970), reprinted in 1970 U.S.C.C.A.N. 5254, 5257. To accomplish these aims, SIPA establishes procedures for liquidating failed brokerdealers and provides “customers,” as defined by SIPA section 78III (2), with special protections. A SIPA liquidation is essentially a bankruptcy liquidation tailored to achieve SIPA’s objectives. See SIPA § 78fff(b) (“[A] liquidation proceeding shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of Title 11.”); In re Adler Coleman Clearing Corp., 195 B.R. 266, 269-70 (Bankr.S.D.N.Y.1996). Separate from the general SIPA estate, a" }, { "docid": "15166368", "title": "", "text": "motion, the Trustee has assumed the truth of each of the Claimant’s specific allegations that the Debt- or failed to execute the sales as instructed. Nonetheless, the Trustee contends that the Claimant is not entitled to preferential treatment on account of any losses which occurred due to the failure to execute the sales and is limited to the amount of cash and securities of the same type and quality as those in his account as of the date the SIPA liquidation was commenced. This court agrees. In determining the nature of the Claimant’s status in relation to the Debtor, the court must look to matters as they existed as of the date the SIPA liquidation was commenced. See SIPA § 78fff-2(b). See, e.g. SIPC v. Vigman, 803 F.2d 1513, 1516 (9th Cir.1986); SEC v. Aberdeen Securities Co., Inc., 480 F.2d at 1123-24; Matter of Atkeison, 446 F.Supp. 844 (M.D.Tenn.1977); Matter of Bevill, Bresler & Schulman, Inc., 83 B.R. at 892. It is well established that claims based on a debtor’s failure to execute securities trades are not “customer” claims which a trustee may satisfy with SIPC funds or Customer Property. Rather, these claims are general unsecured breach of contract claims. See In re Adler Coleman, supra (where brokers failed to execute sales as instructed “those claimants are not entitled preferential treatment on account of those alleged losses. Claims arising from a brokers failure to execute a sell order are general unsecured breach of contract claims, not customer claims entitled to priority under SIPA.”); SEC v. JNT Investors, Inc., [1979 Transfer Binder] Fed. Sec. L. Rep. 96729, 1978 WL 1137 (S.D.N.Y.1978)(SIPA does not protect or insure a customer from the loss which may result by the failure to execute a sell order); SEC v. Howard Lawrence & Co., Inc., 1 BCD 577 (Bankr.S.D.N.Y.1975)(SIPA “does not apply to the case where the loss arises from a breach of contract. The failure to comply with a sell order does not result from the insolvency, but rather gives rise to a cause of action for breach of contract. This breach of contract action if" }, { "docid": "18553084", "title": "", "text": "the purposes of his motion, the Trustee assumes the truth of the specific allegations of the Failure to Sell Claimants that brokers failed to execute sales as instructed. Nonetheless those claimants are not entitled preferential treatment on account of those alleged losses. Claims arising from a broker’s failure to execute a sell order are general unsecured breach of contract claims, not customer claims entitled to priority under SIPA. See, e.g., SEC v. JNT Investors, Inc., 1979 Fed.Sec.L.Rep. ¶ 96,729, 1978 WL 1137 (S.D.N.Y.1978); Barton v. SIPC, 182 B.R. at 985; In re First State Securities Corp; 34 B.R. 492, 496-97 (Bankr.S.D.Fla.1983). See also In re Bell & Beckwith, 124 B.R. 35 (Bankr.N.D.Ohio 1990) (claims predicated on fraudulent conduct of broker not compensable under SIPA); SEC v. S.J. Salmon & Co., Inc., 375 F.Supp. 867 (S.D.N.Y.1974) (investor’s recision claim based upon fraudulent inducement not a SIPA customer claim; customer would have to pursue claim against broker as a general unsecured creditor); SEC v. Howard Lawrence & Co., Inc., 1 B.C.D. 577, 579 (Bankr.S.D.N.Y.1975) (SIPA does not protect customer claims based on fraud or breach of contract). The principles developed in these decisions were codified by SIPC in the “Rules Relating to Satisfaction of a ‘Claim for Cash’ or a ‘Claim for Securities’”, 17 C.F.R. Part 300.500 to Part 300.503. These rules have been approved by the SEC and by statute are accorded the same force and effect as if promulgated by the SEC. See 15 U.S.C. § 78ecc. See also H.R.Rep. No. 95-746, 95th Cong., 1st Sess. 25 (1977) (SIPC rules are to be considered legislative rather than interpretive and will have the force and effect of law). The SIPC rules apply where there is a question of whether a particular securities transaction gives rise to a claim for cash or for securities under SIPA. 17 C.F.R. Part 300.500. Rule 502(b) provides that despite a customer’s order to sell securities, the customer has a claim for those securities unless (1) the debtor has sent written confirmation of the sale or (2) the securities have become the subject of a completed executory" }, { "docid": "8520689", "title": "", "text": "the Series 500 Rules were promulgated. See discussion infra Part III.A.3.a. Second, the bankruptcy court rejected Appellants’ argument that the Rules require only that the securities in question be the subject of “a” completed or executory contract, rather than only a contract with the debtor. The Series 500 Rules and SIPA, as the court observed, address claims against a debtor and its fund of customer property. See Decision, 247 B.R. at 77. Rule 300.502(a)(2) provides that “where the Debtor held cash in an account for a customer” the customer has a “claim for securities”, whether or not a written confirmation has been sent, if the securities in question satisfy three conditions: they must have become the subject of (1) a completed or executory contract; (2) for sale or purchase of securities; (3) from “the account ”. 17 C.F.R. § 300.502(a) (emphasis added); see also In re A.R. Baron Co., Inc., 226 B.R. 790, 796 (Bankr.S.D.N.Y.1998) (where the debtor did not issue a written confirmation of sale and there was no evidence of a completed or executory contract for the sale of securities, the claimant was not entitled to preferred SIPA customer status). Regarding the requirement that the securities contract must be for “sale or purchase” of particular securities, the broker which satisfies that criterion in this case is Adler, as clearing house. As Appellants concede, for SIPA purposes customers introduced to a dealing broker are deemed customers of the clearing broker, and not of the introducing broker. See Appellants’ Brief at 11; see also Arford v. Miller Trustee for Stratton Oakmont, Inc., 239 B.R. 698, 701-02 (S.D.N.Y.1999), aff'd, 210 F.3d 420 (2d Cir.2000). It is thus Adler’s Customer Agreement and the transaction documents generated for each specific securities sale or purchase that constitute the basis for a relevant contract. “The account” from which the relevant securities must become the subject of a contract can only be the same account which the lead paragraph of the Rule specifies is held by “the Debtor” for a customer. Like the bankruptcy court, this Court fails to see how a customer could have an" }, { "docid": "15166360", "title": "", "text": "resulted from the failure of a number of broker-dealers in 1969 and 1970. In re Adler Coleman Clearing Corp., 195 B.R. 266, 269 (Bankr.S.D.N.Y.1996); Matter of Bevill, Bresler & Schulman, Inc., 83 B.R. 880, 886 (D.N.J.1988). In doing so, Congress sought to restore investor confidence in the securities markets and avoid a domino effect involving solvent brokers that had substantial open transactions with firms that had failed. Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975); Barton v. Securities Investor Protection Corp., 182 B.R. 981, 984 (Bankr. D.N.J.1995). Thus, SIPA is designed to protect customers of registered broker-dealers who have entrusted those broker-dealers with cash or securities in the ordinary course of business. In re Adler Coleman, 195 B.R. at 269; Matter of Oberweis Securities, Inc., 135 B.R. 842, 845 (Bankr.N.D.Ill.1991). In this respect, the protection offered customers under SIPA is akin to that provided to bank depositors by the Federal Deposit Insurance Corporation. Barton v. Securities Investor Protection Corp., 182 B.R. at 984 (citing SEC v. Aberdeen Securities Co., Inc. 480 F.2d 1121, 1123 (3rd Cir.), cert. denied sub nom. Seligsohn v. SEC, 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973)); In re Adler Coleman, 195 B.R. at 269. Notwithstanding the special protection afforded customers under SIPA, a SIPA liquidation is essentially a bankruptcy liquidation tailored to achieve the special purposes of SIPA. SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.1986) cert. denied sub nom Pine Street Baptist Church V. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). SIPA § 78fff(b) provides that to the extent consistent with SIPA, “a liquidation proceeding shall be conducted in accordance with,' and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of [the Bankruptcy Code].” The Role of the Securities Investor Protection Corporation SIPA, initially adopted in 1970 and substantially amended in 1978, created the Securities Investor Protection Corporation (“SIPC”), a non-profit corporation, as the vehicle for achieving its statutory goals. See SIPC v." }, { "docid": "16572195", "title": "", "text": "business as a broker or dealer from or for the securities accounts of such person.... The term “customer” includes any person who has a claim against the debtor arising out of sales or conversions of securities, and any person who has deposited cash with the debtor for the purpose of purchasing securities.... 15 U.S.C. § 78111(2). The Jensen and Quack-enbush accounts are “qualified joint accounts” as defined in the SIPC Rules. Those accounts are separate “customers” under § 78111(2). Securities Investor Protection Corp. v. Morgan, Kennedy & Co., Inc., 533 F.2d 1314 (2d Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1976); Ravis v. Labriola (In re Investors Security Corp.), 6 B.R. 415 (Bankr.W.D.Pa.1980). SIPC makes payments under SIPA to customers who have outstanding obligations with a failed broker or dealer in an amount up to $500,000. 15 U.S.C. § 78fff-3(a). Congress enacted SIPA to protect “customers”. See In re Omni Mutual, Inc., 193 B.R. 678, 680 (S.D.N.Y.1996); Securities Investor Pro tection Corp. v. Oberweis Securities, Inc. (In re Oberweis Securities, Inc.), 135 B.R. 842, 845 (Bankr.N.D.Ill.1991); see also H.R.Rep. 91-1613, at 1 (1970), reprinted in 1970 U.S.C.C.A.N. 5254, 5255. Joint account holders constitute a single “customer” under SIPA. 17 C.F.R. § 300.105(b) (“subject to paragraph (c) of this rule, each qualifying joint account -with a [broker] shall be deemed held by one separate customer of the [broker]”). The joint account holders share any payments on account of a valid customer claim in proportion to their ownership interests in the account. See Securities Investor Protection Corp. v. Morgan, Kennedy & Co., Inc., 533 F.2d at 1320. The Trustee and SIPC’s reading of SIPA is consistent with and furthers the purpose of the statute. However, even if the Trustee did not strictly comply with SIPA § 78fff-2(a)(3) by not mailing a Claim Package to each joint account holder, it is harmless error because the evidence proves that the Trustee mailed one Claim Package for each account to the address listed in debtor’s account records. An error is harmless if it is not “ ‘inconsistent with substantial justice’”" }, { "docid": "18553066", "title": "", "text": "the Bankruptcy Code”). See also SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.) (district court erred in its award of post-petition interest to customers for period during which SIPC withheld funds while unsuccessfully challenging their status as customers; SIPA liquidation akin to proceeding under chapters 1, 3, 5 and subchapters I and II of chapter 7 of the Code and under bankruptcy law a court cannot award post-petition interest against the debt- or’s estate absent a surplus), cert. denied sub nom. Pine Street Baptist Church v. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986); Matter of Bevill, Bresler & Schulman, Inc., 83 B.R. at 886 (SIPA liquidation akin to proceeding under chapters 1, 3, 5 and subchapters I and II of chapter 7 of the Code). Thus, SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors — is a fund consisting of customer-related assets. See 15 U.S.C. § 18111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(c)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer of which no more than $100,000 may be based on a customer claim to cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection, and becomes sub-rogated to customer claims paid to the extent of advances. See 15 U.S.C. §§ 78fff-3(a), 78fff-2(c)(l), 78111(11). See also Matter of Oberweis Securities, Inc., 135 B.R. at 845 (SIPC only advances funds to the extent that the broker’s assets are insufficient to satisfy obligations to clients; SIPC’s exposure is limited to allowable SIPA claims up to $500,-000 per customer of which no more than $100,000 may represent reimbursement of cash); In" }, { "docid": "18756068", "title": "", "text": "unsecured creditors of the debtor's estate. A look at the history of SIPA is enlightening in analyzing the parties’ dispute. SIPA’s enactment was a response to serious financial problems pervading the securities industry, H.R.Rep. No. 1613, 91st Cong., 2d Sess. 2 (1970) reprinted in 1970 U.S. Code Cong, and Ad. News 5254, 5255. The act was designed to afford protection to public customers in the event broker-dealers with whom they transact business encounter financial difficulties and are unable to satisfy their obligations to their public customers. SEC v. Alan F. Hughes, Inc., 461 F.2d 974, 977 (2d Cir.1972). See also SIPC v. Barbour, 421 U.S. 412, 414, 95 S.Ct. 1733, 1735, 44 L.Ed.2d 263 (1975); SIPC v. Morgan, Kennedy & Co. Inc., 533 F.2d 1314, 1316 (2d Cir.1975), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1976). To implement this goal, SIPC was established; its main function is to liquidate a broker or dealer when customers’ assets are in danger. Morgan, Kennedy, 533 F.2d at 1316. The purposes of a liquidation under SIPA are 1) delivery of customer name securities to customers and distribution of customer property and net equity claims as promptly as possible after appointment of a trustee, 2) sale or transfer of offices and other productive units of the debtor’s business, 3) enforcement of rights of subrogation provided by SIPA, and 4) liquidation of the debtor’s business. In re MV Securities, Inc. 48 B.R. 156, 159 (Bankr.S.D.N.Y.1985); 15 U.S.C. § 78fff(a). To facilitate the first of these enumerated purposes, SIPC may make advances to the trustee and becomes sub-rogated to the extent of its advances to the customer claims thereby paid; these advances must be repaid before payment of claims of general unsecured creditors. 15 U.S.C. § 78fff(a); see also SIPC v. Associated Underwriters, Inc., 423 F.Supp. 168, 170-73 (D.Utah 1975). SIPC advances are limited to $500,000 per customer, no more than $100,000 of which may be based on a claim for cash (as opposed to securities). 15 U.S.C. § 78fff-3(a)(l). In re Hanover Square Securities, 55 B.R. at 237. The term “customer” is" }, { "docid": "17543521", "title": "", "text": "that they had operated a Ponzi scheme through BLMIS’s investment-advisor activities. On December 15, 2008, upon an application filed by the Securities Investment Protection Corporation (“SIPC”), the District Court entered a protective order placing BLMIS in liquidation under the Securities Investor Protection Act (“SIPA”), appointing Picard as the Trustee, and referring the case to the United States Bankruptcy Court for the Southern District of New York. See Order, SEC v. Bernard L. Madoff and Ber nard L. Madoff Inv. Sec. LLC, No. 08 Civ. 10791(LLS) (S.D.N.Y. Dec. 15, 2008), ECF No. 4. A SIPA establishes procedures for the expeditious and orderly liquidation of failed broker-dealers, and provides special protections to their customers. A trustee’s primary duty under SIPA is to liquidate the broker-dealer and, in so doing, satisfy claims made by or on behalf of the broker-dealer’s customers for cash balances. In re Bernard L. Madoff Inv. Sec. LLC, 654 F.3d 229, 233 (2d Cir.2011). In a SIPA liquidation, a fund of “customer property” is established — consisting of cash and securities held by the broker-dealer for the account of a customer, or proceeds therefrom, 15 U.S.C. § 78111(4)— for priority distribution exclusively among customers, id. § 78fff-2(c)(l). The Trustee allocates the customer property so that customers “share ratably in such customer property ... to the extent of their respective net equities.” Id. § 78fff-2(e)(l)(B). In order to calculate a customer’s “net equity,” Picard chose the “net investment method,” under which the amount owed to each customer by BLMIS was “the amount of cash deposited by the customer into his BLMIS customer account less any amounts already withdrawn by him.” Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (In re Bernard L. Madoff Inv. Sec. LLC), 424 B.R. 122, 125 (Bankr.S.D.N.Y.2010). In other words, BLMIS customers had net equity only to the extent that their total cash deposits exceeded their total cash withdrawals. Id. at 142. On March 1, 2010, the Bankruptcy Court entered an order approving the “net investment method” (the “Net Equity Decision”), which we subsequently affirmed. See id. at 135, 140, aff'd, 654 F.3d" }, { "docid": "21726040", "title": "", "text": "State to the contrary notwithstanding. 15 U.S.C. § 78fff-2(e)(3) (emphasis added). See also, SEC v. Albert & Maguire Sec. Co., 560 F.2d 569, 574 (3d Cir.1977); Hill v. Spencer S & L Ass’n (In re Bevill, Bresler & Schulman, Inc.), 94 B.R. 817, 825-26 (D.N.J.1989) (15 U.S.C. § 78fff-2(c)(3) creates a legal fiction by deeming customer property to be property of the debtor, relieving the trustee from having to prove that the property belonged to the debtor’s estate). The Defendants’ reliance on White Family Cos. v. Dayton Title Agency, Inc., 284 B.R. 238 (S.D.Ohio 2002), and Daly v. Kennedy (In re Kennedy), 279 B.R. 455 (Bankr.D.Conn.2002), is misplaced, therefore, because those cases involved chapter 7 trustees, not a SIPA trustee with the benefit of 15 U.S.C. § 78fff-2(c)(3). Trefny v. Bear Stearns Sec. Corp., 243 B.R. 300, 322, 323 (S.D.Tex.1999), also is inap-posite, because the SIPA trustee in Trefny labeled his claims “fraudulent transfer” claims under 11 U.S.C. § 548 when, in fact, they were nothing more than common law fraud claims, id. at 323, based on alleged misrepresentations to third parties in connection with bond purchases. Id. at 322. In the present proceeding, on the other hand, the Trustee is pursuing fraudulent transfer causes of action specifically conferred on him by SIPA and the Bankruptcy Code, which, therefore, he clearly has standing to pursue. See Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991); Giddens v. D.H. Blair & Co. (In re A.R. Baron & Co.), 280 B.R. 794, 799 (Bankr.S.D.N.Y.2002) (“case or controversy” requirement imposed by Article III of the Constitution “coincides with the scope of the powers the Bankruptcy Code gives a trustee”). The Complaint alleges not only each of the requirements of sections 548(a) of the Bankruptcy Code and (except as noted in Section II below) the applicable New York State fraudulent conveyance provisions incorporated under section 544(b) of the Bankrputcy Code, but also each of the requirements of 15 U.S.C. § 787fff-2(c)(3), including that the customers’ property is insufficient to pay in full the types of claims set forth in 15 U.S.C." }, { "docid": "8017443", "title": "", "text": "because the breach did not occur until after discharge.) The court need not decide whether the view that a breach of an ordinary contract is always within the fair contemplation of the parties is correct or consistent with due process because the Schwartz Plaintiffs’ insurance contracts are executory contracts, not ordinary contracts. An executory contract is one in which “significant unperformed obligations remain on both sides.” Mitchell v. Streets (In re Streets & Beard Farm P’ship), 882 F.2d 233, 235 (7th Cir.1989). The obligations on both sides must be “so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other.” Id. (citing V. Countryman, Executory Contracts in Bankr.: Part I, 57 Minn. L.Rev. 439, 460 (1974)). Insurance contracts are generally considered executory contracts. Camp v. Nat’l Union Fire Ins. Co. of Pittsburgh (In re Gov’t Sec. Corp.), 101 B.R. 343, 348 (Bankr.S.D.Fla.1989), aff'd, 111 B.R. 1007 (S.D.Fla.1990), aff'd, 972 F.2d 328 (11th Cir.1992). Where the policy imposes obligations of continuing performance on both parties — an obligation to pay premiums on one side and an obligation to provide insurance protection on the other — it is an exec-utory contract. Pester Ref. Co. v. Ins. Co. of N. Am. (In re Pester Refining Co.), 58 B.R. 189, 191 (Bankr.S.D.Iowa 1985); In re B. Siegel Co., 51 B.R. 159 (Bankr.E.D.Mich.1985). The policies at issue in this case require monthly payments in return for payment of benefits. These policies are therefore executory contracts. Executory contracts receive special treatment in bankruptcy. Under 11 U.S.C. § 365(a) and (d)(2), a Chapter 11 debtor must generally either assume or reject an executory contract by the time of confirmation. In order to assume an exec-utory contract, the debtor must cure or provide adequate assurance that it will promptly cure any pre-assumption default under the contract. 11 U.S.C. § 365(b)(1). Claims arising from failure to cure past defaults are not discharged. After assumption, the debtor must comply with all the terms of the contract going forward. The discharge of the debtor does not bar a claim for post-discharge" }, { "docid": "18553083", "title": "", "text": "market in their stocks. The Whitcombs’ maintain that their losses were increased because investors who did not have accounts with debtor were able to keep trading and limit their losses. SIPA does not authorize the Trustee to halt all trading in a particular stock. The Trustee may only freeze trading in accounts held by the debtor, and such a freeze was instituted. The Whitcombs are receiving 100% of the recovery allowed by SIPA as a preferential customer distribution. Because the alleged market losses are not part of a customer’s net-equity under SIPA, see 15 U.S.C. § 78111 (11), we overrule their objection. Edward Bekian raised a host of issues in response the Trustee’s motion. Fundamentally, Bekian asserts that he is entitled to recover his market loss as part of the net equity in his account. As noted, his SIPA customer claim does not encompass that loss. We do not reach the other matters raised in BeMan’s response except that we find they have no bearing on, and are irrelevant to, the market loss issues. For the purposes of his motion, the Trustee assumes the truth of the specific allegations of the Failure to Sell Claimants that brokers failed to execute sales as instructed. Nonetheless those claimants are not entitled preferential treatment on account of those alleged losses. Claims arising from a broker’s failure to execute a sell order are general unsecured breach of contract claims, not customer claims entitled to priority under SIPA. See, e.g., SEC v. JNT Investors, Inc., 1979 Fed.Sec.L.Rep. ¶ 96,729, 1978 WL 1137 (S.D.N.Y.1978); Barton v. SIPC, 182 B.R. at 985; In re First State Securities Corp; 34 B.R. 492, 496-97 (Bankr.S.D.Fla.1983). See also In re Bell & Beckwith, 124 B.R. 35 (Bankr.N.D.Ohio 1990) (claims predicated on fraudulent conduct of broker not compensable under SIPA); SEC v. S.J. Salmon & Co., Inc., 375 F.Supp. 867 (S.D.N.Y.1974) (investor’s recision claim based upon fraudulent inducement not a SIPA customer claim; customer would have to pursue claim against broker as a general unsecured creditor); SEC v. Howard Lawrence & Co., Inc., 1 B.C.D. 577, 579 (Bankr.S.D.N.Y.1975) (SIPA does not" }, { "docid": "16572335", "title": "", "text": "see Mitchell v. Streets (In re Streets & Beard Farm Partnership), 882 F.2d 233, 235 (7th Cir.1989) (taken literally, the legislative history definition would render “almost all agreements executory since it the rare agreement that does not involve unperformed obligations on either side”); In re Spectrum Info. Tech., Inc., 190 B.R. 741, 746 (Bankr.E.D.N.Y.1996) (“ ‘[t]he problem with the ... definition is if it is to be stretched, it becomes evident that all contracts could be considered executo-ry1 ”) (quoting In re Bluman, 125 B.R. 359, 361 (Bankr.E.D.N.Y.1991)), most courts have adopted Professor Countryman’s definition of an executory contract as a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other. Vern Countryman, Executory Contracts in Bankruptcy: Part 1, 57 Minn.L.Rev. 439, 460 (1973). Accord Enterprise Energy Corp. v. United States (In re Columbia Gas Sys., Inc.), 50 F.3d 233, 239 (3d Cir.1995); Cameron v. Pfaff Plumbing & Heating, Inc., 966 F.2d 414, 416 (8th Cir.1992); In re Streets & Beard Farm Partnership, 882 F.2d at 235; Pacific Express, Inc. v. Teknekron Infoswitch Corp. (In re Pacific Express, Inc.), 780 F.2d 1482, 1487 (9th Cir.1986); Lubrizol Enters., Inc. v. Richmond Metal Finishers, Inc. (In re Richmond Metal Finishers, Inc.), 756 F.2d 1043, 1045 (4th Cir.1985), cert. denied, 475 U.S. 1057, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986); In re Spectrum Info. Tech., Inc., 193 B.R. 400, 404 (Bankr.E.D.N.Y.1996); In re 375 Park Ave. Assocs., Inc., 182 B.R. 690, 697 (Bankr.S.D.N.Y.1995); In re Child World, Inc., 147 B.R. 847, 851 (Bankr.S.D.N.Y.1992); In re Chateaugay Corp., 102 B.R. 335, 344-45 (Bankr.S.D.N.Y.1989). Under Countryman’s “material breach” test, a prepetition contract is executory when both sides are still obligated to render substantial performance. In re Columbia Gas Sys., 50 F.3d at 239; In re Streets & Beard Farm Partnership, 882 F.2d at 235; In re 375 Park Ave. Assocs., 182 B.R. at 697. Where such performance remains due on only one side, the contract is non-executory," }, { "docid": "10230429", "title": "", "text": "to assume and assign the contracts to licensed grain dealers who would be willing to perform C & S Grain’s obligations under the contracts and who would pay C & S Grain for that right. C & S Grain claims that as long as its assignee could provide adequate assurance of future performance, namely that the debtor’s contract partner would receive the benefit of its bargain under the contract, C & S Grain was entitled to assign profitable executory contracts for performance by third parties. 11 U.S.C. § 365(a), (f)(2). The Bankruptcy Code does indeed allow debtors to assume and assign executory contracts with court approval. 11 U.S.C. § 365(a), (f)(1). A threshold matter, however, is whether the contracts were in fact executory. For if the “to arrive” contracts were either completed or terminated before the bankruptcy filing, C & S Grain could not have assumed them. For purposes of the Bankruptcy Code, an executory contract is one in which the obligations of each party remain substantially unperformed. In re Chicago, Rock Island & Pac. R.R. Co., 604 F.2d 1002, 1003-04 (7th Cir.1979). Consequently, “when the debtor has not only failed to perform but has breached the contract pre-petition with the result that the other party has no further duty to perform, ... the contract is no longer executory for purposes of section 365.” In re Murtishi, 55 B.R. 564, 567 (N.D.Ill.1985). The extent of a party’s obligations after another party repudiates its own obligations is a matter of state law. See In re Streets & Beard Farm Partnership, 882 F.2d 233, 235 (7th Cir.1989) (referring to state law to determine whether a contract remained executory). In Illinois, once a statute imposes licensure as a precondition for operation and provides a penalty for its violation, a contract for the unlicensed performance of that act is void. See T.E.C. & Assocs., Inc. v. Alberto-Culver Co., 131 Ill.App.3d 1085, 87 Ill.Dec. 220, 228, 476 N.E.2d 1212, 1220 (1985); Broverman v. City of Taylorville, 64 Ill.App.3d 522, 21 Ill.Dec. 264, 267, 381 N.E.2d 373, 376 (1978). Therefore implicit in every grain contract entered" }, { "docid": "18741685", "title": "", "text": "that resulted from stockbroker failures in 1969 and 1970. The purposes of SIPA are to protect individual investors from financial hardship; to insulate the economy from the disruption which can follow the failure of major financial institutions; and to achieve a general upgrading of financial responsibility requirements of brokers and dealers to eliminate, to the maximum extent possible, the risks which lead to customer loss. S.Rep. No. 1218, 91st Cong., 2d Sess., at 4 (1970). SIPA created the Securities Investor Protection Corporation (“SIPC”) and, among other things, established procedures for liquidating financially troubled broker-dealers who are members of SIPC. Under SIPA section 78eee(a)(3), a SIPA liquidation is initiated by SIPC’s filing of an application for a customer protective decree in a federal district court. Notwithstanding the special protection afforded to customers, courts have uniformly recognized that a proceeding under SIPA essentially is a bankruptcy liquidation remo-delled to achieve the special purposes of SIPA. See, e.g., SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.), cert. denied sub nom. Pine Street Baptist Church v. SIPC, — U.S. -, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986); Matter of Bevill, Bresler & Schulman, Inc., 59 B.R. 353, 366-67 (D.N.J.1986). The statute provides that, to the extent consistent with SIPA, a SIPA liquidation “shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3, and 5 and subchapters I and II of chapter 7 of the Bankruptcy Code.” SIPA section 78fff(b). C. Date of Filing SIPA section 78fff-2(c)(3) permits the trustee to avoid a postpetition transfer of customer property to a customer where “customer property is not sufficient to pay in full” all customer-related claims and to the extent that the transfer “is voidable or void under the provisions of Title 11.” 15 U.S.C. section 78fff-2(c)(3). Sections 547 and 549 of the Bankruptcy Code authorize, respectively, avoidance of certain prepetition and postpetition transfers of “property of the estate.” Thus, by virtue of SIPA sec. 78fff-2(c)(3), sections 547 and 549 of the Code apply to this SIPA liquidation. Section 549 of the Code authorizes the" }, { "docid": "12412074", "title": "", "text": "and purpose of the statute will provide helpful context. Congress enacted SIPA in 1970 for the primary purpose of protecting customers from losses caused by the insolvency or financial instability of broker-dealers. See SEC v. S.J. Salmon & Co., Inc., 375 F.Supp. 867, 871 (S.D.N.Y.1974). In doing so, Congress sought to “reinforce the confidence that investors have in the U.S. securities markets” and “strengthen[ ] ... the financial responsibilities of broker-dealers.” H.R.Rep. No. 91-1613, at 2-4 (1970), reprinted in 1970 U.S.C.C.A.N. 5254, 5257. To accomplish these aims, SIPA establishes procedures for liquidating failed brokerdealers and provides “customers,” as defined by SIPA section 78III (2), with special protections. A SIPA liquidation is essentially a bankruptcy liquidation tailored to achieve SIPA’s objectives. See SIPA § 78fff(b) (“[A] liquidation proceeding shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of Title 11.”); In re Adler Coleman Clearing Corp., 195 B.R. 266, 269-70 (Bankr.S.D.N.Y.1996). Separate from the general SIPA estate, a fund of “customer property” is established for priority distribution exclusively among the debtor’s customers. See SIPA § ISlll (4) (defining “customer property”); In re Adler, Coleman Clearing Corp., 216 B.R. 719, 722 (Bankr.S.D.N.Y.1998) (“A person whose claim against the debtor qualifies as a ‘customer claim’ receives preferential treatment in the distribution of assets from the debtor’s estate.”). Each customer is entitled to share in this fund pro rata to the extent of his Net Equity. See SIPA § 78fff-2(c)(l)(b). In many SIPA liquidations, however, customer property is inadequate to wholly satisfy customers’ Net Equity claims. Under these circumstances, SIPC, an independent, non-profit membership corporation created by SIPA, provides additional protection. SIPC is charged with establishing and administering a SIPC fund to advance money to the SIPA trustee to promptly pay each eus-tomer’s valid Net Equity claim, up to $500,000 per customer. See SIPA §§ 78ddd(a)(l), ccc(a)(l), fff-3(a). However, these advances cover only “the amount by which the net equity of each customer exceeds his ratable share of customer property.” SIPA § 78fff-3(a). If the amount" }, { "docid": "15166361", "title": "", "text": "Securities Co., Inc. 480 F.2d 1121, 1123 (3rd Cir.), cert. denied sub nom. Seligsohn v. SEC, 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973)); In re Adler Coleman, 195 B.R. at 269. Notwithstanding the special protection afforded customers under SIPA, a SIPA liquidation is essentially a bankruptcy liquidation tailored to achieve the special purposes of SIPA. SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.1986) cert. denied sub nom Pine Street Baptist Church V. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). SIPA § 78fff(b) provides that to the extent consistent with SIPA, “a liquidation proceeding shall be conducted in accordance with,' and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of [the Bankruptcy Code].” The Role of the Securities Investor Protection Corporation SIPA, initially adopted in 1970 and substantially amended in 1978, created the Securities Investor Protection Corporation (“SIPC”), a non-profit corporation, as the vehicle for achieving its statutory goals. See SIPC v. Barbour, supra. SIPA provides, among other things, that most securities brokers must be members of SIPC. See SIPA § 78cce(a)(2). SIPA provides that SIPC members must contribute to the SIPC fund such assessments as SIPC imposes. See SIPA § 78ddd(c)(2). In the context of a liquidation proceeding, the SIPC fund is available for use only in connection with the satisfaction of certain customer and broker-dealer claims and for the payment of administrative expenses. See SIPA § 78fff-3; see also SIPC v. Ambassador Church, 788 F.2d at 1210. The SIPC fund may not be used for payment of claims against the broker that do not fall within the narrow statutory scope of a “customer” claim. SIPA § 78fff-2(e); 17 C.F.R. Part 300.300; In re Stalvey & Associates, Inc., 750 F.2d 464, 473 (5th Cir.1985); see also SEC v. Packer, Wilbur & Co., 498 F.2d 978, 983 (2d Cir.1974). A customer is defined by SIPA as “any person * * * who has a claim on account of securities received, acquired, or held by the debtor in" }, { "docid": "19086479", "title": "", "text": "Ober-weis Securities, Inc. (Matter of Oberweis Securities, Inc.), 135 B.R. 842, 845 (Bankr.N.D.Ill.1991). A “customer” is any person who has a claim “on account of securities received, acquired, or held by the debtor in the ordinary course of its business as a broker or dealer from or for the securities accounts of such person for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral security, or for purposes of effecting transfer.” 15 U.S.C. § 78lll(2). The term also includes “any person who has deposited cash with the debtor for the purpose of purchasing securities”. Id; see also In re Omni Mutual, Inc., 193 B.R. 678, 681 (S.D.N.Y.1996). “Essentially, a liquidation under the SIPA is a bankruptcy proceeding.” SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.), cert. denied sub nom. Pine Street Baptist Church v. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). SIPA § 78fff(b) provides that to the extent consistent with SIPA, “a liquidation proceeding shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3, and 5 and subchapters I and II of chapter 7 of title 11.” 15 U.S.C. § 78fff(b). SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors — is a fund consisting of customer-related assets. See 15 U.S.C. § 78111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(e)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer, of which no more than $100,000 may be based on a customer claim for cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection. SIPC becomes subrogated to" }, { "docid": "19086480", "title": "", "text": "with, and as though it were being conducted under chapters 1, 3, and 5 and subchapters I and II of chapter 7 of title 11.” 15 U.S.C. § 78fff(b). SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors — is a fund consisting of customer-related assets. See 15 U.S.C. § 78111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(e)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer, of which no more than $100,000 may be based on a customer claim for cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection. SIPC becomes subrogated to customer claims paid to the extent of such advances. See 15 U.S.C. §§ 78fff-3(a), 78fff—2(c)(1) and, 78111(11); see also Oberweis Securities, 135 B.R. at 845; In re MV Securities, Inc., 48 B.R. 156, 159 (Bankr.S.D.N.Y.1985). Those advances are repaid from funds in the general estate prior to payments on account of general unsecured claims. 15 U.S.C. § 78fff-3(a). The value of a customer’s account, or its “net equity”, is the measure of its preferred SIPA customer claim. “Net equity” is, in substance, the total value of cash and securities owed to the customer by the debtor as of the filing date, less the total value of cash and securities owed by the customer to. the debtor as of the filing date. 15 U.S.C. § 78lll(11). See, e.g., SIPC v. Vigman, 803 F.2d 1513, 1516 (9th Cir.1986) (claimant’s net equity equivalent to amount that broker would have owed claimant had it liquidated holdings on the date SIPC filed protective decree, less outstanding debt owed by claimant to debtor). SIPC may not advance funds for claims against" }, { "docid": "18553065", "title": "", "text": "For these purposes, a “customer” is any person ... who has a claim on account of securities received, acquired, or held by the debtor in the ordinary course of is business as a broker or dealer from or for the securities accounts of such person for safekeeping, with collateral security, or for purposes of effecting a transfer. The term ‘customer’ includes any person who has a claim against the debtor arising out of sales or conversions of such securities, an any person who has deposited cash with the debtor for the purpose of purchasing securities.... 15 U.S.C. § 78lll(2). See In re Omni Mutual, Inc., 193 B.R. 678, 681 (S.D.N.Y.1996). Notwithstanding the special protection afforded customers under SIPA, a SIPA liquidation is essentially a bankruptcy liquidation tailored to achieve the special purposes of SIPA. See 15 U.S.C. § 78fff(b) (to the extent consistent with SIPA, a liquidation “shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3 and 5 and subchapters I and II of chapter 7 of the Bankruptcy Code”). See also SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.) (district court erred in its award of post-petition interest to customers for period during which SIPC withheld funds while unsuccessfully challenging their status as customers; SIPA liquidation akin to proceeding under chapters 1, 3, 5 and subchapters I and II of chapter 7 of the Code and under bankruptcy law a court cannot award post-petition interest against the debt- or’s estate absent a surplus), cert. denied sub nom. Pine Street Baptist Church v. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986); Matter of Bevill, Bresler & Schulman, Inc., 83 B.R. at 886 (SIPA liquidation akin to proceeding under chapters 1, 3, 5 and subchapters I and II of chapter 7 of the Code). Thus, SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors" } ]
356771
In 2003, appellant Texas prisoner Michael Williams was released on parole after serving twenty-one years of a ninety-nine year sentence. His parole was revoked by the Texas Board of Pardons and Paroles (Parole Board) in 2004 after a woman claiming to be his daughter alleged that he assaulted her. At Williams’s parole revocation hearing, he sought to call three witnesses who were incarcerated at the time — Ollen Nugent, Samuel Oakley, and George Henderson. The Parole Board hearing officer refused to subpoena the three witnesses, and Williams pursued habeas relief in the state and federal courts on the theory that his revocation hearing did not comply with the due process requirements for parole revocation hearings articulated by the Supreme Court in REDACTED In 2009, this court held that Williams was entitled to a new parole revocation hearing that was in full compliance with the requirements of Morrissey and remanded the case for further proceedings consistent with its opinion. Williams v. Quarterman, 307 Fed.Appx. 790, 794 (5th Cir.2009). The opinion focused on the hearing officer’s failure to subpoena Nugent, Henderson, and Oakley. Id. at 792-94. Rather than having a new full revocation hearing, the Parole Board reopened Williams’s prior hearing on March 12, 2009 at the correctional facility in Beaumont, Texas where he was incarcerated. At the hearing, the Parole Board hearing officer attempted to subpoena Oakley, Henderson, and Nugent. No evidence was presented against Williams, and he was
[ { "docid": "22661956", "title": "", "text": "reluctant to grant parole in the first instance — an apprehension that would not be without some basis if the choice were between a full-scale adversary proceeding or no hearing at all. Additionally, the majority reasoned that the parolee has no statutory right to remain on parole. Iowa law provides that a parolee may be returned to the institution at any time. Our holding in Mempa v. Rhay, 389 U. S. 128 (1967), was distinguished on the ground that it involved deferred sentencing upon probation revocation, and thus involved a stage of the criminal proceeding, whereas parole revocation was not a stage in the criminal proceeding. The Court of Appeals’ decision was consistent with many other decisions on parole revocations. In their brief in this Court, respondents assert for the first time that petitioners were in fact granted hearings after they were returned to the penitentiary. More generally, respondents say that within two months after the Board revokes an individual’s parole and orders him returned to the penitentiary, on the basis of the parole officer’s written report it grants the individual a hearing before the Board. At that time, the Board goes over “each of the alleged parole violations with the returnee, and he is given an opportunity to orally present his side of the story to the Board.” If the returnee denies the report,-it is the practice of the Board to conduct a further investigation before making a final determination either affirming the initial revocation, modifying it, or reversing it. Respondents assert that Morrissey, whose parole was revoked on January 31, 1969, was granted a hearing before the Board on February 12, 1969. Booher’s parole was revoked on September 13, 1969, and he was granted a hearing on October 14, 1969. At these hearings, respondents tell us — in the briefs — both Morrissey and Booher admitted the violations alleged in the parole violation reports. Nothing in the record supplied to this Court indicates that respondent claimed, either in the District Court or the Court of Appeals, that petitioners had received hearings promptly after their paroles were revoked, or" } ]
[ { "docid": "15124331", "title": "", "text": "him. Although the Court distinguished the question whether the parolee violated a condition from the question whether that violation warranted revocation, it viewed the revocation hearing as properly addressing both inquiries. See Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602 (“What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.”); cf. Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985) (noting that, where there is discretion to continue probation or parole, “the parolee or probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition”). In identifying the minimum due process requirements for a revocation hearing, the Court did not suggest that we adhere to those requirements at the violation stage and simply discard them at the mitigation stage. From this, it is clear that Morris-sey (and Holland) intended that a parolee, even one who has admitted the violation of a parole condition, has a qualified right to confront and cross-examine witnesses and present evidence in support of mitigation. We caution, however, that this interpretation does not transform the revocation hearing into a full-scale trial. See Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. A hearing body may still determine that good cause exists to disallow the confrontation of a particular witness and may bar the presentation of testimonial and documentary evidence not relevant or material to the violation or mitigative factors. gests that there was no invasion of Williams’s right to present evidence on his own behalf because he failed to subpoena the parole officer. As an initial matter, we find the respondent’s reliance on the lack In this case, the respondent sug- of a subpoena to be disingenuous. Williams made clear in his pre-hearing letter that he wanted his parole officer to be present for" }, { "docid": "23274423", "title": "", "text": "the custodial state to place a detainer on the prisoner because of the issuance of a parole violation warrant by another state. Even if there is, the fact that the custodial state cooperates with the requesting state in turning the prisoner over at release is not the thrust of the attack. The relief sought is from the alleged punitive consequences which surround the prisoner in his day-to-day imprisonment in the custodial state when a detainer is placed upon him. Thus, we conclude that Cooper’s release by Arkansas on October 28, 1973, now removes him from the restrictions imposed by the Arkansas authorities by the detain-er. However, as indicated, this is not so as to Williams. DUE PROCESS AS APPLIED TO PAROLE REVOCATION We therefore move to the issues as they relate to Williams. First, we are faced with the fundamental question of whether there exists in the circumstances presented a denial of due process. We find there is. The law is now established that due process is required in parole revocation proceedings. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The issue is then simply whether there should exist an exception for a parole violator who is incarcerated in another state. The district court reasoned that the applicability of Morrissey was not before it since the due process requirements applied only to the state which must hold the parole revocation hearing. The court found that the requirements of Morrissey come into play only at such time as the petitioner is brought before a Board of Parole for a revocation hearing. Thus, the district court reasoned the questions of notice, opportunity to be heard, and determination by a fair fact finder are issues over which the defendants in the present case can have no control. First, it is important to recognize that Morrissey contemplates that due process for a parolee includes not only the above mentioned rights, but as well, an opportunity to be heard within a reasonable time of the alleged parole violation. Morrissey indicates that when a parole officer makes a decision that a" }, { "docid": "15124337", "title": "", "text": "Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir.1996). On the record before us, we cannot conclude that the State’s failure to produce Williams’s parole officer as a hearing witness contributed to the revocation decision. See Woods, 75 F.3d at 1026 (“[U]n-der Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict.”). The hearing officer acknowledged Williams’s explanation for his violation, and there is no indication that she questioned his credibility. It appears instead that, notwithstanding Williams’s justification for leaving Texas without authorization, the Parole Board found the violation sufficient to support revocation. We therefore cannot say that the absence of the testimony sought by Williams substantially affected or influenced the Parole Board’s decision. Be cause any error resulting from Williams’s inability to have the parole officer testify was harmless, we affirm the district court’s denial of the petition for a writ of habeas corpus. AFFIRMED. . A condition of Williams’s parole release was that he obtain written permission from his parole officer prior to leaving the State of Texas. . In addressing Williams’s claim, we are bound by § 2254(d)(1) because that section sets forth the standard of review for pure questions of law and for mixed questions of law and fact. See, e.g., Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.1999); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.1998); Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996). Williams’s claim does not hinge on a question of fact, in which case our review would be governed by 28 U.S.C. § 2254(d)(2). See Drinkard, 97 F.3d at 767. . Although styled as a denial of the right of confrontation, Williams’s claim more closely approximates a due process argument based on the denial of his right to present his own case — that is, to call a witness who would testify about mitigative circumstances that might suggest that the violation did not warrant revocation. This distinction, however, does not affect our resolution of Williams’s appeal. ." }, { "docid": "15124322", "title": "", "text": "two other occasions, Williams had telephone conversations with the officer. Williams then moved from his initial residence in California but failed to contact his parole officer or provide her with his updated address and telephone number. Williams was subsequently arrested for absconding. At his parole revocation hearing, Williams did not contest that he had violated a condition of his parole. He admitted that he had left the State of Texas without written permission but argued that his fear for his life mitigated the violation. Although Williams requested in a pre-hearing letter that his parole officer attend the revocation hearing to be examined and cross-examined, the parole officer was not present to testify. Instead, she submitted an affidavit declaring that she had not given Williams written permission to leave the State of Texas or to go to California. The affidavit was silent with respect to any factors that might have mitigated Williams’s unauthorized move. Williams objected to the introduction of the affidavit on the ground that it denied him the right to confront and cross-examine the parole officer. The revocation hearing officer overruled the objection and accepted the affidavit, finding good cause to deny the confrontation and cross-examination based on an agency policy that does not require a supervising officer to travel outside his or her district parole office area to attend a parole revocation hearing. After the hearing, the Texas Board of Pardons and Paroles (“Parole Board”), following the hearing officer’s recommendation, revoked Williams’s parole. The administrative release hearing report included the hearing officer’s findings, which delineated Williams’s violation and noted Williams’s testimony that he had traveled to California without written permission because he could not stay in Texas for safety reasons. The findings further indicated that Williams’s parole officer had told him that he needed to pay supervision fees amounting to $120.00 before he could receive travel permission and that Williams eventually had forwarded payment of these fees to his parole officer. Finally, the hearing officer noted in her report: [Williams’s] parole officer indicated that she was not certain RELEASEE could be transferred to California, however, [sic] RELEASEE gave" }, { "docid": "12383694", "title": "", "text": "STEWART, Circuit Judge: We sua sponte withdraw our prior opinion at 118 F.3d 432, which held AEDPA to be applicable, and substitute the instant opinion. This habeas corpus case presents the question of whether Ernest G. McBride’s Sixth Amendment right to confront and cross-examine an adverse witness was violated when his parole was revoked on the basis of hearsay testimony. Despite being acquitted of sexual assault (the jury deliberated five minutes), the Texas Board of Corrections nevertheless revoked McBride’s parole solely on the basis of a police officer’s testimony as to what the alleged victim of the sexual assault told the officer. Although the alleged victim testified at trial, she never appeared before the parole board, and the State presented no evidence showing good cause excused the alleged victim’s absence. After exhausting his state habeas remedies, McBride sought federal habeas relief. The magistrate judge rejected McBride’s contentions, and the district court adopted the magistrate’s conclusions of fact and law. We granted a Certificate of Appealability on the sole question of whether the State deprived McBride of the right to cross-examine and confront an adverse witness during his parole revocation hearing. Finding a violation of McBride’s Sixth Amendment rights, we REVERSE and REMAND this case to the district court with directions to send the case back to the parole board so that McBride may receive a new revocation hearing. BACKGROUND Ernest G. McBride was sentenced to two life sentences in 1976 for aggravated robbery. He was paroled in 1988. Approximately four years after his release on parole, McBride was charged with sexually assaulting Tawanna Illescas. After McBride was initially arrested, he was released because Illescas declined to press charges. However, law enforcement officers thereafter ran McBride’s name through an FBI computer and discovered that he had a criminal record. Law enforcement then contacted Illescas, and at that point she agreed to press charges. McBride was subsequently rearrested and a grand jury charged him with sexual assault. In the meantime, a warrant ordering McBride’s arrest on a parole-violation charge was issued. In particular, the basis for arresting McBride was that he violated" }, { "docid": "3627706", "title": "", "text": "MEMORANDUM OPINION AMY BERMAN JACKSON, District Judge. This case presents the question of whether the District of Columbia can be held liable under 42 U.S.C. § 1983 for a parole revocation decision made by the District of Columbia Board of Parole that violated plaintiffs right to due process under the Fifth Amendment to the U.S. Constitution. For the reasons set forth below, the Court concludes that the municipality can be held liable for the unconstitutional revocation of Mr. Singletary’s parole. Therefore, plaintiffs motion for summary judgment will be granted, and the defendant’s cross motion will be denied. I. BACKGROUND A. Factual Background In 1990, plaintiff Charles Singletary was released on parole after serving more than seven years of a nine to twenty-seven year sentence for armed robbery. Singletary Decl. ¶ 2. He remained on parole successfully for five years, but in June of 1995, he was arrested as an alleged participant in the murder of Leroy Houtman. Id. ¶ 3-4; PL’s Interrog. Resp. at No. 7. The charges were soon dropped at the preliminary hearing, and he was never indicted by a grand jury. Singletary Decl. ¶ 4. Yet a year later, the District of Columbia Board of Parole (“the Board”) held a hearing to consider whether to revoke his parole. Id. ¶ 6; PL’s Interrog. Resp. at Nos. 8. The evidence presented at the parole revocation hearing was limited to (1) a narrative given by the prosecutor and (2) testimony by a police detective. Singletary, 685 F.Supp.2d at 84. Neither of these individuals had first-hand knowledge of the facts, and their testimony was based on statements made by two individuals who themselves had no first-hand information, but rather, reported on conversations with the woman who was convicted of conspiracy in connection with the murder. Id. The Board revoked Singletary’s parole and he was was re-incarcerated. Id. Singletary remained in prison for ten more years, Singletary Decl. ¶ 8, as he challenged the parole revocation in habeas proceedings first in Superior Court and then in federal court. Id. ¶ 10. The D.C. Superior Court denied Singletary’s first petition for writ" }, { "docid": "15124323", "title": "", "text": "parole officer. The revocation hearing officer overruled the objection and accepted the affidavit, finding good cause to deny the confrontation and cross-examination based on an agency policy that does not require a supervising officer to travel outside his or her district parole office area to attend a parole revocation hearing. After the hearing, the Texas Board of Pardons and Paroles (“Parole Board”), following the hearing officer’s recommendation, revoked Williams’s parole. The administrative release hearing report included the hearing officer’s findings, which delineated Williams’s violation and noted Williams’s testimony that he had traveled to California without written permission because he could not stay in Texas for safety reasons. The findings further indicated that Williams’s parole officer had told him that he needed to pay supervision fees amounting to $120.00 before he could receive travel permission and that Williams eventually had forwarded payment of these fees to his parole officer. Finally, the hearing officer noted in her report: [Williams’s] parole officer indicated that she was not certain RELEASEE could be transferred to California, however, [sic] RELEASEE gave her his address and phone number in California and spoke to her approximately three times by phone from California. RELEASEE was never given a written travel permit or permission to go to California. Based on these findings, the hearing officer concluded that Williams had violated a rule governing his administrative release status. Williams challenged the parole revocation by filing in state court an application for a writ of habeas corpus. The Texas Court of Criminal Appeals denied the application without written order, based on the findings and conclusions of the state trial court, which had rejected Williams’s claim. Williams filed the instant petition in federal court on or about April 15, 1997. The magistrate judge to whom the petition was initially referred noted that the Parole Board’s decision was based at least in part on Williams’s own admission that he had moved to California without authorization. According to the magistrate, there was no basis to conclude that the Board’s decision would have been any different if Williams’s parole officer had been present at the revocation" }, { "docid": "5338044", "title": "", "text": "CUDAHY, Circuit Judge. William Phifer is an inmate moving to reopen a Petition for a Writ of Habeas Corpus. He originally filed a petition with the district court, alleging numerous errors in a parole revocation hearing. The district court located one error and conditionally granted his writ; the district court did not, however, address Phifer’s remaining claims. Instead, the district court directed that the writ of habeas would issue unless the Parole Commission ordered and scheduled a new parole revocation hearing. Phifer essentially contends that a full revocation hearing, as contemplated by the district court’s order, was never held. Because the Parole Commission did not accord Phifer a full second hearing, the district court’s original failure to address all of Phifer’s claims became a problem; a number of Phifer’s claims have never been addressed. In its order denying Phifer’s motion for lack of jurisdiction, the district court failed to address this allegation. We therefore vacate and remand. I. In 1977, William Phifer was sentenced to 24 years in prison for crimes relating to his involvement in a bank robbery. In 1989, after serving 12 years of his sentence, Phifer was released on parole. His release was short-lived. Less than one year later, the authorities took Phifer back into custody in light of a number of considerations, among them suspected drug use, violence and involvement in another armed robbery. The Parole Commission ultimately revoked Phifer’s parole, citing three considerations. First, the Commission found that Phifer had engaged in criminal mischief in the third degree because he had been arrested and charged with assault. Second, the Commission determined that evidence suggested that Phifer had used dangerous and habit forming drugs. Third, the Commission found that Phifer had violated a parole condition that required his participation in counseling services for his drug use. The hearing examiners made no finding regarding Phifer’s alleged involvement in the armed robbery. After the hearing, however, the Regional Commissioner recommended that Phifer should be held responsible for the robbery as well. Phifer first appealed his parole revocation to the National Appeals Board, exhausting his administrative remedies. Phifer then" }, { "docid": "3762600", "title": "", "text": "BREITENSTEIN, Circuit Judge. After a hearing, the district court denied habeas corpus relief to appellant Williams, a prisoner in the Colorado penitentiary. He was sentenced to a term of four years and four months to ten years. At the expiration of the minimum term he was released on parole. At the request of Colorado authorities, he was arrested in New Mexico for parole violation and held there for 21 days before being returned to Colorado. The return was accomplished under the Uniform Act for Out-of-State Parolee Supervision, Colo.Rev.Stat.Ann. § 74-5-2(3) (1963), to which Colorado and New Mexico are compacting parties. The Colorado State Board of Parole revoked the parole. The prisoner asserts that he was denied his federal constitutional right to counsel during his incarceration in New Mexico and at the parole revocation hearing in Colorado. This proceeding can only attack his imprisonment in Colorado. We are not concerned with what he might have done to attack the arrest and holding in New Mexico. It suffices to say that nothing is suggested to show that the provisions of the compact were not satisfied. The prisoner’s claims that the parole revocation was not in accordance with Colo.Rev. Stat.Ann. § 39-17-4 (1963) were decided against him by the Colorado Supreme Court in Williams v. Patterson, Colo., 421 P.2d 474, and raise no federal constitutional question. The sole issue which merits consideration is the contention that the parole revocation was invalid because at the hearing thereon the prisoner was not given the opportunity to appear with counsel. We held in Gonzales v. Patterson, 10 Cir., 370 F.2d 94, that the denial to a Colorado prisoner of assistance of counsel at a parole revocation hearing was no ground for federal habeas relief. Since that decision, the United States Supreme Court has decided Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336. In that case a state court had deferred sentence and placed the defendant on probation. Later a hearing was held for revocation of probation and the defendant was not afforded \"the right to counsel. The court revoked the probation. The" }, { "docid": "3944345", "title": "", "text": "a subsequent hearing. 18 U.S.C. § 4208(h); 28 C.F.R. § 2.14 (1986). Plaintiffs Theodore Green and Daniel Porter commenced this suit, on behalf of themselves and others similarly situated, as federal prisoners incarcerated within the District of Connecticut whose early release dates had been set by the Commission but who had not yet been released from prison (“parole grantees”). At issue in this case are the hearing procedures to be followed when, after an early release date has been set but prior to the arrival of that date, the Commission is notified that the parole grantee has been guilty of new misconduct or receives other new unfavorable information and wishes to consider whether to rescind the early release date. A. Drayton and its District Court Predecessors In 1972, the Supreme Court ruled that a parolee, i.e., one already released from prison on parole, had certain due process rights that must be respected before his parole could be revoked. These included the right to written notice of claimed parole violations, disclosure of the evidence against him, and a hearing before a neutral body such as a traditional parole board at which he could be heard, present witnesses, and confront and cross-examine adverse witnesses. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court extended these requirements to probation revocation proceedings and added a requirement that, within the responsible agency’s discretion, the parolee was entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thereafter, in a series of habeas corpus petitions filed in the District of Connecticut, a number of parole grantees, contending that they were entitled to the same protections as parolees, alleged that their due process rights were being violated by the Commission’s parole rescission procedures. In the first such case, Williams v. United States, 383 F.Supp. 402 (D.Conn.1974), the district court held that the due process rights accorded in parole revocation hearings were also required in parole rescission hearings; these included advance notice of the hearing, the assistance of counsel, and the opportunity to" }, { "docid": "16483888", "title": "", "text": "CUDAHY, Circuit Judge. This is a successive appeal with respect to a habeas petition filed under 28 U.S.C. § 2241. The original petition alleged numerous errors in William Phifer’s parole revocation hearing. After an appeal the matter was remanded for further proceedings. The petitioner now contends in this second appeal that those errors were not adequately addressed by either the Parole Commission or the district court. Although Phifer is now on parole, he contends that, unless the alleged errors in the Parole Commission records are corrected, he will suffer adverse legal consequences in future parole-related proceedings. Because we find that the issues presented by the petitioner are moot, we affirm the district court’s dismissal of the habeas petition. I. Factual Background In 1977, William Phifer was sentenced to 24 years in prison for crimes related to a bank robbery. He was released on parole in 1989 but his parole was revoked within a year for suspected drug use, violence and participation in another armed robbery. At the hearing the U.S. Parole Commission held to order the revocation, the panel made no finding regarding Phifer’s involvement in this later armed robbery. After the hearing, the regional commissioner recommended (and the Commission agreed) that Phifer be held responsible for the armed robbery based on a report by a probation officer, which implicated Phifer in the robbery. After exhausting his administrative remedies, Phifer petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. He alleged that: 1) he was denied access to police reports upon which the Parole Commission relied; 2) his offense severity rating was based on erroneous information; 3) he was refused a local parole revocation hearing in violation of his right to due process; and 4) his transfer to a new prison violated his right to due process. The district court determined, at least as to the first of his claims, that Phifer was entitled to a new hearing. At Phifer’s second parole hearing the Parole Commission focused on the police reports previously denied to Phifer, but did not address any of his other claims. The Parole Commission" }, { "docid": "15124324", "title": "", "text": "her his address and phone number in California and spoke to her approximately three times by phone from California. RELEASEE was never given a written travel permit or permission to go to California. Based on these findings, the hearing officer concluded that Williams had violated a rule governing his administrative release status. Williams challenged the parole revocation by filing in state court an application for a writ of habeas corpus. The Texas Court of Criminal Appeals denied the application without written order, based on the findings and conclusions of the state trial court, which had rejected Williams’s claim. Williams filed the instant petition in federal court on or about April 15, 1997. The magistrate judge to whom the petition was initially referred noted that the Parole Board’s decision was based at least in part on Williams’s own admission that he had moved to California without authorization. According to the magistrate, there was no basis to conclude that the Board’s decision would have been any different if Williams’s parole officer had been present at the revocation hearing. In addition, the magistrate noted that the state court had reviewed the record and found that Williams had failed to establish a due process violation. Quoting from our decision in Moore v. Johnson, 101 F.3d 1069, 1076 (5th Cir.1996), the magistrate judge stated that he was unable to conclude that “the state court decision [is] so clearly incorrect that it would not be debatable among reasonable jurists.” The magistrate therefore recommended the denial of Williams’s ha-beas petition. Williams filed written objections to the magistrate’s findings and recommendation. The district court adopted the findings and conclusions of the magistrate judge and entered judgment denying the application for a writ of habeas corpus. Williams filed a timely notice of appeal and this court granted a certificate of appealability with respect to the question whether a parolee’s right to present mitigation evidence encompasses the right of confrontation when the parolee has admitted the violation for which parole is revoked and, if so, whether Williams was denied that right. Because Williams filed his habeas petition after the effective" }, { "docid": "15124321", "title": "", "text": "BENAVIDES, Circuit Judge: Earlando Williams appeals the district court’s denial of his petition for a writ of habeas corpus. Williams claims that the State’s failure to produce his parole officer at his revocation hearing violated his due process right to elicit favorable testimony regarding circumstances that would have mitigated his violation of a parole condition. Pretermitting a determination of a due process violation, we find that any error was harmless and therefore affirm. I. In 1966 a jury found Williams guilty of rape and sentenced him to death. That sentence was subsequently commuted to life imprisonment. The Texas Department of Criminal Justice Board of Pardons and Paroles Division granted Williams a parole release in 1991. While on parole, Williams requested permission to move to California. Claiming that he feared for his life after he was assaulted and had his home burglarized, Williams moved to California before his parole officer acted upon his request to leave Texas. Upon arriving in California, Williams contacted his parole officer and provided her with his address and telephone number. On two other occasions, Williams had telephone conversations with the officer. Williams then moved from his initial residence in California but failed to contact his parole officer or provide her with his updated address and telephone number. Williams was subsequently arrested for absconding. At his parole revocation hearing, Williams did not contest that he had violated a condition of his parole. He admitted that he had left the State of Texas without written permission but argued that his fear for his life mitigated the violation. Although Williams requested in a pre-hearing letter that his parole officer attend the revocation hearing to be examined and cross-examined, the parole officer was not present to testify. Instead, she submitted an affidavit declaring that she had not given Williams written permission to leave the State of Texas or to go to California. The affidavit was silent with respect to any factors that might have mitigated Williams’s unauthorized move. Williams objected to the introduction of the affidavit on the ground that it denied him the right to confront and cross-examine the" }, { "docid": "15124339", "title": "", "text": "We explained in United States v. Grandlund, 71 F.3d 507 (5th Cir.1996), that confrontation of a particular witness may be disallowed upon a finding of good cause, which requires the weighing of the defendant’s interest in confronting the witness with the government’s interest in denying that right. The indicia of reliability of the challenged evidence is an important factor in this balancing test. See id. at 510. . With respect to the first sentence of the passage quoted from Holland, we reiterate that there is no right to present mitigation evidence where an admitted violation requires revocation. See Pickens v. Butler, 814 F.2d 237, 239 (5th Cir.1987) (“[I]t is only where the factfinder has discretion to continue parole that the parolee is entitled to show an excuse for the violation or that revocation is not appropriate.”). And, once the violation is admitted, certain of the Morrissey due process requirements become far less relevant. Where a violation supports, but does not mandate, revocation, however, this first sentence must be read in the full context of Holland and cannot be interpreted as an absolute bar to any attempt to demonstrate mitigative factors. At most, Holland's statement may mean that a parolee could be required to make a greater showing of his interest in procuring the testimony he seeks. Any other reading would disregard Holland's fuller explanation of the due process rights of a parolee in the context of mitigation. . We note that Williams received a notice of his rights in the revocation process, which included the right [t]o be heard on the alleged violation(s). You may have witnesses appear on your behalf, present letters, affidavits, and statements supporting your claims or defenses. You may examine and confront persons giving adverse information unless the Hearing Officer finds good cause for not allowing such to occur. You may request that subpoenas be issued for witnesses. In his letter to the Hearing Section of the Parole Board, Williams requested the appointment of counsel, in part, so that he would be afforded all his rights \"such as subpoenaing [the parole officer] and her files so" }, { "docid": "15124332", "title": "", "text": "discard them at the mitigation stage. From this, it is clear that Morris-sey (and Holland) intended that a parolee, even one who has admitted the violation of a parole condition, has a qualified right to confront and cross-examine witnesses and present evidence in support of mitigation. We caution, however, that this interpretation does not transform the revocation hearing into a full-scale trial. See Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. A hearing body may still determine that good cause exists to disallow the confrontation of a particular witness and may bar the presentation of testimonial and documentary evidence not relevant or material to the violation or mitigative factors. gests that there was no invasion of Williams’s right to present evidence on his own behalf because he failed to subpoena the parole officer. As an initial matter, we find the respondent’s reliance on the lack In this case, the respondent sug- of a subpoena to be disingenuous. Williams made clear in his pre-hearing letter that he wanted his parole officer to be present for examination and he objected to the introduction of her affidavit on the ground that it denied him his right to confront and cross-examine the officer. Under the circumstances, these measures sufficed to invoke his due process rights. See McBride v. Johnson, 118 F.3d 432, 438-39 (5th Cir.1997) (finding that a parolee adequately invoked his right to confront the witness, notwithstanding his failure to object to hearsay testimony, where the parolee had clearly expressed his intent to have the alleged victim be present during the revocation proceedings). The respondent also asserts that Williams suffered no denial of his right of confrontation and cross-examination. In support of this proposition, the respondent notes that Williams did not dispute the accuracy of the parole officer’s affidavit regarding the violation and that the hearing officer found good cause to deny confrontation based on the agency policy of not requiring parole officers to travel outside their district area to attend a revocation hearing. We are not persuaded that there was sufficient good cause to deny Williams’s right to have his parole" }, { "docid": "935031", "title": "", "text": "the fifth amendment. There is a difference of opinion among the lower federal courts as to whether due process applies to parole decision-making, and if it does, the nature of the process that is due. In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 the Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, revocation of a parolee’s liberty falls within the protection of the due process clause. Thus, the court held that a revocation hearing must be conducted reasonably soon after the parolee’s arrest and that minimum due process requirements are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of the evidence against him; (3) opportunity to be ' heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontations; (5) a neutral and detached hearing body such as the traditional parole board; and (6) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole. Morrissey, however, does not dictate that prisoners looking forward to release on parole be equated with paroles facing loss of their conditional freedom. While a necessary precondition to revocation of parole and reincarceration is a factual finding that a parolee has violated a condition of his parole, the parole release decision is based on a complex of tangible and intangible, of objective and subjective, factors having to do with psychiatry, criminology, psychology, penology and human relations. In Morrissey, the Court, in footnote 8 of its opinion, 408 U.S. 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, intimated that the due process requirements established therein for parole revocation proceedings need not be extended to those still incarcerated seeking parole. The Supreme Court, quoting approvingly from United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1086, vacated as moot, 1971, 404 U.S. 879, 92 S.Ct." }, { "docid": "15124336", "title": "", "text": "Texas and that the officer had represented that she would secure written authorization for his move if he paid certain fees. Under these circumstances, the hearing officer might have found that the State’s interest in conserving resources outweighed Williams’s interest in the parole officer’s testimony because that testimony would have been cumulative and Williams’s own explanation was not challenged. In this ease, however, we need not delve further into the question of error. We may not grant habeas relief unless the error at issue “ ‘had substantial and injurious effect or influence in determining’ ” the proceeding’s outcome. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); accord Calderon v. Coleman, — U.S. -, 119 S.Ct. 500, 503, — L.Ed.2d - (1998) (per curiam) -, California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 338, 136 L.Ed.2d 266 (1996); Harris v. Warden, Louisiana State Penitentiary, 152 F.3d 430, 437 (5th Cir.1998); Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir.1996). On the record before us, we cannot conclude that the State’s failure to produce Williams’s parole officer as a hearing witness contributed to the revocation decision. See Woods, 75 F.3d at 1026 (“[U]n-der Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict.”). The hearing officer acknowledged Williams’s explanation for his violation, and there is no indication that she questioned his credibility. It appears instead that, notwithstanding Williams’s justification for leaving Texas without authorization, the Parole Board found the violation sufficient to support revocation. We therefore cannot say that the absence of the testimony sought by Williams substantially affected or influenced the Parole Board’s decision. Be cause any error resulting from Williams’s inability to have the parole officer testify was harmless, we affirm the district court’s denial of the petition for a writ of habeas corpus. AFFIRMED. . A condition of Williams’s parole release" }, { "docid": "23274435", "title": "", "text": "the prisoner. Should the detain-er-requesting state choose to pursue revocation the two states might still work out procedures which would comply with the requirements of Morrissey, but which, nevertheless, cast no great burden of time or expense upon either state. We dismiss the appeal of Leroy C. Cooper as moot; we reverse and remand the case of Harry L. Williams, Jr. The district court is ordéred to determine an appropriate and reasonable time from the date of our remand for the Arkansas authorities to notify the Michigan Board of Parole or the requesting authority of this decision and to provide a reasonable opportunity for them to hold a parole revocation hearing. In the event a hearing is held and the parole is revoked with a request by Michigan for Williams’ ultimate release to it, the State of Arkansas is at liberty to continue the detainer if it so chooses. In the event that Michigan does not request Williams’ return to it, or in the event that no hearing is held in accord with the principles of due process set forth here, Arkansas shall be ordered to provide the prisoner with the same opportunities given the other prisoners not subject to a detainer. Judgment reversed and remanded with directions. . The grounds as set forth in the Missouri arrest warrant read: 1. (Vltn. Rule # 1). Failure to notify PO of change of place of residence or loss of employment. 2. (Vltn. Rule # 2). Failure to obtain advance permission of parole officer before quitting job or changing employment. 3. (Vltn. Rule # 3). Failure to obtain advance pmsn from parole officer before leaving area in w/Absconding living. 4. (Vltn. Rule # 11). Failure to report to parole officer as directed. 5. (Vltn. Rule # 15). Failure to follow the directives of parole officer. . Plaintiff earlier brought his suit before making a request for such a hearing to the Missouri authorities. It was dismissed as premature. Thereafter Cooper made the request for a hearing to the Missouri Board of Parole and was refused; at that time, petitioner renewed his suit" }, { "docid": "2920763", "title": "", "text": "appellant if he wished to have a local revocation hearing or would prefer to have the revocation hearing in a federal penal institution. Appellant was told at this time that he could retain counsel and call witnesses but that he must do both at his own expense. Appellant stated that he was unable to retain counsel or call witnesses but that he wanted both and would not sign any waivers as to his rights to either. Appellant was later returned to the United States Penitentiary at Leavenworth, and shortly thereafter he was informed that a member of the Board of Parole was at the penitentiary and that he would be given a revocation hearing. Appellant was advised that he could be represented by counsel and call witnesses provided that he would pay for them. Appellant again stated that he was unable to retain counsel or pay for witnesses and again refused to waive any rights to counsel or to call witnesses. • A revocation hearing was held at the penitentiary by William F. Howland, Jr., a member of the Board of Parole. In the absence of an attorney, Earnest refused to comment on the alleged violations of the conditions of his mandatory release. Earnest indicated that he was not guilty of the violations with which he was being, charged although he did concede that he was arrested outside of the district and thereby admitted a violation of a condition of his release. By order dated the same day as the revocation hearing and signed by William F. Howland, Jr. and Walter Dunbar, an other member of the Board, Earnest’s re-mandatory release was revoked. The appellant was before this court earlier in Earnest v. Willingham, 406 F.2d 681 (10th Cir.), where this court held that the United States Board of Parole could not constitutionally permit an attorney to appear at a revocation hearing for those financially able to retain one, without providing counsel for the indigent parolee. The case was remanded to the District Court. On remand, the District Court held a full evidentiary hearing at which appellant appeared and admitted" }, { "docid": "15124340", "title": "", "text": "and cannot be interpreted as an absolute bar to any attempt to demonstrate mitigative factors. At most, Holland's statement may mean that a parolee could be required to make a greater showing of his interest in procuring the testimony he seeks. Any other reading would disregard Holland's fuller explanation of the due process rights of a parolee in the context of mitigation. . We note that Williams received a notice of his rights in the revocation process, which included the right [t]o be heard on the alleged violation(s). You may have witnesses appear on your behalf, present letters, affidavits, and statements supporting your claims or defenses. You may examine and confront persons giving adverse information unless the Hearing Officer finds good cause for not allowing such to occur. You may request that subpoenas be issued for witnesses. In his letter to the Hearing Section of the Parole Board, Williams requested the appointment of counsel, in part, so that he would be afforded all his rights \"such as subpoenaing [the parole officer] and her files so that they may be examined and cross examined.” In light of this communication, Williams cannot be faulted for not' having secured a subpoena, particularly after he was informed that he could request that subpoenas be issued for witnesses. Moreover, we are reluctant to hinge the right of confrontation on the existence of a subpoena where the witness sought for testimony is the state-employed parole officer and a pre-hearing request is made for her attendance. . The respondent’s reliance on Kindred and McCormick is misplaced. Those cases, as well as United States v. Grandlund, 71 F.3d 507 (5th Cir.1995), involved revocations based on lab reports that detected the use of a controlled substance. We found that the government's interest in avoiding the significant expense of procuring the testimony of lab employees outweighed the parolee’s interest in confrontation and cross-examination, particularly in light of the circumstances and the indicia of reliability of the hearsay at issue in those cases. Williams’s interest in confrontation was arguably stronger than the interests pressed in Kindred, McCormick, and Grand-lund. More importantly," } ]
259270
"charges in the NTA that are not grounds for removal but are grounds for denial of relief from removal.” Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir.2006). Therefore, even when the NTA fails to include a reference to an aggravated felony, that omission would not bar the government from introducing such a conviction later in an immigration proceeding as a basis for the IJ to find an alien ineligible for voluntary departure. . We note that ""based on a review of Arizona’s caselaw, it is clear that Arizona’s definition of attempt is coextensive with the federal definition.” United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.2008) (reviewing several Arizona cases that pre-date Gomez’s conviction and deportation); see also REDACTED Here, Gomez was convicted of ""attempted sexual conduct with a minor under the age of 15” in violation of Arizona Revised Statute sections 13-1001 and 13-1405. Because Arizona’s attempt statute (§ 13-1001) is ""coextensive with the federal definition,” Taylor, 529 F.3d at 1238, ""we are satisfied that [he] was convicted of the generic elements of attempt,” Gomez-Hernandez, 680 F.3d at 1175. Therefore, we only address the definition of the substantive crime set forth in § 13-1405. .United States v. Leon-Paz, 340 F.3d 1003 (9th Cir.2003) presents the only example of the ""narrow circumstances [where] we [have] applied subsequent precedent in reviewing a deportation order.” United States v. Lopez-Velasquez, 629 F.3d 894, 899 (9th Cir.2010) (en banc); see United States v."
[ { "docid": "14719917", "title": "", "text": "agreement, the transcript of a plea proceeding, or the judgment____” Id. (internal quotation marks omitted). Two related Taylor analyses are required to determine whether a prior conviction for an attempt offense qualifies as a crime of violence. See United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106— 07 (9th Cir.2009); Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir.2008). Specifically, we must determine whether the defendant’s conviction establishes that he committed the elements of the generic definition of “attempt” and that the underlying offense he attempted meets the generic definition of that offense. See Saavedra-Velazquez, 578 F.3d at 1106-07; Rebilas, 527 F.3d at 787. Ill Gomez-Hernandez challenges the district court’s determination that his prior Arizona conviction for attempted aggravated assault constitutes a crime of violence under the Guidelines. We conduct the two Taylor analyses: first, we ask whether Gomez-Hernandez’s attempted aggravated assault conviction corresponds to the generic definition of attempt; second, we ask whether the offense he attempted corresponds to the generic definition of aggravated assault. A We have previously determined that Arizona’s attempt statute and the generic definition of “attempt” are, in general, coextensive. See United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008). Although our prior analysis was based on Arizona case law as of June 2008, see id., we are not aware of any subsequent Arizona decision deviating from the generic definition of attempt. See id. (“At common law an attempt was defined as the specific intent to engage in criminal conduct and an overt act which is a substantial step towards committing the crime.” (internal quotation marks and alterations omitted)). Thus, we are satisfied that Gomez-Hernandez was convicted of the generic elements of attempt. B We turn to the second Taylor inquiry: was Gomez-Hernandez convicted of attempting to commit the elements of generic aggravated assault (i.e., the underlying offense)? Gomez-Hernandez argues that he was not because (1) completed aggravated assault under Arizona law encompasses a lesser mens rea than generic aggravated assault; and (2) Arizona’s aggravated assault statute criminalizes nonviolent behavior. We address and reject each of Gomez-Hernandez’s arguments in turn. 1 There is no dispute" } ]
[ { "docid": "3475908", "title": "", "text": "the elements of “sexual abuse of a minor,” these three elements were sufficient to fall categorically within the then-existing BIA and Ninth Circuit definition. The “sexual intercourse or oral sexual contact” element of § 13-1405 clearly constitutes “sexually explicit conduct.” See In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 995. And a victim under fifteen years of age fits squarely within the definition of “minor.” Id. at 995-97; Afridi 442 F.3d at 1217. Under the logic of In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 995-96, and Pereira-Salmeron, 337 F.3d at 1155, such conduct with a victim under fifteen years of age constituted “abuse” at the time. Thus, under the governing case law at the time of his deportation, Gomez’s crime would have categorically qualified as “sexual abuse of a minor” for the purposes of 8 U.S.C. § 1101(a)(43)(A), and he would not have been eligible for voluntary departure. Because Gomez was not prejudiced by the due process and regulatory violations that occurred in his 2006 removal proceeding, we affirm the district court’s denial of his motion to dismiss. B. Sentencing We next determine whether, under current law, Gomez’s § 13-1405 conviction constitutes a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii). Because our case law has evolved since 2006, we reach the opposite conclusion from what we concluded in analyzing the prejudice inquiry. That is, we hold that Arizona Revised Statute section 13-1405 (including the “under fifteen” version) is not categorically a “crime of violence” because it is missing an element of the generic offenses of sexual abuse of a minor and statutory rape, and the district court’s finding to the contrary was reversible error. Thus, we vacate Gomez’s sentence and remand for resentencing. The United States Sentencing Guidelines provide for a sixteen-level enhancement where the defendant was previously deported after a conviction for “a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). The commentary defines “crime of violence” as “any of the following offenses under federal, state, or local law: ... statutory rape, [or] sexual abuse of a minor.” Id. cmt. l(B)(iii). Attempt con victions for" }, { "docid": "23655161", "title": "", "text": "previously held “that the Arizona and federal definitions of attempt are coextensive,” United States v. Taylor, 529 F.3d 1232, 1234 (9th Cir.2008), but argues that an intervening unpublished Arizona state court of appeals opinion, State v. Garcia, No. 2 CA-CR 2008-0020, 2009 WL 104639 (Ariz.Ct.App. Jan. 15, 2009), warrants revisiting that decision. Second, he argues that, under the modified categorical approach, the government failed to prove that his Arizona conviction was for a substance listed in the Controlled Substances Act. See S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir.2010); see also 21 U.S.C. § 802(6); 21 C.F.R. §§ 1308.11-15. We address each argument in turn. A. Before we can reach the merits of Juarez Alvarado’s attempt argument, we must determine whether it was properly exhausted. Generally, 8 U.S.C. § 1252(d)(1) “mandates exhaustion and therefore ... bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We conclude that because Juarez Alvarado did not sufficiently exhaust his argument that the Arizona definition of attempt is categorically broader than the federal generic definition, we lack jurisdiction to reach this issue. Juarez Alvarado contends that he sufficiently exhausted his attempt argument by arguing that his state law convic tion was not categorically a removable controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). Although “[a] petitioner need not ... raise [his] precise argument” in administrative proceedings, Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008), he “cannot satisfy the exhaustion requirement by making a general challenge to the IJ’s decision, but, rather, must specify which issues form the basis of the appeal,” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004). Juarez Alvarado’s only argument in his brief before the BIA concerned the sufficiency of the government’s proof that the controlled substance involved in his conviction was methamphetamine. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam) (holding that when a petitioner files a brief before the BIA, he is deemed to have exhausted only the issues raised" }, { "docid": "3475936", "title": "", "text": "that Congress did not cross-reference any federal substantive offense in listing 'sexual abuse of a minor’ as an aggravated felony,” and therefore did not limit the term to a single federal definition. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir.2003). . We note that the analysis for defining substantive offenses enumerated in § 1101(a)(43) — such as \"rape” or \"sexual abuse of a minor” — “is the same for a 'crime of violence’ in the sentencing context, U.S.S.G. § 2L1.2.” United States v. Valencia-Barragan, 608 F.3d 1103, 1107 n. 1 (9th Cir. 2010) (citing Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 n. 1 (9th Cir.2009), and United States v. Medina-Villa, 567 F.3d 507, 511-12 (9th Cir.2009)); see also United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003) (relying in the context of criminal sentencing upon cases defining \"sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A)). Therefore, the analysis in sentencing cases such as Pereira-Salmeron is directly applicable to our analysis here. . We have said that Estrada-Espinoza, which was not decided until 2008, \"sharply departed from” our prior precedent defining \"sexual abuse of a minor” for purposes of § 1101(a)(43)(A). Vidal-Mendoza, 705 F.3d at 1020. We evaluate our current law, including Estrada-Espinoza, infra at III.B. . The government argues only that Gomez’s Arizona conviction qualifies as either “statutory rape” or as \"sexual abuse of a minor.” . As we discussed supra at note 13, however, we may consider that Gomez was convicted pursuant to the \"under fifteen” version of the statute. See Descamps, 133 S.Ct. at 2283-85 (reiterating that courts may consider a limited group of documents when the statute of conviction is \" 'divisible' — i.e., comprises multiple, alternative versions of the crime”). Although we ultimately conclude that § 13— 1405 is missing elements of the relevant generic offenses, the provisions set forth in § 13-1405 B are indeed \"divisible” as to the age of the victim because the statute defines the victim as being either \"at least fifteen” or \"under fifteen.” . Although dicta in Estrada-Espinoza states that offenses bearing the title \"" }, { "docid": "3475930", "title": "", "text": "intelligently; (7) A statement that the alien will accept a written order for his or her deportation, exclusion or removal as a final disposition of the proceedings; and (8) A waiver of appeal of the written order of deportation or removal. . We are left to assume that the stipulation was signed subsequent to the demand for a prompt hearing (which appears on the NTA) and that the IJ inferred that the stipulation was controlling. . We do not purport to set forth an exhaustive list of what would be necessary or sufficient to comply with this requirement in every case. The gravamen of our holding is that an IJ must have before him a sufficient record on which to determine that an alien's waiver of rights is \"voluntary, knowing, and intelligent.” 8 C.F.R. § 1003.25(b). . Gomez also argues that his Arizona conviction is irrelevant because it was not included on the revised NTA that formed the basis for his deportation. This court has held, however, “that due process does not require inclusion of charges in the NTA that are not grounds for removal but are grounds for denial of relief from removal.” Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir.2006). Therefore, even when the NTA fails to include a reference to an aggravated felony, that omission would not bar the government from introducing such a conviction later in an immigration proceeding as a basis for the IJ to find an alien ineligible for voluntary departure. . We note that \"based on a review of Arizona’s caselaw, it is clear that Arizona’s definition of attempt is coextensive with the federal definition.” United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.2008) (reviewing several Arizona cases that pre-date Gomez’s conviction and deportation); see also United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir.2012). Here, Gomez was convicted of \"attempted sexual conduct with a minor under the age of 15” in violation of Arizona Revised Statute sections 13-1001 and 13-1405. Because Arizona’s attempt statute (§ 13-1001) is \"coextensive with the federal definition,” Taylor, 529 F.3d at 1238, \"we are" }, { "docid": "14139544", "title": "", "text": "for review of the Board of Immigration Appeals’ (“BIA”) decision denying petitioner’s motion for reconsideration of the BIA’s earlier holding that petitioner’s conviction for two counts of “attempted public sexual indecency to a minor” under Arizona Revised Statutes (“ARS”) §§ 13-1001 and 13-1403(B) constituted sexual abuse of a minor and attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U). As such, petitioner was found by the BIA to be removable as an aggravated felon under 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). Petitioner was ordered removed and is in custody awaiting removal. We grant the petition for review, and hold that Arizona’s statutory definition of attempted public sexual indecency to a minor under ARS §§ 13-1001 and 13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U). See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Because Rebilas has raised a colorable legal question as to whether his conviction constitutes an aggravated felony, we have jurisdiction under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), to resolve the issue. Parrilla v. Gonzales, 414 F.3d 1038, 1040-41 (9th Cir.2005). We review the BIA’s denial of a motion to reconsider for abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we review the BIA’s determination of issues of law de novo, deferring to the BIA’s interpretation of an immigration statute where that interpretation is “based on a permissible construction of the statute.” Parrilla, 414 F.3d at 1041. This includes the definition of “sexual abuse of a minor” for purposes of 8 U.S.C. § 1101(a)(43)(A) and (U). Id. Under the Taylor categorical approach, this court must look to “the ordinary case” that is prosecuted by the state, not some extreme hypothetical. James v. United States, — U.S. -, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007). Here, there was no evidence submitted, nor cases cited, about what types of conduct are ordinarily prosecuted under ARS § 13-1403(B). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct." }, { "docid": "3475934", "title": "", "text": "and the government does not so concede, we look to the law as it existed at the time of the deportation proceedings to determine whether an alien was prejudiced by the IJ’s due process violations. Vidal-Mendoza, 705 F.3d at 1017-19; Lopez-Velasquez, 629 F.3d at 900-01. . Gomez’s statute of conviction provides: \"A person commits sexual conduct with a minor by [1] intentionally or knowingly [2] engaging in sexual intercourse or oral sexual contact with [3] any person who is under eighteen years of age.” Ariz.Rev.Stat. § 13-1405 A. \"Sexual conduct with a minor who is under fifteen years of age is a class 2 felony-\"Id. § 13-1405 B. Subsection B also criminalizes sexual conduct with minors who are “at least fifteen years of age” if certain additional factors not at issue here are present. See id. Gomez argues that we should only look to the statutory language in subsection A. We disagree. Gomez was indicted for and convicted of violating Arizona Revised Statutes section 13-1405 B. Therefore, our analysis is limited to that provision. Section 13-1405 B defines the victim as being either \"at least fifteen” or \"under fifteen.” Consequently, it is divisible with respect to the age of the victim, and, under the governing law in 2006, we may consider the indictment and plea agreement’s clear language showing that Gomez was charged with sexual conduct with \"a minor under the age of fifteen.” See Shepard v. United States, 544 U.S. 13, 16, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (holding that a court determining the character of an underlying crime using the modified categorical approach may consider, inter alia, the \"charging document” and \"written plea agreement”); see also Descamps, 133 S.Ct. at 2283-85 (describing that Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) permitted courts to review a limited group of documents when the statute of conviction is \" ‘divisible’ — i.e., comprises multiple, alternative versions of the crime”). Gomez’s indictment and judgment allege that he was convicted of the “under fifteen” version of § 13-140 5B. .We also “pointed out" }, { "docid": "3475925", "title": "", "text": "have imposed absent the enhancement and imposed a sentence that was above the Guidelines range absent the enhancement. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n. 5 (9th Cir.2011) (noting that a Guidelines calculation error may be harmless if one of four nonexhaustive factors is satisfied, including if the district court “chooses a within-Guidelines sentence that falls within ... the correct Guidelines range”); see also United States v. Acosta-Chavez, 727 F.3d 903, 909-10 (9th Cir.2013). IV. CONCLUSION In sum, we hold that the IJ violated an immigration regulation designed to protect an alien’s right to judicial review and that Gomez was denied due process in his 2006 removal proceedings, but that these violations were harmless in light of his ineligibility for relief from removal. We therefore affirm the denial of his motion to dismiss the indictment. We further hold that Gomez’s conviction under Arizona Revised Statute section 13-1405 did not constitute a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii), and therefore the district court erred in applying a sixteen-level sentencing enhancement. Thus, we vacate Gomez’s sentence and remand for resentencing. AFFIRMED in part and VACATED in part, and REMANDED. . 8 U.S.C. § 1326(a) provides that \"any alien who — (1) has been denied admission, excluded, deported, or removed ... and thereafter (2) enters, attempts to enter, or is at any time found in, the United States [barring some exceptions] ... shall be fined under Title 18, or imprisoned not more than 2 years [subject to enhanced penalties under § 1326(b) ], or both.” We have recognized that \"the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ('IIRIRA') amended the immigration statutes so as to eliminate the previous legal distinction between deportation, removal and exclusion, merging all of these proceedings into a broader category entitled 'removal proceedings.’ ” United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir.1999) (footnote omitted) (citing United States v. Pantin, 155 F.3d 91, 92 (2d Cir.1998)). We refer to Gomez's \"removal\" proceedings, though we note that 8 U.S.C. § 1326(d) and other cases we cite sometimes refer to \"deportation”" }, { "docid": "2306980", "title": "", "text": "their duty to inform. Id. at 900 (quoting Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir.1989)); see also United States v. Moriel-Luna, 585 F.3d 1191, 1198 (9th Cir.2009) (“[0]ur precedent does not require that an IJ act creatively to advise an immigrant of ways in which his legal prospects at forestalling deportation might improve with fundamental changes in his status.”). Finally, Lopez-Velasquez also indicated a “narrow exception[ ]” to the general principle that the IJ need not anticipate post-removal changes in the law. Lopez-Velasquez, 629 F.3d at 895. We provided only one example of such “narrow circumstances” where we have “applied subsequent precedent in reviewing a deportation order” under § 1326(d): our decision in United States v. Leon-Paz, 340 F.3d 1003 (9th Cir.2003). Leonr-Paz also involved an alien’s collateral challenge to his removal order on the ground that the IJ failed to inform him of his “apparent eligibility” for discretionary relief under § 212(c). 340 F.3d at 1005. At the time of his removal hearing, Congress had changed the law to limit the availability of § 212(c) relief for aliens convicted of aggravated felonies, but we had not yet weighed in on whether these statutory changes were applicable retroactively to aliens like Leon-Paz. See id. at 1006-07. Shortly after Leon-Paz’s removal hearing, the Supreme Court held that these changes applied prospectively only. INS v. St Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); see also Magana-Pizano v. INS, 200 F.3d 603, 611 (9th Cir.1999). St. Cyr made clear that the statutory changes regarding § 212(c) did not apply to Leon-Paz, and that he had been apparently eligible for such relief at the time of his removal hearing. See Leon-Paz, 340 F.3d at 1006. Accordingly, we determined that in these “narrow circumstances,” subsequent precedent required us to conclude that the IJ committed an error of law by failing to inform Leon-Paz of his apparent eligibility for relief. Lopez-Velasquez, 629 F.3d at 899; see also Ubaldo-Figueroa, 364 F.3d at 1050-51 (applying St. Cyr to hold that an IJ failed to inform an alien of his “apparent eligibility”" }, { "docid": "3475875", "title": "", "text": "denied his right to appeal the removal order, and (2) the Immigration Judge (“U”) violated 8 C.F.R. § 1003.25(b) by finding Gomez’s waiver of rights “voluntary, knowing, and intelligent” on the basis of an insufficient record. Nonetheless, we affirm Gomez’s § 1326 conviction because the violations were harmless given that Gomez was ineligible for voluntary departure at the time of the 2006 proceeding. Gomez also challenges the district court’s imposition of a sixteen-level sentencing enhancement. He argues that his 2004 conviction for sexual conduct with a minor under Arizona Revised Statute section 13-1405 does not constitute a “crime of violence” as defined by United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(l)(A)(ii). We agree. We hold that § 13-1405, including the version for offenses against victims “under fifteen,” does not categorically meet the generic definition of “sexual abuse of a minor” or of “statutory rape.” After Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we no longer analyze a statute missing an element of a generic offense, as here, under the modified categorical approach. Thus, we vacate Gomez’s sentence and remand for re-sentencing. I. BACKGROUND A. In January 2004, Gomez was indicted on three counts of violating Arizona Revised Statute section 13-1405 for sexual conduct with a minor who was under the age of fifteen. Count one charged Gomez with digitally penetrating the victim, and Counts two and three charged him with having sexual intercourse with her. In September 2004, Gomez signed a plea agreement, pleading guilty to two counts of “Attempted Sexual Conduct with a Minor Under the Age of 15” in violation of § 13-1001 (attempt) and § 13-1405 (sexual conduct with a minor). In November 2004, Gomez was sentenced to a term of imprisonment, not to be released until January 16, 2006. On January 17, 2006, the immigration authorities served Gomez, who was in Immigration and Customs Enforcement’s (“ICE”) custody, with a Notice to Appear (“NTA”). Gomez signed and returned a “request for prompt hearing.” The NTA included the allegation that he had been convicted of the § 13-1405 offenses. ICE transferred" }, { "docid": "3475876", "title": "", "text": "the modified categorical approach. Thus, we vacate Gomez’s sentence and remand for re-sentencing. I. BACKGROUND A. In January 2004, Gomez was indicted on three counts of violating Arizona Revised Statute section 13-1405 for sexual conduct with a minor who was under the age of fifteen. Count one charged Gomez with digitally penetrating the victim, and Counts two and three charged him with having sexual intercourse with her. In September 2004, Gomez signed a plea agreement, pleading guilty to two counts of “Attempted Sexual Conduct with a Minor Under the Age of 15” in violation of § 13-1001 (attempt) and § 13-1405 (sexual conduct with a minor). In November 2004, Gomez was sentenced to a term of imprisonment, not to be released until January 16, 2006. On January 17, 2006, the immigration authorities served Gomez, who was in Immigration and Customs Enforcement’s (“ICE”) custody, with a Notice to Appear (“NTA”). Gomez signed and returned a “request for prompt hearing.” The NTA included the allegation that he had been convicted of the § 13-1405 offenses. ICE transferred Gomez to Eloy Detention Center where he received, on January 19, 2006, a revised NTA that omitted any reference to his past conviction. Gomez again signed a “request for prompt hearing.” While Gomez was in a cell with other aliens, an immigration official read to them en masse a Stipulated Removal form in Spanish. Gomez does not remember whether he had a copy of the form when it was read to the group. After the en masse reading, Gomez met individually with an immigration officer who told Gomez that he could be removed immediately if he signed the form. Gomez claims that during the individual meeting, “the form was not reviewed again, and [he] did not read the form.” The whole process lasted less than forty-five minutes. Gomez signed the preprinted form, which contained both English and Spanish statements waiving Gomez’s rights to counsel, ¶ 4, to a hearing before an IJ, ¶ 5, to any form of relief (including voluntary departure), ¶ 8, and to appeal, ¶ 13. Without a hearing, the IJ issued" }, { "docid": "3475874", "title": "", "text": "PAEZ, Circuit Judge: ORDER The opinion filed on October 7, 2013 and reported at 732 F.3d 971 is withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. It is replaced by the new opinion filed concurrently with this order. With the withdrawal of the prior opinion, the Appellant’s Petition for Panel Rehearing and Rehearing En Banc is denied as moot. A petition for rehearing may be filed in response to the new opinion as provided by Federal Rules of Appellate Procedure 35 and 40. OPINION PAEZ, Circuit Judge: Faustino Gomez appeals the district court’s denial of his motion to dismiss the indictment charging him with illegal reentry under 8 U.S.C. § 1326. Gomez argues that his underlying 2006 removal was invalid because the Stipulated removal proceeding violated his right to due process and denied him an opportunity to seek voluntary departure. We hold that the removal was invalid for two independent reasons: (1) the stipulated removal proceeding violated Gomez’s right to due process because he was denied his right to appeal the removal order, and (2) the Immigration Judge (“U”) violated 8 C.F.R. § 1003.25(b) by finding Gomez’s waiver of rights “voluntary, knowing, and intelligent” on the basis of an insufficient record. Nonetheless, we affirm Gomez’s § 1326 conviction because the violations were harmless given that Gomez was ineligible for voluntary departure at the time of the 2006 proceeding. Gomez also challenges the district court’s imposition of a sixteen-level sentencing enhancement. He argues that his 2004 conviction for sexual conduct with a minor under Arizona Revised Statute section 13-1405 does not constitute a “crime of violence” as defined by United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(l)(A)(ii). We agree. We hold that § 13-1405, including the version for offenses against victims “under fifteen,” does not categorically meet the generic definition of “sexual abuse of a minor” or of “statutory rape.” After Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we no longer analyze a statute missing an element of a generic offense, as here, under" }, { "docid": "3475903", "title": "", "text": "Gomez argues that Vidal-Mendoza and Lopez-Velasquez are inapplicable to our prejudice inquiry here. He asserts that those cases dealt only with our due process inquiry and that we must look to current case law when deciding prejudice. We read our case law more broadly. Gomez offers no persuasive authority or logic on which to distinguish our reasoning in Vidal-Mendoza and Lopez-Velasquez when deciding prejudice. Therefore, we must decide whether Gomez’s conviction for “attempted sexual conduct with a minor under the age of 15” in violation of Arizona Revised Statute section 13-1405 qualified as an “aggravated felony,” 8 U.S.C. § 1101(a)(43), at the time he was ordered deported in January 2006. We conclude that Gomez’s conviction would have qualified as “sexual abuse of a minor,” defined as an aggravated felony under § 1101(a)(43)(A). We first defined the term ‘sexual abuse of a minor’ for purposes of § 1101(a)(43)(A) in United States v. Baron-Medina, 187 F.3d 1144[, 1146-47] (9th Cir.1999), where we applied the ‘ordinary, contemporary, and common meaning’ of ‘sexual abuse of a minor,’ and concluded that any ‘use of young children for the gratification of sexual desires constitutes an abuse’ because the ‘child [is] too young to understand the nature of [defendant’s] ... advances.’ Vidal-Mendoza, 705 F.3d at 1019 (second and third alterations in original). The statute at issue in Baron-Medina criminal ized “the touching of an underage child’s body ... with a sexual intent,” where the child was under fourteen years of age. 187 F.3d at 1145, 1147; accord Cedano-Viera, 324 F.3d at 1065-66 & n. 4. We later held that a conviction under a Virginia statute criminalizing intercourse with “a child ... under fifteen years of age” constituted “sexual abuse of a minor” in the sentencing context where the defendant was twenty-six years old and the victim was thirteen years old. United States v. Pereira-Salmeron, 337 F.3d 1148, 1155 (9th Cir.2003) (alteration in original). . The Board of Immigration Appeals (“BIA”) precedent also guides our conclusion. In In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A.1999), the BIA broadly defined “sexual abuse of a minor” to exceed" }, { "docid": "3475932", "title": "", "text": "satisfied that [he] was convicted of the generic elements of attempt,” Gomez-Hernandez, 680 F.3d at 1175. Therefore, we only address the definition of the substantive crime set forth in § 13-1405. .United States v. Leon-Paz, 340 F.3d 1003 (9th Cir.2003) presents the only example of the \"narrow circumstances [where] we [have] applied subsequent precedent in reviewing a deportation order.” United States v. Lopez-Velasquez, 629 F.3d 894, 899 (9th Cir.2010) (en banc); see United States v. Vidal-Mendoza, 705 F.3d 1012, 1017 (9th Cir.2013). Leon-Paz [] involved an alien's collateral challenge to his removal order on the ground that the IJ failed to inform him of his \"apparent eligibility” for discretionary relief under § 212(c). 340 F.3d at 1005. At the time of his removal hearing, Congress had changed the law to limit the availability of § 212(c) relief for aliens convicted of aggravated felonies, but we had not yet weighed in on whether these statutory changes were applicable retroactively to aliens like Leon-Paz. See id. at 1006-07. Shortly after Leon-Paz’s removal hearing, the Supreme Court held that these changes applied prospectively only. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Vidal-Mendoza, 705 F.3d at 1017-18. This situation is not presented here. Rather, as in Vidal-Mendoza and Lopez-Velasquez, “the post-removal precedent ... created a new, previously unavailable, possibility of relief by making a 'deviation' from 'longstanding Ninth Circuit and BIA precedent.’ ” Vidal-Mendoza, 705 F.3d at 1018 (quoting Lopez-Velasquez, 629 F.3d at 898). We evaluate this new precedent with respect to Gomez’s sentencing arguments, infra at III.B. . United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir.2006), is inapposite. It concerned whether a Supreme Court case decided after Camacho-Lopez’s deportation proceedings was nonetheless applicable on collateral review to determine whether he was subject to removal as charged — not, as in this case, whether, although removable, he was entitled to discretionary relief. Moreover, the government in Camacho-Lopez conceded that the new precedent should be retroactively applied to answer the re-movability question. Id. at 930. Where, as here, the case concerns relief from removal, not removability," }, { "docid": "3475933", "title": "", "text": "that these changes applied prospectively only. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Vidal-Mendoza, 705 F.3d at 1017-18. This situation is not presented here. Rather, as in Vidal-Mendoza and Lopez-Velasquez, “the post-removal precedent ... created a new, previously unavailable, possibility of relief by making a 'deviation' from 'longstanding Ninth Circuit and BIA precedent.’ ” Vidal-Mendoza, 705 F.3d at 1018 (quoting Lopez-Velasquez, 629 F.3d at 898). We evaluate this new precedent with respect to Gomez’s sentencing arguments, infra at III.B. . United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir.2006), is inapposite. It concerned whether a Supreme Court case decided after Camacho-Lopez’s deportation proceedings was nonetheless applicable on collateral review to determine whether he was subject to removal as charged — not, as in this case, whether, although removable, he was entitled to discretionary relief. Moreover, the government in Camacho-Lopez conceded that the new precedent should be retroactively applied to answer the re-movability question. Id. at 930. Where, as here, the case concerns relief from removal, not removability, and the government does not so concede, we look to the law as it existed at the time of the deportation proceedings to determine whether an alien was prejudiced by the IJ’s due process violations. Vidal-Mendoza, 705 F.3d at 1017-19; Lopez-Velasquez, 629 F.3d at 900-01. . Gomez’s statute of conviction provides: \"A person commits sexual conduct with a minor by [1] intentionally or knowingly [2] engaging in sexual intercourse or oral sexual contact with [3] any person who is under eighteen years of age.” Ariz.Rev.Stat. § 13-1405 A. \"Sexual conduct with a minor who is under fifteen years of age is a class 2 felony-\"Id. § 13-1405 B. Subsection B also criminalizes sexual conduct with minors who are “at least fifteen years of age” if certain additional factors not at issue here are present. See id. Gomez argues that we should only look to the statutory language in subsection A. We disagree. Gomez was indicted for and convicted of violating Arizona Revised Statutes section 13-1405 B. Therefore, our analysis is limited to that provision. Section" }, { "docid": "3475902", "title": "", "text": "violations during his removal proceeding because he was eligible for and would have pursued prehearing voluntary departure under 8 U.S.C. § 1229c. The government contends that Gomez was ineligible for voluntary departure because his previous Arizona conviction qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43). Under § 1229c, an alien is generally eligible for voluntary departure so long as he has not been convicted of an “aggravated felony” rendering him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), and is not de-portable for reasons of national security under 8 U.S.C. § 1227(a)(4). Id. § 1229c(b)(l)(C). The “aggravated felony” definition is set forth in 8 U.S.C. § 1101(a)(43) and includes “sexual abuse of a minor,” id. § 1101(a)(43)(A), and “an attempt ... to commit an offense described in this paragraph,” id. § 1101(a)(43)(U). Aside from a narrow exception not presented here, we look to the law at the time of the deportation proceedings to determine whether an alien was eligible for relief from deportation. Vidal-Mendoza, 705 F.3d at 1017-19; Lopez-Velasquez, 629 F.3d at 895, 897, 901. Gomez argues that Vidal-Mendoza and Lopez-Velasquez are inapplicable to our prejudice inquiry here. He asserts that those cases dealt only with our due process inquiry and that we must look to current case law when deciding prejudice. We read our case law more broadly. Gomez offers no persuasive authority or logic on which to distinguish our reasoning in Vidal-Mendoza and Lopez-Velasquez when deciding prejudice. Therefore, we must decide whether Gomez’s conviction for “attempted sexual conduct with a minor under the age of 15” in violation of Arizona Revised Statute section 13-1405 qualified as an “aggravated felony,” 8 U.S.C. § 1101(a)(43), at the time he was ordered deported in January 2006. We conclude that Gomez’s conviction would have qualified as “sexual abuse of a minor,” defined as an aggravated felony under § 1101(a)(43)(A). We first defined the term ‘sexual abuse of a minor’ for purposes of § 1101(a)(43)(A) in United States v. Baron-Medina, 187 F.3d 1144[, 1146-47] (9th Cir.1999), where we applied the ‘ordinary, contemporary, and common meaning’ of ‘sexual abuse of a minor,’ and concluded" }, { "docid": "3211282", "title": "", "text": "McKEOWN, Circuit Judge: We consider here whether Arizona Revised Statutes § 13-1405, which criminalizes sexual conduct with a minor under eighteen years of age, constitutes an aggravated felony for the purposes of immigration law. Because § 13-1405 does not meet the federal generic offense of “sexual abuse of a minor,” we hold that it is not an aggravated felony and grant the petition for review. Jose Ignacio Rivera-Cuartas, a longtime lawful permanent resident from Colombia, was convicted under § 13-1405 for performing oral sex on a sixteen-year-old boy and sentenced to three years probation. In removal proceedings, the immigration judge (“U”) found Rivera deportable for having been convicted of the aggravated felony of “sexual abuse of a minor” as defined at 8 U.S.C. § 1101(a)(43)(A). The Board of Immigration Appeals (“BIA”) affirmed. This case is squarely controlled by two recent decisions that address the generic definition of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A): Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), and United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009). See also Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14 (9th Cir.2009) (reviewing cases). Both cases were decided after briefing was completed in this case. Nonetheless, the application of the framework is straightforward. In Estradar-Espinoza, we explained that, for the purposes of § 1101(a)(43)(A), “Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C. § 2243.” 546 F.3d at 1152. A statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of knowingly engaging in; (2) a sexual act (3) with a minor who is at least twelve but not yet sixteen years of age; and (4) an age difference of at least four years between the defendant and the minor. Id. at 1152, 1158 (citing 18 U.S.C. § 2243). In Medina-Villa, we distinguished Estradar-Espinoza on the ground that 18 U.S.C. § 2243 “encompassed statutory rape crimes only” and therefore was not the only federal generic definition of “sexual abuse of a minor.”" }, { "docid": "3475931", "title": "", "text": "charges in the NTA that are not grounds for removal but are grounds for denial of relief from removal.” Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir.2006). Therefore, even when the NTA fails to include a reference to an aggravated felony, that omission would not bar the government from introducing such a conviction later in an immigration proceeding as a basis for the IJ to find an alien ineligible for voluntary departure. . We note that \"based on a review of Arizona’s caselaw, it is clear that Arizona’s definition of attempt is coextensive with the federal definition.” United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir.2008) (reviewing several Arizona cases that pre-date Gomez’s conviction and deportation); see also United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir.2012). Here, Gomez was convicted of \"attempted sexual conduct with a minor under the age of 15” in violation of Arizona Revised Statute sections 13-1001 and 13-1405. Because Arizona’s attempt statute (§ 13-1001) is \"coextensive with the federal definition,” Taylor, 529 F.3d at 1238, \"we are satisfied that [he] was convicted of the generic elements of attempt,” Gomez-Hernandez, 680 F.3d at 1175. Therefore, we only address the definition of the substantive crime set forth in § 13-1405. .United States v. Leon-Paz, 340 F.3d 1003 (9th Cir.2003) presents the only example of the \"narrow circumstances [where] we [have] applied subsequent precedent in reviewing a deportation order.” United States v. Lopez-Velasquez, 629 F.3d 894, 899 (9th Cir.2010) (en banc); see United States v. Vidal-Mendoza, 705 F.3d 1012, 1017 (9th Cir.2013). Leon-Paz [] involved an alien's collateral challenge to his removal order on the ground that the IJ failed to inform him of his \"apparent eligibility” for discretionary relief under § 212(c). 340 F.3d at 1005. At the time of his removal hearing, Congress had changed the law to limit the availability of § 212(c) relief for aliens convicted of aggravated felonies, but we had not yet weighed in on whether these statutory changes were applicable retroactively to aliens like Leon-Paz. See id. at 1006-07. Shortly after Leon-Paz’s removal hearing, the Supreme Court held" }, { "docid": "23655160", "title": "", "text": "We begin by applying the “categorical approach, examining only the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal.” Id. We next apply a “modified categorical approach” if the state statute of conviction is broader than the generic federal offense and is also “divisible,” meaning that it “comprises multiple, alternative versions of the crime,” at least one of which “correspond[s] to the generic offense.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2284-85, 186 L.Ed.2d 438 (2013). Under the modified categorical approach, we “consider a limited class of judicially noticeable documents to determine whether the applicable alternative ... was the basis of the conviction.” United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1241 (9th Cir.2014). Juarez Alvarado raises two challenges to the IJ’s determination that his conviction for attempted possession of a dangerous drug is a removable controlled substance offense. First, he contends that the Arizona definition of attempt is categorically broader than the federal definition. He acknowledges that we have previously held “that the Arizona and federal definitions of attempt are coextensive,” United States v. Taylor, 529 F.3d 1232, 1234 (9th Cir.2008), but argues that an intervening unpublished Arizona state court of appeals opinion, State v. Garcia, No. 2 CA-CR 2008-0020, 2009 WL 104639 (Ariz.Ct.App. Jan. 15, 2009), warrants revisiting that decision. Second, he argues that, under the modified categorical approach, the government failed to prove that his Arizona conviction was for a substance listed in the Controlled Substances Act. See S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir.2010); see also 21 U.S.C. § 802(6); 21 C.F.R. §§ 1308.11-15. We address each argument in turn. A. Before we can reach the merits of Juarez Alvarado’s attempt argument, we must determine whether it was properly exhausted. Generally, 8 U.S.C. § 1252(d)(1) “mandates exhaustion and therefore ... bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We conclude that because Juarez Alvarado did not sufficiently" }, { "docid": "3475901", "title": "", "text": "his invalid waiver of the right to appeal the deportation order and the IJ’s regulatory violation, Gomez has met the requirements of 8 U.S.C. § 1326(d)(l)-(2) to attack collaterally the validity of his 2006 deportation. We next turn to whether Gomez was prejudiced by these violations. 2. Prejudice As discussed supra, in a collateral attack on the validity of a deportation order the defendant bears the burden of proving prejudice under § 1326(d)(3). See Medina, 236 F.3d at 1032. To establish prejudice in this context, the defendant must show that it was “plausible” that he would have received some form of relief from removal had his rights not been violated in the removal proceedings. See Arrieta, 224 F.3d at 1079. “In order to demonstrate prejudice, [an alien] would also have to show that he is not barred from receiving relief. If he is barred from receiving relief, his claim is not ‘plausible.’” United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir.2003). Gomez argues that he was prejudiced by the due process and regula tory violations during his removal proceeding because he was eligible for and would have pursued prehearing voluntary departure under 8 U.S.C. § 1229c. The government contends that Gomez was ineligible for voluntary departure because his previous Arizona conviction qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43). Under § 1229c, an alien is generally eligible for voluntary departure so long as he has not been convicted of an “aggravated felony” rendering him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), and is not de-portable for reasons of national security under 8 U.S.C. § 1227(a)(4). Id. § 1229c(b)(l)(C). The “aggravated felony” definition is set forth in 8 U.S.C. § 1101(a)(43) and includes “sexual abuse of a minor,” id. § 1101(a)(43)(A), and “an attempt ... to commit an offense described in this paragraph,” id. § 1101(a)(43)(U). Aside from a narrow exception not presented here, we look to the law at the time of the deportation proceedings to determine whether an alien was eligible for relief from deportation. Vidal-Mendoza, 705 F.3d at 1017-19; Lopez-Velasquez, 629 F.3d at 895, 897, 901." }, { "docid": "11833201", "title": "", "text": "conviction for attempted armed robbery, and second, his March 5, 1992 conviction for armed robbery. The pre-sentence report concluded that Taylor qualified as a career offender for purposes of USSG § 4B1.1 because he “(1) was at least eighteen years old at the time he committed the instant offense; (2) the instant offense is a felony crime of violence; and (3) he has at least two prior felony convictions of a crime of violence.” During the sentencing proceedings, Taylor argued that his attempted armed robbery conviction was not a crime of violence. (“Our contention is that Arizona’s general attempt statute is over inclusive for purposes of defining predicate offenses for the career offender guideline.”). The district court followed United States v. Sarbia, 367 F.3d 1079 (9th Cir.2004), and looked to the “applying courts in the state of Arizona” to determine that Arizona’s definition of attempt is coextensive with the federal definition. Therefore, it concluded that Taylor qualified as a career offender. Taylor was resentenced to 235 months of imprisonment, five years of supervised release, $33,694 in restitution, and an assessment of $1,000. Taylor filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). II We review a district court’s interpretation of the USSG, and its determination that a defendant is a career offender, de novo. United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.2003). We review a district court’s application of the USSG to the facts of a case for abuse of discretion. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). A Taylor contends that the district court erred in concluding that Arizona’s attempt statute, Arizona Revised Statutes § 13-1001, did not include conduct beyond the federal definition of attempt. He argues that the district court erred by relying on Arizona intermediate appellate court decisions. Taylor maintains that this court’s decision in Sarbia and the Supreme Court’s decision in James v. United States, — U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), provide that we cannot rely on an intermediate appellate court’s interpretation of its state’s" } ]
181177
Cir.1996) (when evaluating a 12(b)(6) motion, the “issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”) (internal quotation marks and citations omitted). The pleading requirement of scienter is satisfied here because defendants Levy and Galbraith sold significant amounts of QLT shares in August and September 2000, shortly after publication of the alleged exaggeration of the market for Visu-dyne treatment. The trades completed by the individual defendants provided them with concrete benefits; and, as senior QLT corporate officers, they were in position to control the information released to the investing public. Accordingly, the “motive and opportunity” prong of the pleading requirements for scienter is met. See REDACTED Novak, 216 F.3d at 318 (holding that insider sales of stock is a classic instance of “motive and opportunity”). 2. Fourth Quarter 2000 Visudyne Sales Forecasts Plaintiffs have not sufficiently pled that the fourth quarter 2000 Visudyne sales forecasts were false when made. Plaintiffs allege that the optimistic forecasts were clearly false when made in light of two types of information regarding Vi-sudyne known by defendants: delays in Medicare reimbursement approval for Vi-sudyne treatment and a limited demand due to a smaller than publicized market. However, the plaintiffs state this conjecture as an indisputable conclusion but fail to articulate
[ { "docid": "22586274", "title": "", "text": "knew, despite the fact that' their business was cyclical, of a material downward secular trend. It may be that at summary judgment, or even at trial, the defendants demonstrate so profoundly cyclical a business and a strong enough link between normal cycles and the negative information available to them, that a reasonable jury could not find that they violated the securities laws. But any speculation to that effect is inappropriate at the pleadings stage. C. Scienter The Securities Reform Act imposes on plaintiffs the obligation to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2); see also Novak, 216 F.3d at 311 (reaffirming that Second Circuit case law remains the standard after passage of the Act). Plaintiffs can plead scienter by (a) alleging facts demonstrating that defendants had both the motive and an opportunity to commit fraud or (b) otherwise alleging facts to show strong circumstantial evidence of defendants’ conscious misbehavior or recklessness. See Novak, 216 F.3d at 307. 1. Motive and Opportunity Motive is the stimulus that causes a person or entity to act or to fail to act. Such stimulus ordinarily anticipates a concrete benefit defendant would realize by his conduct. Plaintiffs allege that defendant Marchuk was motivated to withhold damaging information about Goosebumps sales and returns so that he could sell his Scholastic stock at a higher price. With respect to opportunity, Marchuk as an officer of Scholastic had access to insider information and thus had an opportunity to commit fraudulent acts. Our focus therefore rests on whether any motive existed for such conduct. Plaintiffs’ complaint alleges that Mar-chuk realized over $1.25 million in gross proceeds from the sale of his stock in defendant Scholastic during the class period. Marchuk sold a total of 19,400 shares — approximately 80 percent of his holdings of Scholastic stock — through trades on December 31, 1996 and January 2, 3, and 7, 1997. Plaintiffs claim that prior to these sales, he had not sold a single share of company stock since April 11,1995. The motive" } ]
[ { "docid": "13898637", "title": "", "text": "year and hopefully grow that to 6 or 700 by 2003. So pretty good growth rates.” (Complaint at ¶ 57-d). QLT revised those forecasts in its December 14, 2000 press release and stated that “fourth quarter demand for Visudyne vials is expected to grow 20 to 25% over Q3[,] which will translate into sales of approximately U.S. $36-38 million,” down from the earlier forecast of $40-50 million sales and 35% growth. (Complaint at ¶ 65; Press Release dated December 14, 2000, attached to Chlapowski Declaration at Exhibit 10). The press release attributed the slower than expected growth to “lack of reimbursements in some countries in Europe and in the U.S. as well as a reduction in revenue caused by the [currency fluctuation].” As noted above, although on December 13, 2000, QLT shares had closed at approximately $40.44 on the NASDAQ, they reached a low of $28.06 on December 14. (Complaint at ¶ 4, ¶ 67). C. Alleged Misrepresentations Regarding HCFA Reimbursement Approval Approval by the Health Care Financing Administration (“HCFA”) or by local Medicare Carrier Medical Directors is required before physicians are permitted to receive Medicare reimbursement for Visu-dyne treatment. In June 2000, the HCFA assigned a temporary billing code for Visu-dyne treatment, known as photodynamic treatment or “PDT,” as an unlisted procedure. (Complaint at ¶ 42). Furthermore, when approval for Visudyne was pending before the U.S. Pharmacopoeia, Visudyne was reimbursed as a supply by Medicare, instead of as a drug, until July 18, 2000. (Complaint at ¶ 43-44). After engaging in extensive discussions with the HCFA, QLT resolved the reimbursement issues on November 8, 2000 when the HCFA released a national coverage policy for PDT and Visudyne reimbursements, which was to take effect on July 1, 2001. (Complaint at ¶ 46-47). During this period, Levy discussed the issue of reimbursements during a conference call with financial analysts. She noted the process of seeking HCFA approval and stated that “[QLT] made progress in Texas, Florida, Ohio-the payment procedures are much clearer. Some of the hiccups that was there in July and August ha[ve] gone away.” (Complaint at ¶ 57-e). On" }, { "docid": "13898651", "title": "", "text": "and for scienter. Sales forecasts are forward-looking statements instead of statements of existing facts. The plaintiffs cannot simply prove the falsity of those forecasts by stating that they ultimately proved erroneous-this would be the essence of a “fraud by hindsight” claim that courts in consistently reject. See Stevelman v. Alias Research Inc., 174 F.3d 79, 85 (2d Cir.1999); Shields, 25 F.3d at 1129. Instead, the plaintiffs must plead specific facts to support a finding that, in view of information possessed by the defendants in October 2000 when they made the initial forecasts, such sales forecasts were clearly inflated. 1. The Market for Visudyne Treatment Defendants contend that the description of the market for Visudyne treatment in QLT’s April 12, 2000 press release is factually correct. The contrary evidence cited in the Complaint, such as lower percentages of eligible patients discussed in research reports, use different definitions of eligibility or suitability and, defendants contend, do not actually prove the falsity of the percentage cited in the press release. A correct statement of fact is not a misrepresentation and cannot, therefore, support a cause of action for securities fraud. The accuracy of the percentage contained in the press release is clearly a question of fact. This Court cannot dismiss the Complaint on this basis because the truth of plaintiffs’ factual allegations is assumed at this stage of litigation. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996) (when evaluating a 12(b)(6) motion, the “issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”) (internal quotation marks and citations omitted). The pleading requirement of scienter is satisfied here because defendants Levy and Galbraith sold significant amounts of QLT shares in August and September 2000, shortly after publication of the alleged exaggeration of the market for Visu-dyne treatment. The trades completed by the individual defendants provided them with concrete benefits; and, as senior QLT corporate officers, they were in position to control the information released to the investing public. Accordingly, the “motive and opportunity” prong of the pleading requirements for scienter" }, { "docid": "13898653", "title": "", "text": "is met. See In re Scholastic Corp. Securities Litigation, 252 F.3d 63, 74-75 (2d Cir.2001) (finding “motive and opportunity” where a corporate officer realized gains from stock sales while withholding information on declining trend of sales); Novak, 216 F.3d at 318 (holding that insider sales of stock is a classic instance of “motive and opportunity”). 2. Fourth Quarter 2000 Visudyne Sales Forecasts Plaintiffs have not sufficiently pled that the fourth quarter 2000 Visudyne sales forecasts were false when made. Plaintiffs allege that the optimistic forecasts were clearly false when made in light of two types of information regarding Vi-sudyne known by defendants: delays in Medicare reimbursement approval for Vi-sudyne treatment and a limited demand due to a smaller than publicized market. However, the plaintiffs state this conjecture as an indisputable conclusion but fail to articulate how possession of such information made it clear to defendants that their initial sales forecasts were erroneous. Without identifying any concrete mechanism through which possession of such information reveals the misleading nature of the sales forecasts in October 2000, a bald assertion of falsity of the initial sales forecasts is deficient. See San Leandro, 75 F.3d 801, 812-813 (2d Cir.1996) (“unsupported general claims of the existence of confidential company sales reports [revealing larger decline in sales] is insufficient to survive a motion to dismiss”); In re IBM, 163 F.3d at 109 (dismissing fraud claim based on forward-looking statement for lack of evidence of its falsity); compare In re Scholastic Corp., 252 F.3d at 70-74 (holding that securities fraud claim against publisher for failure to disclose declining revenue trends had been sufficiently pled because plaintiffs identified link between defendant’s knowledge of specific facts on a higher rate of book returns and lower sales); Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *15 (denying motion to dismiss because plaintiffs specifically identified facts contradicting premises of earnings forecast based on statements of “an ex-Globalstar senior business development manager”). Plaintiffs also fail to plead sufficiently that the initial fourth quarter sales forecasts had been made with scienter. As discussed above, plaintiffs’ chief evidence of scienter" }, { "docid": "13898635", "title": "", "text": "Levy sold 42,000 QLT shares for CN$ 4.65 million. (Complaint at ¶ 53-a, 53-b, 72). B. Alleged Misrepresentations of Fourth Quarter 2000 Visudyne Sales Forecasts Plaintiffs’ allegation also focus on the discrepancy between the expectations allegedly created by a series of statements by QLT and the individual defendants in October of 2000-including initial fourth quarter 2000 Visudyne sales forecasts-on one hand, and the revised sales forecast released by QLT on December 14, 2000, on the other. According to the Complaint, Galbraith was quoted in a Dow Jones News article on October 17, 2000 that “QLT Inc. sees 30-50% growth in Visu-dyne sales for the fourth quarter over the third quarter (of 2000).” (Complaint at ¶ 57-b). Galbraith also expected, according to an October 18, 2000 article in the Globe and Mail, the sales of Visudyne to be “between $40-million and $50-million” for the fourth quarter of 2000. (Complaint at ¶ 60). In addition, defendant Levy allegedly told research analysts during a teleconference: “we just want the $40-50 [million] in sales of Visudyne [in fourth quarter 2000]. We’re comfortable with the 35% quarter-over-quarter growth [from third quarter 2000].” (Complaint at ¶ 57 — d). The Complaint also identifies a number of other allegedly fraudulent statements regarding Visudyne sales. During a conference call with financial analysts on August 1, 2000, Galbraith stated that there was growing demand for Visudyne and that “I don’t think [the second quarter 2000] is going to be a one-quarter blip.” (Complaint at ¶ 50). In an October 11, 2000 press release, QLT included quotes by Levy that Visudyne received “strong endorsement by retinal specialists” and that “we are confident in CIBA Vision’s (QLT’s marketing partner) ability to continue strong growth in sales in the U.S. and rapidly introduce Visudyne in Europe and other markets.... ” (Complaint at ¶ 54). Galbraith echoed those sentiments in a QLT press release accompanying its third quarter 2000 financial results. (Complaint at ¶ 57-a). Galbraith also stat ed during a CNN interview that “the uptick for [Visudyne] looks excellent” and that “[Visudyne would] do about 100 million (U.S. dollars in sales) this" }, { "docid": "13898649", "title": "", "text": "made.” Bombach, 355 F.3d at 172; see also Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *14-15 (“plaintiffs must plead both that defendants made false statements and that they did so with the requisite scienter”) (internal citations omitted). In this case, the Complaint identifies two distinct categories of misrepresentations: exaggeration of existing facts concerning potential market size and intentionally inflated forward-looking sales forecasts (including HCFA reimbursement issues). We will first set forth the standards for pleading falsity and scienter in each context and then analyze those two categories of misrepresentations in that sequence. With respect to defendants’ exaggeration of market potential for Visudyne, the Complaint alleges that defendants knew information that was contrary to the alleged misrepresentations; therefore, “the falsity and scienter [pleading] requirements are essentially combined.” In re Revlon Inc. Securities Litigation, 2001 WL 293820 at *7 (S.D.N.Y., Mar. 27 2001) (citing Rothman, 220 F.3d at 89-90). That is, “if [the Complaint has] sufficiently pled facts to support scienter, [it has] also met the pleading requirements for falsity.” Id. Scienter may be established in one of two ways: (1) “by alleging facts to show that defendants had both motive and opportunity to commit fraud,” or (2) “by alleging facts that constitute strong circumstantial evidence of conscious behavior or recklessness.” Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *15 (quoting Novak, 216 F.3d at 307). As the United States Court of Appeals for the Second Circuit explained in Novak, motive denotes concrete benefits that misrepresentations could create and opportunity entails “the means and the likely prospect of achieving concrete benefits by the means alleged.” 216 F.3d at 307 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1130 (2d Cir.1994)). Reckless conduct, while “harder to identify with ... precision and consistency,” can involve “an egregious refusal to see the obvious, or to investigate the doubtful.” Id. at 308 (quoting Chill v. General Electric Co., 101 F.3d 263, 269 (2d Cir.1996)). The allegedly inflated sales forecasts present a slightly different issue and require an examination into both the adequacy of pleading for falsity" }, { "docid": "13898659", "title": "", "text": "on December 14, 2000. Paragraph 4 states that it reached a low of $28.06 while paragraph 67 marks it as $24. Because both paragraphs describe the drop as 31% from a high of $44.44, this Court assumes the $28.06 figure is correct because it is closer to 69% of $44.44. In either event, the difference between $28.06 and $24 does not alter this Court's legal conclusions. . Defendants also contend that there was no material omission because QLT bore no duty to disclose any alleged problems with obtaining Medicare reimbursement for Visudyne treatment. The Complaint did not specifically allege material omission, but framed the \"reimbursement issue” as a premise for its allegation of defendants' knowledge of falsity of their initial forecasts for fourth quarter 2000 sales figures. (Complaint at ¶ 65) Accordingly, this issue will be addressed in the context of discussion of \"falsity” in section II.D infra. . Plaintiffs take the position that Levy’s statement should be viewed as a statement of a present fact because it is phrased in the present tense. However, this Court views her phrase \"to continue strong growth in sales\" as pertaining to future events. Because Visu-dyne sales grew 22% in the third quarter of 2000, Levy's characterization of such growth as \"strong” is not a clear misstatement. . In light of this Court’s earlier conclusion that defendants' public statements other than the fourth quarter sales forecasts were immaterial, we are only concerned with the forecasts in this section. . For example, after describing fourth quarter forecasts made by defendants Levy and Galbraith, the Complaint simply states \"statements in the foregoing press releases, news report, and conference call were materially false or misleading because defendants knew or recklessly regarded the facts set forth in paragraphs 29 through 47, above.” (Complaint at ¶ 59). . This can be, for example, QLT’s formula for predicting sales based on demand and rate of reimbursement, among other factors, which would enable a trier of fact to determine the accuracy of the initial sales forecasts." }, { "docid": "13898650", "title": "", "text": "may be established in one of two ways: (1) “by alleging facts to show that defendants had both motive and opportunity to commit fraud,” or (2) “by alleging facts that constitute strong circumstantial evidence of conscious behavior or recklessness.” Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *15 (quoting Novak, 216 F.3d at 307). As the United States Court of Appeals for the Second Circuit explained in Novak, motive denotes concrete benefits that misrepresentations could create and opportunity entails “the means and the likely prospect of achieving concrete benefits by the means alleged.” 216 F.3d at 307 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1130 (2d Cir.1994)). Reckless conduct, while “harder to identify with ... precision and consistency,” can involve “an egregious refusal to see the obvious, or to investigate the doubtful.” Id. at 308 (quoting Chill v. General Electric Co., 101 F.3d 263, 269 (2d Cir.1996)). The allegedly inflated sales forecasts present a slightly different issue and require an examination into both the adequacy of pleading for falsity and for scienter. Sales forecasts are forward-looking statements instead of statements of existing facts. The plaintiffs cannot simply prove the falsity of those forecasts by stating that they ultimately proved erroneous-this would be the essence of a “fraud by hindsight” claim that courts in consistently reject. See Stevelman v. Alias Research Inc., 174 F.3d 79, 85 (2d Cir.1999); Shields, 25 F.3d at 1129. Instead, the plaintiffs must plead specific facts to support a finding that, in view of information possessed by the defendants in October 2000 when they made the initial forecasts, such sales forecasts were clearly inflated. 1. The Market for Visudyne Treatment Defendants contend that the description of the market for Visudyne treatment in QLT’s April 12, 2000 press release is factually correct. The contrary evidence cited in the Complaint, such as lower percentages of eligible patients discussed in research reports, use different definitions of eligibility or suitability and, defendants contend, do not actually prove the falsity of the percentage cited in the press release. A correct statement of fact is not a" }, { "docid": "13898656", "title": "", "text": "alleged to violate this title caused the loss which the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-4(b)(4). Here, the plaintiffs must plead the element of loss causation, which links damages they suffered to the alleged exaggeration of the market for Visudyne. They cannot do so. The Second Circuit has analogized the concept of loss causation in securities actions to the notion of proximate cause in torts “because, similar to proximate cause, in order to establish loss causation, a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation.” Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1495 (2d Cir.1992). Thus, if an intervening cause supercedes the effects of an initial misrepresentation, then a Section 10(b) claim fails. See Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 96 (2d Cir.2001) (citing Bastian v. Petren Res. Corp., 892 F.2d 680, 685 (7th Cir.1990)). In this case, plaintiffs seek compensatory damages for losses due to the fall in price of QLT shares on December 14, 2000. The Complaint alleges that the fall was caused by the disclosure of the shortfall in fourth quarter 2000 Visudyne sales forecast. It contains no allegation that the alleged exaggeration of the market for Vi-sudyne treatment directly caused the sharp fall in the price of QLT shares. Insofar as the Complaint alleges the short fall in sales forecast was related to the alleged exaggeration of the Visudyne market, such arguments have already been rejected in part II.D.2 supra. Therefore, the revised fourth quarter sales forecast released on December 14, 2000 was clearly an intervening cause that superceded any direct effect of the alleged exaggeration contained in the April 12, 2000 press release regarding the size of the market for Visudyne treatment. Accordingly, loss causation linking the damages sought by plaintiffs and the alleged exaggeration of market size cannot be shown on the pleadings. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted is granted. Furthermore, even a liberal reading of" }, { "docid": "13898652", "title": "", "text": "misrepresentation and cannot, therefore, support a cause of action for securities fraud. The accuracy of the percentage contained in the press release is clearly a question of fact. This Court cannot dismiss the Complaint on this basis because the truth of plaintiffs’ factual allegations is assumed at this stage of litigation. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996) (when evaluating a 12(b)(6) motion, the “issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”) (internal quotation marks and citations omitted). The pleading requirement of scienter is satisfied here because defendants Levy and Galbraith sold significant amounts of QLT shares in August and September 2000, shortly after publication of the alleged exaggeration of the market for Visu-dyne treatment. The trades completed by the individual defendants provided them with concrete benefits; and, as senior QLT corporate officers, they were in position to control the information released to the investing public. Accordingly, the “motive and opportunity” prong of the pleading requirements for scienter is met. See In re Scholastic Corp. Securities Litigation, 252 F.3d 63, 74-75 (2d Cir.2001) (finding “motive and opportunity” where a corporate officer realized gains from stock sales while withholding information on declining trend of sales); Novak, 216 F.3d at 318 (holding that insider sales of stock is a classic instance of “motive and opportunity”). 2. Fourth Quarter 2000 Visudyne Sales Forecasts Plaintiffs have not sufficiently pled that the fourth quarter 2000 Visudyne sales forecasts were false when made. Plaintiffs allege that the optimistic forecasts were clearly false when made in light of two types of information regarding Vi-sudyne known by defendants: delays in Medicare reimbursement approval for Vi-sudyne treatment and a limited demand due to a smaller than publicized market. However, the plaintiffs state this conjecture as an indisputable conclusion but fail to articulate how possession of such information made it clear to defendants that their initial sales forecasts were erroneous. Without identifying any concrete mechanism through which possession of such information reveals the misleading nature of the sales forecasts in October 2000, a" }, { "docid": "13898657", "title": "", "text": "the fall was caused by the disclosure of the shortfall in fourth quarter 2000 Visudyne sales forecast. It contains no allegation that the alleged exaggeration of the market for Vi-sudyne treatment directly caused the sharp fall in the price of QLT shares. Insofar as the Complaint alleges the short fall in sales forecast was related to the alleged exaggeration of the Visudyne market, such arguments have already been rejected in part II.D.2 supra. Therefore, the revised fourth quarter sales forecast released on December 14, 2000 was clearly an intervening cause that superceded any direct effect of the alleged exaggeration contained in the April 12, 2000 press release regarding the size of the market for Visudyne treatment. Accordingly, loss causation linking the damages sought by plaintiffs and the alleged exaggeration of market size cannot be shown on the pleadings. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted is granted. Furthermore, even a liberal reading of the Complaint does not indicate that a valid claim for securities fraud may be alleged in conformity with the pleading requirements of Rule 9(b) and the PSLRA. Accordingly, the Consolidated Class Action Complaint is hereby dismissed with prejudice. See Van Buskirk v. New York Times Co., 325 F.3d 87, 91-92 (2d Cir.2003); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). SO ORDERED. . Except as otherwise noted, $ denotes U.S. dollars, not Canadian dollars. . Except as otherwise noted, the facts cited in this opinion are undisputed. At this stage of litigation, all the factual allegations in the complaint are accepted as true and all inferences are construed in plaintiffs' favor. See, part II.A, infra. . The Complaint did not attach the article or specify whether this figure was denominated in Canadian or U.S. dollars. Construing the complaint most favorably for plaintiffs, it is assumed to refer to U.S. dollars. . There is a discrepancy between paragraph 4 and paragraph 67 of the Complaint with regard to the low point of QLT share price" }, { "docid": "13898631", "title": "", "text": "its Chief Executive Officer and Chief Financial Officer-individual defendants Dr. Julia Levy and Kenneth Galbraith, respectively-is sued false and misleading information to the public concerning sales projections for Visudyne. Plaintiffs seek compensatory damages for the losses they incurred due to their purchases of QLT shares during the class period, interest, and attorneys’ fees. Defendants have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief may be granted. For the reasons set forth below, that motion is granted. BACKGROUND Visudyne treats symptoms of age-related macular degeneration (“AMD”), a disease of the eye that typically afflicts people over age 65. (Complaint at ¶ 29). There are two types of AMD, “wet” and “dry.” Wet AMD results from leakage of abnormal blood vessels under the macula-the central part of the retina-and can cause vision loss and sometimes blindness. (Complaint at ¶ 30). Wet AMD can be further classified according to the location of the abnormal blood vessels into subfo-veal, juxtafoveal, and extrafoveal CNV forms or according to the pattern of leakage into “occult” or “classic” forms. Id. Visudyne was approved to treat the “predominantly classic subfoveal CNV form of AMD” by the Food and Drug Administration (“FDA”) on April 12, 2000. (Complaint at ¶ 32). Visudyne treatment involves “infusion by doctor of Visudyne, a light-activated drug, followed by the use of a non-thermal laser,” which “activates and temporarily closes the leaking blood vessels.” (Complaint at ¶ 31). A. Alleged Misrepresentations of the Size of the Market for Visudyne Plaintiffs allege that defendants had exaggerated the potential market for Visu-dyne treatment. In an April 12, 2000 press release, QLT described the potential market for Visudyne as follows: Specifically, the FDA approved Visu-dyne therapy for the treatment of AMD in patients with predominantly classic subfoveal choroidal neovascularization (CNV). Medical experts estimate that of the 500,000 new patients that develop wet AMD every year around the world, 40-60% will develop predominantly classic lesions during the progression of their disease. Patients with this condition lose their ability to read, drive and" }, { "docid": "13898654", "title": "", "text": "bald assertion of falsity of the initial sales forecasts is deficient. See San Leandro, 75 F.3d 801, 812-813 (2d Cir.1996) (“unsupported general claims of the existence of confidential company sales reports [revealing larger decline in sales] is insufficient to survive a motion to dismiss”); In re IBM, 163 F.3d at 109 (dismissing fraud claim based on forward-looking statement for lack of evidence of its falsity); compare In re Scholastic Corp., 252 F.3d at 70-74 (holding that securities fraud claim against publisher for failure to disclose declining revenue trends had been sufficiently pled because plaintiffs identified link between defendant’s knowledge of specific facts on a higher rate of book returns and lower sales); Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *15 (denying motion to dismiss because plaintiffs specifically identified facts contradicting premises of earnings forecast based on statements of “an ex-Globalstar senior business development manager”). Plaintiffs also fail to plead sufficiently that the initial fourth quarter sales forecasts had been made with scienter. As discussed above, plaintiffs’ chief evidence of scienter was Levy and Galbraith’s sales of QLT shares in August and September of 2000. (Complaint at ¶ 72). Because the allegedly overoptimistic fourth quarter Vi-sudyne sales forecasts were made in October 2000-after Levy and Galbraith had completed their stock trades-those trades do not bear on defendants’ scienter at the time they made the forecasts. As there is was no credible allegation of circumstantial evidence of knowledge or reckless behavior, this Court need not engage in an analysis of the second prong of the test for scienter. E. Loss Causation Finally, in addition to requirements for falsity and scienter, the Complaint must also plead sufficient facts to establish transaction and loss causation in order to survive a motion to dismiss. See In re Initial Public Offering Securities Litigation, 297 F.Supp.2d 668, 669-670 (S.D.N.Y.2003). The Complaint pleads that transaction causation, also known as reliance, should be presumed under the theory of “fraud on the market.” (Complaint at ¶ 73-74) Pursuant to the PSLRA, plaintiffs “have the burden of proving that the act or omission of the defendant" }, { "docid": "13898648", "title": "", "text": "cautionary language attached to them. More importantly, however, defendants do not aver whether meaningful cautionary language had been included when Levy’s allegedly made the statement “we’re comfortable with the 35% quarter-over-quarter growth” during a research analyst teleconference. This Court cannot infer, on the basis of the other instances of cautionary language QLT included, that such language had been provided in conjunction with Levy’s statement or that it was in fact meaningful and adequate. Accordingly, neither the statutory safe harbor nor the “bespeaks caution” doctrine applies to this and similar specific sales projections. D. False Statements Made with Scienter The Complaint recites the alleged misrepresentations and identifies the source and party or entity making those statements; accordingly, it satisfies the first three prongs of the Rule 9(b) pleading requirements set forth above. See Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *14. As to the fourth requirement-the reasons why the statements were fraudulent>-the plaintiffs must “state with particularity the specific facts in support of [their] belief that [such] statements were false when made.” Bombach, 355 F.3d at 172; see also Globalstar, 2003 WL 22953163 at *5, 2003 U.S. Dist. LEXIS 22496 at *14-15 (“plaintiffs must plead both that defendants made false statements and that they did so with the requisite scienter”) (internal citations omitted). In this case, the Complaint identifies two distinct categories of misrepresentations: exaggeration of existing facts concerning potential market size and intentionally inflated forward-looking sales forecasts (including HCFA reimbursement issues). We will first set forth the standards for pleading falsity and scienter in each context and then analyze those two categories of misrepresentations in that sequence. With respect to defendants’ exaggeration of market potential for Visudyne, the Complaint alleges that defendants knew information that was contrary to the alleged misrepresentations; therefore, “the falsity and scienter [pleading] requirements are essentially combined.” In re Revlon Inc. Securities Litigation, 2001 WL 293820 at *7 (S.D.N.Y., Mar. 27 2001) (citing Rothman, 220 F.3d at 89-90). That is, “if [the Complaint has] sufficiently pled facts to support scienter, [it has] also met the pleading requirements for falsity.” Id. Scienter" }, { "docid": "13898639", "title": "", "text": "November 2 and 10, 2000, QLT publicized the HCFA approval of Visudyne but did not discuss the implications of not having received HCFA approval sooner. (Complaint at ¶ 63-64). Plaintiffs claim that defendants “knew that Visudyne’s market potential was held back by the delay in formulating reimbursement criteria by HCFA,” which made physicians “reluctant to invest in the lasers required to perform the procedure until these reimbursement issues were resolved.” (Complaint at ¶ 52-a, 52 — b). Plaintiffs further allege that defendants “failed to disclose the true impact that the delay between April 2000 and November 2000 [of Medicare reimbursements] had on the demand for Visudyne” during and after they provided the initial forecasts for fourth quarter 2000 sales for Visudyne. (Complaint at ¶ 65). Defendants offer four sets of reasons in support of their motion to dismiss. First, they argue that misrepresentations identified in the Complaint are either immaterial or otherwise protected by the statutory safe harbor of the Private Securities Litigation Reform Act of 1995 or the judicial “bespeaks caution” doctrine. Second, defendants assert that the Complaint fails to plead the falsity of QLT’s initial forecasts for Visudyne sales in fourth quarter 2000 with requisite particularity. Third, they argue that the Complaint fails to plead sufficient facts to support an inference of scienter; i.e., that defendants knew or recklessly disregarded the falsity of their public statements. Finally, defendants assert that the Complaint does not support a finding of loss causation between the alleged misrepresentation of the size of the market for Visudyne treatment and the damages suffered by the plaintiffs due to the fall in the share price of QLT on December 14, 2000. DISCUSSION A. Standard of Review In evaluating a Fed.R.Civ.P. 12(b)(6) motion to dismiss, this Court looks to facts contained in the pleadings, including documents referenced in the Complaint “as well as public disclosure documents required to be, and that have been, filed with the SEC.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000); see also Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir.1991); Cameron v. Church, 253 F.Supp.2d" }, { "docid": "13898633", "title": "", "text": "recognize faces in as little as two months to three months. As the first approved drug therapy for this devastating condition, Visudyne provides new hope to many of the 200,000 Americans who lose their vision from wet AMD every year. (Attached to Chlapowski Declaration at Exhibit 6) According to plaintiffs, the 40-60% figure in the press release greatly exaggerates the prevalence of the forms of AMD suitable for Visudyne treatment. (Complaint at ¶ 36). The actual percentage, plaintiffs claim, is “far less than [QLT] represented.” Id. For example, a survey of retinal specialists conducted by a Merrill Lynch research analyst reported that only 17% to 20% of “patients with wet AMD fit the FDA’s criteria for Visudyne treatment,” and a similar survey contained in a research report by analysts at Leerink Swann & Co. indicated “doctors expected up to 17% of their patients with wet AMD to be eligible to use Visudyne.” Id. Plain tiffs also cite a statement of Dr. Dan Montzka, a retinologist, that only 2% of patients with wet AMD “would benefit from treatment [with Visudyne].” Id. Finally, a February 9, 2001 article in the National Post (Canada) reported that “[a]bout 200,000 people in North America suffer from wet AMD. Scientists working for QLT believe that 40,000 of these patients have the classic form and can be treated with Visudyne. Adding occult sufferers could make Visudyne available to another 80,000 patients.” Plaintiffs allege that defendants knew that the press release had exaggerated the market for Vi-sudyne prescriptions or that they acted recklessly in disregarding this fact. Plaintiffs further allege that, in light of the exaggeration of the market for Visudyne, defendants knew that the initial forecasts for Visudyne sales in the fourth quarter of 2000 were false and misleading or that they recklessly disregarded this fact. In August and early September of 2000, individual defendants Levy and Galbraith sold large blocks of their QLT shares. Specifically, the Complaint alleges that beginning in early August 2000, Galbraith sold 115,800 QLT shares-approximately 85% of his holdings at the time-for 13.67 million Canadian dollars (“CN$”). Similarly, in early September 2000," }, { "docid": "13898655", "title": "", "text": "was Levy and Galbraith’s sales of QLT shares in August and September of 2000. (Complaint at ¶ 72). Because the allegedly overoptimistic fourth quarter Vi-sudyne sales forecasts were made in October 2000-after Levy and Galbraith had completed their stock trades-those trades do not bear on defendants’ scienter at the time they made the forecasts. As there is was no credible allegation of circumstantial evidence of knowledge or reckless behavior, this Court need not engage in an analysis of the second prong of the test for scienter. E. Loss Causation Finally, in addition to requirements for falsity and scienter, the Complaint must also plead sufficient facts to establish transaction and loss causation in order to survive a motion to dismiss. See In re Initial Public Offering Securities Litigation, 297 F.Supp.2d 668, 669-670 (S.D.N.Y.2003). The Complaint pleads that transaction causation, also known as reliance, should be presumed under the theory of “fraud on the market.” (Complaint at ¶ 73-74) Pursuant to the PSLRA, plaintiffs “have the burden of proving that the act or omission of the defendant alleged to violate this title caused the loss which the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-4(b)(4). Here, the plaintiffs must plead the element of loss causation, which links damages they suffered to the alleged exaggeration of the market for Visudyne. They cannot do so. The Second Circuit has analogized the concept of loss causation in securities actions to the notion of proximate cause in torts “because, similar to proximate cause, in order to establish loss causation, a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation.” Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1495 (2d Cir.1992). Thus, if an intervening cause supercedes the effects of an initial misrepresentation, then a Section 10(b) claim fails. See Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 96 (2d Cir.2001) (citing Bastian v. Petren Res. Corp., 892 F.2d 680, 685 (7th Cir.1990)). In this case, plaintiffs seek compensatory damages for losses due to the fall in price of QLT shares on December 14, 2000. The Complaint alleges that" }, { "docid": "13898636", "title": "", "text": "2000]. We’re comfortable with the 35% quarter-over-quarter growth [from third quarter 2000].” (Complaint at ¶ 57 — d). The Complaint also identifies a number of other allegedly fraudulent statements regarding Visudyne sales. During a conference call with financial analysts on August 1, 2000, Galbraith stated that there was growing demand for Visudyne and that “I don’t think [the second quarter 2000] is going to be a one-quarter blip.” (Complaint at ¶ 50). In an October 11, 2000 press release, QLT included quotes by Levy that Visudyne received “strong endorsement by retinal specialists” and that “we are confident in CIBA Vision’s (QLT’s marketing partner) ability to continue strong growth in sales in the U.S. and rapidly introduce Visudyne in Europe and other markets.... ” (Complaint at ¶ 54). Galbraith echoed those sentiments in a QLT press release accompanying its third quarter 2000 financial results. (Complaint at ¶ 57-a). Galbraith also stat ed during a CNN interview that “the uptick for [Visudyne] looks excellent” and that “[Visudyne would] do about 100 million (U.S. dollars in sales) this year and hopefully grow that to 6 or 700 by 2003. So pretty good growth rates.” (Complaint at ¶ 57-d). QLT revised those forecasts in its December 14, 2000 press release and stated that “fourth quarter demand for Visudyne vials is expected to grow 20 to 25% over Q3[,] which will translate into sales of approximately U.S. $36-38 million,” down from the earlier forecast of $40-50 million sales and 35% growth. (Complaint at ¶ 65; Press Release dated December 14, 2000, attached to Chlapowski Declaration at Exhibit 10). The press release attributed the slower than expected growth to “lack of reimbursements in some countries in Europe and in the U.S. as well as a reduction in revenue caused by the [currency fluctuation].” As noted above, although on December 13, 2000, QLT shares had closed at approximately $40.44 on the NASDAQ, they reached a low of $28.06 on December 14. (Complaint at ¶ 4, ¶ 67). C. Alleged Misrepresentations Regarding HCFA Reimbursement Approval Approval by the Health Care Financing Administration (“HCFA”) or by local Medicare Carrier" }, { "docid": "13898634", "title": "", "text": "from treatment [with Visudyne].” Id. Finally, a February 9, 2001 article in the National Post (Canada) reported that “[a]bout 200,000 people in North America suffer from wet AMD. Scientists working for QLT believe that 40,000 of these patients have the classic form and can be treated with Visudyne. Adding occult sufferers could make Visudyne available to another 80,000 patients.” Plaintiffs allege that defendants knew that the press release had exaggerated the market for Vi-sudyne prescriptions or that they acted recklessly in disregarding this fact. Plaintiffs further allege that, in light of the exaggeration of the market for Visudyne, defendants knew that the initial forecasts for Visudyne sales in the fourth quarter of 2000 were false and misleading or that they recklessly disregarded this fact. In August and early September of 2000, individual defendants Levy and Galbraith sold large blocks of their QLT shares. Specifically, the Complaint alleges that beginning in early August 2000, Galbraith sold 115,800 QLT shares-approximately 85% of his holdings at the time-for 13.67 million Canadian dollars (“CN$”). Similarly, in early September 2000, Levy sold 42,000 QLT shares for CN$ 4.65 million. (Complaint at ¶ 53-a, 53-b, 72). B. Alleged Misrepresentations of Fourth Quarter 2000 Visudyne Sales Forecasts Plaintiffs’ allegation also focus on the discrepancy between the expectations allegedly created by a series of statements by QLT and the individual defendants in October of 2000-including initial fourth quarter 2000 Visudyne sales forecasts-on one hand, and the revised sales forecast released by QLT on December 14, 2000, on the other. According to the Complaint, Galbraith was quoted in a Dow Jones News article on October 17, 2000 that “QLT Inc. sees 30-50% growth in Visu-dyne sales for the fourth quarter over the third quarter (of 2000).” (Complaint at ¶ 57-b). Galbraith also expected, according to an October 18, 2000 article in the Globe and Mail, the sales of Visudyne to be “between $40-million and $50-million” for the fourth quarter of 2000. (Complaint at ¶ 60). In addition, defendant Levy allegedly told research analysts during a teleconference: “we just want the $40-50 [million] in sales of Visudyne [in fourth quarter" }, { "docid": "13898630", "title": "", "text": "OPINION AND ORDER STEIN, District Judge. This action arises from a sharp fall in the price of QLT Inc. common stock on December 14, 2000, after QLT, a Vancouver-based pharmaceutical manufacturer whose common stock is listed on the NASDAQ and Toronto stock exchanges, issued a financial update stating that the fourth quarter 2000 sales of its main product, Visudyne, were expected to be lower than previously forecast. This announcement triggered a drastic reaction by the investing public, as the price of QLT shares fell from approximately $40.44 per share at the close of December 13 to a low of $28.06 per share on December 14. Plaintiffs, the class of purchasers of QLT stock between August 1, 2000 and December 14, 2000, brought these actions pursuant to Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b), Section 20 of the Exchange Act, 15 U.S.C. § 78t(a), and Rule 10b-5 of Securities and Exchange Commission, 17 CFR § 240.10b-5. The Consolidated Class Action Complaint (“the Complaint”) alleges that QLT and its Chief Executive Officer and Chief Financial Officer-individual defendants Dr. Julia Levy and Kenneth Galbraith, respectively-is sued false and misleading information to the public concerning sales projections for Visudyne. Plaintiffs seek compensatory damages for the losses they incurred due to their purchases of QLT shares during the class period, interest, and attorneys’ fees. Defendants have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief may be granted. For the reasons set forth below, that motion is granted. BACKGROUND Visudyne treats symptoms of age-related macular degeneration (“AMD”), a disease of the eye that typically afflicts people over age 65. (Complaint at ¶ 29). There are two types of AMD, “wet” and “dry.” Wet AMD results from leakage of abnormal blood vessels under the macula-the central part of the retina-and can cause vision loss and sometimes blindness. (Complaint at ¶ 30). Wet AMD can be further classified according to the location of the abnormal blood vessels into subfo-veal, juxtafoveal, and extrafoveal" }, { "docid": "13898638", "title": "", "text": "Medical Directors is required before physicians are permitted to receive Medicare reimbursement for Visu-dyne treatment. In June 2000, the HCFA assigned a temporary billing code for Visu-dyne treatment, known as photodynamic treatment or “PDT,” as an unlisted procedure. (Complaint at ¶ 42). Furthermore, when approval for Visudyne was pending before the U.S. Pharmacopoeia, Visudyne was reimbursed as a supply by Medicare, instead of as a drug, until July 18, 2000. (Complaint at ¶ 43-44). After engaging in extensive discussions with the HCFA, QLT resolved the reimbursement issues on November 8, 2000 when the HCFA released a national coverage policy for PDT and Visudyne reimbursements, which was to take effect on July 1, 2001. (Complaint at ¶ 46-47). During this period, Levy discussed the issue of reimbursements during a conference call with financial analysts. She noted the process of seeking HCFA approval and stated that “[QLT] made progress in Texas, Florida, Ohio-the payment procedures are much clearer. Some of the hiccups that was there in July and August ha[ve] gone away.” (Complaint at ¶ 57-e). On November 2 and 10, 2000, QLT publicized the HCFA approval of Visudyne but did not discuss the implications of not having received HCFA approval sooner. (Complaint at ¶ 63-64). Plaintiffs claim that defendants “knew that Visudyne’s market potential was held back by the delay in formulating reimbursement criteria by HCFA,” which made physicians “reluctant to invest in the lasers required to perform the procedure until these reimbursement issues were resolved.” (Complaint at ¶ 52-a, 52 — b). Plaintiffs further allege that defendants “failed to disclose the true impact that the delay between April 2000 and November 2000 [of Medicare reimbursements] had on the demand for Visudyne” during and after they provided the initial forecasts for fourth quarter 2000 sales for Visudyne. (Complaint at ¶ 65). Defendants offer four sets of reasons in support of their motion to dismiss. First, they argue that misrepresentations identified in the Complaint are either immaterial or otherwise protected by the statutory safe harbor of the Private Securities Litigation Reform Act of 1995 or the judicial “bespeaks caution” doctrine. Second, defendants" } ]
206458
the case-in-chief and renewed the motion at the close of all the evidence. This alleged insufficiency is the sole point on appeal. We have often articulated the standard of review in a criminal case when the issue is the sufficiency of the evidence. Reduced to its plainest formulation, that test is as follows: whether a reasonably minded jury must necessarily entertain a reasonable doubt as to the defendant’s guilt under the evidence, United States v. Caro, 5 Cir., 1978, 569 F.2d 411, 416; United States v. Juarez, 5 Cir., 1978, 566 F.2d 511, 513; United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255; United States v. Haggins, 5 Cir., 1977, 545 F.2d 1009, 1012, 1013; REDACTED d 1353, 1355; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). In setting forth this standard in United States v. Haggins, supra, we elaborated upon the use of this criterion: [I]f • the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency’’. United States v. Haggins, 545 F.2d at 1012, quoting United States v. Nazien, 5 Cir., 1974, 504 F.2d 394, 395, cert. denied, 420 U.S. 964, 95
[ { "docid": "22981365", "title": "", "text": "for judgment of acquittal, and on review of the denial of such a motion, is whether, taking the evidence most favorable to the Government, Glas-ser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825; United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. If the evidence is such that a rea^ sonable person may have a reasonable doubt as to the defendant’s guilt, the case should be submitted to the jury. On the other hand, a trial judge should not permit a case to go to the jury if the evidence is so scant as to allow the jury merely to speculate or to conjecture as to the defendant’s guilt. In other words, a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged. See United States v. Bethea, D.C.Cir. 1970, 442 F.2d 790, 792. Considering all of the circumstances, we think that the bare presence of Stephenson’s fingerprints on seventeen of the glassine envelopes was not, without more, sufficient evidence of guilt to have submitted the case to the jury. Where, as here, we reverse on the insufficiency of the evidence we may remand for a determination by the district court whether in light of any new evidence which the Government might bring forward a retrial is warranted — e. g., Watkins v. United States, 5 Cir. 1969, 409 F.2d 1382; Brock v. United States, 5 Cir. 1967, 387 F.2d 254 — but under the circumstances presented by this record we feel that “no good purpose could be served in ordering a new trial” in this case. South v. United States, 5 Cir. 1969, 412 F.2d 697; Nagell v. United" } ]
[ { "docid": "12526437", "title": "", "text": "entertain a reasonable doubt of the defendant’s guilt. United States v. Gonzalez, 617 F.2d 104 (5th Cir. 1980). If the evidence viewed in the light most favorable to the government shows that a reasonably minded jury must have had a reasonable doubt as to an essential element of the crime, we must reverse. United States v. Forrest, 620 F.2d 446 (5th Cir. 1980). As we reiterated in Gonzalez, supra, 617 F.2d at 106: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency”- United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). The Factual Background The defendant is charged with concealing and removing three items of property from Brownsville, Texas, (after his business and marriage failed), back to his original home in Michigan “with intent to defraud” the SBA’s security interest in that property. Before we discuss the incidents upon which the government relies as creating a jury issue as to fraudulent intent in this removal, an overview of the undisputed factual background will be helpful for understanding the respective contentions. The defendant Kelley and his wife operated a small automotive and furniture upholstery plant in Brownsville, Texas. In late 1977, Kelley applied for a disaster loan from the SBA, a type of loan that the SBA witnesses testified was based on need, without regard to the collateral. The metal building and land (valued at $2,960), machinery and equipment ($1,791), accounts receivable ($1,266), and inventory ($14,233) were subject to a prior security interest of $8,266. Nevertheless, on January 24, 1978 the SBA loaned Kelley and his wife $15,000 (the first monthly payment of $194 being due one year from date), secured by a security interest in (a) the machinery and equipment," }, { "docid": "12526436", "title": "", "text": "Kelley had the requisite “intent to defraud” when he moved three items of property subject to the SBA security interest from their mortgage-described site in Brownsville to Michigan. The defendant Kelley raised this issue at the close of the government’s case; with reservations, the trial court ultimately concluded that a jury issue was raised. The defendant renewed his motion at the close of the case, along with other motions to dismiss that the district court likewise denied. In reviewing the sufficiency of evidence in criminal cases, we are to view the evidence and all inferences that reasonably may be drawn from it in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Whether the evidence is direct or circumstantial, in our review of sufficiency we must accept all credibility choices that tend to support the jury’s verdict. United States v. Staller, 616 F.2d 1284 (5th Cir. 1980). The standard of review is whether, based on the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant’s guilt. United States v. Gonzalez, 617 F.2d 104 (5th Cir. 1980). If the evidence viewed in the light most favorable to the government shows that a reasonably minded jury must have had a reasonable doubt as to an essential element of the crime, we must reverse. United States v. Forrest, 620 F.2d 446 (5th Cir. 1980). As we reiterated in Gonzalez, supra, 617 F.2d at 106: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency”- United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). The Factual Background The defendant is charged with concealing and removing three items of" }, { "docid": "15436431", "title": "", "text": "transaction. II SUFFICIENCY OF THE EVIDENCE Appellant attacked the sufficiency of the government’s case by a motion for acquittal at the close of the case-in-chief and renewed the motion at the close of all the evidence. This alleged insufficiency is the sole point on appeal. We have often articulated the standard of review in a criminal case when the issue is the sufficiency of the evidence. Reduced to its plainest formulation, that test is as follows: whether a reasonably minded jury must necessarily entertain a reasonable doubt as to the defendant’s guilt under the evidence, United States v. Caro, 5 Cir., 1978, 569 F.2d 411, 416; United States v. Juarez, 5 Cir., 1978, 566 F.2d 511, 513; United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255; United States v. Haggins, 5 Cir., 1977, 545 F.2d 1009, 1012, 1013; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). In setting forth this standard in United States v. Haggins, supra, we elaborated upon the use of this criterion: [I]f • the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency’’. United States v. Haggins, 545 F.2d at 1012, quoting United States v. Nazien, 5 Cir., 1974, 504 F.2d 394, 395, cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). We have alternatively expressed the standard as whether reasonable minds could have found the evidence inconsistent with every reasonable hypothesis of the defendant’s innocence, United States v. Henderson, 5 Cir., 1979, 588 F.2d 157, 161; United States v. Lonsdale, 5 Cir., 1978, 577 F.2d 923, 925; United States v. Martinez, 5 Cir., 1977, 555 F.2d 1269, 1271; United States v. Prout, 5 Cir., 1976, 526 F.2d 380, 384, cert. denied, 429" }, { "docid": "1816041", "title": "", "text": "car. They discovered two $50 bills and five $20 bills in the back seat, between the seat cushion and the back cushion, right where Gonzalez had been sitting. Because the crumpled notes did not appear to be regular currency, Bauer called the Secret Service, which identified them to be counterfeit. It was stipulated at trial that the notes were counterfeit. In the meantime, Gonzalez had posted bail and had been released. At approximately 10:30 Bauer arrested Gonzalez on a charge of violating the currency laws. At trial, Bauer testified that during his entire shift no one besides Gonzalez had been on the back seat of the patrol car; in fact, no one had sat on the back seat during the preceding shift. Bauer further stated that although he had left his vehicle unattended for short periods during his shift, the back doors had always been locked or another officer had always watched the patrol car. Gonzalez, challenging the sufficiency of the evidence, moved for acquittal at the end of the government’s case. He also moved for acquittal, or in the alternative for a new trial, after the jury had returned its verdict. Here, the standard of review is whether, based on the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant’s guilt. United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978). As we have said: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency”. United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). This standard accords great weight to the jury verdict but it also requires the government to meet its burden of proof. When the evidence is such that a reasonably minded" }, { "docid": "8575042", "title": "", "text": "in which the trial court concludes as a matter of law that a jury could not reasonably find guilt beyond a reasonable doubt. The formulation used by this Court was announced and explained in United States v. Nazien, 504 F.2d 394 (5th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975): “Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was, insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence. In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and held that ‘the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude’ . . . . Then in United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041, we added that whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency. See also United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355.” This standard has been subsequently restated in terms of “hypothesis of innocence” in United States v. Smith, 493 F.2d 24, 26, where this Court said: “Additionally, the test is not whether the trial judge or the appellate judge concludes that the evidence fails to exclude every reasonable hypothesis but that of guilt, but whether the jury might reasonably so conclude.” We construe this language as meaning the sainé thing" }, { "docid": "463654", "title": "", "text": "United States v. Malatesta, 590 F.2d 1379, 1382 (5th Cir., 1979) (en banc), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59. If, after reviewing the evidence, and inferences that may reasonably be drawn from it, in the light most favorable to the government, it appears that a reasonable-minded jury must necessarily have entertained a reasonable doubt as to the appellant’s guilt or, alternatively, any essential element of the crime, the convictions must be reversed. United States v. Forrest, 620 F.2d 446, 450 (5th Cir., 1980); United States v. Odum, 625 F.2d 626, 628 (5th Cir., 1980); United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir., 1977). Alternatively, the test is whether the evidence, viewed in the proper manner, is such that the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. United States v. Fox, 613 F.2d 99, 101 (5th Cir., 1980). The test for reviewing sufficiency of the evidence questions has also been stated as whether, viewing the evidence in the light most favorable to the government and making all credibility choices and inferences in support of the verdict, reasonable minds could have found the evidence inconsistent with every reasonable hypothesis of innocence. United States v. Burgin, 621 F.2d 1352, 1357 (5th Cir., 1980). United States v. Haggins explained the test as follows: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to ex- elude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency”. 545 F.2d 1009, 1012 (5th Cir., 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir., 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). Since circumstantial evidence is to be treated no differently than direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), the test for judging the sufficiency of the evidence is the same whether" }, { "docid": "891936", "title": "", "text": "check. This was all the evidence introduced against Lonsdale. Significantly the bank teller who accepted the stolen check could not identify appellant as the person who cashed it. Lonsdale took the witness stand and denied having cashed the check. II. In evaluating the sufficiency of this evidence to support the conviction, we must, of course, view the evidence in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Rojas, 537 F.2d 216, 220 (5th Cir. 1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). The test of the sufficiency of proof on a motion for judgment of acquittal, and on review of the denial of such a motion, is whether the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973). See United States v. Rojas, supra, 537 F.2d at 220. A trial judge should not permit a case to go to the jury if the evidence is so scant that the jury could only speculate or conjecture as to the defendant’s guilt, and “a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.” United States v. Stephenson, supra, 474 F.2d at 1355 (emphasis in original). See United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977); United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977). III. This case summons us to apply the principle that the government must prove a defendant guilty beyond a reasonable doubt. In most instances the jury conscientiously discharges its duty of judging the guilt or innocence of the accused. The parade of convicted defendants who pass ceaselessly before this court and whose convictions are justifiably affirmed bears tribute to the judgment of citizens who serve on juries. We are" }, { "docid": "11537642", "title": "", "text": "vehicle and chased the male, who ran up the driveway and into the residence, closing the door behind him. Agent Wendt knocked at the door but received no response for two minutes. Two women, who identified themselves as David Caro’s wife and mother, opened the door and gave Agent Wendt permission to search the residence. A search of the house and the surrounding neighborhood failed to locate Mr. Caro. At trial, Agent Wendt identified Mr. Caro as the person who had been at 10229 Hachet Street and had run through the door. Sufficiency of the Evidence ■ This court has had several recent occasions to address the essential elements of a criminal conspiracy. These elements in- elude “an agreement to commit a crime followed by an overt act in furtherance of the agreement.” United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977). “There must be proof beyond reasonable doubt that a conspiracy existed, that the accused knew of it, and that the accused, with that knowledge, voluntarily became a part of it.” Id. See also United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977), cited in Gutierrez. The crucial issue for our determination here is whether the government has carried its burden of proving beyond a reasonable doubt that appellant Caro knowingly participated in the conspiracy established in this case. Appellant moved for acquittal on the ground of insufficient evidence at the close of the prosecution’s case-in-chief. The motion was renewed at the close of all the evidence. The standard for review in such circumstances has recently been stated by this court: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency.” United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43" }, { "docid": "11537643", "title": "", "text": "See also United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977), cited in Gutierrez. The crucial issue for our determination here is whether the government has carried its burden of proving beyond a reasonable doubt that appellant Caro knowingly participated in the conspiracy established in this case. Appellant moved for acquittal on the ground of insufficient evidence at the close of the prosecution’s case-in-chief. The motion was renewed at the close of all the evidence. The standard for review in such circumstances has recently been stated by this court: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency.” United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). See also United States v. Pinner, 561 F.2d 1203, 1207 (5th Cir. 1977). The standard is further explained in Barrera, supra: In a criminal case the Government must prove every element of the offense beyond a reasonable doubt. In this respect, circumstantial evidence is intrinsically no different from direct evidence, . and the same test for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. . . . Therefore, in testing the sufficiency of the evidence in this circumstantial evidence case it was the duty of the trial judge, before sending the case to the jury, to determine whether a reasonably minded jury must necessarily entertain a reasonable doubt under the evidence. 547 F.2d at 1255 (citations omitted; emphasis supplied); quoted in Gutierrez, supra, at 1280. We view the evidence in a sufficiency case in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). As we have noted, see note 2 supra, much of" }, { "docid": "463655", "title": "", "text": "to the government and making all credibility choices and inferences in support of the verdict, reasonable minds could have found the evidence inconsistent with every reasonable hypothesis of innocence. United States v. Burgin, 621 F.2d 1352, 1357 (5th Cir., 1980). United States v. Haggins explained the test as follows: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to ex- elude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency”. 545 F.2d 1009, 1012 (5th Cir., 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir., 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). Since circumstantial evidence is to be treated no differently than direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), the test for judging the sufficiency of the evidence is the same whether the evidence is direct or circumstantial. United States v. Gonzalez, 617 F.2d 104, 106 (5th Cir., 1980); United States v. Fox, supra. For a defendant to be convicted of conspiracy under 21 U.S.C., Section 846, there must be proof beyond a reasonable doubt that a conspiracy existed, that the accused knew of it, and with that knowledge, voluntarily became a part of it. United States v. Navar, 611 F.2d 1156, 1159 (5th Cir., 1980); United States v. Harbin, 601 F.2d 773, 781 (5th Cir., 1979). Moreover, conspiracy to commit a particular substantive offense cannot exist without at least that degree of criminal intent necessary for the substantive offense itself. Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959); United States v. Malatesta, supra. The element contested here is that of knowing and intentional participation in the conspiracy. It can hardly be questioned that a conspiracy was afoot here, and certainly defendants’ actions, especially those on the tug, aided the conspiracy along in its progress. Yet, the question remains" }, { "docid": "14208782", "title": "", "text": "entertain a reasonable doubt under the evidence. United States v. Haggins, 5 Cir., 1977, 545 F.2d 1009. We have carefully analyzed the evidence and, in our view, the trial judge should not have sent the case to the jury because under the circumstances presented herein he should have determined that a reasonably minded jury must necessarily have had a reasonable doubt of the guilt of Barrera and Leyva. In other words, “a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of the essential elements of the crime charged.” United States v. Reynolds, 5 Cir., 1975, 511 F.2d 603; United States v. Kohlmann, 5 Cir., 1974, 491 F.2d 1250; United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), requires us to examine the evidence in the light most favorable to the Government in reviewing a jury verdict, but it does not compel judicial abdication to the findings of the trier of fact. United States v. Peterson, 5 Cir., 1974, 488 F.2d 645; United States v. Ferg, 5 Cir., 1974, 504 F.2d 914. With these standards in mind, we analyze the evidence on which the Government relies to prove possession and conspiracy. The substantive count. In its brief as well as in argument the Government placed little, if any, emphasis on the substantive count of possession, relying instead on appellants’ alleged participation in the conspiracy. Our review of the record shows no evidence indicating that appellants actually possessed the heroin. Nevertheless, if there is a reasonable basis for a finding of constructive possession affirmance of the convictions would be necessary. United States v. Ferg, supra; United States v. Horton, 5 Cir., 1973, 488 F.2d 374; Garza v. United States, 5 Cir., 1967, 385 F.2d 899. Constructive possession has been defined as the exercise of dominion or control over the" }, { "docid": "15436434", "title": "", "text": "1978, 566 F.2d 511, 513, United States v. Prout, 5 Cir., 1976, 526 F.2d 380, 384, cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). At the same time we require the government to prove each element of the crime beyond a reasonable doubt, United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255. To prove each element in this case, the government must rely upon circumstantial evidence. Since circumstantial evidence is to be treated no differently than direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the test for judging the sufficiency of the evidence is the same whether the evidence is direct or circumstantial, United States v. Bright, 5 Cir., 1977, 550 F.2d 240, 242; United States v. Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1221, cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Accordingly we proceed to an analysis of the evidence in light of these considerations. To prove a violation of 18 U.S.C., Section 472, the government must show not only that the defendant passed or possessed counterfeit money but also that he did so with intent to defraud. Knowledge that the notes were counterfeit is necessary to establish the statutory requirement of intent. We have consistently stated that a mere showing of passing or possession, without more, is insufficient to prove the requisite mens rea. See, e.g., United States v. Sink, 5 Cir., 1978, 586 F.2d 1041, 1049, cert. denied, - U.S. -, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979); United States v. Haggins, 5 Cir., 1977, 545 F.2d 1009, 1013; United States v. Jiminez-Serrato, 5 Cir., 1971, 451 F.2d 523, 525 (possession); Paz v. United States, 5 Cir., 1967, 387 F.2d 428, 430 (passing). On the other hand, the necessary “guilty knowledge”, often difficult to prove through direct evidence, may be inferred from other circumstantial evidence. Surrounding circumstances may supply inferences of knowledge which adequately" }, { "docid": "14208781", "title": "", "text": "hall property. Appellant Barrera operated the bar with appellant Leyva’s assistance. The witness also testified in regard to several negotiations which she had had with Mike Slaughter for the sale, purchase and trade of used cars. See footnote 5, infra. In a criminal case the Government must prove every element of the offense beyond a reasonable doubt. In this respect, circumstantial evidence is intrinsically no different from direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), and the same test for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. United States v. Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1221; United States v. Moore, 5 Cir., 1974, 505 F.2d 620, 623; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825. Therefore, in testing the sufficiency of the evidence in this circumstantial evidence case it was the duty of the trial judge, before sending the case to the jury, to determine whether a reasonably minded jury must necessarily entertain a reasonable doubt under the evidence. United States v. Haggins, 5 Cir., 1977, 545 F.2d 1009. We have carefully analyzed the evidence and, in our view, the trial judge should not have sent the case to the jury because under the circumstances presented herein he should have determined that a reasonably minded jury must necessarily have had a reasonable doubt of the guilt of Barrera and Leyva. In other words, “a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of the essential elements of the crime charged.” United States v. Reynolds, 5 Cir., 1975, 511 F.2d 603; United States v. Kohlmann, 5 Cir., 1974, 491 F.2d 1250; United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), requires us to examine the" }, { "docid": "7426891", "title": "", "text": "607. Under Rule 607 the government’s impeachment of Garcia by her prior inconsistent statement was proper without a showing of surprise. See United States v. Alvarez, 548 F.2d 542, 543 (5th Cir. 1977); United States v. Sisto, 534 F.2d 616, 623 n. 8 (5th Cir. 1976). But this works no change in the traditional view that prior unsworn inconsistent statements are hearsay and generally should not be considered by the jury as direct evidence of guilt. United States v. Sisto, supra, 534 F.2d at 623. See also United States v. Beasley, 545 F.2d 403, 405-406 (5th Cir. 1977). III. SUFFICIENCY OF THE EVIDENCE In keeping with this viewpoint, the trial judge instructed the jury that Cecilia Garcia’s written statement, which she denied to be true, should be considered only for impeachment purposes. Thus, the impeaching statement could be taken only as evidence of credibility and not as affirmative evidence of appellant’s guilt or innocence. With the court’s instruction in mind, we weigh the evidence other than the Gar cia unsworn statement in the light most favorable- to the government, Glasser v. United States, supra, to ascertain whether that evidence will sustain appellant’s convictions. The remaining evidence against Palacios was circumstantial. The standard for review of the sufficiency of evidence to support conviction is the same whether the evidence is direct or circumstantial. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Warner, 441 F.2d 821 (5th Cir. 1971), cert. denied 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. Before sending a case to the jury, after motions for judgment of acquittal, it is the trial judge’s duty to determine if the jury must necessarily entertain a reasonable doubt as to the accused’s guilt. United States v. Bright, 550 F.2d 240 (5th Cir. 1977); United States v. Haggins, 545 F.2d 1009 (5th Cir. 1977); United States v. Hill, supra. The essential elements of the criminal conspiracy as charged by the indictment are an agreement by two or more persons to combine efforts for an illegal purpose and an overt act by" }, { "docid": "13082666", "title": "", "text": "So, too, as to the conspiracy charge, everyone knows that guilt of a conspiracy cannot be proven solely by family relationship or other type of close association. Causey v. United States, 352 F.2d 203 (5th Cir. 1965); United States v. Tyler, 505 F.2d 1329 (5th Cir. 1975); United States v. Martinez, 486 F.2d 15 (5th Cir. 1973); and see United States v. Armone, 363 F.2d 385 (2d Cir. 1966) in which the court said: “Membership in a conspiracy was not inferable merely because of family relationships ... or because of friendship between alleged co-conspirators; the defendants could not be found guilty by association of violation of the conspiracy laws.” [Emphasis added.] 363 F.2d at 388. CONCLUSION The problem of determining whether a criminal case should be submitted to the jury when proper motions are made has frequently been discussed in this Court. We have recently discussed the cases that have established the rule that controls such a situation. See United States v. Haggins (1977), 5th Cir., 545 F.2d 1009. In Haggins, we concluded that the rule in effect in this Circuit is that the case should not go to the jury if the trial court concludes that upon the evidence to be submitted, a reasonably-minded jury must necessarily have had a reasonable doubt as to the defendant’s guilt. See United States v. Nazien, 504 F.2d 394 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). This is not a strong case for the prosecution. Proof of knowledge must be, as is almost always the case, by inferences that may be presumably drawn from the proven facts. Here, we conclude that giving the evidence the weight to which it is entitled, we cannot determine that a jury must have entertained a reasonable doubt as to the guilt of appellants on the illegal passing counts. Furthermore, the evidence which supports this determination is sufficient to warrant submission of the conspiracy count to the jury. REVERSED and REMANDED with directions. . Section 472 provides as follows: “Whoever, with intent to defraud, passes, utters, publishes, or sells, or" }, { "docid": "15436432", "title": "", "text": "setting forth this standard in United States v. Haggins, supra, we elaborated upon the use of this criterion: [I]f • the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency’’. United States v. Haggins, 545 F.2d at 1012, quoting United States v. Nazien, 5 Cir., 1974, 504 F.2d 394, 395, cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). We have alternatively expressed the standard as whether reasonable minds could have found the evidence inconsistent with every reasonable hypothesis of the defendant’s innocence, United States v. Henderson, 5 Cir., 1979, 588 F.2d 157, 161; United States v. Lonsdale, 5 Cir., 1978, 577 F.2d 923, 925; United States v. Martinez, 5 Cir., 1977, 555 F.2d 1269, 1271; United States v. Prout, 5 Cir., 1976, 526 F.2d 380, 384, cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). Expressed either way, the standard for review gives great respect to the finding of the jury, but it likewise holds the government to its burden to adduce a case against the defendant. A motion for acquittal, therefore, should be granted when the evidence is such that a reasonably minded jury must have a reasonable doubt as to the existence of any element of the crime, United States v. Pinner, 5 Cir., 1977, 561 F.2d 1203, 1207; United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. In evaluating a claim of insufficient evidence according to this standard, we must consider the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), resolving reasonable inferences and credibility choices in support of the jury’s verdict, United States v. Henderson, 5 Cir., 1979, 588 F.2d 157, 161; United States v. Juarez, 5 Cir.," }, { "docid": "1816042", "title": "", "text": "for acquittal, or in the alternative for a new trial, after the jury had returned its verdict. Here, the standard of review is whether, based on the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant’s guilt. United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978). As we have said: [I]f the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that “the jury must necessarily have had a reasonable doubt as to the inconsistency”. United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977), quoting United States v. Nazien, 504 F.2d 394, 395 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975). This standard accords great weight to the jury verdict but it also requires the government to meet its burden of proof. When the evidence is such that a reasonably minded jury must have a reasonable doubt as to the existence of any element of the crime, a motion for acquittal must be granted, United States v. Pinner, 561 F.2d 1203, 1207 (5th Cir. 1977). Applying this standard we consider the evidence in the light most favorable to the government, resolving reasonable inferences and credibility choices in favor of the verdict, United States v. Henderson, 588 F.2d 157, 161 (5th Cir. 1979); however, the government must prove every element of the crime beyond a reasonable doubt. United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977). This is a circumstantial evidence case but the test is the same no matter whether the evidence is direct or circumstantial. United States v. Bright, 550 F.2d 240, 242 (5th Cir. 1977). In this case, to prove a violation of 18 U.S.C. § 472, the government had to show (1) that the defendant passed or possessed counterfeit money and (2) that he did so with the intent to defraud. From the evidence, as above recounted, there could be no" }, { "docid": "15436433", "title": "", "text": "U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). Expressed either way, the standard for review gives great respect to the finding of the jury, but it likewise holds the government to its burden to adduce a case against the defendant. A motion for acquittal, therefore, should be granted when the evidence is such that a reasonably minded jury must have a reasonable doubt as to the existence of any element of the crime, United States v. Pinner, 5 Cir., 1977, 561 F.2d 1203, 1207; United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. In evaluating a claim of insufficient evidence according to this standard, we must consider the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), resolving reasonable inferences and credibility choices in support of the jury’s verdict, United States v. Henderson, 5 Cir., 1979, 588 F.2d 157, 161; United States v. Juarez, 5 Cir., 1978, 566 F.2d 511, 513, United States v. Prout, 5 Cir., 1976, 526 F.2d 380, 384, cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). At the same time we require the government to prove each element of the crime beyond a reasonable doubt, United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255. To prove each element in this case, the government must rely upon circumstantial evidence. Since circumstantial evidence is to be treated no differently than direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the test for judging the sufficiency of the evidence is the same whether the evidence is direct or circumstantial, United States v. Bright, 5 Cir., 1977, 550 F.2d 240, 242; United States v. Gomez-Rojas, 5 Cir., 1975, 507 F.2d 1213, 1221, cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971)." }, { "docid": "21897989", "title": "", "text": "was not necessary for the trial judge to instruct the jury “ . . . that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt.” Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166 (1954). “ . . [T]he better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect . . . .” [citations omitted] Holland, 348 U.S. at 139-140, 75 S.Ct. at 137. Since Holland this Court has formulated a standard to be used by trial courts in determining whether a case should be submitted to a jury or whether in a case tried to a judge a motion for judgment of acquittal should be granted. That standard is: “ . . .if the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that ‘the jury must necessarily have had a reasonable doubt as to the inconsistency.’ ” [citation omitted] United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977). Thus in responding to a defendant’s motion for judgment of acquittal the trial judge must ask: “On this evidence do I find that a reasonably minded jury must necessarily entertain a reasonable doubt?” Haggins, 545 F.2d at 1013. If the trial court answers in the negative then the motion should be denied. Then as fact finder and using the correct legal principles the judge must determine whether or not he was convinced the Government had established each element beyond all reasonable doubt. On the basis of the foregoing we remand this case back to the trial judge for specific findings, particularly as to “why” Pinner did not file, and application of the proper legal principles. The denial of the motion for judgment of acquittal, the adjudication of guilt, the findings of fact and conclusions" }, { "docid": "15436430", "title": "", "text": "Omar Obailyo at a bar owned by Slone’s wife. J31one could not tell Rutledge much about Obailyo and did not know where Obailyo could be reached. Slone admitted placing the money in his wife’s bag but denied knowing that it was counterfeit. At trial Slone in essence repeated the information he had told Rutledge. He explained that in purchasing money for his trip to the United States he had been unable to get satisfactory terms on the black market, his usual source for American currency. Slone stated that after a series of negotiations with Obailyo he had bought the money at a rate of 86 pesos per dollar. He further testified that the official exchange rate was 89,50 pesos per dollar and that the usual black market price was 87 or 88 pesos, though the price would occasionally go as low as 85 per dollar. At trial Slone could give no more information about Obail-yo than that which he had given Rutledge. The government did not produce Obailyo or introduce any direct evidence concerning the transaction. II SUFFICIENCY OF THE EVIDENCE Appellant attacked the sufficiency of the government’s case by a motion for acquittal at the close of the case-in-chief and renewed the motion at the close of all the evidence. This alleged insufficiency is the sole point on appeal. We have often articulated the standard of review in a criminal case when the issue is the sufficiency of the evidence. Reduced to its plainest formulation, that test is as follows: whether a reasonably minded jury must necessarily entertain a reasonable doubt as to the defendant’s guilt under the evidence, United States v. Caro, 5 Cir., 1978, 569 F.2d 411, 416; United States v. Juarez, 5 Cir., 1978, 566 F.2d 511, 513; United States v. Barrera, 5 Cir., 1977, 547 F.2d 1250, 1255; United States v. Haggins, 5 Cir., 1977, 545 F.2d 1009, 1012, 1013; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). In" } ]
80492
MEMORANDUM Luis Manuel Coelho, a native and citizen of Portugal, petitions for review of the Board of Immigration Appeals’ (“BIA”) order rejecting his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand. The BIA rejected Coelho’s motion to reopen without the benefit of our decision in REDACTED 011) (mandate pending), in which we concluded that 8 C.F.R. § 1003.2(d) did not apply to preclude a motion to reopen filed after the petitioner had been removed. See Reyes-Torres, 645 F.3d at 1075-78, 2011 WL 1312570, at *2-*3 (citing Coyt v. Holder, 593 F.3d 902 (9th Cir.2010)). We remand to the BIA in light of this intervening ease law. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
[ { "docid": "22920743", "title": "", "text": "granted Reyes-Torres’s motion to withdraw his guilty plea to the controlled substance charge resulting in his 2007 controlled substance conviction. The judge granted the motion on the ground that Reyes-Torres was not adequately informed of the immigration consequences of the plea. On October 27, 2008, Reyes-Torres filed with the BIA a motion to reconsider and reopen proceedings based on the new evidence of the vacated conviction. On December 22, 2008, the BIA dismissed Reyes-Torres’s motion to reopen and reconsider, concluding that it lacked jurisdiction because Reyes-Torres had been removed from the United States pri- or to its filing. The BIA cited the “departure bar” in 8 C.F.R. § 1003.2(d) for this proposition. Reyes-Torres timely petitioned for review of both the BIA’s September 26, 2008 decision dismissing his appeal (Case No. 08-74452) and the BIA’s December 22, 2008 decision dismissing his motion to reconsider and reopen (Case No. 09-70214). The court sua sponte consolidated the petitions. II The regulatory “departure bar” at issue in this case reads: A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. 8 C.F.R. § 1003.2(d). The BIA argues that its interpretation of the departure bar strips it of jurisdiction to hear motions to reopen or reconsider filed by aliens who have already been removed from the United States. We recently examined the departure bar in Coyt v. Holder, 593 F.3d 902 (9th Cir.2010). Coyt entered the United States without inspection and, twenty years later, the Immigration and Naturalization Service initiated removal proceedings against him. Id. at 903. Coyt conceded removability but applied for cancellation of removal or voluntary departure. Id. The IJ granted a sixty-day voluntary departure period. Id. at 904. The BIA affirmed the IJ’s decision, granting Coyt an additional thirty days to depart voluntarily. Id. at 904. Due to a miscommunication with his attorney, Coyt did not receive notice of the BIA’s decision, and did not depart within the requisite thirty days. Id." } ]
[ { "docid": "23024497", "title": "", "text": "LEAVY, Circuit Judge. Rogelio Cardoso-Tlaseca (Cardoso), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) January 30, 2004, order denying his motion to reopen its September 30, 2003, order affirming an immigration judge’s (IJ) removal order and denial of his application for adjustment of status. (Appeal No. 04-70774). Cardoso also petitions for review of the BIA’s order denying his motion to reconsider its January 30, 2004, decision (Appeal No. 04-72264). In his motions Cardoso asserted that the conviction that had formed the basis for his removal order had been vacated. We grant the petition in 04-70774 and remand. We deny the petition in 04-72264 as moot. JURISDICTION We have jurisdiction to review the petitions under 8 U.S.C. § 1252(a)(2)(D) as amended by § 106(a) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005). See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). While we have no jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed a criminal offense,” including a controlled substance offense, 8 U.S.C. §§ 1252(a)(2)(C) and 1227(a)(2)(B), we are not barred from hearing the constitutional claims or questions of law raised in Cardoso’s petition. 8 U.S.C. § 1252(a)(2)(D). Cardoso does not present a constitutional claim, but argues that, as a matter of law, the BIA erred when it determined that 8 C.F.R. § 1003.2(d) barred his motion to reopen and, alternatively, that 8 C.F.R. § 1003.2(d) is invalid. Because his peti tions for review present questions of law, we have jurisdiction to consider them. FACTS AND PRIOR PROCEEDINGS Cardoso entered the United States from Mexico without inspection in April 1988. In February 1996, Cardoso married Hilda Jimenez, at the time a lawful permanent resident, and she filed an 1-130 visa petition on his behalf. Jimenez became a naturalized United States citizen on October 4, 1999, and the 1-130 visa petition was approved on January 25, 2001. Cardoso filed an application to adjust his status to that of a lawful permanent" }, { "docid": "10704905", "title": "", "text": "reopen. Matter of Coelho, 20 I & N Dec. at 473; Matter of Lozada, 19 I & N Dec. at 638-39. COLLOTON, Circuit Judge, concurring in part and dissenting in part. The parties agree that this court should review the decision of the Board of Immigration Appeals (“BIA”) denying Ana Rosa Ochoa’s motion to reopen her removal proceedings. I disagree with the court’s contrary conclusion, and I further conclude that the BIA abused its discretion in denying the motion. Therefore, I would remand the case for further proceedings. An alien may file one motion to reopen removal proceedings as of right, as long as the motion is filed within ninety days after the date on which the final administrative decision is rendered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). We review the BIA’s decision on such a motion under a deferential abuse-of-discretion standard. Kucana v. Holder, — U.S. -, —, 130 S.Ct. 827, 834, — L.Ed.2d -, -(2010). The governing regulations also provide that the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). The decision whether to exercise this sua sponte reopening authority is committed to agency discretion by law within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2). Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc) (per curiam). After the BIA affirmed the decision of an immigration judge denying Ochoa’s request for cancellation of removal, Ochoa filed a motion to reopen alleging ineffective assistance of former counsel. She filed the motion within ninety days of the BIA’s final administrative decision, in accordance with 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). The BIA denied the motion, and Ochoa filed a timely petition for review. See 8 U.S.C. § 1252(b)(1). This court thus has jurisdiction to review the BIA’s denial of Ochoa’s motion to reopen. See 8 U.S.C. § 1252(a)(1); Tame-nut, 521 F.3d at 1003. The court reasons that the decision is unreviewable because Ochoa’s pleading before the BIA stated that she moved to reopen" }, { "docid": "23180350", "title": "", "text": "the Government from adding charges that it could have charged before. A.R. 4-5. On May 7, 2008, Duhaney filed this timely petition for review. II. We have jurisdiction over this petition under 8 U.S.C. § 1252(a)(1). Since Duhaney was found removable based on his conviction for an aggravated felony, we review only the legal and constitutional issues raised. 8 U.S.C. §§ 1252(a)(2)(C)-(D); see Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir.2007) (“We have jurisdiction to review constitutional claims or questions of law raised upon a petition for review from a final order of the BIA....”). We exercise de novo review over these issues. See Caroleo, 476 F.3d at 162 (citing Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005)). III. As a threshold matter, Duhaney argues that the BIA erred by remanding his case to the IJ rather than simply reopening the proceedings for the sole purpose of terminating the order of removal. He argues that the BIA disregarded its own established precedent by remanding the case, and that he was deprived of the right to oppose remand because the Government failed to provide proper notice. A. Duhaney first contends that the BIA erred by remanding rather than terminating his case upon the vacatur of his conviction, relying on Johnson v. Ashcroft, 378 F.3d 164, 171 (2d Cir.2004) (“Johnson (2d Cir.) ”). In that case, the Court of Appeals for the Second Circuit noted that the “BIA, as a matter of practice, routinely reopens and terminates proceedings of this kind without remanding for further inquiry before an IJ.” Id. (citing In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000); In re Gutnick, 13 I. & N. Dec. 672, 674 (BIA 1971)). The court also noted that, since the Government did not intend to introduce any previously unavailable evidence on remand, “the Board’s own precedents clearly mandated” that the Government’s motion to remand be denied. Id. (citing Kuang-Te Wang v. Ashcroft, 260 F.3d 448, 451 & n. 2 (5th Cir.2001); In re Coelho, 20 I. & N. Dec. 464, 471-73 (BIA 1992)). The court concluded" }, { "docid": "22315869", "title": "", "text": "ORDER AND AMENDED OPINION ORDER The opinion filed on April 7, 2004, slip op. at 4463, and published at 362 F.3d 1263 (9th Cir.2004), is amended by the opinion filed concurrently with this order. OPINION FISHER, Circuit Judge. Dennis Medina-Morales, a native and citizen of Honduras, petitions for review of the decision of the Board of Immigration Appeals (“BIA”), dismissing his appeal from the Immigration Judge’s (“IJ’s”) denial of his motion to reopen removal proceedings. In his motion to reopen, Medina-Morales sought to resurrect his application for adjustment of status based upon his relationship with his stepfather, who is an American citizen. See 8 U.S.C. § 1255. Medina-Morales previously abandoned this application in a hearing before the IJ and instead accepted voluntary departure under 8 U.S.C. § 1229c. Medina-Morales’ removal proceedings began after April 1, 1997, so this case falls within the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (“IIRIRA”). Medina-Morales argues that the BIA erred in basing its decision on (1) his previous agreement to depart voluntarily and (2) his ostensibly weak relationship with his stepfather. The government argues that these aspects of the BIA’s decision are discretionary and that IIRIRA, and in particular § 242(a)(2)(B) of the Immigration and Nationality Act (“INA”) (codified at 8 U.S.C. § 1252(a)(2)(B)) [hereinafter § 1252(a)(2)(B)], deprives us of jurisdiction to review them. We hold that § 1252(a)(2)(B) does not deprive us of jurisdiction, but conclude that the BIA did not abuse its discretion in finding that Medina-Morales’ voluntary departure agreement weighed against granting his motion to reopen. We also hold that § 1252(a)(2)(B) does not affect our jurisdiction to review BIA decisions that are contrary to law. The BIA violated its own precedent by looking to the strength of Medina-Morales’ relationship to his stepfather in denying his motion to reopen. We therefore grant Medina-Morales’ petition and remand. I. Background Medina-Morales entered the United States in 1986 without being admitted or paroled. In August 1992, his natural mother married Ernesto Chavaría, a native and citizen of the United States. In 1996," }, { "docid": "23269441", "title": "", "text": "limitation into text where Congress has left it out. In sum, since Congress enacted IIRIRA in 1996, “nothing in the [INA] undergirds a conclusion that the Board [of Immigration Appeals] lacks ‘jurisdiction’ ... to issue decisions that affect the legal rights of departed aliens.” Marin-Rodriguez v. Holder, 612 F.3d 591, 594 (7th Cir.2010) (citation omitted). Because the BIA’s departure bar regulation “has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress,” the BIA must consider an alien’s motion to reopen even if the alien is no longer in the United States. Pruidze v. Holder, No. 09-3836, 632 F.3d 234, at 235-36, 237-40, 2011 WL 320726, at *1, *3-5 (6th Cir. Feb. 3, 2011). The BIA must exercise its full jurisdiction to adjudicate a statutory motion to reopen by an alien who is removed or otherwise departs the United States before or after filing the motion. We decline to decide the validity of the departure bar regulation, 8 C.F.R. § 1003.2(d), in every possible context. Compare William v. Gonzales, 499 F.3d 329 (4th Cir.2007) (invalidating 8 C.F.R. § 1003.2(d) in its entirety), and Coyt v. Holder, 593 F.3d 902, 907 (9th Cir.2010) (finding § 1003.2(d) inapplicable to involuntary removals), with Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir.2009) (upholding § 1003.2(d) in context of a regulatory motion to reopen), and Ovalles v. Holder, 577 F.3d 288, 295-96 (5th Cir. 2009) (same). Indeed, as this Court has held, the departure bar regulation terminates a request for which “there was no statutory basis,” as when the BIA exercises its regulatory (i.e., sua sponte) authority to reopen a removal proceeding. Xue Yong Zhang, 617 F.3d at 661, 663-64 (noting that the Seventh Circuit’s “analysis in Marin-Rodriguez does not conflict with ours” because “the BIA’s understanding of the departure bar as a limitation on its sua sponte jurisdiction, as opposed to its jurisdiction to consider timely motions to reopen under the INA, cannot be said to be ‘untenable’ ”). In sum, the Government’s power to remove aliens subject to a final order of removal does not make the" }, { "docid": "22132598", "title": "", "text": "where the BIA decides to reopen proceedings on its own authority, which it may do at any time. See 8 C.F.R. § 1003.2(a). We address Bonilla’s motion to reopen sua sponte in Part III.B, infra. . The Board did not find that the facts alleged in Bonilla’s declaration are \"inherently unbelievable,” so we accept them as true. Avagyan, 646 F.3d at 679 (quoting Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007)). . In his opening brief, Bonilla also maintained that it was futile to file a motion to reopen until 2010, when this court ruled unlawful a \"departure bar” regulation providing that departure from the United States constituted a withdrawal of a motion to reopen made previously. See Reyes-Torres v. Holder, 645 F.3d 1073, 1075-76 (9th Cir. 2011); Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010). At oral argument on this appeal, Bonilla's attorney changed positions somewhat, arguing that filing would have been futile only until 2007, citing Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007). Or. Arg. Tr. 21:10-21:30. Leaving aside which date is correct, Bonilla did not raise this departure bar argument in any form to the BIA as a ground for granting equitable tolling. As the issue was not exhausted, we lack jurisdiction to consider it. See Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (explaining that our court’s precedent “has squarely held that issue exhaustion is a jurisdictional requirement\"). . See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d. 977, 990 (9th Cir. 2015); Carrillo v. Holder, 781 F.3d 1155, 1160 n.11 (9th Cir. 2015); Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014); Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011); Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 720 (9th Cir. 2011); Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011); Singh v. Holder, 658 F.3d at 884 n.6; Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1117-18 (9th Cir. 2009); Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2007);" }, { "docid": "20383077", "title": "", "text": "attorney’s alleged ineffectiveness, the BIA erred in declining to equitably toll the time and numerical limits on his motion to reopen his removal proceedings found in 8 C.F.R. § 1003.2(c)(2). Section 1003.2(c)(2) provides: “[A]n alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(2)(D), which preserves our power to decide “constitutional claims or questions of law raised upon a petition for review.” The questions Petitioner raises in this petition are purely legal in nature and, therefore, fit comfortably within the confines of § 1252(a)(2)(D). Our review is de novo. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007). We conclude that we are bound by our recent precedent in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir.2009), and we therefore deny the petition for review. I. Petitioner became a lawful permanent resident of the United States in 1989. The Department of Homeland Security (DHS) initiated removal proceedings against him in 2004 based on, among other things, two state convictions for possession of steroids. After an administrative hearing, an immigration judge (IJ) ruled Petitioner removable and ordered him removed to Peru. Petitioner appealed the IJ’s decision to the BIA. The BIA affirmed. Petitioner then filed a petition for review with us, which we denied. Mendiola v. Gonzales, 189 Fed.Appx. 810 (10th Cir.2006) (unpublished). While his petition for review was pending, Petitioner was removed from the United States in March 2005. He returned illegally, however, and was detained on a charge of Reentry after Removal for an Aggravated Felony in violation of 8 U.S.C. § 1326. After he returned to the United States illegally and while in federal custody, Petitioner in 2007 filed his first motion to reopen with the BIA. The BIA determined that 8 C.F.R. § 1003.2(d) deprived it of jurisdiction to consider Petitioner’s motion to reopen because the regulation prohibits a" }, { "docid": "7469174", "title": "", "text": "unsupported by the evidence, and insufficient to support relief under CAT. Cruz-Maya-ho filed Petition for Review # 5 from that decision on August 22, 2011; this petition is case 11-2914. Once again, Cruz-Maya-ho coupled his petition with another effort at reconsideration: he filed Reconsider # 4 on August 29, 2011, as well as Reopen # 3 on the same date. The Board denied both of those motions on October 27, 2011, and Cruz-Mayaho filed Petition # 6 from that decision on November 7, 2011; this is case 11-3512. We have consolidated the three petitions for review now pending before us for disposition. II The Board had authority over Cruz-Mayaho’s numerous motions to reopen and to reconsider under 8 C.F.R. § 1003.2(a) and 8 U.S.C. § 1229a(c)(6)-(7). The petitions for review before us were timely filed within 30 days of the Board’s decisions. Our jurisdiction over these petitions, however, is limited by the immigration statutes. Under 8 U.S.C. § 1252(a)(2)(B)®, we have no jurisdiction to review “any judgment regarding the granting of relief under ... 1229b [cancellation of removal],” except insofar as “constitutional claims or questions of law” are raised. 8 U.S.C. § 1252(a)(2)(D). Ordinarily, if we lack jurisdiction to review an order, then we also lack jurisdiction over motions to reopen or reconsider that order, see, e.g., Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006), but in light of the Supreme Court’s decision in Kucana v. Holder, 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), we have recognized that judicial review is foreclosed “only if the agency’s rationale for denying the procedural request also establishes the petitioner’s inability to prevail on the merits of his underlying claim.” Calma v. Holder, 663 F.3d 868, 876 (7th Cir.2011). As we put it in Calma: [T]here are identifiable circumstances under which a critical procedural step in a removal proceeding, such as the denial of a continuance that is sought for purposes of allowing another agency to complete its review, the denial of a motion to reconsider, a refusal to remand, or a refusal to reopen a case, lies within our" }, { "docid": "20383076", "title": "", "text": "BALDOCK, Circuit Judge. Petitioner Eddie Mendiola petitions this Court to review the Board of Immigration Appeals’ (BIA or Board) denial of his second motion to reopen his removal proceedings. As a threshold matter, Petitioner argues the BIA erred in holding that 8 C.F.R. § 1003.2(d) proscribed its jurisdiction to entertain his motion to reopen. Section 1003.2(d) provides: A motion to reopen or a motion to reconsider [before the BIA] shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. See also 8 C.F.R. § 1003.23(b)(1) (containing an identical post-departure bar to motions to reopen or reconsider before an immigration judge). Petitioner further contends that, in light of his former attorney’s alleged ineffectiveness, the BIA erred in declining to equitably toll the time and numerical limits on his motion to reopen his removal proceedings found in 8 C.F.R. § 1003.2(c)(2). Section 1003.2(c)(2) provides: “[A]n alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(2)(D), which preserves our power to decide “constitutional claims or questions of law raised upon a petition for review.” The questions Petitioner raises in this petition are purely legal in nature and, therefore, fit comfortably within the confines of § 1252(a)(2)(D). Our review is de novo. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007). We conclude that we are bound by our recent precedent in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir.2009), and we therefore deny the petition for review. I. Petitioner" }, { "docid": "10704904", "title": "", "text": "Cir.2007) (quoting Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir.2006) (per curiam)); see 8 U.S.C. § 1252(a)(2)(B)(i) (\"Notwithstanding any other provision of law ... no court shall have jurisdiction to review any judgment regarding the granting of relief under section ... 1229(b)....”). . This opinion was left intact by Kucana v. Holder, - U.S. -, 130 S.Ct. 827, — L.Ed.2d - (2010), which ”express[ed] no opinion on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Id. at 839 n. 18. . One could possibly argue that by treating Ochoa’s motion as one filed under § 1003.2(c), if indeed it did, the Board necessarily provided us a plausible meaningful standard we would normally find lacking in the sua sponte context. Yet, even were we to circumvent the wall we find firmly erected by Tamenut and review the BIA's November 2, 2007, order, we would dismiss nonetheless. The BIA acted within its discretion in determining that Ochoa failed to meet her \"heavy burden” and in denying her motion to reopen. Matter of Coelho, 20 I & N Dec. at 473; Matter of Lozada, 19 I & N Dec. at 638-39. COLLOTON, Circuit Judge, concurring in part and dissenting in part. The parties agree that this court should review the decision of the Board of Immigration Appeals (“BIA”) denying Ana Rosa Ochoa’s motion to reopen her removal proceedings. I disagree with the court’s contrary conclusion, and I further conclude that the BIA abused its discretion in denying the motion. Therefore, I would remand the case for further proceedings. An alien may file one motion to reopen removal proceedings as of right, as long as the motion is filed within ninety days after the date on which the final administrative decision is rendered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). We review the BIA’s decision on such a motion under a deferential abuse-of-discretion standard. Kucana v. Holder, — U.S. -, —, 130 S.Ct. 827, 834, — L.Ed.2d -, -(2010). The governing regulations also provide that the BIA “may at any time reopen or reconsider on" }, { "docid": "22763790", "title": "", "text": "ORDER Luis Jesus Vilchiz-Soto and Obdulia Resendiz-Ledesma, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen removal proceedings and reconsider a previous denial of their application for cancellation of removal. The BIA denied the motion to reconsider because petitioners failed to demonstrate any error of fact or law in the BIA’s September 22, 2011 decision, which was based on petitioners’ failure to demonstrate “exceptional and extremely unusual hardship” to their qualifying relatives. 8 C.F.R. § 1003.2(b)(1). The BIA also denied the motion to reopen because petitioners did not demonstrate reopening would be proper under 8 C.F.R. § 1003.2(c)(1). The government contends that we lack jurisdiction to review the denial of the motion to reconsider because petitioners’ challenge is nothing more than a challenge to the BIA’s discretionary determination that petitioners failed to establish that their removal would cause the requisite hardship to their qualifying relatives. Petitioners contend that we do have jurisdiction because they are not challenging the BIA’s discretionary determinations but instead, are challenging the BIA’s denial of the reconsideration motion on the ground that the BIA applied the wrong legal standard and failed to consider petitioners’ equities in support of their claim for cancellation of removal. Under 8 U.S.C. § 1252, we have jurisdiction to review final orders of removal. See Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). However, absent a colorable legal or constitutional claim, we lack jurisdiction to review the BIA’s discretionary determination that an alien failed to prove that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1252(a)(2)(B)® (stating in relevant part that “[njotwithstanding any other provision of law, no court shall have jurisdiction to review—-any judgment regarding the granting of relief under section ... 1229b [cancellation of removal]”). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (holding that an exceptional and extremely unusual hardship determination is a" }, { "docid": "23676410", "title": "", "text": "PER CURIAM: Maria Dolores Reynoso-Cisneros, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen exclusion proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review questions of law, including an agency’s determination of its own jurisdiction, de novo. See Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). We grant the petition for review and remand. This case is governed by our recent decision in Lin v. Gonzales, 473 F.3d 979 (9th Cir.2007). Lin was deported from the United States, re-entered unlawfully, and filed a motion to reopen his proceedings with an immigration judge (“IJ”). Id. at 980. The IJ denied the motion under 8 C.F.R. § 1003.23(b)(1), which states “[a] motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.” Id. We held that the regulation did not preclude jurisdiction over motions to reopen filed by petitioners, like Lin, who had been lawfully removed after the completion of immigration proceedings, and only barred motions filed by an individual “who departs the United States while he or she is the subject of removal ... proceedings.” Id. at 982 (internal citation omitted) (emphasis in original). Here, Reynoso-Cisneros was placed in exclusion proceedings and deported. She then re-entered and filed a motion to reopen with the BIA, claiming that a change in law now made her eligible for a waiver of inadmissibility under former section 212 of the Immigration and Naturalization Act. The BIA denied Rey-noso-Cisneros’ motion solely on the ground that it lacked jurisdiction under 8 C.F.R. § 1003.2(d), which states “[a] motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.” The regulation at issue in Lin applies to motions to reopen filed with an IJ, whereas the regulation at" }, { "docid": "22990979", "title": "", "text": "know ing that, under the BIA’s understanding of the Attorney General’s regulations, it was stripping the BIA of jurisdiction over his case. See In re Armendarez-Mendez, 24 I & N Dec. 646, 648 (BIA 2008). It is not for us to address the question of timing in the first instance, but rather for the agency tasked with the administration of IIRIRA. See Gonzales v. Thomas, 547 U.S. 183, 187, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006). Thus, we remand this issue to the BIA for its consideration. IV The BIA erred in refusing to entertain Martinez Coyt’s motion because it relied on a regulation that was invalid as applied to a forcibly removed petitioner. Therefore, we grant the petition and remand for further proceedings consistent with this opinion. Given our decision, we need not—and do not—decide any other question raised by the parties. PETITION GRANTED; REMANDED. . See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir.2007) (petitioner \"filed a motion to reopen with the BIA, requesting that it reissue its decision so [he] could timely appeal to this court”); see also Chen v. U.S. Atty. Gen., 502 F.3d 73, 75 (2d Cir.2007) (\"A motion to reissue is treated as a motion to reopen.” (citing Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 n. 2 (1st Cir.2006))). . In relevant part, 8 C.F.R. § 1003.4 states that ''[(Departure from the United States of a person who is the subject of ... removal proceedings, ... subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.” . Other circuits have considered whether 8 C.F.R. § 1003.2(d) and 8 C.F.R. § 1003.23(b)(1), a nearly identical provision relating to motions to reopen or reconsider filed before an immigration judge, can be applied to any removal—voluntary or involuntary—a question we need not, and do not, reach in this case. Those circuits are split. The Fourth Circuit has invalidated 8 C.F.R. § 1003.2(d) in its entirety." }, { "docid": "23122783", "title": "", "text": "seem wise to have specifically provided for, justify any judicial addition to the language of the statute.” United States v. Goldenberg, 168 U.S. 95, 103, 18 S.Ct. 3, 42 L.Ed. 394 (1897). We also note that at least some avenues of relief would remain open to an alien who was removed with an appeal pending. For example, an alien’s departure from the United States while in removal proceedings does not itself preclude the alien from filing a motion to reopen if the alien subsequently obtains reversal or vacatur of a conviction that formed a key part of the basis of the alien’s removability. E.g., Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106-07 (9th Cir.2006); see also Reyes-Torres v. Holder, 645 F.3d 1073, 1075-78 (9th Cir.2011); Coyt v. Holder, 593 F.3d 902, 907 (9th Cir.2010). Further, an alien who is time- and number-barred from obtaining consideration of a motion to reopen as a matter of right may petition the Board to reopen his or her case sua sponte. See 8 C.F.R. § 1003.2(a); cf. In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000) (concluding that a conviction vacated on the merits cannot form the basis for an alien’s removal). The Board regularly grants such requests when the alien’s underlying conviction has been vacated due to a substantive or procedural defect in the original criminal proceedings, concluding that such a change in the facts constitutes “exceptional circumstances” justifying further review of the alien’s case. Accordingly, we conclude that the first definition of “conviction” in § 1101(a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived. In reaching this conclusion, we join the well-reasoned opinions of the Second, Fifth, Seventh, and Tenth Circuits. See Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 332 (2d Cir.2007) (“IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute.”); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir.1999) (concluding that there is nothing in the" }, { "docid": "22228599", "title": "", "text": "REINHARDT, Circuit Judge. Luis Franco-Rosendo and Eulalia Zaca-rías de Franco, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals (“BIA”) decision of September 24, 2004, denying their motion to reopen. We grant their petition and remand to the BIA for further consideration. The petitioners entered the United States from Mexico without inspection on or about April 25, 1990. They are married and currently reside in Reedley, California with their four United States citizen children. On December 3, 2001, the petitioners were issued a Notice to Appear. In the subsequent hearing, the couple conceded removability but requested cancellation of removal. The Immigration Judge (“IJ”) denied their request. The IJ’s decision was affirmed by the BIA on the ground that the couple failed to demonstrate that their United States citizen children would suffer “exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(l)(D). The BIA instead granted voluntary departure. By the time voluntary departure was granted, however, the female petitioner had become seriously ill. The couple failed to pay their departure bond and thus, they argue, effectively declined the offer of voluntary departure. The couple then filed a timely motion to reopen on July 23, 2004, providing the BIA with information about the female petitioner’s illness and the likely effect on her four United States citizen children if their critically ill mother were deported. In its opinion, the BIA assumed that the couple’s failure to depart did not make them statutorily ineligible for relief, but denied the motion to reopen in the exercise of its discretion. Petitioners request review from this Court. We review BIA denials of motions to reopen for abuse of discretion. Medina-Morales v. Ashcroft, 371 F.3d 520, 529 (9th Cir.2004). The BIA abuses its discretion when it acts “arbitrarily, irrationally, or contrary to law.” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). In order for the court to exercise our limited authority, there must be a reasoned explanation by the BIA of the basis for its decision. Movsisian v. Ashcroft, 395 F.3d 1095," }, { "docid": "23122782", "title": "", "text": "legislation). We are bound by the subsequently enacted statute. See Metoyer v. Chassman, 504 F.3d 919, 932-33 (9th Cir.2007). Planes also urges that a plain-language interpretation of § 1101(a)(48)(A) would lead to unfair results because an alien could be “convicted” and removed from the United States even when an appeal as of right was pending. He asserts that if the alien obtained appellate relief outside of the ninety-day period for filing a motion to reopen, 8 C.F.R. § 1003.2(c)(2), or if the petitioner were number-barred from filing a motion to reopen, see id., the BIA would lack jurisdiction over such a motion and therefore could not provide any relief, see id. § 1003.2(c)(2), (d). This argument also fails. Regardless of our view on the wisdom or efficacy of Congress’s policy choices, we are not free to read in additional elements where the legislature has declined to include them. Jones v. Bock, 549 U.S. 199, 216-17, 127 5.Ct. 910, 166 L.Ed.2d 798 (2007). “No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute.” United States v. Goldenberg, 168 U.S. 95, 103, 18 S.Ct. 3, 42 L.Ed. 394 (1897). We also note that at least some avenues of relief would remain open to an alien who was removed with an appeal pending. For example, an alien’s departure from the United States while in removal proceedings does not itself preclude the alien from filing a motion to reopen if the alien subsequently obtains reversal or vacatur of a conviction that formed a key part of the basis of the alien’s removability. E.g., Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106-07 (9th Cir.2006); see also Reyes-Torres v. Holder, 645 F.3d 1073, 1075-78 (9th Cir.2011); Coyt v. Holder, 593 F.3d 902, 907 (9th Cir.2010). Further, an alien who is time- and number-barred from obtaining consideration of a motion to reopen as a matter of right may petition the Board to reopen his or her case sua sponte. See 8 C.F.R. § 1003.2(a); cf. In re Rodriguez-Ruiz," }, { "docid": "9283602", "title": "", "text": "was unwarranted. For the same reason, the BIA determined that Reyes's motion to reopen would have failed even if it had been timely. II. Reyes's petition for review argues that the BIA erred by denying his motion to reopen. Where we have jurisdiction, we review the BIA's denial of a motion to reopen for abuse of discretion. Sánchez-Romero v. Sessions, 865 F.3d 43, 45 (1st Cir. 2017). A motion to reopen generally must be filed within ninety days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Here, the BIA entered a final order of removal on October 9, 2012, and Reyes did not file his motion to reopen until February 23, 2017. His filings did not provide the BIA any reason why his submission should be considered timely. Consequently, the BIA held that Reyes had failed to justify the delay and dismissed his motion as untimely. That ruling can hardly be an abuse of discretion. III. Reyes also challenges the BIA's decision not to reopen sua sponte. This circuit has long held that \"sua sponte authority is committed to the unbridled discretion of the BIA, and the courts lack jurisdiction to review that judgment.\" Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (quoting Matos-Santana v. Holder, 660 F.3d 91, 94 (1st Cir. 2011) ). Reyes argues that we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) because his petition raises constitutional issues and questions of law. This court has not determined whether 8 U.S.C. § 1252(a)(2)(D) provides courts of appeals with jurisdiction to review, under certain circumstances, the BIA's sua sponte decision not to reopen. See Matias v. Sessions, 871 F.3d 65, 69 (1st Cir. 2017). We need not decide that issue here. Section 1252(a)(2)(D) only arguably applies to a petitioner's constitutional or legal challenges if they are colorable, see Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010) (citing Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006) ), and Reyes's are not. Reyes argues that the BIA's decision not to reopen sua sponte denied Reyes due process and so raises a constitutional claim." }, { "docid": "22920753", "title": "", "text": "challenges the Board’s refusal to reopen and reconsider his removal proceedings. Reyes-Torres also contends that the immigration courts erred when they held that his 1984 conviction for alien smuggling constitutes an aggravated felony. I would deny Reyes-Torres’s petition for review on both issues. II. Reyes-Torres’s motion to reopen and reconsider his removal proceedings was denied based on the Board’s departure bar, which is set forth at 8 C.F.R. § 1003.2(d). That section, enacted by the United States Attorney General, provides: A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. Id. Relying on Coyt v. Holder, 593 F.3d 902 (9th Cir.2010), the majority concludes that the departure regulation cannot stand in this case because Reyes-Torres was involuntarily deported. In my view, the majority should have given appropriate deference to the Board’s reasonable interpretation of its own regulation. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (requiring deference to an agency’s interpretation of an ambiguous statutory or regulatory provision unless the agency’s interpretation is unreasonable). The Board has explained that it lacks the power to provide administrative relief to an alien who has departed the territory of the United States. In re Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). Since the early 1950s, the Board has consistently maintained this position and regularly applied this bar to departed aliens. See In re G-Y B-, 6 I. & N. Dec. 159 (BIA 1954). The Board defines section 1003.2(d) as jurisdictional. Armendarez-Mendez, 24 I. & N. Dec. at 652. Thus, the Board explains that this regulatory bar limits its adjudicative authority and capacity to" }, { "docid": "7194491", "title": "", "text": "McKAY, Circuit Judge. Petitioner Jesus Contreras-Bocanegra seeks review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen removal proceedings. Unfortunately, his motion was not filed until months after his deportation from the United States. Although we may be sympathetic to Mr. Contreras’s plight, we are not persuaded by his attempts to distinguish this case from our recent precedent upholding the post-departure bar as a complete jurisdictional bar against motions to reopen. We therefore deny the petition for review. BACKGROUND Mr. Contreras, a native of Mexico, became a lawful permanent resident in 1989. In 1991, he was convicted of attempted possession of a controlled substance which, upon his reentry into the United States in 2004, subjected him to removal proceedings under the Immigration and Nationality Act. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Department of Homeland Security began removal proceedings, and, in November 2007, an immigration judge (IJ) entered an order of removal against Mr. Contreras and denied his application for cancellation of removal. The BIA agreed and dismissed his appeal in March 2009. We also agreed and denied his petition for review. See Contreras-Bocanegra v. Holder, 376 Fed.Appx. 817, 823 (10th Cir.2010). Mr. Contreras was removed from the United States on April 9, 2009, soon after the BIA decision. In June 2009, he filed a timely motion to reopen in which he alleged ineffective assistance of counsel in the removal proceeding. The BIA dismissed the motion for lack of jurisdiction, stating that, pursuant to 8 C.F.R. § 1003.2(d), it could not reopen removal proceedings once the alien has departed the United States after the completion of those administrative proceedings. See In re: Jesus Contreras-Bocanegra, 2009 WL 5252777 (BIA Dec. 11, 2009). This appeal followed. DISCUSSION The threshold issue is whether 8 C.F.R. § 1003.2(d) precludes consideration of a removed alien’s motion to reopen when filed within the statutory time limit of ninety days. Our review is de novo. See Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007). In existence since 1952, the post-departure bar prohibits the BIA and IJ from hearing motions to reopen or reconsider" }, { "docid": "22921843", "title": "", "text": "HARTZ, Circuit Judge. This case deals with two separate petitions by Mr. Luis Galvez Piñeda and his family for review of decisions by the Board of Immigration Appeals (BIA or Board). The First Petition seeks review of the BIA’s summary dismissal of the Pinedas’ appeal for failure to file a brief, and the Second Petition seeks review of the BIA’s denial of their motion to reopen as untimely. We affirm both decisions of the BIA. Mr. Piñeda entered the United States on a visitor’s visa on July 28, 1999, and his wife and four teenaged children followed several months later. After remaining past the time allowed on their visas, the Piñedas applied for asylum and withholding of removal. On November 13, 2001, the immigration judge (IJ) denied the applications and ordered them removed to the Philippines. They filed a timely notice of appeal with the BIA. When their counsel failed to file a brief in support of the appeal, after indicating on the notice-of-appeal form that they would do so, the BIA summarily dismissed the appeal on December 9, 2002, as authorized by 8 C.F.R. § 1003.1(d)(2)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(E)). The Piñedas then acquired new counsel and on June 22, 2004, filed a motion to reopen with the BIA, claiming that their first counsel’s ineffective assistance on appeal had deprived them of due process. See 8 C.F.R. § 1003.2(c). The BIA denied that motion because it was not filed within the 90-day period set by 8 C.F.R. § 1003.2(c)(2), and the Piñedas had not shown sufficient diligence to justify equitable tolling of the period. Both the First and Second Petitions challenge final orders of removal that are subject to our review under 8 U.S.C. § 1252(a)(1). See Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir.2004) (the BIA’s denial of a motion to reopen “is considered a final, separately appealable order”). The petitions have been consolidated as required by 8 U.S.C. § 1252(d)(6). I. FACTS A. Background Mr. Piñeda, his wife, Maria, and their children, Johanna, Robinson, Darwin and Amiel, are all natives and citizens of the Philippines." } ]
44273
United States v. Prevatte, 16 F.3d 767 (7th Cir.1994), aff'd. in part, rev’d in part, dismissed in part, 66 F.3d 840 (7th Cir.1995), we affirmed the district court’s conclusion that a defendant convicted of maliciously destroying property by means of explosives could be sentenced under the first degree murder guideline for the deaths that resulted from the explosion. We looked to the defendant’s offense of conviction and reasoned that it was sufficiently similar to arson, one of the offenses enumerated in the felony murder statute. Because the defendant’s offense of conviction was sufficiently similar to one of the predicate felonies, it supported the selection of first degree felony murder as the most analogous offense guideline. Id. at 780; see also REDACTED We do not need to determine in this case whether, as Fortier stated, a formal charge on the predicate offense is essential, or whether it is proper to use real-offense principles, as United States v. Greene, 834 F.2d 1067, 1071-72 (D.C.Cir.1987), holds. Cf. United States v. Taylor, 272 F.3d 980 (7th Cir.2001) (treating enhancement under § 2K2.1(a) as an example of a real-offense component in the Guidelines). The subject is not presented by the case in its current posture, because the district court did not address the question
[ { "docid": "10436047", "title": "", "text": "an abuse of discretion. In remanding the case for resentencing, we also note an argument not raised by the defense on appeal but which the district court may wish to consider. The pre-sen-tence report determined that Martin’s offense level was 43 because it viewed his arson as akin to first degree murder. The federal murder statute, 18 U.S.C. § 1111(a), defines as first degree murder “[e]very murder ... committed in the perpetration of ... any arson.” Murder is defined as the “unlawful killing of a human being with malice aforethought.” Id. Martin’s indictment charged him with, and the jury convicted him of, “maliciously” damaging and destroying a building used in interstate commerce, which destruction proximately caused the deaths of two fire fighters. While the scenario just described certainly may be characterized as a felony murder, Martin was not convicted of that crime, and the district court did not specifically find him to have so acted in employing the guideline for first degree murder. Several courts have concluded that U.S.S.G. § 2A1.1, rather than any other homicide guideline, is properly applied to facts similar to this case. United States v. Ryan, 9 F.3d 660, 671 (8th Cir.1993), modified, 41 F.3d 361 (8th Cir.1994) (en banc); United States v. El-Zoubi, 993 F.2d 442, 449-50 (5th Cir.1993); United States v. Paden, 908 F.2d 1229, 1233 (5th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 710, 112 L.Ed.2d 699 (1991). In Prevatte, we also concluded that § 2A1.1 was the proper guideline in a case where an intended explosion unintentionally caused a death. 16 F.3d at 780-82. Our decision in Menzer did accept a district court’s decision to apply the second degree murder guideline, U.S.S.G. § 2A1.2, to a ease in which two persons sleeping in a building were killed when the defendant set fire to the building, although in that case the parties had not challenged the appropriateness of the base offense level determination. 29 F.3d at 1234-35. Because the guidelines ask the sentencer to make an analogy based on the particulars of the case, we decline to direct the use of one" } ]
[ { "docid": "5853503", "title": "", "text": "disparity and the need to provide restitution to victims. 28 U.S.C. § 3553(a)(2), (4)-(7). VII. PRISON A. Arson Resulting in Death Sentencing for arson is controlled by Sentencing Guidelines § 2K1.4. Because death resulted, § 2K1.4(c)(l) directs utilization of the “most analogous guideline” from the homicide section of part A relating to chapter two — offenses against the person. Guidelines § 2A1.1 provides for life imprisonment for murder in the first degree. Per 18 U.S.C. § 1111(a), murder in the first degree includes death caused by arson. First degree murder under Guidelines § 2A1.1 with a base offense level of 43 is the crime most analogous to the charged offense, arson causing death. United States v. Prevatte, 66 F.3d 840, 842-844 (7th Cir. 1995); United States v. Martin, 63 F.3d 1422,1433 (7th Cir.1995) (death of a firefighter requires application of Guidelines § 2A1.1); United States v. Ryan, 9 F.3d 660, 672 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); United States v. El-Zoubi, 993 F.2d 442, 450-51 (5th Cir.1993). Section 1111(a) of the United States Statutes, covering murder in the first degree, incorporates essentially the common law definition which includes the phrase “killing” “in the perpetuation of’ “any arson as first degree murder.” The section provides: Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. (Emphasis supplied.) Murder in the first degree would normally be punishable by imprisonment for life or death. 18 U.S.C. § 1111(b). The Guidelines commentary under first degree murder permits a discretionary downward departure based on reduced culpability. U.S.S.G. § 2A1.1 cmt. No. 1. It reads: The Commission has concluded that in" }, { "docid": "22269353", "title": "", "text": "felony murder expresses a highly artificial concept that generally deserves no extension beyond its required application. See People v. Phillips, 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353, 360 (1966), overruled on other grounds by People v. Flood, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869 (1998). In keeping with our desire not to unduly expand the doctrine, we hold our decision in the context of sentencing must be made with 18 U.S.C. § 1111(a) as a guide. Ultimately, our task is to determine whether Mr. Nichols’ offense of conviction, as charged and described in Count One of the indictment, could serve as a predicate felony under section 1111(a). We believe it can. The substantive offense of using an explosive weapon of mass destruction is functionally equivalent to the “arson” listed in 18 U.S.C. § 1111(a). See United States v. Gullett, 75 F.3d 941, 948-49 (4th Cir.1996) (reaching the same conclusion with respect to cases involving explosive devices under 18 U.S.C. § 844(i)); United States v. Prevatte, 16 F.3d 767, 779-82 (7th Cir.1994) (same). The court in Prevatte persuasively noted that when death results, crimes involving explosive devices should be treated no differently under the felony-murder rule than those involving arson. [T]o hold that a death caused by fire could be punished under the first degree murder guideline but that a death caused by a bomb was to be punished more leniently ... would attribute to Congress a result that would be anything but realistic or rational. We decline to attribute such a result to the legislative branch. Id. at 782. We agree with the Seventh Circuit’s conclusion and extend its reasoning to an offense involving explosives under 18 U.S.C. § 2332a. The fact Mr. Nichols was convicted of conspiring to use an explosive weapon of mass destruction, and was in fact acquitted of the substantive charge, does not alter our conclusion. Section 2332a makes no distinction between a person who uses a weapon of mass destruction or conspires to use one. The statute provides in pertinent part: A person who uses, or attempts or conspires to use," }, { "docid": "22269354", "title": "", "text": "(same). The court in Prevatte persuasively noted that when death results, crimes involving explosive devices should be treated no differently under the felony-murder rule than those involving arson. [T]o hold that a death caused by fire could be punished under the first degree murder guideline but that a death caused by a bomb was to be punished more leniently ... would attribute to Congress a result that would be anything but realistic or rational. We decline to attribute such a result to the legislative branch. Id. at 782. We agree with the Seventh Circuit’s conclusion and extend its reasoning to an offense involving explosives under 18 U.S.C. § 2332a. The fact Mr. Nichols was convicted of conspiring to use an explosive weapon of mass destruction, and was in fact acquitted of the substantive charge, does not alter our conclusion. Section 2332a makes no distinction between a person who uses a weapon of mass destruction or conspires to use one. The statute provides in pertinent part: A person who uses, or attempts or conspires to use, a weapon of mass destruction ... shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life. 18 U.S.C. § 2332a(a) (1994). Congress did not create different punishments for the conspiracy or underlying substantive offense, leading to the inference it viewed the two as equivalent in consequence and severity. This is especially so because Congress normally treats conspiracy as a crime punished by no more than five years of imprisonment. See 18 U.S.C. § 371 (1994). The legislature’s special treatment strongly suggests we should not distinguish between using an explosive weapon of mass destruction or con spiring to do so in determining the proper punishment in this case. Furthermore, the felony-murder statute does not require actual commission of the predicate offense. Rather, the statute provides that inchoate offenses, such as an attempt to commit the crime, are also sufficient. See 18 U.S.C. § 1111(a) (1994). This lends further support for concluding that conspiring to use an" }, { "docid": "20812593", "title": "", "text": "also argues that the district court erred in arriving at his sentence. First, he contends that the district court erred in its application of the Sentencing Guidelines. Second, Gullett contends that the district court exceeded statutory limits when it sentenced him to thirty-eight years’ imprisonment. We find no merit to these contentions. Addressing Gullett’s contention that the district court erred in its application of the Sentencing Guidelines, we begin by noting that United States Sentencing Commission, Guidelines Manual (USSG), § 1B1.2 (Nov.1993) directs the sentencing court to “[d]etermine the offense guideline section in Chapter Two (Offense Conduct) most appli-' cable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted).” “As a general rule, the court is to use the guideline section from Chapter Two most applicable to the offense of conviction.” USSG § 1B1.2, comment, (n.l). “The Statutory Index (Appendix A) provides a listing to assist in this determination.” Id. The Statutory Index refers a sentencing court to USSG § 2K1.4 (“Arson; Property Damage by Use of Explosives”) for violations of section 844(i). USSG § 2K1.4 does not contain an enhancement when death results from the commission of the arson or the use of the explosives. Instead, when death results, USSG § 2K1.4(c)(l) directs the sentencing court to apply the “most analogous” guideline offense from Chapter Two, Part A: If death resulted, or the offense was intended to cause death or serious bodily injury, apply the most analogous guideline from Chapter Two, Part A (Offenses Against the Person) if the resulting offense level is greater than that determined above. Following these directives, the district court correctly applied the guideline for first degree murder, USSG § 2A1.1, because death resulted from the use of an explosive. See United States v. Prevatte, 16 F.3d 767, 781-82 (7th Cir.1994) (USSG § 2A1.1 is the most analogous guideline if death results from the use of fire or explosives); United States v. El-Zoubi, 993 F.2d 442, 449 (5th Cir.1993) (if death results from the-use of fire, USSG § 2A1.1 is" }, { "docid": "22175448", "title": "", "text": "is structured with the felony-murder rule in mind. First, it incorporates the rule by stating that the first-degree murder guideline also applies when death results from the commission of certain felonies. See Nichols, 169 F.3d at 1272 (stating section 2A1.1 incorporates the felony-murder rule). Second, the Commission opines that life imprisonment is not necessarily appropriate where felony murder is involved. This makes sense. In such a case, the death of the victim is often an accident stemming from the defendant’s commission of another dangerous felony. To mitigate the harshness of applying a base offense level of 43 in such a case, and to distinguish the defendant from another who intended to kill the victim, the Guide lines encourage a downward departure. Third, the application note refers to a defendant’s negligent state of mind, something out of place in a malice murder case. And fourth, the note speaks twice of considering the “underlying offense,” a reference, in our judgment, to the underlying predicate felony to felony murder. The note’s language leads to the ineluctable conclusion the discretionary departure only applies when a court selects section 2A1.1 by means of the felony-murder rule. Accord United States v. Tocco, 135 F.3d 116, 131 (2d Cir.), cert. denied, — U.S. —, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998); Gullett, 75 F.3d at 949; United States v. Prevatte, 66 F.3d 840, 844 (7th Cir.1995); Prevatte, 16 F.3d at 784-85; United States v. El-Zoubi, 993 F.2d 442, 450 (5th Cir.1993). It therefore follows section 2A1.1 n.l may not be used, as the government suggests, as an excuse to apply the first-degree murder guideline in a case where there is no malice aforethought and no proper predicate felony to felony murder. In rejecting the government’s argument, we further note our holding on this point has the effect of invalidating the three-level downward departure Mr. Fortier received under 2A1.1 n.l. The next two potential guidelines we discuss are section 2A1.2, the guideline for second-degree murder, and section 2A1.5, the guideline for conspiracy to commit murder. Neither applies here. Like their more serious counterpart of first-degree murder, both second-degree" }, { "docid": "6162628", "title": "", "text": "count. It is this second sentence at issue in , this appeal. II. Analysis In reviewing the sentence imposed by the district court, we review factual determinations underlying the application of the sentencing guidelines for clear error; interpretation of a guidelines provision is a legal question we review de novo. United States v. Taylor, 272 F.3d 980, 982 (7th Cir.2001). Application of the homicide cross-reference is reviewed for clear error. United States v. Westmoreland, 240 F.3d 618, 635 (7th Cir.2001). Generally, the federal sentencing guideline applicable to a violation of 18 U.S.C. § 922(g)(1), prohibiting possession of a firearm by a felon, is § 2K2.1, which pro vides for varying base offense levels depending on the offense and offender characteristics. See U.S.S.G. § 2K2.1(a), (b) (2002). Additionally, § 2K2.1(c) provides for a “Cross Reference,” authorizing a sentencing court to look to other guidelines provisions to impose a higher sentence on an offender under certain circumstances. In this case, Trimaine was sentenced pursuant to the homicide cross-reference found in § 2K2.1(c)(l)(B): If the defendant used or possessed any firearm ... in connection with the commission ... of another offense ... apply ... (B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above. U.S.S.G. § 2K2.1(c)(l). The district court reasoned that because Trimaine had been arrested for possession of the same firearm he had previously used during the armed-robbery/felony-murder incident four days earlier, the homicide cross-reference applied. Employing that provision, the district court determined Trimaine’s base offense level to be 29, adjusted that level downward to 26 based on the defendant’s acceptance of responsibility, and accordingly sentenced Trimaine to the statutory maximum of 120 months imprisonment. According to the presentence investigation report, had the district court found the homicide cross-reference inapplicable, Trimaine would have faced a base offense level of 20, with a corresponding sentence range of 63 to 78 months. In this appeal, Trimaine argues that it was error for the district court to consider the armed-robbery/felony-murder episode of September 30th in determining" }, { "docid": "22175441", "title": "", "text": "within the realm of relevant conduct must be proven by a preponderance of the evidence. See United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993). As we noted earlier, we have assumed that Mr. Fortier’s sale of the weapons falls within the ambit of the cross reference. Therefore, we solely address the district court’s selection of the most analogous guideline. Chapter 2A1 governs homicide offenses and provides us with the following options: 2A1.1, first-degree murder; 2A1.2, second-degree murder; 2A1.3, voluntary manslaughter; 2A1.4, involuntary manslaughter; and '2A1.5, conspiracy to commit murder. Mr. Fortier argues for section 2A1.4, while the government sides with the district court’s application of section 2A1.1. The court selected the more serious guideline because it opined “the plain meaning of § 2K2.1(c)(l) suggests that the court can, and should, look to the nature of the crime that a defendant facilitated by transferring defendant’s own intent.” Because the other crime was a bombing which resulted in 168 deaths, the court felt it appropriate to attach the severe consequences of the first-degree murder guideline. As expected, Mr. Fortier disagrees with this conclusion. In United States v. Nichols, 169 F.3d 1255 (10th Cir.1999), a case not available to the trial court at sentencing, we discussed what is required for a sentencing court to permissibly select section 2A1.1 as the most analogous guideline. There, we remarked a court may in this context choose the first-degree murder guideline in only two circumstances: first, if evidence presented at trial or an evidentiary hearing demonstrates by a preponderance of the evidence that the defendant harbored malice aforethought and premeditation, see id. at 1272, 1275-76, or second, in the absence of such evidence, if the defendant’s offense of conviction could serve as a predicate to the felony-murder rule found in 18 U.S.C. § 1111(a), see id. at 1272-75. Neither circumstance is present in this case. There is no evidence in the record from which one can infer that it was more likely than not Mr. Fortier harbored malice and premeditation. First, the district court found, and both parties agree, Mr. Fortier did not harbor malice" }, { "docid": "21095655", "title": "", "text": "confederates is set forth in detail in our earlier opinion and need not be repeated here. Suffice it to say that a grand jury returned a twenty-one count indictment against Prevatte and Soy. Among other things, the grand jury charged the defendants with: (1) maliciously conspiring to damage or destroy property by means of an explosive in violation of 18 U.S.C. § 844(i); (2) maliciously damaging or destroying property by means of an explosive in violation of 18 U.S.C. § 844(i); and (3) making a firearm, statutorily termed a “destructive device,” in violation of 26 U.S.C. §§ 5845(f), 5861(f) and 18 U.S.C. § 2. A jury convicted Prevatte and Soy of fourteen of the twenty-one counts of the indictment, including the violation of 18 U.S.C. § 844(i) that involved the death of Emily Antkowicz. At sentencing, the defendants submitted that the district court should apply the guideline for second degree murder as the one most closely analogous to the conviction. The district court disagreed. The court found that the December 23, 1991 test bombing was, within the meaning of the statute, an act of arson because it involved destruction of property. At the imposition of sentence, the court first noted that 18 U.S.C. § 844(i) refers the court to U.S.S.G. § 2K1.4(c). That section in turn directs the court to the “most analogous” guideline offense from Chapter Two, Part A. The court then noted that the murder statute, 18 U.S.C. § 1111, provides that every murder committed in perpetration of or an attempt to perpetrate any arson, burglary or robbery, is murder in the first degree. Because the offense charged was arson, the court held that first degree murder was the most analogous offense. The court therefore determined that the applicable U.S.S.G. assessment was: total offense level 43, criminal history category I. Accordingly, the court sentenced the defendants to life imprisonment. On their first appeal to this court, Prevatte and Soy submitted that the district court erred in allowing the jury to hear evidence of the uncharged crimes surrounding the bombing dates. Both defendants disputed the district comb’s sentencing determination" }, { "docid": "21095656", "title": "", "text": "within the meaning of the statute, an act of arson because it involved destruction of property. At the imposition of sentence, the court first noted that 18 U.S.C. § 844(i) refers the court to U.S.S.G. § 2K1.4(c). That section in turn directs the court to the “most analogous” guideline offense from Chapter Two, Part A. The court then noted that the murder statute, 18 U.S.C. § 1111, provides that every murder committed in perpetration of or an attempt to perpetrate any arson, burglary or robbery, is murder in the first degree. Because the offense charged was arson, the court held that first degree murder was the most analogous offense. The court therefore determined that the applicable U.S.S.G. assessment was: total offense level 43, criminal history category I. Accordingly, the court sentenced the defendants to life imprisonment. On their first appeal to this court, Prevatte and Soy submitted that the district court erred in allowing the jury to hear evidence of the uncharged crimes surrounding the bombing dates. Both defendants disputed the district comb’s sentencing determination on two grounds. First, the defendants challenged the district court’s decision that the guideline for first degree murder, U.S.S.G. § 2A1.1, provided the most closely analogous guideline. Second, the defendants contended that, under § 844(i), life sentences may be imposed only after a jury recommendation, pursuant to 18 U.S.C. § 34. We held that the first degree murder guideline was indeed applicable to the charged crimes. We stated: [W]e believe that the bombing at issue is sufficiently similar to arson to apply the first degree murder guideline on this basis. This conclusion rests on our understanding of the language and history of 18 U.S.C. § 844(i). United States v. Prevatte, 16 F.3d 767, 780 (7th Cir.1994). We also noted that, in interpreting the statutory language of § 844(i) in conjunction with 18 U.S.C. § 34, it is unlawful to impose a life sentence absent jury direction. Because the issue of the life sentence had not been submitted to the jury, we held that the imposition of a life sentence was reversible error. We also noted" }, { "docid": "22175444", "title": "", "text": "robbery ... is murder in the first degree.” 18 U.S.C. § 1111(a) (1994). In Nichols we announced a restrictive use of the doctrine at sentencing: [W]e [first] note that courts are not bound by the constraints of section 1111(a) at sentencing.... [¶] [W]e nevertheless think it appropriate to work within the scope of that statute. The doctrine of felony murder expresses a highly artificial concept that generally deserves no extension.... In keeping with our desire not to unduly expand the doctrine, we hold our decision in the context of sentencing must be made with 18 U.S.C. § 1111(a) as a guide. 169 F.3d at 1272-73 (citations omitted). The limitations found in that statute are poison to the government’s position in this case. Mr. Fortier pleaded guilty to conspiring to transport stolen firearms, transporting stolen firearms, making a materially false statement to the FBI, and misprision of a felony. Not one of these offenses comes even close to the predicate felonies described in section 1111(a). Cf. Nichols, 169 F.3d at 1273-74 (conspiring to use an explosive weapon of mass destruction is the functional equivalent of attempted arson); United States v. Gullett, 75 F.3d 941, 949 (4th Cir.1996) (maliciously damaging a building by means of explosives is equivalent to arson); United States v. Prevatte, 16 F.3d 767, 781-82 (7th Cir.1994) (same). Therefore, the last possible door to section 2A1.1 is unavailable. The district court should not have selected that guideline as the most analogous. Before proceeding with an analysis of the remaining Chapter 2A1 guidelines, we address an argument which the government contends would permit the district court to apply section 2A1.1 in spite of the absence of malice aforethought and a proper predicate felony to felony murder. One of the application notes found in that guideline provides that the sentencing court may depart downward in cases where “the defendant did not cause the death intentionally or knowingly.” 1994 U.S.S.G. § 2A1.1 n.l. This discretionary departure, the government argues, evinces the Sentencing Commission’s view that district courts may apply section 2A1.1 as the most analogous offense guideline even in cases such as" }, { "docid": "12396025", "title": "", "text": "Two, Part A. United States v. Prevatte, 16 F.3d 767, 780 (7th Cir.1994). As a result, to establish that the district court erred in imposing a sentence by reference to the first-degree murder sentencing guideline, it would not be sufficient for Tham to identify any distinction between the offense of conviction and the offense referenced by the guideline. Instead, Appellant Tham would have to demonstrate that some other guideline in Chapter Two, Part A was more analogous to the offense of conviction than the guide line selected by the district court. Rather than attempt to shoulder this burden, Appellant Tham blithely states that no guideline in Chapter Two, Part A would be analogous. . For the sake of clarity, we note that the evidence does not compel the conclusion that Tony Tham directly caused his own death. It is equally possible that Tham’s death resulted from actions taken by coparticipant Simon Kwong. For example, it might have been Kwong, not Tony Tham, who spread gasoline near the pilot light for the water heater, thereby triggering the explosion that sparked the deadly fire. We need not explore this point further, however, because we conclude that the federal felony murder statute provides the closest analog to the crime for which Appellant Tham was convicted even if it could be shown that Tony Tham's death was self-induced. . Of course, a legislature might rationally decide that considerations other than deterrence justify limiting the scope of the felony murder rule to deaths of nonparticipants. In fact, several state legislatures have expressly limited felony murder liability to the killing of one other than a participant in the underlying felony. See, e.g., Alaska Slat. § 11.41.110; Colo.Rev.Stat. § 18-3-102; Conn. Gen.Stat. § 53a-54c; N.J. Stal. Ann. § 2C:ll-3; N.Y. Penal Law § 125.25; Or.Rev. Slat. § 163.115; Utah Code Ann. § 76-5-203; Wash. Rev.Code § 9A.32.030. Significantly, no similar express restriction appears in the federal felony murder statute. . It strikes us as self-evident that the federal felony murder rule applies only when the death of someone other than the individual sought to be prosecuted results." }, { "docid": "12396024", "title": "", "text": "risk to arson participants as a valid basis for sentence enhancement because arson is considered inherently dangerous to the arsonist. United States v. Martinez, 16 F.3d 202, 205 (7th Cir.), cert. denied, 513 U.S. 886, 115 S.Ct. 226, 130 L.Ed.2d 152 (1994). An inherent, as distinguished from a contingent, characteristic of an offense cannot be used to pick out an aggravated version of the offense. United States v. Lallemand, 989 F.2d 936, 939-40 (7th Cir. 1993). By contrast, endangerment of nonparticipants is not considered inherent in arson, so the existence of such a risk boosts the base offense level. See Martinez, 16 F.3d at 205. . Although not of significance in the instant case, we cannot agree with Appellant Tham's assumption that the guideline selected must be perfectly analogous in every respect. As the directive of § 2K1.4 is to use the most analogous guideline from Chapter Two, Part A, the district court need not search for an exact match between the conduct underlying the conviction and the conduct covered by a guideline in Chapter Two, Part A. United States v. Prevatte, 16 F.3d 767, 780 (7th Cir.1994). As a result, to establish that the district court erred in imposing a sentence by reference to the first-degree murder sentencing guideline, it would not be sufficient for Tham to identify any distinction between the offense of conviction and the offense referenced by the guideline. Instead, Appellant Tham would have to demonstrate that some other guideline in Chapter Two, Part A was more analogous to the offense of conviction than the guide line selected by the district court. Rather than attempt to shoulder this burden, Appellant Tham blithely states that no guideline in Chapter Two, Part A would be analogous. . For the sake of clarity, we note that the evidence does not compel the conclusion that Tony Tham directly caused his own death. It is equally possible that Tham’s death resulted from actions taken by coparticipant Simon Kwong. For example, it might have been Kwong, not Tony Tham, who spread gasoline near the pilot light for the water heater, thereby triggering" }, { "docid": "5853502", "title": "", "text": "afford adequate deterrence to criminal conduct; (C) to protect the 'public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; Id. See United States v. Guiro, 887 F.Supp. 66 (E.D.N.Y.1995) (sentencing options available for defendants must be compatible with the statutory directives); United States v. Abbadessa, 848 F.Supp. 369, 378-79 (E.D.N.Y.1994) (statute requires that the most appropriate sentence be imposed taking into account a defendant’s special circumstances), vacated, remanded sub nom., United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995); United States v. Concepcion, 795 F.Supp. 1262, 1271 (E.D.N.Y.1992) (the Sentencing Guidelines do not alleviate the court’s sentencing burden with respect to the statutory directives under 18 U.S.C. § 3553(a)), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995). Other factors the court considers in sentencing include the kinds and ranges of sentences found in the applicable Sentencing Guidelines, policy statements of the Sentencing Commission, the need to avoid sentencing disparity and the need to provide restitution to victims. 28 U.S.C. § 3553(a)(2), (4)-(7). VII. PRISON A. Arson Resulting in Death Sentencing for arson is controlled by Sentencing Guidelines § 2K1.4. Because death resulted, § 2K1.4(c)(l) directs utilization of the “most analogous guideline” from the homicide section of part A relating to chapter two — offenses against the person. Guidelines § 2A1.1 provides for life imprisonment for murder in the first degree. Per 18 U.S.C. § 1111(a), murder in the first degree includes death caused by arson. First degree murder under Guidelines § 2A1.1 with a base offense level of 43 is the crime most analogous to the charged offense, arson causing death. United States v. Prevatte, 66 F.3d 840, 842-844 (7th Cir. 1995); United States v. Martin, 63 F.3d 1422,1433 (7th Cir.1995) (death of a firefighter requires application of Guidelines § 2A1.1); United States v. Ryan, 9 F.3d 660, 672 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); United States v. El-Zoubi, 993 F.2d 442, 450-51 (5th Cir.1993)." }, { "docid": "22269342", "title": "", "text": "not specify the guideline section or sections ordinarily applicable to 18 U.S.C. § 2332a. See 1994 U.S.S.G.App. A. Thus, the district court was required to “apply the most analogous offense guideline ... [or,][i]f there is not a sufficiently analogous guideline, [to sentence the defendant according to] the provisions of 18 U.S.C. § 3553(b).” 1994 U.S.S.G. § 2X5.1. The district court stated it was inclined to apply section 2A1.1 as the most analogous guideline because the jury found that (1) the object of the conspiracy was to use a weapon of mass destruction against persons inside the Murrah building, (2) death resulted from the conspiracy, and (3) the deaths were foreseeable. The court also equated Mr. Nichols’ conduct to first-degree felony murder because the “deaths resulted in the course of the commission of a felony,” namely, conspiring to use an explosive weapon of mass destruction. The court reasoned that “while the case, of course, was not tried on felony murder theory or approach and felony murder was, of course, not submitted to the jury, the situation now is different because we’re not looking at the liability; we’re looking at the punishment that is appropriate.” To properly analyze this issue, we believe we must first review the paradigm within which the district court applied the Guidelines in this case. Section 2X5.1 requires the trial court to “determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous.” 1994 U.S.S.G. § 2X5.1 comment (backg’d). Thus, the first step required the district court to determine whether any guideline, and there can be more than one, is sufficiently analogous to the defendant’s crime of conviction. Whether there is a sufficiently analogous guideline to a particular crime is generally a task of comparing the elements of the defendant’s crime of conviction to the elements of federal offenses already covered by a specific guideline. See United States v. Allard, 164 F.3d 1146, 1149 (8th Cir.1999); United States v. Osborne, 164 F.3d 434, 437 (8th Cir.1999). The determination on this point is a purely legal one, and the district" }, { "docid": "18901833", "title": "", "text": "§ 844(i). To apply the first degree murder guideline when death results from fire, but to apply a different guideline when death results from explosives, would yield a bizarre result that would thwart congressional intent in enacting the 1982 amendments. If we were to read the statute as the defendants invite us to read it, and hold that a death caused by fire could be punished under the first degree murder guideline but that a death caused by a bomb was to be punished more leniently, we could, no doubt, reach a semantically plausible result. However, such a reading would attribute to Congress a result that would be anything but realistic or rational. We decline to attribute such a result to the legislative branch. Congress understandably equated the killing of a human being by burning and the killing of a human being by explosion. Thus, we conclude that the court correctly applied the first degree murder guideline. See also United States v. Martinez, 16 F.3d 202 (7th Cir.1994) (holding that murder guideline is appropriate when death results from arson but not reaching issue of whether first or second degree murder guideline is appropriate because the district court, although initially applying the guidelines for first degree murder, had departed downward pursuant to Application Note 1 to U.S.S.G. § 2A1.1 on the ground that the death was not caused intentionally or knowingly). 2. After determining the applicable guideline, the district court then calculated the sentence. Guideline § 2A1.1 gives a base offense level of 48. After factoring in a criminal history category, this calculation yielded a sentence of life imprisonment for both defendants. The defendants submit, however, that the district court was without authority to impose a life sentence. Specifically, they contend that this determination must be made by a jury. We first look at the statutory language to determine who may impose a life sentence for this crime. Section 844(i) provides: Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate" }, { "docid": "20812594", "title": "", "text": "2K1.4 (“Arson; Property Damage by Use of Explosives”) for violations of section 844(i). USSG § 2K1.4 does not contain an enhancement when death results from the commission of the arson or the use of the explosives. Instead, when death results, USSG § 2K1.4(c)(l) directs the sentencing court to apply the “most analogous” guideline offense from Chapter Two, Part A: If death resulted, or the offense was intended to cause death or serious bodily injury, apply the most analogous guideline from Chapter Two, Part A (Offenses Against the Person) if the resulting offense level is greater than that determined above. Following these directives, the district court correctly applied the guideline for first degree murder, USSG § 2A1.1, because death resulted from the use of an explosive. See United States v. Prevatte, 16 F.3d 767, 781-82 (7th Cir.1994) (USSG § 2A1.1 is the most analogous guideline if death results from the use of fire or explosives); United States v. El-Zoubi, 993 F.2d 442, 449 (5th Cir.1993) (if death results from the-use of fire, USSG § 2A1.1 is the most analogous guideline). Under USSG § 2Al.l(a), Gullett’s base offense level was forty-three, and the district court increased Gullett’s offense level by two levels for obstruction of justice, USSG § 3C1.1. Combined with a criminal history category of one, Gullett’s guideline range was life. At this point, the district court was free to depart downward as USSG § 2A1.1 authorizes a downward departure — but not below the offense level specified in USSG § 2A1.2 (“Second Degree Murder”) — “[i]f the defendant did not cause the death intentionally or knowingly.” USSG § 2A1.1, comment, (n.l). Gullett did not move for a downward departure, and one was not warranted because .the district court found that Masil Lee Hensley’s death was a “premeditated killing ... in which the defendant acted with malice.” (J.A. 443). However, the district court was not in a position to sentence Gullett to life imprisonment because, at the time Gullett’s offense was committed, a person convicted under section 844(i) was subject to imprisonment; for not more than ten years ... and if" }, { "docid": "22175445", "title": "", "text": "weapon of mass destruction is the functional equivalent of attempted arson); United States v. Gullett, 75 F.3d 941, 949 (4th Cir.1996) (maliciously damaging a building by means of explosives is equivalent to arson); United States v. Prevatte, 16 F.3d 767, 781-82 (7th Cir.1994) (same). Therefore, the last possible door to section 2A1.1 is unavailable. The district court should not have selected that guideline as the most analogous. Before proceeding with an analysis of the remaining Chapter 2A1 guidelines, we address an argument which the government contends would permit the district court to apply section 2A1.1 in spite of the absence of malice aforethought and a proper predicate felony to felony murder. One of the application notes found in that guideline provides that the sentencing court may depart downward in cases where “the defendant did not cause the death intentionally or knowingly.” 1994 U.S.S.G. § 2A1.1 n.l. This discretionary departure, the government argues, evinces the Sentencing Commission’s view that district courts may apply section 2A1.1 as the most analogous offense guideline even in cases such as the one presented here. The potential unfairness of attaching the severe consequence of the first-degree murder guideline to someone like Mr. Fortier, the argument goes, is simply addressed via a 2A1.1 n.l dowm-ward departure. Indeed, the government reminds us, Mr. Fortier did in fact receive such beneficence in the form of a three-level downward departure. We reject that approach. The government’s argument reverses the conveyance and the steed. The discretionary departure found in the commentary to 2A1.1 is accessible only when guideline 2A1.1 has already been properly selected. Furthermore, and more specifically, the departure is available only when the court selects guideline 2A1.1 via the felony-murder rule, whether because the defendant was convicted of felony murder or because the court utilized the felony-murder rule at sentencing in the manner described here and in Nichols. The application note, which we reproduce in its entirety, makes this latter point abundantly clear: The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for [first-degree murder]. However, this guideline also applies when" }, { "docid": "21095657", "title": "", "text": "on two grounds. First, the defendants challenged the district court’s decision that the guideline for first degree murder, U.S.S.G. § 2A1.1, provided the most closely analogous guideline. Second, the defendants contended that, under § 844(i), life sentences may be imposed only after a jury recommendation, pursuant to 18 U.S.C. § 34. We held that the first degree murder guideline was indeed applicable to the charged crimes. We stated: [W]e believe that the bombing at issue is sufficiently similar to arson to apply the first degree murder guideline on this basis. This conclusion rests on our understanding of the language and history of 18 U.S.C. § 844(i). United States v. Prevatte, 16 F.3d 767, 780 (7th Cir.1994). We also noted that, in interpreting the statutory language of § 844(i) in conjunction with 18 U.S.C. § 34, it is unlawful to impose a life sentence absent jury direction. Because the issue of the life sentence had not been submitted to the jury, we held that the imposition of a life sentence was reversible error. We also noted that the district court had not undertaken any analysis of the mental state of the defendants as mandated in application note 1 to U.S.S.G. § 2A1.1. That application note recognizes that a life sentence may not be appropriate for all convictions of first degree murder and notes that a downward departure “may be warranted.” The extent of the departure, the note continues, “should be based on the defendant’s state of mind (e.g. recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct.” On resentencing, the district court considered the defendants’ state of mind. The court held that the death of Emily Antkowicz was caused by the defendants’ “recklessness and reckless state of mind and behavior.” Tr. II at 2223-24; see Tr. IV at 2203-04. It articulated two substantial factors that led it to that conclusion: (1) The defendants knew they were using explosive materials, and obtained information specifically on pipe bombs; (2) The defendants picked a residential area in which to gauge the police and fire" }, { "docid": "22269352", "title": "", "text": "18 U.S.C. § 2332a, cannot serve as the predicate felony because that offense is not listed among the triggering felonies in 18 U.S.C. § 1111(a). We disagree. Initially, we note that courts are not bound by the constraints of section 1111(a) at sentencing. As the district court correctly observed, “the situation now is different because we’re not looking at the liability; we’re looking at the punishment that is appropriate.” The Sentencing Guidelines’ restatement of the felony-murder rule is not as limited as the articulation of the rule in section 1111(a). The Guidelines provide that guideline 2A1.1 “also applies when death results from the commission of certain felonies,” 1994 U.S.S.G. § 2A1.1 n.l (emphasis added), but the Guidelines do not delineate what felonies suffice. That decision is left for judicial determination. See, e.g., Tocco, 135 F.3d at 130-31 (suggesting section 1111(a) as indicative of which felonies are included as “certain felonies”). Recognizing that we are not bound by section 1111(a), we nevertheless think it appropriate to work within the scope of that statute. The doctrine of felony murder expresses a highly artificial concept that generally deserves no extension beyond its required application. See People v. Phillips, 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353, 360 (1966), overruled on other grounds by People v. Flood, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869 (1998). In keeping with our desire not to unduly expand the doctrine, we hold our decision in the context of sentencing must be made with 18 U.S.C. § 1111(a) as a guide. Ultimately, our task is to determine whether Mr. Nichols’ offense of conviction, as charged and described in Count One of the indictment, could serve as a predicate felony under section 1111(a). We believe it can. The substantive offense of using an explosive weapon of mass destruction is functionally equivalent to the “arson” listed in 18 U.S.C. § 1111(a). See United States v. Gullett, 75 F.3d 941, 948-49 (4th Cir.1996) (reaching the same conclusion with respect to cases involving explosive devices under 18 U.S.C. § 844(i)); United States v. Prevatte, 16 F.3d 767, 779-82 (7th Cir.1994)" }, { "docid": "22175442", "title": "", "text": "As expected, Mr. Fortier disagrees with this conclusion. In United States v. Nichols, 169 F.3d 1255 (10th Cir.1999), a case not available to the trial court at sentencing, we discussed what is required for a sentencing court to permissibly select section 2A1.1 as the most analogous guideline. There, we remarked a court may in this context choose the first-degree murder guideline in only two circumstances: first, if evidence presented at trial or an evidentiary hearing demonstrates by a preponderance of the evidence that the defendant harbored malice aforethought and premeditation, see id. at 1272, 1275-76, or second, in the absence of such evidence, if the defendant’s offense of conviction could serve as a predicate to the felony-murder rule found in 18 U.S.C. § 1111(a), see id. at 1272-75. Neither circumstance is present in this case. There is no evidence in the record from which one can infer that it was more likely than not Mr. Fortier harbored malice and premeditation. First, the district court found, and both parties agree, Mr. Fortier did not harbor malice aforethought. Indeed, the government conceded three times at oral argument (with refreshing candor) that Mr. Fortier did not act with malice. To contend otherwise, the government noted, would require us to find the “government wrongly conceded the issue and the district court wrongly found the absence of malice.” Second, the record on appeal admits of no prior design to commit murder. Premeditation in this context may not be presumed; there must be some evidence to support a finding the defendant did in fact premeditate and deliberate. Such evidence is not to be found in this record. Having no reason to question the district court’s factual findings, or the government’s concessions, we hold the first possible avenue to section 2A1.1 has been eliminated. We further conclude that not one of Mr. Fortier’s offenses of conviction can serve as a predicate felony under the felony-murder rule. Under that rule, “[e]very murder ... committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or" } ]
732003
"WL 1274517, at *3 n. 2 (S.D.N.Y. Mar. 24, 2014). . The CIA’s Agency Release Panel is composed of various CIA officials and is tasked with, inter alia, rendering ""final Agency decisions from appeals of initial adverse decisions under the Freedom of Information Act.” 32 C.F.R. § 1900.41(c). . ""The exhaustion of administrative remedies by plaintiff is not at issue here. Since the CIA did not respond to plaintiff’s appeal within 20 days, he is 'deemed to have exhausted his administrative remedies with respect to such request,' 5 U.S.C. § 552(a)(6)(C)(i), and may file suit pursuant to 5 U.S.C. § 552(a)(4)(B).” Florez v. CIA, No. 14-cv-1002, 2015 WL 728190, at *2 n. 3 (S.D.N.Y. Feb. 19, 2015); see also REDACTED . This excerpt states one of the four requirements for classification pursuant to Executive Order 13,526. Mr. Florez does not dispute that the other three requirements for classification are met: ""(1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order,” 75 Fed. Reg. 707, 707 (Dec. 29, 2009), one of which is the ""intelligence activities (including covert action) [and] intelligence sources or methods” category, id. at 709. . Although the release of information from a third party agency may more directly bear"
[ { "docid": "8151871", "title": "", "text": "1986), reprinted in J.A. at 59-60. The last letter notified appellant of its “final” determination to release 15 pages of material and to withhold excerpts of that material under exemptions 1 and 7(C) of the FOIA, 5 U.S.C. § 552(b)(1), 7(C), and notified appellant of his right to an administrative appeal. Appellant did not file suit until December 11, 1987, almost two years after this final determination was made. Because appellant did not administratively appeal his challenges to the agency, we find that he did not exhaust his administrative remedies. Judicial review of the FBI’s determination, therefore, is precluded at this time. D. The Central Intelligence Agency Appellant sent his request to the CIA on August 21, 1985. The CIA responded on September 3, 1985. See Letter to Carl Oglesby from John H. Wright (Sept. 3, 1985), reprinted in J.A. at 45. The September 3 letter indicated that the CIA would go forward with the search absent any problems or any need for additional information. Again, we need not determine if this response was adequate for constructive exhaustion purposes, because the CIA made its final determination on the merits of appellant’s request before appellant filed suit. On September 10, 1985, the CIA released 20 pages of declassified material to appellant without charge and indicated that other records were being transferred to NARA and that appellant should contact NARA directly. See Letter to Carl Oglesby from John H. Wright (Sept. 10, 1985), reprinted in J.A. at 46-47. On October 3, 1985, the CIA informed appellant of its determination to withhold documents responsive to appellant’s request, pursuant to exemption 3, 5 U.S.C. § 552(b)(3), and to deny appellant’s request for a fee waiver for future searches. See Letter to Carl Oglesby from John H. Wright (Oct. 3, 1985), reprinted in J.A. at 50. Appellant did not file suit until December 11, 1987, more than two years after the CIA had made its final determination. We find that the exhaustion of administrative remedies became mandatory when the CIA made its determination regarding appellant’s request and appellant was thereafter required to appeal any challenges" } ]
[ { "docid": "5351713", "title": "", "text": "authority classifies the information; (2) the United States Government owns, produces, or controls the information; (3) the information falls within one or more of eight protected categories listed in section 1.4 of the Executive Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. Am. Civil Liberties Union v. Dep’t of Justice, 808 F.Supp.2d 280, 298 (D.D.C.2011) (citing Executive Order 13,526 § 1.1(a)). Elizabeth Anne Culver (“Culver”), the Information Review Officer for the CIA’s National Clandestine Service, holds original classification and declassification authority. Culver Decl. ¶¶ 12-13. She reviewed the documents at issue with respect to the pending cross-motions for summary judgment and determined that they are owned, produced by, and under the control of the United States Government. Id. ¶ 14. She explains in considerable detail that the information withheld by the CIA includes, among other things, (a) information that would reveal the identities of human and foreign intelligence service sources; (b) information pertaining to source relationships that the CIA has forged with foreign intelligence services and liaisons; and (c) information pertaining to the CIA’s foreign intelligence activities and methods. See id. ¶¶ 24-51; Second Decl. of Elizabeth Anne Culver, Information Review Officer, National Clandestine Service, Central Intelligence Agency (“Suppl. Culver Decl.”), ECF No. [169-1], ¶¶ 2-5. Further, she explains, again in considerable detail, that the disclosure of such information would cause damage or serious damage to national security because, among other- things, (a) foreign intelligence services and others who have interests at odds with the United States could use the information to thwart national policies and programs and to detect, penetrate, counter, and evaluate the CIA’s activities; (b) the revelation of the CIA’s intelligence activities in a particular country or with a foreign liaison service could, even after the passage of time, harm the United States’ relationship with that country or result in countermeasures; and (c) the disclosure of the identities of intelligence sources" }, { "docid": "18024316", "title": "", "text": "F.2d 773, 776 (D.C.Cir.1984). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” ACLU, 628 F.3d at 619 (quoting Larson, 565 F.3d at 862 (quoting Wolf, 473 F.3d at 374-75)). Executive Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), the operative classification order under Exemption 1, sets forth both substantive and procedural criteria for classification. See, e.g., Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 481 (D.C.Cir.1980) (explaining that the Executive Order’s substantive and procedural criteria must be satisfied for an agency to properly invoke Exemption 1); H.R.Rep. No. 93-1380, at 228-29 (1974) (same). The Order’s substantive criteria, as relevant here, are twofold. First, classified information must pertain to at least one of eight subject-matter classification categories. See Exec. Order No. 13,526, §§ 1.1(a)(3), 1.4. Second, disclosure of that information must reasonably be expected to cause some degree of harm to national security — in the case of Top Secret information, “exceptionally grave” harm — that is identifiable or describable. See id. §§ 1.1(a)(4), 1.2(a)(1), 1.4. The Order also establishes two pertinent procedural requirements. Information may be classified only by an individual with original or derivative classification authority. See id. §§ 1.1(a)(1), 2.1. And classified documents must be marked with several pieces of information, including the identity of the classifier and instructions for declassification. See id. §§ 1. 6, 2.1(b). Judicial Watch raises both substantive and’ procedural challenges to the CIA’s classification decision. We consider each in turn. A Turning first to the substantive question, it is indisputable that the images at issue fall within the Executive Order’s subject-matter limits. At least some of the images “pertain[ ] to ... intelligence activities (including covert action), [or] intelligence sources or methods,” Exec. Order No. 13,526, § 1.4(c), and all 52 images plainly “pertain[ ] to ... foreign activities of the United States,” id. § 1.4(d). As the district court observed, “pertains” is “not a very demanding verb.” Judicial Watch, 857’ F.Supp.2d at 60. And every image at issue documents events involving American military personnel thousands of miles outside of" }, { "docid": "534303", "title": "", "text": "the principle that “FOIA ‘does not obligate agencies to create or retain documents.’ ” Id. at 8-9 (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)). Executive Order 13,526 “prescribes a uniform system for classifying, safeguarding, and declassifying national security information” and recognizes that “throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.” Exec. Order No. 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009). It provides that “information may be originally classified” if four conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United Stated Government (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security ... and the original classification authority is able to identify or describe the damage. Id. § 1.1(a). Also, at the time that information is originally classified, a number of items must also “be indicated in a manner that is immediately apparent,” such as the classification level, the “agency and office of origin,” the date for declassification, and a “concise reason for classification.” Id. § 1.6; see also id. § 1.5 (requiring original classification authority to “establish a specific date or event for declassification” of classified information). Additionally, although the ability to issue a Glomar response in response to a FOIA request was first established through the case law of this Circuit, see Phillippi v. CIA, 546 F.2d 1009, 1012-13 (D.C.Cir.1976), Executive Order 13,526 also specifically permits agencies to issue Glomar responses. See Exec. Order 13,526 § 3.6(a) (“An agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified" }, { "docid": "20379655", "title": "", "text": "show that the proffered justification for invoking the relevant FOIA exemption is “‘logical’ or ‘plausible,’” Judicial Watch, 715 F.3d at 941. Thus, the scope of each statutory exemption is reviewed before turning to the question of whether invocation of the exemptions 1 and 3 are logical or plausible. a. Scope of Exemption 1 Under FOIA Exemption 1, records that were “[s]pecifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [] are in fact properly classified pursuant to such Executive order” may be withheld from disclosure. 5 U.S.C. § 552(b)(1). Thus, to withhold information under Exemption 1, the CIA must show that the information has been classified in compli-anee with the classification procedures set forth in the applicable executive order and that only information conforming to the executive order’s substantive criteria for classification has been withheld. See ACLU v. U.S. Dep’t of Justice., 640 Fed.Appx. 9, 10-11 (D.C.Cir.2016); Judicial Watch, 715 F.3d at 941 (discussing “substantive and procedural criteria for classification”); Lesar v. Dep’t of Justice, 636 F.2d 472, 483 (D.C.Cir.1980) (“To be classified properly, a document must be classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms.”). “ ‘[Substantial weight [is accorded] to an agency’s affidavit concerning the details of the classified status of ... disputed record[s]’ ” “ ‘[because courts lack the expertise necessary to second-guess ... agency opinions in the typical national security FOIA case.’ ” ACLU, 640 Fed.Appx. at 11 (quoting ACLU, 628 F.3d at 619) (internal quotation marks and citations omitted; third and fourth alterations in original). Here, the CIA asserts that information withheld under Exemption 1 is classified under section 1.4(c) and 1.4(d) of Executive Order (“E.O.”) 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), as pertaining either to “‘intelligence activities (including covert action), intelligence sources or methods, or cryptology,’” Lutz Decl. ¶40 (E.O. No. 13,526 § 1.4(c)), or to “ ‘foreign relations or foreign activities of the United States, including confidential sources,’ ” id.' (quoting E.O. No. 13,526 § 1.4 (d))." }, { "docid": "19789481", "title": "", "text": "Report’s brevity, this Court did so. This Court is mindful, however, that “the district court’s inspection prerogative is not a substitute for the government’s burden of proof[.]” Halpern, 181 F.3d at 295 (quoting Church of Scientology v. U.S. Dep’t of Army, 611 F.2d 738, 743 (9th Cir.1980)) (internal quotation marks omitted). Accordingly, the Government must demonstrate that the Report is covered by at least one of FOIA’s enumerated exemptions. See Wilner, 592 F.3d at 73. C. FOIA Exemption 1 The Government contends that the Report is exempt from disclosure un der FOIA Exemption 1. Exemption 1 provides that FOIA’s disclosure mandate does not apply to materials that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Executive Order 13526, 75 Fed.Reg. 707 (Dec. 29, 2009), provides the operative classification standard. Under this Executive Order, (1) an “original classification authority” must classify the information; (2) the information must be “owned by, produced by or for, or ... under the control of the United States Government”; (3) the information must fall within one or more of eight protected categories listed in section 1.4 of the Order; and (4) an original classification authority must “determine[ ] that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security” and be “able to identify and describe the damage.” Exec. Order 13526 § l.l(a)(l)-(a)(4). Section 1.4 of Executive Order 13526 protects, among other things, “intelligence activities (including covert action), intelligence sources or methods, or cryptology,” and “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security.” However, Section 1.7 prohibits classification o'f information in order to “prevent or delay the release of information that does not require protection in the interest of national security.” Exec. Order 13526 § 1.7(a)(4). The New York Times and the ACLU do not dispute that the first two conditions for classification are met. Further, the" }, { "docid": "20379656", "title": "", "text": "v. Dep’t of Justice, 636 F.2d 472, 483 (D.C.Cir.1980) (“To be classified properly, a document must be classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms.”). “ ‘[Substantial weight [is accorded] to an agency’s affidavit concerning the details of the classified status of ... disputed record[s]’ ” “ ‘[because courts lack the expertise necessary to second-guess ... agency opinions in the typical national security FOIA case.’ ” ACLU, 640 Fed.Appx. at 11 (quoting ACLU, 628 F.3d at 619) (internal quotation marks and citations omitted; third and fourth alterations in original). Here, the CIA asserts that information withheld under Exemption 1 is classified under section 1.4(c) and 1.4(d) of Executive Order (“E.O.”) 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), as pertaining either to “‘intelligence activities (including covert action), intelligence sources or methods, or cryptology,’” Lutz Decl. ¶40 (E.O. No. 13,526 § 1.4(c)), or to “ ‘foreign relations or foreign activities of the United States, including confidential sources,’ ” id.' (quoting E.O. No. 13,526 § 1.4 (d)). The Executive Order provides, however, that “all classified records that ... are more than 25 years old ... shall be automatically declassified whether or not the records have been reviewed,” unless an exception applies. E.0.13,526 § 3.3. b. Scope of Exemption 3 FOIA Exemption 3 applies to matters “specifically exempted from disclosure by statute ... if that statute” either (1) “requires that the matters to be withheld from the public in such a manner as to leave no discretion on the issue,” or (2) “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). The D.C. Circuit has explained that “Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage.” Morley, 508 F.3d at 1126 (quoting Ass’n of Retired Rail Road Workers v. U.S. Rail Road Retirement Board, 830 F.2d 331, 336 (D.C.Cir.1987))." }, { "docid": "4216019", "title": "", "text": "would cause harm to national security and therefore must be classified. (See id.); Exec. Order 13,292 §§ 1.2, 1.4, 2.2. With respect to cover and covert employees, the Guide states that “information that identifies or describes CIA cover methods or organizations, including information that associates current or former CIA officers or facilities with specific covers” is “secret”. (Tab-Cl. 9; see Kappes Decl. ¶ 19.) Pursuant to the Guide, Wilson’s employment for the CIA prior to 2002, if any, was classified. (See Kappes Decl. ¶ 19.) Second, information about whom the CIA has hired and in what capacity is plainly owned by, produced by or for, or is under the control of the government. See Exec. Order 13,292 § 1.1(a)(2); see also id. § 6.1(s) (“control” means “the authority of the agency that originates information ... to regulate access to the information”); (Kappes Decl. ¶ 21.) Plaintiffs’ suggestion that the government lost control and ownership of the information when it entered the public domain is misplaced. The information was not public at the time it was originally classified. In any event, there is no dispute that the information was “pro duced by” the government. Thus, the disjunctive requirements of Executive Order 13,292 § 1.1(a)(2) are clearly met. Third, the CIA has determined that the information at issue concerns intelligence activities, intelligence sources or methods, foreign relations, or foreign activities of the United States, and thus falls squarely within the classifiable categories specified in the Executive Order. (See Kappes Decl. ¶ 22); Exec. Order 13,292 §§ 1.1(a)(3), 1.4(c), (d). Finally, the CIA has determined that unauthorized release of the information “reasonably could be expected to result in damage to national security,” notwithstanding that the information is already in the public domain. (See Kappes Decl. ¶¶ 24-25.) Deputy CIA Director, Stephen Kappes, provided two declarations — one classified and one unclassified — which explain the harm to national security which reasonably could be expected if the CIA were to acknowledge the veracity of the information at issue. (See id. ¶¶ 32-72; see generally Classified Declaration of Stephen Kappes.) His explanation is reasonable, and" }, { "docid": "534302", "title": "", "text": "established by an Executive order to be kept secret in the interest of national defense or foreign policy,” 5 U.S.C. § 552(b)(1). The CIA responds that plaintiffs improperly “equate the ‘Glomar fact’ with every other document that an agency classifies pursuant to the Executive Order” because “an agency’s Glomar response is fundamentally different in nature, as it arises solely in the context of a response to a request for records.” Defs.’ Reply at 8 (No. 11-2072). In contrast to the plaintiffs, the CIA takes the position that “the Glomar response is merely a response to a request for records, not a classified record itself.” Id. In this same vein, the CIA contends that the plaintiffs’ position is in conflict with well-settled FOIA law. In particular, the CIA argues that since a Glomar determination “does not exist independently of the original request for the responsive records” and because “[p]lain-tiffs’ argument would effectively require CIA to create [a] single piece of paper and apply classification markings every time it [issues a Glomar response],” the plaintiffs’ argument violates the principle that “FOIA ‘does not obligate agencies to create or retain documents.’ ” Id. at 8-9 (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)). Executive Order 13,526 “prescribes a uniform system for classifying, safeguarding, and declassifying national security information” and recognizes that “throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.” Exec. Order No. 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009). It provides that “information may be originally classified” if four conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United Stated Government (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information" }, { "docid": "11635515", "title": "", "text": "132, 136 (D.D.C.2003). The defendant asserts that some of the information withheld by the Central Intelligence Agency (“CIA”), the Defense Intelligence Agency (“DIA”) and the Joint Chiefs of Staff (“JCS”) falls under Exemption 1 and Exemption 3 to FOIA. Although the Court must review the government’s determination of the applicability of Exemption 1 and 3 de novo, 5 U.S.C. § 552(a)(4)(B), the Court is to accord “substantial weight” to the government’s determinations concerning the details of the classified status of the disputed record. Salisbury v. U.S., 690 F.2d 966, 970 (D.C.Cir.1982); Halperin v. CIA, 629 F.2d 144, 147-148 (D.C.Cir.1980). B. EXEMPTION 1 Exemption 1 to FOIA protects disclosure of certain information that is “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) [is] in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The applicable Executive Order provides that classification under Exemption 1 may be made only if “(1) an ‘original classification authority’ is classifying the information, (2) the information is owned by, produced by or for, or is under the control of the United States Government, (3) the information falls within one or more of the categories of information listed in section 1.5 of this order, and (4) the ‘original classification authority’ determines that the unautho rized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify and describe the damage.” Exec. Order 12,958, § 1.1, 60 Fed.Reg. 19,825 (Apr. 17, 1995). Under the procedural requirements of Executive Order 12,958 (elements one and two above), the ‘original classification authority’ must be the same agency classifying the information, and the information must be owned by, produced by or for, or is under the control of the United States Government. Neither of these requirements has been challenged by the plaintiff. (See PI. Cross-Mot.) Under the substantive requirements of Executive Order 12,958 (elements three and four above), the government must establish that the withheld information falls properly within" }, { "docid": "5351712", "title": "", "text": "of demonstrating to the Court’s satisfaction that the claimed exemptions apply to the information withheld. A. The CIA Has Properly Invoked Exemption 1 Exemption 1 applies to materials that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). In this case, the CIA relies upon Executive Order 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009), which prescribes a uniform system for classifying and safeguarding national security information. To show that it has properly withheld information on this basis, the CIA must show both that the information was classified pursuant to the proper procedures and that the withheld information substantively falls within the scope of Executive Order 13,526. See Sal isbury v. United States, 690 F.2d 966, 971-72 (D.C.Cir.1982) (analyzing a predecessor to Executive Order 13,526). Stated somewhat differently: Information can be properly classified under Executive Order 13526 if four requirements are met: (1) an original classification authority classifies the information; (2) the United States Government owns, produces, or controls the information; (3) the information falls within one or more of eight protected categories listed in section 1.4 of the Executive Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. Am. Civil Liberties Union v. Dep’t of Justice, 808 F.Supp.2d 280, 298 (D.D.C.2011) (citing Executive Order 13,526 § 1.1(a)). Elizabeth Anne Culver (“Culver”), the Information Review Officer for the CIA’s National Clandestine Service, holds original classification and declassification authority. Culver Decl. ¶¶ 12-13. She reviewed the documents at issue with respect to the pending cross-motions for summary judgment and determined that they are owned, produced by, and under the control of the United States Government. Id. ¶ 14. She explains in considerable detail that the information withheld by the CIA includes, among other things, (a) information that" }, { "docid": "17023037", "title": "", "text": "Director of Information Management (Director). See Admin. Rec. 70-3, Annex A, Original Classification Authorities at 1, 3 (June 3, 1997). Further, the Director chairs the Agency Release Panel (ARP), 32 C.F.R. § 1900.41(c)(1) (2006), which makes final determinations regarding administrative appeals under the FOIA. See 32 C.F.R. § 1900.41(a)-(c)(2). In this case, the ARP, chaired by the Director, determined that the existence or nonexistence of records responsive to Wolf's FOIA request is classified information that would tend to reveal intelligence sources and methods. Appellee's App. at 30-31. Dyer, as Information and Privacy Coordinator, serves as the ARP Executive Secretary. 32 C.F.R. § 1900.41(c)(2). Thus, the Dyer Affidavit reflects personal knowledge, obtained in Dyer's official capacity, regarding the classified nature of information related to the existence or nonexistence of records responsive to Wolf’s FOIA request. Appellee’s App. at 29, 31. . The structure and responsibilities of the United States intelligence community have undergone reorganization in recent years. As a consequence, the duties of the CIA Director are described as they existed at the time of Wolf's FOIA request in 2000. Under the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. No. 108-458, the new Director of National Intelligence is similarly required to \"protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403 — l(i)(l). . At one point during the hearing, Representative Clarence Brown asked Hillenkoetter whether he had \"conclude[d][his] prepared statement for the record.” Appellant's App. at 28. Hillenkoetter indicated that he had completed his prepared statement, thereby opening the hearing to further questions. Id. . At oral argument, the CIA did not dispute that the references to Gaitan in Hillenkoet-ter’s testimony constitute \"records” about Gaitan within the meaning of the FOIA. Cf. Tobey v. NLRB, 40 F.3d 469, 471 (D.C.Cir. 1994) (under Privacy Act definition of \"record,” 5 U.S.C. § 552a(a)(4), inclusion of individual's name in document does not constitute \"information ... 'about' \" individual and thus \"record” subject to disclosure); Doe v. FBI, 936 F.2d 1346, 1353 (D.C.Cir. 1991) (FOIA definition of \"law enforcement record” applied to Privacy Act in light of similarity of statutory" }, { "docid": "2903865", "title": "", "text": "C.I.A., 524 F.Supp. 1290, 1292 (D.D.C.1981) (“While some of the documents shed light on the legality or illegality of CIA’s conduct, the (b)(1) or (b)(3) claims are not pretextual. Any possibility of illegal conduct on the part of the CIA does not defeat the validity of the exemptions claimed.”). B. FOIA Exemption 1 Because the Court finds that the CIA properly invoked Exemption 3 as its basis to withhold the bulk of the documents listed in the Vaughn index, it need not consider whether the withheld information also meets the criteria for classification under Exec. Order No. 12,958. Assassination Archives and Research Ctr. v. C.I.A., 334 F.3d 55, 58 n. 3 (D.C.Cir.2003) (“Because we conclude that the Agency easily establishes that the records AARC seeks are exempt from disclosure under Exemption 3, we do not consider the applicability of Exemption 1.”). Regardless, even if the CIA did not invoke Exemption 3 to withhold most of the records, the CIA still would have been justified in withholding the records by invoking Exemption 1. Pursuant to FOIA Exemption 1, an agency is allowed to withhold records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order,” 5 U.S.C. § 552(b)(1)(A), (B). Here, the CIA relies on Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), “which provides a detailed system for classifying documents that the government determines should be kept secret.” ACLU v. U.S. Dep’t of Def., 664 F.Supp.2d 72, 75 (D.D.C.2009). Pursuant to this Executive Order, “[information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security ... and it pertains to one or more of the following: ... (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; [or] (d) foreign relations or foreign activities of the United States, including confidential sources.” Exec. Order No. 13,526 at § 1.4. In addition," }, { "docid": "4216017", "title": "", "text": "25, 2003) (the “Executive Order”) (amending Executive Order 12,958). Pursuant to the Executive Order, information may be originally classified if the information: (1) is classified by someone authorized to classify it; (2) is owned by, produced by or for, or is under the control of the government; (3) falls within one of the specified classification categories; and (4) reasonably could be expected to result in damage to national security, as articulated by the classifying officer. Id. §§ 1.1(a), 6.1(cc). Documents that reproduce, extract, or summarize classified information are defined as “derivative classifications”. Id. § 6.1(n). Such classifications may be performed without original classification authority pursuant to the CIA’s Classification Guide, discussed further infra. Id. §§ 2.1-2.2. Classification decisions by the CIA are entitled to the highest level of judicial deference because “it is the responsibility of the Director of Central Intelligence, not that of the [courts], to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process.” CIA v. Sims, 471 U.S. 159, 180, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985); accord Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C.Cir.1990) (explaining that courts cannot perform their own calculus as to whether harm to the national security would result from disclosure). Of course, this deference is not a rubber stamp, see Stillman v. CIA No. 01 Cv. 1342, 2007 WL 1020814, at *6 (D.D.C. Mar.30, 2007); the CIA must provide a “facially reasonable”, plausible, explanation for its national security decisions. Frugone v. CIA 169 F.3d 772, 775 (D.C.Cir.1999); accord McGehee, 718 F.2d at 1149 (stating that courts should require a “logical connection” between the deleted information and reasons for classification). The CIA has met its burden of demonstrating that the classification requirements of the Executive Order were met. First, the information at issue was properly classified pursuant to the CIA’s Classification Guide (the “Guide”), which is created by an Agency official with original classification authority. (See Declaration of Stephen Kappes “Kappes Decl.”) (¶ 18.) The Guide sets forth certain categories of information that, if disclosed," }, { "docid": "2903866", "title": "", "text": "Exemption 1, an agency is allowed to withhold records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order,” 5 U.S.C. § 552(b)(1)(A), (B). Here, the CIA relies on Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), “which provides a detailed system for classifying documents that the government determines should be kept secret.” ACLU v. U.S. Dep’t of Def., 664 F.Supp.2d 72, 75 (D.D.C.2009). Pursuant to this Executive Order, “[information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security ... and it pertains to one or more of the following: ... (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; [or] (d) foreign relations or foreign activities of the United States, including confidential sources.” Exec. Order No. 13,526 at § 1.4. In addition, the Executive Order provides that “[i]n no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; ... or (4) prevent or delay the release of information that does not require protection in the interest of the national security.” Id. § 1.7(a). To withhold records under Exemption 1, the CIA must establish that it complied with proper procedures in classifying materials and that the withheld information falls within the substantive scope of Exec. Order No. 12,958. See Salisbury v. United States, 690 F.2d 966, 971-72 (D.C.Cir.1982). An agency invoking Exemption 1 is entitled to summary judgment on the basis of agency affidavits “if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit" }, { "docid": "5351711", "title": "", "text": "fact and the movant is entitled to judgment as a matter of law.\" FED. R.CIV.P. 56(a). With these principles in mind, the Court turns to the merits of the parties’ cross-motions for summary judgment. IV. DISCUSSION The CIA’s [164] Motion for Summary Judgment and Schoenman’s [166] Cross-Motion for Summary Judgment both speak to the same issue—namely, the propriety of the CIA’s withholding decisions with respect to the 120 documents that were referred to the CIA by the FBI for processing and a direct response to Schoenman. Of these 120 documents, the CIA ultimately released 101 documents to Schoenman in part (a total of 288 pages) and withheld 19 documents in full (a total of 52 pages). To justify its withholding decisions under FOIA, the CIA now relies upon FOIA Exemptions 1 and 3 —two of the tools that the United States Supreme Court has recognized are available to agencies to “shield national security information and other sensitive materials” from public disclosure. Milner, 131 S.Ct. at 1271. The Court finds the CIA has met its burden of demonstrating to the Court’s satisfaction that the claimed exemptions apply to the information withheld. A. The CIA Has Properly Invoked Exemption 1 Exemption 1 applies to materials that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). In this case, the CIA relies upon Executive Order 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009), which prescribes a uniform system for classifying and safeguarding national security information. To show that it has properly withheld information on this basis, the CIA must show both that the information was classified pursuant to the proper procedures and that the withheld information substantively falls within the scope of Executive Order 13,526. See Sal isbury v. United States, 690 F.2d 966, 971-72 (D.C.Cir.1982) (analyzing a predecessor to Executive Order 13,526). Stated somewhat differently: Information can be properly classified under Executive Order 13526 if four requirements are met: (1) an original classification" }, { "docid": "5161800", "title": "", "text": "years old. Hall, 668 F.Supp.2d at 189. Since the Order, the CIA has claimed additional withholdings under exemption 1, in regard to responsive documents released after that Order. Plaintiffs argue that exemption 1 withholdings by the CIA, DOD, and NSA are improper. Hall’s Memo, of Pts. and Auth. [182] at 18. Exemption 1 protects matters that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Pursuant to Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), information may be classified only if all of the following conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one of more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage. Id. § 1.1(a). The phrase “damage to the national security” means “harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information.” Id. § 6.1(i). Information may be classified either at the “top secret,” “secret,” or “confidential” level, Id. § 1.2(a), and such classified information must fall within one of the following categories: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or" }, { "docid": "4216040", "title": "", "text": "suggest that the diagonal line through the word \"secret” may be the CIA's attempt to “create the appearance” that the original Letter contained the stamp. While the government has not explained why the marking was crossed out in the redacted letter, it has never taken the position that the word “secret” appeared anywhere in the original Letter. As noted above, government regulations provide that agencies must take action to \"restore markings” it information is released without authority. 32 C.F.R. § 2001.10(d). The government maintains that that is precisely what occurred here. .There is no dispute that plaintiffs exhausted their administrative remedies with respect to the issues raised in this litigation. (See Tab 28.) . The provisions in the Executive Order relevant to this case are substantially similar to those in the preceding executive orders. See Exec. Order 12,958, 60 Fed.Reg. 19,825 (Apr. 17, 1995); Exec. Order 12,356, 47 Fed.Reg. 14,874 (Apr. 2, 1982). . Section 1.4 of the Executive Order provides the following classification categories: (a) military plans, weapons systems, or operations; (b) foreign government, information; (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security, which includes defense against, transnational terrorism; (t) United States Government programs for safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism; [and] (h) weapons of mass destruction. Exec. Order 13,292 § 1.4. . The CIA prepared the Classification Guide to facilitate the proper and uniform derivative classification of information, pursuant to section 2.2 of the Executive Order. (See Kappes Decl. ¶ 18.) . In addition, the February 10th Letter was reviewed by the Director of the CIA, who has original classification authority and who determined that acknowledgment of any pre-2002 employment by Wilson was, and is, classified. (See Kappes Decl. ¶ 20.) The CIA Director’s decision only confirmed what already had been the case; i.e., that the information" }, { "docid": "16736587", "title": "", "text": "as information protected by FOIA exemptions 1 and 3. See 5 U.S.C. § 552(b) (listing nine exemptions from FOIA disclosure requirements). Exemption 1 provides for the exemption of records that are: (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order. 5 U.S.C. § 552(b)(1). As applicable to the claimed exemption in this case, Executive Order 12,958, as amended, sets out eight categories of information subject to classification, including “intelligence activities,” “intelligence sources or methods,” and the “foreign relations or foreign activities of the United States.” Exec. Order No. 12,-958 § 1.4(c)-(d), 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter “Exec. Order No. 12,958”). Exemption 3 provides for the exemption of records that are “specifically exempted from disclosure by statute,” thereby incor porating the protections of other shield statutes. 5 U.S.C. § 552(b)(3). The government moved for summary judgment to dispose of the ACLU’s lawsuit. On October 29, 2008, the district court granted the government’s motion, ruling that the government had complied with the ACLU’s FOIA request insofar as it was required to do so, and that it had provided sufficient support for the claimed exemptions. See A.C.L.U. v. Dep’t of Defense, 584 F.Supp.2d 19, 26 (D.D.C.2008). The ACLU appealed the district court’s decision to this court, but before the parties filed their briefs, four events caused the government to reevaluate its redactions to the requested documents. First, in January 2009, President Obama issued three executive orders: Executive Order 13,491 limiting the use of interrogation techniques to those listed in the Army Field Manual and ordering the CIA to close any detention centers it operated; Executive Order 13,492 ordering the Department of Defense to close the detention facility at Guantanamo Bay within one year; and Executive Order 13,493 establishing a taskforce to review the lawful options available to the government with respect to the apprehension, detention, and disposition of suspected terrorists." }, { "docid": "5161799", "title": "", "text": "names, and the exact location.” Hall argues “[t]his indicates the intention to create additional documents regarding these requirements. Hall’s Resp. [166] at 11. Here, Hall’s argument fails because the existence of the “missing” records is too speculative. The information provided in these documents — concerning activities that may produce additional documents or the intention to create additional documents — does not rise above “speculation” as to the existence of additional records. There is no indication that any of these records were actually created, only that there may have been an intention at one point to create documents that would have been responsive to plaintiffs’ request. Therefore, the CIA is not required to conduct additional searches concerning records C00465439, C00472095, C00482214, C00493228, C00479111, C00479111, C00493325, C00478741, and C00480204. C. Exemption Claims 1. Exemption 1 Judge Kennedy’s 2009 Order found that the CIA met its burden on the exemption 1 claims for records less than 25 years old, but found that the CIA must further justify the withholding of exemption 1 records that were more than 25 years old. Hall, 668 F.Supp.2d at 189. Since the Order, the CIA has claimed additional withholdings under exemption 1, in regard to responsive documents released after that Order. Plaintiffs argue that exemption 1 withholdings by the CIA, DOD, and NSA are improper. Hall’s Memo, of Pts. and Auth. [182] at 18. Exemption 1 protects matters that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Pursuant to Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), information may be classified only if all of the following conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one of more of the categories of information listed in section 1.4 of this order; and (4) the original classification" }, { "docid": "17023036", "title": "", "text": "to submit a Vaughn index. See Appellant’s Brief at 9; Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973). His argument misunderstands the nature of a Glomar response, which narrows the FOIA issue to the existence of records vel non. Indeed, ”[w]hen the Agency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency’s refusal.” Phillippi, 546 F.2d at 1013. . Executive Order 12958 provides agency heads with original classification authority. See Exec. Order No. 12,958, 60 Fed.Reg. 19,-825, 19,827 § 1.4(a)(2) (Apr. 17, 1995); see also Exec. Order No. 13,292, 68 Fed.Reg. 15,315 (Mar. 25, 2003) (amending, in other respects, Executive Order 12958). Classification authority may also be exercised by subordinate officials to whom such authority is delegated, 60 Fed.Reg. at 19,827 § 1.4(a)(3), by an agency head, id. § 1.4(c)(2)-(3), in writing, id. § 1.4(c)(4). Through an internal Agency memorandum, the Director of the CIA delegated original classification authority to the Director of Information Management (Director). See Admin. Rec. 70-3, Annex A, Original Classification Authorities at 1, 3 (June 3, 1997). Further, the Director chairs the Agency Release Panel (ARP), 32 C.F.R. § 1900.41(c)(1) (2006), which makes final determinations regarding administrative appeals under the FOIA. See 32 C.F.R. § 1900.41(a)-(c)(2). In this case, the ARP, chaired by the Director, determined that the existence or nonexistence of records responsive to Wolf's FOIA request is classified information that would tend to reveal intelligence sources and methods. Appellee's App. at 30-31. Dyer, as Information and Privacy Coordinator, serves as the ARP Executive Secretary. 32 C.F.R. § 1900.41(c)(2). Thus, the Dyer Affidavit reflects personal knowledge, obtained in Dyer's official capacity, regarding the classified nature of information related to the existence or nonexistence of records responsive to Wolf’s FOIA request. Appellee’s App. at 29, 31. . The structure and responsibilities of the United States intelligence community have undergone reorganization in recent years. As a consequence, the duties of the CIA Director are described as they existed at the time of Wolf's" } ]
728662
1983 assault trial in Baltimore City defined assault, under Maryland law, as “a threat by words or acts or both to do bodily harm to another, coupled with the apparent present ability to carry out the threat.” In light of that instruction, the jury, in finding Wardrick guilty of common-law assault, convicted him of a violent felony; i.e., the guilty verdict had “as an element the ... threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B). The district court also properly characterized Wardrick’s 1984 Maryland conviction for escape as a violent felony. As we have indicated, felony escape and attempted escape constitute violent felonies under ACCA- — even if accomplished by stealth. See generally REDACTED United States v. Aragon, 983 F.2d 1306, 1313 (4th Cir.1993) (holding attempt to rescue prisoner and assisting in escape to be crimes of violence because of inherent risk of force). Likewise, the district court accurately characterized Wardrick’s 1988 conviction for resisting arrest as a violent felony. The act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others. See United States v. James, 337 F.3d 387 (4th Cir.2003) (holding South Carolina conviction for failure to stop for a blue
[ { "docid": "23626665", "title": "", "text": "A defendant is eligible for the enhancement if he “violates section 922(g) ... and has three previous convictions ... for a violent felony or serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C.A. § 924(e)(1) (West Supp.1995). Under the ACCA, the term “violent felony” means: any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, and involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another, .... 18 U.S.C.A. § 924(e)(2)(B) (West Supp.1995) (emphasis added). Turning to Hairston’s 1979 conviction for felony escape from custody, we learn that felony escape from custody in North Carolina does not have as an element of the crime the use, attempted use, or threatened use of physical force against another. See State v. Malone, 73 N.C.App. 323, 326 S.E.2d 302, 302-03 (1985) (stating that the elements of felony escape from custody in North Carolina are: “(1) lawful custody, (2) while serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony, and (3) escape from such custody.”). Furthermore, felony escape from custody in North Carolina does not constitute one of the specifically named crimes in § 924(e)(2)(B)(ii). Therefore, the question becomes whether it satisfies the “otherwise clause” of § 924(e)(2)(B)(ii). Whether a conviction satisfies this clause “is determined by a categorical approach, whereby the court looks only at the fact of conviction and the statutory definition of the offense, and not to the underlying facts of a specific conviction.” United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1194, 127 L.Ed.2d 543 (1994) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990)). Under this approach, we must make “common-sense judgments about whether a given offense proscribes generic conduct with the potential for serious physical injury" } ]
[ { "docid": "2019922", "title": "", "text": "who unlawfully and felo-niously escape from confinement. We are, therefore, hard pressed to find that such an escape does not “involv[e] conduct that presents a serious potential risk of physi cal injury to another.” See 18 U.S.C. § 924(e)(l)(B)(ii). This court decided as much in United States v. Hairston, 71 F.3d 115 (4th Cir.1995), when we held that felony escape from custody in North Carolina, see N.C. Gen.Stat. § 148 — 45(b)(1) (1987), constitutes a crime of violence under the ACCA. In that case, defendant jumped over a fence in a minimum security prison. He argued that felony escape from custody in North Carolina did not present a serious potential risk of physical injury because, in North Carolina, most felony escapes were undertaken by stealth. Hairston, 71 F.3d at 118. This court disagreed. We explained that any escape, even an escape by stealth, “inherently presents the serious potential risk of physical injury to another,” and concluded that an escape offense, however effected, is a “violent felony” under the categorical approach of 18 U.S.C. § 924(e)(l)(B)(ii). Id.; see also Wardrick, 350 F.3d at 455. The same result obtains here. Defendant Mathias unlawfully and feloniously broke the bonds of custody when he walked away from the work, release program. In this, he violated Virginia Code § 18.2-479(B), and committed a “violent felony” under the categorical approach, this court’s decision in Hairston, and the second prong of 18 U.S.C. § 924(e)(1)(B). Our conclusion finds support in the decisions of our sister circuits. Every court of appeals to consider the question has concluded that felony escape convictions categorically constitute violent felonies within the ambit of § 924(e). See, e.g., United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002) (holding that a “walkaway” escape is a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii)); United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002) (same); United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir.1999) (same); United States v. Franklin, 302 F.3d 722, 724-25 (7th Cir.2002) (holding that escape is a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii) because it presents a “serious potential risk" }, { "docid": "5195257", "title": "", "text": "the unlisted resisting arrest crime at issue here and the threat crime at issue in Torres-Miguel is materially different from that applicable to the listed offenses at issue in Diaz-Ibarra, Rangel-Castaneda, and similar cases. Neither resisting arrest nor the California threat crime outlaws a listed crime and neither has a recognizable generic definition, much less one involving “violent force.” Thus, in the case at hand, as in Torres-Miguel, it is inappropriate to search for a “generic” crime as does the majority. In sum, as already mentioned, we have no better “evidence” of the elements of resisting arrest than what the Maryland Court of Appeals has declared, a declaration which shows that resisting arrest does not categorically require violent force. B Tellingly, the majority also attempts to support its reasoning by noting that this Court has held that a Maryland resisting arrest conviction qualifies as a “violent felony” for purposes of the ACCA and the U.S.S.G. § 4B1.2 enhancements under their respective “residual clauses.” This is a very inconvenient truth for the majority, however, as the majority only acknowledges, in the blink of an eye, the vastly different language used in the “force” (or “elements”) clause and the “residual” clause, and it entirely overlooks the significantly different analysis applied to each. The “residual” clause under the ACCA covers offenses that “involve[ ] conduct that presents a serious potential risk of physical injury to another.” United States v. Wardrick, 350 F.3d 446, 454 (4th Cir.2003) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The “force” clause at issue here, however, encompasses any offense that “has as an element the use, attempted use, or threatened use of 'physical force against the person of another.” U.S.S.G. § 2L1.2(b)(l) cmt. n. l(B)(iii) (emphasis added). The clauses are readily, one might say even painfully obviously, distinguishable, and the Supreme Court has given clear guidance that, unlike the “residual clause,” the “force clause” is read to require “violent force.” Johnson, 130 S.Ct. at 1271. The clauses are distinct for a reason. That a Maryland conviction for resisting arrest qualifies as a crime of violence under one, is in no way" }, { "docid": "2019920", "title": "", "text": "novo the district court’s conclusion that Mathias’ escape conviction qualifies as a “violent felony.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). A. Mathias first argues that his escape conviction does not constitute a “violent felony” under the ACCA because the particular circumstances of his escape—he walked away from a work release program—presented no risk of serious injury. He urges us to “loo[k] beyond the definition of the charging document and statute” and parse the underlying factual basis of his conviction. This argument ignores settled law: in this circuit, as in others, the question of whether an escape is a “violent felony” is a categorical one. See, e.g., United States v. Wardrick, 350 F.3d 446, 454 (4th Cir.2003); United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we consider the nature of the offense as defined by statute, not the conduct and circumstances underlying a specific conviction. Wardrick, 350 F.3d at 454; Hairston, 71 F.3d at 117; see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The question, therefore, is whether escape as codified in Virginia Code § 18.2-479(B) is a “violent felony.” See United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998); Hairston, 71 F.3d at 117. Because escape under this provision does not itself involve “the use, attempted use, or threatened use of physical force” as required by 18 U.S.C. § 924(e)(2)(B)(i), the issue is whether Virginia Code § 18.2-479(B) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B)(ii). The Virginia escape statute, Va.Code Ann. § 18.2-479(B) (West Supp.2006), provides: Any person, lawfully confined in jail or lawfully in the custody of any court, officer of the court, or of any law-enforcement officer on a charge or conviction of a felony, who escapes, other than by force or violence or by setting fire to the jail, is guilty of a Class 6 felony. The plain text of the Virginia statute punishes those" }, { "docid": "2019919", "title": "", "text": "criminal codes. Under the statute, any person who violates the felon-in-possession statute, 18 U.S.C. § 922(g), and has three previous “violent felony” convictions must be designated an armed career criminal. 18 U.S.C. § 924(e)(1). This designation carries a mandatory sentence of not less than fifteen years. Id. The ACCA, 18 U.S.C. § 924(e)(2)(B), defines the term “violent felony” as any crime punishable by imprisonment for more than one year that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or (2) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Mathias concedes that his two prior burglary convictions are “violent felon[ies]” under the Armed Career Criminal Act and qualifying predicate offenses for an armed career criminal designation. He contends, however, that his felony escape conviction does not constitute a “violent felony,” and that the district court’s imposition of the ACCA’s statutory minimum fifteen-year sentence was unlawful. We review de novo the district court’s conclusion that Mathias’ escape conviction qualifies as a “violent felony.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). A. Mathias first argues that his escape conviction does not constitute a “violent felony” under the ACCA because the particular circumstances of his escape—he walked away from a work release program—presented no risk of serious injury. He urges us to “loo[k] beyond the definition of the charging document and statute” and parse the underlying factual basis of his conviction. This argument ignores settled law: in this circuit, as in others, the question of whether an escape is a “violent felony” is a categorical one. See, e.g., United States v. Wardrick, 350 F.3d 446, 454 (4th Cir.2003); United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we consider the nature of the offense as defined by statute, not the conduct and circumstances underlying a specific conviction. Wardrick, 350 F.3d at" }, { "docid": "23343667", "title": "", "text": "Resisting Arrest Offense. Id. at 451. We concluded that “the district court accurately characterized Wardriek’s 1988 conviction for resisting arrest as a violent felony,” emphasizing that “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others.” Id. at 455. In ruling against Jenkins at the sentencing hearing in this case, the district court relied primarily on our unpublished decision in Mullen, rendered after Begay and Chambers, for the proposition that Wardrick yet controls the question of whether the Resisting Arrest Offense is a “crime of violence” for purposes of the Career Offender Enhancement. See United States v. Mullen, 311 Fed.Appx. 621, 623-24 (4th Cir.2009). The Mullen defendant, who had been convicted of bank robbery and sentenced as a career offender, contended on appeal that his prior 2001 conviction for resisting arrest in Maryland was not a “crime of violence.” Id. Mullen acknowledged that we had ruled to the contrary in Wardrick, but contended that Wardrick was no longer good law in light of Begay. Id. Our Mullen panel disagreed with that contention, however, explaining that “[o]ur review leads us to conclude that the offense of driving while intoxicated, considered by the court in Begay, is sufficiently different from the offense of resisting arrest that Begay does not overrule Wardrick.” Id. at 624. In this appeal, Jenkins maintains that Mullen was erroneously decided, that Wardrick is no longer good law, and that the district court erred in ruling against him on his status as a career offender. B. In our Wardrick decision, we did not equivocate: “The act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others.” 350 F.3d at 455. Our reasoning in Wardrick recognized that — unlike the offenders in Begay (New Mexico DUI) and Chambers (Illinois failure to report) — an offender convicted of resisting arrest “is significantly more likely than others to" }, { "docid": "11877292", "title": "", "text": "court, all of which were rejected. Agreeing with both the probation officer and the government that Roseboro was an Armed Career Criminal, the district court calculated Roseboro’s sentencing range to be 262 to 327 months’ imprisonment. In sentencing Roseboro, the district court expressly considered the factors in 18 U.S.C. § 3553(a) and sentenced Roseboro to the low end of the sentencing range, 262 months’ imprisonment. Roseboro noted a timely appeal. II A In James, we addressed the question of whether a South Carolina failure to stop for a blue light violation was a violent felony under the ACCA. In resolving this question, we first determined that, under South Carolina law, a failure to stop for a blue light violation was a crime punishable by a term of imprisonment exceeding one year. 337 F.3d at 390 (noting that a violation of § 56-5-750(A), first offense, is punishable by a term of imprisonment of up to three years). After examining the elements of a South Carolina failure to stop for a blue light violation, we determined that the offense did not have as an element the use, attempted use, or threatened use of physical force against another person. Id. Consequently, we turned to whether a South Carolina failure to stop for a blue light violation otherwise involved conduct that presented a serious potential risk of physical injury to another person. Id. In assessing this question, we applied a “ ‘categorical approach, whereby the court looks only at the fact of conviction and the statutory definition of the offense, and not to the underlying facts of a specific conviction.’ ” Id. (quoting United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993)). Under this approach, we asked whether the statute at issue “ ‘proscribe^] generic conduct with the potential for serious physical injury to another.’ ” Id. (quoting United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.1993)); see also United States v. Hairston, 71 F.3d 115, 118 (4th Cir.1995) (holding that any escape, even an escape by stealth, created a serious potential risk of physical injury to another and, therefore, an escape" }, { "docid": "1359138", "title": "", "text": "“conduct that presents a serious potential risk of physical injury to another.” This language appears in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and the career offender Guideline, U.S.S.G. § 4B1.2(a)(2). But it is not in the reentry Guideline. That is why Wardrick and Jenkins are irrelevant to this case. In Wardrick, 350 F.3d at 454, we held that Maryland resisting arrest was a “violent felony” pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), but there we asked whether the crime fell under the residual clause, and thus criminalized “conduct that present[ed] a serious potential risk of physical injury to another”; similarly, in Jenkins, 631 F.3d at 682-85, we held that Maryland resisting arrest was a “crime of violence” within the meaning of the residual clause of the career offender Guideline, U.S.S.G. § 4B1.2(a)(2), but again we were asking whether resisting arrest “involve[d] conduct that presents a serious potential risk of physical injury to another.” The Government pushes on. After all, it contends, offenses that criminalize conduct that presents a serious risk of physical injury cannot be far removed from those that contain as an element the use of violent force. It is perhaps instinctively alluring to conflate the risk of physical injury with the use of violent force, but we refuse to do so because it is directly contrary to Supreme Court and sound Fourth Circuit precedent: Sykes v. United States, - U.S. -, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011), in which the Supreme Court held that the Indiana offense of resisting law enforcement through felonious vehicle flight qualified as a violent felony under the residual clause of the Armed Career Criminal Act, but not under the force clause of the same statute; and United States v. Jarmon, 596 F.3d 228, 230 (4th Cir.2010), in which we held that the North Carolina crime of “larceny from the person” was a crime of violence under the residual clause of the career offender Guideline, but not under the force clause of the same Guideline. The basic point is that the Government’s reliance on War-drick" }, { "docid": "2019921", "title": "", "text": "454; Hairston, 71 F.3d at 117; see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The question, therefore, is whether escape as codified in Virginia Code § 18.2-479(B) is a “violent felony.” See United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998); Hairston, 71 F.3d at 117. Because escape under this provision does not itself involve “the use, attempted use, or threatened use of physical force” as required by 18 U.S.C. § 924(e)(2)(B)(i), the issue is whether Virginia Code § 18.2-479(B) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B)(ii). The Virginia escape statute, Va.Code Ann. § 18.2-479(B) (West Supp.2006), provides: Any person, lawfully confined in jail or lawfully in the custody of any court, officer of the court, or of any law-enforcement officer on a charge or conviction of a felony, who escapes, other than by force or violence or by setting fire to the jail, is guilty of a Class 6 felony. The plain text of the Virginia statute punishes those who unlawfully and felo-niously escape from confinement. We are, therefore, hard pressed to find that such an escape does not “involv[e] conduct that presents a serious potential risk of physi cal injury to another.” See 18 U.S.C. § 924(e)(l)(B)(ii). This court decided as much in United States v. Hairston, 71 F.3d 115 (4th Cir.1995), when we held that felony escape from custody in North Carolina, see N.C. Gen.Stat. § 148 — 45(b)(1) (1987), constitutes a crime of violence under the ACCA. In that case, defendant jumped over a fence in a minimum security prison. He argued that felony escape from custody in North Carolina did not present a serious potential risk of physical injury because, in North Carolina, most felony escapes were undertaken by stealth. Hairston, 71 F.3d at 118. This court disagreed. We explained that any escape, even an escape by stealth, “inherently presents the serious potential risk of physical injury to another,” and concluded that an escape offense, however effected, is a “violent felony” under the categorical approach of 18 U.S.C. § 924(e)(l)(B)(ii)." }, { "docid": "23005490", "title": "", "text": "verdict had “as an element the ... threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B). The district court also properly characterized Wardrick’s 1984 Maryland conviction for escape as a violent felony. As we have indicated, felony escape and attempted escape constitute violent felonies under ACCA- — even if accomplished by stealth. See generally United States v. Hairston, 71 F.3d 115 (4th Cir.1995) (holding felony escape in North Carolina to be crime of violence under ACCA because escape presents risk of injury to others); United States v. Aragon, 983 F.2d 1306, 1313 (4th Cir.1993) (holding attempt to rescue prisoner and assisting in escape to be crimes of violence because of inherent risk of force). Likewise, the district court accurately characterized Wardrick’s 1988 conviction for resisting arrest as a violent felony. The act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others. See United States v. James, 337 F.3d 387 (4th Cir.2003) (holding South Carolina conviction for failure to stop for a blue light to be violent felony under ACCA because prohibited conduct creates potential for confrontation and violence). Accordingly, Wardrick’s conviction for resisting arrest is properly characterized as a violent felony pursuant to ACCA. Because Wardrick had been convicted of at least four violent felonies— battery, assault, escape, and resisting arrest — the district court did not err in sentencing him under ACCA as an “armed career criminal.” IV. Pursuant to the foregoing, we affirm Wardriek’s convictions and sentence. AFFIRMED . Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful for any person \"who has been convicted ... of, a crime punishable by imprisonment for a term exceeding one year” to possess \"any firearm or ammunition.” Section 5861(d) of Title 26 makes it unlawful for any person \"to receive or possess a firearm [such as a sawed-off shotgun] which is not registered to him in the National Firearms Registration and Transfer Record.” . In securing the search warrant, Det. Over-field complied with" }, { "docid": "23343666", "title": "", "text": "Maryland common law offense of resisting arrest — “involve[s] purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144-45, 128 S.Ct. 1581. In making this assessment, we utilize the familiar “categorical approach,” looking only to the elements of the offense. Seay, 553 F.3d at 737. Thus, “we consider the [Resisting Arrest Offense] generically, that is to say, we examine it in terms of how the law defines [it] and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, 553 U.S. at 141, 128 S.Ct. 1581. 3. In our Wardrick decision, rendered prior to Begay and Chambers, we concluded that the Resisting Arrest Offense constitutes a “violent felony” under the ACCA. See 350 F.3d at 455. Wardrick had been convicted of two firearms offenses and was thereafter sentenced to 300 months in prison. On appeal, he contended that the district court had erroneously deemed him to be an armed career criminal under the ACCA. Id. at 448. One of the prior convictions that Wardrick challenged was for the Resisting Arrest Offense. Id. at 451. We concluded that “the district court accurately characterized Wardriek’s 1988 conviction for resisting arrest as a violent felony,” emphasizing that “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others.” Id. at 455. In ruling against Jenkins at the sentencing hearing in this case, the district court relied primarily on our unpublished decision in Mullen, rendered after Begay and Chambers, for the proposition that Wardrick yet controls the question of whether the Resisting Arrest Offense is a “crime of violence” for purposes of the Career Offender Enhancement. See United States v. Mullen, 311 Fed.Appx. 621, 623-24 (4th Cir.2009). The Mullen defendant, who had been convicted of bank robbery and sentenced as a career offender, contended on appeal that his prior 2001 conviction for resisting arrest in Maryland was not a “crime of violence.” Id. Mullen acknowledged that we had ruled to the contrary in Wardrick, but" }, { "docid": "23005486", "title": "", "text": "illegal firearms were found. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); see also United States v. Williams, 623 F.2d 535 (8th Cir.1980) (holding seizure of plumbing bill proper where search warrant described cocaine and heroin because bill constituted “mere evidence,” showing that defendant occupied premises where drugs found). Likewise, the holsters were properly seized— they further linked Wardrick to the illegal possession of firearms. In sum, the court did not err in declining to suppress the unspecified items. D. Wardrick’s final contention on appeal relates to the district court’s imposition of his sentence. He asserts that the district court erred in characterizing him as an “armed career criminal.” Pursuant to ACCA, a person convicted under § 922(g) who “has three previous convictions ... for a violent felony” shall be imprisoned not less than fifteen years. 18 U.S.C. § 924(e)(1). According to ACCA: the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that — (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. § 924(e)(2)(B); see also U.S. Sentencing Guidelines Manual § 4B1.2. In sentencing Wardrick as an “armed career criminal,” the district court reviewed and assessed his earlier felony convictions. The court determined that five of those convictions were violent felonies under ACCA: (1) his 1983 Maryland conviction for common-law assault; (2) his 1984 Maryland conviction for escape; (3) his 1986 Maryland conviction for common-law battery; (4) his 1988 Maryland conviction for resisting arrest, and (5) his 1988 Maryland conviction for common-law battery. Although Wardrick concedes that his 1986 battery conviction was a violent felony, he maintains on appeal that the court erred as to the other four convictions. As explained below, at least four of these five prior convictions were violent felonies under ACCA, and Wardrick’s contention that he was improperly sentenced must be rejected." }, { "docid": "23343661", "title": "", "text": "respect to crimes of violence and career offender status. 1. For purposes of the Career Offender Enhancement, the Guidelines define a “crime of violence,” in pertinent part, as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2(a)(2) (2008). Because “resisting arrest” is not one of the offenses specifically enumerated in section 4B1.2(a)(2) of the Guidelines, the Resisting Arrest Offense can be a “crime of violence” only if it falls within the “otherwise involves” clause of that subsection. In our Wardrick decision in 2003, we explained that the Resisting Arrest Offense “poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others.” 350 F.3d at 455. In this appeal, Jenkins acknowledges the unambiguous nature of the Wardrick decision, but contends that it has been undercut by the Supreme Court’s subsequent decisions in Begay and Chambers. Each of those three decisions — Wardrick, Begay, and Chambers — assessed whether a particular offense qualified as a “violent felony” under the Armed Career Criminal Act (the “ACCA”), and none of them directly addressed the definition of a “crime of violence” for purposes of the Career Offender Enhancement of the Guidelines. Nonetheless, we are guided by the “nearly identical” and “materially indistinguishable” language in the respective provisions. United States v. Rivers, 595 F.3d 558, 560 n. 1 (4th Cir.2010). Indeed, we recently recognized that “precedents evaluating the ACCA apply with equal force to [Guidelines section] 4B1.2.” Jarmon, 596 F.3d at 231 n. *. And, in assessing the “substantially similar” language that defines a violent felony under the ACCA and a crime of violence under the Guidelines, our good friend Judge Niemeyer has specified that “Begay’s analysis is applicable to [section] 4B1.2(a)(2).” See United States v. Seay, 553 F.3d 732, 739 (4th Cir.2009). 2. In Begay, the Supreme Court ruled" }, { "docid": "5195235", "title": "", "text": "(2007) (same); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190-194, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (same). And where, for example, a state court has applied its burglary statute to conduct well outside the generic definition of burglary, the Supreme Court has been willing to treat that decision as evidence that the state crime was not categorically a violent felony. See Descamps, 133 S.Ct. at 2282 (referring to shoplifting conduct to show coverage of state statute is broader than the generic burglary offense); see also Moncrieffe, 133 S.Ct. at 1687. C. Finally, our conclusion that defendant’s Maryland resisting arrest conviction categorically qualifies under the crime-of-violence enhancement draws support from this court’s treatment of the same crime in closely analogous contexts. United States v. Wardrick held that a Maryland common-law resisting arrest conviction categorically qualified as a “violent felony” within the meaning of the ACCA. 350 F.3d 446, 455 (4th Cir.2003). And Wardrick’s reasoning was confirmed by United States v. Jenkins, which held that the same common-law forerunner to the present statutory offense categorically constituted a “crime of violence” under the “career-offender enhancement” defined at U.S.S.G. § 4B1.2. 631 F.3d 680, 682-83, 685 (4th Cir.2011). Of particular significance here, Jenkins expressly framed the question before the court as “whether the Resisting Arrest Offense ... ‘involve[s] purposeful, violent, and aggressive conduct,’ ” id. at 684 (brackets in original) (quoting Begay v. United States, 553 U.S. 137, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)) — ultimately answering in the affirmative, id. at 684-85. To be sure, the specific textual hooks on which Wardrick and Jenkins hung then-holdings were the residual clauses of the respective provisions, both of which encompass offenses that, inter alia, “involve! ] conduct that presents a serious potential risk of physical injury to another.” Wardrick, 350 F.3d at 454-55 (quoting 18 U.S.C. § 924(e)(2)(B)©); Jenkins, 631 F.3d at 682 (quoting U.S.S.G. § 4B1.2(a)(2)). From this foundation, the defendant attempts to argue that the Fourth Circuit implicitly denied that the force clauses of those provisions, which are identical to the Guidelines language in question here, also reach Maryland’s resisting arrest" }, { "docid": "23005487", "title": "", "text": "attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. § 924(e)(2)(B); see also U.S. Sentencing Guidelines Manual § 4B1.2. In sentencing Wardrick as an “armed career criminal,” the district court reviewed and assessed his earlier felony convictions. The court determined that five of those convictions were violent felonies under ACCA: (1) his 1983 Maryland conviction for common-law assault; (2) his 1984 Maryland conviction for escape; (3) his 1986 Maryland conviction for common-law battery; (4) his 1988 Maryland conviction for resisting arrest, and (5) his 1988 Maryland conviction for common-law battery. Although Wardrick concedes that his 1986 battery conviction was a violent felony, he maintains on appeal that the court erred as to the other four convictions. As explained below, at least four of these five prior convictions were violent felonies under ACCA, and Wardrick’s contention that he was improperly sentenced must be rejected. In assessing whether earlier convictions constitute violent felonies for purposes of ACCA, a court is first obliged to utilize the “categorical approach” ordinarily employed in determining career criminal status. See United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998) (determining whether prior felony constitutes crime of violence depends on whether elements of prior offense involved conduct presenting serious risk of physical injury to another); see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This categorical approach requires the court to rely only upon the fact of conviction and the definition of the prior offense. Kirksey, 138 F.3d at 124. If the definition of the prior offense is ambiguous, however, the court must look beyond the definition to the charging document and to any statements incorporated into that document. Kirksey, 138 F.3d at 124-26. In conducting its ACCA assessment, a court may also consult the jury instructions in the earlier case to determine whether the prior conviction constitutes a violent felony. See United States v. Coleman, 158" }, { "docid": "638872", "title": "", "text": "years of imprisonment. 18 U.S.C. § 924(e)(1). The statute defines “violent felony” as follows: [T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.... 18 U.S.C. § 924(e)(2)(B). Lancaster concedes that his two convictions for aggravated assault qualify as predicate offenses under § 924(e), but argues that the district court erroneously considered his second-degree escape conviction to qualify as a violent felony. “A person is guilty of escape in the first degree when he escapes from custody or a detention facility by the use of force or threat of force against another person.” Ky.Rev.Stat. § 520.020 (2006). Kentucky’s second-degree escape statute, on the other hand, provides that “[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.” Ky.Rev.Stat. § 520.030 (2006). Lancaster contends that because Kentucky’s statutes distinguish between escapes involving the use of force (first degree) and escapes not involving force (second degree), his conviction for second-degree escape should not qualify as a violent felony under § 924(e). We disagree. Until recently, we had consistently regarded the crime of escape to be a violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B) because it involves conduct that presents a serious potential risk of physical injury to others. In United States v. Harris, 165 F.3d 1062, 1067-68 (6th Cir.1999), we held that a conviction for violating former Tenn.Code Ann. § 39-5-706, which made it a felony for “any person confined in a county workhouse or jail or city jail or municipal detention facility upon" }, { "docid": "1359137", "title": "", "text": "omitted). There is no plausible argument that violent force of the type contemplated by the force clause of the reentry Guideline is a required element of the Maryland crime of resisting arrest. Cf. United States v. Romo-Villalobos, 674 F.3d 1246, 1249 (11th Cir.2012) (holding that the Florida crime of resisting arrest “by offering or doing violence to the person of such officer” is a “crime of violence” pursuant to the force clause of the reentry Guideline) (citation omitted) (emphasis added). The Government persists, citing two of our prior cases — United States v. Wardrick, 350 F.3d 446, 454-55 (4th Cir.2003), and United States v. Jenkins, 631 F.3d 680, 683-85 (4th Cir.2011)' — -to buttress its argument that Maryland resisting arrest is an “inherently violent” crime that “poses a substantial risk of physical injury to officers.” Govt. Br. 13. This argument also fails, and for a simple reason: Wardrick and Jenkins involved different clauses of different sentencing provisions. Both cases involved “the residual clause,” which categorizes prior state offenses as federal sentencing predicates if they criminalize “conduct that presents a serious potential risk of physical injury to another.” This language appears in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and the career offender Guideline, U.S.S.G. § 4B1.2(a)(2). But it is not in the reentry Guideline. That is why Wardrick and Jenkins are irrelevant to this case. In Wardrick, 350 F.3d at 454, we held that Maryland resisting arrest was a “violent felony” pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), but there we asked whether the crime fell under the residual clause, and thus criminalized “conduct that present[ed] a serious potential risk of physical injury to another”; similarly, in Jenkins, 631 F.3d at 682-85, we held that Maryland resisting arrest was a “crime of violence” within the meaning of the residual clause of the career offender Guideline, U.S.S.G. § 4B1.2(a)(2), but again we were asking whether resisting arrest “involve[d] conduct that presents a serious potential risk of physical injury to another.” The Government pushes on. After all, it contends, offenses that criminalize conduct that presents a" }, { "docid": "23005491", "title": "", "text": "F.3d 387 (4th Cir.2003) (holding South Carolina conviction for failure to stop for a blue light to be violent felony under ACCA because prohibited conduct creates potential for confrontation and violence). Accordingly, Wardrick’s conviction for resisting arrest is properly characterized as a violent felony pursuant to ACCA. Because Wardrick had been convicted of at least four violent felonies— battery, assault, escape, and resisting arrest — the district court did not err in sentencing him under ACCA as an “armed career criminal.” IV. Pursuant to the foregoing, we affirm Wardriek’s convictions and sentence. AFFIRMED . Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful for any person \"who has been convicted ... of, a crime punishable by imprisonment for a term exceeding one year” to possess \"any firearm or ammunition.” Section 5861(d) of Title 26 makes it unlawful for any person \"to receive or possess a firearm [such as a sawed-off shotgun] which is not registered to him in the National Firearms Registration and Transfer Record.” . In securing the search warrant, Det. Over-field complied with § 1-203 of the Code of Maryland Criminal Procedure, which establishes procedural requirements for issuance of a search warrant. . The Overfield Affidavit detailed Det. Over-field's experiences with Wardriek and his recent ammunition purchases. It then laid out Wardrick’s lengthy criminal record, and it explained the circumstances prompting War-drick’s threatening comments “intended to be overheard” by Det. Overfield. The Overfield Affidavit also detailed Det. Overfield's manner of ascertaining the Division Street address. It explains that Det. Overfield “conducted a check through a local utility and found that Robert J. Wardriek has been receiving utility service at 1808 Division Street, Baltimore ... since April of 2000;” that he “contacted the Baltimore City Division of Parole and Probation and determined that Mary Frances Wardrick['s] ... telephone number was (410) 383-2509 and that she listed her current address as 1808 Division Street, Baltimore;\" that he “conducted a check through a different utility company [Verizon] and confirmed that the telephone number (410)383-2509 was active and was listed to Robert J. Wardriek at 1808 Division Street, Baltimore;” that he \"conducted" }, { "docid": "23005489", "title": "", "text": "F.3d 199, 202 (4th Cir.1998) (en banc). The instructions underlying Wardrick’s 1983 assault conviction support the proposition that the district court did not err in characterizing that conviction as a violent felony. In Maryland, a common-law assault “presents the unusual situation in which an offense may be committed in one of two ways — one of which requires the use, attempted use, or threatened use of physical force and one of which does not.” Coleman, 158 F.3d at 202. Because of this ambiguity, we have been “unable to conclude that a Maryland conviction for common-law assault is per se a violent felony within the meaning of § 924(e)(2)(B)(i).” Id. However, the jury instructions in Wardrick’s 1983 assault trial in Baltimore City defined assault, under Maryland law, as “a threat by words or acts or both to do bodily harm to another, coupled with the apparent present ability to carry out the threat.” In light of that instruction, the jury, in finding Wardrick guilty of common-law assault, convicted him of a violent felony; i.e., the guilty verdict had “as an element the ... threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B). The district court also properly characterized Wardrick’s 1984 Maryland conviction for escape as a violent felony. As we have indicated, felony escape and attempted escape constitute violent felonies under ACCA- — even if accomplished by stealth. See generally United States v. Hairston, 71 F.3d 115 (4th Cir.1995) (holding felony escape in North Carolina to be crime of violence under ACCA because escape presents risk of injury to others); United States v. Aragon, 983 F.2d 1306, 1313 (4th Cir.1993) (holding attempt to rescue prisoner and assisting in escape to be crimes of violence because of inherent risk of force). Likewise, the district court accurately characterized Wardrick’s 1988 conviction for resisting arrest as a violent felony. The act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physical injury to the officer and others. See United States v. James, 337" }, { "docid": "23005488", "title": "", "text": "In assessing whether earlier convictions constitute violent felonies for purposes of ACCA, a court is first obliged to utilize the “categorical approach” ordinarily employed in determining career criminal status. See United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998) (determining whether prior felony constitutes crime of violence depends on whether elements of prior offense involved conduct presenting serious risk of physical injury to another); see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This categorical approach requires the court to rely only upon the fact of conviction and the definition of the prior offense. Kirksey, 138 F.3d at 124. If the definition of the prior offense is ambiguous, however, the court must look beyond the definition to the charging document and to any statements incorporated into that document. Kirksey, 138 F.3d at 124-26. In conducting its ACCA assessment, a court may also consult the jury instructions in the earlier case to determine whether the prior conviction constitutes a violent felony. See United States v. Coleman, 158 F.3d 199, 202 (4th Cir.1998) (en banc). The instructions underlying Wardrick’s 1983 assault conviction support the proposition that the district court did not err in characterizing that conviction as a violent felony. In Maryland, a common-law assault “presents the unusual situation in which an offense may be committed in one of two ways — one of which requires the use, attempted use, or threatened use of physical force and one of which does not.” Coleman, 158 F.3d at 202. Because of this ambiguity, we have been “unable to conclude that a Maryland conviction for common-law assault is per se a violent felony within the meaning of § 924(e)(2)(B)(i).” Id. However, the jury instructions in Wardrick’s 1983 assault trial in Baltimore City defined assault, under Maryland law, as “a threat by words or acts or both to do bodily harm to another, coupled with the apparent present ability to carry out the threat.” In light of that instruction, the jury, in finding Wardrick guilty of common-law assault, convicted him of a violent felony; i.e., the guilty" }, { "docid": "11877293", "title": "", "text": "the offense did not have as an element the use, attempted use, or threatened use of physical force against another person. Id. Consequently, we turned to whether a South Carolina failure to stop for a blue light violation otherwise involved conduct that presented a serious potential risk of physical injury to another person. Id. In assessing this question, we applied a “ ‘categorical approach, whereby the court looks only at the fact of conviction and the statutory definition of the offense, and not to the underlying facts of a specific conviction.’ ” Id. (quoting United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993)). Under this approach, we asked whether the statute at issue “ ‘proscribe^] generic conduct with the potential for serious physical injury to another.’ ” Id. (quoting United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.1993)); see also United States v. Hairston, 71 F.3d 115, 118 (4th Cir.1995) (holding that any escape, even an escape by stealth, created a serious potential risk of physical injury to another and, therefore, an escape offense, however effected, is a violent felony under § 924(e)(l)(B)(ii)). In concluding that a South Carolina failure to stop for a blue light violation posed a potential for serious physical injury to another, we stated: Applying the categorical approach, we find that failing to stop for a blue light generally proscribes conduct that poses the potential for serious injury to another. Most cases of failing to stop for a blue light involve the deliberate choice by the driver to disobey the police officer’s signal. This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders. James, 337 F.3d at 390-91. If the analysis set forth in James is controlling, the outcome of this case is straightforward. Unquestionably, under James, Roseboro’s three prior South Carolina failure to stop for a blue light violations are violent felonies. The question we must address is whether the Supreme Court’s decision" } ]
581257
in favor of the same importers, to be burlaps, and assessed as such. In re White, 53 Fed. 787. These are protested to be burlaps, not exceeding 60 inches in width, under paragraph 364 of the tariff act of 1890, but are found now to be manufactures of jute and of flax not specially provided for, under paragraphs 371 and 374. Such goods were specially mentioned, as manufactures of flax, jute, or hemp, in the tariff act of 1883, and provided for as such. That special mention was omitted in the act of 1890; but they were such manufactures, and not burlaps, before, and that omission did not change the nature of the goods, nor the class to which they belonged. REDACTED Ct. 120. The former finding, although followed by the court as a finding, was not conclusive, if misleading, as to future importations. Falk v. Robertson, 137 U. S. 225, 11 Sup. Ct. 41. The finding in this case seems to have been well warranted, and, as said by Judge Coxe in respect to the former finding, it should be undisturbed. Decision of board of general appraisers affirmed.
[ { "docid": "7401980", "title": "", "text": "properly chargeable with the rate of duty applicable to manufactures of steel not otherwise provided for. Synopsis T. Dec. 1875, p. 56, No. 2140. By section 2502 of Title XXXIII. of the Revised Statutes as enacted by the act of March 3, 1883, 22 Stat. 501, c. 121, “ Schedule C, — Metals,” a duty of thirty per centum ad valorem was levied on “ Pins, solid-head or other; ” and by the last paragraph in the same schedule, on “Manufactures, articles, or wares,.not specially enumerated or provided for in this act, composed wholly or in. part of iron, steel, . ■ . . or any other metal, and whether partly or wholly manufactured: forty-five per centum ad valorem.” It will be perceived that although hair-pins are not mentioned eo nomine, this last paragraph covers iron and steel hair-pins, as was ruled as to the latter by the department in 1875, in the construction and application of similar language. Inasmuch as Congress, for the thirteen years prior to 1883, treated hair-pins for revenue purposes as a distinct article from “pins, solid-head or other,” we consider it unreasonable to conclude that the legislation of 1883 was intended to do away with a distinction manifestly regarded as inherent in the thing itself. In' short, it is doubtful if it could ever have been properly held that hair-pins were ejusdem generis with the pins referred to in the tariff acts, but if this could have been so prior to 1870, we are of opinion that at that time Congress assigned them to a class by themselves, because essentially sui generis, and, therefore, that their not being specifically enumerated in 1883 did not relegate them to the category of “ pins, solid-head or other,” as ingeniously argued by counsel. From these views the conclusion follows that the court below should have instructed the jury to find for the defendant. The judgment is reversed, wnd the cause remanded with a direction to awa/rd a new trial." } ]
[ { "docid": "18656916", "title": "", "text": "(68 Stat. 1137). Inasmuch as we have found, as will appear, that there is at least one direct enumeration of merchandise chargeable with duty in the Tariff Act of 1930 under which the plastic floor tiles at bar are classifiable, it is unnecessary to consider the claim for classification by similitude. So far as pertinent, the involved tariff provisions, as originally enacted and as they existed at the time of importation of the merchandise at bar, read as follows: Paragraph 1539 (b), Tariff Act of 1930, as enacted: * * * manufactures wholly or in chief value of any of the foregoing [laminated products of which any synthetic resin or resin-like substance is the chief binding agent], or of any other product of which any synthetic resin or resin-like substance is the chief binding agent, 50 cents per pound and 40 per centum ad valorem. Paragraph 1539 (b), as modified by T.D. 54108: Manufactures wholly or in chief value of any product described in the preceding item 1539(b), or of any other product of which any synthetic resin or resin-like substance is the chief binding agent_21$ per lb. and 17% ad val. Paragraph 1021, Tariff Act of 1930, as originally enacted: Common China, Japan, and India straw matting, and floor coverings made therefrom, 3 cents per square yard; carpets, carpeting, mats, matting, and rugs, wholly or in chief value of flax, hemp, or jute, or a mixture thereof, 35 per centum ad valorem; all other floor coverings not specially provided for, 40 per centum ad valorem. Paragraph 1021, as modified by T.D. 54108: Moor coverings not specially provided for (except grass or rice straw floor coverings, and not including felt-base floor coverings)_17% ad val. Plaintiff relies strongly upon the legislative history of paragraphs 1539 (b) and 1021, supra, at the time of the enactment of the Tariff Act of 1930, as indicating that paragraph 1539(b) was not intended by Congress to include articles such as the plastic floor tiles at bar, and that it was intended that such articles should be covered by paragraph 1021, Defendant, on the other hand," }, { "docid": "17049614", "title": "", "text": "In United States v. General Dyestuff Corp., 29 C. C. P. A. 53, C. A. D. 170, certain Montan wax was claimed to be classifiable under the provision for mineral wax. The wax imported, however, had been changed in character by bleaching and chemical action to a condition suitable for a highly specialized use for which it was not adaptable before such treatment and the court hold it to be classifiable as a nonenumerated manufactured article rather than as a manufacture of wax or as “Wax: * * * mineral, not specially provided for.” The preparation of the material for a highly specialized use by changing its composition clearly distinguishes that case from the case at bar. There, in order to change the form of the material, chemical action was necessary. In Ishimitsu v. United States, 11 Ct. Cust. Appls. 186, T. D. 38963, certain seaweed boiled with a sauce and canned was assessed as vegetables, prepared in any way. The importer claimed free entry therefor as seaweeds, crude or unmanu-factured, or as seaweeds, manufactured.. The court held that the collector had properly classified the merchandise, stating that— The tariff act distinguishes between a mere advancement and a manufacture. An importation can not be assumed to be a manufacture merely because shown to be advanced. [See syllabus.] The Ishimitsu case, supra, cannot be used as an authority for holding-boron carbide to be excluded from its eo nomine provision inasmuch as-the appellate court did not have before it for consideration an unqualified provision therefor, or a commodity composed solely of seaweeds. In Downing v. United States, 2 Ct. Cust. Appls. 364, T. D. 32093, the merchandise was sheets of dried rag pulp intended to be-used to make paper. The collector assessed it for duty as paper, not specially provided for. The Board of General Appraisers held it dutiable as manufactures of cotton or as manufactures of flax. The-importer claimed it dutiable by similitude to wood pulp. Our appellate court held that the Board’s classification was correct. Clearly to classify the merchandise under the eo nomine provision for paper would not have" }, { "docid": "12467171", "title": "", "text": "have been actually exported from the United States, may be returned empty to the United States, free of duty, under regulations to be prescribed by the secretary of the treasury.” The board of general appraisers affirmed the action of the collector upon the bags of foreign manufacture, and upon appeal the circuit court affirmed the decision of the board. The sole question in the case is whether the quoted proviso in section 7 of the act of February 8, 1875, was in force at the time of the importation. If it was, the bags were exempted from duty. Schedule O of title 33 of the Revised Statutes — the title which related to duties upon imports — imposed a duty of 40 per centum ad valorem upon hags (except bagging for cotton) composed wholly or in part of jute, the material of which grain bags are made; but grain bags, the manufacture of the United States, if exported containing American produce, and if declaration was made of intent: to return the same empty, were exempt from duty (Rev. St. § 2505). The act of February 7, 1875, was in part an amendment of the existing statutes, and the provision which has been quoted was for 1he purpose of placing empty grain bags of foreign and home manufacture, when returned to this country after having been used in the exportation of grain, in the same dutiable condition. Section 6 of the comprehensive tariff act of March 3, 1883 (22 Stat. 489), provided that on and after July 1, 1883, “the following sections shall constitute and be a substitute for title thirty-three of the Revised Statutes.” The previously existing provision in regard to empty returned bags of American manufacture was re-enacted in substance in the free list, but the provision in section 7 of the act of 1875 was omitted, and bags, except bagging for cotton, were made dutiable at 40 per cent, ad valorem. Paragraph 493 of the tariff act of October 1, 1890, retained the same exemption from duty upon returned empty bags of American manufacture, and was silent in" }, { "docid": "22733172", "title": "", "text": "Congress requires the interpretation of the words in their ordinary rather than their commercial or trade meaning, we find full support in a case which was not cited in the opinions of the courts below or in the briefs of counsel on either side. We refer to the case of United States v. Klumpp, 169 U. S. 209. That case turned on paragraph 297 of the Wilson-Gorman Tariff Act of 1894, 28 Stat. 509, c. 349, passed in Mr. Cleveland’s administration, to take the place of the McKinley Tariff Act of 1890, 26 Stat. 567, c. 1244. The new Act applied to all .imports from the date of its passage, August 27, 1894, except merchandise covered by paragraph 297 which read as follows: “The reduction of the rates of duty herein provided for manufactures of wool shall take effect January first, eighteen hundred and ninety-five.” The contention of the Government in that case, which both the District Court and the Circuit Court of Appeals had upheld, Murphy v. United States, 68 Fed. 908, 72 Fed. 1008, was that, under the language of the McKinley Act and the previous tariff acts for a great many years, manufactures of wool and manufactures of worsteds were separate subjects of importation, and that paragraph 297 postponing the reduction of duties on manufactures of wool, did not apply to manufactures of worsteds. It had been expressly decided by this Court in Seeberger v. Cahn, 137 U. S. 95, 97, that cloths popularly known as diagonals, and in the trade as worsteds, were subject to duty under the Act of March 3, 1883, as manufactures of worsteds and not as manufactures of wool. It was admitted that the merchandise in controversy was worsted dress goods made from the fleece of the sheep, which had been combed and spun into worsted yarn, and paid a high duty under the McKinley Act. By the Act of May 9, 1890, it was provided that worsted cloths should be classified as, and with, woolen cloths, 26 Stat. 105, c. 200. That, however, seems to have been repealed by the McKinley" }, { "docid": "12467170", "title": "", "text": "SHIPMAN, Circuit Judge, In June, 1893, Percy Kent, the appellant, imported into the'port of New York 75 bales of grain bags made of burlaps, which had been used in the exportation of Amer ican grain, and were imported, after such use, as secondhand bags, being, for the most part, known as “cental bags.” Such cental bags are made in very large quantities in foreign countries. Two bales, which were selected and agreed upon as representative bales, were found to contain 1,613 bags of foreign manufacture and 387 of American manufacture. The collector classified them for duty under paragraph 365 of the tariff act of October 1, 1890, which is as follows: \"Bags for grain made of burlaps, two cents per pound.” As to the bags of foreign manufacture, the importer protested against this classification, upon the ground that they were entitled to free entry, under the provisions of section 7 of the act of February 8, 1875 (18 Stat. 307), which provided as follows: “That bags, other than of American manufacture, in which grain shall have been actually exported from the United States, may be returned empty to the United States, free of duty, under regulations to be prescribed by the secretary of the treasury.” The board of general appraisers affirmed the action of the collector upon the bags of foreign manufacture, and upon appeal the circuit court affirmed the decision of the board. The sole question in the case is whether the quoted proviso in section 7 of the act of February 8, 1875, was in force at the time of the importation. If it was, the bags were exempted from duty. Schedule O of title 33 of the Revised Statutes — the title which related to duties upon imports — imposed a duty of 40 per centum ad valorem upon hags (except bagging for cotton) composed wholly or in part of jute, the material of which grain bags are made; but grain bags, the manufacture of the United States, if exported containing American produce, and if declaration was made of intent: to return the same empty, were exempt" }, { "docid": "22034859", "title": "", "text": "the- board of general appraisers filed in the court their return, embodying the protest of November 15, 1890,’ the assistant appraiser’s report of November 28, 1890, the collector’s communication of December 16, 1890, the testimony of Daly, and the opinion and decision of the board. The case was argued before the Circuit Court, held by Judge Lacombe, which entered an order, on March 20, 1S9Í, reversing and setting aside the decision of the collector and that of the board of general appraisers, and adjudging that the merchandise should have been classified and assessed with duty at the rate of 45 per cent ad valorem, under paragraph 215 <if the act, as “ manufactures, articles, or wares, not specially enumerated or provided for in this act,' composed . . . in part of iron or steel.” The opinion of the Circuit Courtis reported in 45 Fed. .Eep. 349. It stated that there, was- no evidence that the articles were ev¿r assembled or brought together with the gun-barrels on the other side; that there was no finding to. that effect by the appraisers ; ■ that if there were such a finding of fact, the court would be constrained to reverse it, because there was no evidence in the record to support it; that, for all that appeared, the gunstocks might have' been bought from one manufacturer and the gun-barrels from another; that the tariff act laid a duty upon “ sporting, breeph-loading shotguns,” and laid a separate and different dutyVpon the parts of which such shotguns were composed, as mánufactures in whole or in part of metal; that it could be fairly assumed that Congress, by that terminology, meant to allow importers who'chose to do so, 7to bring in fragments of a combination article by different shipments, and then to employ domestic labor in’ putting them together; that it might have been intended to induce importers to employ to that extent the labor of this country, instead of having the article combined abroád; that, under the language of the statute, there was .nothing in the shipment in question except gun-stocks mounted," }, { "docid": "23318293", "title": "", "text": "those articles imported from foreign countries the following duties; to wit: — “ On all burlaps and like manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, except such as may be suitable for bagging for cotton, thirty per centum ad valorem,. On all oilcloth foundations or floor-cloth canvas, made of flax, hemp, or jute, or of which flax, hemp, or jute shall be the component material of chief value, forty per centum ad valorem. • On all bags, cotton-bags, and bagging, and all other like manufactures not.herein provided.for, exoept bagging for cotton, composed wholly or in part of flax, hemp, jute, gunny-cloth, gunny-bags, or other material, forty per centum ad valorem.” All the testimony produced upon the- trial is embodied in the bill of exceptions. It was introduced by the plaintiffs. The United States adduced none. The rule to be followed in the construction of revenue statutes in cases like this is well settled in this court. It is, that the descriptive terms applied to articles of commerce shall be understood according to the acceptation given to them by commercial men in our own ports at the time of the passage of the act in which they are found. United, States v. Two Hundred Chests of Tea, 9 Wheat. 230; Elliot v. Swartout, 10 Pet. 151; Curtis v. Martin, 3 How. 106. The statute here in question declares that “ on all burlaps and like manufactures of flax, jute, or hemp, . . . except such as may be suitable for bagging for cotton, a duty of thirty per centum ad valorem shall be paid.” The mercantile testimony in the record shows that the articles in question were “burlaps,” that they were a “manufacture of jute,” and that they were not suitable for bagging for cotton. The exception may, therefore, be laid out of view. The language of. the statute is clear and explicit. It is, “ all burlaps ” made of jute, &c. The mercantile proof brings the case exactly within this category. The fact that" }, { "docid": "23318295", "title": "", "text": "the burlaps were suitable, and could be and were used for oil-cloth foundations, or for. any other purpose except bagging for cotton, is entirely immaterial. The maxim, Uxpressio unius, exolusio alterius, applies with' cogent effect. This view is conclusive, unless it is overcome by something else found in the statute. The counsel for the United States insists that it is answered by the next category defined in the section; which is, that “ on all oil-cloth foundations or floor-cloth canvas made of flax, jute, or hemp,” a duty shall be levied “ of forty per cent ad valorem.” Here, again, we must look to the mercantile testimony in the record. It is there stated that “ floor-cloth canvas ” is used exclusively for the manufacture of floor oil-cloth. “ It has a harder twist; is heavier, is a more expensive article than burlaps, and is not calendered as burlaps are. . . . Floor-cloth canvas is a commercial term implying a well-known article of merchandise thus described; and a merchant, in speaking of foundations for oil-cloths, would be considered to refer to ‘floor-cloth canvas.’ Floor-cloth canvas is not called burlaps, nor is burlaps called floor-cloth canvas.” This testimony establishes two things: first, that the terms oil-cloth foundations and floor-cloth canvas, as used in the statute, mean in commerce the same thing; and, second, that the thing so understood is not burlaps, but a thing entirely distinct and different from that article. The second clause of the statute in no wise affects the first one. There is, therefore, no just Aground for maintaining that the goods imported by the plaintiffs below were dutiable as oilcloth foundations, not as burlaps. The researches of the counsel for the defendants in error have brought to our attention many instances in which two phrases with the like conjunction between them have been used to designate the same thing. In those cases it was obviously done to make clear and certain the meaning of the legislature, and to leave no room for doubt upon the subject. Such in this section seems to have been .th.e purpose" }, { "docid": "12467172", "title": "", "text": "from duty (Rev. St. § 2505). The act of February 7, 1875, was in part an amendment of the existing statutes, and the provision which has been quoted was for 1he purpose of placing empty grain bags of foreign and home manufacture, when returned to this country after having been used in the exportation of grain, in the same dutiable condition. Section 6 of the comprehensive tariff act of March 3, 1883 (22 Stat. 489), provided that on and after July 1, 1883, “the following sections shall constitute and be a substitute for title thirty-three of the Revised Statutes.” The previously existing provision in regard to empty returned bags of American manufacture was re-enacted in substance in the free list, but the provision in section 7 of the act of 1875 was omitted, and bags, except bagging for cotton, were made dutiable at 40 per cent, ad valorem. Paragraph 493 of the tariff act of October 1, 1890, retained the same exemption from duty upon returned empty bags of American manufacture, and was silent in regard to returned empty foreign-made bags which were filled when exported. Thus, since 1875, two comprehensive revisions of the title in the ■Revised Statutes relating lo duties upon imports have taken place, and the amendment of the act of 1875, in regard to foreign-made bags, has been omitted, while the subject of the dutiable rale upon bagging has received the usual consideration. These successive acts show a. plain intention to substitute their respective provisions in regard to bagging in the place of all prior legislation on that subject. In re Straus, 46 Fed. 522. It is a general rule tliat when a later statute is a complete revision of the particular subject to which the earlier statute related, and the new legislation was manifestly intended as a substitute for the former legislation, the prior act must be held to have been repealed. U. S. v. Claflin, 97 U. S. 546; Red Rock v. Henry, 106 U. S. 596, 1 Sup. Ct. 434. But it is said that Russell v. Worthington, 23 Fed. 248, shows that" }, { "docid": "22398881", "title": "", "text": "Me. Justice Beown, after stating- the case, delivered the opinion of the court.. The decision'of this case .depends upon the construction of the tariff act of March 3, 1883, .22 Stat. 488, c.'121. Schedule J of this act, page 507, provides for a duty of 40. per cent ad valorem upon “ flax or linen thread, twine and pack thread, and all manufactures of flax, or of-which flax shall- be.the component material' of chief valué, .not specially, enumerated or provided for in this act; ” while a subsequent paragraph of the same schedule imposes a duty of 25 per cent ad valorem upon “ seines and seine and gilling- twine.” The question is, to which category, under the'finding of facts, these goods are to be assigned. We-think the- following extract from the finding is .decisive in favor: of the position taken by the plaintiff in error: “ For many years before the tariff act of 1883, this, kind of thread, of the. manufacture of'. W.' & ■ J. Knox and other foreign makers, was imported -under the name of- gilling twine, to be used in making gill nets, and was invoiced and entered at the -custom-hoüse under that name, and was sp; designated on price-lists and trade, circulars of the foreign makers. ' For many years before the act no other- imported article was known by the special name of gilling twine.” It' is a cardinal rule of this court that, in fixing the classification of goods for the payment of duties, the name or designation of the goods is to be understood in its known commercial sense, and that their denomination in the market when the law was passed will control their classification without regard to their scientific designation, the material of which they may be made or the use to which they may be applied.. Two Hundred Chests of Tea, 9 Wheat. 430, 438; United States v. One Hundred and Twelve Casks of Sugar, 8 Pet. 277; Elliott v. Swartwout, 10 Pet. 137; Curtis v. Martin, 3 How. 106; Arthur v. Morrison, 96 U. S. 108; Swan v." }, { "docid": "16731161", "title": "", "text": "LANNING, Circuit Judge. The merchandise imported by the appellees was Buhl furniture. The Board of General Appraisers decided that it was liable to a duty of 45 per cent, ad valorem under paragraph 193 of the tariff act of 1897. The Circuit Court reversed the Board of General Appraisers, and held that it was dutiable at 35 per cent, ad valorem under paragraph 208 of the above-mentioned act. The appellant now seeks to have the judgment of the Board of General Appraisers reinstated. Paragraph 230 of the tariff act of October 1, 1890 (26 Stat. 583, c. 1244), was as follows: “House or cabinet furniture, of wood, wholly or partly finished, manufactures of wood, or of which wood is the component material of chief value, not specially provided for in this act, thirty-five per centum ad valorem.” In 1892 the Board of General Appraisers, having before it tables of wood, ornamented with bronze and portraits on china, the china being the component material of chief value, but the wood being the predominant material in quantity, decided that : “All furniture, wholly or partly finished, of which wood is the predominant material, is included in paragraph 230.” G. A. 1,647 (T. D. 13,220). Accordingly, the tables then before it were declared to be dutiable under that paragraph. The United States acquiesced in this construction. The language of paragraph 230 of the act of 1890 became, without any change except as to the rates imposed, paragraph 181 of the tariff act of August 27, 1894 (28 Stat. 521, c. 349), and paragraph 208 of the tariff act of 1897. The Buhl furniture which is the subject-matter of the present inquiráis household or cabinet furniture, ornamented with metal in such a manner that the metal ornamentation gives to the furniture its chief value, although the predominant material in quantity is wood. If the rule adopted by the Board of General Appraisers in 1892 be now followed, the judgment of the Circuit Court is correct; and, for the sake of uniformity in the administration of the tariff law, we think it should be followed." }, { "docid": "10829052", "title": "", "text": "& Co. cases, supra. The cases cited by defendant are briefly reviewed. United States v. Danker & Marston, 2 Ct. Cust. Appls. 522, T. D. 32251, which arose under the Tariff Act of 1897, cited with approval Roessler & Hasslacher Chemical Co. v. United States, 94 Fed. 822, and Leber & Meyer v. United States, 135 Fed. 243, presented under the Tariff Act of 1894. All of the cases concerned merchandise classified by the collector as a nonenumerated manufactured article. The importer in each instance invoked a provision for articles in a crude state used in dyeing. In sustaining the importer’s claim, the court found that the merchandise was chiefly used for dyeing purposes, and that the processing in the country of exportation did nothing to change the character of the imported article to remove it from the crude state. The importance of the three cases, just referred to, is their adherence to the established principle that “the term 'crude,’ as used in tariff legislation, is a relative term, its meaning depending upon its use in the context.” United States v. Richard & Co., 8 Ct. Cust. Appls. 304, T. D. 37583. The rule was applied in Perry Ryer & Co. v. United States, 2 Ct. Cust. Appls. 374, T. D. 32096, which defendant contends — and we agree — is applicable to the present case. There, the merchandise consisted of young fustic dyewood obtained from a shrub or small tree grown in the Mediterranean countries. The roots and branches, containing the valuable dyeing properties, were generally gnarled, irregular, and jagged in shape, so before shipment they were reduced in size by a process of cutting or shredding and then packed in coarse burlap sacks, the condition in which they were imported. Some of the merchandise was imported while the Tariff Act of 1897 was in effect, and the remainder under the Tariff Act of 1909. The distinction is important because the provision under which importer’s claim was based was materially changed when enacted in the later act of 1909. Paragraph 548 of the Tariff Act of 1897 provided for" }, { "docid": "16527961", "title": "", "text": "not elsewhere specially provided for in this Act.” Asserting that the articles should not have been assessed at 60 per cent, but were dutiable at the rate of 45 per cent, ad valorem under paragraph 320 of said act, usually styled the \"notions” schedule, as “bindings” or as “tapes . . . made of cotton or other vegetable fiber,” the importers duly protested, and the question of the proper classification was considered by the Board of ■General Appraisers. That body, on July 24, 1906, sustained the decision of the collector, upon the authority of a ruling made in the case of Straus Bros. & Co., wherein the Board but acted upon the evidence taken in and applied the ruling made, in what is known as the Vom Baur Case. The importers carried the case to the Circuit Court, and in that court additional evidence was introduced by both parties. Upon' such additional evidence and the evidence taken before the board, the decision of the board was affirmed on November 23, 1907. 159 Fed. Rep. 294. On appeal, however, the Circuit' Court of -Ap peals held the merchandise dutiable at 45 per cent, ad valorem as \"binding,” under § 320, and the decision of the •.Circuit Court was reversed. 172 Fed. Rep. 342. This writ of certiorari was then allowed. Under the tariff acts of 1890 (May 9, 1890, 26 Stat. 105, c. 200) and 1894 (August 27, 1894, 28 Stat. 509, c. 349) braids were enumerated in the \"notions” schedule, which carried a lower rate of duty than articles in the \"trimmings” schedule. In re Dieckerhoff, 54 Fed. Rep. 161, involved a review, of the decision of the Board of General Appraisers (G.’ A. 1301) in the matter of an importation, in 1891, of articles similar to those here in question, dutiable under the tariff act of 1890. The controversy was whether the goods should have been assessed at the rate of 60 per cent, ad valorem as cotton trimmings under the \"trimmings” schedule, paragraph 373 of the tariff act of 1890, or assessed as cotton braids at 35 cents" }, { "docid": "16527960", "title": "", "text": "Mr. Chief Justice White delivered the opinion of the court. This case concerns the proper classification of merchandise imported in 1899, and subsequent years, by the respondent at the port of New York, invoiced as \"cottonfeatherstitch braids.” The goods consisted of articles ranging variously from about one-fourth to one-half of an inch in width, loom woven, of white or colored threads throughout, or of mixed white and variously colored threads of cotton or other vegetable fiber, and ornamented with raised figures in various designs, some of which had plain' and others scalloped or looped edges. They were officially appraised as \"cotton braids — sixty percentum;” and were accordingly classified by the collector as \"braids” under paragraph 339 of the tariff act of July 24, 1897 (30 Stat. 151, 181, c. 11), generally referred to as the \"trimmings” schedule, the,pertinent provision of which is as follows: \"Embroideries and all trimmings, including braids, edgings, insertings, flouncings, galloons, gorings and bands, . . . composed wholly or in chief value of flax, cotton, or other vegetable fiber, and not elsewhere specially provided for in this Act.” Asserting that the articles should not have been assessed at 60 per cent, but were dutiable at the rate of 45 per cent, ad valorem under paragraph 320 of said act, usually styled the \"notions” schedule, as “bindings” or as “tapes . . . made of cotton or other vegetable fiber,” the importers duly protested, and the question of the proper classification was considered by the Board of ■General Appraisers. That body, on July 24, 1906, sustained the decision of the collector, upon the authority of a ruling made in the case of Straus Bros. & Co., wherein the Board but acted upon the evidence taken in and applied the ruling made, in what is known as the Vom Baur Case. The importers carried the case to the Circuit Court, and in that court additional evidence was introduced by both parties. Upon' such additional evidence and the evidence taken before the board, the decision of the board was affirmed on November 23, 1907. 159 Fed. Rep. 294." }, { "docid": "23318294", "title": "", "text": "terms applied to articles of commerce shall be understood according to the acceptation given to them by commercial men in our own ports at the time of the passage of the act in which they are found. United, States v. Two Hundred Chests of Tea, 9 Wheat. 230; Elliot v. Swartout, 10 Pet. 151; Curtis v. Martin, 3 How. 106. The statute here in question declares that “ on all burlaps and like manufactures of flax, jute, or hemp, . . . except such as may be suitable for bagging for cotton, a duty of thirty per centum ad valorem shall be paid.” The mercantile testimony in the record shows that the articles in question were “burlaps,” that they were a “manufacture of jute,” and that they were not suitable for bagging for cotton. The exception may, therefore, be laid out of view. The language of. the statute is clear and explicit. It is, “ all burlaps ” made of jute, &c. The mercantile proof brings the case exactly within this category. The fact that the burlaps were suitable, and could be and were used for oil-cloth foundations, or for. any other purpose except bagging for cotton, is entirely immaterial. The maxim, Uxpressio unius, exolusio alterius, applies with' cogent effect. This view is conclusive, unless it is overcome by something else found in the statute. The counsel for the United States insists that it is answered by the next category defined in the section; which is, that “ on all oil-cloth foundations or floor-cloth canvas made of flax, jute, or hemp,” a duty shall be levied “ of forty per cent ad valorem.” Here, again, we must look to the mercantile testimony in the record. It is there stated that “ floor-cloth canvas ” is used exclusively for the manufacture of floor oil-cloth. “ It has a harder twist; is heavier, is a more expensive article than burlaps, and is not calendered as burlaps are. . . . Floor-cloth canvas is a commercial term implying a well-known article of merchandise thus described; and a merchant, in speaking of foundations for" }, { "docid": "22118292", "title": "", "text": "failing to indicate that the involved merchandise was claimed free of duty under paragraph 1750 of said act as flax waste used chiefly for paper making at the time of importation. The protest, so far as pertinent, claims that the merchandise assessed for duty as flax noils at 1 cent per pound is free of duty under paragraph 1750 of the Tariff Act of 1930. It is invoiced as “flax waste,” and was entered by the plaintiff as “flax waste for paper-making.” Whether so chiefly used at the time of importation or at the time of the passage of the tariff act would seem to be a matter of evidence and not a necessary allegation of the protest claim. In our opinion the protest is very definite, and the motion of counsel for the Government for the dismissal thereof is therefore denied hereby, with an exception to the defendant. William J. Green, president of the plaintiff company, testified that his company handles all kinds of fibers, practically all paper mill supplies, such as new and old rags, bagging, various kinds of textile waste, flax, cotton, jute, hemp, and sometimes wool waste. He stated that while his company was only organized in 1937, he was in this business since 1908; that he has also dealt in noils, but not since 1908, although he has had occasion to see other people’s importations, and has had noils, offered to them from time to time (R. 4). He stated that collective exhibit 1 represents the merchandise under protest; that he personally purchased the merchandise in question in Russia in December, 1936; that he sold the merchandise to two paper mills that manufacture high-grade paper; that he made other sales of this same material that he imported from the same source of supply in Russia; that from 1936 to the end of 1940 he sold around 1,650 tons to paper mills. The witness stated further that the imported merchandise was not available in this country prior to 1936, i. e., not in the condition as imported; that it was in a condition where it had" }, { "docid": "23479872", "title": "", "text": "Mr. Justice Peckham delivered the opinion of the court. ■ The defendant gas company, doing business at Buffalo, in the'State of New York, imports natural gas from the Dominion of Canada, for the purpose of supplying its customers with that article. The gas is brought in pipes under the Niagara River, and is used for consumption as fuel and for illuminating purposes. In 1893 the gas imported by the company was assessed for duty by the collector of the port of Buffalo as a non-enumerated unmanufactured article, at ten per cent, under section 4 of the tariff act of October 1, 1890, c. 1244, 26 Stat. 567, at p. 613. The importers claimed that the gas was entitled to free entry under section 2 of the above act, providing for a free list, either under paragraph 496, (p. 604,) as crude bitumen, or under paragraph 651, (p. 607,) as a crude mineral, not advanced in value or condition by refining or grinding, or by any other process of manufacture, not specially provided for in the act. The importers made proper protest, and obtained a review of the decision of the collector by the board of general appraisers. That board, on a second hearing, after testimony had been given as to the character of the gas, decided that natural gas was a crude mineral, and the board on that ground sustained the claim that it was exempt from duty under paragraph 651 of the tariff act of 1890. The Circuit Court affirmed that decision, and upon a review by the Circuit Court of Appeals for the Second Circuit, 45 U. S. App. 345, the decision was again affirmed. The latter court, by Circuit Judge Lacombe, said: “We do not undertake in this case to decide whether or not natural gas is a ‘ crude bitumen.’ If it be such, the provisions of paragraph 496 would control its classification, being more specific than those of paragraph 651. Both paragraphs are in the free list, and since natural gas comes fairly within the general provision for crude minerals, and is therefore free, it" }, { "docid": "23318292", "title": "", "text": "Mr. Justice S wayne delivered the opinion of the coffirt. The defendants in error were the plaintiffs in the court bwlowThey claim that they were the importers of certain burlVps, upon which the' duty chargeable by .law was thirty per dent ad valorem; that the collector insisted the goods were “mil-cloth foundations,” upon which the duty is forty per cent W valorem, and compelled them to pay accordingly. They paUd under protest, and brought this suit to recover back, the allegad excess of ten per cent. Under the instructions of the court, |a verdict and judgment were given in their favor. The collector thereupon sued out this writ of error. The case arises under the fourth section of the act of June 6, Í872 (17 Stat. 232), and ¡turns upon the construction to be given to that section with respect to the particulars here in controversy. That section declares, that after the 1st of August, 1872, in lieu of the duties theretofore levied upon the articles mentioned in the section, there should be paid upon those articles imported from foreign countries the following duties; to wit: — “ On all burlaps and like manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, except such as may be suitable for bagging for cotton, thirty per centum ad valorem,. On all oilcloth foundations or floor-cloth canvas, made of flax, hemp, or jute, or of which flax, hemp, or jute shall be the component material of chief value, forty per centum ad valorem. • On all bags, cotton-bags, and bagging, and all other like manufactures not.herein provided.for, exoept bagging for cotton, composed wholly or in part of flax, hemp, jute, gunny-cloth, gunny-bags, or other material, forty per centum ad valorem.” All the testimony produced upon the- trial is embodied in the bill of exceptions. It was introduced by the plaintiffs. The United States adduced none. The rule to be followed in the construction of revenue statutes in cases like this is well settled in this court. It is, that the descriptive" }, { "docid": "3155234", "title": "", "text": "COXE, District Judge. The majority of the board found that the merchandise in question is unmanufactured mica, consisting of small sheets or pieces which fall off in the process of thumb-trimming, varying in width from one to two inches and in length from two to .three and a half inches. Duty was assessed by the collector under paragraph 184 of the tariff act of 1897 (30 Stat. 166), as “mica, unmanu-factured.” The importers, by their protest, insist that the merchandise in question should have been assessed as “waste, not specially provided for in this act,” under paragraph 463 of the same act. The board overruled the protest, General Appraiser Somerville dissenting, and the importers appealed. The question before the board was whether the merchandise was “waste, not specially provided for.” The burden was upon the importers to establish the affirmative of this proposition and unless they succeeded in doing so it was the duty of the board to affirm the decision of the collector. Davies v. Arthur, 96 U. S. 148, 24 L. Ed. 758; Baumgarten v. Magone (C. C.) 50 Fed. 69; In re Sherman (C. C.) 49 Fed. 224, affirmed 5 C. C. A. 101, 55 Fed. 276; In re Gerdau (C. C.) 54 Fed. 143; Hagedon v. Seeberger (C. C.) 38 Fed. 401. The board having found specifically that the imported merchandise is not waste, this court, though not absolutely concluded by the finding, is bound to give it the same credence that is accorded to a master’s report in an equity cause. “The circuit court should not undertake to disturb the findings of the board upon doubtful questions of fact, and especially as to questions of fact which turn upon the intelligence and credibility of witnesses who have been produced before the board.” In re Van Blankensteyn, 5 C. C. A. 579, 56 Fed. 474. So that the question is not an original one in this court, 30 be determined upon a mere preponderance of testimony. Unless the finding of the board is wholly without evidence or is clearly contrary to the weight of evidence it" }, { "docid": "22118291", "title": "", "text": "Kincheloe, Judge: This is a suit brought by plaintiff against the United States to determine the proper dutiable classification of the imported merchandise. The involved merchandise is invoiced as flax waste for paper making, and was classified for duty as flax noils under paragraph 1001 of the Tariff Act of 1930, at 1 cent per pound, and is claimed to be free of duty under paragraph 1750 of said act, which reads as follows : Par. 1750. Rag pulp; paper stock, crude, of every description, including all grasses, fibers, rags, waste (including jute, hemp, and flax waste), shavings, clippings, old paper, rope ends, waste rope, and waste bagging, and all other waste not specially provided for, including old gunny cloth, and old gunny bags, used chiefly for paper making, and no longer suitable for bags. While no objection was made to the sufficiency of the protest herein either before or during the trial, counsel for the Government, in his brief, bas made a motion for the dismissal of the protest for want of sufficiency in failing to indicate that the involved merchandise was claimed free of duty under paragraph 1750 of said act as flax waste used chiefly for paper making at the time of importation. The protest, so far as pertinent, claims that the merchandise assessed for duty as flax noils at 1 cent per pound is free of duty under paragraph 1750 of the Tariff Act of 1930. It is invoiced as “flax waste,” and was entered by the plaintiff as “flax waste for paper-making.” Whether so chiefly used at the time of importation or at the time of the passage of the tariff act would seem to be a matter of evidence and not a necessary allegation of the protest claim. In our opinion the protest is very definite, and the motion of counsel for the Government for the dismissal thereof is therefore denied hereby, with an exception to the defendant. William J. Green, president of the plaintiff company, testified that his company handles all kinds of fibers, practically all paper mill supplies, such as new and" } ]
256321
F.R.D. 403, 406 (S.D.N.Y.1952). Under the circumstances, I think it apparent that the third-party defendants are judgment proof. “strawmen” whose presence in the action will serve no useful purpose. While financial ability to respond to judgment should not be determinative in deciding a motion to strike a third-party complaint, it nevertheless should be considered. When, as here, there does not even appear the remotest possibility of response to a third-party judgment, the Court should exercise its discretion in favor of striking the third-party complaint. Recent authority both in this and in another district is in accord with this view. List v. Roto-Broil Corp., 40 F.R.D. 31 (M.D.Pa.1966); Goodhart v. U. S. Lines Co., 26 F.R.D. 163, 164 (S.D.N.Y.1960). See REDACTED Moreover, the third-party complaint should be stricken as it is obviously unmeritorious under the circumstances and can only serve to delay or prejudice the disposition of plaintiffs’ claims. Notes of Advisory Committee on Rules, 28 U.S.C.A. R. 14 (Supp. 1969 at 102) amending, 28 U.S. C.A. R. 14 (1960). See Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 197, 201 (S.D.N.Y.1967). There exists yet another reason for striking the third-party complaint. To permit public accounting firms to escape liability for misconduct in the performance of their duties by obtaining indemnity from the alleged participants in the misconduct would be violative of both the public policy embodied in the federal securities legislation and the public faith reposed in these firms. If
[ { "docid": "4252168", "title": "", "text": "TYLER, District Judge. This is an action brought pursuant to the Jones Act and general maritime law for injuries sustained as the result of an assault by a fellow crew-member. Defendant moves under Rule 14(a), F.R.Civ.P., 28 U.S.C.A., to join the alleged assailant, who is no longer in its employ, as third-party defendant. . Plaintiff opposes the motion upon the generally asserted grounds that the alleged assailant is impecunious, that impleading him can serve only to delay the trial, presently set down as No. 1037 on the Trial Calendar, and that such impleader is sought in order to “pressure” the claimed assailant to testify more favorably on behalf of defendant. As was noted by this court in considéring such a motion by defendant in another Jones Act case wherein plaintiff sought damages for assault by a crew-member, “Motions to implead the assaulting crew members are becoming quite frequent in this type of litigation.” Rodriguez v. United States Lines Company, 181 F.Supp. 95, 96 (S.D.N.Y.1960). Adverting to two prior decisions of this court which granted a Rule 14(a) motion in these circumstances, Codrington v. United States Lines Co., 168 F.Supp. 261 (S.D.N.Y.1958) and Thompson v. American Export Lines, Inc., 15 F.R.D. 125 (S.D.N.Y.1953), the court further remarked: “Sound judicial administration suggests that, in the absence of convincing counter-arguments, it would be desirable to maintain a uniform approach and consistent answer to motions such as those at bar. The possibility of confusion and prejudice herein does not outweigh that consideration.” Id., 181 F.Supp. at 96. In the ease at bar, plaintiff presents no evidence of special circumstances raising the possibility of prejudice. Nor does he support, with evidence or substantive allegations, his general assertion that “I am sure that the defendant has no real expectation of ever collecting a judgment from the assailant * * (Matthews’ Affidavit, p. 1.) The relative solvency of an individual is not, in these circumstances at least, proper matter for judicial notice of fact. 5 Moore Federal Practice § 43.09; contra, Goodhart v. United States Lines Company, 26 F.R.D. 163, 164 (S.D.N.Y.1960) [“I feel safe in taking" } ]
[ { "docid": "21986140", "title": "", "text": "defendant under Rule 14(a) Fed.R.Civ.P. absent the jurisdictional amount when federal jurisdiction does not otherwise appear between them? We think this issue must be answered in the negative. It has been long since decided that under Rule 14(a) Fed.R.Civ.P. jurisdictional facts must exist between the plaintiff and a third party defendant before plaintiff is permitted by way of amendment to add the third party defendant as a party defendant. See McPherson v. Hoffman, 275 F.2d 466 (6th Cir.1960); Patton v. Baltimore & O. R. Co., 197 F.2d 732, 743 (3d Cir.1952); Gladden v. Stockard S. S. Co., 184 F.2d 510 (3d Cir.1950); Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir.1948); Friend v. Middle Atlantic Transp. Co., 153 F.2d 778 (2d Cir.1946) ; Osthaus v. Button, 70 F.2d 392 (3d Cir.1934); Palumbo v. Western Maryland Railway Company, 271 F.Supp. 361 (D.Md.1967); Armstrong v. United States, 171 F.Supp. 835, 840 f.n. 4 (E.D.Pa.1959); McDonald v. Dykes, 6 F.R.D. 569 (E.D.Pa.1947) aff’d per curiam 163 F.2d 828 (3d Cir.1947); 3 Moore’s Federal Practice j[ 14.27 [1]. None of these cases so much as mentions pendent jurisdiction. The principles of the rule that once jurisdiction attaches, a federal court retains jurisdiction, are not applicable. I relied on some of these decisions in Pasternack v. Dalo, 17 F.R.D. 420, 425 (W.D.Pa.1955) in declaring that if the plaintiffs and third party defendants were citizens of the same state the district court “would lack jurisdiction to render a binding judgment in favor of the plaintiffs against the third-party defendants.” As stated in 37 A.L.R.2d, at page 1430, Sec. 9: “The courts have held, with almost complete uniformity, that an amendment of the plaintiff’s complaint so as to assert a claim against the' third-party defendant destroys the court’s jurisdiction, where the plaintiff and the third-party defendant have a common citizenship.” [Citing numerous decisions] The notes of the Advisory Committee on Rule 14 state that “[I]n any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that" }, { "docid": "10673175", "title": "", "text": "N.Y. 287, 300, 200 N.E. 824, 827 (1936); Varga v. Credit Suisse, 5 A.D.2d 289, 171 N.Y.S.2d 674 (1st Dept. 1958), aff’d 5 N.Y.2d 865, 182 N.Y.S.2d 17, 155 N.E.2d 865. As held in Schiffman, supra, 36 A.D.2d p. 35, 319 N.Y.S.2d p. 678: “The Statute, rather, presumes that the lapse of time indicates the party’s disinclination to enforce the cause.” Hochfelder v. Ernst & Ernst, 503 F.2d 1100 (7th Cir. 1974), upon which plaintiff would have us rely, is clearly inapplicable to the New York statute of limitations provisions here considered. The statute of limitations issue considered in Hochfelder referred to the plaintiff’s Rule 10b-5 federal claims. There is no mention in that case of any state claim based on negligence or professional malpractice. Assuming the Seventh Circuit would apply an equitable tolling doctrine to such a state negligence claim, it could only be in reliance on Illinois state law, rather than New York law, upon which this Court must rely. We conclude that the original claims, and the third-party claims, to the extent that they are based on negligence, are barred by the three year statute of limitations. II CONTRIBUTION AND INDEMNIFICATION The third-party defendants urge that federal public policy expressed in the securities laws requires that an intentional, or fraudulent wrongdoer be denied indemnity or contribution from those who procured or assisted in the fraud or deceit. They cite State Mutual Life Assurance Co. v. Peat, Marwick, Mitchell & Co., 49 F.R.D. 202 (S.D.N.Y.1969) and Globus v. Law Research Service, Inc., 287 F.Supp. 188 (S.D.N.Y. [Globus I] mod. 418 F.2d 1276 (1969). The holding in State Mutual is based on several grounds, including a view that: “To permit public accounting firms to escape liability for misconduct in the performance of their duties by obtaining indemnity from the alleged participants in the misconduct would be violative of both the public policy embodied in the federal securities legislation and the public faith reposed in these firms. If accountants could escape liability for their own misfeasance by obtaining indemnity from the officers of the corporation whose financial statements they have" }, { "docid": "2075901", "title": "", "text": "Fund, Inc. v. Hagopian, 417 F.Supp. 738 (S.D.N.Y.1976). In order to maintain a third-party complaint, a direct line of liability must be alleged to exist between the third-party plaintiff and third-party defendant. Moorhead Construction Company, Inc. v. City of Grand Forks, 508 F.2d 1008 (8th Cir.1975), citing 6 Wright and Miller, Federal Practice and Procedure § 1442. It is not enough that the third-party claim is alleged to stem from the same transaction. Nagunst v. Western Union Tel. Co., 76 F.R.D. 631 (D.C.Kansas 1977). Finally, while Rule 14 should be liberally construed, the permissibility of a third-party action is committed to the discretion of the court. Farmers & Merchants Mutual Fire Insurance Company v. Pulliam, 481 F.2d 670 (10th Cir.1973); General Electric Company v. Irvin, 274 F.2d 175 (6th Cir.1960); Wright and Miller, Federal Practice & Procedure: Civil § IMS. Borreson’s third-party complaint does arise out of the same factual circumstances as the trustee’s preference action. The outcome of the preference action with respect to two of the payments in particular may well depend on resolution of the issue of whether the debtor or Peterson himself owes Borreson $44,000.00. That same question appears to be the sole issue in the third-party complaint. Furthermore, assuming there is a basis for the indemnity claim, Peterson’s liability can be characterized as dependent on the outcome of the main action. But again, this is not enough without some showing that there exists a direct line of liability between Borreson and Peterson, which brings us to the substance of the third-party complaint. Rule 14 is procedural only; impleader is properly limited to situations where a right to relief exists under the applicable substantive law. Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir.1983); Colton v. Swain, 527 F.2d 296 (7th Cir.1975); Murray v. Reliance Ins., Co., 60 F.R.D. 390 (D.C.Minn.1973). The purpose of the inquiry into the substance of both counts of the third-party complaint is twofold. In addition to deciding whether the action is proper under Rule 14(a), which would in turn support ancillary jurisdiction, Peterson alleged that both counts of the complaint fail" }, { "docid": "10673176", "title": "", "text": "that they are based on negligence, are barred by the three year statute of limitations. II CONTRIBUTION AND INDEMNIFICATION The third-party defendants urge that federal public policy expressed in the securities laws requires that an intentional, or fraudulent wrongdoer be denied indemnity or contribution from those who procured or assisted in the fraud or deceit. They cite State Mutual Life Assurance Co. v. Peat, Marwick, Mitchell & Co., 49 F.R.D. 202 (S.D.N.Y.1969) and Globus v. Law Research Service, Inc., 287 F.Supp. 188 (S.D.N.Y. [Globus I] mod. 418 F.2d 1276 (1969). The holding in State Mutual is based on several grounds, including a view that: “To permit public accounting firms to escape liability for misconduct in the performance of their duties by obtaining indemnity from the alleged participants in the misconduct would be violative of both the public policy embodied in the federal securities legislation and the public faith reposed in these firms. If accountants could escape liability for their own misfeasance by obtaining indemnity from the officers of the corporation whose financial statements they have fraudulently prepared, there would be much less incentive to be thorough in examination and truthful in reporting.” Certain provisions of the federal securities acts recognize a right to contribution. See 11(f) of the 1933 Act, 15 U. S.C. § 77k(f), and 9(e) and 18(b) of the 1934 Act, 15 U.S.C. §§ 78i(e), 78r(b). The sections vary somewhat, but are to the same effect. Section 18(b) of the 1934 Act reads: “Every person who becomes liable to make payment under this section may recover contribution as in cases of contract from any person who, if joined in the original suit, would have been liable to make the same payment.” Clearly these sections permit contribution between persons engaged in fraud. There is no express statutory provision for contribution with respect to Sections 10(b) of the 1934 Act, or 17(a) of the 1933 Act, undoubtedly because there is no express private right of action under these sections. Reasoning that the policy considerations which persuaded Congress to allow contribution where it granted a private right of action should persuade" }, { "docid": "4934724", "title": "", "text": "defendant’s delay is excusable, whether prejudice will result to the third-party defendant, and whether the trial of the principal action will be delayed or unduly complicated. The burden is obviously on defendant to justify his late application for leave to join a third-party. Raymond v. West Africa Navigation, Ltd., 3 F.R.Serv.2d 14a. 132, Case 1 (E.D.Pa.1960). See McLouth Steel Corp. v. Mesta Machine Co. 116 F.Supp. 689 (E.D.Pa. 1953), aff’d 214 F.2d 608 (3rd Cir.), cert. denied. Hartford Acc. & Indemnity Co. v. Foster, 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687 (1954); Levine v. Chrysler Corp. v. Levine, 57 F.R.D. 211 (E.D.Pa.1972); Thompson v. Phillips Equipment and Supply Co., 53 F.R.D. 91 (E.D.Pa.1971); Carter v. Anika Mfg. Co., 321 F.Supp. 197 (E.D.Pa.1971); Johnson v. Maritime Overseas Corp. et al. v. Atlantic Port Contractors, Inc. et al., C.A. No. 68-206 (E.D.Pa. 1971); Turner v. Jones, 42 F.R.D. 38 (E.D.Pa. 1966); Gilpin v. Abraham, 231 F.Supp. 511 (E.D.Pa.1964); Graeff v. Borough of Rockledge, 35 F.R.D. 178 (E.D.Pa. 1964); Hammond v. Thornton, 33 F.R. D. 291 (E.D.Pa.1963) and Phero v. City of Philadelphia, 197 F.Supp. 736 (E.D. Pa.1961). At the outset, third-party plaintiffs assert that they have filed their motions for joinder within six months from the time that they filed their Answers to the Consolidated Amended Complaint and that this factor, standing alone, would be enough for them to meet the requirements of Local Rule 24(a). There have been no interpretations as to when the six months begins to run. That is, does it begin after each time and Amended Complaint is filed or does it relate back to the time when the original Complaint was filed ? Under the circumstances of this case, it would begin at the time of the original Complaint. The reason for this approach is apparent: the original Complaint laid the groundwork for the suit because of the alleged misconduct of the defendants with respect to the prospectus that was issued for the UMIC stock. The Amended Complaint and the Consolidated Amended Complaint merely amplified the original Complaint; they did not, as the defendants propose," }, { "docid": "16619232", "title": "", "text": "(1978). While we do not expressly decide the issue here, we note that the requirement of personal liability of a civil rights defendant may be inconsistent with the requirement that, to establish a claim for indemnity, the claimant must show that his actions were “passive,” and that the prospective indemnitor was the sole “active” causer of harm to the plaintiff. A defendant in pari delicto with a co-defendant generally may not receive indemnity. Rule 14(a), Federal Rules of Civil Procedure, provides that a defendant must obtain leave of the Court to implead a third-party if his third-party complaint is not filed within ten days after service of his answer. Whether a third-party defendant may be impleaded after the ten day period is within the discretion of the Court. 6 Wright and Miller, Federal Practice and Procedure § 1443 (1971). In this case, the Court finds that the addition of the proposed third-party claim could unduly complicate the proceedings, confuse the issues, and prejudice the plaintiff in presenting his case. Extensive discovery has already occurred in this case; allowing the third-party claim could result in delay and in the expense of reaccomplishing depositions. Defendants have not come forth with an explanation for their delay, approximately one year from the filing of the complaint, in moving to implead Ms. Anaya. The Court notes a likelihood that Ms. Anaya is indigent and is without resources sufficient to satisfy any substantial award for contribution or indemnity. The Court, in its discretion, may refuse to allow impleader where the proposed third-party is; in reality, a “straw-man defendant,” and the attempt to im-plead him is simply a litigation tactic. See Goodhart v. United States Lines Co., 26 F.R.D. 163 (S.D.N.Y.1960). Ms. Anaya’s presence as a party is not necessary to enable defendants to assert that it was her actions, and not those of the defendants, which proximately caused plaintiff’s injuries. Defendants will not be prejudiced substantially if the Court refuses to allow this third-party action. Defendants will remain free to institute a separate action for contribution or for indemnity against Ms. Anaya should a judgment be" }, { "docid": "21933385", "title": "", "text": "the same transactions and in the interest of simplicity and consistency should be heard together. The general purpose of Rule 14 was “ * * * to avoid actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against the third-party defendant.” 3 Moore, Federal Practice ¶ 14.04, at 501 (2d ed. 1966); see Dery v. Wyer, supra, 265 F.2d at 806-807. For the above-stated reasons, third-party defendant’s motion to dismiss the third-party complaint is accordingly denied. Third-party defendant’s motion to strike the allegations of Paragraph 4 through Paragraph 10 of the third-party complaint on the grounds that these statements are gratuitous and calculated merely to prejudice the position of the third-party defendant similarly must be denied. Rule 12(f) of the Federal Rules of Civil Procedure permits the Court to strike from any pleading “any redundant, immaterial, impertinent, or scandalous matter.” The above paragraphs constitute the crux of the third-party complaint and to strike these allegations would amount to a dismissal of the very complaint which this Court has upheld herein. This Court has the discretion to sever a third-party claim “if it is obviously unmeritorious and can only delay or prejudice the disposition of the plaintiff’s claim or to sever the third-party claim or accord it separate trial if confusion or prejudice would otherwise result. * * * ” Rule 14, Federal Rules of Civil Procedure, Advisory Committee Note to 1963 Amendment. From the above discussion, it seems obvious to this Court that the third-party claim in the instant action is not of such a nature so as to come within the contemplation of the severance provision. Accordingly, third-party defendant’s primary motion herein is in all respects denied. Such determination renders third-party defendant’s companion motion moot, and that motion is likewise denied. So ordered. . Subsequent to Nationwide’s instant motion to dismiss the third-party complaint, plaintiff Thompson" }, { "docid": "5753738", "title": "", "text": "in answers to interrogatories relating to his duties as hatch boss and the circumstances of the accident. But nothing in the proposed counterclaim or the supporting papers indicates the existence of a contract specifically covering the indemnity sought here or any other circumstance which would justify creation of such a special rule. The counterclaim,as indicated above, seeks to pluck longshoremen generally (or hatch bosses generally) from a class of persons specially protected by both courts and Congress. Because Longshoreman’s title and function in the usual case and in this case do not of themselves affect the Shipowner’s liability to him, they should not affect his right as against his own employer to keep any recovery obtained from the Shipowner. Although courts usually exercise their discretion in favor of allowing motions under Rule 15; e. g., Cravatts v. Klozo Fastener Corp., 16 F.R.D. 454 (S.D.N.Y.1954), they may also deny such a motion when a party seeks to interpose a claim that lacks merit. See, e. g., Cuomo v. Cities Service Oil Co., 21 F. R.D. 149 (S.D.N.Y.1957); 3 Moore, Federal Practice 834 (2 ed. 1960). I believe that precedent and policy compel the conclusion that Stevedore’s proposed counterclaim against Longshoreman is such a meritless claim. For these reasons it is unnecessary to deal with Longshoreman’s contention that the Court’s discretion should be exercised to deny Stevedore’s motion because of Stevedore’s delay and the prejudicial effect the counterclaim may have on Longshoreman’s main case. For all of the above reasons, therefore, Stevedore’s motion is denied. Settle order on notice. . Plaintiff’s action was instituted on December 7, 1959. Defendant Shipowner served its third-party complaint on Stevedore on October 25, 1960. Stevedore served its third-party answer on December 22, 1960. Its present motion to amend its third-party answer is dated November 8, 1961 and was originally noticed for November 28, 1901. . The expansion of the doctrine of unseaworthiness is reviewed and analyzed in Gilmore & Black, The Law of Admiralty, 315-329 (1957). The assimilation by the courts of longshoremen to seamen to allow the former to recover for unseaworthiness is there surveyed." }, { "docid": "23710284", "title": "", "text": "defendant. As Professor Moore has written: “With a few exceptions, especially in the earlier decisions, the weight of authority supports the view herein advocated : the third-party defendant has no objection based on venue.” 3 Moore’s Federal Practice |f 14.28 [2]. (footnotes omitted) The courts have held that the reasoning which supports ancillary subject matter jurisdiction over a third-party claim also supports ancillary venue. McGonigle v. Penn-Central Transportation Co., 49 F.R.D. 58, 60 (D.Md.1969); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1445. Specifically, the purpose of the Federal Rules is to “simplify and expedite procedure.” Consistent with this, “[t]he purpose of Rule 14 was to accomplish in one proceeding the adjudication of the rights of all persons concerned in the controversy * * United States v. Acord, 209 F.2d 709, 712 (10th Cir.), cert. denied, 347 U.S. 975, 74 S.Ct. 786, 98 L.Ed. 1115 (1954). As this court said in one of its earliest decisions considering this issue, “the spirit and purpose of Rule 14 to a great extent would be frustrated if the venue statutes had to be applied to third-party proceedings under the Rule.” Morrell v. United Air Lines Transport Corp., 29 F.Supp. 757, 759 (S.D.N.Y. 1939). Therefore this court in Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 197, 201 (S.D.N.Y.1967), a diversity action, recently reaffirmed that if venue is proper in the principal action, there need be no independent basis for venue in the third-party claim. The Second Circuit had earlier espoused this position in dictum. Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 585 (2d Cir. 1965). In addition, in United States v. Acord, supra, 209 F.2d at 713, where the United States as third-party defendant moved to dismiss under the venue provision of the Tort Claims Act, the Tenth Circuit adopted the rule that a third-party defendant could not raise the venue defense. Acord was recently followed in McGonigle v. Penn-Central Transportation Company, supra, 49 F.R.D. at 61, a federal question action under the Federal Employers’ Liability Act. NBNA contends, however, that to deprive third-party defendants of the" }, { "docid": "17534983", "title": "", "text": "FOLLMER, District Judge. Plaintiff, Marcellus C. List, brings this action against Roto-Broil Corporation of America and Roto Supply Sales, defendants, for personal injuries which he sustained in an automobile accident allegedly caused by the negligence of defendants’ driver, Kenneth Walters. Defendants now desire, under Rule 14(a) of the Federal Rules of Civil Procedure, to implead their own driver as a third-party defendant on the theory that said driver “is or may be liable” to them for all or part of plaintiff’s claim. Plaintiff objects. Plaintiff filed with his brief an affidavit indicating that both defendants; and defendants’ employee, Walters, are-protected by the same policy of liability insurance. This has not been denied by defendants. It would therefore seem to follow that any judgment secured would be paid by this insurance company. There is a considerable divergence of opinion on this matter. However I share with Judge Dimock his conviction against the practice of joining straw-man defendants. Goodhart v. United States Lines Company, 26 F.R.D. 163 (S.D.N.Y. 1960). Whatever reasons; may be given in favor of the motion, I do not feel they are of any real substance. In Buchholz v. Michigan Motor Freight Lines, 19 F.R.D. 407 (E.D.Mich., 1956), in refusing motion to implead, the Court, said, inter alia: “In the case at bar defendant seeks; to have the driver made a party defendant with the jury apparently under the false impression that the driver—not defendant nor any insurance company—must pay any judgment the jury may render in favor of plaintiff. Whether all juries would see through such a scheme—if such is the intent— this court doesn’t profess to know, and, while extremely large verdicts in past cases have undoubtedly prompted a desire of some insurers to ‘fight back’ so to speak, in our opinion, it is just as wrong for defendant to play upon emotions of the jury in this manner as it is for plaintiff to inject the insurance coverage before the jury.” {Emphasis supplied.) Furthermore, Rule 14(a) does not permit the joinder of persons who are or may be liable to plaintiff directly. Higgins et al. v." }, { "docid": "23391721", "title": "", "text": "ensure that complaints are “simple, concise, and direct.” Fed.R.Civ.P. 8(e)(1); see Conley, 355 U.S. at 47-48, 78 S.Ct. 99; cf. Wynder, 360 F.3d at 77 n. 6. It follows that, where the absence of numbering or succinct paragraphs does not interfere with one’s ability to understand the claims or otherwise, prejudice the adverse party, the pleading should be accepted. See 2 James Wm. Moore et al., Moore’s Federal Practice § 10.03[l][a] (3d ed.1997); Browne, Civil Rule 10(b) and the Three Basic Rules, 8 Cap. U.L.Rev. at 212; see also Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir.1943). And even where a violation of Rule 10(b) is not harmless, dismissal is not typically the appropriate course of action. Once a defendant has been served with a complaint that is defective in this way, it should be met with a motion for a more definite statement under Rule 12(e) or a motion to strike under Rule 12(f), rather than a motion to dismiss under Rule 12(b). See Anderson v. District Bd. of Trustees of Cent. Florida Community College, 77 F.3d 364, 366-67 (11th Cir.1996); International Tag & Salesbook Co. v. American Salesbook Co., 6 F.R.D. 45, 47 (S.D.N.Y.1943). Cf. Ohio R. Civ. P. 10(b) advisory committee’s note (noting that the “penalty for faffing to separately state and number” as required by Ohio Rule 10(b) — identical to Federal Rule 10(b) — “is a motion to separately state and number”). Although we have never previously addressed violations of Rule 10(b) in this particular context, this has long been the approach taken by courts in this Circuit. See, e.g., Merrin Jewelry Co. v. St. Paul Fire & Marine Ins. Co., 301 F.Supp. 479, 481 (S.D.N.Y.1969); Leon v. Hotel & Club Employees Union Local 6, 26 F.R.D. 158, 159 (S.D.N.Y.1960). Cf. Hernandez-Avila v. Averill, 725 F.2d 25, 28 (2d Cir.1984) (af firming dismissal of complaint for violations of Rule 10(a) and 11 where such violations “were not mere technical flaws”). See generally 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1322 (3d ed.2004). III." }, { "docid": "6722600", "title": "", "text": "Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir.1984) (citing 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1446 (1971)); Rodolico v. Unisys Corp., 189 F.R.D. 245, 249 (E.D.N.Y.1999). The purpose of this rule is to promote judicial efficiency by eliminating the necessity for the defendant to bring a separate cause of action against a third-party for contribution. See Gross v. Hanover Ins. Co., 138 F.R.D. 53, 54 (S.D.N.Y.1991); McLaughlin v. Biasucci, 688 F.Supp. 965, 967 (S.D.N.Y.1988). The district court has considerable discretion in deciding whether to permit a third-party complaint. Leventhal, 736 F.2d at 31; Gross, 138 F.R.D. at 54. Upon determination that a third-party complaint would be appropriate and foster the interest of judicial economy, the factors to be considered in determining whether to grant leave to implead a third-party defendant are: (i) whether the movant deliberately delayed or was derelict in filing the motion; (ii) whether impleading would unduly delay or complicate the trial; (iii) whether impleading would prejudice the third-party defendant; and (iv) whether the third-party complaint states a claim upon which relief can be granted. Rodolico, 189 F.R.D. at 249 (citing Fashion-In-Prints, Inc. v. Salon, Marrow & Dyckman, L.L.P., 97 Civ. 0340, 1999 WL 500149, at *6 (S.D.N.Y. July 15, 1999); Middle Mkt. Fin. Corp. v. D’Orazio, No. 96 Civ. 8138, 1998 WL 872412, at *2 (S.D.N.Y. Dec.15, 1998)). “‘The court must balance the benefits derived from impleader — that is, the benefits of settling related matters in one suit — against the potential prejudice to the plaintiff and third-party defendants.’ ” Gross, 138 F.R.D. at 55 (citing Oliner v. McBride’s Industries, Inc., 106 F.R.D. 14, 20 (S.D.N.Y.1985)). C. CONTRIBUTION There can be no dispute that the third-party complaint for contribution proposed by Windstar arises from the “same aggregate core of facts which is determinative the plaintiffs claim”. Gross, 138 F.R.D. at 54. DeCaro and Abraham would be potentially liable for contribution if, and only if, Windstar were found liable on Too’s cause of action against it, and DeCaro and Abraham’s potential liability is derivative of Windstar’s liability. See Wales" }, { "docid": "2075911", "title": "", "text": "the preferences recovered. Bankruptcy Rule 3002(c)(3). Ladd v. Perry, 28 F.2d 975 (7th Cir.1928), Affd. 40 F.2d 265 (7th Cir.1930). Given this, I have concluded indemnity would not be applicable and that the claim must be dismissed. With respect to the claim for the return of $14,000.00 owed as a result of the rescission of the alleged stock purchase agreement, Borreson has undoubtedly stated a claim upon which relief can be granted. Peterson does not deny the existence of an agreement or the fact that Borreson is owed $44,000.00. Whether Borreson knew that the funds were deposited in the debtor’s account and looked to the debtor for repayment is immaterial at this juncture; summary judgment is precluded where a material fact is in dispute. However the $14,000.00 claim, like the indemnity claim, must be dismissed. While nothing in Rule 14 precludes a defendant from asserting additional claims for his own injuries against a third-party defendant, the additional claim must arise out of the same transaction or occurrence as the main claim establishing a direct line of liability between the third-party plaintiff and the third-party defendant. Because Borreson has failed to establish a direct line of liability between he and Peterson as required by Rule 14, the $14,000.00 claim must also be dismissed. It is clear to me that the third-party complaint must be dismissed and there certainly are numerous grounds for doing so. As I stated earlier, Rule 14, Fed.R.Civ.P., is discretionary and a claim that lacks substance constitutes grounds for dismissal. Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 197 (D.C.N.Y.1967). Even if the third-party complaint was proper, I would not choose to invoke the ancillary jurisdiction of this Court, which is also a matter committed to my discretion. See, e.g., Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 477 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978); United States Fidelity & Guaranty Co. v. Perkins, 388 F.2d 771, 773 (10th Cir.1968); Eastman Chemical International, Ltd. v. Virginia National Bank, 94 F.R.D. 21, 22 (E.D.Tenn.1981); Official Committee of Unsecured Creditors v. I. Hyman" }, { "docid": "18951494", "title": "", "text": "Against Marineo Electrical Group and Seacoast Distributors LLC On November 10, 2008, the Marine-Max defendants moved for leave to file a third-party complaint against Marineo Electrical Group and Seacoast Distributors LLC. No objections were filed to this motion and Marineo Electrical Group and Seacoast Distributors LLC filed answers to the third party complaint on December 31, 2008 and January 13, 2009, respectively. Rule 14(a) governs third-party practice in federal court. The rule states, in relevant part: A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 10 days after serving its original answer. Fed.R.Civ.P. 14(a). Rule 14(a) was designed “to promote judicial economy by eliminating the need for a defendant to bring a separate action against a third-party who may be secondarily or derivatively liable to the defendant for all or part of the plaintiffs claim.” Hines v. Citibank, N.A., No. 96CV2565, 1999 WL 440616, *2 (S.D.N.Y. June 28, 1999) (citing Gross v. Hanover Ins. Co., 138 F.R.D. 53, 54 (S.D.N.Y.1991)) (other citations omitted). “Timely motions for leave to implead non-parties should be freely granted to promote [judicial] efficiency unless to do so would prejudice the plaintiff, unduly complicate the trial, or would foster an obviously unmeritorious claim.” Fashion-In-Prints, Inc. v. Salon, Marrow & Dyckman, L.L.P., No. 97CV340, 1999 WL 500149, *6 (S.D.N.Y. July 15, 1999) (quoting Shafarman v. Ryder Truck Rental, Inc., 100 F.R.D. 454, 459 (S.D.N.Y.1984)). “Although Rule 14(a)’s purpose is to promote judicial economy, ... the right to implead third parties is not automatic, and the decision whether to permit impleader rests within the sound discretion of the district court.” Consolidated Rail Corp. v. Metz, 115 F.R.D. 216, 218 (S.D.N.Y.1987). It is well-settled that a third-party-action, also known as an impleader action, must be dependent on, or derivative of, the main claim. Bank Of India v. Trendi Sportswear, Inc., 239 F.3d 428, 438 (2d Cir.2000). In" }, { "docid": "7348315", "title": "", "text": "IRVING R. KAUFMAN, District Judge. This is an action arising out of the alleged violations by defendants of the Securities Act of 1933, as amended, 15 U.S.C.A. § 77a et seq., and the Securities' Exchange Act of 1934, as amended, 15 U.S.C.A. § 78a et seq., in connection with the sale of securities to plaintiffs. The defendants, Jean Ernest Savard, Adjutor Savard and Raoul N. Trudeau, individually and as co-partners of Savard & Hart, have by leave of the court served upon Stanley Younger, their salesman and customer’s man, a third party complaint alleging in substance that if the purported violations were committed as alleged in plaintiffs’ complaint they were improperly committed by Younger during his period of employment and that if they should be held liable to the plaintiffs Younger would be liable over to them. By this motion, Younger, the third party defendant, seeks to dismiss the third party complaint against him. It is his contention that having been named as a party defendant in the original complaint (though not served) he cannot properly be made a third party defendant under Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. Ample authority exists for the proposition that a defendant cannot assert a claim under the rule against a co-defendant already a party to the action. Horton v. Continental Can Co., Inc., D.C.Neb. 1956, 19 F.R.D. 429; Almacenes Fernandez, S. A. v. Golodetz, 8 Fed.Rules Serv. 14 a. 21 Case 1, S.D.N.Y.1944. But see Shannon v. Massachusetts Bonding & Ins. Co., D.C.W.D.La.1945, 62 F.Supp. 532. However, no case has been called to my attention which has considered the problem of whether a party named as a defendant in the plaintiffs’ complaint, though not served, is nevertheless a “party to the action” who cannot be brought in as a third party defendant under Rule 14(a). Those cases cited by the third party defendant to the effect that a party already appearing of record cannot be subjected to a third party complaint involve attempts by a defendant to bring in as a third party defendant one of the" }, { "docid": "16619233", "title": "", "text": "this case; allowing the third-party claim could result in delay and in the expense of reaccomplishing depositions. Defendants have not come forth with an explanation for their delay, approximately one year from the filing of the complaint, in moving to implead Ms. Anaya. The Court notes a likelihood that Ms. Anaya is indigent and is without resources sufficient to satisfy any substantial award for contribution or indemnity. The Court, in its discretion, may refuse to allow impleader where the proposed third-party is; in reality, a “straw-man defendant,” and the attempt to im-plead him is simply a litigation tactic. See Goodhart v. United States Lines Co., 26 F.R.D. 163 (S.D.N.Y.1960). Ms. Anaya’s presence as a party is not necessary to enable defendants to assert that it was her actions, and not those of the defendants, which proximately caused plaintiff’s injuries. Defendants will not be prejudiced substantially if the Court refuses to allow this third-party action. Defendants will remain free to institute a separate action for contribution or for indemnity against Ms. Anaya should a judgment be entered against them in the present action. Defendants may then address directly, which they have not done in either of their impleader motions in this cause, the difficult question of whether they may seek contribution or indemnity in the context of a civil rights action. In the present case, the possibility exists of unnecessary confusion, complication of the issues, prejudice to the plaintiff, expense, and delay if the motion to implead Ms. Anaya were granted. The claims upon which the third-party complaint is based are questionable. Considerations of judicial economy and of avoiding circuity and duplication of action do not outweigh the countervailing considerations inherent in permitting this third-party complaint to proceed. Now, Therefore; IT IS BY THE COURT ORDERED that defendants’ Amended Motion for Leave to File Third Party Complaint is hereby denied." }, { "docid": "13607010", "title": "", "text": "OPINION ROSENBERG, District Judge. This matter is presently before me on the motion of the defendant for leave to bring in third-party defendants. This suit is a claim under the Jones Act, 46 U.S.C. § 688 alleging that the plaintiff suffered injury to or destruction of his auditory system as a consequence of his employ on defendant’s vessel. The defendant now seeks leave to join James E. Webeck, Catherine Ponds and Robert Gibson as third-party defendants pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, and alleges in support thereof that if the defendant is liable for the injuries sustained by the plaintiff, that it is entitled to recover such sum from the third-party defendants whose alleged negligent and reckless operation of a motor vehicle caused the plaintiff’s injuries. Rule 14(a) provides in part that, “At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him * * (Italics Supplied). Third-party claims should be allowed where such practice is in “ * * * the interests of- judicial economy, convenience, and fairness to the parties will thereby be served.” Schwab v. Erie Lackawanna Railroad Co., 438 F.2d 62, 68, C.A. 3, 1971. See also, Noland Company v. Graver Tank & Manufacturing Co., 301 F.2d 43, C.A. 4, 1962; Williams v. Skibs A/S Hilda Knudsen, 28 F.R.D. 398 (E.D.Pa.1960). This practice permits adjudication of a claim by the plaintiff against the defendant, and the defendant against the third-party defendant when such claims involve common factual issues. Lyons v. Marrud, Inc., 46 F.R.D. 451 (S.D.N.Y.1968). And the sole criterion of the propriety of the proposed joinder “ * * * is whether the third-party defendant may be liable to the third-party plaintiff for all or part of the plaintiff’s claim.” Gambino v. United Fruit Company, 48 F.R.D. 28, 29 (S.D.N.Y.1969). “A defendant cannot bring in a third party merely because" }, { "docid": "7348316", "title": "", "text": "properly be made a third party defendant under Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. Ample authority exists for the proposition that a defendant cannot assert a claim under the rule against a co-defendant already a party to the action. Horton v. Continental Can Co., Inc., D.C.Neb. 1956, 19 F.R.D. 429; Almacenes Fernandez, S. A. v. Golodetz, 8 Fed.Rules Serv. 14 a. 21 Case 1, S.D.N.Y.1944. But see Shannon v. Massachusetts Bonding & Ins. Co., D.C.W.D.La.1945, 62 F.Supp. 532. However, no case has been called to my attention which has considered the problem of whether a party named as a defendant in the plaintiffs’ complaint, though not served, is nevertheless a “party to the action” who cannot be brought in as a third party defendant under Rule 14(a). Those cases cited by the third party defendant to the effect that a party already appearing of record cannot be subjected to a third party complaint involve attempts by a defendant to bring in as a third party defendant one of the co-plaintiffs in the action and are therefore inapposite to the case at bar. Smith v. Brown, D.C.M.D.Pa.1955, 17 F.R.D. 39; Chevassus v. Harley, D.C.W.D.Pa.1948, 8 F.R.D. 410. A plaintiff having sought the jurisdiction of the court is clearly a party to the action within the meaning of the rule and is to be distinguished from a party who though named in the complaint is not subject to the personal jurisdiction of the court and against whom no judgment in personam can be granted. If such an argument were to prevail here a plaintiff would be in a position to obstruct a defendant’s right to indemnity under Rule 14(a) merely by naming someone as a co-defendant without making service upon him. In this case the third party plaintiffs were served with the complaint on March 1, 1957. No service having been made upon the third party defendant to date it is reasonable to assume that none will be forthcoming. The situation is similar to one where a plaintiff obtains a voluntary dismissal of his action as" }, { "docid": "6722599", "title": "", "text": "basis for Windstar’s proposed third-party complaint; (iii) impleading DeCaro and Abraham will prejudice them; (iv) Windstar deliberately delayed filing this motion; and (v) the third-party complaint will delay and/or unduly complicate the trial. II. DISCUSSION A. STANDARD OF REVIEW Rule 14(a) of the Fed.R.Civ.P. provides, in relevant part, that: “At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or party of the plaintiffs claim against the third-party plaintiff.” Unless the third-party plaintiff files the third-party complaint within ten days of serving the original answer, the third-party plaintiff must seek leave from the court to file the third-party complaint. Id. Impleader is appropriate when the third-party defendant’s liability to the third-party plaintiff is “dependent upon the outcome of the main claim” or the third-party defendant is “potentially secondarily liable as a contributor to the defendant.” Kenneth Leventhal & Co. v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir.1984) (citing 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1446 (1971)); Rodolico v. Unisys Corp., 189 F.R.D. 245, 249 (E.D.N.Y.1999). The purpose of this rule is to promote judicial efficiency by eliminating the necessity for the defendant to bring a separate cause of action against a third-party for contribution. See Gross v. Hanover Ins. Co., 138 F.R.D. 53, 54 (S.D.N.Y.1991); McLaughlin v. Biasucci, 688 F.Supp. 965, 967 (S.D.N.Y.1988). The district court has considerable discretion in deciding whether to permit a third-party complaint. Leventhal, 736 F.2d at 31; Gross, 138 F.R.D. at 54. Upon determination that a third-party complaint would be appropriate and foster the interest of judicial economy, the factors to be considered in determining whether to grant leave to implead a third-party defendant are: (i) whether the movant deliberately delayed or was derelict in filing the motion; (ii) whether impleading would unduly delay or complicate the trial; (iii) whether impleading would prejudice the third-party defendant; and (iv) whether the third-party" }, { "docid": "4934723", "title": "", "text": "14(a) shall be made within six (6) months from the date of service of the moving defendant’s answer to the complaint. The third-party plaintiffs claim that the motion to file the third-party Complaints were timely since they were served simultaneously with the Answers to the Consolidated Amended Complaint. Moreover, they assert that the Consoli dated Amended Complaint brought out a great amount of new factual allegations that were not in the original or Amended Complaint. Fortunately, the law in this district is well settled in bringing in third-party complaints under Local Rule 24(a). The late Chief Judge John W. Lord, Jr. in Goodman v. Neff, 251 F.Supp. 562, 564 (E.D.Pa.1966) succinctly stated: . While the local rule is mandatory in its terms [joinder within six months from date of service of moving defendant’s answer], it has by no means been construed with such stringency. The cases construing Local Rule 19 suggest that the factors to be considered in determining whether leave to join a third-party defendant shall be granted after six months are whether the defendant’s delay is excusable, whether prejudice will result to the third-party defendant, and whether the trial of the principal action will be delayed or unduly complicated. The burden is obviously on defendant to justify his late application for leave to join a third-party. Raymond v. West Africa Navigation, Ltd., 3 F.R.Serv.2d 14a. 132, Case 1 (E.D.Pa.1960). See McLouth Steel Corp. v. Mesta Machine Co. 116 F.Supp. 689 (E.D.Pa. 1953), aff’d 214 F.2d 608 (3rd Cir.), cert. denied. Hartford Acc. & Indemnity Co. v. Foster, 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687 (1954); Levine v. Chrysler Corp. v. Levine, 57 F.R.D. 211 (E.D.Pa.1972); Thompson v. Phillips Equipment and Supply Co., 53 F.R.D. 91 (E.D.Pa.1971); Carter v. Anika Mfg. Co., 321 F.Supp. 197 (E.D.Pa.1971); Johnson v. Maritime Overseas Corp. et al. v. Atlantic Port Contractors, Inc. et al., C.A. No. 68-206 (E.D.Pa. 1971); Turner v. Jones, 42 F.R.D. 38 (E.D.Pa. 1966); Gilpin v. Abraham, 231 F.Supp. 511 (E.D.Pa.1964); Graeff v. Borough of Rockledge, 35 F.R.D. 178 (E.D.Pa. 1964); Hammond v. Thornton, 33 F.R. D. 291" } ]
840262
much better and more probative evidence before the Tax Court. This evidence has been summarized in the first portion of this opinion. It is uncontradicted and persuades me that the finding of the Tax Court that two-thirds of the anti-trust settlement was paid as punitive damages was clearly erroneous. . Equally “regrettable”, I presume, is the fact that the decision in REDACTED d 928); and that under then existing law, there was no taxation reason for the taxpayer to require a specification in the settlement papers that none of the money was paid as punitive damages.
[ { "docid": "21385034", "title": "", "text": "BIGGS, Chief Judge. The Commissioner seeks to reverse two decisions of the United States Tax Court in favor of two taxpayers. In Glenshaw a claim for punitive damages based upon a competitor’s, Hartford’s, fraudulent suits which disastrously affected the taxpayer’s business, as well as a claim for treble damages under Section 4 of the Clayton Act, 15 U.S.C.A. § 15, were settled by the payment of a sum of money. ******In Goldman a judgment for treble damages was awarded Goldman against Loew’s, Inc., also pursuant to Section 4 of the Clayton Act. The sole question presented for our determination is whether moneys paid as punitive or statutory treble damages are taxable as income under Section 22(a) of the Internal Revenue Code, 26 U.S.C.A. The Tax Court has decided that they are not and the Commissioner of Internal Revenue has petitioned this court for review. Insofar as the issue before us is concerned no valid distinctions can be drawn between a money settlement and money paid in satisfaction of a judgment or between punitive damages levied for fraud and treble damages rendered under the Clayton Act. The positions of the taxpayers are based in large part upon the definition of “income” set out in Eisner v. Macomber, 1920, 252 U.S. 189, 207, 40 S.Ct. 189, 64 L.Ed. 521, on the decision of this court in Central R. Co. v. Commissioner, 3 Cir., 1935, 79 F.2d 697, 101 A.L.R. 1448, the decision of the Board of Tax Appeals in Highland Farms Corporation v. Commissioner of Internal Revenue, 1940, 42 B.T.A. 1314, and the applicable Treasury Regulations. . The taxpayers also assert considerations which are based on the general philosophy of income taxation but we will not discuss these specifically in this opinion. But the United States for its part contends that Eisner v. Macomber does not settle the applicable definition of what constitutes taxable income insofar as the cases at bar are concerned, that the decision of this court in the Central R. Co. case is not applicable, but if it is, it was wrongly decided, and that the decision of the" } ]
[ { "docid": "14069098", "title": "", "text": "ble parties settled a defamation suit with a punitive damages component after the Court of Appeals remanded the case to the district court. Id. at 394. Even though the initial judgment on the remanded claim had been for $1 million in compensatoiy damages and $5 million in punitive damages, the parties settled for $1.5 million prior to trial. Id. Though the IRS had sought to tax a greater amount, the Tax Court found that the payor’s intent was to minimize the payment of punitive damages, and thus allocated $1 million to compensatoiy defamation damages and $500,000 to taxable punitive damages. Id. at 395. The Eighth Circuit rejected the taxpayers’ argument that none of the damages were for punitive damages, even though there was some evidence from negotiations in support of that contention. Id. at 395-96. While the allocation in Bagley did result in taxation of only that amount by which the settlement exceeded the jury’s compensatory, non-taxable damages, this does not support the Taxpayers in this case because the result in Bagley was intended by the settling parties, as found by the Tax Court after consideration of all relevant circumstances. Id. at 395. In contrast, the Taxpayers have no evidence that any party to this underlying litigation intended such an allocation and instead have suggested this technique as a normative principle, one to which we do not subscribe." }, { "docid": "7696499", "title": "", "text": "abuse. There were twenty-two accidents that occurred under substantially similar circumstances before Burke’s own injury. Notwithstanding, the district court exercised sound discretion and allowed the live testimony- of only five victims of those accidents. The majority also states that evidence of these other accidents was used in the submission of the punitive damages question to the jury, and that the use of this evidence served to enhance the award of punitive damages. As I stated above, I believe there was error regarding counsel’s closing argument intimation that part of the award of punitive damages would serve to compensate similarly situated victims. The error, however, was the ambiguous and misleading statement of counsel — not the properly admitted evidence of other similar accidents. IV. Conclusion . Accordingly, I would reverse the award of punitive damages and remand for a new determination of how much, if any, those dam-agés should be. I must, however, dissent from the holding of the panel majority that today works an injustice by throwing out the baby with the bath water — needlessly reversing the entire trial below on suspect grounds, and erroneohsly redefining the parameters of Iowa products liability law. . The district court erroneously informed the jury in Question No. 3 of the Special Interrogatories on Punitive Damages that “a portion of the punitive damage award to be fixed by the court' will be paid into a civil trust fund administered by this court” if the jury found the conduct of Deere not directed specifically at Burke. Iowa Code § 668A.1 provides that at least seventy-five percent of such an award \"be ordered paid into a civil reparations trust fund administered by the state court administrator.” Although I do not find the present case an appropriate opportunity to resolve the question whether Iowa juries should ever be informed of the destination of such funds, I do think the erroneous information provided in the present case,' along with the argument of counsel, proved prejudicial. . The majority argues that remand for retrial of the punitive damages issue alone would be impermissible, citing Gasoline Products Co., Inc." }, { "docid": "13090915", "title": "", "text": "the corporation’s future plans to make personal profits by short term dealings in its securities. To effectuate this policy the Act provides that the profits so made shall be turned over to the corporation. The prime purpose of the Act is punitive, to discourage dealings of this type by persons having inside information as to the affairs of the corporation. Clearly the purpose is not compensatory. Damage to the remaining stock is not a. prerequisite to recovery. In William Goldman Theatres, Inc., 19 T.C. at page 641, the court tried to distinguish these cases from the punitive damages cases by saying that “ * * the taxpayer did not receive the money in payment of punitive damages, but pursuant to a statute which provided that certain profits realized by corporate insiders under circumstances there present should ‘inure to and be recoverable by’ the corporation.” Admittedly the facts are different, but the Tax Court has not pointed to any distinction that would justify a difference in treatment as to taxation of the two types of gain. On appeal the Court of Appeals also tried to distinguish the two doctrines. Commissioner of Internal Revenue v. Glenshaw Glass Co., and Commissioner v. William Goldman Theatres, Inc., 3 Cir., 211 F.2d 928, 932. The court cited the concurring opinion of Judge Murdock in General American Investors Co. v. Commissioner, 19 T.C. 581, 587, which pointed to the language of Section 16(b) saying that “any profit realized” shall be paid to the corporation. Judge Murdock apparently considered “insider profits” taxable, not as windfalls, but as “profits.” The respondent, in effect, makes the same argument when he claims that Section 16(b) operates on a trust fiction. The fallacy in this contention was clearly shown in the opinion on the appeal, General American Investors Co. v. Commissioner, 2 Cir., 211 F.2d 522, 524. The court there said: “Perhaps reluctant to take a position seemingly inconsistent with pri- or decisions of the Tax Court, which relied heavily upon the Eisner v. Macomber definition and upon Central R. Co. of New Jersey v. Commissioner [citation], the concurring judges below" }, { "docid": "14069072", "title": "", "text": "to assume that this lone statement from the legislative history of the 1996 amendment applied to prior versions of the statute, the Supreme Court has rejected such an expansive interpretation of § 104(a)(2). Having considered both the language of § 104(a)(2) and its rationale, we are not persuaded that Rule 238 delay damages can be meaningfully distinguished from prejudgment interest in general simply because they are only available when the defendant has delayed the trial or not made an adequate settlement offer. For this reason, we affirm the District Court’s ruling that the Taxpayers’ recovery of delay damages should have been taxed. IV. ALLOCATING DELAY DAMAGES in Settlement Having concluded that delay damages received pursuant to Pennsylvania Rule of Civil Procedure 238 are not exempt from taxation as damages received on account of personal injury, we proceed to whether the District Court allocated the proper measure of delay damages from the total recovery received in settlement. The IRS suggested, and the District Court found, that 46% of the $3.4 million received in settlement was properly allocated to delay damages because that was the same proportion of the trial court’s total award apportioned to delay damages. After reducing the taxable income to the amount actually received by the Taxpayers after payment of attorneys’ fees and costs, the IRS proposed to tax 46% of the net settlement received by the Taxpayers. Using this formula, the IRS determined that $1,033,954 was taxable income.— Before proceeding to the Taxpayers’ assignments of error on this point, we note that “the taxpayer bears the ultimate burden of proving, by a preponderance of the evidence, that [the IRS’s] assessment is erroneous.” Sullivan v. United States, 618 F.2d 1001, 1008 (3d Cir.1980). Because IRS tax assessments are presumed to be correct, “[i]t is not enough for [the Taxpayers] to demonstrate that the assessment of the tax for which refund is sought was erroneous in some respects.” United States v. Janis, 428 U.S. 433, 440, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Instead, the taxpayer “bears the burden of proving the amount he is entitled to recover.” Id.; see" }, { "docid": "13090912", "title": "", "text": "the facts. The only question before us is whether or not punitive damages awarded under the federal anti-trust acts constitute gross income within the definition of that term found in Section 22(a) of the Federal Income Tax Law, 26 U.S.C.A. § 22(a). Before the Sixteenth Amendment Congress could not levy a direct tax without apportionment among the states. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759, Id., 158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108. The Amendment allows a tax on “income” without apportionment, but an unapportioned direct tax on anything that is not income would still, under the rule of the Pollock case, be unconstitutional. Since 1940 the Tax Court has held that punitive damages are not income, while the Commissioner has continued to tax them as such. The Tax Court’s position was originally based on Central R. Co. of New Jersey v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 697, 101 A.L.R. 1448, a case not involving punitive damages. In that case the corporate taxpayer, in a settlement of an action brought to recover profits made by a fidu-cial employee in transactions by him in a conspiracy to defraud the taxpayer, received more than $450,000. The court held that this recovery was not taxable as income. Its decision was based on the definition of income in Eisner v. Macom-ber, 252 U.S. 189, 207, 40 S.Ct. 189, 193, 64 L.Ed. 521; that income is “ ‘gain derived from capital, from labor, or from both combined’ ”. The court in the Central Railroad case felt that the recovery there was derived from neither capital nor labor. In Highland Farms Corporation v. Commissioner of Internal Revenue, 42 B. T.A. 1314, 1322, the Board of Tax Appeals, for the first time, held that punitive damages were not income, giving no reason other than the Central Railroad case. This holding was followed in Glen-shaw Glass Co. v. Commissioner of Internal Revenue, 18 T.C. 860, 868, and William Goldman Theatres, Inc., v. Commissioner of Internal Revenue, 19 T.C. 637. These two cases were considered" }, { "docid": "23489122", "title": "", "text": "954 F.2d 1263, 1274-75 (6th Cir.1992); Tinsley v. Sea-Land Corp., 979 F.2d 1382, 1383 (9th Cir.1992); Masinter v. Tenneco Oil Co., 934 F.2d 67, 68 (5th Cir.1991); and Affiliated Capital Corp. v. Houston, 793 F.2d 706, 709 (5th Cir.1986). These courts have reasoned that a remitti-tur merely reduces the damages by a distinct amount easily determined from the facts of the case. Coal Resources, 954 F.2d at 1275. The initial judgment is viewed as correct to the extent it is permitted to stand, and interest on a judgment partially affirmed should be computed from the date of its initial entry. Tinsley, 979 F.2d at 1383. We think this reasoning is especially applicable in the context of a constitutionally excessive verdict. The jury’s punitive damage awards were correct to the extent of $4.35 million. The clearly identifiable excessive portion has been stricken, but the remaining portion is just as clearly identifiable. Accordingly, this case is governed by the rule that post-judgment interest runs from the date that damages are clearly ascertained, which, to the extent of the $4.35 million we affirm today, was the date of entry of the initial judgment — June 16,1994. 2. Set-off Finally, with respect to CE’s claim to a right of set-off with regard to the amount paid by it in settlement of three of the plaintiffs’ claims, CE cites no supporting authority and we can find none. Furthermore, the settlement agreements recite that “no part of the settlement amounts” be considered punitive damages. Having determined that punitive damages totaling $4.35 million do not offend the Constitution, we find no reason to set off any amounts CE has already paid in settlement. VIII. We hold that the Constitution permits punitive damages in this case totaling $4.35 million. Post-judgment interest on the punitive damages accrues from the date these damages were ascertained, which, on the amounts we affirm today, was on June 16, 1994. CE enjoys no right to a set off of amounts paid by it in settlement of property owners’ judgments. Accordingly, the district court’s judgment in each ease is AFFIRMED; VACATED as to the" }, { "docid": "13090911", "title": "", "text": "SWAIM, Circuit Judge. The respondent, Obear-Nester Glass Company, a Missouri corporation whose principal place of business is in Illinois, brought suit against the Hartford-Empire Company for treble damages under the federal anti-trust laws. 15 U.S.C.A. § 1 et seq. The Hartford-Empire Company eventually paid petitioner $1,000,-000 in full settlement of the claim. The parties agree that one-third of the settlement represents respondent’s actual damages but not a recovery of capital, while the remainder represents punitive (treble) damages recoverable under the antitrust laws. Of this recovery, respondent insists that it should be required to pay income tax on only the one-third received in settlement for actual damages incurred. The Commissioner claimed that the entire $1,000,000 was taxable as income: the amount representing punitive damages as well as that for actual damages. The Tax Court overruled the Commissioner and held that only the amount recovered for actual damages was taxable. Obear-Nester Glass Co. v. Commissioner of Internal Revenue, 20 T.C. 1102. From the Tax Court’s decision the petitioner appeals to this court. There is no dispute over the facts. The only question before us is whether or not punitive damages awarded under the federal anti-trust acts constitute gross income within the definition of that term found in Section 22(a) of the Federal Income Tax Law, 26 U.S.C.A. § 22(a). Before the Sixteenth Amendment Congress could not levy a direct tax without apportionment among the states. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759, Id., 158 U.S. 601, 15 S.Ct. 912, 39 L.Ed. 1108. The Amendment allows a tax on “income” without apportionment, but an unapportioned direct tax on anything that is not income would still, under the rule of the Pollock case, be unconstitutional. Since 1940 the Tax Court has held that punitive damages are not income, while the Commissioner has continued to tax them as such. The Tax Court’s position was originally based on Central R. Co. of New Jersey v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 697, 101 A.L.R. 1448, a case not involving punitive damages. In that case the" }, { "docid": "17760532", "title": "", "text": "1944 and 75 percent represented appreciation in value between 1944 and 1965. Applying these percentages to the amounts received by Marilyn and Robert in settlement of the litigation, the Service finally determined that taxpayers’ claim had a total value in 1944 of $90,404. Adding to this basis the $80,000 in attorney’s fees incurred by taxpayers, a total basis of $170,404 was established, leaving the balance of $179,596 as a taxable long-term capital gain. From the foregoing it is obvious that the Government views the settlement proceeds of $350,000 received by Marilyn and Robert as totally allocable to that portion of their cross-complaint which demanded a declaration of part ownership in the various Segerstrom real properties. In my opinion, however, such an allocation is erroneous since it ignores the other causes of action alleged in the cross-complaint which undoubtedly played a significant role in bringing about the eventual settlement. It is clear that the Service conferee erred in failing to consider all causes of action alleged by Marilyn and Robert in their cross-complaint to which some portion of the settlement proceeds could have been allocated. The rule has been well stated by the Eighth Circuit Court of Appeals in Carter’s Estate v. Commissioner, 298 F. 2d 192 (8th Cir. 1962) where the court said at p. 194: It is well-settled law that the classification for tax purposes of amounts received in settlement of litigation is to be determined by the nature and basis of action settled. [Citing cases.] If it is found that such a settlement is one in respect to a claim for lost profits or partly for lost profits and partly in lieu of punitive damages such as are recoverable in anti-trust litigation, there can be no question as to their taxability as ordinary income. [Citing cases.] See, also, Rev. Rul. 58-418, 1958-2 C.B. 18 holding that amounts received in lieu of an award for punitive damages are taxable to the recipient as ordinary income. On the other hand, of course, under Lyeth and Gavin, supra, amounts received in lieu of corpus of an estate will be exempt from" }, { "docid": "4493424", "title": "", "text": "“After a careful consideration of all the evidence we have found that in the instant proceeding petitioner, in good faith and with the exercise of reasonable care, calculated its ceiling prices which it believed were in accordance with MPR 163. The overcharges which it made were not deliberately nor intentionally made.” And, in explanation of the payment by the taxpayer of a sum greater than its estimated overcharges for the year preceding the date when the suit was actually brought, the Tax Court said: “The whole purpose of the payment to O.P.A. in the instant case was to settle a claim for an alleged violation of MPR 163 which petitioner believed it did not violate, but, that if it did violate, it did so without any wilful intent. While petitioner paid $2,065,842.02 to O. P.A. its liability for treble damages for the statutory one-year period might have been approximately $5,-400,000. Although the payment to O.P.A. exceeded the statutory one-year overcharges, the excess over this amount was not an arbitrary figure for the purpose of making the payment punitive, but rather the entire amount was carefully calculated to reflect the overcharges for the entire period from June 22, 1942 to the date of settlement in such a way as to remove petitioner’s profit from past overcharges.” The Commissioner contends that the Tax Court was clearly wrong in failing to conclude on the undisputed and indisputable evidence that the money paid by Pacific Mills in settlement of its disagreement with OPA was exacted by the latter with the deliberate purpose of making that payment punitive. Wherefore he says that to allow the taxpayer to deduct from its taxes the amount it paid to OPA would of necessity mitigate its punishment and hence frustrate the basic policy of the price control statute. The Commissioner seeks to support his premise on several grounds. He says that in this case, where millions of dollars were involved, Pacific Mills must be charged with failure to take practicable precautions because it did not ask for an advisory ruling under Procedural Regulation 1. We cannot agree. It is" }, { "docid": "12934811", "title": "", "text": "under the circumstances. As noted above, the court finds in connection with these objections as it did with regard to other objections regarding the desire for complete individualized calculations that the trade-off made by class counsel was reasonable, and thus, the objections about pro motions do not provide a basis for rejecting the settlement. (11) Taxation Three class members (00016, 04082, 04088) object to any taxation of their back pay, or to its taxation at their current tax rates, which allegedly are higher than the rates they would have been taxed at when they earned the money. Contrary to the objector’s desires, federal law requires withholding of taxes on payments, such as these, that are in the nature of back wages. See 26 U.S.C. § 3401(a). Moreover, the law requires that taxes be paid at the taxpayer’s current tax rate. See United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 209, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001). Accordingly, these objections do not provide a basis for rejecting the settlement. d. Miscellaneous Remedial Methodology Objections Five other objections to the remedial methodology were raised. One class member (00011) suggests that class members should be given additional service time toward retirement instead of back pay One comment suggested that compensatory damages and punitive damages should be considered. In all of these instances, class counsel explained to the court that there is no statutory authority for these types of remedies in this case. In such circumstances, these objections do not provide a basis for rejecting the settlement. Another class member (00368) objects on grounds that the class members’ present grades and occupations are not relevant to the back pay calculation. This class member must have been confused, because present grades and occupations in fact play no role in the calculation. Finally, one class member (00157) complains that the remedial methodology is too hard to understand. While the court agrees that the remedial methodology is complicated, class counsel together with the settlement administrator have done an excellent job in endeavoring to explain it to the class members. The remedial methodology itself, has" }, { "docid": "13090916", "title": "", "text": "On appeal the Court of Appeals also tried to distinguish the two doctrines. Commissioner of Internal Revenue v. Glenshaw Glass Co., and Commissioner v. William Goldman Theatres, Inc., 3 Cir., 211 F.2d 928, 932. The court cited the concurring opinion of Judge Murdock in General American Investors Co. v. Commissioner, 19 T.C. 581, 587, which pointed to the language of Section 16(b) saying that “any profit realized” shall be paid to the corporation. Judge Murdock apparently considered “insider profits” taxable, not as windfalls, but as “profits.” The respondent, in effect, makes the same argument when he claims that Section 16(b) operates on a trust fiction. The fallacy in this contention was clearly shown in the opinion on the appeal, General American Investors Co. v. Commissioner, 2 Cir., 211 F.2d 522, 524. The court there said: “Perhaps reluctant to take a position seemingly inconsistent with pri- or decisions of the Tax Court, which relied heavily upon the Eisner v. Macomber definition and upon Central R. Co. of New Jersey v. Commissioner [citation], the concurring judges below took the view that these payments were ‘profits,’ because Section 16(b) provided that ‘any profit realized’ under the circumstances here present ‘shall inure to and be recoverable by the issuer.’ But this reasoning will not bear analysis. These payments were not ‘profits’ to petitioner, although they represented ‘profits’ realized by the director and the stockholder.” We agree with the Second Circuit that awards under Section 16(b) do not represent profits to the corporation which receives them. We are unable to reconcile the tax-ability of “insider profits” with the non-taxability of punitive damages. We could, of course, point out the factual difference between the two situations, but we are unwilling to rest a decision on words alone when they express no rational distinction for purposes of taxation. As a result, we can only view the problem presented by this appeal as one upon which the authorities are in conflict. The respondent contends that a tax on punitive damages would be unconstitutional because punitive damages are not income and, thus, not within the Sixteenth Amendment. The first" }, { "docid": "19733896", "title": "", "text": "and § 1211(a) purposes, whether the two sides to an uncompleted transaction compromise it by a separate arrangement after the rupture or whether, having foresight, they do it by including a liquidated damages provision in their original contract. In other words, no tax or other useful purpose is served by declaring that this taxpayer has an ordinary loss because it paid $500,000 in liquidated damages to the Pauls under the original agreement to buy-and-sell, but that it would have had a capital loss if the $500,000 had been paid under a settlement reached after the refusal to go through with the purchase. No other valid distinction has been suggested or has as yet occurred to me. The Government argues that there can be a “sale or exchange” for the breaching buyer in this type of transaction but not for the seller who receives damages and keeps his property. The court’s opinion leans toward this view, but to me it seems unacceptable. The concept of a “sale or exchange” necessarily requires two-sided participation, and I cannot see how a transaction can be a “sale or exchange” for the one and something else for the other. See Union Bag-Camp Paper Corp. v. United States, 163 Ct. Cl. 525, 537-39, 325 F. 2d 730, 738 (1963); Stoddard v. United States, 49 F. Supp. 641, 644 (D. Mass. 1943). When Congress desires an artificial, possibly one-sided, reading of “sale or exchange”, it so provides as in Section 1234(a) (b) (loss attributable to failure to exercise a privilege or option). Thus, my view is that a proper resolution of this case requires us to choose 'between the divergent groups of precedents, to find in them a harmony which has not yet 'been discerned, to discover a new but sound principle of “sale or exchange”, or to skirt that concept entirely in disposing of the matter. For me much more digging is called for. I know that I do not have the answer now, and in the circumstances it is better simply to record my disagreement with the approach which commends itself to the majority. FINDINGS" }, { "docid": "21589363", "title": "", "text": "D. Award counsel for plaintiff reasonable attorney’s fees and expenses; E. Award any further relief which is appropriate and proper under the circumstances. App. at 58-59. The taxpayer’s action was tried before a jury in a bifurcated trial. The jury first heard evidence on the issue of liability. After the testimony, four interrogatories were submitted to the jury for their consideration: (1) Was plaintiff ... qualified in April 1979 for the position of President of Malsbary ... ? (2) Was age a determinative factor in the decision not to promote the plaintiff? (3) Was plaintiff ... qualified in August 1979 for the position of General Sales Manager of Malsbary ... ? (4) Was age a determinative factor in the decision to discharge the plaintiff from his job as General Sales Manager? App. at 86. While the jury was deliberating, the parties reached a settlement. The specific terms of the settlement depended upon the jury’s answers to the interrogatories. When the jury answered all the questions affirmatively, the defendants were obligated to pay the taxpayer $80,000 immediately and $25,000 during each of the next four years. The settlement agreement did not allocate the settlement amount among the taxpayer’s various prayers for relief. Carlisle made the first payment of $80,-000 in 1983, and paid $25,000 during each of the succeeding four years. Only the receipt of $80,000 in 1983 and $25,000 in 1984 are at issue in this appeal. Carlisle did not withhold Federal income or Social Security tax from any of the payments. The taxpayer neither reported the $80,000 or the $25,000 as gross income nor disclosed these amounts on his 1983 and 1984 tax returns. In a statutory notice of deficiency, the Commissioner of the Internal Revenue (“Commissioner”) determined that the entire amount of $105,000 was taxable income. The Commissioner argued that the settlement proceeds represented either back pay or punitive damages, both of which the Commissioner asserted were taxable items of income. The taxpayer petitioned the Tax Court seeking a redetermi-nation of the deficiency. After a trial, the Tax Court found that one-half, i.e. $40,000 in 1983 and $12,500" }, { "docid": "21089808", "title": "", "text": "The district court ordered a remittitur of the punitive award to $1,350,000, 609 F.Supp. at 819-20, but on appeal this court ordered reinstatement of the full punitive award, 821 F.2d at 1448-49. In 1988, the O’Gilvie estate distributed the net proceeds of the punitive damages award to the beneficiaries, the taxpayers here. After attorney’s fees and expenses the net proceeds were $4,967,292. Each of the three taxpayers reported their share of the punitive damages on their individual federal income tax returns for the 1988 tax year in the following amounts: Kelly M. O’Gilvie $2,483,646 Kevin M. O’Gilvie $1,241,823 Stephanie L. O’Gilvie $1,241,823 In August 1989, taxpayer Kelly M. O’Gilvie filed a claim for refund with respect to his 1988 income taxes, asserting that punitive damages were excluded from gross income under I.R.C. § 104(a)(2) as damages received “on account of personal injury.” When the Internal Revenue Service took no action on his refund claim he filed suit against the United States to recover the refund plus interest. He later filed an amended complaint in his suit, adding a claim for the refund of taxes paid on interest on the portion of the punitive damages award that was the subject of the remittitur. The parties filed cross-motions for summary judgment, each asserting there was no genuine issue of material fact and that the taxability of punitive damages could be decided as a matter of law. In November 1989, taxpayers Kevin M. O’Gilvie and Stephanie L. O’Gilvie filed claims for refunds asserting the punitives were excludable from income. The IRS approved, and after submitting them to Congress as required for large refunds by I.R.C. § 6405, processed the refunds. Kevin and Stephanie received refund checks in July 1990. Two years later, however, the IRS filed an action against each of them for recovery of an erroneous refund under I.R.C. § 7405, asserting the punitive damages award was taxable. The parties in that case agreed to be bound by the decision in Kelly O’Gilvie’s refund suit. On May 26, 1992, the district court issued a memorandum and order in the refund suit, finding" }, { "docid": "17760533", "title": "", "text": "portion of the settlement proceeds could have been allocated. The rule has been well stated by the Eighth Circuit Court of Appeals in Carter’s Estate v. Commissioner, 298 F. 2d 192 (8th Cir. 1962) where the court said at p. 194: It is well-settled law that the classification for tax purposes of amounts received in settlement of litigation is to be determined by the nature and basis of action settled. [Citing cases.] If it is found that such a settlement is one in respect to a claim for lost profits or partly for lost profits and partly in lieu of punitive damages such as are recoverable in anti-trust litigation, there can be no question as to their taxability as ordinary income. [Citing cases.] See, also, Rev. Rul. 58-418, 1958-2 C.B. 18 holding that amounts received in lieu of an award for punitive damages are taxable to the recipient as ordinary income. On the other hand, of course, under Lyeth and Gavin, supra, amounts received in lieu of corpus of an estate will be exempt from income tax. Cf. Harte v. United States, 252 F.2d 259 (2d Cir. 1958). Because of uncertainties as to the assets comprising Bertha’s estate, if any, because the state court never entered a judgment in the present case, and because the settlement agreement itself made no specific allocation of the proceeds, the court unfortunately is deprived of the usual guidelines for determining a reasonable allocation. Cf. Tree v. United States, 102 Ct. Cl. 128 (1944), cert. den. 324 U.S. 852 (1945) where this court closely examined the terms of a more precise settlement agreement in applying the \"in-lieu-of-what” test. In the Fourth Cause of Action set forth in their cross-complaint, as amended, Marilyn and Robert alleged fraud and concealment on the part of their uncles, who were the surviving partners in the family partnership, and accordingly, they prayed for \"punitive damages” in the sum of $10,000,000. However, in the ensuing settlement agreement, Marilyn and Robert agreed that all such allegations of fraud, misrepresentation and concealment were untrue and without merit. In view of this concession, it" }, { "docid": "22698929", "title": "", "text": "are as follows: Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw were demands for exemplary damages for fraud and treble damages for injury to its business by reason of Hartford’s violation of the federal antitrust laws. In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T. C. 860, 870-872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals upheld the taxpayer. Commissioner v. William Goldman Theatres, Inc.— William Goldman Theatres, Inc., a Delaware corporation operating motion picture houses in Pennsylvania, sued Loew’s, Inc., alleging a violation of the federal antitrust laws and seeking treble damages. After a holding that a violation had occurred, William Goldman Theatres, Inc. v. Loew’s, Inc., 150 F. 2d 738, the case was remanded to the trial court for a determination of damages. It was found that Goldman had suffered a loss of profits equal to $125,000 and was entitled to treble damages in the sum of $375,000. William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F. Supp. 103, aff’d, 164 F. 2d 1021, cert. denied, 334 U. S. 811. Goldman reported only $125,000 of the recovery as gross income and claimed that the $250,000 balance constituted punitive damages and as such was not taxable. The Tax Court agreed, 19 T. C. 637, and the Court of Appeals, hearing this with the Glenshaw case, affirmed. 211 F. 2d 928. It is conceded by the respondents that there is no" }, { "docid": "22698928", "title": "", "text": "Mr. Chief Justice Warren delivered the opinion of the Court. This litigation involves two cases with independent factual backgrounds yet presenting the identical issue. The two cases were consolidated for argument before the Court of Appeals for the Third Circuit and were heard en banc. The common question is whether money received as exemplary damages for fraud or as the punitive two-thirds portion of a treble-damage antitrust recovery must be reported by a taxpayer as gross income under § 22 (a) of the Internal Revenue Code of 1939, In a single opinion, 211 F. 2d 928, the Court of Appeals affirmed the Tax Court’s separate rulings in favor of the taxpayers. 18 T. C. 860; 19 T. C. 637. Because of the frequent recurrence of the question and differing interpretations by the lower courts of this Court’s decisions bearing upon the problem, we granted the Commissioner of Internal Revenue’s ensuing petition for certiorari. 348 U. S. 813. The facts of the cases were largely stipulated and are not in dispute. So far as pertinent they are as follows: Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw were demands for exemplary damages for fraud and treble damages for injury to its business by reason of Hartford’s violation of the federal antitrust laws. In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T. C. 860, 870-872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals" }, { "docid": "14069097", "title": "", "text": "judgment when the case was settled. See id. Furthermore, the settlement agreement explicitly provided that sums paid were \"without costs and interest.\" Id. Thus, in light of the pendency of any prejudgment interest, the Tax Court found that the payor's intent was only to compensate plaintiffs for their non-taxable personal injury. See id. In this case, delay damages were added to the jury award in a definite amount and were a component of an enforceable judgment that had already been affirmed once on appeal. It was thus reasonable for the District Court to find that the intentions of the defendants in this case were different from the intentions of the defendants in McShane. See Delaney, 99 F.3d at 25 n. 4. . Subtracting the personal injury award ($1,910,000) from the net settlement received by the Taxpayers ($2,247,727) yields $337,727, which is the amount actually received by the Taxpayers in excess of the jury award. . Taxpayers assert that this methodology is consistent with that in Bagley v. Commissioner, 121 F.3d 393 (8th Cir.1997). In Bagley, ble parties settled a defamation suit with a punitive damages component after the Court of Appeals remanded the case to the district court. Id. at 394. Even though the initial judgment on the remanded claim had been for $1 million in compensatoiy damages and $5 million in punitive damages, the parties settled for $1.5 million prior to trial. Id. Though the IRS had sought to tax a greater amount, the Tax Court found that the payor’s intent was to minimize the payment of punitive damages, and thus allocated $1 million to compensatoiy defamation damages and $500,000 to taxable punitive damages. Id. at 395. The Eighth Circuit rejected the taxpayers’ argument that none of the damages were for punitive damages, even though there was some evidence from negotiations in support of that contention. Id. at 395-96. While the allocation in Bagley did result in taxation of only that amount by which the settlement exceeded the jury’s compensatory, non-taxable damages, this does not support the Taxpayers in this case because the result in Bagley was intended by" }, { "docid": "21589388", "title": "", "text": "believe that the taxpayer has established requirement (1). The Commissioner’s principal position throughout these proceedings has been that one-half of the settlement figure was for back pay and one-half was for liquidated damages, and that both types of damages were taxable. The Commissioner argued that back pay was taxable income because it was paid on account of a nonper-sonal injury. Although we have rejected that argument here, given that the Commissioner prevailed in the Tax Court on the issue, that Byrne had not yet been decided by this Court, the inconsistency we have found in the Tax Court’s approach to this issue, see supra n. 5, and the assumption by many courts that such back pay awards are taxable, see supra note 15 and accompanying text, we think that the Commissioner’s position could be deemed as reasonably supported in the case law. See, e.g., Smith v. United States, 850 F.2d 242, 246 (5th Cir.1988) (requiring taxpayer to prove that the government’s position was unjustified); Boatmen’s First Nat’l Bank of Kansas City v. United States, 723 F.Supp. 163, 170 (W.D.Mo.1989); Feldmar v. Commissioner, 56 T.C.M. (CCH) 1414, 1416 (1989) (“In determining whether [the government’s] position was not substantially justified, the question is one of whether [the government’s] position in the litigation was unreasonable.”). Cf. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (interpreting the phrase “substantially justified” for purposes of the closely related Equal Access to Justice Act to mean justified to a degree that would satisfy a reasonable person). See generally Giesecke v. United States, 637 F.Supp. 309, 310-12 (W.D.Tex.1986) (no difference between “substantially justified” test under EAJA and “unreasonableness” standard under the IRC of 1954); Kaufman v. Egger, 584 F.Supp. 872, 877 n. 1 (D.Me.1984), aff'd, 758 F.2d 1 (1st Cir.1985) (same). We believe that the Commissioner’s position that the portion of the settlement it viewed as liquidated damages was taxable is more problematic. The Commissioner argued that under the ADEA liquidated damages are punitive and, as such, are taxable income under § 61, citing Commissioner v. Glenshaw Glass Co., 348 U.S. 426," }, { "docid": "13090926", "title": "", "text": "309 U.S. 331, 337, 60 S.Ct. 554, 84 L.Ed. 788. The respondent suggests that by allowing the taxation of treble damages awarded under the anti-trust acts, we would be defeating Congress’ attempt to encourage the prosecution of violators of these acts. The first answer to this contention is that once it is established that the award involved here is income and comes within the coverage of Section 22(a), Congress must specifically provide for its exclusion or deduction by statute if it so desires. We might further say that the principal purpose of treble damages seems to be punishment which will deter the violator and others from future illegal acts. Com pensation for actual damages is enough to encourage legal action, not. to mention the substantial amount of punitive damages the injured party still retains after taxes are paid. Respondent’s argument works against it, for if, as respondent suggests,'punitive damages were intended principally to encourage the uncovering of antitrust violators, then it might be said that the taxpayer “earned” the punitive damages by prosecuting the action for the recovery.. If this interpretation were made, the punitive damages here.would fall within the Eisner v. Macomber definition as gain derived from labor. We believe that the award involved here is included in “income” as used in the Sixteenth Amendment, and that Congress has' covered it in Section 22(a) of the Internal Revenue Code. : The decision of the Tax Court is, theré-fore, reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinioii. ;" } ]
203954
of voting age population for the 26th and 32nd Wards, although the court-approved map in fact provides for an Hispanic population of only 50.0% and 38.8% in the 26th and 32nd Wards, respectively. Appellants here ask that, in addressing the illegal retrogression identified by the district court, we apply to the redistricting plan an analysis based not merely on citywide retrogression but on retrogression within wards. According to this approach, any retrogression in the size of a black majority or plurality within a ward should be eliminated and the size of the minority population restored to what it was in 1980 under the 1970 map. The appellants point out that this approach has been adopted in REDACTED Oliver, 565 F.Supp. 1473, 1482-84 (M.D. Ala.1983) (reduction of black majority within one ward from 84.2% to 68% held to constitute retrogression and a section 2 violation). In the 37th Ward, a full rectification of retrogression would mean the restoration of the pre-redistricting 76.4% black majority and, in the 15th Ward, of the 66.4% black majority. Appellants’ brief at 80. There is a certain equity in appellants’ argument, but we think it is too inflexible an approach to the practical needs of redistricting. We do believe, however, that those engaged
[ { "docid": "13326936", "title": "", "text": "the same plane with white citizens. Beer v. United States, 374 F.Supp. 363, 384 (D.C.1974) (footnote omitted). Under the Kellum Plan, the majority of each district’s residents are black. The extent of each majority, however, is diluted in all but one of the districts when compared to pre-redistricting figures. Significantly, it also appears that in terms of registered voters, blacks would have exceedingly slim majorities in some of these districts and minorities in others. The mere existence of a black population majority does not preclude a finding of dilution. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc). As we said in Zimmer, p. 1305, with reference to a black majority, in East Carroll Parish, Louisiana, if a group of voters can show . a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous, state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case [supporting a finding of dilution] is made. We agree with the district judge that such a showing was made here. Prior to the passage of the 1965 Voting Rights Act, most of Leflore County’s blacks were prevented from registering to vote by a variety of discriminatory, unconstitutional, state law devices. See United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). As the district court found, against this “. . . background of fear and civil rights repression, blacks have minimally engaged in political activity. . . .” Moore v. Leflore County Board of Election Commissioners, 361 F.Supp. 603, 605 (D.C.1972). No black has ever been elected to public office in the county; a black’s near victory over Supervisor Kellum in 1966 immediately preceded, the Board’s decision to switch to at-large elections. No black has since run for the office. The point is that against this background, the Kellum Plan diluted the black vote; by retaining the barest of black, population majorities, it enhanced the possibility of continued black political" } ]
[ { "docid": "10475882", "title": "", "text": "appropriate. Id. Defendants suggest that there is no basis for correctives in this case because there was no convincing evidence before the Court of low registration or participation among blacks in Crittenden County. We think this Court is entitled to consider the “generally ... lower voter registration and turnout characteristics” of minorities, Ketchum, 740 F.2d at 1413, especially when there is nothing to indicate that the general pattern does not apply in Critten-den County, and the factors underlying this pattern exist in great measure in the county. When reliable voting statistics are not available, “judicial experience can provide a reliable guide to action.” Id. at 1415. A district court may base its remedy on data in the record or use a “uniform corrective.” Id. at 1419. Further, as plaintiffs point out, the defendants’ summary of voting patterns entered in evidence at trial shows that black turnout as a percentage of total black population was lower than that of whites in every one of the sixty-five contests analyzed, by an average of nine percent. Def. Exhibit 7. Accordingly, we believe a corrective majority in black voting age population is in order. We adopt the plan proposed by the plaintiffs, which will result in District 48’s having a majority black population of 60.55% among residents of voting age. This will give blacks a fair opportunity to elect the candidate of their choice to the Arkansas House of Representatives, and help to eradicate the effect of the dual-member, at-large system on participation by blacks in the political process. . We are aware that one reason for the 65%-of-total-population-guideline in Ketchum is that the case involved a form of Voting Rights Act violation called retrogression, in which there is a decrease in the absolute number of representatives a minority group may expect to elect, 740 F.2d at 1402, and the appellate court thought it equitable to restore blacks to majority percentages approaching those they had before redistricting took place. We do not think this circumstance renders the reasoning of the case inapplicable, because the Court’s stated objective was to give the plaintiffs an effective" }, { "docid": "18394584", "title": "", "text": "of seats are “controlled” by Chicago and Cook County voters. Defendant Commission members admitted at trial and in their depositions that they intended to achieve this result of widening the influence of Chicago voters. Defendants suggest that, in the absence of overlapping districts in the Chicago and Cook County area, a redistricting plan grossly favors the Republican Party. 2. Crosby Plaintiffs The Crosby plaintiffs introduced several types of evidence attempting to establish that the Commission Plan was the product of purposeful discrimination to dilute black voting strength and to unconstitutionally gerrymander districts in black population areas. Their proof may be categorized as evidence of (1) retrogression; (2) “packing” and “fracturing” of the black population; (3) movements of large racial populations in certain areas to preserve the incumbencies of white legislators; (4) “admissions” of certain Commission members; and (5) prior instances of discrimination allegedly practiced by the regular Democratic Party organization in Chicago. Retrogression. The evidence showed that while the black population increased, both absolutely and especially in relation to the white population in Chicago and Cook County between 1970 and 1980, the number of districts where black voters had a “meaningful” opportunity to elect a candidate of their choice did not increase appropriately. At the time of the 1971 redistricting, blacks constituted a majority in five Chicago Senate districts (21, 22, 24, 26 and 29). When the 1980 census figures are applied to the 1971 lines, blacks constitute a majority in six Senate districts (the former five districts plus district 28). Under the Commission Plan, blacks will constitute a majority in only five of the Commission Senate Districts (9, 12, 13, 16 and 17). Thus, although blacks increased in population, both absolutely and especially in relation to whites in Chicago between 1970 and 1980, they hold a majority in the same number of Senate districts as in 1971. Blacks are also a majority in one less Senate district than would have been the case had the current redistricting not occurred. By contrast, white representation in districts where Chicago voters constitute at least part of the population has not diminished significantly." }, { "docid": "19537389", "title": "", "text": "prisoners.\" Ante, at 801 - 802. He also met with the incumbent delegate for District 75 \"probably half a dozen times\" and \"discussed the district with incumbents from other majority-black districts.\" Ante, at 801 (internal quotation marks omitted). Those efforts add up, in the majority's view, to a \"careful assessment of local conditions and structures.\" Ante, at 801. I do not agree that those efforts satisfy narrow tailoring. Delegate Jones admitted that he was \"not aware\" of \"any retrogress[ion] analysis\" performed by \"h[im] or any persons that worked with him in the development of the [redistricting] plan.\" App. 288-289. Instead, he merely \"look[ed] at\" the \"percentage of black population and the percentage of black voting age population,\" \"looked at what happened over the last 10 year period given the existing population and demographic shifts,\" and \"tried to restore back\" the levels of black voting-age population from the previous maps. Id., at 290. That approach was misguided, because § 5 \"does not require maintaining the same population percentages in majority-minority districts as in the prior plan.\" Alabama, supra, at ----, 135 S.Ct., at 1273. And in any event, that back-of-the-envelope calculation does not qualify as rigorous analysis. I do not think we would permit so imprecise an approach with regard to any other instance of racial discrimination. The other evidence cited by the majority is similarly weak. The majority points to the \" 'half a dozen' \" meetings between Delegate Jones and the incumbent delegate for District 75, ante, at 801, but it is not apparent from the record whether District 75's incumbent is the current black population's candidate of choice. Moreover, the incumbent delegate may well have wanted her district to be electorally safer than the Voting Rights Act requires. It also is not obvious to me that Delegate Jones was seeking to avoid retrogression in District 75 when he met with incumbent delegates from other majority-black districts. Ibid. In my view, those efforts fall far short of establishing that a 55% black voting-age population bears a more \" 'exact connection' \" to the State's interest than any alternative percentage." }, { "docid": "19650469", "title": "", "text": "added subsection (b), which provides: \"Any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting that has the purpose or will have the effect of diminishing the ability of any citizens of the United States on account of race or color ... to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of ... this section.\" 52 U.S.C. § 10304(b). See § 5, 120 Stat. 577. Thus, any change that has the effect of \"diminishing the ability\" of a minority group to \"elect their preferred candidate of choice\" is retrogressive. Some were rightly worried that the 2006 amendments would impose too much inflexibility on the States as they sought to comply with § 5. Richard Pildes, who argued on behalf of the Alabama Democratic Conference in these cases, testified in congressional hearings on the 2006 amendments. He explained that Georgia v. Ashcroft\"recognizes room ... for some modest flexibility in Section 5,\" and warned that if \"Congress overturns Georgia v. Ashcroft,it will make even this limited amount of flexibility illegal.\" Hearing on the Continuing Need for Section 5 Pre-Clearance before the Senate Committee on the Judiciary, 109th Congress, 2d Sess., pp. 11-12 (2006). Pildes also observed that the proposed standard of \"no 'diminished ability to elect' ... has a rigidity and a mechanical quality that can lock into place minority districts in the south at populations that do not serve minority voters' interests.\"Id.,at 12. Although this testimony says nothing about how § 5 ought to be interpreted, it tells us that the Alabama Democratic Conference's own attorney believes that the State was subject to a \"rigi[d]\" and \"mechanical\" standard in determining the number of black voters that must be maintained in a majority-black district. V All of this history explains Alabama's circumstances when it attempted to redistrict after the 2010 Census. The legislature began with the max-black district maps that it inherited from the days of Reed-Buskey. Using these inherited maps, combined with population data from the 2010 Census, many of the State's majority-black House and Senate districts" }, { "docid": "4931122", "title": "", "text": "city, which are now the court’s concern under section 2; and it is solely those rights which the court finds were violated by the enactment of City Ordinance No. 47-81, the city’s redistricting plan. The defendants also contend that the retrogression in black population in district 3 was necessitated by the requirements of one-person one-vote. They note that there had been population shifts among the districts and that there was a need to increase the population of each district as a result of annexation. Their contention withers in the face of the evidence. First, the record reflects that between 1970 and 1980 the percentage of black residents in the city, even with an annexation that brought in more white than black residents, grew from approximately 34% to 39%. Furthermore, the evidence was that the predominant goal for the mayor and the council in redistricting the city was to maximize the racial majorities in the council district; and the court cannot overlook the fact that the council had two plans, the Reed and Peak plans, which achieved this goal without violating the principle of one-person one-vote and without violating the annexation agreement requirement that no council member be gerrymandered out of his or her district. But more significantly, the evidence affirmatively reflects that the motivating factor behind the retrogression was the desire to reduce the black population in the district to just above a level that would withstand court challenge. The defendants also strongly advance the argument that a 65% or above black district can “safely” select a black representative. Even if this argument had merit — a factual issue which this court does not address — it would not detract from the conclusion that the dilution of the black vote in district 3 was substantial, was done purposefully, and therefore was impermissible under section 2. That is, even though a redistricting plan may accurately reflect the voting strength of a minority group, it is still invalid if it was adopted for a racially discriminatory purpose. See City of Port Arthur v. United States, - U.S. -, -, 103 S.Ct. 530," }, { "docid": "19650427", "title": "", "text": "like that in the State itself, is racially polarized. And assume that the district has long elected to office black voters' preferred candidate. Other things being equal, it would seem highly unlikely that a redistricting plan that, while increasing the numerical size of the district, reduced the percentage of the black population from, say, 70% to 65% would have a significant impact on the black voters' ability to elect their preferred candidate. And, for that reason, it would be difficult to explain just why a plan that uses racial criteria predominately to maintain the black population at 70% is \"narrowly tailored\" to achieve a \"compelling state interest,\" namely the interest in preventing § 5 retrogression. The circumstances of this hypothetical example, we add, are close to those characterizing Senate District 26, as set forth in the District Court's opinion and throughout the record. See, e.g., 1 Tr. 131-132 (testimony of Dial); 3 Tr. 180 (testimony of Hinaman). In saying this, we do not insist that a legislature guess precisely what percentage reduction a court or the Justice Department might eventually find to be retrogressive. The law cannot insist that a state legislature, when redistricting, determine preciselywhat percent minority population § 5 demands. The standards of § 5 are complex; they often require evaluation of controverted claims about voting behavior; the evidence may be unclear; and, with respect to any particular district, judges may disagree about the proper outcome. The law cannot lay a trap for an unwary legislature, condemning its redistricting plan as either (1) unconstitutional racial gerrymandering should the legislature place a few too many minority voters in a district or (2) retrogressive under § 5 should the legislature place a few too few. See Vera,517 U.S., at 977, 116 S.Ct. 1941(principal opinion). Thus, we agree with the United States that a court's analysis of the narrow tailoring requirement insists only that the legislature have a \"strong basis in evidence\" in support of the (race-based) choice that it has made. Brief for United States as Amicus Curiae29 (citing Ricci v. DeStefano,557 U.S. 557, 585, 129 S.Ct. 2658, 174 L.Ed.2d" }, { "docid": "18394627", "title": "", "text": "even absent the effect of that admittedly improper purpose. We believe that the two-part burden of proof test articulated in Mt. Healthy and Arlington Heights, rather than the “pretext” analysis employed in Burdine, is most appropriate to this task. 2. Evidence of Purposeful Vote Dilution on Chicago’s South and West Sides With respect to the Crosby plaintiffs’ claims, we believe that purposeful dilution of black voting strength, in several significant instances, has been demonstrated in the instant case. First, under the 1980 census as applied to the 1971 Chicago area legislative redistricting lines, blacks constitute a majority in six Senate districts (former districts 21, 22, 24, 26, 28 and 29). Under the 1980 census as applied to the Commission Plan, blacks will constitute a majority in only five Chicago area Senate districts (Commission Senate Districts 9, 12, 13, 16 and 17). This simple statistic is evidence of retrogression from which a strong inference of a purpose to dilute may be drawn. In addition, Dr. Amy Tsui, a sociologist and demographer from the University of Chicago, testified that in her opinion, implementation of the Commission Plan would result in a lessening — or retrogression — of the voting strength in Senate districts presently held by Chicago area blacks under the 1971 redistricting plan. More precise and identifiable indications of a purpose to dilute may be found in the actions of the redistricting Commissioners with respect to Senate Districts 14 and 18 of the Commission Plan. Under the Commission Plan, black voting strength in former Senate District 28 under the 1971 district boundaries has been fractured by the creation of Commission Senate District 14, the district in which white incumbent Senator Jeremiah Joyce resides. Under 1970 census figures, District 28 was 73.8% white and 21.6% black. Under 1980 census figures, the black population of District 28 is now 106,830, making the district approximately 57.7% black and 39% white. To reach the ideal population for a Senate district, after the 1980 census, present District 28 had to be increased by approximately 8,000 persons. The Commission, in the course of adding the necessary 8,000" }, { "docid": "10475883", "title": "", "text": "7. Accordingly, we believe a corrective majority in black voting age population is in order. We adopt the plan proposed by the plaintiffs, which will result in District 48’s having a majority black population of 60.55% among residents of voting age. This will give blacks a fair opportunity to elect the candidate of their choice to the Arkansas House of Representatives, and help to eradicate the effect of the dual-member, at-large system on participation by blacks in the political process. . We are aware that one reason for the 65%-of-total-population-guideline in Ketchum is that the case involved a form of Voting Rights Act violation called retrogression, in which there is a decrease in the absolute number of representatives a minority group may expect to elect, 740 F.2d at 1402, and the appellate court thought it equitable to restore blacks to majority percentages approaching those they had before redistricting took place. We do not think this circumstance renders the reasoning of the case inapplicable, because the Court’s stated objective was to give the plaintiffs an effective majority in the relevant districts. Id. at 1419. . The Seventh Circuit referred to national voter registration and turnout statistics from the 1980 census to illustrate this circumstance. Ket-chum, 740 F.2d at 1413 n. 16. .We think it is reasonable to infer lower registration and participation when, for example, in 1980 fewer than 20% of blacks in Crittenden County over the age of 25 were high school graduates, and almost 60% of blacks in the county lived below the poverty level. The percentages for whites were 61.4% high school graduates and 10.7% below the poverty level. Plaintiffs’ Exhibit 2. See Ketchum, 740 F.2d at 1413-14 (some of the voter problems stem from low income, low economic status, high unemployment, poor education and high mobility)." }, { "docid": "5889433", "title": "", "text": "identified in the manipulation of certain ward boundaries to adjust the relative size of racial groups in the City Council map. For example, before the 1981 redistricting, four wards — the 7th, 15th, 18th and 37th Wards — had populations in excess of the 60,101 required under the redistricting plan. Population therefore had to be moved out of those wards in order to accomplish the redistrieting mandate. Three of the four wards had strong, but not overwhelming, black majorities. The fourth ward (the 18th) had a strong black plurality. In order to accomplish the required redistribution of population, however, blacks were moved out of these wards in much greater numbers than their proportion of the population and in greater numbers than required to accomplish the necessary reduction. Additional people, comprising a mix of blacks and non-minorities, were then moved into these wards to make up the deficit with a resulting sharp reduction in the proportion of blacks in those wards. We have discussed above several examples of the dilution of minority voting strength through manipulation of ward boundaries. Appellants have alleged instances of packing (the “wasting” of black votes through unnecessary concentration, ...), in that fourteen of the seventeen majority black wards have black populations in excess of 89%, while only six majority white wards have majorities at comparable levels. There are also allegations of fracturing of the black communities on both the West and South Sides, so that certain black population, which could have been used to form additional black majority wards, was instead split off to form sizeable black minorities with white majority wards. 740 F.2d at 1407-09 (citations and footnote omitted). Thus, Ketchum involved active redrawing of district lines to dilute the vote of blacks and to preserve white majorities. Garza dealt with an Hispanic challenge to the boundaries of the Los Angeles County Board of Supervisors. The district court made explicit findings with regard to three separate redistrictings that occurred in 1959, 1965, and 1971 for which there was substantial evidence, both direct and circumstantial, that the lines had been redrawn to preserve incumbents’ positions. 918" }, { "docid": "15933493", "title": "", "text": "(Dial’s “first qualification” was “not regressing minority districts”); id. at 42 (Dial believed “our job was to get a plan ... that would meet Justice”); Tr. Vol. Ill at 220-1 (McClendon’s goal was Justice Department approval). Other factors included a newly adopted rule limiting the total population deviation among districts to 2%, preserving of the core of existing districts, avoiding conflicts between incumbents, ensuring compactness, and accommodating incumbent preferences. Under § 5, a covered jurisdiction must seek preclearance of new redistricting plans from either the Attorney General of the United States or the United States District Court for the District of Columbia. Alabama was a covered jurisdiction until the Supreme Court’s decision in Shelby County v. Holder, 133 S.Ct. 2612, decided after this case was filed but before trial. Each of the drafters shared the same very specific (but incorrect) understanding of what compliance with § 5 involved: they believed they would need (1) to maintain the same number of majority-black districts as had existed under the 2001 redistricting scheme; and (2), more importantly for this case, to maintain, to the extent possible in each such district, the same percentage of black residents as that district was determined to have had when the 2010 census data were applied to the 2001 district lines. See Tr. Vol. Ill p. 142 (Hinaman explaining that “[w]hen I was adding population to majority black districts, my goal was not to retrogress the number that they had in 2001, meaning 2010 census, as applied to the 2001 lines”); Tr. Vol. I at 54 (Dial agreeing that his understanding of retrogression “required ... that you maintain the black majority percentage” as measured by the 2001 districts with 2010 census data); Dial Dep., APX 66, at 81 (Dial stating that lowering the black population by even one percentage point would have been retrogression); Tr. Vol. Ill at 221 (McClendon stating that “we tried to look at the 2010 census, overlay it on the districts, and try not to change the percentages of the citizens, the black citizens”). The drafters acknowledged that this might not always be possible;" }, { "docid": "15933568", "title": "", "text": "circumstances” approach to determining whether a change would be retrogressive under § 5. The Court found that the ability of a minority group to elect a candidate of choice was important, but was not the only relevant factor. In addition, the Court held, retrogression analysis must take account of the minority group’s ability to participate in the political process. In particular, the Court found that “influence” districts, in which the minority group cannot elect a candidate of choice but can “play a substantial ... role in the electoral process,” could compensate for a reduction in the number of districts in which minorities could elect candidates of choice. 539 U.S. at 482, 123 S.Ct. 2498. Also, the Court found that representatives of the minority group holding positions of “legislative leadership, influence, and power” was a factor suggesting that a new plan was not retrogressive. Id. at 483, 123 S.Ct. 2498. Because the Court determined that the district court had focused too narrowly on ability to elect, it remanded the case for analysis under the totality of the circumstances test. Id. at 485, 123 S.Ct. 2498. The majority finds that, in rejecting Georgia, Congress commanded that Alabama could not reduce “the percentages of black voters in the majority-black districts because to do so would be to diminish black voters’ ability to elect their preferred candidates.” Ante at 1309. That is, the majority believes that, after the 2006 amendments, any reduction in a minority group’s percentage of the population in a given majority-minority district reduces the ability to elect, and is per-se retrogressive. I will explain why this is incorrect. First, though, I pause to observe just how implausible this reading of the statute is. On the majority’s view, if a district is 99% black, the legislature is prohibited by federal law from reducing the black population to a mere 98%. Read in this way, § 5 would become a one-way ratchet: the black population of a district could go up, either through demographic shifts or redistricting plans (like this one) that raise the percentage of black people in some majority-black districts. But" }, { "docid": "18394657", "title": "", "text": "in resolving the issues presented in this case. We think, however, that it is at least consistent with our findings and with the remedies we have provided. First, the plaintiffs directed the court’s attention to their alternative Coalition Plan. They suggest that the assertedly simple, compact districts of the Coalition Plan provide a more meaningful opportunity for black and Hispanic voters to elect candidates of their choice than the “strange configurations” characteristic of districts in the Commission Plan. Although the existence of alternative patterns of redistricting does not, standing alone, support an inference of discriminatory purpose, the Coalition Plan does demonstrate the feasibility of avoiding retrogression of black voting strength through the creation of additional voting districts in which blacks will have a meaningful opportunity to elect a candidate of their choice. The Coalition Plan is thus of some, albeit limited, probative value in establishing purposeful dilution of black voting strength in at least some of the Commission’s districts. Cf. Cousins v. City Council of Chicago, 466 F.2d 830, 843-44 (7th Cir.), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 181 (1972). Plaintiffs also contend that the drafters’ use of anticipated ward boundaries in the City of Chicago, which are alleged to be discriminatory, tend to establish intentional racial discrimination. Since ward boundaries have not been adjudicated to be discriminatory, we cannot conclude that the relation of legislative lines to ward lines is any more than marginally relevant to racial dilution by the legislative redistricting at this time. Moreover, alleged retrogression in the wards (which we understand to be a plausible basis of challenge to them) does not necessarily infect legislative districts, since legislative district lines only partially correspond to ward lines. Plaintiffs have also cited as evidence of purposeful dilution “[t]he pattern of the racial discrimination in which the Democratic organization has long engaged in Cook County, through the Chicago Police Department, the Chicago Housing Authority, the Chicago Board of Education, the Chicago Public Library, and the Chicago Park District.” Crosby Post Trial Brief at 3. Plaintiffs allege that the heads of each of these governmental bodies" }, { "docid": "5889432", "title": "", "text": "voting practices or procedures with the intent to deny or abridge the right to vote. To support its conclusion that there was intentional discrimination by the defendant in this case, the majority cites Ketchum v. Byrne, 740 F.2d 1398 (7th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985), and Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). Even a brief review of those cases demonstrates how radically different they are from the case at bar. In Ketchum, the court specifically declined to make a finding regarding intentional discrimination. 740 F.2d at 1409. Had the Court made such a determination, however, its conclusion could have been supported by quite substantial evidence. First, there is the retrogression, in the context of a substantial increase in the percentage of blacks in the population, from nineteen majority black wards in 1980 under the 1970 map to seventeen majority black wards under the 1981 City Council map. Second, discrimination may be identified in the manipulation of certain ward boundaries to adjust the relative size of racial groups in the City Council map. For example, before the 1981 redistricting, four wards — the 7th, 15th, 18th and 37th Wards — had populations in excess of the 60,101 required under the redistricting plan. Population therefore had to be moved out of those wards in order to accomplish the redistrieting mandate. Three of the four wards had strong, but not overwhelming, black majorities. The fourth ward (the 18th) had a strong black plurality. In order to accomplish the required redistribution of population, however, blacks were moved out of these wards in much greater numbers than their proportion of the population and in greater numbers than required to accomplish the necessary reduction. Additional people, comprising a mix of blacks and non-minorities, were then moved into these wards to make up the deficit with a resulting sharp reduction in the proportion of blacks in those wards. We have discussed above several examples of the dilution of minority voting strength through manipulation" }, { "docid": "15933434", "title": "", "text": "them had to grow by population. And if they grew in population, they had to grow in the same percentage that they already have and not retrogress that district.” (Trial Tr. vol. 1, 79, Aug. 8, 2013). And it makes sense that the “first qualification” after meeting the guideline of an overall deviation of 2 percent was not to retrogress minority districts when repopulating them. Representative McClendon’s testimony reflects the same understanding. that Senator Dial expressed. Immediately before acknowledging that approval by the Department of Justice was a priority, Representative McClendon explained that the overall deviation of 2 percent “just makes good sense to me.” (Trial Tr. vol. 3, 220, Aug. 12, 2013). Although Hinaman testified that he “was concerned [that percentages of the black population significantly lower than the 2001 plans would be considered] retrogression that would be looked upon unfavorably by the Justice Department under Section 5,” he also testified that “all [the majority-black districts were] underpopulated [in] comparison to ideal [when he began work on them], and [he] had to find population to repopulate them.” (Trial Tr. vol. 3, 145, 122, Aug. 12, 2013). Hinaman explained, “When I was adding population to majority black districts, my goal was not to retrogress the number that they had in 2001, meaning 2010 Census, as applied to the 2001 lines.” (Trial Tr. vol. 3, 142, Aug. 12, 2013). Hinaman’s concern about retrogression arose only in conjunction with the need to remedy the malapportionment of the majority-black districts and satisfy the guideline of an overall deviation in population of 2 percent. The trial testimony of Senator Dial, Representative McClendon, and Hinaman, taken on whole, establishes that the primary reason they added population to majority-black districts was because those districts were severely underpopulated. What population was added to a particular district was then informed by other considerations, including avoiding retrogression and dilution of minority votes. The Committee established the 2 percent guideline as the nonnegotiable baseline for redistricting, and Hinaman satisfied that guideline in every district. And the percentage of black population in many majority-black districts decreased, which supports the inference that" }, { "docid": "5889431", "title": "", "text": "obliged to do whenever the black population is sufficient to enable them to do so — but fails to draw districts which maximize the voting strength of blacks where their numbers are not sufficient to permit the drawing of a district in which they could constitute a majority, the board violates the 15th Amendment. To put it another way, to find that the actions of the board in this case were in violation of the 15th Amendment is to find that taking into account the race of a geographically cohesive group of blacks large enough to constitute a majority in a legislative district is to discriminate against smaller groups of that race, and to do so on the basis of their race. Or, not maximizing the ability of any group of blacks, regardless of size, is to intentionally discriminate against them, on the basis of their race. I cannot accept this notion. The 15th Amendment does not require states to maximize the voting strength of each and every minority voter; it prohibits the imposition of voting practices or procedures with the intent to deny or abridge the right to vote. To support its conclusion that there was intentional discrimination by the defendant in this case, the majority cites Ketchum v. Byrne, 740 F.2d 1398 (7th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985), and Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). Even a brief review of those cases demonstrates how radically different they are from the case at bar. In Ketchum, the court specifically declined to make a finding regarding intentional discrimination. 740 F.2d at 1409. Had the Court made such a determination, however, its conclusion could have been supported by quite substantial evidence. First, there is the retrogression, in the context of a substantial increase in the percentage of blacks in the population, from nineteen majority black wards in 1980 under the 1970 map to seventeen majority black wards under the 1981 City Council map. Second, discrimination may be" }, { "docid": "19537388", "title": "", "text": "tailoring-deferring to a State's belief that it has good reasons to use race-is \"strict\" in name only. To the extent the Court applies Alabama to dilute the well-settled standard established by our precedents, I demur. 2 Applying the proper narrow-tailoring standard for state classifications based on race, I conclude that the State did not narrowly tailor its use of race to comply with § 5. As the majority recognizes, § 5 requires a state redistricting plan to maintain the black population's ability to elect the candidate of its choice in the district at issue-in other words, the State must \"avoid retrogression\" in the new district. Ante, at 801. The majority observes that the redistricting plan's architect, Delegate Chris Jones, performed a \"functional analysis\" in deciding that District 75 required a 55% black voting-age population-as opposed to some other percentage-to avoid retrogression. Ibid. The Court notes that, in arriving at the 55% threshold, Delegate Jones considered turnout rates, the results of the primary and general elections in 2005, and the district's \"large population of disenfranchised black prisoners.\" Ante, at 801 - 802. He also met with the incumbent delegate for District 75 \"probably half a dozen times\" and \"discussed the district with incumbents from other majority-black districts.\" Ante, at 801 (internal quotation marks omitted). Those efforts add up, in the majority's view, to a \"careful assessment of local conditions and structures.\" Ante, at 801. I do not agree that those efforts satisfy narrow tailoring. Delegate Jones admitted that he was \"not aware\" of \"any retrogress[ion] analysis\" performed by \"h[im] or any persons that worked with him in the development of the [redistricting] plan.\" App. 288-289. Instead, he merely \"look[ed] at\" the \"percentage of black population and the percentage of black voting age population,\" \"looked at what happened over the last 10 year period given the existing population and demographic shifts,\" and \"tried to restore back\" the levels of black voting-age population from the previous maps. Id., at 290. That approach was misguided, because § 5 \"does not require maintaining the same population percentages in majority-minority districts as in the prior plan.\"" }, { "docid": "5889434", "title": "", "text": "of ward boundaries. Appellants have alleged instances of packing (the “wasting” of black votes through unnecessary concentration, ...), in that fourteen of the seventeen majority black wards have black populations in excess of 89%, while only six majority white wards have majorities at comparable levels. There are also allegations of fracturing of the black communities on both the West and South Sides, so that certain black population, which could have been used to form additional black majority wards, was instead split off to form sizeable black minorities with white majority wards. 740 F.2d at 1407-09 (citations and footnote omitted). Thus, Ketchum involved active redrawing of district lines to dilute the vote of blacks and to preserve white majorities. Garza dealt with an Hispanic challenge to the boundaries of the Los Angeles County Board of Supervisors. The district court made explicit findings with regard to three separate redistrictings that occurred in 1959, 1965, and 1971 for which there was substantial evidence, both direct and circumstantial, that the lines had been redrawn to preserve incumbents’ positions. 918 F.2d at 766-77 n. 1. The district court also made extensive findings about how the 1981 redistricting occurred, including direct and circumstantial evidence of an intent to prevent Hispanics from constituting too large a group in an incumbent’s district. Id. at 767-68 n. 1. The court of appeals affirmed the finding of intentional discrimination, rejecting the County’s argument that the commissioners were merely preserving their incumbencies, “[T]he [district] court also found that they chose fragmentation of the Hispanic voting population as the avenue by which to achieve this self-preservation. The supervisors intended to create the very discriminatory result that occurred.” Id. at 771 (emphasis supplied). The factual situations in those cases are dramatically different from that in the present ease, in which the district line was not changed at all in 1981 based on the recognition that blacks could not form a majority in the 52nd and/or 53rd Districts. I would also note that the majority contends that the lines were drawn in 1971 with discriminatory intent, (Opinion at 1083), but fails to cite any" }, { "docid": "19650465", "title": "", "text": "effect and provided the template for the State's next redistricting efforts in 2001. See Montiel v. Davis,215 F.Supp.2d 1279, 1282 (S.D.Ala.2002). The 2001 maps maintained the same number of majority-black districts as the Reed-Buskey plan had created: 27 House districts and 8 Senate districts. Ibid. And \"to maintain the same relative percentages of black voters in those districts,\" the legislature \"redrew the districts by shifting more black voters into the majority-black districts.\" App. to Juris. Statement 4. The State's letters requesting preclearance of the 2001 plans boasted that the maps maintained the same number of majority-black districts and the same (or higher) percentages of black voters within those districts, other than \"slight reductions\" that were \"necessary to satisfy other legitimate, nondiscriminatory redistricting considerations.\" Letter from William H. Pryor, Alabama Attorney General, to Voting Section Chief, Civil Rights Division, Department of Justice 6-7 (Aug. 14, 2001) (Senate districts); Letter from William H. Pryor, Alabama Attorney General, to Voting Section Chief, Civil Rights Division, Department of Justice 7, 9 (Sept. 4, 2001) (House districts). Section 5 tied the State to those districts: Under this Court's § 5 precedents, States are prohibited from enacting a redistricting plan that \"would lead to a retrogression in the position of racial minorities.\" Beer v. United States,425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). In other words, the State could not retrogress from the previous plan if it wished to comply with § 5. IV Alabama's quandary as it attempted to redraw its legislative districts after 2010 was exacerbated by the 2006 amendments to § 5. Those amendments created an inflexible definition of \"retrogression\" that Alabama understandably took as requiring it to maintain the same percentages of minority voters in majority-minority districts. The amendments thus provide the last piece of the puzzle that explains why the State sought to maintain the same percentages of blacks in each majority-black district. Congress passed the 2006 amendments in response to our attempt to define \"retrogression\" in Georgia v. Ashcroft,539 U.S. 461, 123 S.Ct. 2498, 156 L.Ed.2d 428. Prior to that decision, practically any reapportionment change could \"be" }, { "docid": "4517977", "title": "", "text": "require the State of Georgia to increase the number of majority black districts in its redistricting plans, which were already ameliorative plans, beyond any reasonable concept of non-retrogression.” Id., at 1539-1540. The court noted that in Miller v. Johnson, we specifically disapproved of the Department of Justice’s policy that the maximization of black districts was a part of the § 5 retrogression analysis. See 929 F. Supp., at 1539. Indeed, in Miller, we found that the Department of Justice’s objections to Georgia’s redistrieting plans were “driven by its policy of maximizing majority-black districts.” 515 U. S., at 924. And “[i]n utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld.” Id., at 925. The District Court stated that the maximization of majority-minority districts in Georgia “artificially push[ed] the percentage of black voters within some majority black districts as high as possible.” 929 F. Supp., at 1536. The plan that eventually received the Department of Justice’s preclearance in 1992 “represented the General Assembly’s surrender to the black maximization policy of the DOJ.” Id., at 1540. The court then found that the 1995 plan was an unconstitutional racial gerrymander. See id., at 1543. Under court direction, Georgia and the Department of Justice reached a mediated agreement on the constitutionality of the 1995 Senate plan. Georgia passed a new plan in 1997, and the Department of Justice quickly precleared it. The redrawn map resembled to a large degree the 1992 plan that eventually received preclearance from the Department of Justice, with some changes to accommodate the decision of this Court in Miller v. Johnson, and of the District Court in Johnson v. Miller. All parties here concede that the 1997 plan is the benchmark plan for this litigation because it was in effect at the time of the 2001 redistricting effort. The 1997 plan drew 56 districts, 11 of them with a total black population of over 50%, and 10 of them with a black voting age population of over 50%. See Record," }, { "docid": "16757273", "title": "", "text": "changes to a voting “qualification, prerequisite, standard, practice, or procedure.” The Board has 12 members who are elected from single-member districts by majority vote to serve 4-year terms. When the 1990 census revealed wide population disparities among its districts, see App. to Juris. Statement 93a (Stipulations of Fact and Law ¶ 82), the Board decided to redraw the districts to equalize the population distribution. During this process, the Board considered two redistricting plans. It considered, and initially rejected, the redistricting plan that had been recently adopted by the Bossier Parish Police Jury, the parish’s primary governing body (the Jury plan), to govern its own elections. Just months before, the Attorney General had precleared the Jury plan, which also contained 12 districts. Id., at 88a (Stipulations ¶ 68). None of the 12 districts in the Board’s existing plan or in the Jury plan contained a majority of black residents. Id., at 93a (Stipulations ¶82) (under 1990 population statistics in the Board’s existing districts, the three districts with highest black concentrations contain' 46.63%, 43.79%, and 30.13% black residents, respectively); id., at 85a (Stipulations ¶ 59) (population statistics for the Jury plan, with none of the plan’s 12 districts containing a black majority). Because the Board’s adoption of the Jury plan would have maintained the status quo regarding the number of black-majority districts, the parties stipulated that the Jury plan was not “retrogressive.” Id., at 141a (Stipulations ¶ 252) (“The . . . plan is not retrogressive to minority voting strength compared to the existing benchmark plan . . .”). Appellant George Price, president of the local chapter of the National Association for the Advancement of Colored People (NAACP), presented the Board with a second option — a plan that created two districts each containing not only a majority of black residents, but a majority of voting-age black residents. Id., at 98a (Stipulations ¶ 98). Over vocal opposition from local residents, black and white alike, the Board voted to adopt the Jury plan as its own, reasoning that the Jury plan would almost certainly be precleared again and that the NAACP plan would" } ]
230401
any sweeping pronouncement upon the existence or exercise of such jurisdiction (emphasis added) (footnote omitted). Aldinger appears to have reserved for another day the decision as to whether pendent party jurisdiction exists where the plaintiff alleges jurisdiction pursuant to the Federal Tort Claims Act and asserts pendent party jurisdiction over others on the basis of the same tortious allegations. This case presents that very situation; i. e., a Federal Tort Claims action where jurisdiction is exclusively in the federal court and the federal court is the only court in which all the claims may be tried together. Several post-Aldinger cases have confronted the question of pendent party jurisdiction in connection with claims brought under the Federal Tort Claims Act. In REDACTED cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), the Ninth Circuit held that there was no constitutional basis for asserting pendent party jurisdiction in a Federal Tort Claims action. It would appear that the Eighth Circuit has likewise declined pendent party jurisdiction in this situation. Kack v. United States, 570 F.2d 754 (8th Cir. 1978). On the other hand, in Dick Meyers Towing Service Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978) (per curiam), the Fifth Circuit held that pendent party jurisdiction exists in Federal Tort Claims situations. Several United States district courts outside the Fifth, Eighth, and Ninth Circuits have asserted pendent
[ { "docid": "23538124", "title": "", "text": "This circuit has held that in order for a claim against other parties to be joined properly with a claim against the United States under the Federal Tort Claims Act, an independent ground of jurisdiction must exist, and that the theory of pendent jurisdiction is not sufficient. Williams v. United States, 405 F.2d 951, 954 (9th Cir. 1969). Perhaps our broadest rejection of pendent party jurisdiction is found in Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969), decided a month after Williams and without citation to it. While recognizing that [pjendent jurisdiction was devised to avoid the waste and inefficiency resulting from fragmenting a single action and dividing the pieces into separate proceedings before the state and federal courts and to encourage a party who had a claim presenting a substantial federal question, mixed with a nonfederal claim, to take his bundle of claims to the federal court[,] id. at 137 (footnote omitted), we nevertheless held that [jjoinder of elaims, not joinder of parties, is the object of the doctrine. It was not designed to permit a party without a federally cognizable claim to invoke federal jurisdiction by joining a different party plaintiff asserting an independent federal claim growing out of the same operative facts. Id. In two cases subsequent to Williams and Hymer, we again rejected pendent party jurisdictional theory, and each time our decision was affirmed by the Supreme Court on an alternative ground. Aldinger v. Howard, 513 F.2d 1257 (9th Cir. 1975), aff’d, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Moor v. Madigan, 458 F.2d 1217 (9th Cir. 1972) (expressly reaffirming the broad rule of Hymer), aff’d sub nom. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Appellants argue, however, that the Supreme Court’s mode of analysis in affirming Aldinger encourages re-examination of Williams and Hymer. The Court briefly stated its approach: In short, as against a plaintiff’s claim of additional power over a “pendent party,” the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action" } ]
[ { "docid": "258748", "title": "", "text": "Cir. 1977). Such an interpretation has been squarely rejected by the Ninth Circuit in Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977); cert, granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70, cert, dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). The Court’s research discloses three relevant Eighth Circuit Cases. Rack v. United States, 570 F.2d 754, 757, n.4 (8th Cir. 1978); Schulman v. Huck Finn, Inc., 472 F.2d 864, 866-67 (8th Cir. 1973); Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 816-17 (8th Cir. 1969). Rack was an action under the Federal Tort Claims Act in which plaintiff sought to bring an action against defendants other than the government. In a footnote, the court cited C. Wright, Law of Federal Courts, § 19 -at 65 (2d Ed.1970) for the .proposition that pendent jurisdiction applies only to claims, not to parties. The later edition of that text, C. Wright, Law of Federal Courts, § 19 at 76-77 (3d Ed.1976) recognizes that pendent jurisdiction is being applied to parties as well as claims, especial ly in light of Aldinger and Moor, supra. Kack, supra, does not cite Schulman and Hatridge, both of which permitted pendent party jurisdiction. Hatridge is not directly applicable, since it was a diversity case. The Aetna Casualty and Surety Company sought to remove an action to federal court when the primary claim was for less than $10,000. The court held that the consortium claim of plaintiff’s husband would be joined with plaintiffs’ claim in order to meet the jurisdictional amount, because the consortium was derivative to the main claim and thus could be expected to be disposed of in the same lawsuit. In addition, the court spoke favorably of the early cases extending pendent jurisdiction to parties and disapproved the narrow view of the Ninth Circuit. Schulman is more directly on point, since it involved a patent infringement case under federal law. A related state law claim for unfair competition was also stated. The district court dismissed the infringement claim against two of the defendants, but retained jurisdiction over" }, { "docid": "5710951", "title": "", "text": "Aldinger, supra, several courts have not permitted pendent party jurisdiction, see, e. g., Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1978); Texas Acorn v. Texas Area 5 Health Systems Agency, Inc., 559 F.2d 1019, 1023 (5th Cir. 1977), reh. denied, 565 F.2d 908 (5th Cir. 1978), while other courts have permitted the joinder of pendent parties, see, e. g., Transok Pipeline Co. v. Darks, 565 F.2d 1150 (10th Cir. 1977); Glover v. New York City, 446 F.Supp. 110 (E.D.N.Y.1978). Rieser v. District of Columbia, 183 U.S.App. D.C. 375, 563 F.2d 462 (1977), in a well-reasoned opinion, permitted pendent jurisdiction. That opinion was subsequently vacated and rehearing en banc granted on November 7, 1977. . The Aldinger Court stated: [W]e decide here only the issue of so-called “pendent party” jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is “subtle and complex,” and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Id. 427 U.S. at 18, 96 S.Ct. at 2422." }, { "docid": "18878244", "title": "", "text": "an individual. We therefore found jurisdiction only with regard to Anchor and Local 445 on plaintiff’s federal claims. Because this Court has no jurisdiction over the individual employees named in plaintiff’s federal cause of action, and because jurisdiction over suits for breach of contract under LMRA § 301 is shared concurrently with the states, Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Di Mola v. Local Union 808, International Brotherhood of Teamsters, 95 Misc.2d 910, 408 N.Y.S.2d 731 (N.Y. Civ.Ct.1978), there is some question whether we can assert jurisdiction over these individuals on a pendent state cause of action under a theory of “pendent-party” jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Cammarata v. Ice Cream Drivers and Employees Union, 441 F.Supp. 696, 699 (E.D.N.Y. 1977), aff’d 591 F.2d 1329 (2d Cir.1978). In Aldinger, the Court refused to recognize jurisdiction over a county on a pendent state claim where no independent basis of federal jurisdiction existed and where the main federal claim was brought pursuant to 42 U.S.C. § 1983, which was construed at that time to bar suits against state and local governmental units. The Court in Aldinger was quite explicit, however, in countenancing against “sweeping pronouncement[s]” as to the power of the federal courts to entertain pendent state claims against parties over whom there is no independent basis of federal jurisdiction, noting that “other statutory grants [of jurisdiction] and other alignments of parties and claims might call for a different result.” Aldinger, supra, 427 U.S. at 18, 96 S.Ct. at 2422. This case seems particularly appropriate for the assertion of pendent party jurisdiction for, as we note above, we have purposely retained jurisdiction over the pendent state claims to decide the extent to which they are pre-empted by federal labor law and the jurisdictional reach of the NLRB. It would be somewhat anomalous to hold, on the one hand, that the question of NLRB pre-emption of state tort claims implicates such important federal interests as to retain jurisdiction under Gibbs, while at the same" }, { "docid": "4926949", "title": "", "text": "that rejection upon statutory construction. . Other circuits have accepted pendent party jurisdiction in cases arising under the Federal Torts Claims Act. See, e.g., Ortiz v. United States, 595 F.2d 65 (1st Cir. 1979) (permitting plaintiff to amend complaint to assert non-federal tort claim against third party defendant; Owen Equipment & Erection Co. v. Kroger, supra, distinguished). To the contrary, the Ninth Circuit has rejected the doctrine. See Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). . To the extent that the Second Circuit has dealt with the question of pendent party jurisdiction following Aldinger v. Howard, it has noted the uncertainty in this area without resolving the question. See Grimes v. Chrysler Motors Corp., 565 F.2d 841, 844 (2d Cir. 1977) [“A recent Supreme Court decision, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1975), has cast doubt on whether pendent jurisdiction ‘encompasses .. . impleading of additional parties’ ... Id. at 6, 96 S.Ct. at 2416 ... While the Court’s negative answer in Aldinger was specifically limited to cases in which federal jurisdiction was based solely on a civil rights claim ... the decision makes it difficult to determine in which situations joinder of pendent parties should be permitted. This question need not be further explored here; jurisdiction over the distribution of the settlement funds can be sustained as ancillary to jurisdiction over the claim itself.” (footnote omitted) ]; Morrissey v. Curran, 567 F.2d 546, 549 n.11 (2d Cir. 1977) [“Thus, the district court will be required to determine not only whether to exercise pendent jurisdiction over the state claims, but also whether that jurisdiction extends to persons not parties to the claim conferring federal jurisdiction. This problem has provoked considerable attention, and the implications of the latest Supreme Court decision on the subject, Aldinger v. Howard . . . remain to be determined.... The point has not been briefed or argued before us, and we express no opinion on it.” Suit brought pursuant to ERISA.]" }, { "docid": "15363034", "title": "", "text": "court was required to dismiss them. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3567 at 444 (1975). . McMann was doing business as Newman Construction Co., a name shared by an inactive New Mexico corporation. There is dispute in the record as to whether or not McMann was authorized to use that corporate name in light of his failure to legally activate it. We need not reach this issue since we affirm on jurisdictional grounds only. . McMann also asserted jurisdiction Under 28 U.S.C. § 1346(a)(2) (1976) of the Tucker Act. On appeal, McMann concedes the District Court lacked jurisdiction under this section to consider any of his claims. . Contrary to appellant’s assertion, our decision in Kennedy provides no authority for bringing a Miller Act claim under the Federal Tort Claims Act. The action against the government in that case was authorized by independent jurisdictional statutes, 28 U.S.C. § 1339 and 39 U.S.C. § 409(a). 508 F.2d at 955. The trial court in Kennedy expressly ruled that the Federal Tort Claims Act was not applicable. 367 F.Supp. at 833. . Appellant’s theory of jurisdiction against the private parties would appear to be based on the “pendent parties” concept. C. Wright, Handbook of the Law of Federal Courts 76 (3d ed. 1976). Although historically not considered within the ambit of the pendent jurisdiction doctrine, the concept has found acceptance with many lower federal courts and the commentators. Id. at 75-76. But see Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). Since the exercise of jurisdiction over pendent parties is more questionable than the exercise of traditionally recognized pendent jurisdiction, Aldinger v. Howard, 427 U.S. at 18, 96 S.Ct. 2413, the standards in Gibbs, a case involving the latter, would apply a fortiori to “pendent parties”- jurisdiction, even assuming that “pendent parties” jurisdiction" }, { "docid": "4109236", "title": "", "text": "independent basis for federal subject matter jurisdiction (such as diversity of citizenship). Plaintiff argues that this court has pendent party jurisdiction over the lawyer defendants. However, the leading Ninth Circuit cases all hold that federal courts do not have jurisdiction over pendent parties. See Libby, McNeil & Libby v. City Nat’l Bank, 592 F.2d 504, 510 & n.7 (9th Cir. 1978); Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977); Hymer v. Chai, 407 F.2d 136, 137-38 (9th Cir. 1969). But cf. Mattschei v. United States, 600 F.2d 205, 207 n.2 (9th Cir. 1979) (district court’s dismissal of plaintiffs’ pendent claim against non-federal joint tortfeasor in action under Federal Tort Claims Act was “open to some question”). This “strong circuit policy against pendent party jurisdiction,” Libby, 592 F.2d at 510 n.7, has been reiterated since the United States Supreme Court decided Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), and despite contrary decisions in other circuits. See Ayala, 550 F.2d at 1199-1200 & n.8. However, the Ninth Circuit has never held that pendent party jurisdiction does not exist under the particular “anchor” statute involved in this case, i. e., section 301. Under Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), and Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), therefore, it is necessary to determine on the facts of this case (1) whether under Article III of the Constitution the federal courts have the judicial power to decide the controversy between the plain tiff and the lawyer defendants ; (2) whether Congress intended the “anchor” statute, section 301, to confer federal jurisdiction over pendent parties ; and (3) whether, in the procedural setting of the instant case, complete relief can be afforded by the state courts. The only decision revealed by this court’s research that has applied the Aldinger analysis to section 301 concluded that pendent party jurisdiction under that statute is inappropriate. King v. Great Atl. & Pac. Tea Co., No. 77 C 1856 (N.D.Ill., memorandum filed May 15," }, { "docid": "17328604", "title": "", "text": "direct interest in this case), our power to hear the claim against FCIA would stem solely from pendent-party jurisdiction, because we can find no independent jurisdictional basis to justify hearing this claim. It is beyond peradventure that a federal court has the power to hear a state law claim when it is so integrally related to a federal claim that the two ought to be brought together in one suit. See UMW v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). However, Gibbs and its progeny merely allow a court to entertain additional pendent claims against a defendant who is already party to the suit; the caselaw is substantially less clear about the power of a federal court to entertain pendent state law suits against additional parties who have no independent basis for their presence in federal court. In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the Supreme Court ruled that a federal court could not exercise jurisdiction over a state law claim against a county when the only other basis for federal jurisdiction was a civil rights suit against a county official under 42 U.S.C. § 1983. At the very least, the Aldinger case plainly stands for the proposition that the doctrine of pendent-party jurisdiction should be applied with selective care. See, e.g., id. at 17, 96 S.Ct. at 2421 (“Resolution of a claim of pendent-party jurisdiction ... calls for careful attention to the relevant statutory language.”); 13B Wright, Miller & Cooper, supra, § 3567.2, at 156 & cases cited at n. 30; cf. Ayala v. United States, 550 F.2d 1196 (9th Cir.1977) (construing Aldinger as not inconsistent with Ninth Circuit precedent holding that pendent-party jurisdiction violates Article III), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). Moreover, Aldinger plainly imposes the sensible requirement that, to the extent pendent-party jurisdiction exists at all, a court should not exercise that jurisdiction when to do so would constitute an end-run around a congressional intent to limit access to federal court. See, e.g., 427 U.S. at 18," }, { "docid": "18873375", "title": "", "text": "Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence. Aldinger v. Howard, supra, at 18, 96 S.Ct. at 2422. Thus, it is clear that beyond mak ing the constitutionally minimum finding that the federal and nonfederal claims asserted meet the Gibbs test of “arising out of a common nucleus of operative fact,” the Court must also examine the posture in which the nonfederal claim is asserted and the specific underlying jurisdictional statute, to determine whether the exercise of jurisdiction over that nonfederal claim has been congressionally negated, either expressly or by implication. See also Fawvor v. Texaco, Inc., 546 F.2d 636 (5th Cir. 1977); Aldamuy v. Pirro, 436 F.Supp. 1005 (N.D.N.Y.1977); Long Prarie Packing Co. v. Midwest Emery Freight System, 429 F.Supp. 201 (D.Mass.1977); Rack v. United States, 570 F.2d 754, 757, n. 4 (8th Cir. 1978). But see Pearce v. United States, 450 F.Supp. 613 (D.Kansas 1978) (in action against United States under Federal Tort Claims Act, court exercised pendent party jurisdiction over private hospital as to which no independent basis of jurisdiction existed). The most recent United States Supreme Court discussion of pendent party jurisdiction came in the case of Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), where the Court held that pendent party jurisdiction did not extend to authorize hearing a plaintiff’s state law tort claims against a nondiverse third-party defendant. Following the Aldinger rationale, the Court focused upon 28 U.S.C. § 1332(a)(1), the general diversity jurisdiction statute, and reaffirmed the long-standing requirement of complete diversity as a prerequisite to asserting a claim. Over the years Congress has repeatedly re-enacted or amended the statute conferring diversity jurisdiction, leaving intact this rule of complete diversity. Whatever may have been the original purposes of diversity of citizenship jurisdiction, this subsequent history clearly demonstrates a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same State as any defendant, [citation omitted] [T]hus it is clear that the [plaintiff] could not originally have brought suit in" }, { "docid": "770177", "title": "", "text": "was not constitutional. Rather, the Court emphasized its concern that “the extension of Gibbs to this kind of ‘pendent party’ jurisdiction . . . presents rather different statutory jurisdictional considerations.” 427 U.S. at 15, 96 S.Ct. at 2421 (emphasis added). Thus, the Court held that even assuming satisfaction of Gibbs' “constitutional minimum” standards, when pendent party jurisdiction is asserted “a federal court must satisfy itself . . . that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” 427 U.S. at 18, 96 S.Ct. at 2422. Finally, the Aldinger Court expressly declined “to lay down any sweeping pronouncement upon the existence or exercise of [pendent party] jurisdiction.” 427 U.S. at 18, 96 S.Ct. at 2422. Rather, the Court specifically emphasized that “[o]ther statutory grants and other alignments of parties and claims might call for a different result.” Id. Notwithstanding Aldinger’s apparent adherence to the Gibbs’ Article III standards, and its implicit command that pendent party jurisdictional questions be considered on a statute-by-statute, case-by-case basis, the Ninth Circuit subsequently reaffirmed its per se rejection of pendent party theory in Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). In Ayala, the court read Aldinger, “grounded as it was on a congressional disinclination,” as merely “another avoidance of the ultimate question of constitutional power.” 550 F.2d at 1200. Stressing Hymer v. Chai's admonishment that “joinder of claims, not joinder of parties, is the object of the doctrine,” the court held without explanation that “Hymer's rejection of pendent party theory is not based on a ferreted congressional disinclination but rather rested on a more fundamental constitutional consideration” under Article III. 550 F.2d at 1199-1200. The precise nature of this constitutional consideration, however, remains unclear. Notwithstanding its enduring concern with Article Ill’s limited jurisdictional grant, the Ninth Circuit has yet to articulate its constitutional objections to pendent party theory. Nor has either that court nor the Supreme Court identified a precedential or doctrinal basis upon which to distinguish pendent claim from pendent party claim jurisdiction" }, { "docid": "770172", "title": "", "text": "now properly before the court or, given the existence of an independent basis of jurisdiction over Rain Brook, whether plaintiff’s state law claim may properly be viewed as a “pendent claim” and therefore within reach of this court’s pendent jurisdiction. Stated differently: Does Ninth Circuit law permit a plaintiff to assert a state law claim against a party who, although not the party against whom plaintiff’s anchoring federal claim is raised, is subject to federal jurisdiction under an independent, statutory jurisdictional predicate as a third party defendant? The question is complex and, indeed, appears to be a question for which Ninth Circuit precedent provides no answer. In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the Supreme Court identified two prerequisites of pendent party jurisdictional power: Before it can be concluded that [pendent party] jurisdiction exists, a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence. 427 U.S. at 18, 96 S.Ct. at 2422. Standing virtually alone among federal courts in its rejection of pendent party theory, the Ninth Circuit condemns pendent party jurisdiction not upon “ferreted congressional disinclination,” but rather upon “a more fundamental constitutional grant of Article III. Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). My discussion of the Ninth Circuit’s position must begin with the Supreme Court’s seminal decision in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), which is the source of modern pendent jurisdictional theory. In Gibbs, the plaintiff raised parallel federal and state claims against the same defendant. In affirming the district court’s exercise of pendent jurisdiction over the state law claim, the Supreme Court eschewed the “unnecessarily grudging” approach of earlier precedent in resolving the question of the reach of pendent jurisdiction under Article III. Gibbs’ crucial holding reads as follows: Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim" }, { "docid": "17314107", "title": "", "text": "the restrictions on federal diversity jurisdiction imposed by the complete diversity rule are not rules of personal jurisdiction, and do not exist for the protection of individual litigants. They are premised, rather, on a desire to reduce the number of state law cases that are brought in federal court, thereby minimizing the potential federal infringement of state sovereignty that exists whenever federal courts must interpret questions of state law. See Note, The Concept of Law-tied Pendent Jurisdiction: Gibbs and Aldinger Reconsidered, 87 Yale L.J. 627, 636-639 & nn. 64-72. In federal tort claims act cases, however, Congress mandates that state law questions be decided by federal courts, and apparently encourages the joinder of private defendants. See Pearce, 450 F.Supp. at 618-19. The infringement of state sovereignty, if any, is not heightened by allowing the joinder of identical claims against additional parties. Defendants’ implicit argument is that Congress is so enthralled by the obscure, abstract notions of federalism that underly the complete diversity rule that it has lost sight of practical realities, common sense, and simple fairness. This Court is not inclined to malign the Congress of the United States by accepting that argument. IT IS ACCORDINGLY ORDERED that defendants’ motion to dismiss for want of subject matter jurisdiction be denied. . Defendants make much of the fact that the Court of Appeals for the Ninth Circuit, in rejecting the very exercise of jurisdiction at issue here, has declared that “our difficulty with pendent party jurisdiction is a constitutional one under Article III,” Ayala v. United States, 550 F.2d 1196, 1201 n. 8 (9th Cir. 1977), cert. dismissed per stipulation 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), and also stated that the same “fundamental constitutional consideration” had underlain its previous rejection of pendent party jurisdiction in Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969). Unfortunately, the Ninth Circuit Court of Appeals has not gone beyond its conclusory statements in Ayala and Hymer to elucidate the basis of its purported constitutional objections to pendent party jurisdiction, see Currie, Pendent Parties, 45 U.Chi.L.Rev. 753, 754-55 (1978); a careful examination" }, { "docid": "4926948", "title": "", "text": "otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence. 427 U.S. at 18, 96 S.Ct. at 2422 (footnote omitted). . For example, the Court in Owen Equipment & Erection Co. v. Kroger, supra, wrote: The Aldinger and Zahn cases thus make dear that a finding that federal and nonfederal claims arise from a “common nucleus of operative fact,” the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum . .. 437 U.S. at 373, 98 S.Ct. at 2402. . I note that the Supreme Court decisions discussed above that rejected pendent party jurisdiction based that rejection upon statutory construction. . Other circuits have accepted pendent party jurisdiction in cases arising under the Federal Torts Claims Act. See, e.g., Ortiz v. United States, 595 F.2d 65 (1st Cir. 1979) (permitting plaintiff to amend complaint to assert non-federal tort claim against third party defendant; Owen Equipment & Erection Co. v. Kroger, supra, distinguished). To the contrary, the Ninth Circuit has rejected the doctrine. See Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). . To the extent that the Second Circuit has dealt with the question of pendent party jurisdiction following Aldinger v. Howard, it has noted the uncertainty in this area without resolving the question. See Grimes v. Chrysler Motors Corp., 565 F.2d 841, 844 (2d Cir. 1977) [“A recent Supreme Court decision, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1975), has cast doubt on whether pendent jurisdiction ‘encompasses .. . impleading of additional parties’ ... Id. at 6, 96 S.Ct. at" }, { "docid": "5514715", "title": "", "text": "including them in the proceedings. Because plaintiffs allege basically identical claims against the state and federal defendants, and because the state defendants appear here only as agents of SSA, the concerns expressed in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), which involved separate state-law claims brought against the defendant that plaintiff sought to add as a pendent party, do not seem to apply here and thus do not bar an assertion of jurisdiction. I also note that Aldinger purported to decide only the issue of so-called “pendent party” jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is “subtle and complex,” and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Id. at 18, 96 S.Ct. at 2422 (footnote omitted). Jurisdiction over the claims against the federal defendants, at least, would seem to be allowable only under 42 U.S.C. § 405(g) or 28 U.S.C. § 1361; thus, unlike those in Aldinger, the claims are exclusively within the province of the federal courts. Pendent-party jurisdiction therefore is more appropriate here than it was in that case. Cf. Stewart v. United States, 716 F.2d 755, 757-759 (10th Cir.1982) (allowing pendent-party jurisdiction in Federal Tort Claims Act suit over driver of Government vehicle who was employed by private operator of Government-owned nuclear-weapons facility)." }, { "docid": "5407438", "title": "", "text": "at 2422. The Court noted, however, that the exercise of pendent jurisdiction may not offend Article III when the statutory grant of subject matter jurisdiction does not explicitly or implicitly negate it. Id; accord, Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978) (no pendent party jurisdiction under diversity statute for nondiverse parties). There is dictum in Aldinger suggesting that a court may properly consider whether the statute grants exclusive federal jurisdiction in deciding whether jurisdiction is proper. 427 U.S. at 18, 96 S.Ct. at 2422. Some courts, including the Tenth Circuit, have allowed pendent jurisdiction in cases where the statute confers exclusive jurisdiction over the federal claim, reasoning that only in federal court may all of the claims be tried together. See, e.g., Stewart v. United States, 716 F.2d 755, 757-59 (10th Cir.1982); Transok Pipeline Co. v. Darks, 565 F.2d at 1154; North Dakota v. Merchants Nat’l Bank and Trust Co., 634 F.2d 368, 374 (8th Cir.1980); Ortiz v. United States, 595 F.2d 65, 72 (1st Cir.1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023, 1024 (5th Cir.1978) ; Pearce v. United States, 450 F.Supp. 613, 618 (D.Kan.1978). The Tenth Circuit applied Aldinger and Owen strictly against the exercise of jurisdiction in National Ins. Underwriters v. Piper Aircraft, 595 F.2d 546 (10th Cir.1979) . Jurisdiction was denied in that diversity case because the claims against the proposed pendent parties did not satisfy the $10,000 jurisdictional prerequisite of 28 U.S.C. § 1332(a). “Since Congress in 28 U.S.C. § 1332(a) negated jurisdiction as to parties against whom plaintiff had a claim insufficient in amount, this court must hold that the district court did not have the power to exercise pendent party jurisdiction over defendants Aetna or Mr. Phelps.” 595 F.2d at 551. The Third Circuit has incorporated the Aldinger analysis in its test for determining when a court may exercise pendent jurisdiction. See Ambromovage v. United Mine Workers of America, 726 F.2d 972, 989-90 (3rd Cir.1984). The principles established in Gibbs and Aldinger indicate that a federal court" }, { "docid": "17328605", "title": "", "text": "a county when the only other basis for federal jurisdiction was a civil rights suit against a county official under 42 U.S.C. § 1983. At the very least, the Aldinger case plainly stands for the proposition that the doctrine of pendent-party jurisdiction should be applied with selective care. See, e.g., id. at 17, 96 S.Ct. at 2421 (“Resolution of a claim of pendent-party jurisdiction ... calls for careful attention to the relevant statutory language.”); 13B Wright, Miller & Cooper, supra, § 3567.2, at 156 & cases cited at n. 30; cf. Ayala v. United States, 550 F.2d 1196 (9th Cir.1977) (construing Aldinger as not inconsistent with Ninth Circuit precedent holding that pendent-party jurisdiction violates Article III), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). Moreover, Aldinger plainly imposes the sensible requirement that, to the extent pendent-party jurisdiction exists at all, a court should not exercise that jurisdiction when to do so would constitute an end-run around a congressional intent to limit access to federal court. See, e.g., 427 U.S. at 18, 96 S.Ct. at 2422 (“a federal court must satisfy itself not only that Art. Ill permits [pendent-party jurisdiction], but that Congress in the statutes conferring jurisdiction [on the anchoring claim] has not expressly or by implication negated its existence”); United States ex rel. Hoover v. Franzen, 669 F.2d 433, 438-45 (7th Cir.1982) (court must look to underlying jurisdictional grant to determine whether to exercise pendent party jurisdiction); accord Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978). Although we have never ruled directly on the availability of pendent-party jurisdiction in this circuit after Aldinger, several cases have suggested strongly that such power may not exist at all here. See, e.g., Wilkes-Barre Publishing Co. v. Newspaper Guild, 647 F.2d 372, 376 (3d Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982) (“the pendent state law claim against [defendants who were not party to the disputed collective bargaining agreement] can be entertained only if the complaint alleges some other nonfrivo-lous independent basis for" }, { "docid": "258747", "title": "", "text": "When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. Aldinger, supra, at 18, 96 S.Ct. at 2422 (Footnote omitted). The lower federal courts are split on the question of “pendent parties.” The majority of Courts of Appeal have held that where federal jurisdiction over the federal claim is exclusive, as under the Federal Tort Claims Act, the argument that the federal court is the only court that can handle all the claims should lead to jurisdiction over additional parties, in line with the Aldinger quote above. Ortiz v. United States, 595 F.2d 65 (1st Cir. 1979); Dick Meyers Towing Service Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978); Morrissey v. Curran, 567 F.2d 546 (2nd Cir. 1977); Transok Pipeline v. Darks, 565 F.2d 1150 (10th Cir. 1977). Such an interpretation has been squarely rejected by the Ninth Circuit in Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977); cert, granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70, cert, dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). The Court’s research discloses three relevant Eighth Circuit Cases. Rack v. United States, 570 F.2d 754, 757, n.4 (8th Cir. 1978); Schulman v. Huck Finn, Inc., 472 F.2d 864, 866-67 (8th Cir. 1973); Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 816-17 (8th Cir. 1969). Rack was an action under the Federal Tort Claims Act in which plaintiff sought to bring an action against defendants other than the government. In a footnote, the court cited C. Wright, Law of Federal Courts, § 19 -at 65 (2d Ed.1970) for the .proposition that pendent jurisdiction applies only to claims, not to parties. The later edition of that text, C. Wright, Law of Federal Courts, § 19 at 76-77 (3d Ed.1976) recognizes that pendent jurisdiction is being applied to" }, { "docid": "770178", "title": "", "text": "its per se rejection of pendent party theory in Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). In Ayala, the court read Aldinger, “grounded as it was on a congressional disinclination,” as merely “another avoidance of the ultimate question of constitutional power.” 550 F.2d at 1200. Stressing Hymer v. Chai's admonishment that “joinder of claims, not joinder of parties, is the object of the doctrine,” the court held without explanation that “Hymer's rejection of pendent party theory is not based on a ferreted congressional disinclination but rather rested on a more fundamental constitutional consideration” under Article III. 550 F.2d at 1199-1200. The precise nature of this constitutional consideration, however, remains unclear. Notwithstanding its enduring concern with Article Ill’s limited jurisdictional grant, the Ninth Circuit has yet to articulate its constitutional objections to pendent party theory. Nor has either that court nor the Supreme Court identified a precedential or doctrinal basis upon which to distinguish pendent claim from pendent party claim jurisdiction on constitutional grounds. In the absence of such analysis, Ayala and its predecessors provide little guidance in determining whether Article III considerations preclude the exercise of pendent jurisdiction in the circumstances of this ease, since these cases, in a significant aspect, are factually distinguishable from the case at bar. The facts of Ayala are exemplary. In that case, numerous plaintiffs brought separate actions against the United States under the Federal Tort Claims Act. Several of these plaintiffs sought to name Pullman, Inc. as an additional party defendant. Some based jurisdiction over Pullman on diversity of citizenship. The others, unable to meet the requirements of the federal diversity statute, attempted to join Pullman to their own federal question action as a pendent party defendant, or, alternatively, to intervene as pendent party plaintiffs in those actions brought against Pullman by plaintiffs able to satisfy federal diversity requirements. 550 F.2d at 1198. Under either theory, the exercise of federal jurisdiction over Pullman meant the joinder of a completely new party not otherwise connected with any claim over which" }, { "docid": "258746", "title": "", "text": "claim arising under the Constitution or laws of the United States could join to the federal claim a state law claim he might have, where the two claims were so closely related that they would ordinarily be disposed of in one lawsuit. See Aldinger v. Howard, supra at 6-9, 96 S.Ct. at 2416-2418. In Moor, supra, the Supreme Court indicated that there might be cases in which it would be appropriate to join new parties as well as new claims where the plaintiff has asserted a federal claim. The question has not been specifically decided by the United States Supreme Court, since the Court in Aldinger v. Howard, supra, refused to exercise jurisdiction because of statutory provisions not applicable here. The Supreme Court has thus left open the question of jurisdiction over additional defendants, the claims against whom are derived from state law. The dicta of Aldinger are somewhat favorable to such jurisdiction in a Federal Tort Claim case: Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. Aldinger, supra, at 18, 96 S.Ct. at 2422 (Footnote omitted). The lower federal courts are split on the question of “pendent parties.” The majority of Courts of Appeal have held that where federal jurisdiction over the federal claim is exclusive, as under the Federal Tort Claims Act, the argument that the federal court is the only court that can handle all the claims should lead to jurisdiction over additional parties, in line with the Aldinger quote above. Ortiz v. United States, 595 F.2d 65 (1st Cir. 1979); Dick Meyers Towing Service Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978); Morrissey v. Curran, 567 F.2d 546 (2nd Cir. 1977); Transok Pipeline v. Darks, 565 F.2d 1150 (10th" }, { "docid": "1269782", "title": "", "text": "one judicial proceeding, and the federal claim must have sufficient substance to confer on the court subject matter jurisdiction over the pendent claim. Id. Gibbs signalled the Court’s desire to promote judicial economy, convenience, and fairness to the litigants; specifically, the Court looked to the undesirability of requiring the plaintiff to pursue two overlapping lawsuits or to forego his federar forum. See id. Currie, Pendent Parties, 45 U.Chi.L.Rev. 753 (1978). Most courts of appeals considering the issue have had no difficulty extending Gibbs to cases in which an additional party not subject to the federal claim is brought in to answer a state claim. E. g., Curtis v. Everette, 489 F.2d 516 (3rd Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974). This use of pendent jurisdiction has been termed pendent party jurisdiction. As to the question whether a court has the power to entertain pendent party claims in an action brought under the FTCA, the Circuit Courts deciding the question have divided. Compare Ortiz v. United States Government, 595 F.2d 65 (1st Cir. 1979), cert. denied,-U.S.-, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980) and Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979) (exercising pendent party jurisdiction in an FTCA action) with Rack v. United States, 570 F.2d 754 (8th Cir. 1978) and Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978) (declining to exercise pendent party jurisdiction in an FTCA action). The Third Circuit has not addressed this issue or set forth the correct measure for determining a court’s power to entertain pendent party claims. The gov- erning standards must therefore be determined before deciding whether this Court has the power to entertain such claims. 4. We conclude that Gibbs provides the correct measure for determining whether this Court has the power to entertain pendent party claims. This is indeed the holding of the First Circuit Court of Appeals in Ortiz v. United" }, { "docid": "1250099", "title": "", "text": "a state-law claim not within federal diversity jurisdiction, is without the statutory jurisdiction of the district court. “There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called ‘pendent party’ jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is ‘subtle and complex,’ and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be impleaded is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” 427 U.S. at 16-18, 96 S.Ct. at 2421. (footnotes omitted, emphasis in original). Less than a year after the Supreme Court’s decision in Aldinger, the Ninth Circuit had an opportunity to re-examine its position in Ayala, supra, but remained steadfast in its belief that any exercise of pendent party jurisdiction is unconstitutional. The Ninth Circuit was unimpressed by Aldinger’s reference in dicta to the FTCA as the type of situation in which exercise of pendent party jurisdiction might" } ]
518532
Affirmed by published opinion. Judge MOTZ wrote the majority opinion, in which Chief Judge TRAXLER and Judges WILKINSON, NIEMEYER, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, DIAZ and HARRIS joined. Judge WILKINSON wrote a separate concurring opinion. Judge WYNN wrote a dissenting opinion in which Judges FLOYD and THACKER joined. ON REHEARING EN BANC DIANA GRIBBON MOTZ, Circuit Judge: In REDACTED a panel of this court affirmed the convictions of Defendants Aaron Graham and Eric Jordan arising from their participation in a series of armed robberies. The panel opinion sets out the facts of this case in great detail. Id. at 339-43. The only facts now relevant concern the portion of the Government’s investigation during which it obtained historical cell-site location information (CSLI) from Defendants’ cell phone provider. This historical CSLI indicated which cell tower — usually the one closest to the cell phone — transmitted a signal when the Defendants used their cell phones to make and receive calls and texts. The Government used the historical CSLI at Defendants’ trial to place them in the vicinity of the armed robberies
[ { "docid": "20585395", "title": "", "text": "Affirmed by published opinion. Senior Judge DAVIS wrote the majority opinion, in which Judge THACKER joined. Judge THACKER wrote a separate concurring opinion. Judge MOTZ wrote an opinion dissenting in part and concurring in the judgment. DAVIS, Senior Circuit Judge: Appellants Aaron Graham and Erie Jordan appeal their convictions for several offenses arising from a series of armed robberies. Specifically, Appellants challenge the district court’s admission of testimonial and documentary evidence relating to cell site location information (“CSLI”) recorded by their cell phone service provider. We conclude that the government’s warrantless procurement of the CSLI was an unreasonable search in violation of Appellants’ Fourth Amendment rights. Nevertheless, because the government relied in good faith on court orders issued in accordance with Title II of the Electronic Communications Privacy Act, or the Stored Communications Act (“SCA”), we hold the court’s admission of the challenged evidence must be sustained. Jordan separately challenges restrictions on his own testimony imposed by the district court, the court’s denial of his motion for severance, the exclusion of certain out-of-court statements attributed to Graham, the admission of evidence seized during a search of his residence, and the sufficiency of the evidence supporting several of his convictions. Finding no reversible error in these respects, we affirm the judgment of the district court. I. This prosecution arose from a series of six armed robberies of several business establishments located in Baltimore City and Baltimore County, Maryland. After a nine-day joint trial in the U.S. District Court for the District of Maryland, a jury found Appellants guilty on all counts submitted to it. Aaron Graham was convicted of being a felon in possession of a firearm, Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and brandishing a firearm in connection with all six robberies. Eric Jordan was convicted of conspiracy, Hobbs Act robbery, and brandishing a firearm in connection with three of the robberies. A. The evidence adduced at trial permitted the jury to find the following facts. The first robbery occurred the evening of January 17, 2011, at a Dollar Tree store in Baltimore County. Graham entered the" } ]
[ { "docid": "1359127", "title": "", "text": "Vacated and remanded by published opinion. Judge DAVIS wrote the opinion, in which Chief Judge TRAXLER, and Judges MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, and THACKER joined. Judge WILKINSON wrote a dissenting opinion, in which Judge NIEMEYER joined. ON REHEARING EN BANC DAVIS, Circuit Judge: The issue before us is whether the Maryland crime of resisting arrest, Md. Code, Crim. Law § 9 — 408(b)(1), “has as an element the use, attempted use, or threatened use of physical force against the person of another,” and therefore qualifies categorically as a “crime of violence” within the meaning of U.S. Sentencing Guideline § 2L1.2, the reentry Guideline. We hold that it does not. The reentry Guideline advises federal district judges to increase by twelve or sixteen the offense level of a defendant convicted of unlawfully entering or remaining in the United States if that defendant has a prior felony conviction for “a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A). “Crime of violence” is defined in the Commentary to the reentry Guideline as including two groups of offenses: the first group is certain listed offenses, such as murder, kidnapping, or arson; the second is “any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). This latter provision is referred to as “the force clause.” Having pleaded guilty to one count of unlawful reentry of a deported alien after sustaining an aggravated felony conviction, 8 U.S.C. § 1326(a) and (b)(2), Marcel Aparicio-Soria was sentenced in the District of Maryland to a thirty-six month term of imprisonment and a three-year term of supervised release. The Government had argued at sentencing that Apari-cio-Soria’s sentence should be enhanced according to the force clause of the reentry Guideline because he has a prior 2006 Maryland conviction for resisting arrest. The district court agreed, imposing the sentence based on two rulings: first, it ruled that Aparicio-Soria’s prior conviction for resisting arrest did not qualify categorically as a crime of violence because" }, { "docid": "17671799", "title": "", "text": "Reversed and remanded by published PER CURIAM opinion. Judge MOTZ wrote an opinion concurring in the judgment, in which Judges MICHAEL, KING, and GREGORY joined. Judge TRAXLER wrote an opinion concurring in the judgment, in Part II of which Judge NIEMEYER joined. Judge GREGORY wrote an opinion concurring in the judgment. Chief Judge WILLIAMS wrote an opinion concurring in part and dissenting in part, in which Judge DUNCAN joined. Judge WILKINSON wrote an opinion concurring in part and dissenting in part. Judge NIEMEYER wrote an opinion concurring in the judgment in part and dissenting in part. Judge DUNCAN wrote an opinion concurring in part and dissenting in part. Judge SHEDD did not participate in this case. OPINION PER CURIAM: Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Ail-Marri v. Wright, 487 F.3d 160 (4th Cir.2007). Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant. Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams" }, { "docid": "20738257", "title": "", "text": "Motion for reconsideration denied by published opinion. Judge WYNN wrote the majority opinion, in which Judges WILKINSON, NIEMEYER, SHEDD, AGEE, KEENAN, DIAZ, and FLOYD joined. Judge WILKINSON wrote a separate concurring opinion, in which Judges NIEMEYER, KEENAN, and DIAZ joined. Judge DUNCAN wrote a separate opinion concurring in the judgment. Judge MOTZ wrote a dissenting opinion, in which Judges KING, DAVIS, and THACKER joined, and in which Judge GREGORY joined as to Part I. Judge GREGORY wrote a separate dissenting opinion. ON REHEARING EN BANC WYNN, Circuit Judge: With the Prisoner Litigation Reform Act (“PLRA”), Congress sought to reduce the number of frivolous lawsuits flooding the federal courts. Congress did so in part by enacting 28 U.S.C. § 1915(g), a “three-strikes” statute providing that if a prisoner has already had three cases dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner generally may not proceed in forma pauperis but rather must pay up-front all filing fees for his subsequent suits. Plaintiff James G. Blakely challenges this Court’s denial of his attempt to proceed in forma pauperis on appeal. He contends that his prior actions dismissed as “frivolous, malicious, or failing] to state a claim” cannot count as strikes under Section 1915(g) because these dismissals occurred at summary judgment. But neither the statute itself nor precedent supports Blakely’s contention. Rather, the fact that an action was dismissed as frivolous, malicious, or failing to state a claim, and not the case’s procedural posture at dismissal, determines whether the dismissal constitutes a strike under Section 1915(g). Because Blakely has had more than three prior cases dismissed expressly as frivolous, malicious, or failing to state a claim, we deny his motion for reconsideration. I. Blakely, a prisoner in a South Carolina correctional institution, has pursued numerous lawsuits in federal and state courts, including multiple appeals in this Court. In 2010, Blakely filed the underlying Section 1983 action against Defendants, including South Carolina officials such as counsel for the Department of Corrections and “Lee Correctional Institution” employees such as the facility’s librarian and chaplain. Blakely" }, { "docid": "12916189", "title": "", "text": "Affirmed in part, vacated in part by published opinion. Chief Judge Gregory wrote the opinion, in which Judges Motz, King, Wynn, Diaz, Floyd, and Harris joined in full. Judge Traxler wrote an opinion concurring in the judgment. Judge Keenan wrote an opinion concurring in part and concurring in the judgment, in which Judge Thacker joined except as to Part II.A.Í. Judge Wynn wrote a concurring opinion. Judge Thacker wrote a concurring opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges Shedd and Agee joined. Judge Shedd wrote a dissenting opinion, in which Judges Niemeyer and Agee joined. Judge Agee wrote a dissenting opinion, in which Judges Niemeyer and Shedd joined. GREGORY, Chief Judge The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120, 18 L.Ed. 281 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order. I. A. In the early evening of January 27, 2017—seven days after taking the oath of office—President Donald J. Trump signed Executive Order 13769, “Protecting the Nation Prom Foreign Terrorist Entry Into the United States” (“EO-1” or “First Executive Order”), 82 Fed. Reg. 8977 (Jan." }, { "docid": "5880192", "title": "", "text": "of the towers)' received a radio signal from each [target phone during the period of interception].” See, e.g., Doc. 422-1. In other words, the government seeks historical CSLI for each target phone during the time investigators intercepted communications transmitted over them. CSLI includes “records of calls made by the providers’ customer ... and reveals which cell tower carried the call to or from the customer.” United States v. Davis, 754 F.3d 1205, 1211 (11th Cir.2014). “The cell tower in use will normally be the cell tower closest to the customer. The cell site location information will also reflect the direction of the user from the tower. It is therefore possible to extrapolate the location of the cell phone user at the time and date reflected in the call record.” Id. This information is distinct from GPS data, which the government has not requested. The Court acknowledges that CSLI is less than a perfect method to establish the location of a target phone. See, e.g., In re United States for an Order Authorizing Disclosure of Historical Cell Site Info. for Tel. Number, 40 F.Supp.3d 89, 92, 2014 WL 1395082 (D.D.C. Apr. 17, 2014) (noting disagreement about how precisely CSLI can locate an individual). The legal standard adopted in this case, however, does not require the government to prove a target phone’s location with pin-point accuracy—the government must only establish that the target phone was present anywhere within Kansas’ Eighth Judicial District. CSLI is probative for this purpose. B. Constitutionality of The “Reasonable Grounds” Standard Defendants argue that 18 U.S.C. § 2703(d) violates the Fourth Amendment because the statute authorizes a court to compel disclosure of CSLI upon “specific and articulable facts showing that there are reasonable grounds to believe” that the requested information is “relevant and material to an ongoing criminal investigation.” See Docs. 418, 422, 425, 428. Because individuals have a legitimate expectation of privacy in CSLI, defendants argue, the Fourth Amendment prohibits the government from acquiring such information without a warrant supported by a showing of probable cause. Defendants rely upon the Eleventh Circuit’s decision in United States v." }, { "docid": "4818893", "title": "", "text": "No. 11-1111 vacated and remanded, and No. 11-1185 affirmed, by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges MOTZ, DUNCAN, KEENAN, WYNN, FLOYD, and THACKER joined. Judge WILKINSON wrote a dissenting opinion. Judge NIEMEYER wrote a dissenting opinion, in which Judges WILKINSON, SHEDD, and AGEE joined. KING, Circuit Judge: Invoking the First Amendment, the district court fully and permanently enjoined enforcement of a City of Baltimore Ordinance requiring limited-service pregnancy centers to post disclaimers that they do not provide or make referrals for abortions or certain birth-control services. The injunction emanated from the court’s award of summary judgment to plaintiff Greater Baltimore Center for Pregnancy Concerns, Incorporated, on its claim that the Ordinance is facially invalid under the Free Speech Clause. See O’Brien v. Mayor of Balt, 768 F.Supp.2d 804, 812-17 (D.Md. 2011). Crucially, however, the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure. We therefore vacate the judgment and remand for further proceedings, without comment on how this matter ultimately should be resolved. I. A. The challenged Ordinance — City of Baltimore Ordinance 09-252 — was passed by the City Council on November 23, 2009, and approved by the Mayor on December 4, 2009. See J.A. 25-28. The Ordinance applies to limited-service pregnancy centers, defined as “any person”: (1) whose primary purpose is to provide pregnancy-related services; and (2) who: (I) for a fee or as a free service, provides information about pregnancy-related services; but (II) does not provide or refer for: (A) abortions; or (B) nondirective and comprehensive birth-control services. Id. at 25-26. Under the Ordinance, “[a] limited-service pregnancy center must provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services.” Id. at 26. The disclaimer is to be given by way of one or more signs that are “written in English and Spanish,” “easily readable,” and “conspicuously posted in the center’s waiting room or other area where" }, { "docid": "20864393", "title": "", "text": "Vacated and remanded by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges MOTZ, GREGORY, SHEDD, DUNCAN, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS joined. Judge WILKINSON wrote an opinion concurring in part and dissenting in part, in which Judge AGEE joined. Judge NIEMEYER wrote a dissenting opinion. ON REHEARING EN BANC KING, Circuit Judge: Reya C. Boyer-Liberto, the African-American plaintiff in these civil rights proceedings, alleges that within a single twenty-four-hour period in September 2010, while working as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland (the “Clarion”), she was twice called ■ a “porch monkey” and threatened with the loss of her job by a Caucasian restaurant manager. Soon after reporting to higher-ups at the hotel that she had been racially harassed, Liber-to was fired by the Clarion’s owner, Dr. Leonard P. Berger. This action against the Fontainebleau Corporation and Berger ensued, with Liberto asserting claims of hostile work environment and retaliation, under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court awarded summary judgment to the defendants, see Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212, 2013 WL 1413031 (D.Md. Apr. 4, 2013), ECF No. 52, and a not-fully-unanimous panel of this Court affirmed, see Boyer-Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir.2014). The panel’s decision was vacated, however, by our grant of rehearing en banc. As explained below, we now vacate the judgment of the district court and remand for further proceedings on Liberto’s claims. In so doing, we underscore the Supreme Court’s pronouncement in Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), that an isolated incident of harassment, if extremely serious, can create a hostile work environment. We also recognize that an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone. Finally, we specify that, to the extent today’s decision is in conflict with" }, { "docid": "22556600", "title": "", "text": "Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judges WILKINSON, NIEMEYER, WILLIAMS, TRAXLER, KING, SHEDD, and DUNCAN joined and in which Judge WIDENER joined as to all except Part VII.C. Judge WILKINSON wrote a concurring opinion. Judge SHEDD wrote a concurring opinion. Judge WIDENER wrote a concurring and dissenting opinion. Judge MOTZ wrote a dissenting opinion, in which Judges MICHAEL and GREGORY joined. Judge GREGORY wrote a dissenting opinion. WILLIAM W. WILKINS, Chief Judge. Mohammed Hammoud appeals the sentence imposed following his convictions of numerous offenses, all of which are connected to his support of Hizballah, a designated foreign terrorist organization (FTO). Hammoud also challenges two of his 14 convictions. The appeal was argued before a three-judge panel, but prior to decision the court voted to hear the case en banc in order to consider the effect of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the federal sentencing guidelines. Following argument en banc, the court entered an order affirming Hammoud’s convictions and sentence. See United States v. Hammoud, 378 F.3d 426, 2004 WL 1730309 (4th Cir. August 2, 2004). We now set forth the reasoning for our judgment. I. Facts The facts underlying Hammoud’s convictions and sentence are largely undisputed. We therefore recount them briefly. A. Hizballah Hizballah is an organization founded by Lebanese Shi’a Muslims in response to the 1982 invasion of Lebanon by Israel. Hiz-ballah provides various forms of humanitarian aid to Shi’a Muslims in Lebanon. However, it is also a strong opponent of Western presence in the Middle East, and it advocates the use of terrorism in support of its agenda. Hizballah is particularly opposed to the existence of Israel and to the activities of the American government in the Middle East. Hizballah’s general secretary is Hassan Nasserallah, and its spiritual leader is Sheikh Fadlallah. B. Hammoud In 1992, Hammoud, a citizen of Lebanon, attempted to enter the United States on fraudulent documents. After being detained by the INS, Hammoud sought asylum. While the asylum application was pending, Hammoud moved to Charlotte, North Carolina, where his brothers" }, { "docid": "19658728", "title": "", "text": "ORDER Petitioner filed a petition for rehearing and rehearing en banc. Respondent filed a response. The panel voted to deny panel rehearing. A member of the Court requested a poll of the Court on the petition for rehearing en banc. Chief Judge Williams, Judge Wilkinson, Judge Niemeyer, Judge Trax-ler, Judge Shedd, Judge Duncan, and Judge Agee voted to deny the petition for rehearing en banc. Judge Michael, Judge Motz, Judge King, and Judge Gregory voted to grant the petition for rehearing en banc. The Court denies the petition for rehearing and rehearing en banc. Judge Shedd wrote an opinion concurring in the denial of rehearing en banc, in which Chief Judge Williams joins. Judge Michael wrote an opinion dissenting from the denial of rehearing en banc, in which Judge Motz, Judge King, and Judge Gregory join. SHEDD, Circuit Judge, concurring in the denial of rehearing en banc: Relying on the plain language of 8 U.S.C. § 1252(f)(2), and supported by the clear congressional purpose underlying the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), and with full recognition of the importance of the issue, the panel in this case unanimously concluded — after oral argument and careful deliberation — ’that an alien who has been ordered removed from the United States must show by clear and convincing evidence that entry or execution of the order of removal is prohibited as a matter of law in order to “stay” (ie., stop) the removal. See Teshome-Gebreegziabher v. Mukasey, 528 F.3d 330 (4th Cir.2008). In reaching this decision, the panel rejected Teshome’s argument that our traditional circuit test for preliminary injunctive relief must be used. As the author of the panel opinion, I believe that it is correct for the reasons stated therein, and I therefore join in the Court’s decision to deny the petition for rehearing en banc. Although I recognize that the panel opinion itself speaks for the Court and any elaboration that I add at this stage of the proceedings does not, I now write to respond to Judge Michael’s opinion dissenting from the denial of rehearing en banc. I" }, { "docid": "20259849", "title": "", "text": "Vacated and remanded by published opinion. A PER CURIAM opinion, in which Chief Judge TRAXLER and Judges MOTZ, KING, GREGORY, AGEE, DAVIS, KEENAN, WYNN, and DIAZ joined, was issued on behalf of the en banc majority. Judge KING wrote a concurring opinion, in which Judges MOTZ, GREGORY, and DAVIS joined. Judge AGEE wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge KEENAN. Judge DAVIS wrote a concurring opinion. Judge KEENAN wrote a concurring opinion, in which Chief Judge TRAXLER and Judges AGEE, WYNN, and DIAZ joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part, in which Judge SHEDD joined. OPINION PER CURIAM, for the en banc majority: On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun. In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1). On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March. A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2). If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment. See § 924(e)(1). Vann’s presentence investigation report (the “PSR”) reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the “Indecent Liberties Statute” or “Statute”) that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement. The text of the Indecent Liberties Statute provides, in pertinent part, as follows: (a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more" }, { "docid": "20585529", "title": "", "text": "your location information to a third party. Per the Government’s theory, in so doing you have foregone your right to privacy such that a warrant is not necessary. I cannot' approve of such a process (or lack thereof). As the march of technological progress continues to advance upon our zone of privacy, each step forward should be met with considered judgment that errs on the side of protecting privacy and accounts for the practical realities of modern life. At bottom, this decision continues a time-honored American tradition — obtaining a warrant is the rule, not the exception. Cell phone ownership is even higher among young adults. See Aaron Smith, How Americans Use Text Messaging, Pew Research Ctr., http://www.pewinternet.org/2011/09/19/how-americans-use-text-messaging (last visited July 23, 2015) (saved as ECF opinion attachment) (reporting that 95% of 18 to 24 year olds own a cell phone). DIANA GRIBBON MOTZ, Circuit Judge, dissenting in part and concurring in the judgment: I concur in the judgment affirming Defendants’ convictions and sentences. But, with respect, I dissent from the holding that the government violated Defendants’ Fourth Amendment rights. The majority concludes that the government did so when it obtained, pursuant to 18 U.S.C. § 2703(d) court orders, but without warrants, records of the cell phone towers Defendants used to make and receive calls and text messages. That holding flies in the face of the Supreme Court’s well-established third-party doctrine. The Court has long held that an individual enjoys, “no legitimate expectation of privacy,” and so no Fourth Amendment protection, in information he “voluntarily turns over to [a] third part[y].” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). This rule applies even when “the information is revealed,” as it assertedly was here, “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Accordingly, the government’s acquisition of historical cell site location information (CSLI) from Defendants’ cell phone provider did not implicate, much less" }, { "docid": "15455892", "title": "", "text": "CSLI at Defendants’ trial to place them in the vicinity of the armed robberies when the robberies had occurred. A majority of the panel held that, although the Government acted in good faith in doing so, it had violated Defendants’ Fourth Amendment rights when it obtained the CSLI without a warrant. The majority directed that henceforth the Government must secure a warrant supported by probable cause before obtaining these records from cell phone providers. The Government moved for rehearing en banc, which we granted, vacating the panel opinion. See United States v. Graham, 624 Fed.Appx. 75 (4th Cir. 2015); 4th Cir. R. 35(c). We now hold that the Government’s acquisition of historical CSLI from Defendants’ cell phone provider did not violate the Fourth Amendment. Supreme Court precedent mandates this conclusion. For the Court has long held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third partly].” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). This rule — the third-party doctrine — applies even when “the information is revealed” to a third party, as it assertedly was here, “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). All of our sister circuits to have considered the question have held, as we do today, that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant. In addition to disregarding precedent, Defendants’ contrary arguments misunderstand the nature of CSLI, improperly attempt to redefine the third-party doctrine, and blur the critical distinction between content and non-content information. The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case. I. The Fourth Amendment ensures that “[t]he right of" }, { "docid": "2595034", "title": "", "text": "Judgment vacated and new trial awarded by published opinion. Judge KING announced the judgment of the Court, in which Judge WIDENER, Judge WILKINS, Judge LUTTIG, Judge WILLIAMS, Judge MICHAEL, Judge DIANA GRIBBON MOTZ, and Judge TRAXLER joined; wrote the opinion of the Court with respect to Part III, in which Judge WILKINS, Judge WILLIAMS, Judge MICHAEL, Judge DIANA GRIBBON MOTZ, and Judge TRAXLER joined; wrote the opinion of the Court with respect to Parts IV and V, in which Judge WIDENER, Judge WILKINS, Judge LUTTIG, Judge WILLIAMS, Judge MICHAEL, Judge DIANA GRIBBON MOTZ and Judge TRAXLER joined; and wrote an opinion with respect to Parts I and II in which Judge WIDENER (except perhaps for a footnote), Judge LUTTIG (in part), Judge MICHAEL, and Judge DIANA GRIBBON MOTZ joined. Judge WIDENER wrote an opinion concurring in part and concurring in the judgment. Judge WILKINS wrote an opinion concurring in part and concurring in the judgment, in which Judge WILLIAMS and Judge TRAXLER joined. Judge LUTTIG wrote an opinion concurring in part and concurring in the judgment. Chief Judge WILKINSON wrote a dissenting opinion, in which Judge NIEMEYER joined. Judge NIEMEYER wrote a dissenting opinion, in which Chief Judge WILKINSON joined and in which Judge TRAXLER joined with respect to Parts I and II. OPINION KING, Circuit Judge: Michael Rhynes and several co-defendants were tried before a jury in the Western District of North Carolina on a number of drug-related charges. During the presentation of Rhynes’s defense, the district court excluded his sole supporting witness after finding that his lawyer had violated the court’s sequestration order. We conclude today that the exclusion of the witness’s testimony was improper and constitutes reversible error. The conduct of Rhynes’s lawyer did not contravene the district court’s sequestration order, and, if it had, the sanction of witness exclusion was unduly severe. Because this error was not harmless, we must vacate Rhynes’s conviction and sentence and remand for a new trial. I. A. At the outset, we briefly review the proceedings that have brought us to en banc review. The convictions of Michael Rhynes and his" }, { "docid": "22993190", "title": "", "text": "Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINS and Judges WIDENER, WILKINSON, NIEMEYER, TRAXLER, and SHEDD concurred. Judge DIANA GRIBBON MOTZ wrote a separate dissenting opinion in which Judges MICHAEL, KING, and GREGORY joined. OPINION WILLIAMS, Circuit Judge: A North Carolina jury convicted Kenneth Rouse of first-degree murder, robbery with a dangerous weapon, and attempted first-degree rape. Following a capital sentencing proceeding, the jury recommended the death penalty. Rouse was then sentenced to death for first-degree murder, forty years’ imprisonment for armed robbery, and twenty years’ imprisonment for attempted first-degree rape. More than one year after exhausting all state remedies, Rouse filed a peti tion for a writ of habeas corpus in the United States District Court for the Middle District of North Carolina. The district court dismissed Rouse’s petition as untimely pursuant to the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA). See 28 U.S.C.A. § 2244(d) (West 1994 & Supp.2003). Rouse appeals the district court’s determination that neither statutory tolling nor equitable tolling of the AEDPA limitations period operated to render his federal habe-as petition timely filed. Sitting en banc, we hold that Rouse’s federal habeas petition was filed after the expiration of the 1-year AEDPA limitations period, including statutory tolling, and that because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the statute of limitations, he is not entitled to equitable tolling. Accordingly, we affirm the district court’s dismissal of Rouse’s petition as untimely. I. A. In March 1992, Rouse was convicted of first-degree murder, armed robbery, and attempted first-degree rape. The relevant facts underlying petitioner’s conviction are succinctly set forth in the Supreme Court of North Carolina’s opinion affirming Rouse’s conviction and sentence on direct appeal. [Responding to a call,] [s]everal officers soon arrived at The Pantry [in Ashe-boro, North Carolina.] [Officer Hin-shaw] heard a muffled sound coming from a storage room. He and Sergeant York, who had arrived at the scene, entered the room where they found defendant [Rouse] against a wall. Hin-shaw" }, { "docid": "15455891", "title": "", "text": "Affirmed by published opinion. Judge MOTZ wrote the majority opinion, in which Chief Judge TRAXLER and Judges WILKINSON, NIEMEYER, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, DIAZ and HARRIS joined. Judge WILKINSON wrote a separate concurring opinion. Judge WYNN wrote a dissenting opinion in which Judges FLOYD and THACKER joined. ON REHEARING EN BANC DIANA GRIBBON MOTZ, Circuit Judge: In United States v. Graham, 796 F.3d 332 (4th Cir. 2015), a panel of this court affirmed the convictions of Defendants Aaron Graham and Eric Jordan arising from their participation in a series of armed robberies. The panel opinion sets out the facts of this case in great detail. Id. at 339-43. The only facts now relevant concern the portion of the Government’s investigation during which it obtained historical cell-site location information (CSLI) from Defendants’ cell phone provider. This historical CSLI indicated which cell tower — usually the one closest to the cell phone — transmitted a signal when the Defendants used their cell phones to make and receive calls and texts. The Government used the historical CSLI at Defendants’ trial to place them in the vicinity of the armed robberies when the robberies had occurred. A majority of the panel held that, although the Government acted in good faith in doing so, it had violated Defendants’ Fourth Amendment rights when it obtained the CSLI without a warrant. The majority directed that henceforth the Government must secure a warrant supported by probable cause before obtaining these records from cell phone providers. The Government moved for rehearing en banc, which we granted, vacating the panel opinion. See United States v. Graham, 624 Fed.Appx. 75 (4th Cir. 2015); 4th Cir. R. 35(c). We now hold that the Government’s acquisition of historical CSLI from Defendants’ cell phone provider did not violate the Fourth Amendment. Supreme Court precedent mandates this conclusion. For the Court has long held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third partly].” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). This rule — the third-party doctrine —" }, { "docid": "22899150", "title": "", "text": "Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER, and Judges NIEMEYER, MOTZ, KING, SHEDD, DUNCAN, AGEE, KEENAN, FLOYD, THACKER and HARRIS joined. Judge GREGORY wrote a dissenting opinion, in which Senior Judge DAVIS joined. Judge WYNN wrote a dissenting opinion. Judge DIAZ did not participate in this decision. ON REHEARING EN BANC WILKINSON, Circuit Judge: Deangelo Whiteside pled guilty to a charge of possession with intent to distribute at least 50 grams of cocaine base, pursuant to 21 U.S.C. § 841(a)(1). Based upon his criminal record, he received the career offender enhancement under the United States Sentencing Guidelines and was sentenced to 210 months imprisonment. Whiteside now raises various claims on a 28 U.S.C. § 2255 petition arguing that his sentence should be vacated in light of United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). In accordance with the relevant statutes, and in reliance upon Supreme Court and circuit precedent, we hold that the filing of the § 2255 petition was untimely, and we therefore affirm the district court’s dismissal of the petition. We decline to address the other claims raised by the petitioner. I. Starting in 2007, various drug dealers in Asheville, North Carolina, began identifying Deangelo Marquis Whiteside as a wholesale crack cocaine distributor in the area. Following an investigation, White-side was charged on July 22, 2009 in the Western District of North Carolina with one count of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Prior to his plea agreement, the government notified Whiteside that it intended to pursue an enhanced penalty under 21 U.S.C. § 851 based on his 2002 North Carolina conviction for possession with intent to manufacture, sell, or deliver a controlled substance. The presentence report determined that petitioner was accountable for 1951.9 net grams of powder cocaine and 468.3 net grams of cocaine base. Under 21 U.S.C. § 841(b)(1)(A), this quantity of drugs would have subjected him to a mandatory minimum of ten years in prison. The report detailed as well Whiteside’s lengthy" }, { "docid": "22613440", "title": "", "text": "Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judges KING, GREGORY, SHEDD, DAVIS, KEENAN, WYNN, and DIAZ joined. Judge DUNCAN wrote a dissenting opinion. Judge AGEE also wrote a dissenting opinion, in which Chief Judge TRAXLER and Judges WILKINSON, NIEMEYER, and DUNCAN joined. OPINION DIANA GRIBBON MOTZ, Circuit Judge: After Jason Simmons pled guilty to federal drug trafficking, the district court held that his prior state conviction for marijuana possession, for which he faced no possibility of imprisonment, was for an offense “punishable by imprisonment for more than one year,” triggering a sentencing enhancement under the Controlled Substances Act. This enhancement doubled Simmons’s minimum sentence. We affirmed in an unpublished opinion. See United States v. Simmons, 340 Fed.Appx. 141 (4th Cir.2009). The Supreme Court vacated that judgment and remanded the case to us for “further consideration in light of Carachuri-Rosendo v. Holder,” - U.S. -, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). A panel of this court then held that Carachuri did not require any change in our prior holding. See United States v. Simmons, 635 F.3d 140 (4th Cir.2011). We voted to rehear the case en banc, and for the reasons that follow, we now vacate Simmons’s sentence and remand for further proceedings consistent with this opinion. I. For first-time offenders who possess with intent to distribute at least 100 kilograms of marijuana, the Controlled Substances Act (CSA) mandates “a term of imprisonment” of at least five years. 21 U.S.C. § 841(b)(l)(B)(vii). But for offenders who engage in such conduct “after a prior conviction for a felony drug offense has become final,” the CSA mandates a “term of imprisonment” of at least ten years. Id. A separate provision of the CSA defines a “felony drug offense” as a drug-related “offense that is punishable by imprisonment for more than one year under any law ... of a State.” Id. § 802(44). On August 6, 2007, a federal grand jury returned an indictment charging Simmons with three counts of marijuana trafficking under the CSA. The Government subsequently filed a Bill of Information, pursuant to 21 U.S.C." }, { "docid": "7287441", "title": "", "text": "Appeals dismissed by published opinion. Judge KING wrote the opinion, in which Chief Judge TRAXLER and Judges MOTZ, GREGORY, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, and FLOYD joined. Judge DUNCAN wrote a concurring opinion, in which Judge AGEE joined. Judge WYNN wrote a concurring opinion. Judge WILKINSON wrote a dissenting opinion, in which Judge NIEMEYER and Judge SHEDD joined. Judge NIEMEYER wrote a dissenting opinion, in which Judge WILKINSON and Judge SHEDD joined. OPINION KING, Circuit Judge: Following the 2003 invasion of Iraq, the United States military took control of Abu Ghraib prison near Baghdad, using it to detain criminals, enemies of the provisional government, and other persons thought to possess information regarding the anti-Coalition insurgency. The United States contracted with CACI International, Incorporated (with CACI Premier Technology, Incorporated, together referred to herein as “CACI”), and Titan Corporation, now L-3 Services, Incorporated (“L-3”), to provide civilian employees to assist the military in communicating with and interrogating this latter group of detainees. On June 30, 2008, a number of Iraqis who had been detained at Abu Ghraib and elsewhere filed lawsuits against CACI and L-3 in the Southern District of Ohio and the District of Maryland, alleging that the contractors and certain of their employees were liable in common law tort and under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, for torturing and abusing them during their incarceration. Following the unopposed transfer of the Ohio action to the Eastern District of Virginia, where CACI is headquartered, Suhail Najim Abdullah A1 Shimari and three co-plaintiffs submitted an Amended Complaint asserting that CACI, through its employees, agents, and government coconspirators, deprived them of basic human necessities, beat them and ran electric current through their bodies, subjected them to sexual abuse and humiliation, and traumatized them with mock executions and other sadistic acts. In the operative Second Amended Complaint filed in the companion litigation, seventy-two plaintiffs, headed by Wissam Abdullateff Sa’eed AI-Quraishi, detailed similar allegations against L-3 and Adel Nakhla, an L-3 employee residing in Maryland. I. A. On September 15, 2008, CACI moved to dismiss the Amended Complaint filed in the" }, { "docid": "20585525", "title": "", "text": "1951. . We decline to reach the question of whether the district court expressed the correct view of constructive possession of a firearm through control of the vehicle in which it is located. . Given the majority’s affirmance of Defendants’ convictions on alternate grounds, its rejection of the third-party doctrine makes no difference to the result in this case. But the majority's disavowal of the third-party doctrine will have profound consequences in future cases in the Fourth Circuit. For unlike in cases arising in every other circuit to consider the matter, the government will have to obtain a search warrant supported by probable cause before obtaining even historical CSLI in this circuit. THACKER, Circuit Judge, concurring: I am in agreement with Judge Davis’s conclusion that cell site location information (“CSLI”) cannot be obtained without a warrant but that, in this ease, admission of the CSLI evidence must be sustained pursuant to the “good faith” exception to the warrant requirement. I write separately to express my concern about the erosion of privacy in this era of rapid technological development. The tension between the right to privacy and emerging technology, particularly as it relates to cell phones, impacts all Americans. Indeed, as the Supreme Court noted in Riley v. California, cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” • — • U.S. -, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014). Nearly every American adult owns a cell phone. See Mobile Technology Fact Sheet, Pew Research Ctr., http:// www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet (last visited July 23, 2015) (saved as ECF opinion attachment) (reporting that, as of January 2014, “90% of American adults own a cell phone”). More than three-fifths of American adults own a smartphone. See Aaron Smith, Pew Research Ctr., U.S. Smartphone Use in 2015 2 (2015), http://www.pewinternet.org/ files/2015/03/PI_Smartphones_0401151.pdf (saved as ECF opinion attachment) (reporting that “64% of American adults now own a smartphone of some kind”). And each year more Americans decide to rely solely on cell phones, untethering from landlines. See," }, { "docid": "18230034", "title": "", "text": "Affirmed by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges WILKINSON, MOTZ, GREGORY, DUNCAN, DAVIS, KEENAN, WYNN, FLOYD, and THACKER joined. Judge WILKINSON wrote a concurring opinion. Judge NIEMEYER wrote a dissenting opinion, in which Judges SHEDD and AGEE joined. KING, Circuit Judge: These cross-appeals demand our review of the district court’s decision to preliminarily enjoin enforcement of one portion of a Montgomery County Resolution requiring limited service pregnancy resource centers to post signs disclosing (1) that “the Center does not have a licensed medical professional on staff,” and (2) that “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider.” See Centro Tepeyac v. Montgomery Cnty., 779 F.Supp.2d 456, 469-72 (D.Md.2011).- The injunction encompasses the second statement compelled by the Resolution, but not the first one — leaving no party to this dispute fully satisfied. Because the district court acted well within its discretion, however, we affirm its decision. I. A. On February 2, 2010, the Montgomery County Council, acting as the Montgomery County Board of Health, adopted the Resolution at issue, No. 16-1252. See J.A. 198-200. The Resolution applies to limited service pregnancy resource centers, defined therein as an organization, center, or individual that: (A) has a primary purpose to provide pregnancy-related services; (B) does not have a licensed medical professional on staff; and (C) provides information about pregnancy-related services, for a fee or as a free service. Id. at 199. The Resolution requires each such center to “post at least 1 sign in the Center” making the specified disclosures, 1.e., that “the Center does not have a licensed medical professional on staff,” and that “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider.” Id. The sign must be “written in English and Spanish,” “easily readable,” and “conspicuously posted in the Center’s waiting room or other area where individuals await service.” Id. The Resolution relays the County Council’s finding, following a December 1, 2009 public hearing, “that requiring" } ]
453961
Inc., v. Fidelity-Philadelphia Trust Co., supra, 202 F.2d at page 947. Substantial questions appear to arise in this case as to the rights of Local 301 to disaffiliate, and as to the disposition of its records, funds, and property. Inextricably involved herein may be the question as to which group, those seeking to remain with the UE or those seeking to disaffiliate and join the IUE, constitute and represent Local 301. Judgment in this suit will determine rights to the property of Local 301 and its rights and obligations vis-a-vis the UE and the IUE. Under such circumstances, it seems clear that Local 301, which has not been joined as a party, must be an indispensable party to this litigation. REDACTED E by a local union and sought to enjoin the transfer or use of the property and assets of the local. The court held that, where the UE local was alleged to be in existence, as is alleged here, the local union was an indispensable party. In UE v. Derrickson, 33 L.R.R.M. 2517, also involving a substantially similar situation, the court held that the local union was an indispensable party. Cf. Fitzgerald v. Kriss, D.C., 10 F.R.D. 51; Green v. Brophy, 1940, 71 App.D.C. 299, 110 F.2d 539, 9 A.L.R.2d 1. One of the issues here is the right to possession and use of the funds and property of Local 301.
[ { "docid": "15266482", "title": "", "text": "defendants as well as the legality of the use of “Local 203” as a trade name. This ground of the motion does not appear well taken. The remaining ground urged, however, lack of an indispensable party, raises an insurmountable obstacle to the maintenance of the action. The local is not made a party to the action, yet plaintiff asserts its continued existence. If it does exist, it would appear that, under the allegations of the complaint and exhibits, the primary right sought to be enforced here lies with the local and only secondarily with UE. If the local, or its individual members as a body, is an indispensable party, the action may not be maintained, for it does not appear that they are citizens of states other than Connecticut and bringing them in as plaintiffs would destroy diversity of citizenship, on which jurisdiction is here based. Additional litigation of the same issues will be necessary to establish the legal relations between the contending groups of members or former members of Local 203 UE. They are indispensable parties here. Compare Green et al. v. Brophy et al., 1940, 71 App.D.C. 299, 110 F.2d 539. Niles-Bement-Pond Company v. Iron Moulders Union Local No. 68 et al., 1920, 254 U.S. 77, 80, 81, 41 S.Ct. 39, 65 L.Ed. 145. One group, that which opposed secession, and which plaintiff contends still composes Local 203 UE, is not a party. Nor can the plaintiff represent this group for he is not a member of it. Rule 23(a), Fed.Rules Civ.Proc. 28 U.S.C.A.; Fitzgerald v. Kriss, D.C.N.D.N.Y., 1950, 10 F.R.D. 51; Hansberry et al. v. Lee et al., 1940, 311 U.S. 32, 42, 43, 61 S.Ct. 115, 85 L.Ed. 22; Clark et al., Olenick, Intervener v. Chase Nat. Bank of City of New York, D.C.S.D.N.Y. 1942, 45 F.Supp. 820, 822; Molina v. Sovereign Camp, W. O. W., D.C.Neb., 1947, 6 F.R.D. 385, 395. The local has rights under its contract with UE which make it more than a mere administrative subdivision. United Electrical, Radio and Machine Workers of America v. William Lawlor, supra; Fitzgerald v. Kriss, supra." } ]
[ { "docid": "1886275", "title": "", "text": "standing,, even though the constitution describes no such office but only Secretary-Treasurer. - (3) In order to be declared “indispensable” a party must have a material interest in the subject matter which will inevitably be affected by any judgment which can be rendered. Parties will not be considered indispensable “if they are cestui que trusts whose interests their trustee may adéquately represent in 'the' particular litigation.” Green v. Brophy, 1940, 71 App.D.C. 299, 302, 110 F.2d 539, 542, 9 A.L.R.2d 1. See Shields v. Barrow, 1854, 17 How. 129, 130, 58 U.S. 129, 130, 15 L.Ed. 158. Appellant asserts a trusteéship over certain property and asserts appellees wrongfully hold that property. He asserts he is trustee for either Local 118 BCW or of the BCW International. If, as we have held, he has standing to sue, it follows that he represents the International’s interests. If the factions and internal conflicts of Local 118 create conflicts of interest, each interest must be represented independently. In the present state of the record it would appear that Local 118 BCW is an indispensable party since no party now. joined can appropriately represent the interests.of all its members, .some of whom, are alleged to be in conflict with others. Equally indispensable is Local 118 ABC which, according to the complaint, makes claim to the property in dispute. The complaint does not allege that any present appellees are appropriate representatives of the interests of that group. The ABC International, however, can be represented in this litigation by its local and we hold that the ABC International is not an indispensable party; appellant is an adequate representative of the interests of BCW International. From the present state of the record, it, appears that appellant has failed to join two indispensable parties; the two local unions .concerned. But this should not lead to dismissal on that ground; infirmity in this respect is not a jurisdictional defect and opportunity should be afforded to remedy the deficiency within the framework of this action. One of the appellees, Second National Bank of Washington, urges affirmance of the dismissal as to" }, { "docid": "15266477", "title": "", "text": "SMITH, District Judge. Plaintiff, Albert J. Fitzgerald, a citizen of Massachusetts and president of the United Electrical, Radio and Machine Workers of America (UE), brings this action on behalf of the United Electrical, Radio and Machine Workers of America (UE), hereafter referred to as UE, a voluntary unincorporated association, against five individuals, citizens of Connecticut, suing each individually and as representative of the members of Local 203, International Union of Electrical, Radio and Machine Workers, CIO (IUE). In 1936 UE chartered Local 203, a voluntary unincorporated association composed of employees of the General Electric plant in Bridgeport. In 1937 the UE Local 203 became the collective bargaining representative for the employees of the Bridgeport plant of General Electric. UE expended considerable sums in the organizing drive at the plant and has since furnished assistance to the local and received, from the local, .dues, as provided in the charter granted by UE to the local. UE became affiliated with the CIO and continued in this affiliation until it was expelled from the CIO on November 2, 1949, on the alleged grounds that “the UE had fallen into the control of a group devoted primarily to the principles of the Communist Party”. Thereafter, in December, 1949, the defendants herein were elected officers of Local 203 UE, and assumed their offices in January, 1950. A meeting of the UE local was called by the defendants to consider the question of disaffiliation with UE and affiliation with a CIO union, International Union of Radio and Machine Workers, referred to hereafter as IUE. The legality of the call is attacked by the plaintiff herein. At the meeting, attended by some seven hundred members, all but about twenty voted to disaffiliate with UE and affiliate with IUE. The defendants have continued to act as officers of a body which they have referred to on at least one occasion as Local 203 IUE-CIO, and have utilized the records, funds and property which were in their hands as officers of Local 203 UE, following their taking office in January, 1950. No new election of officers has been held" }, { "docid": "4959784", "title": "", "text": "Named as Plaintiffs are 342 employees and former employees of the Delco Air Conditioning Division of GMC (numbered 1 through 342 in the original complaint), and a number of their respective spouses (numbered 343 through 600 in said complaint). Named as Defendants are GMC, the International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE), and its Local 801. Plaintiffs allege that the IUE and Local 801 violated their duty of fair representation under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, and under § 101(a)(1) of the Labor Manage- merit Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(1), with respect to their negotiation, adoption and implementation of certain collective bargaining agreements. Plaintiffs also allege that GMC breached said collective bargaining agreements in certain stated particulars. Detailed descriptions of the parties, and of the aforementioned breaches, take up over 20 pages in the original complaint. The primary allegations may be, very briefly, summarized as follows. Some Plaintiffs were members of the so-called “red-circled 5500.” Pursuant to a “Bridge Agreement” between Frigidaire and Local 801, dated December 10,1976, that group had the right to transfer to the Delco division. Plaintiffs herein were part of a group of approximately 2000 who elected to transfer to Del-co. That transfer, Plaintiffs contend, was made with the “implied understanding” that they would be treated equally, vis-a-vis other members of the “red-circled 5500,” in accordance with their accumulated Frigidaire seniority, which seniority would be preserved in their post-Frigidaire tenure. However, two new collective bargaining agreements, entered into in February and September of 1979, substantially modified the “Bridge” agreement. These agreements provided for the transfer of Frigidaire employees to the newly operational Moraine truqk plants, and for the recall of laid-off Frigidaire — but not Delco — employees. Through these acts, Plaintiffs allege, IUE and Local 801 breached their duty of fair representation by irrational, arbitrary and discriminatory conduct. Moreover, they further contend, said acts constituted a breach of the implied obligations in the Bridge Agreement. Finally, they allege, the manner in which the IUE and Local 801 conducted ratification votes" }, { "docid": "17029785", "title": "", "text": "379 U.S. at 181, 85 S.Ct. at 306. Thus, the Court recognized § 101(a)(3)(B) must be read in light of the Congressional intent to provide a package of rights for labor union members. In the instant case, that package includes not only the right to vote on the dues increase issue but the right to procedural due process with regard to adoption of reasonable rules and regulations concerning the vote. . These defendants’ reliance on Eads v. Sayen, 281 F.2d 791 (7th Cir. 1961) and Fitzgerald v. Haynes, 241 F.2d 417 (3d Cir. 1957) is misplaced. In Eads, several union members sued their union’s officers, praying for a credit against future dues without joining the union itself. The court found that when the dues were collected, they became the property of the union not the officers; therefore, the union was a necessary party. In this case, most of the increased dues collected by the subordinate units becomes the property of the International Union, which is a party to this action. Similarly, the plaintiffs in Fitzgerald sought to enjoin disposal of local union property without joining the local union. Here, however, the complaint is directed at preventing the International from enforcing its constitution; thus, the International has a primary interest in the outcome of this litigation while the subordinate units’ interests are secondary at best since they are authorized to independently raise funds. Cf. Weihrauch v. IUE, 272 F.Supp. 472, 477 (D.N.J.1967). . Since Count II encompasses a state law claim, the capacity of an association to sue or be sued is to be determined by the law of the state in which the district court is sitting. F.R.Civ.P. 17(b). . Contra: Boozer v. United Auto Workers of America Local 457, 4 Ill.App.3d 611, 279 N.E.2d 428 (1972). . This decision comports with the generally accepted policy that if an action can be maintained under Rule 23(b)(2) and also under Rule 23(b)(3), the court should order that the action be maintained as a (b) (2) action. See, e. g., Mungin v. Florida East Coast Ry., 318 F.Supp. 720 (M.D.Fla.1970), aff’d, 441" }, { "docid": "16497286", "title": "", "text": "RAYFIEL, District Judge. For a number of years United Electrical, Radio and Machine Workers of America, (hereinafter referred to as UE), was a member or affiliate of the Congress of Industrial Organizations. Last fall it was expelled, reportedly because of serious ideological differences between factions both in its own organization as well as the said Congress. A number of its officers and members then organized the International Union of Electrical, Radio and Machine Workers, CIO, (hereinafter referred to as IUE), affiliated with the said Congress, and is now engaged in a contest with UE for the right to répresent the workers in the electrical manufacturing industry. During its expansion UE established and chartered new locals, in areas and plants where it had not theretofore been represented, designating them by certain numbers which were publicized in their contracts and correspondence and elsewhere. IUE has already organized and chartered a number of locals' in plants and areas where UE ■ locals have been functioning, and is engaged in a campaign to solicit members of UE locals to join its locals in such plants and areas. Many, if not all of the locals thus organized by IUE have been designated by local numbers identical with those of the rival UE locals. Plaintiffs, by order to show cause, seek to restrain the defendants from designating any local which they may hereafter charter by the same local number as the UE local then in existence in the same plant or area. The defendants, by cross-motion, move to dismiss the complaint on the following four grounds: — (1) that it fails to state a claim against the defendants upon which relief can be granted; (2J that the Court lacks jurisdiction of the subject matter; (3) that it fails to join indispensable parties; (4) that the amount in controversy is less than $3000, exclusive of interest and costs. On the argument of the motions the plaintiffs served and filed an amended bill of complaint wherein certain named UE locals were joined as parties plaintiff. It was then stipulated that the cross-motion herein was to be deemed addressed" }, { "docid": "1886274", "title": "", "text": "part of an affidavit, reciting an alleged December 21, 1957 meeting at which 700 of the 1100 members were present and that the 700 voted unanimously to dissolve. Appellees point to this as disposing of the issue of standing, despite .other affirmative .allegations in which appellant claims to be the “duly, designated * * Special Trustee of Local 118” and also that “more than seven members of Local 118 desire .to retain its charter.” We agree that December - 21, 1957,, the meeting date, is the critical date as to which seven ‘objecting’ members must \"assert their “desire to retain [the] charter,” and the allegation is not explicitly directed to that daté. Other infirmities in the dissolution ‘ may, however, ‘ be shown. ‘ We must ’ remember these are pleadings, not evidence, arid by the usual rules of construing pleadings we feel constrained to hold this is’ sufficient to put the question in issue, even If not artful in a technical sense. The allegation that appellant is Acting Secretary-Treasurer is sufficient to give him standing,, even though the constitution describes no such office but only Secretary-Treasurer. - (3) In order to be declared “indispensable” a party must have a material interest in the subject matter which will inevitably be affected by any judgment which can be rendered. Parties will not be considered indispensable “if they are cestui que trusts whose interests their trustee may adéquately represent in 'the' particular litigation.” Green v. Brophy, 1940, 71 App.D.C. 299, 302, 110 F.2d 539, 542, 9 A.L.R.2d 1. See Shields v. Barrow, 1854, 17 How. 129, 130, 58 U.S. 129, 130, 15 L.Ed. 158. Appellant asserts a trusteéship over certain property and asserts appellees wrongfully hold that property. He asserts he is trustee for either Local 118 BCW or of the BCW International. If, as we have held, he has standing to sue, it follows that he represents the International’s interests. If the factions and internal conflicts of Local 118 create conflicts of interest, each interest must be represented independently. In the present state of the record it would appear that Local" }, { "docid": "16497291", "title": "", "text": "a valuable property right; that the appropriation of these numbers by the defendants will confuse the general public, employers, workers in the electrical manufacturing industry and the trades-people with whom the various locals do business. The defendants deny this, and have submitted the affidavits of a number of employees in various plants in which both the UE and IUE locals function to the effect that the similarity in numbers does not cause 'confusion, and that the letters UE and IUK, CIO provide adequate distinguishing characteristics. ■ I am satisfied from an examination of the moving papers herein, and from the oral argument, that UE, in the organization of its subordinate locals, has spent large sums of money in publicizing its activities, in reporting contract negotiations and in familiarizing its members and other workers in the industry with its service to them. This has necessarily involved the frequent publication and repetition of the numbers of its locals, which have thus acquired prestige and distinction, to no less an extent than if the locals were identified by distinctive names. It is no mere chance that each local heretofore organized by IUE has borne the same number as the UE local then functioning in the same area or plant. I believe that the difference between local numbers is far more distinguishing than the difference between the designations UE and IUE. Desertion from the ranks of an organization should be the voluntary act of the member involved and not the result of error. Neither confusion not misunderstanding should influence a choice. Under these circumstances equity will intervene. American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317; National Circle, Daughters of Isabella v. National Order of Daughters of Isabella, 2 Cir., 270 F. 723; Fitzgerald v. Block, supra. I am not impressed by defendants’ contention that the application for an injunction should be denied for the reason that granting of it would do greater injury to the defendants than a denial thereof would occasion the plaintiffs. Plaintiffs’ application affects only those locals to be organized after the issuance of the" }, { "docid": "23136032", "title": "", "text": "the claims for injunctive relief under § 501 of the LMRDA because the appellants had failed to and could not join an indispensable party. The court further determined that the disciplinary claims were moot because the international president had dismissed them and the claim brought under § 105 of the LMRDA was dismissible for failure to exhaust intra-union remedies. The court found jurisdiction under § 501 for appellants’ claims for declaratory relief, but granted summary judgment for appellees because the union’s interpretation of the constitution was reasonable. I. SECTION 301 Section 301 of the LMRA, 29 U.S.C. § 185 provides: (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. Appellants assert that jurisdiction exists under this section because the IBEW constitution is a contract for the purposes of section 301, and the alleged breach of the “contract” affected collective bargaining and labor-management relations. The district court concluded there was no jurisdiction under the section because it does not confer jurisdiction in suits by members against their local or international union for breaches of the union constitution. While we agree with the result, the district court’s reasoning appears faulty in light of recent decisions in this circuit and the Supreme Court. The right of individual employees to sue under § 301 to vindicate their “uniquely personal” rights under a collective bargaining agreement has specifically been recognized in a series of cases. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th Cir. 1978); Beriault v. Local 40, SuperCargoes and Checkers of the ILWU, 501 F.2d 258, 261 (9th Cir. 1974). See also Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). As we recognized in Rehmar" }, { "docid": "16497290", "title": "", "text": "join all of them in one action and hence the designation of certain named locals to sue on behalf of all in a class suit is proper. The defendants further contend that the Norris-La Guardia Act, 29 U.S. C.A. § 101, applies to this action and deprives this Court of jurisdiction. I do not agree. The controversy between the parties to this action is not a “labor dispute” within the meaning and contemplation of the statute. The plaintiffs brought this action to determine who is entitled to the use of the names or numbers of the locals. Fitzgerald v. Abramson, supra; Wolchok v. Kovenetsky, 274 App.Div. 282, 83 N.Y.S.2d 431. Considering now the motion for a temporary injunction: the plaintiffs seek thereby to prevent the defendants, during the pendency of this action, from designating any new locals they may charter by the same numbers as the UE locals then in existence in the same plant or area. Plaintiffs claim that large sums of money have been spent to publicize the local numbers; that they constitute a valuable property right; that the appropriation of these numbers by the defendants will confuse the general public, employers, workers in the electrical manufacturing industry and the trades-people with whom the various locals do business. The defendants deny this, and have submitted the affidavits of a number of employees in various plants in which both the UE and IUE locals function to the effect that the similarity in numbers does not cause 'confusion, and that the letters UE and IUK, CIO provide adequate distinguishing characteristics. ■ I am satisfied from an examination of the moving papers herein, and from the oral argument, that UE, in the organization of its subordinate locals, has spent large sums of money in publicizing its activities, in reporting contract negotiations and in familiarizing its members and other workers in the industry with its service to them. This has necessarily involved the frequent publication and repetition of the numbers of its locals, which have thus acquired prestige and distinction, to no less an extent than if the locals were identified by" }, { "docid": "8693909", "title": "", "text": "particular controversy to determine the potential for prejudice to all parties, including those not before it. Schlumberger Indus., Inc. v. National Sur. Corp., 36 F.3d 1274, 1285-86 (4th Cir.1994). In the instant case, the district court properly held that Local 964 is an indispensable party whose absence requires dismissal. After losing a grievance before what is essentially an arbitral panel, Local 171 sought to vacate the result of that proceeding without the presence of its victorious adversary. It is plain not only that Local 964 should have been joined in this action “if feasible,” but also that the district court could not “in equity and good conscience” have proceeded in that party’s absence. Fed.R.Civ.P. 19(a), (b). A. Local 964 is necessary to this litigation for two reasons. First, permitting the action to proceed would impair the interests of Local 964. Fed.R.Civ.P. 19(a)(2)©. Like many suits under section 301 of the LMRA, this action at bottom concerns the joint grievance panel’s interpretation of the collective bargaining agreement — an interpretation ultimately made in favor of Local 964 as a result of a grievance that Local 964 filed. See Vaca v. Sipes, 386 U.S. 171, 183-87, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Since the very purpose of Local 171’s suit is to vacate the contract interpretation for which Local 964 fought, permitting this suit to proceed to judgment could “impair or impede” Local 964’s ability to protect its interests under its contract with Keal Driveaway. Id.; see Delta Fin. Corp. v. Paul D. Comanduras & Assocs., 973 F.2d 301, 305-06(4th Cir.1992) (parties to a contract are necessary parties to a suit on that contract); see also General Warehousemen & Helpers Local 767 v. Standard Brands, Inc., 579 F.2d 1282, 1289-91 (5th Cir.1978) (en banc) (noting that a union has “a not insubstantial interest in the maintenance of its contractual right” to bargain, but deferring the Rule 19 issue). Second, permitting this suit to continue could subject Real Driveaway to conflicting legal obligations. Fed.R.Civ.P. 19(a)(2)(ii). If Local 964 were to file suit in another forum to protect its interests, that action could" }, { "docid": "16497289", "title": "", "text": "in their own respective interests and as representatives of all other UE locals. Mr. Justice Story laid down the following requirements (quoted 148 F.2d at page 404 of Tunstall v. Brotherhood, etc., supra,) for cases in which a class suit is proper: “1. Where the question is one of a common or general interest, and one or more sue or defend for the benefit of the whole. 2. Where the parties form a voluntary association for public or private púrposes, and those who sue or defend may fairly be presumed to represent the rights - and interests of the whole; and 3. Where the parties are very numerous, and though they have -or may have separate and distinct interests, yet it is impracticable to bring them all before the court.” The number of locals affiliated with UE at or prior to its expulsion from the Congress of Industrial Organizations was approximately 400, and the matter of designating them by numbers or names is of general interest to all of them. It would be impossible to join all of them in one action and hence the designation of certain named locals to sue on behalf of all in a class suit is proper. The defendants further contend that the Norris-La Guardia Act, 29 U.S. C.A. § 101, applies to this action and deprives this Court of jurisdiction. I do not agree. The controversy between the parties to this action is not a “labor dispute” within the meaning and contemplation of the statute. The plaintiffs brought this action to determine who is entitled to the use of the names or numbers of the locals. Fitzgerald v. Abramson, supra; Wolchok v. Kovenetsky, 274 App.Div. 282, 83 N.Y.S.2d 431. Considering now the motion for a temporary injunction: the plaintiffs seek thereby to prevent the defendants, during the pendency of this action, from designating any new locals they may charter by the same numbers as the UE locals then in existence in the same plant or area. Plaintiffs claim that large sums of money have been spent to publicize the local numbers; that they constitute" }, { "docid": "15266480", "title": "", "text": "provided that any disbandment, dissolution, secession or disaffiliation of any local shall be invalid and null and void if seven or more members indicate their desire to retain the local charter. The plaintiff’s complaint alleges that more than seven members have indicated such a desire to retain the local charter. Defendants contend that the plaintiff is not a real party in interest and that the complaint does not state a claim on which relief may be granted, relying in part on Judge Nevin’s opinion in two similar cases brought by the same plaintiff in the Southern District of Ohio. Fitzgerald v. Elsner and Fitzgerald v. Kraft, November 9, 1949, 25 LRRM 2140. These grounds for the motion to dismiss do not appear to be well taken for the members of the UE undoubtedly have a substantial interest in the continuence of a UE local and in the legality of any attempt to remove from affiliation with the UE, a large local, the source of substantial dues-payments to the UE under its contract with the UE. Cf. United Electrical, Radio and Machine Workers of America et al. v. William Lawlor et al., 1948, 15 Conn.Sup. 326. The allegations of the complaint, if established, appear to set forth a claim on which relief may be granted in the absence of any affirmative defense. Defendants also move to dismiss on the ground that the amount in controversy is less than $3,000. This ground is not well taken for it is admitted that the funds in the hands of the defendants at the time of the attempted disaffiliation, together with other property, were valued at more than $3,000. Moreover, the UE’s interest in continuance of the affiliation is not plainly valued at less than $3,000. Defendants also contend that plaintiff has not exhausted his remedies under the constitution and by-laws of the UE, treating the action as one to expel the defendants from the UE. The action is, however, much more than an attempted expulsion. Plaintiff seeks to try the legality of the control of the funds and property in the hands of the" }, { "docid": "16497287", "title": "", "text": "join its locals in such plants and areas. Many, if not all of the locals thus organized by IUE have been designated by local numbers identical with those of the rival UE locals. Plaintiffs, by order to show cause, seek to restrain the defendants from designating any local which they may hereafter charter by the same local number as the UE local then in existence in the same plant or area. The defendants, by cross-motion, move to dismiss the complaint on the following four grounds: — (1) that it fails to state a claim against the defendants upon which relief can be granted; (2J that the Court lacks jurisdiction of the subject matter; (3) that it fails to join indispensable parties; (4) that the amount in controversy is less than $3000, exclusive of interest and costs. On the argument of the motions the plaintiffs served and filed an amended bill of complaint wherein certain named UE locals were joined as parties plaintiff. It was then stipulated that the cross-motion herein was to be deemed addressed to the said amended complaint. Let us consider first defendants’ motion to dismiss the complaint. The jurisdictional questions raised here have been passed upon recently by Judge Rifkind in the case of Fitzgerald v. Abramson, D.C., 89 F.Supp. 504, and by Judge Bard in Fitzgerald v. Block, D.C., 87 F.Supp. 305. Both of these actions were class suits, similar in nature to the one at bar, and both Judge Rifkind and Judge Bard held that there was jurisdiction on the ground that the amount in controversy exceeded $3000, and that there was diversity of citizenship. It is well settled that in a class action the citizenship of the representatives only is relevant.- Supreme Tribe of Ben Hur v. Cauble, 1921, 255 U. S. 356, 41 S.Ct. 338, 65 L.Ed. 673; Tunstall v. Brotherhood of Locomotive F. & E., 4 Cir., 148 F.2d 403. In the amended bill of ■ complaint plaintiffs have joined as additional parties plaintiff certain named locals of the UE whose places of residence are not within this district, and which sue" }, { "docid": "15266479", "title": "", "text": "as for a new: organization. A charter has, however, been obtained by defendants for a local to be known as Local 203, IUE-CIO. Plaintiff seeks to enjoin the expenditure, transfer, use, conveyance or disbursement of any of the money, property, assets, books, records, files and equipment of Local 203, and the interference with the use and possession by the plaintiff or his agents of any of the books, records, files'and equipment formerly kept or maintained by, and belonging to, Local 203, and from appropriating, using, or claiming the name of Local 203, either alone or in combination with any other name. Defendants move to dismiss the action. Following the granting of a temporary restraining order, hearing has been had both on plaintiff’s application for a preliminary injunction and on defendants’ motion to dismiss. Under the constitution of the UE, which became a part of the contract between the body of workers included in Local 203 UE and the UE upon the acceptance of the charter from the UE by the local in 1936, it is provided that any disbandment, dissolution, secession or disaffiliation of any local shall be invalid and null and void if seven or more members indicate their desire to retain the local charter. The plaintiff’s complaint alleges that more than seven members have indicated such a desire to retain the local charter. Defendants contend that the plaintiff is not a real party in interest and that the complaint does not state a claim on which relief may be granted, relying in part on Judge Nevin’s opinion in two similar cases brought by the same plaintiff in the Southern District of Ohio. Fitzgerald v. Elsner and Fitzgerald v. Kraft, November 9, 1949, 25 LRRM 2140. These grounds for the motion to dismiss do not appear to be well taken for the members of the UE undoubtedly have a substantial interest in the continuence of a UE local and in the legality of any attempt to remove from affiliation with the UE, a large local, the source of substantial dues-payments to the UE under its contract with the UE." }, { "docid": "15266483", "title": "", "text": "indispensable parties here. Compare Green et al. v. Brophy et al., 1940, 71 App.D.C. 299, 110 F.2d 539. Niles-Bement-Pond Company v. Iron Moulders Union Local No. 68 et al., 1920, 254 U.S. 77, 80, 81, 41 S.Ct. 39, 65 L.Ed. 145. One group, that which opposed secession, and which plaintiff contends still composes Local 203 UE, is not a party. Nor can the plaintiff represent this group for he is not a member of it. Rule 23(a), Fed.Rules Civ.Proc. 28 U.S.C.A.; Fitzgerald v. Kriss, D.C.N.D.N.Y., 1950, 10 F.R.D. 51; Hansberry et al. v. Lee et al., 1940, 311 U.S. 32, 42, 43, 61 S.Ct. 115, 85 L.Ed. 22; Clark et al., Olenick, Intervener v. Chase Nat. Bank of City of New York, D.C.S.D.N.Y. 1942, 45 F.Supp. 820, 822; Molina v. Sovereign Camp, W. O. W., D.C.Neb., 1947, 6 F.R.D. 385, 395. The local has rights under its contract with UE which make it more than a mere administrative subdivision. United Electrical, Radio and Machine Workers of America v. William Lawlor, supra; Fitzgerald v. Kriss, supra. Its rights may not be fixed in this action in its absence. On the ground of lack of an indispensable party, the motion to dismiss is well taken. The motion to dismiss is granted. The motion for preliminary injunction is denied. The temporary restraining order heretofore entered may be vacated. . No opinion for publication." }, { "docid": "16497288", "title": "", "text": "to the said amended complaint. Let us consider first defendants’ motion to dismiss the complaint. The jurisdictional questions raised here have been passed upon recently by Judge Rifkind in the case of Fitzgerald v. Abramson, D.C., 89 F.Supp. 504, and by Judge Bard in Fitzgerald v. Block, D.C., 87 F.Supp. 305. Both of these actions were class suits, similar in nature to the one at bar, and both Judge Rifkind and Judge Bard held that there was jurisdiction on the ground that the amount in controversy exceeded $3000, and that there was diversity of citizenship. It is well settled that in a class action the citizenship of the representatives only is relevant.- Supreme Tribe of Ben Hur v. Cauble, 1921, 255 U. S. 356, 41 S.Ct. 338, 65 L.Ed. 673; Tunstall v. Brotherhood of Locomotive F. & E., 4 Cir., 148 F.2d 403. In the amended bill of ■ complaint plaintiffs have joined as additional parties plaintiff certain named locals of the UE whose places of residence are not within this district, and which sue in their own respective interests and as representatives of all other UE locals. Mr. Justice Story laid down the following requirements (quoted 148 F.2d at page 404 of Tunstall v. Brotherhood, etc., supra,) for cases in which a class suit is proper: “1. Where the question is one of a common or general interest, and one or more sue or defend for the benefit of the whole. 2. Where the parties form a voluntary association for public or private púrposes, and those who sue or defend may fairly be presumed to represent the rights - and interests of the whole; and 3. Where the parties are very numerous, and though they have -or may have separate and distinct interests, yet it is impracticable to bring them all before the court.” The number of locals affiliated with UE at or prior to its expulsion from the Congress of Industrial Organizations was approximately 400, and the matter of designating them by numbers or names is of general interest to all of them. It would be impossible to" }, { "docid": "8553041", "title": "", "text": "the issue would be resolved for defendants. United Brotherhood of Carpenters and Joiners of America v. Brown, 343 F.2d 872, 882-884 (10th Cir. 1965). In any event, from what now appears, the naming of a trustee, the act of war leading to this litigation, was abrupt, high-handed, and unfounded. By the stipulation mentioned above, plaintiff has chosen to postpone indefinitely its opportunity to press for a contrary conclusion in another case pending here. Nevertheless, its papers on this motion, as noted earlier, proclaim a continued insistence upon lawless powers .to “transfer,” merge, and override members, local unions, contract rights, and statutory prescriptions governing the authority of elected representatives in collective bargaining. All in all, it appears that plain tiff, not defendants, has been flouting the law. 2. Plaintiff’s theory supporting its claimed right to take away the property of the Locals portends at best only a slim probability of success. The constitutional provision plaintiff invokes provides for transfer of local union property when a Local is “suspended * * * or suspends active operation of its own accord * * The words do not apply literally where a Local “disaffiliates” rather than “suspends,” and there is no barrier in the Constitution to the secession and continued functioning of an intact local. That much is obviously not conclusive against plaintiff, which points out that a local could aways avoid “suspension” by hasty disaffiliation. But there are further, higher obstacles to plaintiff’s claim. For one thing, the parties long ago followed the sensible construction defendants urge; plaintiff made no claim like the present one when the same Locals disaffiliated, in the face of the same constitutional provision, thirty years ago. Still more importantly, granting that the words of the provision may leave room for argument, the court — especially in the exercise of the equitable powers to which plaintiff appeals — would probably not enforce the result plaintiff seeks. The money and property in question come from the members of the Locals, who have voted to disaffiliate, who have remained with, and continue to be represented by, their essentially unchanged organizations. Cf." }, { "docid": "15266478", "title": "", "text": "1949, on the alleged grounds that “the UE had fallen into the control of a group devoted primarily to the principles of the Communist Party”. Thereafter, in December, 1949, the defendants herein were elected officers of Local 203 UE, and assumed their offices in January, 1950. A meeting of the UE local was called by the defendants to consider the question of disaffiliation with UE and affiliation with a CIO union, International Union of Radio and Machine Workers, referred to hereafter as IUE. The legality of the call is attacked by the plaintiff herein. At the meeting, attended by some seven hundred members, all but about twenty voted to disaffiliate with UE and affiliate with IUE. The defendants have continued to act as officers of a body which they have referred to on at least one occasion as Local 203 IUE-CIO, and have utilized the records, funds and property which were in their hands as officers of Local 203 UE, following their taking office in January, 1950. No new election of officers has been held as for a new: organization. A charter has, however, been obtained by defendants for a local to be known as Local 203, IUE-CIO. Plaintiff seeks to enjoin the expenditure, transfer, use, conveyance or disbursement of any of the money, property, assets, books, records, files and equipment of Local 203, and the interference with the use and possession by the plaintiff or his agents of any of the books, records, files'and equipment formerly kept or maintained by, and belonging to, Local 203, and from appropriating, using, or claiming the name of Local 203, either alone or in combination with any other name. Defendants move to dismiss the action. Following the granting of a temporary restraining order, hearing has been had both on plaintiff’s application for a preliminary injunction and on defendants’ motion to dismiss. Under the constitution of the UE, which became a part of the contract between the body of workers included in Local 203 UE and the UE upon the acceptance of the charter from the UE by the local in 1936, it is" }, { "docid": "15266481", "title": "", "text": "Cf. United Electrical, Radio and Machine Workers of America et al. v. William Lawlor et al., 1948, 15 Conn.Sup. 326. The allegations of the complaint, if established, appear to set forth a claim on which relief may be granted in the absence of any affirmative defense. Defendants also move to dismiss on the ground that the amount in controversy is less than $3,000. This ground is not well taken for it is admitted that the funds in the hands of the defendants at the time of the attempted disaffiliation, together with other property, were valued at more than $3,000. Moreover, the UE’s interest in continuance of the affiliation is not plainly valued at less than $3,000. Defendants also contend that plaintiff has not exhausted his remedies under the constitution and by-laws of the UE, treating the action as one to expel the defendants from the UE. The action is, however, much more than an attempted expulsion. Plaintiff seeks to try the legality of the control of the funds and property in the hands of the defendants as well as the legality of the use of “Local 203” as a trade name. This ground of the motion does not appear well taken. The remaining ground urged, however, lack of an indispensable party, raises an insurmountable obstacle to the maintenance of the action. The local is not made a party to the action, yet plaintiff asserts its continued existence. If it does exist, it would appear that, under the allegations of the complaint and exhibits, the primary right sought to be enforced here lies with the local and only secondarily with UE. If the local, or its individual members as a body, is an indispensable party, the action may not be maintained, for it does not appear that they are citizens of states other than Connecticut and bringing them in as plaintiffs would destroy diversity of citizenship, on which jurisdiction is here based. Additional litigation of the same issues will be necessary to establish the legal relations between the contending groups of members or former members of Local 203 UE. They are" }, { "docid": "1682134", "title": "", "text": "by his adversary in any appropriate manner, he must support them by competent proof. And where they are not so challenged the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” No clearer statement can be found of the necessity for a federal court to make a positive finding that the requisite amount is involved in the controversy before assuming jurisdiction in diversity cases. Where the invasion of a right is sought to be prevented by injunction the value of the challenged right determines the amount in controversy, Dewar v. Brooks, D.C.Nev.1936, 16 F.Supp. 636. The theory of the plaintiff’s complaint is that he and the other members of the United Electrical, . Radio and Machine Workers of America (UE) for whom he brings the action have the right to prevent an election within a local union through the use of its facilities and property which may result in the secession of the local union, and which secession, if successful, will bring injury and harm to the UE and its members. The plaintiff places reliance upon two methods of reckoning the value of this asserted right. First, he contends that if the local union is permitted to secede,' the national union and its members in other locals will suffer a substantial loss by a break in the heretofore united bargaining front of the industrial employees working in the General Electric Company’s plants throughout the country. The plaintiff’s evidence relating to this contention shows that the UE bargains in behalf of its members with the General Electric Company on an industry-wide basis and that there are approximately twenty-eight local unions chartered by the UE in the various. General Electric plants. But there is no evidence whatever of the amount of pecuniary loss in bargaining power which may be suffered by the plaintiff and other members of the UE if Local 901 secedes to a rival labor organization. Because of this lack of evidence, the" } ]
664659
Manual for Complex Litigation — 1.46 Settlement of Class Actions: Criteria and Procedure in Approving Settlements of Class Actions — Part I — Procedures at 63 (1977) (emphasis added). B. Avoidance of Constitutional Questions This litigation raises serious constitutional questions. As the Supreme Court recently noted, three factors are of principal relevance in determining what process is constitutionally due: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. REDACTED See Board of Curators of the University of Missouri et al. v. Horowitz, - U.S. -, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). These factors are at least arguably present in this case, lending support to the claim that an administrative hearing is mandated by the Constitution. In keeping with long-established principle, we rule only on the procedural requirements of Title VI, and not on the constitutional issue. Statutory interpretation in this case obviates the need to pass on questions of constitutionality. See, e. g., Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed.2d 1000 (1963). IV. CONCLUSION In view of our ruling that HEW has not properly complied with
[ { "docid": "22652460", "title": "", "text": "copy of the charge, reasonable time for filing a written response, and an opportunity for an oral appearance. Following dismissal, an evidentiary hearing was provided. 416 U. S., at 142-146. These decisions underscore the truism that “ ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy, supra, at 167-168 (Powell, J., concurring in part); Goldberg v. Kelly, supra, at 263-266; Cafeteria Workers v. McElroy, supra, at 895. More precisely, our prior de cisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, at 263-271. We turn first to a description of the procedures for the termination of Social Security disability benefits, and thereafter consider the factors bearing upon the constitutional adequacy of these procedures. B The disability insurance program is administered jointly by state and federal agencies. State agencies make the initial determination whether a disability exists, when it began, and when it ceased. 42 U. S. C. §421 (a). The standards applied and the procedures followed are prescribed by the Secretary, see § 421 (b), who has delegated his responsibilities and powers under the Act to the SSA. See 40 Fed. Reg. 4473 (1975). In order to establish initial and continued entitlement to disability benefits a worker must" } ]
[ { "docid": "9331383", "title": "", "text": "424 U.S. 319, 344 [96 S.Ct. 893, 907, 47 L.Ed.2d 18] (1976). [Footnote omitted.] Such rules ‘minimize substantively unfair or mistaken deprivations of’ life, liberty, or property by enabling persons to contest the basis upon which the State proposes to deprive them of protected interests. Fuentes v. Shevin, supra [407 U.S.], at 81 [92 S.Ct., at 1994].” Necessarily, the specific dictates of procedural due process vary with each fact situation. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 903 (1976), the Court identified appropriate touchstones for dealing with the problem: “[0]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Accord, Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 848-49, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Ingraham v. Wright, 430 U.S. 651, 675, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); cf. Board of Curators v. Horowitz, 435 U.S. 78, 86 & n. 3, 98 S.Ct. 948, 953 & n. 3, 55 L.Ed.2d 124 (1978). Hoss’ private liberty interest has already been discussed. That interest derives from state regulations granting prisoners the right not to be subjected to segregated confinement unless it is necessary for administrative control. Hoss is suffering deprivation of the liberty for a prolonged, indefinite period of time. The severity of this deprivation is emphasized by expert testimony in this case that Hoss’ prolonged isolation in the BAU may cause psychological damage. From all that has been said, it is readily apparent that the liberty interest in freedom from segregated confinement is keyed to the nonexistence of reasons to impose such confinement. Indeed," }, { "docid": "7622034", "title": "", "text": "451 (1976). Only then does the inquiry shift to whether the procedures employed to protect that interest were constitutionally adequate. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Here, Burton alleges a constitutional violation on the basis of the procedures used by the prison authorities to keep him in administrative segregation. This type of segregated confinement implicates a liberty interest cognizable under the fourteenth amendment. Hewitt v. Helms, 459 U.S. at 468, 103 S.Ct. at 870. As the Hewitt Court stated, the Pennsylvania regulations which establish administrative segregation also establish “a protected liberty interest [in the inmates] in remaining in the general prison population.” Id. A protected interest being present, the focus of our analysis is whether the process afforded Burton satisfied fourteenth amendment requirements. III. As the Supreme Court has noted, when a cognizable interest is at issue, the determination of what process is due generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. The requirements of due process are thus necessarily “flexible and variable dependent upon the particular situation being examined.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). This is especially true in the prison context where the reach of the due process clause is highly restricted. As the Supreme Court has stated, “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). And finally, it must be remembered that “[prison" }, { "docid": "6363833", "title": "", "text": "the facility, and will be assigned housing according to the classification. J.A. at 208 (emphasis added). The following subsection entitled “Procedure” con tains equally explicit mandatory language ensuring that “[t]he Jail Administrator, Chief Jailer, or Booking Officer, will review the admissions records and any existing facility records concerning the inmate,” and that “[t]he Booking Officer will then assign a classification code.” Id. at 209 (emphasis added). Moreover, the Manual sets forth specific substantive predicates that limit prison officials’ discretion in classifying inmates. Of particular relevance to the instant case, the procedures require prison officials to consider an inmate’s “History of Violent or Disruptive Behavior,” “Evidence of Homosexuality or Vulnerability to attack,” and “Evidence of Mental or Physical Handicap.” Id. The regulations thus established a protectible liberty interest in classifying plaintiff with regard to his safety and mental disabilities. The Supreme Court has recently reiterated that, under the rubric of procedural due process, “the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.\" Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). Thus, where procedural due process is alleged, “[t]he constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.” Id. at 126, 110 S.Ct. at 983. To determine what procedural protections are constitutionally required in the given case, several factors come into play: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Whether the postdeprivation remedies provide constitutionally adequate recourse will turn on “whether" }, { "docid": "254480", "title": "", "text": "due process mandates the right to counsel at student expulsion proceedings. Mills v. Board of Education of District of Columbia, 348 F.Supp. 866, 881 (D.D.C.1972); Givens v. Poe, 346 F.Supp. 202, 209 (W.D.N.C.1972); Esteban v. Central Missouri State College, 277 F.Supp. 649, 651 (W.D.Mo.1967). Because of the lack of compelling precedent, we apply the traditional due process balancing test as delineated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): More precisely, our prior decisions indicate that identification of the specific .dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See also Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 99-100, 98 S.Ct. 948, 55 L.Ed.2d 124, 46 U.S.L.W. 4179, 4185 (1978); Goldberg v. Kelly, 397 U.S. 254, 263-271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The private interest and risk of erroneous deprivation that will be affected by the refusal of the hearing board to allow appellee the assistance of counsel depend upon the choice made at the hearing. If appellee chooses not to risk self-incrimination, he risks loss of his college degree. If he chooses to protect his degree, he risks self-incrimination and possible imprisonment of up to twenty years. All that appellee asks is that he be allowed the advice of counsel when he throws his college degree into the balance against a possible loss of liberty. Appellee has not asked that the hearing be postponed until after the criminal case has been tried; he is willing to participate in the hearing provided he is accompanied by counsel to advise and guide him. The role of his attorney could be analogized to that of counsel representing a client" }, { "docid": "21857770", "title": "", "text": "of whether reexamination should proceed, and is in tune with the Congressional expectation that patent holders would not have to participate during this period. B. Although we affirm that § 1.530(a) is within the statutory mandate, Gould has also raised constitutional issues of due process. While due process safeguards have long been applied to the procedures of administrative agencies, a specialized jurisprudence has developed under the ambit of the Fifth Amendment. The sort of provision represented by § 1.530(a), wherein an initial agency action affects property or personal rights, has been considered by courts in many contexts and has led to the formulation of a general test for due process in administrative procedures, summarized in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), as requiring evaluation of three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. at 903 (citation omitted). Evaluating these factors, reference is made to our prior opinion for discussion of the property interests affected by reexamination, 758 F.2d at 599-601, 225 USPQ at 246-48. Although Gould has postulated substantial commercial ramifications of an erroneous decision at the threshold stage, the effect of § 1.530(a) on Gould’s property interests is fairly viewed as the temporary deprivation of full enjoyment of patent rights, for the period needed to correct an erroneous determination to reexamine his patents. The constitutional issue is not whether Gould’s patents may be reexamined under a retroactive statute, as treated in our prior decision, but solely the impact of an erroneous decision to reexamine, made because the patentee was silenced during the initial determination. The risk of examiner error due to lack of information — information that the patentee is able and anxious to contribute — relates only to the question" }, { "docid": "4904141", "title": "", "text": "and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See Board of Curators of the University of Missouri et al. v. Horowitz, - U.S. -, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). These factors are at least arguably present in this case, lending support to the claim that an administrative hearing is mandated by the Constitution. In keeping with long-established principle, we rule only on the procedural requirements of Title VI, and not on the constitutional issue. Statutory interpretation in this case obviates the need to pass on questions of constitutionality. See, e. g., Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed.2d 1000 (1963). IV. CONCLUSION In view of our ruling that HEW has not properly complied with procedures required by Title VI, we remand this matter to HEW for further proceedings in accordance with this opinion. The September 7, 1977 Memorandum of Understanding is set aside. Any reassignments or other action already taken pursuant to the Memorandum are unaffected by this decision. The decision is stayed until April 7, 1978 to permit appropriate appellate applications and to minimize any disruption caused by the termination of existing assignment plans. Nothing in this opinion should be construed as inhibiting anyone from taking legislative or other action to meet any problems of possible discrimination in the New York City school system. So ordered. APPENDIX MEMORANDUM OF UNDERSTANDING BETWEEN: THE BOARD OF EDUCATION OF THE CITY OF NEW YORK AND THE OFFICE FOR CIVIL RIGHTS, UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE The Board of Education agrees to adopt and implement, and the Office for Civil Rights agrees to accept as compliance with the requirements of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, as to the subjects addressed, an affirmative action plan containing, in detailed form, the following commitments and affirmative actions with respect to the employment and assignment of teachers and supervisors in the" }, { "docid": "10897871", "title": "", "text": "the identity of issues as to all potential class litigants .. ..” Id. at 611-12. Defendant in the present case has not conceded that an identity of issues exists with respect to all potential members of plaintiffs’ class. As a result, the Court does not believe that class certification is unwarranted. . Defendant would seem to argue that even before the Court considers this issue, it should examine whether plaintiffs have exhausted their administrative remedies. However, Section 1983 plaintiffs are not required to exhaust administrative remedies before they file a civil rights action. Meyer v. Frank, 550 F.2d 726 (2d Cir. 1977); Gill v. Monroe County Dep’t of Social Services, 79 F.R.D. 316 (W.D.N.Y.1978). . This balancing test was stated slightly differently in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest including {he function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, at 263-271, 90 S.Ct. at 1018. 424 U.S. at 334 -35, 96 S.Ct. at 903. The Court stated further: “[i]n assessing what process is due in this case, substantial weight must be given to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs that procedures they have provided assure fair consideration of the entitlement claims of individuals.” id. at 349, 96 S.Ct. at 909. . Some commentators have expressed their displeasure with this “error -centered” theoretical grounding of procedural due process. They believe that the pillars of due process rest not only on concepts of utilitarianism, but also on concepts of individual dignity. See Tribe, American Constitutional Law 538-39 (1978); Marshaw, J. The Supreme Court’s Due Process Calculus" }, { "docid": "1136876", "title": "", "text": "to explain the events reported. Perry also wrote to the Director of the FBI listing in detail specific changes he wanted made in the memorandum. Although the FBI refused to expunge the material as Perry requested, it did put Perry’s letter challenging the memorandum’s accuracy in its file. Even if we were to find that Perry has a liberty interest, additional due process requirements would constitute an unnecessary and impractical burden on federal law enforcement practices. Federal law enforcement positions are too critical and sensitive to make it unnecessarily difficult for one federal law enforcement agency to pass pertinent investigative leads to another federal law enforcement agency for its consideration. Perry may have suffered a serious deprivation in not being hired for a government job, but the private interest involved is only one of three factors to be weighed in the due process analysis. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1975); Board of Curators v. Horowitz, 435 U.S. 78, 86 n. 3, 98 S.Ct. 948, 953 n. 3, 55 L.Ed.2d 124 (1977). The other two factors to be considered are “the risk of erroneous deprivation of such [a private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards and the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Matthews, 424 U.S. at 335, 96 S.Ct. at 903. The burden on the government, and particularly the FBI, of holding a full hearing in these circumstances for every unsuccessful job applicant would not only be enormous, but also misguided. On balance, the risk to public safety far outweighs the possibility that some potential law enforcement employer might rely on the leads in the FBI file, without more, in rejecting an otherwise qualified applicant who disputed the validity of the information. We find that no liberty interest was harmed; but beyond that, even if there may have been a liberty interest, due process was amply satisfied. Affirmed. . In his pro se appeal brief" }, { "docid": "23124693", "title": "", "text": "without adequately developing evidence of her purported drug addiction and mental impairments. These constitutional claims are sufficiently “colorable” to bestow subject matter jurisdiction on this court. Compare Gipson, 633 F.2d at 122 (constitutional claim sufficiently colorable) with Howard, 590 F.2d at 138 (no colorable constitutional issue raised). In determining whether there is a substantive violation of due process, the Supreme Court directs attention to three factors: Eldridge, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33. [Fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The private interest affected by the Secretary’s reopening procedure is Cherry’s right to disability benefits from June, 1979, the onset date alleged in her first application, see Record, vol. 2 at 76, 168, to October 16, 1980, the date the original decision acquired res judicata effect. There is no question that this is a significant interest since an incorrect decision not to reopen would completely foreclose her opportunity to obtain these benefits. See Shrader v. Harris, 631 F.2d 297, 301 (4th Cir.1980) (procedural due process violated in part because claimant’s interest was avoiding total, irrevocable deprivation of benefits); cf. Eldridge, supra (no due process violation in part because claimant’s interest confined to avoiding suspension of payments between termination and a post-termination hearing). We do not perceive, however, a significant risk of an erroneous deprivation of this interest through the procedures actually employed by the AU. Procedural due process requires only an opportunity to be heard “at a meaningful time and in a meaningful manner.” Eldridge, 424 U.S. at 333, 96 S.Ct. at 902, 47 L.Ed.2d at 32. Cherry was represented by counsel at an administrative hearing and had the opportunity to present all information relevant to the reopening decision, as well as the right to appeal. The Secretary’s failure" }, { "docid": "4904140", "title": "", "text": "a hearing might be conducted by an administrative judge using procedures developed for approving settlement of class actions. At class action settlement hearings conducted by a court, the judge “should learn the circumstances surrounding the negotiations and hear not only from the parties and counsel who participated in the negotiations but also from those, if any, who were left out of the negotiations.” 1 Moore’s Federal Practice, Part 2, Manual for Complex Litigation — 1.46 Settlement of Class Actions: Criteria and Procedure in Approving Settlements of Class Actions — Part I — Procedures at 63 (1977) (emphasis added). B. Avoidance of Constitutional Questions This litigation raises serious constitutional questions. As the Supreme Court recently noted, three factors are of principal relevance in determining what process is constitutionally due: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See Board of Curators of the University of Missouri et al. v. Horowitz, - U.S. -, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). These factors are at least arguably present in this case, lending support to the claim that an administrative hearing is mandated by the Constitution. In keeping with long-established principle, we rule only on the procedural requirements of Title VI, and not on the constitutional issue. Statutory interpretation in this case obviates the need to pass on questions of constitutionality. See, e. g., Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed.2d 1000 (1963). IV. CONCLUSION In view of our ruling that HEW has not properly complied with procedures required by Title VI, we remand this matter to HEW for further proceedings in accordance with this opinion. The September 7, 1977 Memorandum of Understanding is set aside. Any reassignments" }, { "docid": "4904139", "title": "", "text": "order, and the relief to be obtained pursuant to the order, and any other information which it deems helpful in assisting interested persons to understand the terms of the order. It must also publish the agreement, order, and explanation in the Federal Register. For a period of sixty days after placement of the order on the public record and issuance of the statement, the Commission must receive and consider any comments or views concerning the order that may be filed by any interested persons. After the expiration of sixty days, it may either withdraw its acceptance of the agreement and so notify the other party, or leave the consent order intact. Id. See Action on Safety and Health v. F.T.C., 162 U.S.App.D.C. 215, 217, 498 F.2d 757, 759 (1974). The accord reached by the Board of Education and HEW is in substance, if not form, a consent order. A second alternative would be to hold a modified hearing that, at the very least, gave members of the public an opportunity to voice their opinions. Such a hearing might be conducted by an administrative judge using procedures developed for approving settlement of class actions. At class action settlement hearings conducted by a court, the judge “should learn the circumstances surrounding the negotiations and hear not only from the parties and counsel who participated in the negotiations but also from those, if any, who were left out of the negotiations.” 1 Moore’s Federal Practice, Part 2, Manual for Complex Litigation — 1.46 Settlement of Class Actions: Criteria and Procedure in Approving Settlements of Class Actions — Part I — Procedures at 63 (1977) (emphasis added). B. Avoidance of Constitutional Questions This litigation raises serious constitutional questions. As the Supreme Court recently noted, three factors are of principal relevance in determining what process is constitutionally due: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved" }, { "docid": "9389997", "title": "", "text": "v. Cen tral Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)) (citations omitted). Due process mandates that there be an opportunity for “some kind of hearing” before a person is finally deprived of his or her property, Wolff v. McDonnell, 418 U.S. 539, 577-78, 94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935 (1974), and that such hearing occur “at a meaningful time and in a meaningful manner,” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The contours of due process are flexible, however, and the requirement of a hearing is limited to that which is “appropriate to the nature of the case.” Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971); Mullane, supra, 339 U.S. at 313, 70 S.Ct. at 656. No one questions that the term special permits at issue in the present case constitute protectible property interests. Thus we must decide whether the District Director in suspending the term special permits of Gallagher and Alltransport provided constitutionally adequate procedures. Our analysis follows the Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), where the Court adopted an explicit balancing approach for assessing the sufficiency of the procedures associated with government action affecting important interests: [Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S.Ct. at 903. See also Sutton v. City of Milwaukee, 672 F.2d 644, 645-46 (7th Cir. 1982) (Mathews “announced a simple cost-benefit test of general applicability”). We have considered these factors and conclude that, on balance, the District Director’s procedures are not constitutionally" }, { "docid": "888717", "title": "", "text": "adversary context prior to the suspension of a child for the entire school year for disciplinary reasons. - U.S. at -, 98 S.Ct. 948. In concurring in part and dissenting in part in Horowitz, Justice Marshall referred to the three relevant factors listed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, as relevant in determining what process is “due” in a situation: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mr. Whiteside’s private interest was the value of the second semester of his sophomore year in high school. There was some risk of an erroneous deprivation of that interest due to the procedure used to expel him, but he had ample notice of the charges against him and three different opportunities before three different authorities to explain his version of the facts. The cost and administrative burden on schools to hold full-scale hearings with compulsory process, cross-examination and discovery prior to expelling students for the remainder of the school year would greatly surpass the risk of error embodied in the Louisiana expulsion procedure. Even under Justice Marshall’s analysis, Louisiana’s expulsion procedure passes muster. In the circumstances of this case, Danny Whiteside and his mother were entitled to a notice of the charges against him sufficient to prepare a defense of those charges. The charges need not have been drawn with the specificity required for a criminal trial proceeding. Jenkins v. Louisiana State Board of Education, 506 F.2d 992 (5th Cir.), reh. denied 510 F.2d 384 (5th Cir. 1975). Mr. Whiteside was entitled to a hearing, but the hearing need not have been in accordance with criminal trial procedure. Jenkins v. Louisiana State Board of Education, supra; Betts v. Board of Education, 466 F.2d 629 (7th Cir. 1972). The School" }, { "docid": "21641149", "title": "", "text": "not violate due process); Williams v. Wallis, 734 F.2d 1434, 1440 (11th Cir.1984) (concluding that in the context of Alabama’s statutory scheme for release of insanity acquittees, “due process does not forbid placing the burden of proof on the acquit-tee at the habeas proceeding to prove by a preponderance of the evidence that he is no longer mentally ill or dangerous”). Second, the two circuits that have examined the constitutionality of § 4243(d) have both found no due process violations. See United States v. Phelps, 955 F.2d 1258, 1267-68 (9th Cir.1992) (“[W]e hold that the statute [§ 4243(d) ] does not violate due process by placing the burden of proof on an insanity acquittee in a release hearing.”); United States v. Wallace, 845 F.2d 1471, 1474 (8th Cir.1988) (“[P]laeing the burden of proof on a defendant found not guilty only by reason of insanity and committed in accordance with § 4243 comports with due process and passes constitutional muster.”). Third, in determining whether procedures in the civil context satisfy due process, this Court traditionally has balanced the three factors set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). These three Mathews factors are (1) “the private interest that will be affected by the official action”; .(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335, 96 S.Ct. 893. After balancing these factors, as outlined below, we conclude that § 4243(d) is constitutional. As to the first Mathews factor, “[i]t is clear that ‘commitment for any purpose constitutes a significant deprivation of ’liberty that requires due process protection.’ ” Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). The private interest at issue is also the “stigma” of being placed" }, { "docid": "13958256", "title": "", "text": "of the City of New Orleans. CONCLUSIONS OP LAW As indicated in the Minute Entry of January 6, 1978, this case presents three separate procedural due process challenges to the present New Orleans traffic ordinances: a challenge to ordinance section 38-274 in the suit by Delores Bush and the class she represents, a challenge to ordinance section 42-43 in the suit by Velma Gillam and the class she represents, and a challenge to ordinance section 42-43 in the suit by Jerri L. Klein and the class she represents. Having already determined that the property interests which plaintiffs assert are of such nature to fall within the protective ambit of the Due Process Clause, there only remains the determination of what process is due before those interests can constitutionally be deprived. The test which governs this Court’s determination of what process is due was initially set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1975), as follows: “. . . identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” This test has most recently been interpreted and approvingly applied in Memphis v. Craft, - U.S. -, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). A. ORDINANCE SECTION 38-274 and the DELORES BUSH CLASS The constitutionality of ordinance section 38-274 and the practices thereunder are subjected to fourfold attack by plaintiff Bush and the class she represents: 1. Section 38-274 is allegedly denying procedural due process by being overbroad in authorizing the towing/impounding of unoccupied vehicles which are found to be allegedly violating “any traffic law.” 2. Procedural due process is allegedly denied because the notice sent pursuant to 38-274 is constitutionally inadequate and is not promptly" }, { "docid": "22600705", "title": "", "text": "in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Parratt, 451 U. S., at 537; Carey v. Piphus, 435 U. S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, lib erty, or property”). The constitutional violation actionable under §1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law. In this case, Burch does not claim that his confinement at FSH violated any of the specific guarantees of the Bill of Rights. Burch’s complaint could be read to include a substantive due process claim, but that issue was not raised in the petition for certiorari, and we express no view on whether the facts Burch alleges could give rise to such a claim. The claim at issue falls within the third, or procedural, category of § 1983 claims based on the Due Process Clause. B Due process, as this Court often has said, is a flexible concept that varies with the particular situation. To determine what procedural protections the Constitution requires in a particular case, we weigh several factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976). Applying this test, the Court usually has held that the Constitution requires some kind of a hearing before" }, { "docid": "2882094", "title": "", "text": "to exhaust administrative remedies, and therefore was barred from seeking injunctive relief, is affirmed. C. Due Process Liberty Interest Because we conclude that appellant received all the process he was due, and therefore is not entitled to any relief based on the Fifth Amendment, we affirm the district court as to the constitutional claim without deciding the question whether appellant has in fact been deprived of a protected liberty interest. Cf. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Fourteenth Amendment due process satisfied); Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-85, 98 S.Ct. 948, 952, 55 L.Ed.2d 124 (1978) (same). The specific remedy appellant seeks is the opportunity to refute the allegedly erroneous information in his personnel file. He argues that the constitutional assurance of due process extends in this case to a right of oral hearing. In addition, appellant claims the government has a constitutional obligation to give notice prior to entering potentially damaging information in a file. Due process is a flexible concept, tailored to provide a meaningful opportunity to be heard, but satisfied by no fixed formula. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Appellant makes no serious argument, and there is none, that the incidents recorded in the OPM file cannot be adequately disputed through documentary evidence. Nor can appellant make the case that the government must give advance notice before placing damaging evidence in someone’s file. See Reply Brief for Appellant at 12. The opportunity to refute incorrect charges is not diminished absent advance notice. Moreover, even if appellant suffered serious injury, due process analysis must still weigh “the risk of an erroneous deprivation of such [a private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards” and “the Government’s interest, including the function involved and the fiscal , and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct." }, { "docid": "888716", "title": "", "text": "L.Ed.2d 124 (1978), the court stated: “In Goss v. Lopez, 419 U.S. 565 [95 S.Ct. 729, 42 L.Ed.2d 725] (1975), we held that due process requires, in connection with the suspension of a student from public school for disciplinary reasons, ‘that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have an opportunity to present his side of the story.’ Id., at 581 [95 S.Ct., at 740]. All that Goss required was an ‘informal give-and-take’ between the student and the administrative body dismissing him that would, at least, give the student ‘the opportunity to characterize his conduct and put it in what he deems the proper context.’ Id., at 584 [95 S.Ct., at 741].” - U.S. at -, 98 S.Ct. at 952. The indications from Horowitz are merely dicta, because Horowitz dealt with an academic expulsion rather than a disciplinary expulsion. However, the intent of the Court is clear: Goss does not require a formal hearing in the true adversary context prior to the suspension of a child for the entire school year for disciplinary reasons. - U.S. at -, 98 S.Ct. 948. In concurring in part and dissenting in part in Horowitz, Justice Marshall referred to the three relevant factors listed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, as relevant in determining what process is “due” in a situation: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mr. Whiteside’s private interest was the value of the second semester of his sophomore year in high school. There was some risk of an erroneous deprivation of that interest due to the procedure used to expel him, but he had ample notice of the" }, { "docid": "705035", "title": "", "text": "It need not be discussed at length; it is inapposite since, in Daughters of Miriam, the Provider had not terminated from the Program. C. Right to Fair Hearing Violated Fairlane claims also that its right to a fair hearing was violated because the Hearing Panel was without authority to hear Constitutional claims or to question the Secretary’s use of salary guidelines in establishing reasonable owner compensation. Fairlane does not contend that the HEW regulations applied by the Hearing Panel or the Medicare Act are Constitutionally infirm. It simply contends that unless the Hearing Panel accepted evidence in support of Fairlane’s challenge to methodology and Constitutional challenges, a “fair hearing” was definitionally impossible. However, Fairlane was afforded its opportunity to present those Constitutional arguments in this Court’s judicial review of the proceedings. The Court holds that extensive pleadings and arguments which have been submitted by Fairlane fail to raise a colorable Constitutional claim. “Due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471,481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The Court expanded on that aphorism in Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976) (predetermination evidentiary hearing in disability termination proceedings not necessary) stating, “resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected .... [D]ue process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Analyzing these factors, the Supreme Court in Eldridge set minimal due process standards which included notice, opportunity for written response, prompt evidentiary hearing and judicial review thereafter. In dicta, the Court added, “[t]he judicial model of an evidentiary hearing is neither" }, { "docid": "14688709", "title": "", "text": "must ensure that the required hearing is completed in time. However, this is not within the movant's proximate control. Besides the usual reliance on the diligence of counsel, the movant must rely on the Bankruptcy Clerk’s ability to schedule the hearing and serve interested parties. Not the movant, but rather the court is the gatekeeper who determines when hearings may be set. This removes control from the party affected. It also places a severe burden on court administrators. They are required to treat § 362(c)(3)(B) motions as urgent priorities. In many cases, this has required the Bankruptcy Clerk to serve notices by hand at considerable public expense. The Supreme Court relies on a balancing test to determine whether a procedure provides constitutional due process: [D]ue process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). Generally, the Government’s interest in administrative efficiency counter-balances the private interests affected and the risks of erroneous deprivation. Mathews, 424 U.S. 319, 347-49, 96 S.Ct. 893, 909-910, 47 L.Ed.2d 18, 41-42; see also Grayden v. Rhodes, 345 F.3d 1225, 1233-37 (11th Cir.2003) That is not the case here. With respect to § 362(c)(3)(B), the Government's fiscal and administrative burden would be substantially reduced if hearings were permitted beyond the statute's \"30-day period.” Were this insufficient to raise serious concerns over its constitutionality, §§ 362(c)(3) & (4) also raise an issue of equal protection. Although the equal protection clause of the Fourteenth Amendment specifically applies to acts of the states, the Supreme Court recognizes an inferred right to equal protection under the Fifth Amendment. Bolling v. Sharpe et al., 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884," } ]
732017
U.S.C. § 2243 statute of limitations grounds, and he appeals that denial. As explained in Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998), we are limited in our review to the issue specified in the certificate of appeala-bility. That issue is whether the time limit for filing Coates’ federal habeas application was tolled during the ninety-day period following the Georgia Supreme Court’s refusal to review the state trial court’s denial of his petition for collateral relief. In other words, did the section 2244(d)(1) calendar run during the ninety-day period in which Coates could have (but did not) file in the United States Supreme Court a petition for a writ of certiorari from the denial of state collateral relief. In REDACTED the Tenth Circuit was faced with the issue of whether the actual filing of a petition for a writ of certiorari in the United States Supreme Court following the denial of collateral relief in the state courts tolled the running of the statute of limitations. The Tenth Circuit looked to the language of 28 U.S.C. § 2244(d)(2), which is the provision applicable to tolling during state collateral proceedings, and contrasted it with the language of section 2244(d)(1), which is the provision applicable to tolling during direct appeal. Id. at 1155-56. The statute specifies that during direct appeal the tolling lasts until (or more accurately, the limitations period begins to run from) “the date on which the judgment became final by the
[ { "docid": "22346689", "title": "", "text": "May 11, 1998, and the habeas petition would have been timely. We hold that the limitation period was tolled only while petitioner was seeking state court review of his post-conviction application. See Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.1999) (holding that the term “pending” in § 2244(d)(2) must be construed “to encompass all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.” (emphasis added)). The time after the Oklahoma Court of Criminal Appeals finally denied his post-conviction application until the United States Supreme Court denied his petition for certiorari was not “time during which a properly filed application for State post-conviction ... review ... [was] pending,” and, therefore, it should be counted toward the one-year limitation period. 28 U.S.C. § 2244(d)(2). We have previously so held in an unpublished order and judgment. See Maloney v. Poppel, No. 98-6402, 1999 WL 157428, at *1 (10th Cir. Mar.23, 1999) (unpublished) (citing Barnett in holding that tolling did not continue to include time during which the petitioner could have petitioned the United States Supreme Court for certiorari). The tolling provision in § 2244(d)(2) is distinguishable from § 2244(d)(1)(A), which does take into account the time during which a petition for certiorari to the United States Supreme Court can be filed. Section 2244(d)(1) provides alternative dates from which the one-year limitation period begins to run. Subsection (A) provides that the one-year limitation period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Courts have held that, for purposes of this subsection and a similar section in § 2255, the judgment is not final and the one-year limitation period for filing for federal post-conviction relief does not begin to run until after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed. See, e.g., James" } ]
[ { "docid": "23522838", "title": "", "text": "U.S.C. § 2253(c)(1) to determine if Habteselassie is entitled to the benefit of the tolling provision contained in 28 U.S.C. § 2244(d)(2) and if his habeas petition is thereby rendered timely. For the following reasons, we reverse and remand. As relevant here, a one-year period of limitation applies to an application for a federal writ of habeas corpus and begins to run from the latest of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). [T]he judgment is not final and the one-year limitation period for filing for federal post-conviction relief does not begin to run until after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed. Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999). Because Habteselassie did not file a petition for certiorari to the United States Supreme Court, the one-year period of limitation started to run ninety days after October 15, 1996, the date the Colorado Supreme Court denied his petition for certiorari and his state court review was thus completed. See Sup.Ct. R. 13 (indicating that a petition for a writ of certiora-ri is timely when it is filed within ninety days following the entry of judgment). Accordingly, absent any tolling of the limitations period, Habteselassie would only have had until January 13, 1998, to file a habeas corpus petition in federal court, and his petition of November 30, 1998, would have been untimely. Section 2244(d)(2) allows a federal habe-as petitioner to toll this period of limitations while he seeks state post-conviction relief, however. Section 2244(d)(2) provides: “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.” The district court held that the time during which Habteselassie’s motion for state post-conviction relief was pending could not be tolled" }, { "docid": "14130374", "title": "", "text": "a federal habeas petition. “Such exhaustion does not include seeking certiorari from the state court’s denial of post-conviction relief.” Snow v. Ault, 238 F.3d at 1036. The result is also consistent with our precedent construing section 2244(d)(2). In Jones v. Morton, 195 F.3d 153 (3d Cir.1999), we considered whether a pending properly filed habeas petition tolls the statute of limitations under section 2244(d)(2) for purposes of filing a subsequent federal habeas petition. We concluded that it does not: Congress clearly intended that the word “State” would be read to modify both “post conviction” and “other collateral review” so that tolling would be afforded under § 2244(d)(2) for various forms of state review only. We find nothing in § 2244(d)(2)’s language or legislative history, and nothing in the policy concerns behind AEDPA’s enactment to suggest a contrary result. Id. at 159. Our conclusion in Jones supports the conclusion here that the statute of limitations was not tolled during the period when Stokes could have sought review in the Supreme Court. Finally, we note the reasoning undertaken by the Court of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000). There, the Court of Appeals held, as we do here, that the ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court did not toll the limitations period set forth in section 2244(d)(2). The Seventh Circuit’s holding was narrower than the holdings of other courts to have considered this issue. The court in Gutierrez wrote: Section 2244(d)(2) ... provides that the limitations period is tolled during the time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” * ‡ * % Because Gutierrez never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never “properly filed.” ... [I]n-stead of excluding time a pleading could have been filed, Congress explicitly required a “properly filed” pleading to toll the statute of limitations. Gutierrez did not properly file a petition for certiorari" }, { "docid": "23238941", "title": "", "text": "year limitations period is not tolled during the ninety days in which defendant could have petitioned the Supreme Court for a writ of certiora-ri. .. .’’Id. at 692. First, we reasoned, based on the statute’s plain language, the word “State” in section 2244(d)(2) modifies “post-conviction or other collateral relief.” Id. at 695. This court concluded that “[a] petition for certiorari to the United States Supreme Court is not ‘state post-conviction relief.’ Neither is such a petition ‘other state collateral relief.’” Id. Thus, we decided, as had the Tenth Circuit, that “a petition for writ of certiorari to the United States Supreme Court is ‘simply not an application for state review of any kind.’ ” Id. (citing Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir.1999)). We also reasoned that our holding was bolstered by the fact that seeking certiorari in the United States Supreme Court is not a mandatory part of state court review, as it is not a prerequisite to pursuing habeas corpus. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Finally, we concluded that differences in section 2244(d)(1)(A) and section 2244(d)(2) suggest that Congress did not intend section 2244(d)(2) toll ing to apply to potential Supreme Court review. I sham, 226 F.Sd at 695. Specifically, section 2244(d)(1)(A) provides that the one-year limitations period begins to run after “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” whereas Congress neglected to use similar language in section 2244(d)(2). Id. The Supreme Court has decided cases since I sham that cast that case in a different light. As to Isham’s first rationale, Duncan confirmed our interpretation that the word “State” in section 2244(d)(2) modifies “post-conviction or other collateral relief.” 533 U.S. at 175-76, 121 S.Ct. 2120. As to Isham’s second rationale, that petitioning for certiorari on the underlying conviction is not required in order to seek habeas corpus review, the Supreme Court’s recent decision in Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003)," }, { "docid": "22922235", "title": "", "text": "writ of habeas corpus. Under the AEDPA, however, a state prisoner must file his federal habeas corpus petition within one year of the date his state conviction became final. 28 U.S.C. § 2244(d)(1). White’s conviction became final on December 19, 1995, when he dismissed his direct appeal. See 28 U.S.C. § 2244(d)(1) (statute of limitations runs from “the conclusion of direct review or the time for seeking such review”). Because White’s conviction became final prior to the AEDPA’s enactment, the earnest date the one-year statute of limitations for filing his federal habeas petition would have begun to run was the date the AEDPA went into effect, April 24, 1996. See Nino v. Galaza, 188 F.3d 1003, 1006 (9th Cir.1999). On that date, however, White had a petition for a writ of habeas corpus pending before the Superior Court of Guam. Thus, the statute of limitations was further tolled pursuant to 28 U.S.C. § 2244(d)(2), which provides tolling for “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending.” The statute of limitations remained tolled under 28 U.S.C. § 2244(d)(2) while White sought a writ of habeas corpus through Guam’s territorial procedures. See Nino, 183 F.3d at 1006. Consistent with those procedures, White presented his habeas petition to the Superior Court of Guam and then to the Supreme Court of Guam. The latter court denied White’s petition on December 16, 1998. That denial ended statutory tolling of the statute of limitations under § 2244(d)(2), and the one-year statute of limitations began to run. White did not file his federal habeas petition in the United States District Court until March 13, 2000. White’s federal petition, therefore, is barred by the one-year statute of limitations unless he is entitled to some additional period of tolling. White argues he is entitled to an additional 90 days of tolling from December 16, 1998, the date the Supreme Court of Guam denied his territorial habeas petition, because during that 90-day period he could have filed a petition for a writ of certiorari with the United States Supreme Court." }, { "docid": "19899793", "title": "", "text": "that a coram nobis petition should be considered “pending” for an additional thirty days after it was denied. 255 F.3d 65, 74 (2d Cir.2001). We ultimately determined it was not necessary to answer that question, but noted in dicta that a decision that the petition was still “pending” during that period would “be in some tension with our holding in Geraci that a coram nobis motion ceases to be pending on the date it is denied by the Appellate Division.” Id. at 74 n. 8 (quoting Geraci, 211 F.3d at 9). Similarly, we have held that the AEDPA limitations period is not tolled during the time in which a petition for a writ of certiorari to the United States Supreme Court could have been filed with respect to a state collateral motion, Smaldone, 273 F.3d at 138, even though the limitations period is tolled during the time in which a defendant could file a petition for certiorari seeking direct review of the state court conviction, Williams, 237 F.3d at 151. This is because the timing — related language of 28 U.S.C. § 2244(d)(1)(A) expressly provides that the limitations period begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” whereas § 2244(d)(2) provides for tolling only during the time in which “a properly filed application for State post-conviction or other collateral review with respect to a pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(1-2) (emphasis added). The Tenth Circuit has held that the fifteen-day window for filing a motion for rehearing after the denial of leave to appeal does toll the AEDPA statute of limitations. See Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir.2004). We are persuaded, however, that the language of 28 U.S.C. § 2244(d)(2), as construed by our precedents, compels the conclusion that the one-year AEDPA limitations period is not tolled by the thirty-day period in which the petitioner could have filed, but did not file, a motion for reconsideration of the New York State court’s denial" }, { "docid": "22803385", "title": "", "text": "State’s motion to dismiss on the grounds of procedural bar. Instead, the court relied solely on its prior holding that Bronaugh’s habeas petition was time-barred as the basis of its dismissal. . Ohio R.App.P. 26(B)(1) states: A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment un less the applicant shows good cause for filing at a later time. . In Isham, the court held that, when seeking post-conviction relief under § 2244(d)(2), the one-year period of limitations is not tolled during that “time in which a defendant could have potentially filed a petition for certiorari with the United States Supreme Court [ ] following a state court’s denial of post-conviction relief.’’ Isham, 226 F.3d at 695. In arriving at this conclusion, the court compared the language of § 2244(d)(1)(A), the provision dealing with when the statute of limitations should begin to run following direct review, with the language of the post-conviction provision, § 2244(d)(2). The court noted thal § 2244(d)(1)(A) states that the one-year statute of limitations “begins to run on ‘the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.’ ” Id. (quoting § 2244(d)(1)(A)). The court, acknowledging that other courts have concluded this language to mean that the statute of limitations should not run following direct review until after the time for petitioning for a writ of certiorari with the United States Supreme Court has expired, staled that, because § 2244(d)(2) did not contain similar language to § 2244(d)(1)(A), it was “clear that Congress intended to exclude potential Supreme Court review as a basis for tolling the one year limitations period” during post-conviction proceedings. Id. . Even if we assume that the United States Supreme Court would hold that the Ohio Supreme Court’s filing requirements constitute an" }, { "docid": "11822025", "title": "", "text": "Collins), filed a pleading asserting that Petitioner was entitled to equitable tolling of the limitations period for filing his federal habeas petition. The district court concluded that equitable tolling was not warranted and dismissed Petitioner’s petition as untimely. The district court then granted a certificate of appealability on the following issue: “whether equitable tolling enlarged the one-year time period for [Petitioner] to file his 28 U.S.C. § 2254 petition.” II. Standard of Review We review the district court’s denial of equitable tolling de novo. Drew v. Deft of Corr., 297 F.3d 1278, 1283 (11th Cir.2002). We review a trial court’s decision whether to conduct an evidentiary hearing on an equitable tolling claim for an abuse of discretion. Id. III. Discussion Pertinent to this case, the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), imposes a one-year statute of limitations for filing a federal habeas petition that runs from the date on which the state court judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment of conviction becomes final when “the Supreme Court has had an opportunity to review the case or the time for seeking review has expired.” Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir.2000). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled for 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.” That Petitioner filed his federal habeas petition beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1) is undisputed. Petitioner’s limitations period began running on 1 October 2001, the date on which the United States Supreme Court denied certiorari on the direct appeal of Petitioner’s convictions and sentences. Petitioner filed his motion for state post-conviction relief — a motion which tolled the limitations period — on 19 September 2002: 353 days later; thus, eleven months and nineteen days of the one-year period had expired before this state court filing. Petitioner’s post-conviction motion was denied, and the Florida Supreme Court affirmed the denial on 10 November 2005;" }, { "docid": "3439970", "title": "", "text": "and therefore denied Stokes relief. Stokes then filed a timely appeal. We granted a certificate of appealability, framing the issue before us as follows: Was “Stokes’ time to file a federal habeas corpus petition under 28 U.S.C. § 2244(d)(1) ... tolled under 28 U.S.C. § 2244(d)(2) for the ninety day period during which Stokes could have filed a petition for certiorari in the United States Supreme Court.” Stokes, 247 F.3d at 540. Our answer was clear: ‘We join all of the other Courts of Appeals to have decided this issue, holding that the ninety day period during which a certiorari petition may be filed does not toll the applicable statute of limitations.” Id. Thus, we affirmed the order of the district court denying the petition on timeliness grounds. After citing the numerous cases consistent with the result we were reaching, id. at 542, we explained our reasons for our conclusion as follows. First, we pointed out that the tolling provision for “State post-conviction or other collateral review” proceedings in section 2244(d)(2) differed from section 2244(d)(1)(A) as the latter section indicated that the limitation period would run from the time “the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Section 2244(d)(2) did not have parallel language as it merely excluded the time during which the state proceeding “is pending” for computation of the limitations period. Stokes, 247 F.3d at 542. Next we pointed out that our reading of section 2244(d)(2) was consistent with “the requirement that a petitioner exhaust state remedies prior to instituting a federal habeas petition.” Id. Then we stated that our result was consistent with our holding in Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999), in which we held that a properly filed federal habeas petition did not. toll the statute of limitations under section 2244(d)(2) for filing a subsequent federal habeas petition as “State” in “State post-conviction or other collateral review” modifies both “post-conviction” and “collateral review.” Finally, we held that, in any event, there would not be tolling under section 2244(d)(2) as Stokes" }, { "docid": "13105430", "title": "", "text": "retroactively applicable to cases on collateral review; or D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1) (West Cumulative Annual Pocket Part 2001). In interpreting § 2244(d)(1)(A), the Second Circuit recently held that the limitations period “does not begin to run until the completion of direct appellate review in the state court system and either the completion of certio-rari proceedings in the United States Supreme Court, or—if the prisoner elects not to file a petition for certiorari—the time to seek direct review via certiorari has expired.” Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.2001). Petitioners whose convictions became final prior to the enactment of the AEDPA are allowed a period of one year after the enactment date to file their petitions. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998). Pursuant to 28 U.S.C. § 2244(d)(2), the one-year limitations period may be tolled during the pendency of “a properly filed application for State post-conviction or other collateral review.” This tolling provision merely “excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (per curiam), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000). Pacheco’s state court conviction became final on September 7, 1993, the conclusion of ninety days during which he could have sought certiorari in the United States Supreme Court. Ross, 150 F.3d at 98. Because his conviction became final before the enactment of the AEDPA, the statute of limitations for Pacheco’s writ of habeas corpus began to run on April 24, 1996, and ended on April 24, 1997. Id. at 103. Pacheco filed his amended petition on February 22, 2000, and it is, therefore, untimely unless the tardiness of his petition is excused. 2. Newly Discovered Evidence Under 28 U.S.C. § 2244(d)(1)(D) The AEDPA “newly discovered evidence” provision runs from “the date on which the factual predicate of the" }, { "docid": "3439969", "title": "", "text": "so on the basis of 28 U.S.C. §§ 1291 and 2253(c)(1)(A) and our review is plenary. See Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir.1997). III. DISCUSSION As we set forth above we are concerned on this appeal with the applicability of Stokes and thus we commence our discussion by describing that opinion. In Stokes the petitioner, Stokes, had been convicted at a jury trial in Pennsylvania in proceedings completed on direct appeal in 1987. After he initially was unsuccessful in a state post-conviction relief proceeding he filed a second petition for such relief but the state trial court denied that petition on January 3, 1996. He appealed from that denial but the Superior Court affirmed the denial on December 26, 1996, and the Supreme Court of Pennsylvania denied allo-catur on July 2, 1997. Stokes did not petition for certiorari but on September 28, 1998, filed a petition for habeas corpus in the district court under 28 U.S.C. § 2254. The district. court held that the petition was untimely under 28 U.S.C. § 2254(d)(1) and therefore denied Stokes relief. Stokes then filed a timely appeal. We granted a certificate of appealability, framing the issue before us as follows: Was “Stokes’ time to file a federal habeas corpus petition under 28 U.S.C. § 2244(d)(1) ... tolled under 28 U.S.C. § 2244(d)(2) for the ninety day period during which Stokes could have filed a petition for certiorari in the United States Supreme Court.” Stokes, 247 F.3d at 540. Our answer was clear: ‘We join all of the other Courts of Appeals to have decided this issue, holding that the ninety day period during which a certiorari petition may be filed does not toll the applicable statute of limitations.” Id. Thus, we affirmed the order of the district court denying the petition on timeliness grounds. After citing the numerous cases consistent with the result we were reaching, id. at 542, we explained our reasons for our conclusion as follows. First, we pointed out that the tolling provision for “State post-conviction or other collateral review” proceedings in section 2244(d)(2) differed from section 2244(d)(1)(A)" }, { "docid": "23076676", "title": "", "text": "day after the Texas Court of Criminal Appeals denied the habeas application on September 18, 1997. Ott asserts two bases that would prevent his September 23, 1997 application from being deemed untimely filed. First, he contends that the ninety days in which a state habe-as petitioner may petition the United States Supreme Court for a writ of certio-rari, even if no petition for certiorari is filed, should toll the limitations period. Second, he asserts that the limitations period in this case should be extended by the doctrine of equitable tolling. I Ott first contends that § 2244(d)(2), which tolls the limitations period while a “properly filed application for State post-conviction or other collateral review” is pending, includes the ninety days in which a state habeas petitioner may file a petition for writ of certiorari with the United States Supreme Court. He maintains that expiration of the limitations period prior to the time in which he could seek Supreme Court review would unfairly penalize those who desire to petition for cer- tiorari. We review this question of statutory construction de novo, We have not previously had an opportunity to consider this issue. We now reject same. We agree with our colleagues in the Tenth Circuit that § 2244(d)(2) does not toll the limitations period from the time of denial of state habeas relief by the state high court until the time in which a petitioner could have petitioned the United States Supreme Court for certiorari. First, unlike § 2244(d)(1)(A), which takes into account the time for filing a certiorari petition in determining the finality of a conviction on direct review, § 2244(d)(2) contains no such provision. Rather, § 2244(d)(2) only tolls the period for a properly filed petition for “State post-conviction or other collateral review.” It is a fundamental tenet of statutory construction that Congress intended to exclude language included in one section of a statute, but omitted from another section. We conclude and hold that a petition for writ of certiorari to the Supreme Court is not an application for “State” review that would toll the limitations period. Second, we" }, { "docid": "5473030", "title": "", "text": "(the date Appellant’s petition for allowance of appeal nunc pro tunc was filed with the Pennsylvania Supreme Court) through June 12, 2000 (the date the Pennsylvania Supreme Court denied Appellant’s motion for reconsideration). A. 35. Notwithstanding the reference to the period of September 10, 1999, through June 12, 2000, in our certificate of appeala-bility, in fact, as we have explained, the district court did toll the running of the statute of limitations during that period except for the time between when the Supreme Court denied Douglas’s petition for allowance of an appeal nunc pro tunc and when he filed his motion for reconsideration of that denial. In view of our granting the certificate of appealability, the appeal has gone forward. See 28 U.S.C. § 2253(c)(1)(A). II. DISCUSSION The AEDPA established a one-year limitation period for the filing of petitions of habeas corpus by state prisoners which has been codified at 28 U.S.C. § 2244(d)(1) (“section 2244(d)(1)”). Douglas’s conviction became “final” before the AEDPA came into effect on April 24,1996, and thus his one-year period for filing a habeas petition began running on that date. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998) (establishing a one-year “grace period” for petitioners whose convictions became “final” before the AEDPA became effective). Accordingly, his petition would have been due by April 23, 1997, absent any tolling of the one-year clock. The one-year period is, however, not an absolute limit. For example, 28 U.S.C. § 2244(d)(2) (“section 2244(d)(2)”), which is involved here, provides for “statutory tolling” in the following circumstance: 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. In this appeal, Douglas contends that he was entitled to statutory tolling during the entire pendency of his nunc pro tunc petition in his post conviction relief proceedings before the Pennsylvania Supreme Court including the period the district court excluded from tolling after the Supreme Court denied his petition and until he sought reconsideration from that" }, { "docid": "23238938", "title": "", "text": "of appealability. Abela appealed his denial of the motion to this court. We granted his certificate of appealability on the issues before us on April 20, 2001. Between August 20, 1996, and May 28, 1998, Abela sought state collateral relief in the Michigan trial, appellate, and high courts. The limitations period was clearly tolled during this period because Abela’s state collateral relief motions were pending in the various state courts. See Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). In Carey, the Court held that “until the application has achieved final resolution through the State’s post-conviction procedures, by definition it remains ‘pending.’ ” Id. Thus, the key issue before us today is whether the one-year statute of limitations applicable to federal habeas corpus petitions is also tolled during the period in which a petitioner may seek, and the Supreme Court considers whether to grant, certiorari review of the denial of the petitioner’s state collateral relief motion. Title 28 U.S.C. § 2244(d)(1) provides a one-year period of limitations for people “in custody pursuant to the judgment of a State court” to file an application for a writ of habeas corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of this one-year period as follows: “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.” For prisoners whose convictions became final prior to April 24, 1996, the effective date of the Anti Terrorism and Effective Death Penalty Act, the one-year limitations period runs against them as of that date. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999). Abela’s judgment of conviction became final prior to April 24, 1996, so his one-year limitations period began running on that date. The Supreme Court recently concluded that a federal habeas corpus petition does not constitute “State post-conviction or other collateral review” in order to toll the one-year limitations period pursuant to section 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 182, 121" }, { "docid": "14130375", "title": "", "text": "by the Court of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000). There, the Court of Appeals held, as we do here, that the ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court did not toll the limitations period set forth in section 2244(d)(2). The Seventh Circuit’s holding was narrower than the holdings of other courts to have considered this issue. The court in Gutierrez wrote: Section 2244(d)(2) ... provides that the limitations period is tolled during the time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” * ‡ * % Because Gutierrez never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never “properly filed.” ... [I]n-stead of excluding time a pleading could have been filed, Congress explicitly required a “properly filed” pleading to toll the statute of limitations. Gutierrez did not properly file a petition for certiorari and, thus, the one-year limitations period was not tolled during the time [in] which he could have filed such a petition. Likewise, a petition for certiorari that is not actually filed cannot reasonably be considered “pending.” 233 F.3d at 491-92. Stokes, like Gutierrez, never filed a petition for certiorari. Consequently, the reasoning underlying the decision in Gutierrez applies here as well, providing an alternate ground for our conclusion that Stokes’ petition for a writ of habeas corpus was properly dismissed as untimely. IV. For the foregoing reasons, we hold that the ninety day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year limitations period set forth at 28 U.S.C. § 2244(d)(2). Accordingly, we will affirm the order of the District Court. . In our decision in Swartz v. Meyers, 204 F.3d 417 (3d Cir.2000), we concluded that \"pending” as that word is used in section 2244(d)(2) includes the time" }, { "docid": "22226910", "title": "", "text": "probable cause to appeal the denial of his petition. Steed did not petition the United States Supreme Court for certiorari review of the denial of his state habeas corpus petition. On April 20,1999, Steed filed his petition for habeas corpus in federal court. The district court adopted a magistrate judge’s report and recommendation and denied the petition because it was time-barred. The district court reasoned that under the plain language of Section 2244(d)(2), “[a] petition for a writ of certiorari to the United States Supreme Court is not part of the state post-conviction process” and does not toll the statute of limitations under Section 2244(d)(2). The court also concluded that equitable tolling was not appropriate. This appeal followed. II. DISCUSSION Standard of Review We review de novo the district court’s determination that the petition for federal habeas corpus relief was time-barred under section 2244(d). See Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 n. 4 (11th Cir.1998). We affirm on the issue of whether the statute of limitations tolling provision in 28 U.S.C. § 2244(d)(2) includes the time for seeking certiorari review by the United States Supreme Court based on Coates v. Byrd, 211 F.3d 1225 (11th Cir.2000) (holding that “the time during which a petition for writ of certiorari is pending, or could have been filed, following the denial of collateral relief in the state courts, is not to be subtracted from the running of time for 28 U.S.C. § 2244(d)(1)”). Steed contends that the limitations period is subject to equitable tolling because his calculation of the statute of limitations depended on an interpretation of a novel legal issue and he was required to interpret Section 2244(d)(2) in the absence of “clear law.” We review the district court’s determination that equitable tolling is inapplicable de novo. See Sandvik v. United States, 177 F.3d 1269, 1270-71 (11th Cir.1999); see also Justice v. United States, 6 F.3d 1474, 1478 (11th Cir.1993). Section 2244 is a statute of limitations, not a jurisdictional bar. Therefore, it permits equitable tolling “when a movant untimely files because of extraordinary circumstances that are both" }, { "docid": "22226909", "title": "", "text": "BIRCH, Circuit Judge: Frederick T. Steed appeals the district court’s denial of his habeas corpus petition as untimely. Steed contends that his petition was not time-barred because the statute of limitations is tolled to include the ninety day period during which he could have petitioned the United States Supreme for certiorari review of the denial of his state habeas corpus petition. Alternatively, he argues that equitable tolling applies. We affirm for the reasons that follow. I. BACKGROUND On December 9, 1994, Steed was convicted for armed robbery and sentenced to twenty years’ imprisonment. On February 19, 1996, a Georgia court of appeals affirmed his conviction on direct appeal. On May 10, 1996, the Georgia Supreme Court denied Steed’s petition for writ of certiorari. Steed did not petition the United States Supreme Court for certiorari review of his direct appeal. On November 6, 1996, Steed filed a petition for habeas corpus in state court which was denied on March 19, 1997. On May 4, 1998, the Georgia Supreme Court denied Steed’s petition for a certificate of probable cause to appeal the denial of his petition. Steed did not petition the United States Supreme Court for certiorari review of the denial of his state habeas corpus petition. On April 20,1999, Steed filed his petition for habeas corpus in federal court. The district court adopted a magistrate judge’s report and recommendation and denied the petition because it was time-barred. The district court reasoned that under the plain language of Section 2244(d)(2), “[a] petition for a writ of certiorari to the United States Supreme Court is not part of the state post-conviction process” and does not toll the statute of limitations under Section 2244(d)(2). The court also concluded that equitable tolling was not appropriate. This appeal followed. II. DISCUSSION Standard of Review We review de novo the district court’s determination that the petition for federal habeas corpus relief was time-barred under section 2244(d). See Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 n. 4 (11th Cir.1998). We affirm on the issue of whether the statute of limitations tolling provision in 28 U.S.C." }, { "docid": "12848304", "title": "", "text": "his petition was therefore untimely under § 2244(d). Gutierrez argues that the ninety days during which he could have filed a certio-rari petition to the United States Supreme Court from the denial of his state post-conviction petition tolled the limitations period and, thus, that his petition is timely. This court has not yet decided whether the limitations period for habeas corpus actions is tolled under such circumstances, but several of our sister circuits have answered the question in the negative. See Isham v. Randle, 226 F.3d 691 (6th Cir. 2000); Coates v. Byrd, 211 F.3d 1225 (11th Cir.2000); Ott v. Johnson, 192 F.3d 510 (5th dir.1999); cf. Rhine v. Boone, 182 F.3d 1153 (10th Cir.1999) (holding that the time during which a properly filed certio-rari petition from the denial of state post-conviction relief is pending does not toll the statute of limitations). We now join the Sixth, Eleventh, and Fifth Circuit Courts in their conclusion, but, as explained below, on a somewhat narrower basis. Section 2244(d)(1) imposes a one-year statute of limitations on state prisoners seeking habeas corpus relief. Section 2244(d)(2), however, provides that the limitations period is tolled during time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Thus, we must determine whether the 90 days during which a certio-rari petition could be filed falls within the language of § 2244(d)(2), whether that time period by itself constitutes “a properly filed application ... [that] is pending.” Put this way the answer is clearly no. Because Gutierrez 'never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never “properly filed.” When Congress intended to exclude from the limitations period time during which a pleading could have been filed, it did so explicitly. See, e.g., § 2244(d)(1)(A) (The limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”). Here, instead of excluding time a pleading could have been filed, Congress. explicitly required a" }, { "docid": "23644430", "title": "", "text": "this time constraint a tolling provision allowing courts to suspend the progress of the statute of limitations for “[t]he 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.” 28 U.S.C. § 2244(d)(2). Because petitioner raises a question of law as to whether this provision may include the ninety-day period for pursuit of certiorari on state collateral motions, we review the district court’s dismissal of Smaldone’s habeas petition de novo. See Williams v. Artuz, 237 F.3d 147, 150 (2d Cir.2001); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). Other circuits examining this issue have found, with some variation in the breadth of their holdings, that the statute of limitations should not toll during the period for seeking certiorari. See Stokes v. Philadelphia, 247 F.3d 539, 542 (3d Cir.2001); Crawley v. Catoe, 257 F.3d 395, 399-401 (4th Cir.2001); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.2001); Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000); Gutierrez v. Schomig, 233 F.3d 490, 491-92 (7th Cir.2000) (limiting the holding to prevent tolling during the ninety-day period in cases in which a petition is not actually filed); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999). To determine whether to join our sister circuits in rejecting tolling for the certiora-ri period, we will consider the various reasons for their decisions. “We begin, as always, with the language of the statute.” Duncan, 121 S.Ct. at 2124. As several other circuits have noted, the timing-related language in § 2244(d)(2) differs from that in § 2244(d)(1)(A). Specifically, § 2244(d)(1)(A), describing the point at which the statute of limitations should begin to ran, notes that the key date is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (emphasis added). Notably, § 2244(d)(2) does not mention a time period for the pursuit of additional" }, { "docid": "11189139", "title": "", "text": "post-conviction remedies. However, the language of the statute is clear: Section § 2244(d)(1)(A) provides that the statute of limitations begins to run from “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A) (emphasis added). By contrast, the tolling provision, § 2244(d)(2), specifically references “properly filed application^] for State post-conviction or other collateral review.” § 2244(d)(2). As the district court observed: “The plain language of the statute indicates that an application for state post conviction or other collateral relief does not serve to delay the date on which a judgment becomes final. Rather, such limitations merely toll the running of the statute of limitations. § 2244(d)(2).” In short, the statute makes a clear distinction between the conclusion of direct appeals and post-conviction relief. Payton’s assertions to the contrary are unpersuasive. Payton’s argument is without merit. B. Payton also asserts that the period for petitioning the United States Supreme Court for a writ of certiorari extends the start date of the one-year period for seeking post-conviction relief under § 2244(d)(2). We recently rejected this argument in Isham. See Isham, 226 F.3d at 695 (holding that “ § 2244(d) does not toll the limitations period to take into account the time in which a defendant could have potentially filed a petition for certiorari with the United States Supreme Court, following a state court’s denial of post-conviction rehef’). Even if the ninety days were added to the tolling time, Payton still filed his petition out of time. That is, even if the ninety-day period were added to the tolling period, Payton’s petition would have been due before February 21, 1999, (ninety days after the November 21, 1998 deadline). C. Alternatively, Payton argues that he satisfied the statute of limitations requirement because his ineffective assistance of trial counsel claim, inasmuch as it was properly raised for the first time during collateral attack, was still in a stage of direct review, which did not conclude until the Ohio Supreme Court denied his petition on April 22, 1998. Thus, he claims" }, { "docid": "11268641", "title": "", "text": "immediately, we hold that it abused its discretion in dismissing his petition rather than retaining jurisdiction and entering a stay pending the outcome of the state proceedings. I. In December, 1994, Nowaczyk was convicted in New Hampshire state court on charges of arson, conspiracy to commit arson, and witness tampering. The New Hampshire Supreme Court affirmed his conviction on direct appeal, entering its final judgment on January 24, 1997. No-waczyk did not seek further review from the United States Supreme Court. Under AEDPA, Nowaczyk had one year “from the date on which [his conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review” in which to pursue federal habeas relief under § 2254. 28 U.S.C. § 2244(d)(1)(A). The parties agree that the one-year limitations period began on April 24, 1997, which marks the end of the 90-day period for filing a petition for writ of certiorari from the United States Supreme Court. See Donovan v. Maine, 276 F.3d 87, 91 (1st Cir.2002) (“[Section 2244(d)(1) provides for tolling during the ninety-day period in which the petitioner would have been allowed to ask the United States Supreme Court to grant certiorari to review the [state court’s] denial of his direct appeal (the fact that the petitioner did not seek certiorari is immaterial).”). The statute of limitations is tolled whenever “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). We have held that an application for state post-conviction relief is “pending”' — and, thus, the statute of limitations is tolled— not only when the application “actually is being considered by the trial or appellate court, but also during the ‘gap’ between the trial court’s initial disposition and the petitioner’s timely filing of a petition for review at the next level.” Currie v. Matesanz, 281 F.3d 261, 266 (1st Cir.2002) (internal quotation marks omitted); see also Carey v. Saffold, — U.S. -, 122 S.Ct. 2134, 2136, 153 L.Ed.2d 260 (2002) (confirming the prevailing view that an application remains pending" } ]
647071
converted to Chapter 7 and a trustee was appointed for the first time. 8. By court order, the deadline for filing proofs of claim in the Chapter 7 case was April 8, 1987. The Bank filed no formal proof of claim on or before that date. 9. The Bank’s motion now claims that the estate is indebted to it in the amount of $2,652,966.25. Contentions of the Parties The Bank contends that the motion to lift stay, the Foreclosure Documents, and the letter to the Debtor’s attorney constitute an informal proof of claim which can be amended to allow the Bank to state its claim with greater particularity. The Trustee urges that these documents do not pass the tests used in REDACTED and that even if they did, the documents do not constitute an informal proof of claim because, with the exception of the motion to lift stay, they were not filed with the Court, or even the trustee, as is required by Bankruptcy Rule 5005. Analysis I shall first address the issue of whether or not the information provided in the documents relied upon by the Bank is sufficient to create an informal proof of claim. Under Bankruptcy Rule 3002, with certain exceptions not here relevant, the claim of an unsecured creditor cannot be allowed in a Chapter 7 case unless filed within 90 days after the first date set for the Sec. 341 meeting of creditors, and in accordance with Bankruptcy Rule
[ { "docid": "18577318", "title": "", "text": "MEMORANDUM AND ORDER LEROY SMALLENBERGER, Bankruptcy Judge. The National Fidelity Bank of Shreveport, Louisiana, filed this Motion to Modify Stay or for Adequate Protection in response to an Ex parte Turnover Order obtained by the Trustee. The Turnover Order directed the bank to turnover some $369.28 that the debtor maintained in two accounts at the bank. The bank is a creditor of the debtor for approximately $20,-000.00. The Trustee opposes the motion of the bank on the grounds that no formal proof of claim was filed as required by the standard Chapter 7 ordered issued by this Court. The bank, however, did file in this Court, within the bar date, Adversary Proceeding # 585-0255. Additionally, the debtor admitted, in his answer to the complaint, that the bank is a creditor of the debtor arising from the $20,000.00 loan. After examining the law and the arguments of the parties, the Court concludes that the opposition of the Trustee must be rejected and the complaint considered a proof of claim as defined in Bankruptcy Rule 3001 sufficient to protect the bank’s interest in the estate of the debtor. Recent case law has evolved the equitable doctrine of an “informal” proof of claim. For a document to constitute an informal proof of claim, a three-prong test must be satisfied; the document must state an explicit demand showing: 1) the nature of the claim, 2) the amount of the claim against the estate, and 3) must evidence an intent to hold the debtor liable. In re Nucorp Energy, Inc. 52 B.R. 843 (Bkrtcy.N.D.Ca.1985). The Court believes that the filing of the adversary proceeding in this Court meets all the requirements as set out by the Court in Nucorp Energy. See also, In re Francisian Vineyards, Inc., 597 F.2d 181 (9th Cir.1979) cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598, holding that for documents to constitute an infor mal proof of claim, they must state an explicit demand showing the nature, and amount of the claim against the estate and evidence an intent to hold the debtor liable. In the absence of" } ]
[ { "docid": "4769240", "title": "", "text": "ORDER PATRICIA A. CLARK, Bankruptcy Judge. This matter is before the Court upon the motion of Fremont National Bank of Canon City (Bank) for authorization to file a late proof of claim. The Bank' contends that it should be allowed to file a late proof of claim in this Chapter 13 proceeding based on excusable neglect. Alternatively, the Bank asserts that it timely filed an informal proof of claim and should be given leave to file a formal proof of claim. The informal proof of claim is based upon a stipulation between the parties and the Court order to amend the plan to adequately provide for the Bank. According to the Bank that constitutes an informal proof of claim as it is in writing, contains a demand by the creditor on the debtor’s estate, expresses an intent to hold the debtor liable for the debt and is filed with the Bankruptcy Court. The Bank relies on the following cases in support of that assertion: In re McCoy Management Services, Inc., 44 B.R. 215 (Bankr.W.D.Ky.1984); In re Scholz, 57 B.R. 259 (Bankr.N.D.Ohio 1986); In re Murchison, 85 B.R. 37 (N.D.Tex.1987). The facts relevant to this matter are as follows. The debtor filed a Chapter 13 proceeding on April 25, 1988. The last day to file a proof of claim pursuant to Bankruptcy Rule 3002 was on August 22, 1988. The Bank filed a motion for relief from stay on June 7, 1988. The motion stated, inter alia, that: the debtor is indebted to the Bank in the amount of $5,399.39; the debt is secured by a 1984 Pontiac 6000; the debtor is in default; the Bank is entitled to possession of the vehicle pursuant to the security agreement; the Bank lacks adequate protection; the property is not necessary to an effective reorganization; and the value of the property is less than the outstanding indebtedness. The debtor filed a response to that motion and the matter was set for a hearing on July 5, 1988. At the hearing on relief from stay, the Bank withdrew its motion for relief from stay because" }, { "docid": "1271152", "title": "", "text": "to the Debtor’s attorney constitute an informal proof of claim which can be amended to allow the Bank to state its claim with greater particularity. The Trustee urges that these documents do not pass the tests used in In re Sherret, 58 B.R. 750 (Bankr.W.D.La.1986), and that even if they did, the documents do not constitute an informal proof of claim because, with the exception of the motion to lift stay, they were not filed with the Court, or even the trustee, as is required by Bankruptcy Rule 5005. Analysis I shall first address the issue of whether or not the information provided in the documents relied upon by the Bank is sufficient to create an informal proof of claim. Under Bankruptcy Rule 3002, with certain exceptions not here relevant, the claim of an unsecured creditor cannot be allowed in a Chapter 7 case unless filed within 90 days after the first date set for the Sec. 341 meeting of creditors, and in accordance with Bankruptcy Rule 5005, which requires filing in the district where the bankruptcy case is pending. • However, the document does not have to be styled “Proof of Claim” or be filed in the form of a claim, if it fulfills the purposes for which the filing of proof is required. In re Lipman, 65 F.2d 366, 368 (2nd Cir.1933). Bankruptcy Rule 3001(a) provides that a proof of claim is a written statement setting forth a creditor’s claim and requires that it shall conform substantially to Official Form Nos. 19, 20, or 21. A number of decisions recognize that various pleadings, documents, or written communications, not styled “Proof of Claim” may under certain conditions nevertheless constitute valid informal proofs of claim. See, generally, In re A.H. Robins Co., Inc., 862 F.2d 1092, 18 B.C.D. 1034 (4th Cir.1988); Anderson-Walker Industries., Inc. v. Lafayette Metals, Inc., (In re Anderson Walker Industries., Inc.), 798 F.2d 1285, 14 B.C.D. 1395 (9th Cir.1986); Liakas v. Creditors Committee of Deja Vu, Inc., 780 F.2d 176, 178 (1st Cir.1986); Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811, 12" }, { "docid": "1271150", "title": "", "text": "Drilling Company, the Debtor, filed a voluntary Chapter 11 petition. 2. The Debtor had earlier given a collateral chattel mortgage to the Bank covering drilling rigs and other property. On April 4, 1986, the Bank filed a motion for relief from stay to allow foreclosure of this property. The relief from stay motion listed an amount of principal indebtedness allegedly owed to the Bank. That motion was granted by my predecessor on April 10, 1986, some months before any trustee was appointed. 3. On April 11, 1986, the Debtor filed schedules that listed the Bank as having a secured claim of $3,767,329. The schedules did not list the Bank’s claim as contingent, disputed, or unliquidated. 4. On April 14, 1986, the Bank commenced foreclosure proceedings in state court. No pleadings relative to this were filed in bankruptcy court. Some documents were served in the state court proceedings on the Debtor or his attorney, including a petition for executory process, a notice of seizure and sale with a notice to appoint an appraiser, and state court orders (collectively, the Foreclosure Documents). 5. On June 11,1986, a sheriffs sale was conducted at which the Bank purchased collateral for a total of $116,667.00, which amount less certain costs was credited to the indebtedness owed by debtor to the Bank. 6. By letter of September 26, 1986, to the Debtor’s counsel, the Bank’s counsel provided what the Bank claims is a detailed itemization and quantification of its claim against the Debtor. (Exhibit G to Bank’s Motion for Leave to Amend Informal Proof of Claim.) 7. On November 25,1986, Debtor’s case was converted to Chapter 7 and a trustee was appointed for the first time. 8. By court order, the deadline for filing proofs of claim in the Chapter 7 case was April 8, 1987. The Bank filed no formal proof of claim on or before that date. 9. The Bank’s motion now claims that the estate is indebted to it in the amount of $2,652,966.25. Contentions of the Parties The Bank contends that the motion to lift stay, the Foreclosure Documents, and the letter" }, { "docid": "18577320", "title": "", "text": "prejudice to an opposing party, bankruptcy courts, as courts of equity should allow amendments to proofs of claim that relate back to the filing date of the informal claim when the purpose is to cure a defect in the claim as filed or to describe the claim with greater particularity. Warts v. Weller 653 F.2d 1288 (9th Cir.1981). Although no Fifth Circuit cases are on point, the Court notes two other Ninth Circuit cases, In re Pizza of Hawaii, Inc., 761 F.2d 1374 (9th Cir.1985) and In re Sambo’s Restaurants, 754 F.2d 811 (9th Cir.1985). In Sambo’s, the claimant’s filing of a wrongful death action, in District Court, prior to the bar date, together with correspondence from the claimant and the debtor to transfer the case to the Bankruptcy Court was held sufficient to constitute an amendable proof of claim, even though the wrongful death action was dismissed by the District Court. In Pizza, a creditor of the Chapter 11 debtor had filed an action against the debtors prepetition, and post-petition, had filed a Motion for Relief from the Stay to join the debtor as a defendant. The Court held that the creditor’s participation in the Chapter 11 case, and the documents filed in the Bankruptcy Court were sufficient to be considered a proof of claim that could later be amended to be made a formal proof of claim. Accordingly, the Court concludes that it is not an abuse of discretion to recognize the informal proof of claim. ORDER For the reasons provided in our Memorandum, IT IS ORDERED that the Trustee, Mr. Gene Howard, within 15 days of the notice of entry of this Order, pursuant to section 501(c) of the Bankruptcy Code file an amended Proof of Claim on behalf of the Creditor, National Fidelity Bank of Shreveport, Louisiana. IT IS FURTHER ORDERED that, in accordance with our opinion today, said amendment will be considered as filed and relate back to the date Adversary Proceeding # 585-0255 was filed with this Court. IT IS FURTHER ORDERED that Mov-ant submit an order Lifting the Automatic Stay after the formal" }, { "docid": "1271158", "title": "", "text": "intent to hold the Debtor liable for all amounts due the Bank because they provide for sale “with appraisal”. The Bank argues that the words “with appraisal” are used to preserve its right to a deficiency balance under LSA 13:4106. The Bank also relies on La.Civ.Pro art. 2771 which provides that a creditor may obtain a deficiency judgment only if the property has been sold after appraisal. The Bank is certainly correct that had it waived its right to an appraisal, the proceeds of the judicial sale would have fully satisfied and discharged the personal obligation of the Debtor. La. R.S. 13:4106. However, mere use of the routine words “with appraisal” in the Foreclosure Documents is not sufficient to constitute a demand evidencing an intent to hold the Debtor’s estate liable in bankruptcy. The Writ of Seizure and Sale issued by the state court only concerned some of the collateral listed in the Bank’s motion for lift of stay. The proceeds of the sale, involving property in St. Landry Parish, were only $116,667. The Bank was secured by other collateral, immovable and movable. Indeed, the Bank in its present motion alleges that the estate remains indebted to it in the amount of $2,652,966.65, secured by accounts receivable of the Debt- or. This Court concludes from those facts that the Foreclosure Documents did not evidence any intent to hold the Debtor’s estate liable. The various documents relied upon by the Bank, even when taken as a whole, do not comprise a demand evidencing an intent to hold Debtor’s estate liable. The Trustee urges that neither the letter from the Bank to the Debtor’s counsel which allegedly set out the amount of the claim, nor the Foreclosure Documents which allegedly evinced the Bank’s intent to hold the Debtor liable, can be considered as constituting an informal proof of claim since they were never filed with the bankruptcy court. The Trustee contends that Rule 3002 coupled with Rule 5005 and applicable case-law reveal' that instruments alleged to constitute an informal proof of claim must be filed with the bankruptcy court, or at least" }, { "docid": "1271159", "title": "", "text": "was secured by other collateral, immovable and movable. Indeed, the Bank in its present motion alleges that the estate remains indebted to it in the amount of $2,652,966.65, secured by accounts receivable of the Debt- or. This Court concludes from those facts that the Foreclosure Documents did not evidence any intent to hold the Debtor’s estate liable. The various documents relied upon by the Bank, even when taken as a whole, do not comprise a demand evidencing an intent to hold Debtor’s estate liable. The Trustee urges that neither the letter from the Bank to the Debtor’s counsel which allegedly set out the amount of the claim, nor the Foreclosure Documents which allegedly evinced the Bank’s intent to hold the Debtor liable, can be considered as constituting an informal proof of claim since they were never filed with the bankruptcy court. The Trustee contends that Rule 3002 coupled with Rule 5005 and applicable case-law reveal' that instruments alleged to constitute an informal proof of claim must be filed with the bankruptcy court, or at least with the trustee. Bankruptcy Rule 3002 unambiguously requires that a proof of claim be filed in accordance with Rule 5005. In turn, Rule 5005(a) expressly and specifically provides that proofs of claim and other papers required to be filed, with exceptions not pertinent here, shall be filed with the clerk in the district where the case under the Code is pending. In the instant case only the Bank’s motion to lift stay, which by itself does not constitute an informal proof of claim, was filed with the clerk of the bankruptcy court. The Foreclosure Documents and the letter to the Debtor’s attorney were never filed with the clerk of the bankruptcy court. This does not end the Court’s inquiry, however. The matter becomes somewhat more complicated when Rule 5005(b) and related decisions are considered. Rule 5005(b) provides that a paper intended to be filed, but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt" }, { "docid": "1271149", "title": "", "text": "MEMORANDUM OPINION W. DONALD BOE, Jr., Bankruptcy Judge. This matter came before the Court on a pleading of NCNB Texas National Bank that was captioned as a Motion for Leave to Amend Informal Proof of Claim. The Bank had filed no formal proof of claim prior to the passing of the bar date of which the Bank had notice. However the Bank contends that certain documents and events constitute an informal proof of claim, which can now be amended to allow it to assert a claim in excess of $2,000,-000.00. After hearing arguments of the Bank and opposing arguments of the Chapter 7 trustee, the Court took the matter under advisement. The issues raised have considerable significance beyond this particular case. After reviewing the positions of the parties and an abundance of case law on informal proofs of claim, the Court concludes on the facts of this particular case that the Bank has no informal proof of claim to which the Bank’s attempted amendment could relate back. Facts 1. On March 11, 1986, Pernie Bailey Drilling Company, the Debtor, filed a voluntary Chapter 11 petition. 2. The Debtor had earlier given a collateral chattel mortgage to the Bank covering drilling rigs and other property. On April 4, 1986, the Bank filed a motion for relief from stay to allow foreclosure of this property. The relief from stay motion listed an amount of principal indebtedness allegedly owed to the Bank. That motion was granted by my predecessor on April 10, 1986, some months before any trustee was appointed. 3. On April 11, 1986, the Debtor filed schedules that listed the Bank as having a secured claim of $3,767,329. The schedules did not list the Bank’s claim as contingent, disputed, or unliquidated. 4. On April 14, 1986, the Bank commenced foreclosure proceedings in state court. No pleadings relative to this were filed in bankruptcy court. Some documents were served in the state court proceedings on the Debtor or his attorney, including a petition for executory process, a notice of seizure and sale with a notice to appoint an appraiser, and state court" }, { "docid": "1271160", "title": "", "text": "with the trustee. Bankruptcy Rule 3002 unambiguously requires that a proof of claim be filed in accordance with Rule 5005. In turn, Rule 5005(a) expressly and specifically provides that proofs of claim and other papers required to be filed, with exceptions not pertinent here, shall be filed with the clerk in the district where the case under the Code is pending. In the instant case only the Bank’s motion to lift stay, which by itself does not constitute an informal proof of claim, was filed with the clerk of the bankruptcy court. The Foreclosure Documents and the letter to the Debtor’s attorney were never filed with the clerk of the bankruptcy court. This does not end the Court’s inquiry, however. The matter becomes somewhat more complicated when Rule 5005(b) and related decisions are considered. Rule 5005(b) provides that a paper intended to be filed, but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it" }, { "docid": "5022088", "title": "", "text": "the BANK submitted an Agreed Order, signed by the DEBTORS’ attorney, granting the motion and modifying the stay. The Agreed Order was entered on September 2, 2005, and the September 12 hearing was cancelled. Thereafter, the November 23, 2005 claim deadline passed without a claim filed by or on behalf of the BANK. After the Motor Home was repossessed, at the BANK’S direction it was transported to Bay City Michigan for delivery to Bay City Auction. The Motor Home was sold at auction on June 20, 2006, for a gross sale price of $38,000. After applying the proceeds to the debt, the BANK was left with a deficiency balance of $58,736.99. Five months after the sale and one year after expiration of the claim bar date, on November 16, 2006, the BANK filed a Proof of Claim for an unsecured debt in the amount of $58,736.99. If the claim is allowed, the distribution to unsecured creditors will drop from 45% to 23%. The Chapter 13 Trustee objected to the BANK’S claim on the basis that it was not timely filed. In response to the objection, the BANK makes three main arguments: 1. The Chapter 13 Plan did not impose a time limit upon the BANK for filing a claim for a deficiency balance. 2. F.R.B.P. 3002 only requires unsecured creditors to file claims and the BANK was secured. 3. The BANK’S claim should be allowed under the informal proof of claim doctrine since its Motion for Relief from the Automatic Stay was filed before the claim bar date. ANALYSIS 1. Claim filing principles. Disallowance of a claim is mandated where, subject to certain exceptions not applicable here, proof of such claim is not timely filed. 11 U.S.C. § 502(b)(9). By Rule, only unsecured claims must be filed to be allowed. F.R.B.P. 3002(a). Most courts hold, however, that a secured creditor in a Chapter 13 case must have a claim on file in order to receive payments from the trustee. See In re Mehl, 2005 WL 2806676 (Bankr.C.D.Ill.2005). However, the claim filing deadline imposed by Rule applies only to unsecured claims," }, { "docid": "1303774", "title": "", "text": "amended proof of claim related back. In the alternative, the Bank asserts that its late filed proof of claim should not be disallowed, but instead should simply be subordinated to the only timely proof of claim submitted by Fifth Third Bank. In addition, to collect on its claim, the Bank, anticipating a favorable ruling on the foregoing Motion, asserts that it should be permitted to receive an assignment of both the Trustee’s interest in the several potential preference actions against the Debtors’ creditors, and the Trustee’s interest in a promissory note and mortgage due to the Debtors. Wagner Farms, however, contends that § 502(b)(9) of the Bankruptcy Code provides for an absolute bar to the allowance of claims which are not timely filed in a Chapter 7 case. In addition, Wagner Farms challenges the authority of the Trustee to assign his interest in any potential preference actions. Stipulated Agreement for Relief from Stay as an Informal Proof of Claim Rule 3002(a) of the Federal Rules of Bankruptcy Procedure mandates that any unsecured creditor wishing to receive a distribution from a debtor’s bankruptcy estate must file a timely proof of claim in order for the claim to be allowed. To be considered timely, the proof of claim must be filed with the Court within either 90 days after the date first set for the § 341 meeting of creditors, or if the creditor was originally notified that there were insufficient assets to pay a distribution, as occurred in this case, the creditor has 90 days after notice is sent of a possible distribution to file a proof of claim. Fed. R.BankR.P. 3002(c). The purpose of requiring a creditor to timely file a proof of claim is to alert the bankruptcy court, trustee, and other creditors, as well as the debtor to the existence of the particular claim so as to facilitate the orderly administration of the bankruptcy case. In re L. Meyer & Son Seafood Corp., 188 B.R. 315 (Bankr. S.D.Fla.1995); In re Evanston Motor Co., Inc., 20 B.R. 550, 551 (Bankr.N.D.Ill.1982), rev’d on other grounds, 26 B.R. 998 (N.D.Ill.1983), affd," }, { "docid": "5022116", "title": "", "text": "to strict enforcement of the claim bar date must be rejected in light of the Seventh Circuit’s decision in Greenig. The motion for relief from the automatic stay filed by the BANK will not be deemed an informal proof of claim. The Trustee’s objection will be sustained and the proof of claim filed by the BANK will be denied. This Opinion constitutes this Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate Order will be entered. . A sixth exception wasn't added until the Interim Rules were adopted to implement changes made by the 2005 amendments enacted by BAPCPA. . Rule 3003 governs claims in Chapter 11 cases. . It is worth noting that the BANK was put on notice by the DEBTORS, in the Plan and in the schedules, of the DEBTORS' belief that the motor home was worth substantially less than what was owed. The BANK itself, in its stay relief motion, alleged the BANK’S belief that the DEBTORS had no equity in the motor home. Thus, the BANK had information and belief that it was undersecured well within the period for filing unsecured claims. The application of Rule 3002(c) does not depend, however, on the creditor’s state of mind; it applies even to creditors who believe they are oversecured. . The case at bar does not involve a situation where a plan proposes to pay a creditor's secured claim in full, and then later, after the claim bar date expires, is amended to strip-down the claim or to provide for surrender. Such a situation raises due process concerns as to whether a creditor whose plan treatment did not require it to file a claim within 90 days of the first meeting, finds itself subject to that requirement on an after-the-fact basis, too late to file a timely unsecured claim. Under such circumstances, there may well be cause for a \"lack of due process exception\" to Rule 3002(c). Alternatively, where a claim is not \"provided for” in time for the creditor to file a timely proof of claim," }, { "docid": "1303773", "title": "", "text": "specified period of time, a proof of claim enumerating the amount the creditor is owed from the debtor. In order to further facilitate this process, all proofs of claim are deemed allowed unless an objection is made. 11 U.S.C. § 502(a). However, conversely, a harsh penalty is imposed upon any creditor who fails to submit his or her proof of claim within the time allocated by the Federal Rules of Bankruptcy Procedure. Specifically, the Bankruptcy Code mandates that any delinquently filed claim be either subordinated to a timely filed claim, or the delinquent claim be altogether disallowed. 11 U.S.C. § 726(a); Fed.R.Bankr.P. 3002. In the instant case, there is no dispute that the Bank filed their proof of claim outside the time frame allocated by the Federal Rules of Bankruptcy Procedure. The Bank, however, argues that the Parties’ Stipulated Agreement for Relief from Stay, which was filed with the Court within the time initially allocated by the Court to file a proof of claim, constituted an informal proof of claim to which the Bank’s formal amended proof of claim related back. In the alternative, the Bank asserts that its late filed proof of claim should not be disallowed, but instead should simply be subordinated to the only timely proof of claim submitted by Fifth Third Bank. In addition, to collect on its claim, the Bank, anticipating a favorable ruling on the foregoing Motion, asserts that it should be permitted to receive an assignment of both the Trustee’s interest in the several potential preference actions against the Debtors’ creditors, and the Trustee’s interest in a promissory note and mortgage due to the Debtors. Wagner Farms, however, contends that § 502(b)(9) of the Bankruptcy Code provides for an absolute bar to the allowance of claims which are not timely filed in a Chapter 7 case. In addition, Wagner Farms challenges the authority of the Trustee to assign his interest in any potential preference actions. Stipulated Agreement for Relief from Stay as an Informal Proof of Claim Rule 3002(a) of the Federal Rules of Bankruptcy Procedure mandates that any unsecured creditor wishing to" }, { "docid": "8384004", "title": "", "text": "of the bar date. Section 509(b)(9) provides no statutory exceptions to its mandate that claims must be filed “timely.” The definition of “timely” in Bankruptcy Rule 3002 is of no help to creditors that neglect to file within the deadlines or are that are disabled to do so. Absent some equitable grounds to “toll” the claims deadline, the 1994 amendment to § 502 seems not to have contemplated the hardship for debtors and creditors of an immutable disallowance role in chapter 13 cases. Failure of debtor to properly notice a creditor of bankruptcy clearly raises constitutional concerns with respect to the effects of confirmation and discharge. However, as § 502(b)(9) is presently written, the court is without legal or equitable grounds to allow a late filed proof of claim in a chapter 13 case, even absent proper notice of the bar date for filing proofs of claims. The court must await legislative action to remedy this defect in the claims allowance process. Accordingly, the court will, without prejudice, overrule the objections to the chapter 13 trustee’s motions to disallow the late filed claims pursuant to § 502(b)(9) in all of the above cases. It is therefore SO ORDERED. . Federal Rule of Bankruptcy Procedure 3002 provides in part: (c) TIME FOR FILING. In a chapter 7 liquidation, chapter 12 family farmer's debt adjustment, or chapter 13 individual’s debt adjustment case, a proof of claim, is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code, except as follows: (1) A proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. On motion of a governmental unit, before the expiration of such period and for cause shown, the court may extend the time for filing of a claim by the governmental unit.... Fed R.Bankr.P. 3002 (1998). . In all cases, an objection was raised by a creditor or the debtor(s) to the trustee's motion to" }, { "docid": "5022089", "title": "", "text": "it was not timely filed. In response to the objection, the BANK makes three main arguments: 1. The Chapter 13 Plan did not impose a time limit upon the BANK for filing a claim for a deficiency balance. 2. F.R.B.P. 3002 only requires unsecured creditors to file claims and the BANK was secured. 3. The BANK’S claim should be allowed under the informal proof of claim doctrine since its Motion for Relief from the Automatic Stay was filed before the claim bar date. ANALYSIS 1. Claim filing principles. Disallowance of a claim is mandated where, subject to certain exceptions not applicable here, proof of such claim is not timely filed. 11 U.S.C. § 502(b)(9). By Rule, only unsecured claims must be filed to be allowed. F.R.B.P. 3002(a). Most courts hold, however, that a secured creditor in a Chapter 13 case must have a claim on file in order to receive payments from the trustee. See In re Mehl, 2005 WL 2806676 (Bankr.C.D.Ill.2005). However, the claim filing deadline imposed by Rule applies only to unsecured claims, not secured claims. Id.; In re Kreisler, 331 B.R. 364, 384-85 (Bankr.N.D.Ill.2005). That deadline, set forth in Rule 3002(c), is 90 days after the first date set for the first meeting of creditors, unless one of six enumerated exceptions applies. F.R.B.P. 3002(c). The exceptions pertain to claims of governmental units, infants and incompetent persons, recipients of avoided transfers, parties to executory contracts or unexpired leases, foreign creditors, and claims in Chapter 7 cases that began as no asset cases. None of the exceptions apply here. The Rule concerning enlargement of time is inapplicable. Generally, a court has the authority and discretion to extend time limits for any act that “is required or allowed to be done at or within a specified period by these rules.” F.R.B.P. 9006(b)(1). That general authority and discretion is eliminated, however, with respect to the time limits set forth in certain Rules, including Rule 3002(c), which may be extended only “to the extent and under the conditions stated in those rules.” F.R.B.P. 9006(b)(3). Moreover, Rule 3002(c)(1), setting the claim date for" }, { "docid": "4641636", "title": "", "text": "New Jersey Superior Court against the debtors, and a stipulation of settlement between the debtors and New Pal. New Pal argues that the letter to the trustee construed with the enclosed documents show an intent to hold the estate liable for the claim. The court disagrees. It is true that the documents that were enclosed with New Pal’s letter to the trustee indicated the nature and extent of New Pal’s claim. The documents were, however, only sent to the trustee under the involuntary compulsion of a subpoena. The letter transmitting the documents to the trustee merely lists the enclosures. There is nothing in this involun tary production of documents which can fairly be construed as an expression of an intention to assert a claim against the estate. Indeed, New Pal freely admitted in its papers in opposition to the trustee’s motion that it did not file a timely proof of claim because it believed that it would collect nothing in the ease. The court holds that New Pal’s letter to the trustee did not constitute an informal proof of claim because the letter and enclosed documents did not make a demand upon the estate or express an intent to hold the estate liable. Therefore, New Pal’s formal proof of claim will not be considered an amendment to a timely informal claim. B. Change in the Bankruptcy Rules New Pal argues that the debtors listed its claim as disputed on their chapter 11 petition in bad faith, thereby necessitating that New Pal file a proof of claim in the chapter 11 case. Bankruptcy Rule 3002 was amended in 1987 to provide that “[a]n unsecured creditor or an equity security holder must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004 and 3005.” Fed. R.BankP. 3002(a). Under Bankruptcy Rule 1019(3) only those claims actually filed in a superseded chapter 11 case are deemed filed in a chapter 7 ease. “Claims deemed filed in a chapter 11 case pursuant to § 1111(a) of the" }, { "docid": "1303775", "title": "", "text": "receive a distribution from a debtor’s bankruptcy estate must file a timely proof of claim in order for the claim to be allowed. To be considered timely, the proof of claim must be filed with the Court within either 90 days after the date first set for the § 341 meeting of creditors, or if the creditor was originally notified that there were insufficient assets to pay a distribution, as occurred in this case, the creditor has 90 days after notice is sent of a possible distribution to file a proof of claim. Fed. R.BankR.P. 3002(c). The purpose of requiring a creditor to timely file a proof of claim is to alert the bankruptcy court, trustee, and other creditors, as well as the debtor to the existence of the particular claim so as to facilitate the orderly administration of the bankruptcy case. In re L. Meyer & Son Seafood Corp., 188 B.R. 315 (Bankr. S.D.Fla.1995); In re Evanston Motor Co., Inc., 20 B.R. 550, 551 (Bankr.N.D.Ill.1982), rev’d on other grounds, 26 B.R. 998 (N.D.Ill.1983), affd, 735 F.2d 1029 (7th Cir.1984); In re Norris Grain Co., 81 B.R. 103, 106 (Bankr.N.D.Fla.1987). No particular form, however, is required for a proof of claim. Rather, Bankruptcy Rule 3001 simply prescribes that a proof of claim must be “a written statement setting forth a creditor’s claim [and] shall conform substantially to the appropriate official form.” In the instant case, however, the Bank never filed within the 90-day time limit imposed by Bankruptcy Rule 3002(c), any statement with the Court even closely comporting with the requirements of Rule 3001. Notwithstanding, the Bank contends that under the Informal Proof of Claim doctrine, the Parties Stipulated Agreement for Relief from Stay, which was filed with the Court within the time allocated by Bankruptcy Rule 3002(c), may be treated as a valid original proof of claim to which the Bank may now seek to amended. Neither the Bankruptcy Code nor the Bankruptcy Rules mention the informal claim doctrine. In fact, nothing in the Bankruptcy Code or the Bankruptcy Rules specifically allows for the filing of an amended proof" }, { "docid": "4608081", "title": "", "text": "OPINION FOREMAN, Chief Judge: Before the Court are two appeals from an April 26, 1990, order of the bankruptcy court. At issue are those portions of the order (1) disallowing Eva Lovene Leavell’s claim for $225,978.64 on the ground that it was untimely; (2) denying Daniel Russell Leavell’s motion to reconsider his objection to an application for attorney’s fees; and (3) allowing the trustee, over Daniel Lea-veil’s objection, to abandon certain oil-producing properties. The appeals filed by Mr. and Mrs. Lea-vell were consolidated by a Court order entered on June 6, 1990. This Court has jurisdiction to hear these appeals under 28 U.S.C. § 158(a). I. Facts On July 17, 1985, appellant Daniel Lea-vell filed a Chapter 11 bankruptcy petition, which was converted to Chapter 7 on December 12, 1985. The appellee, Gibson D. Karnes, was appointed trustee and the law office of Terry Sharp, P.C., was appointed to act as the trustee’s attorney. This appeal is based upon the bankruptcy court’s ruling on April 10, 1990, with respect to three separate matters then pending before that court. The first issue involves appellant Eva Leavell’s efforts to file a claim against the bankruptcy estate after the bar date for filing such claims. On March 26, 1990, the White County Bank initiated a mortgage foreclosure action in state court against both Mr. and Mrs. Leavell. She states that she signed the mortgage as an accommodation to Mr. Leavell and is therefore entitled to reimbursement. She filed a Motion for Leave to File a Proof of Claim with the bankruptcy court on April 9, 1990. The motion was granted, but the filed claim was disallowed (Document Nos. 309 and 315). The bankruptcy court did not give a specific reason for disallowing the claim, but did make reference to the fact that the deadline for filing claims had long passed. There is no dispute that Mrs. Leavell’s claim was tardily filed. The section 341 meeting of the creditors was held on January 17,1986, which means that the bar date for filing proof of claims was on April 17, 1986 — nearly four years" }, { "docid": "1271151", "title": "", "text": "orders (collectively, the Foreclosure Documents). 5. On June 11,1986, a sheriffs sale was conducted at which the Bank purchased collateral for a total of $116,667.00, which amount less certain costs was credited to the indebtedness owed by debtor to the Bank. 6. By letter of September 26, 1986, to the Debtor’s counsel, the Bank’s counsel provided what the Bank claims is a detailed itemization and quantification of its claim against the Debtor. (Exhibit G to Bank’s Motion for Leave to Amend Informal Proof of Claim.) 7. On November 25,1986, Debtor’s case was converted to Chapter 7 and a trustee was appointed for the first time. 8. By court order, the deadline for filing proofs of claim in the Chapter 7 case was April 8, 1987. The Bank filed no formal proof of claim on or before that date. 9. The Bank’s motion now claims that the estate is indebted to it in the amount of $2,652,966.25. Contentions of the Parties The Bank contends that the motion to lift stay, the Foreclosure Documents, and the letter to the Debtor’s attorney constitute an informal proof of claim which can be amended to allow the Bank to state its claim with greater particularity. The Trustee urges that these documents do not pass the tests used in In re Sherret, 58 B.R. 750 (Bankr.W.D.La.1986), and that even if they did, the documents do not constitute an informal proof of claim because, with the exception of the motion to lift stay, they were not filed with the Court, or even the trustee, as is required by Bankruptcy Rule 5005. Analysis I shall first address the issue of whether or not the information provided in the documents relied upon by the Bank is sufficient to create an informal proof of claim. Under Bankruptcy Rule 3002, with certain exceptions not here relevant, the claim of an unsecured creditor cannot be allowed in a Chapter 7 case unless filed within 90 days after the first date set for the Sec. 341 meeting of creditors, and in accordance with Bankruptcy Rule 5005, which requires filing in the district where" }, { "docid": "564048", "title": "", "text": "pursue preferences and fraudulent transfer claims, Butler, on March 24, 1987, made a motion for his removal and for the appointment of a new trustee. The application for removal was denied with instructions that Butler and the trustee jointly devise a method of pursuing any claims that might exist. Butler indicated it would foot the bill for any recovery actions commenced. Lack of any forward momentum in this regard caused Butler to renew its motion for the trustee’s removal in December 1987. Pursuant to a hearing on the question, the court ordered the trustee to promptly pursue a claim against First American Bank of Minot with Butler assuming all litigation costs. In correspondence with the trustee and in various pleadings, Butler consistently refers to itself as the largest unsecured creditor. In a letter dated May 27, 1986, addressed to the United States Trustee concerning its efforts to have the trustee pursue recovery of preferences, Butler referred to itself as the only creditor left in the case and stated it was “owed approximately $800,000.00 by Haugen Construction Services, Inc. and its related entities”. This letter is the only written document in evidence issued by Butler during the Chapter 7 proof of claim filing which expired on September 22, 1986. It does not appear that the letter itself was ever filed with the clerk. By the instant motion Butler seeks leave to file a formal proof of claim in the amount of $821,151.00 as an amendment of an informal proof of claim which it believes the facts constitute. 2. As secondary support for its motion, Butler urges that its Chapter 11 claim be treated as effective in the converted Chapter 7 case by application of Rule 1019 of the Federal Rules of Bankruptcy Procedure. In a Chapter 11 case, a creditor, whose claim is listed in the schedules as Butler’s was, need not file a formal proof of claim unless its claim is listed as disputed, contested or unliquidated. 11 U.S. § 1111(a). Rule 3003, applicable only in Chapter 9 and Chapter 11 cases, implements section 1111(a) by eliminating the necessity of" }, { "docid": "8384005", "title": "", "text": "trustee’s motions to disallow the late filed claims pursuant to § 502(b)(9) in all of the above cases. It is therefore SO ORDERED. . Federal Rule of Bankruptcy Procedure 3002 provides in part: (c) TIME FOR FILING. In a chapter 7 liquidation, chapter 12 family farmer's debt adjustment, or chapter 13 individual’s debt adjustment case, a proof of claim, is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code, except as follows: (1) A proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. On motion of a governmental unit, before the expiration of such period and for cause shown, the court may extend the time for filing of a claim by the governmental unit.... Fed R.Bankr.P. 3002 (1998). . In all cases, an objection was raised by a creditor or the debtor(s) to the trustee's motion to disallow the late filed claims and the matters were set for hearing. The facts of the cases are similar: 1. No. 396-10336: Postconfirmation and after the bar date for filing a proof of claim, the debtors sought to add Skinner's TV & Appliance, Inc. as a creditor to their chapter 13 plan. The debtors had failed to list Skinner TV & Appliance in their petition as a creditor. The creditor never received notice of that motion. Upon learning of the debtors’ bankruptcy the creditor filed a proof of claim and sought relief from the stay. The parties resolved the stay relief motion by agreeing to valuation of the collateral and how the claim would be paid. The chapter 13 trustee then filed a motion to disallow the late filed claim pursuant to § 502(b)(9). 2. No. 396-10673: Postconfirmation and after the bar date for filing a proof of claim, National City Bank learned of the debtor's bankruptcy filing. The debtor failed to list National City Bank as a creditor. The creditor filed a claim, and" } ]
740040
* * * According to Sanford's REDACTED The value, if any, of the contingent rights to modify the decedent donor retained is impossible of appraisal. They can not be measured in dollars. We have so found upon competent, uncontradicted testimony. That being so, the value of the transfers, for gift tax purposes, wheri made can not be reduced by any amount as reflecting such contingent rights. Accordingly, the retention of such contingent rights is to be wholly ignored for those purposes. Robinette v. Helvering, supra. We therefore conclude that the several transfers of the decedent donor to the trust constituted completed gifts for gift tax purposes when the transfers occurred. Smith v. Shaughnessy, supra; Robinette v. Helvering, supra; John A. Griswold, Jr., supra. It follows that no gift tax
[ { "docid": "10992206", "title": "", "text": "than $5,000 be distributed on any one request, demonstrates that the entire matter, in such case, was out of the hands of the donor. We can not interpret the trust instrument, in the face of such provisions, as intending to retain to the settlor the control for which the petitioner argues. The petitioner himself was never intended to be the sole trustee, since under paragraph fifth he was required, in case of the resignation of the corporate trustee, to name a successor. Moreover, in the case of the death of John Wool Griswold, a successor to him as trustee was required to be appointed by Helene Robson Griswold and John A. Griswold, Jr., or the survivor thereof. However, even if there were a possibility that the petitioner, as one of two trustees, might prevent the distribution of corpus to his mother, such a possibility is a contingency beyond his control, and does not render the gift incomplete for tax purposes. Robinette v. Helvering, supra. The petitioner also, in effect, contends that the gift was on its face only of the life estate, and not of the whole corpus, that affirmative action by the trustees in paying corpus to his mother was necessary before there could be any gift of corpus to her, that such action had not been taken, and that gift tax will arise only when such action is taken to transfer corpus to her. The contention, in our opinion, may not be sustained. The transfer is one in trust, irrevocable, for certain purposes named. One of these is the discretionary distribution of any or all of the corpus to the person receiving the income for her lifetime. Under such facts, we think the settlor, under the principles laid down in the Robinette, Smith v. Shaughnessy, and Marshall cases, supra, lost all “economic control” and economic benefits, rendering the entire value of the corpus subject to gift tax. The settlor retained only a mere possibility that, if the trustees did not dispose of the corpus to the mother, he might to that extent again have an interest by way" } ]
[ { "docid": "10400656", "title": "", "text": "108, sec. 86.3. We shall not dwell upon the petitioner’s second point, that the decedent’s wife, by joining in the deeds, made a gift of her inchoate dower rights, and that the value thereof should be deducted in determining the amount of the decedent’s gifts. It is recognized in the petitioner’s brief that Correlia Mason Thompson, 37 B. T. A. 793, is a direct ruling to the contrary; and, while we have carefully considered petitioner’s elaborate arguments in this connection, we adhere to the ruling in that case. See also Hopkins v. Magruder, 34 Fed. Supp. 381; cf. Frank J. Digan, 35 B. T. A. 256. This makes unnecessary a consideration of the further problem as to whether such inchoate right of dower is susceptible of actuarial valuation, though because of the many contingencies other than survivorship (see Illinois Revised Statutes, ch. 3, secs. 18-25) through .which the right may be barred or defeated, there would seem lo be equally as much difficulty in the way of an actuarial valuation as there was in valuing the “contingent reversionary remainder” involved in Robinette v. Helvering, supra. We next come to the question as to how much the value of the gift properties should be reduced on account of the annuities payable by the donees; in other words, by how much did the value of the property exceed the consideration received by the decedent. Petitioner is of the view that the value of the annuities to both the decedent and his wife, Sunkea Bartman, in case she survived him, should be deducted. The respondent took into account only the value of the annuities to the decedent and did not deduct the value of the contingent annuities payable to his wife. Practically the only argument the petitioner makes on brief is that the respondent’s method is “wholly indefensible as a matter of fact and law.” We do not agree. The gift tax is an excise imposed, not upon the receipt of property by various donees, but upon the donor’s act of making a transfer; and it is measured by the value of the" }, { "docid": "9922386", "title": "", "text": "after March 30,1944, from principal, plus interest on the diminishing fund. Petitioner contends that only the value of the life income should be subjected to the tax; that the Commissioner’s method of valuation is unrealistic because it treats as an absolute certainty the invasion of corpus to the extent of $3,000 a year, whereas the corpus may never be invaded; that if and when invasion becomes necessary, gifts will then be complete and subject to the tax in the years distributed. Petitioner’s argument, without doubt, is an impressive one and has a strong practical appeal. Nevertheless, we think that decision of the instant issue is controlled by the principles enunciated by the Supreme Court in Robinette v. Helvering, 318 U. S. 184, and Smith v. Shaughnessy, 318 U. S. 176, which require us to sustain the respondent. In the Smith case the Court said that the “essence of a gift by trust is the abandonment of control over the property put in trust.” Here the petitioner, by her transfer in trust, abandoned all control over and irrevocably committed the corpus, to the extent of $3,000 a year, to invasion for the benefit of her husband, if the need therefor should arise. Whether or not the corpus to that extent would be so used and, consequently, whether or not any of the portion so committed would ever be returned to her, were dependent entirely upon “contingencies beyond [her] control.” Robinette v. Helvering, supra; cf. Commissioner v. Marshall, 125 Fed. (2d) 943. If in each year after the transfer became effective the circumstances of the husband should be such as to require the distribution to him of $3,000 of the principal and the trustee should determine to make such distributions, petitioner would be powerless to prevent it. A problem in many respects similar to that under consideration here was present and decided in John A. Griswold, Jr., 3 T. C. 909. There the donor had established a trust, the income of which was payable to his mother for life. The trustees, however, were authorized in their discretion to pay the life beneficiary" }, { "docid": "8920960", "title": "", "text": "adverse interest. Such a transfer has been recognized by the Supreme Court as a completed gift inter vivos. Reinecke v. Northern Trust Co., 1929, 278 U.S. 339, 346, 347, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397; Helvering v. City Bank Farmers Trust Co., 1935, 296 U.S. 85, 90, 56 S.Ct. 70, 80 L.Ed. 62. As we pointed out in the Prouty case,’ the legislative history of the gift tax indicates clearly that such a transfer in trust is subject to the gift tax, even though the property so transferred is still includible in the donor’s gross estate for purposes of the estate tax See Paul, Federal Estate and Gift Taxation (1942) § 17.09; Warren,, supra, pp. 31-32. Another example of the same sort is an inter vivos transfer in trust, reserving the net income for life to the settlor, with an irrevocable remaindei to another. This is no doubt a completed gift of the remainder interest, as the Supreme Court has recognized, May v. Heiner, 1930, 281 U.S. 238, 244, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244; hence a gift tax would be payable thereon (see Helvering v. Robinette, 3 Cir., March 23. 1942. 129 F.2d 8321, even though, by amendmen of the estate tax the whole of the trust property is includible in the donor’s gross estate. I.R.C. § 811(c) 26 U.S.C.A.Int.Rev.Code, § 811(c). See Paul, op. cit. § 17.12. The same is true of an irrevocable transfer in trust with the mere possibility of reverter to the grantor. Here it has been held that the grantor must pay a gift tax upon the value of the intermediate interests thereby created. Commissioner v. McLean, 5 Cir., April 23, 1942, 127 F.2d 942; Commissioner v. Marshall, 2 Cir., 1942, 125 F.2d 943. But the property is includible in the grantor’s gross estate for purposes of the estate tax. Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368. See Warren, supra, pp. 24 — 31. But where the question arising in gift tax litigation is whether there has been a" }, { "docid": "12678699", "title": "", "text": "not diminish the value of the transferred property, in which case the entire value of the property is a gift subject to gift taxes. See Robinette v. Helvering, 318 U.S. 184, 188, 63 S.Ct. 540, 87 L.Ed. 700 (1943) (holding that net gift principles do not apply to “contingent” liability); Rev. Rul. 75-72 (providing that net gift principles require “the resulting [gift] tax ... actually be paid by the donee or from the subject property”). A. The Estate and the Trust initially argue that net gift principles apply to reduce the value of the transferred stock by the amount of additional gift taxes paid by the Trust after Armstrong’s death. The taxpayers maintain that the transferee lia bility agreement required the children to pay these additional gift taxes and this obligation created a “retained interest in the donor and therefore a ‘net gift.’ ” The first problem with this contention is that the children’s obligation to pay the additional gift taxes was both contingent and highly speculative. When a condition on a gift is contingent, the Supreme Court has held that the value of the gift is not to be reduced for gift tax purposes. See Robinette, 318 U.S. at 188, 63 S.Ct. 540, 87 L.Ed. 700 (1943) (refusing to allow taxpayer to reduce the tax value of a gift by the value of a “reversionary interest” because the value of the reversion was “contingent”). In the typical arrangement in which “net gift” principles apply — an arrangement that Armstrong and his children specifically rejected — the donor transfers property to the donee on the condition that the donee pay all resulting gift taxes. See Rev. Rul. 75-72. In such a situation, there is no dispute that the donee is liable for the gift tax, even if the total amount of the tax is not determined until a later juncture. See, e.g., Harrison, 17 T.C. at 1353-54, 1356 (recognizing donee’s ability to deduct additional gift taxes due under statement of deficiency in calculating net gift). Here, however, Armstrong’s children only had an obligation to pay additional gift taxes in the" }, { "docid": "8920958", "title": "", "text": "the gift tax is no different “from that to be applied in determining whether the donor has retained an interest such that it becomes subj ect to the estate tax upon its extinguishment at death\". 308 U.S. page 44, 60 S.Ct. page 56, 84 L.Ed. 20. Further, “a retention of control over the disposition of the trust property, whether for the benefit of the donor or others, renders the gift incomplete until the power is relinquished whether in life or at death\". 308 U.S page 43, 61 S.Ct. page 56, 84 L.Ed. 20. Hence the court held that a gift in trust with reservation of power in the donor to alter the dis position of the property in any way no beneficial to himself, is incomplete and does not become subject to the gift tax so long as the donor retains that power. This conclusion was arrived at even though, by virtue of the income tax provisions, the income from the trust property might have been no longer taxable to the donor. 308 U.S. pages 47, 48, 60 S.Ct. 51, 84 L.Ed. 20. We do not understand that the court in the Sanford case intended to establish the sweeping rule that a transfer inter vivos is never subject to the gift tax if notwithstanding such transfer the property is still includible in the donor’s gross estate for purposes of the estate tax. See Commissioner v. Marshall, 2 Cir., 1942, 125 F.2d 943, 947, 948; Helvering, Commissioner, v. Robinette, 3 Cir., March 23, 1942, 129 F.2d 832. In several instances, for reasons of policy, Congress has imposed an estate tax upon property of which the decedent had during his lifetime made a completed transfer by way of gift. One such instance, which the court specifically mentioned in the Sanford case, 308 U.S. page 45, 60 S.Ct. 51, 84 L.Ed. 20, is a gift in contemplation of death. Another such instance was presented in Commissioner v. Prouty, 1 Cir., 1940, 115 F.2d 331, where the donor-settlor of a trust reserved the power of revocation in conjunction with a person having a substantial" }, { "docid": "16268262", "title": "", "text": "obliged to sustain the Tax Court in rejecting it. By the transfer in 1941, there was a gift of something more than a right to future income; there was also a gift of another intangible interest of a contingent nature, a right to receive payments out of principal, to a maximum of $3,000 in any calendar year, to the extent that the trustee should deem such payments necessary for the comfortable maintenance and support of the beneficiary. This interest, which will be protected by a court of equity, is certainly worth something, despite its contingent nature ; in fact the donee could hardly fail to regard its existence as a valuable assurance against future adversity, and it certainly is a property interest within the broad terms of the gift tax law. The gift in its entirety must be valued as of the date of the gift. I.R.C. § 1005, 26 U.S.C.A. IntRev. Code, § 1005. If it be objected that the valuation fixed by the Commissioner ignores the limitations upon the trustee’s power to invade corpus, it is equally true that petitioner’s suggested valuation of the 1941 gift ignores the beneficiary’s contingent interest in the principal conferred upon him by the transfer in trust executed by petitioner on December 31, 1941. The government argues that, by the transfer of December 31, 1941, “the taxpayer relinquished completely her right to have the corpus to the extent of $3,000 annually returned to her”; that she “parted completely with the reversion to, and dominion over corpus to this extent”; and that, since so much of the corpus as will be necessary to pay such annuity of $3,000 per year for the remainder of the beneficiary’s life “cannot be returned to her except because of contingencies beyond her control,” she must be deemed to have made a taxable gift of corpus to this extent under the authority of Robinette v. Helvering, 1943, 318 U.S. 184, 63 S.Ct. 540, 87 L.Ed. 700, and Smith v. Shaughnessy, 1943, 318 U.S. 176, 63 S.Ct. 545, 87 L.Ed. 690. We would not put the matter quite this way." }, { "docid": "4872475", "title": "", "text": "Estate of Goelet v. Commissioner, 51 T.C. 352, 360 (1968); Goldstein v. Commissioner, 37 T.C. 897, 905 (1962); Estate of Kolb v. Commissioner, 5 T.C. 588, 593 (1945); Mack v. Commissioner, 39 B.T.A. 220, 229 (1939); C. Lowndes, R. Kramer & J. McCord, Federal Estate and Gift Taxes, sec. 28.11 at 719 (3d ed. 1974). The existence of a contingent power to revoke is treated as reducing the value of the gift to the extent of the value of the reserved power (Smith v. Shaughnessy, supra); but if the donor retains an interest in the property that “is not susceptible of measurement on the basis of generally accepted valuation principles, the gift tax is applicable to the entire value of the property subject to the gift.” Sec. 25.2511-1(e), Gift Tax Regs.; see Robinette v. Helvering, supra. In the present case, because of the nature of the gift adjustment contingency, the application of these valuation principles creates an apparent paradox: On the date of the gifts, the petitioners’ retained interests in the stock were not susceptible of valuation because contingent upon the actions of third parties, whose choices and determinations were impossible to predict; however, when this Court determines the value of the stock as of the date of the gifts, the values of the petitioners’ retained interests are necessarily determined. In Commissioner v. Procter, supra, the Fourth Circuit found a similar gift adjustment clause to be a condition subsequent and void because contrary to public policy. 142 F.2d at 827. The Commissioner takes the same position (Rev. Rul. 86-41, 1986-12 I.R.B. 9; Rev. Rul. 65-144, 1965-1 C.B. 442). In Procter, the taxpayer made a gift in trust. The trust agreement contained the following clause: Eleventh: The settlor is advised by counsel and satisfied that the present transfer is not subject to Federal gift tax. However, in the event it should be determined by final judgment or order of a competent federal court of last resort that any part of the transfer in trust hereunder is subject to gift tax, it is agreed by all the parties hereto that in that" }, { "docid": "4872474", "title": "", "text": "something over which they have no control. The language of the contingency is ambiguous: it may refer to a determination by the Commissioner, a decision of this Court, a District Court, or the Claims Court, or the outcome on appeal. But, in any event, the power to revest is dependent upon the actions and decisions of third parties. In fact, at the time of the gifts, there was no assurance that the contingency would ever come about because there was no guarantee that the Commissioner would choose to examine the petitioners’ gift tax returns. Although the rule has been attacked on theoretical grounds, it is settled that if the power retained by the donor is exercisable only upon the occurrence of an event over which he has no control, or only with the concurrence of someone having an interest in the property adverse to his, the reserved power does not amount to dominion and control over the property, and there is a completed gift. Smith v. Shaughnessy, supra; Robinette v. Helvering, 318 U.S. 184 (1943); Estate of Goelet v. Commissioner, 51 T.C. 352, 360 (1968); Goldstein v. Commissioner, 37 T.C. 897, 905 (1962); Estate of Kolb v. Commissioner, 5 T.C. 588, 593 (1945); Mack v. Commissioner, 39 B.T.A. 220, 229 (1939); C. Lowndes, R. Kramer & J. McCord, Federal Estate and Gift Taxes, sec. 28.11 at 719 (3d ed. 1974). The existence of a contingent power to revoke is treated as reducing the value of the gift to the extent of the value of the reserved power (Smith v. Shaughnessy, supra); but if the donor retains an interest in the property that “is not susceptible of measurement on the basis of generally accepted valuation principles, the gift tax is applicable to the entire value of the property subject to the gift.” Sec. 25.2511-1(e), Gift Tax Regs.; see Robinette v. Helvering, supra. In the present case, because of the nature of the gift adjustment contingency, the application of these valuation principles creates an apparent paradox: On the date of the gifts, the petitioners’ retained interests in the stock were not susceptible" }, { "docid": "8920961", "title": "", "text": "74 L.Ed. 826, 67 A.L.R. 1244; hence a gift tax would be payable thereon (see Helvering v. Robinette, 3 Cir., March 23. 1942. 129 F.2d 8321, even though, by amendmen of the estate tax the whole of the trust property is includible in the donor’s gross estate. I.R.C. § 811(c) 26 U.S.C.A.Int.Rev.Code, § 811(c). See Paul, op. cit. § 17.12. The same is true of an irrevocable transfer in trust with the mere possibility of reverter to the grantor. Here it has been held that the grantor must pay a gift tax upon the value of the intermediate interests thereby created. Commissioner v. McLean, 5 Cir., April 23, 1942, 127 F.2d 942; Commissioner v. Marshall, 2 Cir., 1942, 125 F.2d 943. But the property is includible in the grantor’s gross estate for purposes of the estate tax. Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368. See Warren, supra, pp. 24 — 31. But where the question arising in gift tax litigation is whether there has been a completed gift inter vivos, we are bound by the Sanford case to correlate the gift tax with the estate tax, without regard to what happens under the income tax; and if the gift is incomplete from the viewpoint of the estate tax it must be regarded as incomplete for purposes of the gift tax. In the case at bar the donor has given up all power to get the property back, but he has retained in himself as settlor of the trust complete power, not only to control the disposition of the income among the named or described beneficiaries, but also to command at any time the distribution of the whole or any part of the principal to any' or all of such beneficiaries as he may see fit. There is no doubt that the retention of such a power renders the gift incomplete for purposes of the estate tax. I.R.C. § 811(c); Chickering v. Commissioner, 1 Cir., 1941, 118 F.2d 254, certiorari denied 314 U.S. 636, 62 S.Ct. 70, 86 L.Ed.-. “A gift to" }, { "docid": "16268263", "title": "", "text": "corpus, it is equally true that petitioner’s suggested valuation of the 1941 gift ignores the beneficiary’s contingent interest in the principal conferred upon him by the transfer in trust executed by petitioner on December 31, 1941. The government argues that, by the transfer of December 31, 1941, “the taxpayer relinquished completely her right to have the corpus to the extent of $3,000 annually returned to her”; that she “parted completely with the reversion to, and dominion over corpus to this extent”; and that, since so much of the corpus as will be necessary to pay such annuity of $3,000 per year for the remainder of the beneficiary’s life “cannot be returned to her except because of contingencies beyond her control,” she must be deemed to have made a taxable gift of corpus to this extent under the authority of Robinette v. Helvering, 1943, 318 U.S. 184, 63 S.Ct. 540, 87 L.Ed. 700, and Smith v. Shaughnessy, 1943, 318 U.S. 176, 63 S.Ct. 545, 87 L.Ed. 690. We would not put the matter quite this way. The taxpayer did not relinquish completely the right to have the corpus returned to her intact at the termination of the trust. She retained the right to have the corpus so returned to her, except in so far as the trustee might find it necessary, within the limits of his discretionary power, to invade the corpus. It is true, as the government says, that the corpus cannot be ■ returned to her intact “except because of contingencies beyond her control”; but that is not the test of her taxability for a gift in 1941 of an interest in corpus. This is apparent from Smith v. Shaughnessy, supra, where there was an irrevocable transfer of property in trust, the income to be paid to the settlor’s wife for life, and upon her death the corpus to go to the settlor if living, or, if not, to the wife’s heirs. The government conceded “that the right of reversion to the donor in case he outlives his wife is an interest having value which can be calculated by" }, { "docid": "16268264", "title": "", "text": "The taxpayer did not relinquish completely the right to have the corpus returned to her intact at the termination of the trust. She retained the right to have the corpus so returned to her, except in so far as the trustee might find it necessary, within the limits of his discretionary power, to invade the corpus. It is true, as the government says, that the corpus cannot be ■ returned to her intact “except because of contingencies beyond her control”; but that is not the test of her taxability for a gift in 1941 of an interest in corpus. This is apparent from Smith v. Shaughnessy, supra, where there was an irrevocable transfer of property in trust, the income to be paid to the settlor’s wife for life, and upon her death the corpus to go to the settlor if living, or, if not, to the wife’s heirs. The government conceded “that the right of reversion to the donor in case he outlives his wife is an interest having value which can be calculated by an actuarial device, and that it is immune from the gift tax.” 318 U.S. at page 178, page 546 of 63 S.Ct., 87 L.Ed. 690. This concession was made notwithstanding the fact that the corpus could not be returned to the donor except upon a contingency beyond the donor’s control, namely, the predecease of the donor’s wife. The real difficulty with the petitioner’s case here is that the Commissioner’s determination is presumptively correct; and petitioner has not suggested, and cannot suggest, any reliable actuarial method of computing the value of her reserved right to receive the corpus back intact in case the trustee should not find it necessary to invade the corpus, to the extent permitted, for the comfortable maintenance and support of Mr. Lockard during the remainder of his life. Robinette v. Helvering, supra. See Rheinstrom v. Commissioner, 8 Cir., 1939, 105 F.2d 642, 648, 124 A.L.R. 861; Herzog v. Commissioner, 2 Cir., 1941, 116 F.2d 591. Indeed, the stipulation of facts does not even furnish a sufficient basis for an informed guess, as" }, { "docid": "10400655", "title": "", "text": "the annuity obligation was made a lien on the property does not negative the completeness of the gift; nor does it, under the facts here present, amount to a power in. the decedent to revest title to the property in himself or to change the beneficial enjoyment thereof. At most, the lien would protect the annuity only to the extent of the unpaid balance, and the deduction of the value of the annuity gives adequate recognition to that fact. It is only to the extent of the excess of the value of the transferred property over the value of the consideration received by the decedent that the transfer is taxed as a gift under section 1002 of the Internal Revenue Code. We hold that to that extent the properties transferred were put beyond the dominion and control of the decedent and were completed gifts. Smith v. Shaughnessy, 318 U. S. 176; Robinette v. Helvering, 318 U. S. 184; Estate of Sarah A. Bergan, 1 T. C. 543; Daisy B. Plummer, 2 T. C. 263; Regulations 108, sec. 86.3. We shall not dwell upon the petitioner’s second point, that the decedent’s wife, by joining in the deeds, made a gift of her inchoate dower rights, and that the value thereof should be deducted in determining the amount of the decedent’s gifts. It is recognized in the petitioner’s brief that Correlia Mason Thompson, 37 B. T. A. 793, is a direct ruling to the contrary; and, while we have carefully considered petitioner’s elaborate arguments in this connection, we adhere to the ruling in that case. See also Hopkins v. Magruder, 34 Fed. Supp. 381; cf. Frank J. Digan, 35 B. T. A. 256. This makes unnecessary a consideration of the further problem as to whether such inchoate right of dower is susceptible of actuarial valuation, though because of the many contingencies other than survivorship (see Illinois Revised Statutes, ch. 3, secs. 18-25) through .which the right may be barred or defeated, there would seem lo be equally as much difficulty in the way of an actuarial valuation as there was in valuing" }, { "docid": "22473022", "title": "", "text": "the problem: Commissioner v. Marshall, 125 F. 2d 943 (C. C. A. 2d); Commissioner v. Beck’s Estate, 129 F. 2d 243 (C. C. A. 2d); Commissioner v. McLean, 127 F. 2d 942 (C. C. A. 5th); Helvering v. Robinette, 129 F. 2d 832 (C. C. A. 3d), affirmed, post, p. 184; Hughes v. Commissioner, 104 F. 2d 144 (C. C. A. 9th); and see the cases cited in Note 2, supra. Mr. Justice Roberts : I dissent. I am of opinion that, except for the life estate in the wife, the gift qua the donor was incomplete and not within the sweep of §§ 501 and 506. A contrary conclusion might well be reached were it not for Helvering v. Hallock, 309 U. S. 106. But the decisions in Burnet v. Guggenheim, 288 U. S. 280, and Sanford v. Commissioner, 308 U. S. 39, to which the court adheres, require a reversal in view of the ruling in the Hallock case. The first of the two cases ruled that a transfer in trust, whereby the grantor reserved a power of revocation, was not subject to a gift tax, but became so upon the renunciation of the power. The second held that where the grantor reserved a power to change the beneficiaries, but none to revoke or to make himself a beneficiary, the transfer was incomplete and not subject to gift tax. At the same term, in Porter v. Commissioner, 288 U. S. 436, the court held that where a decedent had given property inter vivos in trust, reserving a power to change the beneficiaries but no power to revoke or revest the property in himself, the transfer was incomplete until the termination of the reserved power by the donor’s death and hence the corpus was subject to the estate tax. When these cases were decided, the law, as announced by this court, was that where, in a complete and final transfer inter vivos, a grantor provided that, in a specified contingency, the corpus should pass to him, if living, but, if he should be dead, then to others, the gift" }, { "docid": "9922387", "title": "", "text": "and irrevocably committed the corpus, to the extent of $3,000 a year, to invasion for the benefit of her husband, if the need therefor should arise. Whether or not the corpus to that extent would be so used and, consequently, whether or not any of the portion so committed would ever be returned to her, were dependent entirely upon “contingencies beyond [her] control.” Robinette v. Helvering, supra; cf. Commissioner v. Marshall, 125 Fed. (2d) 943. If in each year after the transfer became effective the circumstances of the husband should be such as to require the distribution to him of $3,000 of the principal and the trustee should determine to make such distributions, petitioner would be powerless to prevent it. A problem in many respects similar to that under consideration here was present and decided in John A. Griswold, Jr., 3 T. C. 909. There the donor had established a trust, the income of which was payable to his mother for life. The trustees, however, were authorized in their discretion to pay the life beneficiary from time to time out of the principal “such sum or sums as they may deem appropriate.” There the taxpayer, as does the petitioner here, contended that the gift was on its face only of the life estate and that, as to corpus, gift tax would arise only when the trustees should exercise their discretion to make distributions therefrom to the life tenant. This Court there said: * * * The contention, in our opinion, may not be sustained. The transfer is one in trust, irrevocable, for certain purposes named. One of these is the discretionary distribution of any or all of the corpus to the person receiving the income for her lifetime. Under such facts, we think the settlor, under the principles laid down in the Robinette, Smith v. Shaugnessy, and Marshall cases, supra, lost all “economic control” and economic benefits, rendering the entire value of the corpus subject to gift tax. The settlor retained only a mere possibility that, if the trustees did not dispose of the corpus to the mother, he might" }, { "docid": "4872473", "title": "", "text": "him no power to change its disposition, whether for his own benefit or for the benefit of another, the gift is complete. But if upon a transfer of property (whether in trust or otherwise) the donor reserves any power over its disposition, the gift may be wholly incomplete, or may be partially complete and partially incomplete, depending on all the facts in the particular case. [Sec. 25.2511-2 (b), Gift Tax Regs.] See Smith v. Shaughnessy, 318 U.S. 176 (1943); Estate of Sanford v. Commissioner, 308 U.S. 39 (1939); Burnet v. Guggenheim, 288 U.S. 280 (1933). Under the gift adjustment agreement, the petitioners each conveyed 25 shares of J-Seven stock to each son but reserved the power to revoke a part of each gift if it is “finally determined for Federal gift tax purposes” that the fair market value of each share exceeds $2,000. At the time the gifts were made, the petitioners did not possess a presently exercisable right to revoke the gifts in whole or in part. Their power to revoke is contingent upon something over which they have no control. The language of the contingency is ambiguous: it may refer to a determination by the Commissioner, a decision of this Court, a District Court, or the Claims Court, or the outcome on appeal. But, in any event, the power to revest is dependent upon the actions and decisions of third parties. In fact, at the time of the gifts, there was no assurance that the contingency would ever come about because there was no guarantee that the Commissioner would choose to examine the petitioners’ gift tax returns. Although the rule has been attacked on theoretical grounds, it is settled that if the power retained by the donor is exercisable only upon the occurrence of an event over which he has no control, or only with the concurrence of someone having an interest in the property adverse to his, the reserved power does not amount to dominion and control over the property, and there is a completed gift. Smith v. Shaughnessy, supra; Robinette v. Helvering, 318 U.S. 184 (1943);" }, { "docid": "4872490", "title": "", "text": "market value of each share was less than $2,000; but we think the donees could not enforce the agreement against the donors because it was unsupported by any consideration flowing from the donees. See Macris, “Open Valuation and the Completed Transfer: A Problem Area in Federal Gift Taxation,” 34 Tax L. Rev. 273 (1979). Mr. Macris contends that, from a theoretical standpoint, a power to revoke that is subject to a contingency beyond the control of the transferor, and that, consequently, the transfer is incomplete as to the property subject to revocation, “even where the occurrence of the external contingency is virtually impossible.” 34 Tax L. Rev. 277. However, Mr. Macris acknowledges that the law currently treats such transfers as complete, and he admits that, at least in cases where the contingency is unlikely to occur, “practically speaking, it may be that substance should prevail over form. The unlikelihood of the occurrence of the contingent event can be seen to eviscerate the donor’s power, rendering the transfer complete, thus preventing a deferral of tax on a transfer that is, in substance, irrevocable.” 34 Tax L. Rev. 278; fn. refs, omitted. The estate tax imposed by sec. 2001(a) is equal to the excess (if any) of the tentative tax (computed in accordance with the rate schedule set forth in sec. 2001(c)) on the sum of the taxable estate and adjusted taxable gifts, over the aggregate amount of gift tax payable with respect to gifts made by the decedent after Dec. 81, 1976. Sec. 2001(b) (as in effect during the years in issue). For purposes of sec. 2001(b), the term “adjusted taxable gifts” means the total amount of the taxable gifts (within the meaning of sec. 2503) made by the decedent after Dec. 31, 1976, other than gifts which are includable in the gross estate of the decedent. The term “taxable gifts” means the sum of the values of the gifts made during the taxable period, less annual exclusions and less certain deductions. Sec. 2503. Sec. 2504(c) provides that, for gift tax purposes, if the valuation of a gift made in a" }, { "docid": "12678698", "title": "", "text": "donee need only pay gift taxes on the net gift. Rev. Rul. 75-72. The net gift is determined by deducting the amount of the gift tax obligation from the value of the transferred property. Id. The rationale for the net gift doctrine is that a donor who has required the donees to pay gift taxes on transferred property “did not intend that the amount of the value of the property necessary for the gift tax liability would be a gift.” Harrison v. Comm’r, 17 T.C. 1350, 1357, 1952 WL 227 (1952). Because the value of property at the time of transfer is the basis for calculating the gift tax, a donee seeking the benefit of net gift principles must demonstrate that payment of the gift taxes was a condition on the gift at the time of transfer. Rev. Rul. 75-72. Any obligation of the donee to pay gift taxes that is speculative or illusory evidences that the obligation was not a true condition on the gift at the time of the transfer, and so did not diminish the value of the transferred property, in which case the entire value of the property is a gift subject to gift taxes. See Robinette v. Helvering, 318 U.S. 184, 188, 63 S.Ct. 540, 87 L.Ed. 700 (1943) (holding that net gift principles do not apply to “contingent” liability); Rev. Rul. 75-72 (providing that net gift principles require “the resulting [gift] tax ... actually be paid by the donee or from the subject property”). A. The Estate and the Trust initially argue that net gift principles apply to reduce the value of the transferred stock by the amount of additional gift taxes paid by the Trust after Armstrong’s death. The taxpayers maintain that the transferee lia bility agreement required the children to pay these additional gift taxes and this obligation created a “retained interest in the donor and therefore a ‘net gift.’ ” The first problem with this contention is that the children’s obligation to pay the additional gift taxes was both contingent and highly speculative. When a condition on a gift is contingent," }, { "docid": "10400657", "title": "", "text": "the “contingent reversionary remainder” involved in Robinette v. Helvering, supra. We next come to the question as to how much the value of the gift properties should be reduced on account of the annuities payable by the donees; in other words, by how much did the value of the property exceed the consideration received by the decedent. Petitioner is of the view that the value of the annuities to both the decedent and his wife, Sunkea Bartman, in case she survived him, should be deducted. The respondent took into account only the value of the annuities to the decedent and did not deduct the value of the contingent annuities payable to his wife. Practically the only argument the petitioner makes on brief is that the respondent’s method is “wholly indefensible as a matter of fact and law.” We do not agree. The gift tax is an excise imposed, not upon the receipt of property by various donees, but upon the donor’s act of making a transfer; and it is measured by the value of the property passing from the donor. Regulations 108, sec. 86.3. The contingent annuities to Sunkea Bartman were not consideration flowing to the decedent. Their value, whatever it might be, was a value which passed irrevocably from the dominion and control of the decedent. It would go to decedent’s wife only if she survived him; otherwise it would be retained by the children. In no event would it revert to the decedent. The annuities for his own lifer were all that he would get. We accordingly hold that no deduction should be made on account of the contingent annuities for the decedent’s wife. The respondent’s valuation of the annuities payable to the decedent for his life ($3,202.58 for each of the three annuities) was based upon Table A following section 86.19 of Gift Tax Regulations 108, which in turn is predicated upon the Actuaries’ or Combined Experience Mortality Table, as extended, with interest at 4 per cent. Petitioner contends for a valuation of $3,788 based on the Combined Annuity Mortality Table at 3 per cent interest. Petitioner" }, { "docid": "8920959", "title": "", "text": "47, 48, 60 S.Ct. 51, 84 L.Ed. 20. We do not understand that the court in the Sanford case intended to establish the sweeping rule that a transfer inter vivos is never subject to the gift tax if notwithstanding such transfer the property is still includible in the donor’s gross estate for purposes of the estate tax. See Commissioner v. Marshall, 2 Cir., 1942, 125 F.2d 943, 947, 948; Helvering, Commissioner, v. Robinette, 3 Cir., March 23, 1942, 129 F.2d 832. In several instances, for reasons of policy, Congress has imposed an estate tax upon property of which the decedent had during his lifetime made a completed transfer by way of gift. One such instance, which the court specifically mentioned in the Sanford case, 308 U.S. page 45, 60 S.Ct. 51, 84 L.Ed. 20, is a gift in contemplation of death. Another such instance was presented in Commissioner v. Prouty, 1 Cir., 1940, 115 F.2d 331, where the donor-settlor of a trust reserved the power of revocation in conjunction with a person having a substantial adverse interest. Such a transfer has been recognized by the Supreme Court as a completed gift inter vivos. Reinecke v. Northern Trust Co., 1929, 278 U.S. 339, 346, 347, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397; Helvering v. City Bank Farmers Trust Co., 1935, 296 U.S. 85, 90, 56 S.Ct. 70, 80 L.Ed. 62. As we pointed out in the Prouty case,’ the legislative history of the gift tax indicates clearly that such a transfer in trust is subject to the gift tax, even though the property so transferred is still includible in the donor’s gross estate for purposes of the estate tax See Paul, Federal Estate and Gift Taxation (1942) § 17.09; Warren,, supra, pp. 31-32. Another example of the same sort is an inter vivos transfer in trust, reserving the net income for life to the settlor, with an irrevocable remaindei to another. This is no doubt a completed gift of the remainder interest, as the Supreme Court has recognized, May v. Heiner, 1930, 281 U.S. 238, 244, 50 S.Ct. 286," }, { "docid": "10992201", "title": "", "text": "was given on March 24, 1943, and the petition herein was filed on June 10,1943. The Commissioner determined that the entire amount of $125,125, the value of the corpus of, the trust, was subject to inclusion in petitioner’s gift tax return. The petitioner therefore has the burden of showing error in that regard. To what extent, if any, shall the amount of the gift be considered as less than the amount of the trust corpus ? The petitioner contends that the value of the contingent remainder of John Wool Griswold, valued at $7,008.25 is not a taxable gift; also, that the same is true as to the reversionary interest of the estate of the petitioner, valued at $3,721.77; without, however, taking into consideration in either case the possible transfer of all or a part of the corpus to the life tenant, or that the petitioner might have issue. Obviously, such possibilities make the contingent interests impossible of valuation and logically permit no deduction from full value of the corpus, even if the petitioner otherwise so relinquished “economic control” as to complete the gift. Robinette v. Helvering, 318 U. S. 184; Commissioner v. Marshall, 125 Fed. (2d) 943. Whether the petitioner as settlor so completed the gift, we therefore next consider. It was conceded in Smith v. Shaughnessy, 318 U. S. 176, and in Commissioner v. Marshall, supra, and apparently assumed in Robinette v. Helvering, supra, that the reversionary interest reserved by the settlor (here valued at $59,450.64) after the life estate, is not as such taxable. Here, however, such reversion to the settlor is subject to a contingency as fully as was the case in Robinette v. Helvering, for there the contingency which caused taxation of the estate reserved to the settlor was that the daughter might marry and have children reaching 21 years of age, whereas here the settlor’s receiving the reversion depends upon whether it, or some part of it, has or has not been paid to the life tenant by the trustees, as provided. Therefore, as a mere deduction from full value of the gift, the reservation" } ]
222943
"be found at Manning's residence. For these reasons, the Court finds that Judge Oleisky had a substantial basis for finding that Agent Johnson's affidavit established probable cause to search Manning's residence and belongings. B. Motion to Suppress Statements Manning also seeks suppression of statements that he made to Agent Johnson while his house was being searched. Both parties agree that Agent Johnson interrogated Manning without first providing Miranda warnings. Thus, ""[t]he critical question is whether the interrogation occurred in a custodial setting."" United States v. Jones , 630 F.2d 613, 615 (8th Cir. 1980). A suspect is in custody when ""there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."" REDACTED Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) ). ""To determine whether a suspect was in custody,"" the Court asks ""whether, given the totality of the circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave or cause the agents to leave."" United States v. Laurita , 821 F.3d 1020, 1024 (8th Cir. 2016) (citation omitted). The Eighth Circuit has identified six non-exclusive indicia of custody. These indicia include: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered"
[ { "docid": "1942627", "title": "", "text": "interrogated in a so-called custodial setting. See, e.g., Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Miranda, 384 U.S. at 444, 86 S.Ct. 1602, the Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Courts do not determine whether a suspect is in custody from the perspective of the interrogator; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In other words, the question is whether, viewing the totality of the circumstances, a reasonable person would have believed that the police curtailed his or her freedom of movement to a “degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam). Admittedly, “the task of defining ‘custody’ is a slippery one,” Elstad, 470 U.S. at 309, 105 S.Ct. 1285, that presents mixed questions of fact and law. A court of appeals reviews a district court’s custody determination de novo, but the underlying factual findings for clear error. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir.2004) (en banc). In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), we identified six considerations which “either mitigate or aggravate an atmosphere of custodial interrogation.” These considerations are “whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest”; “whether the suspect possessed unrestrained freedom of movement” during the interview; “whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions”; “whether strong arm tactics or deceptive stratagems were employed during questioning”; whether the atmosphere of the questioning was dominated by law enforcement officers; and “whether the suspect was placed under arrest at the termination of" } ]
[ { "docid": "7930944", "title": "", "text": "than an arrest” and was therefore a reasonable seizure under the Fourth Amendment. B. Miranda Warnings Burns contends that the statements she made to Agent Snyder should have been suppressed because she was not read Miranda warnings prior to the statements. In order to protect a citizen’s right against self-incrimination guaranteed by the Fifth Amendment, the Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that suspects must be read certain warnings before they are subjected to “custodial interrogation.” Id. at 444, 86 S.Ct. at 1612. A suspect must be both “in custody” and subject to “interrogation” to trigger the Miranda warnings requirement. As a threshold matter, therefore, we must determine whether Burns was in custody during execution of the search warrant. A person is in custody for purposes of Miranda if that person is either formally arrested or has suffered a “ ‘restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). In determining whether a suspect is in custody, courts look at “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). This determination is based on the “totality of the circumstances.” United States v. Fazio, 914 F.2d 950, 954 (7th Cir.1990). “‘The accused’s freedom to leave the scene and the purpose, place and length of interrogation are all relevant factors in making this determination.’ ” United States v. Hocking, 860 F.2d 769, 773 (7th Cir.1988) (quoting United States v. Helmet, 769 F.2d 1306, 1320 (8th Cir.1985)). In considering whether a suspect is in custody for purposes of Miranda, courts have often consulted the line of Fourth Amendment cases, beginning with Terry v. Ohio, discussing whether certain seizures are “reasonable” absent probable cause. For instance, in Berkemer, the Supreme Court addressed the issue of “whether the" }, { "docid": "10529045", "title": "", "text": "the FBI agents subjected him to custodial interrogation without the appropriate Miranda safeguards and the district court should have suppressed the confessions. The issue presented raises a mixed question of fact and law. A. Availability of Procedural Safeguards The procedural safeguards embodied in the Miranda decision come into play only when police interrogate a suspect in a custodial setting. See, e.g., Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985); Miranda, 384 U.S. at 444, 478, 86 S.Ct. at 1612, 1630; United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir.1990); United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989), In Miranda, the Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct, at 1612 (footnote omitted). In undertaking a custody determination, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984) (footnote omitted). In essence, we look at whether, under the totality of the circumstances, the suspect subjectively and reasonably believed that the police curtailed his freedom of movement to a “ ‘degree associated with formal arrest.’ ” Griffin, 922 F.2d at 1347 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam), quoted in Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150). B. Custody Analysis The issue of whether a suspect is in custody for the purpose of Miranda has generated extensive litigation. Even the Supreme Court has observed that “the task of defining ‘custody’ is a slippery one.” Elstad, 470 U.S. at 309, 105 S.Ct. at 1293. The present case, which presents a very close question, is no exception. We are bound, however, by the analysis set forth in Griffin, in which this court isolated six “common indicia of custody.” Griffin, 922 F.2d at 1349. The “indicia of custody” inquiry" }, { "docid": "16374312", "title": "", "text": "to Swanson’s assertion, the test for whether a person is in custody for Miranda purposes is not simply whether a reasonable person would have felt free to leave in the circumstances surrounding the interrogation. Although the “felt free to leave” inquiry may be a factor for consideration, see Crossley, 224 F.3d at 861; Salvo, 133 F.3d at 949-50, the “ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Knox, 839 F.2d at 291 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation marks omitted)). The court in Jones concluded that based on the totality of the circumstances, there was “a restraint of movement of the degree associated with formal arrest.” In reviewing the totality of the circumstances, we conclude that Swanson was not in custody for Miranda purposes, and that the district court did not err when it denied the motion to suppress his statements. B. The Fourth Amendment argument Swanson argues that the seizure of his car was without any legal justification, as the agents did not have probable cause. He argues that at the time of the seizure, the agents did not have any information that Rick (the target of the agents’ arrest warrant) had been in the car for over a month, and had no information that there was evidence of a crime inside the car. We review the district court’s decision on Swanson’s motion to suppress under “two complementary standards. First, the district court’s findings of fact are upheld unless clearly erroneous. Second, the court’s legal conclusion as to the existence of probable cause is reviewed de novo.” United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993) (citations omitted). A warrantless seizure of an automobile is reasonable if there is “probable cause that an automobile contains evidence or fruits of a crime plus ‘exigent circumstances.’ ” United States v. Beck, 511 F.2d 997, 1001 (6th Cir.1975). The government urges us to hold that the “automobile exception” to the warrant" }, { "docid": "16374304", "title": "", "text": "cert. denied, 504 U.S. 980, 112 S.Ct. 1994, 118 L.Ed.2d 590 (1992)). The “ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” United States v. Knox, 839 F.2d 285, 291 (6th Cir.1988) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation marks omitted)). After considering the totality of the circumstances of this investigatory detention, we conclude that Swanson was not subject to custodial interrogation. Although Swanson was not free to leave during the questioning, the restraint exercised never reached the level associated with “formal arrest or a coercive context tantamount to custody.” Salvo, 133 F.3d at 953. The first factor this court considers is whether a reasonable person in the defendant’s position would feel free to leave. Crossley, 224 F.3d at 861. However, as noted above, in the context of a Terry-style investigatory detention, a person is not free to leave, at least temporarily. Thus, the first factor in the determination weighs in favor of defining Swanson’s detention and questioning as a custodial interrogation. Other factors we take into consideration include: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police ... [or] acquiesced to their requests to answer some questions. Ibid, (quoting Salvo, 133 F.3d at 950). The place of the questioning was not hostile or coercive. The questioning took place outside, in a public space, with other agents and at least seven or eight other people from inside the shop nearby. The Supreme Court addressed detentions in public spaces in Berkemer in the context of detentions during traffic stops. Berkemer, 468 U.S. at" }, { "docid": "19113390", "title": "", "text": "agreement unenforceable. We review a district court’s decision whether to hold an evidentiary hearing for an abuse of discretion. United States v. Roberson, 439 F.3d 934, 940 (8th Cir.2006). A. Prior to trial, Yielding filed a motion to suppress statements he made during his interview with the FBI on April 14, 2006. Yielding asserted that his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and requested an evidentiary hearing. The motion to suppress asserted that federal agents contacted and interrogated Yielding in April 2006, that Yielding was a target of the agents’ investigation, and 'that the agents who conducted the interrogation failed to advise Yielding of the warnings required by Miranda. The district court denied the motion to suppress without a hearing, reasoning that “Yielding has not provided any facts in support of his argument that his statement should be suppressed.” Yielding argues that the refusal to hold an evidentiary hearing violated his rights under the Due Process Clause of the Fifth Amendment. A district court presented with a motion to suppress need not hold an evidentiary hearing as a matter of course, and a hearing is unnecessary if the district court can determine that suppression is unwarranted as a matter of law. United States v. Mims, 812 F.2d 1068, 1073-74 (8th Cir.1987). Miranda’s requirements apply only to interrogations of suspects who are in custody. 384 U.S. at 444, 86 S.Ct. 1602. A suspect is “in custody” for purposes of Miranda when there is a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” See California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (internal quotation omitted). In his motion, Yielding did not assert that he was in custody at the time of the interrogation, and he did not allege any facts that vrould .support a determination that he was in custody. Denial of the motion to suppress was therefore appropriate as a matter of law, and no evidentiary hearing was required. - B. On November 16," }, { "docid": "1537397", "title": "", "text": "Miranda v. Arizona are designed to secure an accused’s privilege against self-incrimination and are triggered only in the event of a custodial interrogation. A defendant is in custody when, based upon a review of all the pertinent facts, “a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.” United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir.1985) (citations omitted). Furthermore, “[although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). Eide was not in custody and in fact was never arrested for these crimes. This issue thus turns on whether reasonable innocent people in Eide’s situation would conclude that they would not be free to leave after brief questioning. Particularly because the FBI agents interviewed Eide at his home, and also because the meeting was amicable, the district court’s conclusion that Miranda warnings were not required are affirmed. VII. Should Eide’s Admissions To The FBI Have Been Suppressed On The Grounds That They Were Involuntary? Finally, Eide argues that the statements he made to the FBI were involuntary because of implied promises the FBI agent made. Specifically, Eide argues that his confession was not voluntary because agents led him to believe that his statements would not be used against him in a criminal prosecution and because a “parable” that the agents told him induced the confession. First, with respect to the parable, the district court ruled that while the use of the “parable” clearly touched sympathetic chords in Eide, it did not psychologically coerce him or overbear his will. This reasoning is sound. Second, regarding the question of whether Eide confessed to the FBI because of implied promises by the agents, the district court found as a matter of fact that the FBI agents" }, { "docid": "3547085", "title": "", "text": "or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612. Because Mr. Jones was not placed under arrest prior to or during the questioning on March 6 and 7,1992, the district court correctly recognized that the appropriate inquiry is whether, at the time of the questioning, Mr. Jones was subject to a “ ‘restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). This inquiry is determined from the view of “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). Miranda warnings are not required merely because the individual questioned by law enforcement officers is a suspect or is the focus of a criminal investigation. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. Further, the questioning of a suspect in a “coercive environment,” in the absence of a formal arrest or a restraint on freedom, does not convert automatically a noncustodial situation into a custodial interrogation. Id.; Hocking, 860 F.2d at 773. “In determining whether the accused was subjected to custodial interrogation, a reviewing court should consider the totality of the circumstances. The accused’s freedom to leave the scene and the purpose, place and length of interrogation are all relevant factors in making this determination.” Hocking, 860 F.2d at 773 (citation omitted). We believe that, when assessed in its totality and giving due regard to the credibility determinations of the district court, the record supports the conclusion that Mr. Jones was not in custody at the time he made the statements in question. The confrontational nature of Mr. Jones’ initial encounter with the officers does not, by itself, establish custody. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. Although Mr. Jones testified that a gun was displayed by an officer, this factor, although important in the overall assessment of the situation, is" }, { "docid": "22579546", "title": "", "text": "whereabouts of David Lee and the guns, and that he was thus entitled to receive the Miranda warnings before questioning. We review de novo the district court’s legal determination about whether a defendant was in custody, and we review the court’s factual findings for clear error. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). To determine whether an individual is in custody, a court must consider “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation omitted). The custody inquiry turns on whether, given the totality of the circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave or cause the agents to leave. United States v. New, 491 F.3d 369, 373 (8th Cir.2007). The district court found that all the pre-arrest statements at issue were made during the roughly five-minute period after Vinton made contact with the officers at his front door. The court found that Vinton made the statements in his own home, a location that is “ ‘not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.’ ” United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004) (quoting United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985)); see also Axsom, 289 F.3d at 502; United States v. Sutera, 933 F.2d 641, 647 (8th Cir.1991). The court also found that Brown and Vinton were alone in Vinton’s kitchen during the questioning, and that the police had not restrained, threatened, or coerced Vinton. These findings were not clearly erroneous and were amply supported by Brown’s testimony, which the district court credited. Based on the totality of the circumstances, we agree with the district court that Vinton was not in custody, because a reasonable person in Vinton’s position would have felt at liberty to terminate the interrogation and ask the officers to leave. Vinton asserts that the district court erred in concluding that Brown’s testimony was credible and" }, { "docid": "1537396", "title": "", "text": "the VAMC because of his drug problems and he received medical care for these problems. Allowing Eide’s admissions and medical records to be admitted in a criminal prosecution contradicts the literal meaning of 42 U.S.C. § 290ee-3 as well as the Congressional intent underlying the statute. A contrary ruling would discourage people from seeking professional help for their alcohol and drug problems and would frustrate the work of alcohol and drug treatment facilities. The district court erred in refusing to suppress this evidence. VI. Should Eide’s Admissions To The FBI Have Been Suppressed On The Grounds That They Were Obtained In Violation Of Miranda v. Arizona? Eide contends that the FBI agents who interviewed him at his residence were required to give him Miranda warnings. But the fact that Eide may have been the “focus” of the FBI’s investigation does not mandate the giving of Miranda warnings unless the suspect is in custody. Beckwith v. United States, 425 U.S. 341, 345-46, 96 S.Ct. 1612, 1615-16, 48 L.Ed.2d 1 (1976). Indeed, [t]he procedural protections afforded by Miranda v. Arizona are designed to secure an accused’s privilege against self-incrimination and are triggered only in the event of a custodial interrogation. A defendant is in custody when, based upon a review of all the pertinent facts, “a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.” United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir.1985) (citations omitted). Furthermore, “[although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). Eide was not in custody and in fact was never arrested for these crimes. This issue thus turns on whether reasonable innocent people in Eide’s situation would conclude that they would not be free to leave after brief questioning." }, { "docid": "21557429", "title": "", "text": "techniques or pressure. Goudreau was personally acquainted with one of the agents, who suggested at the end of the two-and-one-half-hour interview that Gou-dreau might want to look for another job. A grand jury subsequently indicted Gou-dreau, charging him with violating an individual’s constitutional right to be free from excessive force by an officer acting under color of law, in violation of 18 U.S.C. § 242. Goudreau then moved to suppress the statement he had made to the agents during the interview. The district court ruled that the statement was inadmissible because it had not been preceded by Miranda warnings and was not voluntarily given. II. Miranda warnings are required prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). An individual is “in custody” when he has been formally arrested or his freedom of movement has been restrained to a degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam). Relevant inquiries are whether the suspect is free to leave the scene, the purpose, place, and length of the questioning, and whether a reasonable person in the suspect’s position would have considered himself to be in custody. Leviston v. Black, 843 F.2d 302, 304 (8th Cir.1988); United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.1988). The mere fact that an investigation has focused on a particular suspect does not trigger the need for Miranda warnings in noncustodial settings. Minnesota v. Murphy, 465 U.S. 420, 431, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984). Goudreau was neither arrested nor restrained. The FBI agents explained to Goudreau that the interview was voluntary. Goudreau was free to leave at any time. Although Goudreau’s supervisor had instructed him to meet with the agents at the appointed time, which Goudreau interpreted to be an order, this was not an act of the FBI agents and is irrelevant in determining whether Goudreau was in custody. The interview was not excessively lengthy and was held in the building housing Goudreau’s chief of police," }, { "docid": "10529046", "title": "", "text": "Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984) (footnote omitted). In essence, we look at whether, under the totality of the circumstances, the suspect subjectively and reasonably believed that the police curtailed his freedom of movement to a “ ‘degree associated with formal arrest.’ ” Griffin, 922 F.2d at 1347 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam), quoted in Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150). B. Custody Analysis The issue of whether a suspect is in custody for the purpose of Miranda has generated extensive litigation. Even the Supreme Court has observed that “the task of defining ‘custody’ is a slippery one.” Elstad, 470 U.S. at 309, 105 S.Ct. at 1293. The present case, which presents a very close question, is no exception. We are bound, however, by the analysis set forth in Griffin, in which this court isolated six “common indicia of custody.” Griffin, 922 F.2d at 1349. The “indicia of custody” inquiry focuses on tactics employed by the police during questioning “which tend to either mitigate or aggravate an atmosphere of custodial interrogation.” Id. In making a custody determination under Griffin, a court looks at: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning. Id. The district court held that Mottl’s interrogation at FBI headquarters was non-custodial under Griffin. The FBI agents failed to inform Mottl at the outset of questioning that they had no intent to arrest him and that" }, { "docid": "22579545", "title": "", "text": "a greater base offense level under USSG § 2K2.1(a)(3). The district court agreed and determined Vinton’s advisory guideline sentencing range was 84 to 105 months. The court sentenced Vinton to 84 months’ imprisonment, to be followed by two years of supervised release. II. Vinton contends that the district court erred in denying his motion to suppress. He argues that his pre-arrest statements to the police were involuntary and obtained in violation of Miranda, that he did not voluntarily consent to a search of his house, and that his statements at the police station were involuntary and obtained after an invalid waiver of his Miranda rights. We conclude that each of these arguments is without merit. Vinton claims that his pre-arrest statements should be suppressed because the police had not yet read him the Miranda warnings when he made the statements. Miranda requires that law enforcement agents provide certain warnings before they conduct an interrogation of an individual who is in custody. Vinton contends that he was in custody when the police questioned him about the whereabouts of David Lee and the guns, and that he was thus entitled to receive the Miranda warnings before questioning. We review de novo the district court’s legal determination about whether a defendant was in custody, and we review the court’s factual findings for clear error. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002). To determine whether an individual is in custody, a court must consider “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation omitted). The custody inquiry turns on whether, given the totality of the circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave or cause the agents to leave. United States v. New, 491 F.3d 369, 373 (8th Cir.2007). The district court found that all the pre-arrest statements at issue were made during the roughly five-minute period after Vinton made contact with the officers at" }, { "docid": "14224824", "title": "", "text": "1349 (8th Cir.1990), the district court found the investigators subjected Laurita to a custodial interrogation without giving a Miranda warning.. The district court granted Lau-rita’s motion to suppress, and the government appeals. II. DISCUSSION “On review of a motion to suppress, we review the’ district 'court’s factual findings for clear error and review its legal conclusions de novo,” United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir.2013). The rule, under Miranda prevents the government from using statements “stemming from custodial interrogation of the defendant,” unless, the government has used “procedural safeguards -effective to, secure the privilege against . self incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see Thompson v. Keohane, 516 U.S. 99, 107, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (explaining • “suspects - interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that - they are entitled to the presence, of. an attorney, either retained or appointed, at the interrogation”).- “Although the circumstances of each case must certainly influence a determination of whether a, suspect is ‘in, ■ custody for purposes of receiving Miranda protection, the ultimate inquiry is simply' whether there is' a ‘formal arrest or restraint on freedom of movement’ of the degree' associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam)). To determine whether a suspect was in custody, we ask “whether, -given the totality of the circumstances, a reasonable person would have felt at liberty to terminate' the interrogation and leave or cause the agents to leave.” United States v. Vinton, 631 F.3d 476, 481 (8th Cir.2011). We have set forth six non-exclusive indicia of custody: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered" }, { "docid": "16374303", "title": "", "text": "suspicion of criminal activity. Ibid. “The officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the encounter provides the officer with probable cause to arrest him, he must then be released.” Ibid. The very nature of a Terry stop means that a detainee is not free to leave during the investigation, yet is not entitled to Miranda rights. Berkemer v. McCarty, 468 U.S. 420, 439-41, 104 S.Ct. 3138, 3150-51, 82 L.Ed.2d 317 (1984). Therefore, the pertinent question is whether Swanson was “in custody” during the investigatory detention for the purposes of determining whether his Fifth Amendment rights were violated. In determining whether a defendant was subject to custodial interrogation we look to the totality of the circumstances “to determine ‘how a reasonable man in the suspect’s position would have understood the situation.’” Salvo, 133 F.3d at 948 (quoting United States v. Phillip, 948 F.2d 241, 247 (6th Cir.1991), cert. denied, 504 U.S. 980, 112 S.Ct. 1994, 118 L.Ed.2d 590 (1992)). The “ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” United States v. Knox, 839 F.2d 285, 291 (6th Cir.1988) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation marks omitted)). After considering the totality of the circumstances of this investigatory detention, we conclude that Swanson was not subject to custodial interrogation. Although Swanson was not free to leave during the questioning, the restraint exercised never reached the level associated with “formal arrest or a coercive context tantamount to custody.” Salvo, 133 F.3d at 953. The first factor this court considers is whether a reasonable person in the defendant’s position would feel free to leave. Crossley, 224 F.3d at 861. However, as noted above, in the context of a Terry-style investigatory detention, a person is not free to leave, at least temporarily. Thus, the first factor in" }, { "docid": "18026963", "title": "", "text": "prosecution has the burden of establishing by a preponderance of the evidence that a suspect waived his Miranda rights, and that his confession is truly the product of free choice.” United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991) (citing Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). i. Pre-Arrest Statement was not the product of custodial interrogation The government asserts that Defendant was not in “custody” for the approximately fifteen minutes he was in the private search room prior to arrest — that is, that a reasonable person in Defendant’s position would not have considered himself subject to restraints approximating a formal arrest prior to his actual formal arrest. See Acosta, 575 F.3d at 189 (quoting Innis, 446 U.S. at 301, 100 S.Ct. 1682). Defendant argues that he was subject to circumstances under which “no reasonable person would believe that they were free to terminate the questioning and go about their way.” (Mot. to Suppress 6.) “The free-to-leave inquiry constitutes a necessary, but not determinative, first step in establishing Miranda custody.” Newton, 369 F.3d at 670; see also FNU LNU, 653 F.3d at 153. The “ultimate inquiry” for determining Miranda custody is whether a reasonable person in Defendant’s position would have considered himself subject to a restraint on freedom of the degree associated with formal arrest. See Newton, 369 F.3d at 670 (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). In assessing whether one was in “custody,” courts examine the totality of the circumstances, including “the interrogation’s duration; its location (e.g., at the suspect’s home, in public, in a police station, or at the border); whether the suspect volunteered for the interview; whether the officers used restraints; whether weapons were present and especially whether they were drawn; whether officers told the suspect he was free to leave or under suspicion.” FNU LNU, 653 F.3d at 153 (citations omitted); United States v. Broughton, 600 Fed.Appx. 780, 782-83 (2d Cir.2015) (To determine whether a suspect is in “custody” for the purposes of Miranda, a court must examine" }, { "docid": "4887531", "title": "", "text": "v. Smith, 7 F.3d 1164, 1170 (5th Cir.1993) (quoting Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166 (1989)). Although there is no precise admonition that must be’ given a criminal defendant, our system of criminal justice requires that an accused be givén Miranda warnings, or their functional equivalent before any custodial interrogation. A custodial interrogation results when a person is formally arrested or has a significant restraint imposed on his or her freedom of movement. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam). Douglas had not been formally arrested at the time he made the incriminating statements. Thus, the focus of the inquiry is whether the officers that executed' the search warrant created an environment where Douglas’ perception of his freedom of movement was restrained to the degree associated with a formal arrest. When determining whether the restraint on an individual’s movement rises to the level associated with a formal arrest, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood the situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3141, 82 L.Ed.2d 317 (1984). This reasonable person is one that is “neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.1988) (en banc). The awareness that the officers have probable cause to arrest or realizing that oiie has become the “focal point” of an investigation is relevant to the custody analysis when such awareness would lead a reasonable person to conclude that he was not free to leave. Id. at 597 n. 16. Several other factors are appropriate to consider when applying the “reasonable person test.” First, the length of the detention is relevant for determining whether a reasonable person would believe that his freedom is restrained to the degree associated with a formal arrest. Bengivenga, 845 F.2d at 598. A stop that is temporary and brief, such as a traffic stop, would not induce the reasonable person" }, { "docid": "3625258", "title": "", "text": "of a suppression motion unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the [c]ourt is left with a firm conviction that a mistake has been made.” United States v. Donnelly, 475 F.3d 946, 951 (8th Cir. 2007) (internal quotation marks omitted). A. Pre-Arrest Statements Giboney first argues that his pre-arrest statements should be. suppressed because Detective Walk extracted those statements without advising Giboney of his Miranda rights. The Fifth Amendment requires that Miranda warnings be given when a person is interrogated by law enforcement after being taken into custody. United States v. Huether, 673 F.3d 789, 794 (8th Cir. 2012). As there is no uncertainty that Giboney was interrogated by Detective Walk at Giboney’s residence, the only issue is whether the interrogation was custodial. “The ultimate question in determining whether a person is in ‘custody’ for purposes of Miranda is ‘whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.’ ” United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). This determination is not based on the interrogator’s perspective; “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Six factors inform our analysis, although the factors are not exhaustive and need not be applied “ritualistically” in every case. Czichray, 378 F.3d at 827. The first three factors, which if present tend to show that Giboney was not in custody, are: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; [and] (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond" }, { "docid": "23512666", "title": "", "text": "statement to the police was admissible. II ANALYSIS A. Lack of Miranda Warnings Mr. Fazio first contends that his statements should have been suppressed because the police never read him his Miranda rights. The district court agreed with the magistrate’s recommendation that no Miranda warnings were necessary in this case because Mr. Fazio never was “in custody.” Miranda warnings are required to be given only to suspects who are subjected to “custodial interrogation.” Illinois v. Perkins, — U.S. -, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990). Custodial interrogation refers to “ ‘questioning initiated by law enforcement officers after a person has been taken into custody....’” Id. (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). Hence, the threshold inquiry in determining whether Miranda warnings are necessary is whether the police have placed “ ‘such a restriction on a person’s freedom as to render him “in custody.” ’ ” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)). Although in undertaking this inquiry, we consider the “ ‘totality of the circumstances,’ ” United States v. Hocking, 860 F.2d 769, 773 (7th Cir.1988) (quoting United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985)), “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520 (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). Mr. Fazio was not formally under arrest at the time he made the statements to the police. Thus, our inquiry is limited to a determination whether, “at the time of that interrogation[,] [the defendant] was subjected to a 1 “restraint on [his] freedom of movement” of the degree associated with a formal arrest.’ ” Hocking, 860 F.2d at 772 (quoting Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520 (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714)). In" }, { "docid": "16631790", "title": "", "text": "Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). ' If the government fails to meet its burden, Defendant’s statement must be suppressed. Cf. id. A. Custody The Court must first decide whether Defendant was in custody during the airport interrogation. Fifth Amendment Miranda warnings are required where a suspect is arrested or is subjected to restraint on freedom of movement associated with a formal arrest. See United States v. Sangineto-Miranda, 859 F.2d 1501,1515 (6th Cir.1988). A court making an inquiry into a suspect’s freedom of movement determines whether the suspect is “in custody” for purposes of receiving Miranda protection. See California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam). The Supreme Court has held that the test to determine if a suspect is “in custody” is an objective one: would a reasonable person in the defendant’s position have felt that he 'was under arrest or was “otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 477, 86 S.Ct. at 1629. Recent Supreme Court cases have clarified that custody is to find more than just the fact that questioning of a defendant occurred in a “coercive environment.” Seet State of Oregon v. Mathiason, 429 U.S. 492, 495,97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 (1977) (per curiam). Instead, the Supreme Cojirt has held that there must be “such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Id. \\ In this case, the Court concludes that Defendant was in custody at the airport. Although the case agents insisted that Defendant was free to leave, Defendant’s freedom was so restricted that he was in custody. Fdur agents surrounded Defendant upon his disembarkation from the plane. Their presence was so coercive that one of Defendant’s business associates became alarmed that Defendant was being attacked. Although the Court does not necessarily believe that Defendant’s associate was physically accosted, nevertheless" }, { "docid": "14224825", "title": "", "text": "the circumstances of each case must certainly influence a determination of whether a, suspect is ‘in, ■ custody for purposes of receiving Miranda protection, the ultimate inquiry is simply' whether there is' a ‘formal arrest or restraint on freedom of movement’ of the degree' associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam)). To determine whether a suspect was in custody, we ask “whether, -given the totality of the circumstances, a reasonable person would have felt at liberty to terminate' the interrogation and leave or cause the agents to leave.” United States v. Vinton, 631 F.3d 476, 481 (8th Cir.2011). We have set forth six non-exclusive indicia of custody: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom- of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during ' questioning; (5) whether the atmosphere of the questioning was police dominated; [and], (6) whether the suspect was placed under arrest at the termination of the questioning. Griffin, 922 F.2d at 1349. “The first three ... factors may be fairly characterized as mitigating factors,” and the last “three factors may be characterized as coercive factors.” Id. “These factors, however, aré not exclusive, and custody ‘cannot be resolved merely be counting up the number of factors on each side of the balance and rendering a decision accordingly.’ ” United States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir.2007) (quoting United States v. Czichray, 378 F.3d 822, 827 (8th Cir.2004)). In light of the totality of the circumstances here, Laurita was not in custody. - Beginning with Griffin’s first three factors, in thé early stages" } ]
63348
unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” It will be observed that these counts do not charge the railroad with violation of that absolute duty referred to in REDACTED What they do charge is that the railroad subsequently unlawfully used such initially properly equippéd cars in that it operated trains in interstate traffic wherein 75 per cent, of the cars had not their air brakes connected with the engine.- The case has been tried twice in the court below, and twice brought to this court for review. It involves the movement of freight cars in the great tidal yard terminal system of the Erie Railroad Company contiguous to New York Harbor. The present writ is an effort on the part of the government to have this court review and, reverse its former decision, or in the event of our adhering to
[ { "docid": "22041184", "title": "", "text": "own fault in not observing proper care in doing the. work in which he was engaged when injured. Upon a trial of the case in the Federal court there was a verdict and judgment in favor of the plaintiff for $7,500. The company moved for a new trial, and the trial court indicated its purpose to grant that motion unless the plaintiff by remittitur reduced the verdict and judgment to $5,000. The plaintiff complied with that condition, and judgment was entered against the company for the sum last mentioned. In the Circuit Court of Appeals the judgment was reversed and the case remanded for a new trial. St. Louis & S. F. R. Co. v. Delk, l58 Fed. Rep. 931, 939, 940. Thereafter this court allowed a writ of certiorari. The title of the Safety Appliance statute declared it to be. “An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes.” 27 Stat. 531, c. 196. The provisions of the act, so far as it is material to set them out, appear in the opinion of Chicago, Burlington & Quincy Railway Co. v. United States, just decided, ante, p. 559. The Circuit Court of Appeals well said, in the present case, that while the general purpose of the statute was to promote the safety of employés and travelers, its immediate purpose was to provide a particular mode to effect .that result, namely, the equipping of each car used in moving interstate traffic with couplers, coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars. The material facts out of which the suit arises and as to which there seems to be no dispute are these: The defendant company received lumber to. be carried from Giles, Arkansas, to Memphis, Tennessee. In order that the consignee might receive the lumber, the car containing it was delivered, October 2, 1906, to the" } ]
[ { "docid": "1084094", "title": "", "text": "a large class of vehicles never before considered subject to the Acts. Nothing in the language of the Acts or in their history compels a disregard of the informed judgment of that expert authority which has the responsibility of their administration and enforcement. I would sustain the view of the Interstate Commerce Commission and reverse the judgment of the Court of Appeals. 27 Stat. 531, as amended, 29 Stat. 85, 32 Stat. 943, 36 Stat. 298, 62 Stat. 909, 45 U. S. C. §§ 1-16. Section 6, 27 Stat. 532, 45 U. S. C. CO CO CO cCo o Zjx a <N CO to -<I GO O * O coo £ See, e. g., Urie v. Thompson, 337 U. S. 163; Jacobson v. New York, N. H. & H. R. Co., 206 F. 2d 153. . . it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic . . . that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” 27 Stat. 531, 45 ü. S. C. § 1. The language of § 3 reinforces this conclusion. It provides that a railroad that has complied with § 1 “may lawfully refuse to receive from connecting lines of road or shippers any car not equipped sufficiently . . . with such power or train brakes as will work and readily interchange with the brakes in use on its own cars . . . .” 27 Stat. 531, 45 U. S. C. § 3. It is concerned with the transfer of standard freight or passenger cars from one railroad to another and is not applicable to maintenance-of-way vehicles. See S. Rep. No. 1049, 52d Cong., 1st Sess. 2-3, 5; H. R. Rep." }, { "docid": "8806481", "title": "", "text": "U.S.Code, 45 U.S. C.A. § 1, which reads: “Section 1. Driving-wheel brakes and appliances for operating train-brake system. It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” As, amended by section 8 of title 45 of the U.S. Code, 45 U.S.C.A. § 8, which reads: “§ 8. Provisions of chapter extended. * * * And the provisions and requirements relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce.” The defendant contends that under the facts it is not guilty of violating the provisions of the Safety Appliance Act because the locomotive crane is not a locomotive within the meaning of the act; because section 8 of title 45 of the U.S.Code, 45 U.S.C. A. § 8, does not by the use of the term “train brakes” include “power driving wheel brakes,” so that the Safety Appliance Act does not require that a locomotive not used in “moving interstate traffic” be equipped with power driving wheel .brakes,. and the equipment in question here was not used in “moving interstate traffic” ; because the operations in question were not train movements, and therefore the provisions of the Safety Appliance Acti relating to power driving wheel brakes do not apply. I believe these are the only questions presented by this record, and, if the defendant is correct in any one of them, it should have judgment in its favor. In speaking of the Safety Appliance Act, the United States Supreme Court in New York Central Railroad" }, { "docid": "22681668", "title": "", "text": "any common carrier engaged in interstate commerce by railroad to use on its line any locomotive, engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances'; for operating the train-brake system.” ' . “Sec; 2. That on and after the first day of January, eighteen hundred and ninety-eight, it. shall be unlawful for any such-common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” “Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any»car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the' District Court of the United States having jurisdiction in the locality where such violation shall have been committed, and it shall be the duty of such district attorney to bring such suits upon duly verified information being .lodged with him of .such violation having occurred.” ... “Sec. 8. That any employé of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision .of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.” The Circuit Court of Appeals held, in substance, Sanborn, J., delivering the opinion and Lóchren, J., concurring, that the locomotive and car were both equipped as required by the act, as the one had a power driving-wheel brake and the other a coupler; that section 2 did not apply to locomotives; that at the time of the accident the dining car was not" }, { "docid": "22338961", "title": "", "text": "and after the first day of January, éighteen. hundred and ninety-eight, it should be unlawful for any common carrier engaged in moving interstate traffic by railroad to use on its line any locomotive engine not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or, after that date, to run any train in such traffic that had not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. The second section provided “that on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” Section 6, as amended April 1, 1896, c. 87, 29 Stat..85, provided that any such common carrier using a locomotive engine, running a train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act “shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the District Court of the United States having jurisdiction in the locality where such violation shall have been committed. . . . Provided, That nothing in this act contained shall apply to trains composed of four-wheel cars or to trains composed of eight-wheel standard logging cars where the height of such ear from top of rail to center of coupling does not exceed twenty-five inches, or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs.” The eighth section is in these words: ‘ ‘ That any" }, { "docid": "2622985", "title": "", "text": "court’s opinion for that of the jury. Id. Wilkins v. Eaton Corp., 790 F.2d 515 (6th Cir.1986). See also Bellamy v. Bradley, 729 F.2d 416, 418 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir.1979). The same standard is utilized by an appellate court reviewing the trial court’s disposition on the motion. Milstead v. International Brotherhood of Teamsters, Local Union No. 957, 580 F.2d 232, 235 (6th Cir.1978). Section 1 of the Federal Safety Appliance Act provides: It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. 45 U.S.C. § 1. Section 9 of the Act provides further guidelines with respect to air brakes, requiring every train to have power brakes on not less than fifty percent of the cars. 45 U.S.C. § 9. The percentage has been increased to eighty-five percent. 49 C.F.R. § 232.1. Plaintiff attempts to prevail on his claim under the Federal Safety Appliance Act because injury caused by violation of the Act is actionable without proof of negligence. “[A] failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability — a liability that cannot be escaped by proof of care or diligence.” O’Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949). If a violation of the Safety Appliance Act is a “contributory proximate cause” of plaintiff’s injury, he is entitled to recover damages. Black v." }, { "docid": "22338960", "title": "", "text": "Mr. Justice Harlan delivered the opinion of the court. Two separate actions were brought by the Government in the District Court of the United States for the District of Nebraska against the Chicago, Burlington and Quincy Railroad Company, an Iowa corporation engaged as a common carrier in interstate commerce. The object of each action was to recover certain penalties which, the United States alleged, had been incurred by the company for violations, in several specified instances, of the Safety Appliance Acts of Congress. March 2, 1893, c. 196, 27 Stat. 531; April 1, 1896, c. 87, 29 Stat. 85; March 2,1903, c. 976, 32 Stat. 943.. By consent of the parties and by order of court the two actions were consolidated and tried together. At the trial the court directed a verdict of guilty as to each cause of action, and a judgment for $300 was rendered for the Government in one case and for $100 in the other. By the original act of March 2, 1893 (27 Stat. 531), it was provided that from and after the first day of January, éighteen. hundred and ninety-eight, it should be unlawful for any common carrier engaged in moving interstate traffic by railroad to use on its line any locomotive engine not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or, after that date, to run any train in such traffic that had not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. The second section provided “that on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” Section 6, as amended" }, { "docid": "22681667", "title": "", "text": "Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. This case was brought here on certiorari, and also on writ of error, and will be determined on the merits, without discussing the question of jurisdiction as between the one writ and the other. Pullman’s Car Company v. Transportation Company, 171. U. S. 138, 145. The plaintiff claimed that he was relieved of assumption of risk under common law rules by the act of Congress of March 2, 1893, 27 Stat. 531, c. 196, entitled “An act to promote the safety of employés and-travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes.” The issues involved questions deemed of such general importance that the Government was permitted to file brief and be heard at the bar. The act of 1893 provided: “That from and after the first day of January, eighteen hundred and ninety-eight-, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive, engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances'; for operating the train-brake system.” ' . “Sec; 2. That on and after the first day of January, eighteen hundred and ninety-eight, it. shall be unlawful for any such-common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” “Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any»car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in" }, { "docid": "2966916", "title": "", "text": "Tn the latter case Justice Holmes distinguished between “a mere expectation that the act done would be followed by other work of a different character * * * and doing the act for the purpose of furthering the later work.” In the case at bar there was evidence that the removal of the hand car from track 2 was “for the purpose of furthering the later woi'k” of interstate commei’ce and that one of the ears at least was designated for such commerce and was placed on track 2 thereafter and routed to Readeville. The car had been designated by the foreman for track 2, there to be loaded and thence sent forward. We think that the evidence that Hoffman was engaged in interstate commerce was sxifficient to support the verdict in his favor. The plaintiff contends that the gasoline tractor was a locomotive and that the lack of adequate brakes, automatic couplers, and equipment upon it and the hand ear, and their negligent operation, occasioned his injuries. The cause of action asserted was based upon the failure to meet the requirement of the Safety Appliance Act (45 USCA § 1 et seq.) and the Boiler Inspection Act (45 USCA §• 22 et seq.) and upon negligence in running the engine at too high a rate of speed. The defendant claims that the gasoline tractor and the hand car, whatever may have been their defects, came within none of the requirements of either the Safety Appliance Act or the Boiler Inspection Act. The Safety Appliance Act provides that: “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of ears in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” 45 U." }, { "docid": "17198133", "title": "", "text": "acted as investigator for the Interstate Commerce Commission in relation to power brakes and in such capacity had conducted numerous accident investigations; that he had observed tests of various equipment to determine the braking equipment involved in the accidents which he had investigated; and that by these tests it could be determined whether the equipment was working properly. He testified that the train air line from the locomotive to the caboose could be charged without each of the individual car brake systems also being charged; that various conditions might exist which would prevent the brake system on the individual cars from charging; that if the cutout cocks were closed, or the AB valve failed to work properly, or if the auxiliary resevoir were broken, the brakes on the individual car involved would not be charged and the brakes on that car would not operate. Section 9 of the Safety Appliance Act, as amended, provides as follows: “§ 9. Power or train brakes; operation by engineer; rules for installation, inspection, maintenance and repair “Whenever, as provided in sections 1-7 of this title, any train is operated with power or train brakes not less than 50 per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated together with said 50 per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said sections, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of cars in any train required to be operated with power or train brakes which must have their brakes used and operated as aforesaid. One hundred and twenty days after the date of enactment of the Power or Train Brakes Safety Appliance Act of 1958, the Interstate Commerce Commission shall adopt and put into effect the rules, standards, and instructions of the Association of American Railroads, adopted in 1925 and revised in 1933, 1934, 1941, and 1953, with such revisions" }, { "docid": "2966917", "title": "", "text": "upon the failure to meet the requirement of the Safety Appliance Act (45 USCA § 1 et seq.) and the Boiler Inspection Act (45 USCA §• 22 et seq.) and upon negligence in running the engine at too high a rate of speed. The defendant claims that the gasoline tractor and the hand car, whatever may have been their defects, came within none of the requirements of either the Safety Appliance Act or the Boiler Inspection Act. The Safety Appliance Act provides that: “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of ears in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” 45 U. S. C. § 1 (45 USCA § 1), Act March 2,1893, 27 Stat. 531. The act also provides that: “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” 45 U. S. C. § 2 (45 USCA § 2), Act March 2,1893, 27 Stat. 531. Section 4 of the same act (45 USCA § 4) provides that no car shall be used in interstate commerce, unless otherwise ordered by the Interstate Commerce Commission, that is not provided with seeui'e “grab irons or hand holds.” In 1903, this act was amended so as to extend its application and to provide that the foregoing “requirements relating to train brakes, automatic couplers, grab irons * * * shall be held to apply to all trains, locomotives, tenders, ears, and similar" }, { "docid": "22995940", "title": "", "text": "by railroad to use on its line any locomotive engine in moving interstate traffic not ¿quipped with . . . appliances for oper ating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” The statute was amended August 14, 1957, to increase the penalty to $250 (71 Stat. 352, 45 U. S. C. (Supp. V) § 6). Respondent since 1951 had used air brakes on the cars in these movements after inspectors of the Interstate Commerce Commission had advised that it was necessary to do so. But it discontinued the practice in 1956; justifying the discontinuance on the ground that switching movements were involved, that the use of air brakes caused a delay of about 40 minutes in each movement, and that the increased annual cost for the usé of air brakes was $30,000. The title of the original Act described it as “An Act to promote the safety of employees arid travelers upon railroads . . .” etc. 27 Stat. 531. See H. R. Rep. No. 1678, 52d Cong., 1st Sess., p. 3, where it is noted that for the years 1889 and 1890 “38 per cent of the total number of deaths and 46 per cent of the total number of injuries sustained by railway employés resulted while coupling cars or setting brakes.” On page 7 of a report of a subcommittee submitted as a part of S. Rep. No. 1930, 57th Cong., 1st Sess., the following statement of a witness appearing before the subcommittee was made: ; “If only a portion of the equipped cars are operated, trainmen are exposed to great danger ■ arising from the breakage of an air hose, or a coupling between the cars so braked, which causes an instantane ous and extremely powerful application of the power brakes, which causes the front cars in the train to quickly" }, { "docid": "22132760", "title": "", "text": "rule of the defendant. No cars were switched out of or into these trains while they were on the way from one yard to the other. The Circuit Court of Appeals rested its judgment upon the conclusions (a) that the three yards are not separate or distinct, .but with the connecting tracks constitute a single and extensive yard, (b) that the movements of the transfer trains from Jersey City and Weehawken to Bergen and vice versa were mere switching operations and therefore not within the air-brake provision in' the statute, and (c) that it was permissible under the statute to haul the cars with defective equipment in the circumstances disclosed. We cannot assent to the view that the yards at Jersey City, Weehawken and Bergen are but a single yard. They doubtless are important accessories to the defendant’s eastern terminal, but that does not make them one yard. They he from two to three and one-half miles apart, are not so linked together that cars may be moved from one to another with the freedom which is usual and essential in intra-yard movements, and are in actual practice treated as separate yards. The original Safety Appliance Act is entitled “An Act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. The first section makes it unlawful, among other things, for a railroad company engaged in interstate commerce “to run any train” in sueh commerce without having a sufficient number of the cars so equipped with train brakes — commonly spoken of as air brakes — that the engineer on the locomotive can control the speed of the train “without requiring brakemen to use the common hand brake for that purpose.” The second section pro Mbits such a carrier from hauling or using on its line in moving interstate traffic any car not equipped with couplers wMch can be coupled and uncoupled automatically “without the necessity of men going between the ends" }, { "docid": "2622984", "title": "", "text": "234, 88 L.Ed.2d 239 (1943). When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict the court should determine the proceeding by non-suit, directed verdict ... or by judgment notwithstanding the verdict. By such direction of the trial the result is saved from the mischance of speculation over legally unfounded claims. Id. at 479-80, 64 S.Ct. at 234. See also Morelock v. NCR Corp., 586 F.2d 1096, 1104 & n. 10 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979); Kerwood v. Mortgage Bankers Ass’n of America, Inc., 494 F.Supp. 1298 (D.D.C.1980). In determining whether the evidence is sufficient to be sent to the jury or to support a jury verdict, the evidence, and reasonable inferences therefrom, is to be viewed in the light most favorable to the non-moving party and the court must not consider the credibility of witnesses nor weigh the evidence. Morelock, 586 F.2d at 1104. To do otherwise is to substitute the court’s opinion for that of the jury. Id. Wilkins v. Eaton Corp., 790 F.2d 515 (6th Cir.1986). See also Bellamy v. Bradley, 729 F.2d 416, 418 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir.1979). The same standard is utilized by an appellate court reviewing the trial court’s disposition on the motion. Milstead v. International Brotherhood of Teamsters, Local Union No. 957, 580 F.2d 232, 235 (6th Cir.1978). Section 1 of the Federal Safety Appliance Act provides: It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to" }, { "docid": "22995939", "title": "", "text": "used.” Yet it is not for courts to determine in particular cases whether this, safety measure is or is not needed. Congress determined the policy that governs us in applying the law. Traditionally, movements of assembled cars for substantial distances involved the hazards of, crossing public highways and the tracks of other lines with attendant risks to the • public. More important, they involved risks to those who ride the trains, párticu-larly the men who operate them. History showed that hundreds of workers had been injured or killed by the stopping of imbraked cars, by the operation of hand brakes, and by. the use of hand couplers. This history, well known to Congress, was the primary purpose behind the legislation. The Act, therefore, should be liberally construed as a safety measure. Movements which, though miniature when compared with, main-line hauls, have the characteristics of the customary “train” movement and its attendant risks, are to be included. Reversed. Section. 1 provides, in relevant part: “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not ¿quipped with . . . appliances for oper ating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” The statute was amended August 14, 1957, to increase the penalty to $250 (71 Stat. 352, 45 U. S. C. (Supp. V) § 6). Respondent since 1951 had used air brakes on the cars in these movements after inspectors of the Interstate Commerce Commission had advised that it was necessary to do so. But it discontinued the practice in 1956; justifying the discontinuance on the ground that switching movements were involved, that the use of air brakes caused a delay of about 40 minutes in each movement, and that the increased annual cost for the usé of air" }, { "docid": "22132761", "title": "", "text": "which is usual and essential in intra-yard movements, and are in actual practice treated as separate yards. The original Safety Appliance Act is entitled “An Act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. The first section makes it unlawful, among other things, for a railroad company engaged in interstate commerce “to run any train” in sueh commerce without having a sufficient number of the cars so equipped with train brakes — commonly spoken of as air brakes — that the engineer on the locomotive can control the speed of the train “without requiring brakemen to use the common hand brake for that purpose.” The second section pro Mbits such a carrier from hauling or using on its line in moving interstate traffic any car not equipped with couplers wMch can be coupled and uncoupled automatically “without the necessity of men going between the ends of the cars;” and the fourth section forbids the use in interstate commerce of any car not provided with secure grab irons or handholds in the ends and sides of the car “for greater security to men in coupling and uncoupling cars.” The sixth section imposes for every violation of the act a penalty of $100, to be recovered.by suit. The act of 1903, by its first section, provides that the requirements of the original act respecting train brakes, automatic couplers and grab irons shall be held to apply to “all trains” and cars “used on any railroad engaged in interstate commerce,” unless faffing within a minor exception without bearing here. By its second section this act requires that not less than 50 per cent, of the cars in a train shall have their train brakes used and operated by the engineer on the locomotive, confers upon the Interstate Commerce Commission authority to increase tMs minimum percentage to the end that the objects intended may be more fully accomplished, and makes \" the penal provision" }, { "docid": "8806482", "title": "", "text": "The defendant contends that under the facts it is not guilty of violating the provisions of the Safety Appliance Act because the locomotive crane is not a locomotive within the meaning of the act; because section 8 of title 45 of the U.S.Code, 45 U.S.C. A. § 8, does not by the use of the term “train brakes” include “power driving wheel brakes,” so that the Safety Appliance Act does not require that a locomotive not used in “moving interstate traffic” be equipped with power driving wheel .brakes,. and the equipment in question here was not used in “moving interstate traffic” ; because the operations in question were not train movements, and therefore the provisions of the Safety Appliance Acti relating to power driving wheel brakes do not apply. I believe these are the only questions presented by this record, and, if the defendant is correct in any one of them, it should have judgment in its favor. In speaking of the Safety Appliance Act, the United States Supreme Court in New York Central Railroad Company v. United States, 265 U.S. 41, 44 S.Ct. 436, 437, 68 L.Ed. 892, speaking through Justice Butler, said: “The acts of Congress and orders of the Commission above referred to should be liberally construed, to relieve trainmen of the labor and danger involved in the use of,hand brakes to control the speed of trains, and to promote the safety of trains and of persons and property thereon.” Jarvis v. Hitch, 161 Ind. 217, 67 N.E. 1057, 1060, and Lake Shore & M. S. R. Co. v. Benson, 85 Ohio St. 215, 97 N.E. 417, 419, 41 L.R.A.,N.S., 49, Ann.Cas.1913A, 945, cited by both sides, are not in point, but the cases do furnish a definition of “locomotive” which I think is correct. In Jarvis v. Hitch, supra, the Supreme Court of Indiana, in determining whether a pile driver mounted upon a flat car, which was self-propelling, was a locomotive under the statutes of Indiana, said: “By the term ‘locomotive engine’ used in said clause, the Legislature only intended an engine constructed and used for" }, { "docid": "22972957", "title": "", "text": "Mr. Justice Clarke délivered the opinion of the court. The Circuit Court of Appeals for the Sixth Circuit certifies to this court for answer the question, whether the Safety Appliance Act, as amended, requires that 85 per cent, of the train brakes shall be coupled so as to be under engine control when making the transfer of twenty-six cars, in a movement which is described in the court’s certificate. The pertinent part of the original Act approved March 2, 1893, c. 196, 27 Stat. 531, reads: “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system or, to run. any train in such traffic . . . that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” And the relevant part of the amendment, approved March 2, 1903, c. 976, 32 Stat. 943, is: “And the provisions' and requirements hereof and of sqld Acts relating to. train brakes . . .• shall be held to .Apply to all trains . . . used on any railroad engaged in / interstate commerce.” Section 2 of the amendment provides that when any train is operated with .power or train brakes not less than 50 per cent, of the cars in such train shall have their brakes used and operated by the engineer of the loco-. motive, etc. Authority was given' the Interstate Commerce Commission to increase the percentage of cars in any train which must have their brakes so used and operated and in 1910 the Commission increased it to 85 per \" cent. The essential facts, somewhat condensed, from -the statement of the Circuit Court of Appeals are: The Bridge Company, a common carrier engaged in interstate commerce, operatés a large terminal yard at Louisville, Kentucky,' which constitutes the" }, { "docid": "8806480", "title": "", "text": "at Meldavis to the construction work a locomotive crane had attached to it a car used for carrying fuel and water needed in the operation of the crane and two flat cars loaded with heavy boulders, which it moved from the switch at Meldavis to the construction work. The crane would then unload the heavy boulders from the flat cars at the point where they were needed in the construction work, return the flat cars to the switch at Meldavis, pick up other cars loaded with boulders, and move them to the construction work. The locomotive crane consisted of the arm of the crane, cables, and pulleys and a cab which contained the steam engine and appliances for controlling the equipment, all mounted on a short flat car at the ends of which were couplers. It was propelled by power furnished by the steam engine, and was not equipped with a power driving wheel brake. The defendant is charged with violating section 1 of the Safety Appliance Act; section 1 of title 45 of the U.S.Code, 45 U.S. C.A. § 1, which reads: “Section 1. Driving-wheel brakes and appliances for operating train-brake system. It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” As, amended by section 8 of title 45 of the U.S. Code, 45 U.S.C.A. § 8, which reads: “§ 8. Provisions of chapter extended. * * * And the provisions and requirements relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce.”" }, { "docid": "1084095", "title": "", "text": "train-brake system, or to run any train in such traffic . . . that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.” 27 Stat. 531, 45 ü. S. C. § 1. The language of § 3 reinforces this conclusion. It provides that a railroad that has complied with § 1 “may lawfully refuse to receive from connecting lines of road or shippers any car not equipped sufficiently . . . with such power or train brakes as will work and readily interchange with the brakes in use on its own cars . . . .” 27 Stat. 531, 45 U. S. C. § 3. It is concerned with the transfer of standard freight or passenger cars from one railroad to another and is not applicable to maintenance-of-way vehicles. See S. Rep. No. 1049, 52d Cong., 1st Sess. 2-3, 5; H. R. Rep. No. 1678, 52d Cong., 1st Sess. 1, 3; 1 Sharfman, The Interstate Commerce Commission (1931), 246, n. 4. Since passenger cars, by 1893, had generally been equipped with the required appliances — train brakes and automatic couplers — they did not present the same hazards to trainmen. The Commission recommended enactment of legislation in 1889 after completing a general investigation of railroad safety conditions. It continued to press for legislation until the enactment of the first Safety Appliance Act in 1893. See Interstate Commerce Commission Activities, 1887-1937 (1937), 118-120; Third Ann. Rep., I. C. C., for 1889, 44r-45, 84-101; Fifth Ann. Rep., I. C. C., for 1891, 337-340; Sixth Ann. Rep., I. C. C., for 1892, 69-70. The 1893 Act was entitled “An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes.” The only provision which might be thought to be unrelated to power brakes" }, { "docid": "8806491", "title": "", "text": "on any railroad which is a highway of interstate commerce.” The Safety Appliance Act does not disclose that it was the intention of Congress to confine the term “train brakes” to any narrow or technical meaning. In section 1 of title 45 U.S.Code, 45 U.S.C.A. § 1, the phrase “train-brake system” appears and also the phrase “power or train brakes,” and in section 9, tit. 45 U.S.Code, 45 U.S.C.A. § 9', the phrase “power-braked cars” appears and also the phrase “po.wer or train brakes.” In section 8 “train brakes” appears. I believe that -all of these phrases refer to the same kind of brakes, that is, power brakes, and that the phrase “train brakes” appearing in section 8 includes power driving wheel brakes. The locomotive crane is a “locomotive engine” required by the act to be equipped with power driving wheel brakes when being used as it was on this occasion. This conclusion is supported by the case of Hoffman v. New York, N. H. & H. R. Co., supra, which was a suit to recover damages for personal injuries received through the operation by the defendant of a gasoline tractor in moving a hand car from one point in a railroad yard to another. This movement was certainly not one in which the tractor was used in moving interstate traffic, and, moreover, was clearly a switching operation. The court said: “The defendant further argues that sections 6 of the act of 1893 and 2 of the act of 1903 (45 U. S.C.A. §§ 6, and 9) indicate that the provisions requiring power brakes and automatic couplers are limited to train movements and do not embrace locomotives and cars in yards employed in switching operations. But this is clearly erroneous. The exceptions in section 6 are expressly limited to. ‘logging’ trains. The provisions of section 9 relating to trains do not, in our opinion, affect the requirement in the act of 1903, amending the Safety Appliance Act (45 U. S.C.A. § 8), of brakes, couplers, and grab irons on ‘all trains, locomotives, tenders, cars, and similar vehicles used on any" } ]
452856
288 F.3d 1172, 1179 (9th Cir.2002), the Court disagrees with the premise of Appellants’ argument that a quiet title action in Superior Court would require a modification of the Sale Order. As the Bankruptcy Court noted, the relief Appellants seek is a modification of (1) the purchase agreement, which has no legal effect as an attachment to the Sale Order; and (2) the recorded title. (ER Ex. G at 3). Even the case on which Appellants rely explicitly held that state courts retain concurrent jurisdiction under 11 U.S.C. § 1334(b) to take any action other than modifying the Sale Order and to take any action involving property after it is no longer property of the bankruptcy estate. REDACTED The Court therefore concludes that the Bankruptcy Court did not apply an incorrect rule of law when determining that state courts had jurisdiction to hear a quiet title action pertaining to property purchased at the bankruptcy sale. 2. Other Obstacles Appellants further argue that the Bankruptcy Court abused its discretion in con- ■ eluding that a quiet title action in Superior Court constituted an adequate alternative to reopening the bankruptcy proceeding. (Opening Brief at 16-17). As a threshold matter, Appellants’ arguments regarding the adequacy of relief through a quiet title action appear to be waived. These arguments were neither raised in the Motion nor presented at the hearing. (See generally ER Exs. B, G). Furthermore, the Court questions
[ { "docid": "4590948", "title": "", "text": "to cases under title 11;” and Section 1334(e) confers exclusive jurisdiction over all the property of the debtor as of the commencement of the case, and of property of the estate. The Appellants argue that under § 1334(e) the bankruptcy court has exclusive jurisdiction to interpret the Sale Order because it involves property of the estate and the bankruptcy court had the exclusive jurisdiction to enter the order. The Appellants are correct that the bankruptcy court had the exclusive jurisdiction to enter the Sale Order, and if the Appellants had timely sought to appeal or modify the Sale Order, that action would also have been within the exclusive jurisdiction of the bankruptcy court under § 1334(e). However, the Appellants are mistaken in their argument that the bankruptcy court has exclusive jurisdiction to interpret the Sale Order. At this juncture, the Sale Order is final, and the property sold to the Broekemeiers/Liberty is no longer property of the estate. Moreover, despite the Appellants’ framing of the issue in terms of whether the Nebraska Supreme Court had the jurisdiction to “modify” the Sale Order, there has been no modification of that order. The Nebraska Supreme Court simply interpreted the scope of the Sale Order as it applies to implied covenants running with the land. The fact that the Appellants disagree with the court’s interpretation does not, in and of itself, transform the interpretation into a modification of the Sale Order. In short, § 1334(e) does not limit jurisdiction to interpret the Sale Order exclusively to the bankruptcy court. Perhaps the strongest basis for the bankruptcy court’s jurisdiction over this dispute is its implicit authority and jurisdiction to interpret or enforce its own prior orders, but that jurisdiction is not exclusive, even with regard to the interpretation of orders approving sales of estate property. Matters not committed to the exclusive jurisdiction of the federal courts are subject to the concurrent jurisdiction of state courts. Therefore, the Nebraska State courts had jurisdiction to interpret the Sale Order, and the bankruptcy court was therefore correct in its conclusion that alternate relief was available to the" } ]
[ { "docid": "18805136", "title": "", "text": "again, neither the order nor the findings purport to determine who actually had title to the NW 20 property. At that time, because of the prior sale to the Cratsenbergs, the trustee no longer had possession of or any interest in the property, and the bankruptcy court had no power to make orders in respect to it. The sole legal support for the bankruptcy court’s conclusion that the claims of all of the NW 20 purchasers were to be allowed as general unsecured claims is the judgment of the district court in Amman v. Cissna, No. 7452 (W.D.Wash. Feb. 2,1978), an unreported securities fraud class action in which many but not all of the NW 20 purchasers were certified as members of the plaintiff class and in which others specifically opted out. In Amman, the district court dismissed with prejudice the plaintiffs’ pendent claim seeking a decree vesting ownership in the NW 20 property in them. The bankruptcy court concluded that all claimants who were members of the Amman class were “bound by the findings and orders ... entered in said case and are barred from asserting any claim of title or ownership in or to the [NW 20] property or to the proceeds of the sale of such property.” On March 14,1980, the representatives of the NW 20 owners’ conference filed a complaint in Washington Superior Court against Bankers and the trustee to quiet title to the NW 20 property, for ejectment, and for damages. The Cratsenbergs were added as defendants by subsequent amendment. On December 9, 1980, the trustee was dismissed from the action. Prior to his dismissal from the state court action, the trustee filed a complaint in bankruptcy court for an injunction to enjoin permanently the NW 20 owners’ conference from further proceedings arising out of claims to the NW 20 property in any court other than the bankruptcy court. On October 6, 1980, the Cratsenbergs moved to intervene in bankruptcy court to join the trustee’s motion to enjoin the owners’ conference from seeking to quiet title to the NW 20 property in any court. The" }, { "docid": "4590949", "title": "", "text": "the jurisdiction to “modify” the Sale Order, there has been no modification of that order. The Nebraska Supreme Court simply interpreted the scope of the Sale Order as it applies to implied covenants running with the land. The fact that the Appellants disagree with the court’s interpretation does not, in and of itself, transform the interpretation into a modification of the Sale Order. In short, § 1334(e) does not limit jurisdiction to interpret the Sale Order exclusively to the bankruptcy court. Perhaps the strongest basis for the bankruptcy court’s jurisdiction over this dispute is its implicit authority and jurisdiction to interpret or enforce its own prior orders, but that jurisdiction is not exclusive, even with regard to the interpretation of orders approving sales of estate property. Matters not committed to the exclusive jurisdiction of the federal courts are subject to the concurrent jurisdiction of state courts. Therefore, the Nebraska State courts had jurisdiction to interpret the Sale Order, and the bankruptcy court was therefore correct in its conclusion that alternate relief was available to the Appellants and within its discretion to deny the Appellants’ motion to reopen the Debtor’s bankruptcy case. B. Res judicata warranted a denial of the Appellants’ motion to reopen the case. The bankruptcy court’s decision can also be affirmed on the basis that reopening the case would have been futile and a waste of judicial resources, because the doctrine of res judicata precludes review of the Nebraska Supreme Court judgment, which is exactly the relief the Appellants sought. The doctrine of res judicata prohibits the re-litigation of claims where: 1) a court of competent jurisdiction rendered the prior judgment, 2) the prior judgment was final and on the merits, 3) both suits involve the same parties (or those in privity with them), and 4) both suits are based upon the same claims or causes of action. The party against whom res judicata is asserted must also have had a full and fair opportunity to litigate the matter in the proceeding that is to be given preclusive effect. The preclusive effect of res judicata includes not only" }, { "docid": "5967644", "title": "", "text": "refused to follow it until the Ninth Circuit affirms it. See Appellant’s Excerpts of Record Ex. 25 at 7:21-8:12. On November 9, 1995, the bankruptcy court granted Barry’s motion for a stay pending appeal. B. The Appeal Barry appeals the bankruptcy court’s ruling. He argues that (1) the sale violated the automatic stay and is void; (2) BA Properties failed to follow applicable notification procedures; (3) the bankruptcy court should have voided the sale on equitable grounds; and (4) BA Properties is not entitled to relief from the automatic stay. The Court notes that it is not reviewing the denial of a motion for relief from the automatic stay. While BA Properties styled its motion before the bankruptcy court as a motion for relief from the automatic stay, it actually argued a motion for an order that the automatic stay did not attach to the Property. A motion for relief from a stay presupposes that a stay has attached; the creditor argues that the bankruptcy court should lift the stay because she lacks adequate protection or because the debtor has no equity in the property and does not need it for an effective reorganization. BA Properties made none of these arguments. Instead, it contended that the foreclosure sale had divested Barry of his interest in the Property, so the automatic stay did not attach to it when the bankruptcy court reopened his Chapter 13 ease. II.JURISDICTION This matter is an appeal from a final judgment of the United States Bankruptcy Court for the Central District of California. Thus, this Court has jurisdiction under section 158(a) of Title 28. See 28 U.S.C. § 158(a) (“The district courts of the United States shall have jurisdiction to hear appeals from final judgments [and] orders ... of bankruptcy judges_”). It sits as an appellate court. III.STANDARD OF REVIEW This Court reviews a bankruptcy court’s conclusions of law de novo. Manufacturers Hanover v. Dewalt (In re Dewalt), 961 F.2d 848, 850 (9th Cir.1992). It reviews findings of fact under the clearly erroneous standard. Id. The parties agree that this appeal poses pure questions of law." }, { "docid": "21123608", "title": "", "text": "to submit bids by May 4, 1994. The highest bid received was from James Witherup and Kathy Weaver (“the Buyers”) in the amount of $44,000. By letter of May 9, 1994, PennWest advised Wagner that it had accepted a bid for $44,000 and that he had a statutory right of first refusal under the same terms and conditions, which included a cash sale to be closed within fifteen days of receipt of the offer. Wagner exercised his right of first refusal and made a timely offer to purchase the property for $44,000. The closing date was fixed for June 29, 1994. However, Wagner did not tender the sales price on that day. Upon inquiry, Jeffrey Trotten, Wagner’s agent, told PennWest’s representative that Wagner had withdrawn his application for financing the day before. Instead, Wagner followed a different course. On June 29, the day fixed for the closing, Wagner filed a quiet title action in Venango County which prevented PennWest from selling the property to the Buyers. Then, on July 12, 1994 Wagner filed a petition under Chapter 12 of the Bankruptcy Code. Wagner also filed a determination of property rights in the bankruptcy court, stating a claim almost identical to that in his quiet title action. His quiet title action was removed to the bankruptcy court as an adversary proceeding. On September 14, 1994, a hearing was held in the bankruptcy court in which three matters were raised: the removed quiet title action, the action for determination of property rights, and PennWest’s request for relief from the automatic stay. The bankruptcy court found that Wagner had been adequately informed by PennWest of his rights of first refusal and that Wagner had failed to exercise those rights in a timely manner. Bankruptcy Ct.Op. (Nov. 23, 1994). Since Wagner’s right of first refusal had expired, the bankruptcy court concluded that Wagner’s property was no longer part of the bankruptcy estate. Id. Wagner appealed this order to the district court, arguing that his right of first refusal had not expired because PennWest failed to follow required statutory procedures. Specifically, Wagner argued that PennWest" }, { "docid": "18805155", "title": "", "text": "Evarts v. Eloy Gin Corp., 204 F.2d 712, 717 (9th Cir.) (creditor of bankrupt is “subject to the Bankruptcy Court’s jurisdiction in his dealings with the debtors,” but not “in his dealings with third parties”), cert. denied, 346 U.S. 876, 74 S.Ct. 129, 98 L.Ed. 384 (1953). It is but a natural application of the jurisdictional rule set forth in Richmond and Kirchoff to the facts before us to state that, absent consent, the bankruptcy court would itself have no jurisdiction over the title dispute between the Cratsenbergs and the NW 20 purchasers simply because its outcome might affect the payment of claims from the Federal Way estate. That being the case, we fail to see how an injunction prohibiting the litigation of the title dispute in state court would in any way be “necessary” in aid of the court’s lawful jurisdiction. The short answer to the Cratsenbergs’ contention that the injunction must be granted to permit the trustee to finish expeditiously the administration of the estate is that the trustee, having declined to settle the title issue before transferring the property to Cratsenbergs, must now await the conclusion of the state court quiet title action. Haste in sale (or unexplained delay in quieting title in the bankruptcy proceed ing) should not deprive the NW 20 purchasers of their day in court. 2. Necessity in Order to Avoid Trustee Liability. The argument that an injunction should issue to prevent the possible liability of the trustee to the Cratsenbergs because the trustee’s sale is void or to the NW 20 purchasers based on an accounting for profits earned while the property was in the trustee’s possession is without merit. First, no case authority is cited to support the issuance of an injunction against a state court action simply to protect the trustee from personal liability. Moreover, regardless of whether the bankruptcy court could enjoin a state court action brought directly against the trustee, the state court action in its present posture involves neither the debtor nor the trustee nor the bankruptcy court. The possible future effects of that litigation on the" }, { "docid": "13928049", "title": "", "text": "of Tennessee approved a plan to sell the property in Catoosa County. After the order granting the motion to approve the sale was final, Mr. Cook filed an objection to the sale claiming legal title to the property. Judge Ralph Kelley, Chief Bankruptcy Judge of the Eastern District of Tennessee, refused to hear the objection and ordered that “any dispute regarding the title to the property should be settled in the courts of the State of Georgia.” In re James Curtis Maness and Lura Alice Maness, 88 B.R. 177 (1988, Bkrtcy.E.D.Tenn). Judge Kelley then removed any stays on the property so that the plaintiff could proceed in state court. Id. at 178. Plaintiff then filed this action in Fulton County Superior Court to quiet title to the property. Defendants removed the case to this court claiming jurisdiction based on 28 U.S.C. § 1334(b). This court agrees with Judge Kelly that this ease is best settled in the courts of the state of Georgia and we according REMAND the case to the State Court of Fulton County. DISCUSSION Title 28 U.S.C. § 1334 provides for jurisdiction in the federal courts for any “civil proceedings arising under title 11 (the Bankruptcy code), or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b). Therefore, Section 1334 provides three bases for jurisdiction: 1) cases “arising under” title 11, 2) cases “arising in” cases under title 11, and 3) cases “related to” cases under title 11. Disputes that are arising under title 11 or arising in cases under title 11 are called “core proceedings”. Core proceedings are those proceedings which would not exist in law in the absence of the Bankruptcy code. Thomasson v. Amsouth Bank, N.A., 59 B.R. 997 (N.D.Ala.1986). This case was removed pursuant to the third type of § 1334 jurisdiction, for cases “related to” title 11 cases but not arising under the Bankruptcy Code or in a bankruptcy case. These are referred to as “non-core proceedings”. The usual test for “related to” jurisdiction is “whether the outcome could conceivably have any effect on the estate being administered" }, { "docid": "18135978", "title": "", "text": "exception to the automatic stay provision, we affirm its grant of relief to WSC for the reasons set forth below. II. Discussion A. Jurisdiction Federal courts have jurisdiction over matters in which a federal question is presented on the face of the well-pleaded complaint. Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112, 1118 (9th Cir. 2002). ‘Where the plaintiff seeks coercive relief under state law, as in a quiet title action, a well pleaded complaint presents a federal question if the plaintiffs right to such relief ‘necessarily turn[s] on some construction of federal law.’ ” Yokeno v. Mafnas, 973 F.2d 803, 807 (9th Cir.1992) (quoting Franchise Tax Bd. v. Const Laborers Vacation Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). In the case before us, it would be impossible to quiet title in favor of either party without addressing the federal Bankruptcy Code issue discussed below. Furthermore, the Bankruptcy Code issue is not raised as a defense or merely in anticipation of avoiding a defense. See Yokeno, 973 F.2d at 807. Rather, the automatic stay provision, which was raised by WSC in its complaint, is the only basis on which WSC’s claim to title could be superior to that of Lusardi. Therefore, there is federal jurisdiction. B. Stay Exception Section 362(a) of the Bankruptcy Code provides that the filing of a bankruptcy petition creates an automatic “stay, applicable to all entities, of,” inter alia, “any act to create, perfect, or enforce any lien against property of the estate.” 11 U.S.C. § 362(a). Transfers in violation of the automatic stay are void. Schwartz v. United States (In re Schwartz), 954 F.2d 569, 575 (9th Cir.1992). When WSC filed its bankruptcy petition, the automatic stay took effect, with the result that the Riverside County tax sale, conducted to enforce the tax lien on the property, was void. Unless an exception to section 362(a) applies, therefore, Lusardi’s purchase of the property at the tax sale was without effect. Eighteen exceptions to section 362(a) are listed in section 362(b). 11 U.S.C. § 362(b) (listing circumstances in which “the" }, { "docid": "4590946", "title": "", "text": "case was closed to administer assets, to accord relief to the debtor, or for other cause.” The decision to grant or deny a request under § 350(b) to reopen a bankruptcy case is committed to the broad discretion of the bankruptcy court. A motion to reopen a bankruptcy case should be granted “only where a compelling reason for reopening the case is demonstrated.” And “[t]he longer the time between the closing of the estate and the motion to reopen the more compelling the reason for reopening the estate should be.” The availability of relief in an alternative forum is a permissible factor on which to base a decision not to reopen a closed bankruptcy case. “[A] case should not be reopened to relieve a party of its own neglect or mistake.” The bankruptcy court denied the Appellants’ motion to reopen the Debtor’s bankruptcy case based on a determination that the dispute the Appellants sought to adjudicate if the case was reopened — i.e., whether the Sale Order eliminated the covenants purportedly requiring the operation of a golf course on the property — had already been decided by the Nebraska Supreme Court, which the bankruptcy court determined had concurrent jurisdiction to interpret the Sale Order. Citing In re Apex Oil Co., Inc., for the above-stated proposition that the availability of relief in an alternative forum is a permissible factor on which to base a decision not to reopen a bankruptcy case, the bankruptcy court declined to give the Appellants a “second bite at the apple” in the bankruptcy court after they had chosen an alternative forum for their dispute. We find no error in the bankruptcy court’s findings or conclusions. A. The Nebraska Supreme Court had concurrent jurisdiction to interpret the Sale Order. Federal courts’ jurisdiction over bankruptcy cases is governed by 28 U.S.C. § 1334. Section 1334(a) provides that the district court (and by delegation, the bankruptcy court) has original and exclusive jurisdiction of “all cases under title 11;” Section 1334(b) confers original but not exclusive jurisdiction on all civil proceedings “arising under title 11, or arising in or related" }, { "docid": "18805140", "title": "", "text": "seek to ground support for the permanent injunction in the exception provided to a federal court seeking “to protect or effectuate its judgments.” The plaintiffs point to two independent sets of court orders whose effectu-ation allegedly requires an injunction against the state quiet title action: (1) the orders authorizing and confirming sale of the NW 20 property; and (2) the order allowing defendants’ claims as general unsecured claims against the Federal Way estate. We conclude that the injunction granted here is not necessary to effectuate or to protect either of these two sets of orders. 1. Orders Authorizing Sale. The argument that the injunction is necessary to support the bankruptcy court’s orders allowing and confirming sale to Cratsenbergs fails because the court never attempted to quiet title to the NW 20 property against the appellants and in the trustee prior to the sale. The record amply indicates that the orders issued by the bankruptcy court authorizing and confirming the sale of the NW 20 property not only were not intended to determine the actual ownership of the property but also explicitly reserved that determination for other proceedings. The bankruptcy court did, of course, judicially transfer all liens and encumbrances on the property to the sale proceeds. The bankruptcy court made no attempt, however, to quiet title to the property in the trustee prior to the sale, as it had in the other two sales, precisely because of the outstanding claims of ownership asserted by the NW 20 purchasers. Moreover, despite instructions by the court, the trustee never instituted proceedings to determine whether he or the contract holders had title to the property. The deed and order confirming sale did not purport to convey more than the trustee had. Consequently, the injunction against the state court proceedings is entirely unnecessary to protect or effectuate the court’s orders, because the orders themselves did not decide the title question. The sort of quiet title action brought by the defendants is precisely the sort of title determination proceeding upon which the court originally conditioned its approval of the sale of the NW 20 property" }, { "docid": "5548898", "title": "", "text": "County Superior Court No. BA-311463), seeking to cancel Williams’ deed, quiet title, and obtain damages. On 1 October 2003, Williams filed his third bankruptcy case, again under chapter 13, No. LA03-35597SB, which was assigned to the same judge who presided over his second bankruptcy case. Two days later, Williams asked the bankruptcy court to stay the eviction. On 24 October Levi moved for relief from stay in the third bankruptcy case “to obtain possession of the residential or nonresidential premises at 7250 Franklin Avenue, No. 207, Los Angeles ....” Levi argued that the automatic stay did not affect him because the premises did not belong to Williams and were not property of the estate in either the second or third bankruptcy cases. He also argued that, even if the automatic stay was in effect, it should be annulled to permit Levi to continue his unlawful detainer action in state court. Williams opposed the motion, arguing that Levi violated the automatic stay by purchasing the premises at the foreclosure sale after receiving notice of his second bankruptcy filing and by commencing the eviction action. Williams sought monetary stay-violation damages but did not ask the bankruptcy court to rule that either the sale or the unlawful detainer action were void. After a number of continuances, the bankruptcy court heard both motions on 23 December. Although concluding the hearing by indicating he intended to reassign the matter to another judge, on 31 December 2003 the judge issued a written order annulling the stay and denying Williams’ motion to stop the eviction, stating in part: Notwithstanding that the foreclosure sale may be void under Ninth Circuit law, the debtor has taken no action, either in this case or in the prior case, to set aside the sale. Levi now moves for relief from stay to proceed with eviction of the debtor from the condominium. Because the debtor has not taken any such action, notwithstanding that the foreclosure occurred almost eight months ago, the court finds that the debtor has unduly delayed and that relief from stay should be granted and the purchaser should not" }, { "docid": "17690827", "title": "", "text": "the quiet title action.” (See, Memorandum Opinion Pursuant to Fed. R.Bankr.P. 8002(b) in support of February 5, 2004 Bench Order, R.9). Delta now appeals. Standard of Review This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a), which states: The district courts of the United States shall have jurisdiction to hear appeals (1) from final judgments, orders, and decrees; (2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and (3) with leave of the court, from other interlocutory orders and decrees; and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving. Under Fed.R.Bankr.P. 8013, On an appeal the district court or bankruptcy appellate panel may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside, unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses. In considering such appeals from bankruptcy court decisions, the district courts are thus required to review the bankruptcy court’s findings of fact for clear error and its legal conclusions de novo. IRS v. Pransky, 318 F.3d 536, 542 (3d Cir.2003); In re Krystal Cadillac Oldsmobile GMC Truck, Inc., 142 F.3d 631, 635 (3d Cir.1998). Discussion As noted, the issue in this case was whether or not the Bankruptcy Court erred in denying the motion for relief from the automatic stay to enable Delta to continue its efforts in the state court to obtain permission to record a copy of the original of the lost mortgage and thus perfect the security interest in the subject real estate nunc pro tunc. Specifically, relief was sought under" }, { "docid": "8085027", "title": "", "text": "have a property interest in the Foreman home? Whether a debtor has a property interest under 11 U.S.C. § 548 is a question determined by state law. See In re Torrez, 63 B.R. 751, 754 (9th Cir. BAP 1986). As noted above, the bankruptcy court found that BFP did not obtain good title to the Foreman home by virtue of the state court ruling rescinding the deed from the Fore-mans to the Pedersens. Imperial contends that the bankruptcy court was correct, and offers a number of arguments in support of its position. Legal arguments aside, however, the judgment of the state court clearly quieted title in favor of both the Foremans and BFP as against all other parties in the state court action. After first rescinding the original deed from the Foremans to the Pedersens, the state court ruled as follows: “It is further ordered, adjudged and decreed that plaintiffs B.F.P., Sheldon L. Foreman and Ann Fant Foreman are the sole owners of said real property in fee simple, and Sheldon L. Foreman and Ann Fant Foreman are the owners of the note secured by deed of trust ... dated September 16, 1987\" (emphasis supplied). The September 16, 1987 deed of trust secures BFP’s $200,000 note given to the Foremans. Thus, the state court judgment settled title in favor of the Foremans and BFP as co-owners in fee simple, and, in addition, validated the Foreman’s second deed of trust against BFP’s fee interest securing the $200,000 debt owed by the partnership to the Foremans. Admittedly, the state court’s reasoning is difficult to follow. But the judgment is valid, and we must give it full faith and credit. It follows that BFP did indeed have a property interest in the Foreman home at the time of Imperial’s foreclosure sale to Osborne. B. Did BFP receive “reasonably equivalent value” under 11 U.S.C. § 548(a)(2)(A)? The bankruptcy appellate panel below applied its earlier decision in Madrid and held that the price received at a noncollusive, regularly conducted foreclosure sale establishes as a matter of law reasonably equivalent value under 11 U.S.C. § 548(a)(2)(A)." }, { "docid": "21123609", "title": "", "text": "under Chapter 12 of the Bankruptcy Code. Wagner also filed a determination of property rights in the bankruptcy court, stating a claim almost identical to that in his quiet title action. His quiet title action was removed to the bankruptcy court as an adversary proceeding. On September 14, 1994, a hearing was held in the bankruptcy court in which three matters were raised: the removed quiet title action, the action for determination of property rights, and PennWest’s request for relief from the automatic stay. The bankruptcy court found that Wagner had been adequately informed by PennWest of his rights of first refusal and that Wagner had failed to exercise those rights in a timely manner. Bankruptcy Ct.Op. (Nov. 23, 1994). Since Wagner’s right of first refusal had expired, the bankruptcy court concluded that Wagner’s property was no longer part of the bankruptcy estate. Id. Wagner appealed this order to the district court, arguing that his right of first refusal had not expired because PennWest failed to follow required statutory procedures. Specifically, Wagner argued that PennWest violated the ACA by requiring that the closing occur within fifteen days and by failing to provide Wagner with the terms and conditions of the competitive bidding process. The district court affirmed, holding that Wagner had failed to close within a timely manner so lost his right of first refusal. See Dist.Ct.Op. at 19 (Feb. 29, 1996). Wagner appeals to this court. II. Wagner recognizes that the initial question on this appeal is whether the right of first refusal provided under the ACA is property of the bankruptcy estate. See Appellant’s brief at 15. Subsumed in Wagner’s argument that PennWest failed to comply with the mandatory notification to him as required by 12 U.S.C. § 2219a(d)(l) is the implicit assumption that Wagner would have a cause of action for that violation. The district court noted that there is “an emerging line of authority which holds that there is no express or implied private right of action under the Agricultural Credit Act of 1987,” Dist.Ct. Op. at 9 n.2, but did not decide the issue since" }, { "docid": "18805139", "title": "", "text": "States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. Plaintiffs do not contend that either the Bankruptcy Act or any other statute expressly authorizes an injunction to protect them as purchasers of an asset from the bankrupt estate. See Jacksonville Blow Pipe Co. v. Reconstruction Finance Corp., 244 F.2d 394, 400 n. 7 (5th Cir.1957); 11 U.S.C. §§ 11(a)(15), 29(a) (1976). They argue, however, that the bankruptcy court nonetheless had power to enjoin the defendants to effectuate its orders or in aid of its jurisdiction. Upon careful consideration of each of these asserted grounds for exception from the general prohibition of federal court injunctions against state judicial proceedings, we conclude that the bankruptcy court and the district court, affirming, were in error and that the order enjoining the NW 20 purchasers must be overturned. Ill DISCUSSION A. Jurisdiction to “Protect or Effectuate” Bankruptcy Court Orders. The plaintiffs first seek to ground support for the permanent injunction in the exception provided to a federal court seeking “to protect or effectuate its judgments.” The plaintiffs point to two independent sets of court orders whose effectu-ation allegedly requires an injunction against the state quiet title action: (1) the orders authorizing and confirming sale of the NW 20 property; and (2) the order allowing defendants’ claims as general unsecured claims against the Federal Way estate. We conclude that the injunction granted here is not necessary to effectuate or to protect either of these two sets of orders. 1. Orders Authorizing Sale. The argument that the injunction is necessary to support the bankruptcy court’s orders allowing and confirming sale to Cratsenbergs fails because the court never attempted to quiet title to the NW 20 property against the appellants and in the trustee prior to the sale. The record amply indicates that the orders issued by the bankruptcy court authorizing and confirming the sale of the NW 20 property not only were not intended to determine the actual ownership" }, { "docid": "1953541", "title": "", "text": "asserted a claim to this $450,000. In its original Motion to Quiet Title, the Receiver premised its claim for the $450,000 on alternative theories: first, the $450,000 was due to it as the value of the Zanghi Judgment, and second, the $450,000 was the amount left over from the $8.5 million received by the Trustee pursuant to the coordinated sale. Docket No. 53, Attached Proposed Order Quieting Title at 4. (Notably, in that motion the Receiver stated that the dispute over the $450,000 “will not preclude the settlement between the Trustee and the IRS now pending.” Docket No. 53 at 5.) The Receiver withdrew its Motion to Quiet Title as moot in light of this court’s ruling in the related Consolidated Bankruptcy Appeals. Docket No. 124; see In re Indian Motocycle Manufacturing Company, Inc., 288 B.R. 617 (D.Mass.2003). At the CMC of April 3, 2003, however, the Receiver still appeared to maintain that the $450,000 may belong in the receivership. Having withdrawn the Motion to Quiet Title, the Receiver now attempts to dispute the ownership of the $450,000 by calling into doubt the continued validity of the 1999 Settlement Agreement. The Receiver’s argument, briefly summarized, is as follows: In 2001, the Massachusetts Bankruptcy Appellate Panel held invalid the portion of the 1999 Settlement Agreement that would move adjudication of the bankruptcy estate’s tax liabilities to the receivership court. In re Indian Motocycle Co., 261 B.R. 800, 810 (1st Cir. BAP 2001) (“BAJP /”). The Receiver argues that this holding renders the entire 1999 Settlement Agreement void ab initio, as the Agreement contained a Limited Sever-ability clause stating that “if any provision of this Settlement Agreement is held to be prohibited by or invalid under any applicable law by the District Court of the Massachusetts Bankruptcy Court, the Settlement Agreement shall be deemed to be void ab initio.” Docket No. 97, Ex. 2 at 7. The court understands the Receiver to argue that because the 1999 Settlement Agreement released the $3.5 million (of which the disputed $450,000 is one part) to the Bankruptcy Estate in the first place, the invalidity of" }, { "docid": "17690826", "title": "", "text": "to quiet title and to have a copy of the mortgage recorded as the original with lien priority dating back to the date of the original mortgage’s execution, to wit, December 4, 2000. This action was immediately stayed by virtue of Sandra Brown’s having filed for bankruptcy protection some three months earlier. On December 12, 2003, Delta filed its Motion for Relief from the Automatic Stay Pursuant to 11 U.S.C. § 362(d) to allow it to proceed with its quiet title action. The matter was set down for hearing on February 5, 2004. The record reflects that the Appellant served a copy of its Motion on the debtor, all of the debtor’s creditors listed on her matrix and the Chapter 13 Trustee. No one filed anything in response thereto and no one appeared at the hearing. Despite the fact that none of the interested parties objected, the Bankruptcy Court denied the motion, concluding “that there would be significant prejudice to the bankruptcy estate if Delta were permitted to proceed in the state court to continue the quiet title action.” (See, Memorandum Opinion Pursuant to Fed. R.Bankr.P. 8002(b) in support of February 5, 2004 Bench Order, R.9). Delta now appeals. Standard of Review This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a), which states: The district courts of the United States shall have jurisdiction to hear appeals (1) from final judgments, orders, and decrees; (2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and (3) with leave of the court, from other interlocutory orders and decrees; and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving. Under Fed.R.Bankr.P. 8013, On an appeal the district court or bankruptcy appellate panel may affirm, modify, or reverse a" }, { "docid": "11892414", "title": "", "text": "and the lenders, seeking to recover the sale proceeds under 11 U.S.C. § 542, avoid the lenders’ liens, and quiet title. The Trustee also sought to revoke the Tippetts’ discharge for knowingly and fraudulently selling an asset of the estate and retaining the net proceeds under 11 U.S.C. § 727(d)(2). The bankruptcy court bifurcated the quiet title and discharge revocation proceedings. After trial of the quiet title action on stipulated facts, the bankruptcy court held that the Tippetts’ grant deed and the lenders’ liens were void ab initio as violations of the automatic stay provided by 11 U.S.C. § 362. The court rejected other asserted alternatives and defenses and quieted title in the Trustee. The bankruptcy court, however, granted the lenders an equitable lien against the residence in the amount of $130,557.90 to be paid out of ultimate sale proceeds. On appeal from the bankruptcy court’s final judgment, the BAP held that the Tippetts’ unauthorized transfer of the Residence to Coleman did not violate the automatic stay. The transfer therefore was not utterly void. The BAP pointed out that a Trustee can avoid unauthorized transfers by debtors under 11 U.S.C. § 549(a), but that this provision was of no use to the Trustee here because it includes a defense for bona fide purchasers. See § 549(c). Accordingly, the BAP reversed the bankruptcy court’s judgment and remanded for entry of judgment in favor of Coleman and his lenders. The Trustee appealed. DISCUSSION We review de novo a decision of the BAP. Salazar v. McDonald (In re Salazar), 430 F.3d 992, 994 (9th Cir.2005). Because the bankruptcy court tried this matter on a joint statement of undisputed facts submitted by the parties, the only disputed questions are legal. Accordingly, de novo review applies to all questions before the court. The issues for decision are: (1) whether the Tippetts’ post-petition deed could convey a property interest in the residence to Coleman; (2) whether the federal Bankruptcy Code preempts the California statute protecting bona fide purchasers as applied to purchasers from a debtor in bankruptcy; and (3) whether the automatic stay voids the Tippetts’" }, { "docid": "17223125", "title": "", "text": "lien on the property of the estate. Weintraub and Resnick, Bankruptcy Law Manual, § 1.09[1] (1980). The bankruptcy court terminated the stay as requested by Weyerhauser on December 8, 1980. Neither Bragg nor Pistole joined in Weyerhauser’s petition. The Mellors did not attend the December 8, 1980 proceedings. In granting Weyerhauser’s petition, the bankruptcy court ordered that “all restraining orders and stay orders issued herein are terminated.” On March 25, 1981, Bragg filed a motion for summary judgment in the state quiet title action. The Mellors opposed this motion solely on the ground that the state court lacked jurisdiction to proceed in an action concerning the Upland residence because it was still protected by the automatic stay. A hearing on the motion for a summary judgment was held on April 3, 1981. The state trial judge concluded that he had jurisdiction to proceed based on the December 8, 1980 order of the bankruptcy court which terminated the stay at Weyerhauser’s request. The state judge announced that he construed the Weyerhauser order as terminating “all restraining and stay orders issued with reference to this particular parcel and property.” The motion for summary judgment to quiet title against the Mellors was granted. Weyerhauser gave notice that the Upland residence would be sold at a trustee’s sale on April 13, 1981. Prior to that date, Pistole cured the default by paying Weyerhauser $12,460.06. On April 27, 1981, Pistole and Bragg filed a request to be relieved from the automatic stay. On June 1, 1981, the bankruptcy court issued an order purporting to annul the stay back to December 8, 1980. The bankruptcy judge expressly concluded that: [t]he purposes of the automatic stay, 11 U.S.C. Section 362(a) would not be served by allowing it to continue in effect beyond December 8, 1980 and by allowing it to have any effect on the Superior Court Judgment [in the quiet title action] The bankruptcy court found that the encumbrances of record against the Upland residence, at the time the Mellors filed their original petition in the bankruptcy court, totalled $199,801.05. The court included in this computation" }, { "docid": "10219766", "title": "", "text": "American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984) however, shows that equitable considerations other than the equity cushion must be taken into account in determining if the creditor is adequately protected. In Mellor, the debtors’ residence was encumbered, in descending order óf priority, by a deed of trust held by Weyerhaeu-ser Mortgage Corporation, a land sale contract owned by Raymond G. Bragg, a second deed of trust and five judgment liens. Because the debtors were substantially behind in their payments, Weyerhaeuser requested and obtained relief from the automatic stay in order to foreclose on its deed of trust. Neither Bragg nor his predecessor in interest, Raymond Pistole, (hereinafter collectively referred to as Bragg) joined in Weyerhaeuser’s action, although the debtors had not made any payments on the land sale contract for several years. Instead, Bragg filed a motion for summary judgment in a quiet title action in state court, which had been commenced before the debtors’ bankruptcy petition was filed. The state judge construed the order lifting the stay in the Weyerhaeuser proceeding as terminating all stays with regard to the property, and granted Bragg’s motion for summary judgment to quiet title against the debtors. Weyerhaeuser, whose interest was senior to Bragg’s, gave notice that the property was to be sold at a trustee’s sale. Prior to the date of the sale, Bragg cured the default by paying Weyerhaeuser $12,460.06. Bragg then requested relief from the automatic stay. The bankruptcy court found that all of the encumbrances against the property totaled $199,801.05, as compared to the property’s present value of $105,-000.00. Based on these findings, and the conclusion that the debtors had no equity in the property, the stay was annulled as of the date that relief from the stay was granted to Weyerhaeuser. No findings were made as to any damage which Bragg would incur should the stay be continued, nor as to the effect on Bragg of having paid the amount of the debtors’ default on the Weyerhaeuser deed of trust. The debtors appealed from the order of the bankruptcy court annulling the stay, arguing in part" }, { "docid": "10059790", "title": "", "text": "rights that are related to Amtel’s rights, and that it sought to impose a constructive trust upon property of the estate. The appellants filed a timely motion to remand alleging that the state causes of action did not “arise in” or “arise under” Title 11 and were not sufficiently “related to” Am-tel’s bankruptcy proceeding to confer jurisdiction upon the bankruptcy court. Both Protel, Inc. and Texas Coinphone, Inc. filed oppositions. At the conclusion of the hearing, the court ruled that the actions were core proceedings pursuant to § 157(b)(2). The court’s order denying remand was entered on March 16, 1996 and the appellants filed a timely notice of appeal. ISSUES PRESENTED 1. Whether the bankruptcy court erred in determining that the state law causes of action against non-debtor third parties were core proceedings and therefore within the jurisdiction of the bankruptcy court pursuant to 28 U.S.C. § 157(b)(2) and § 1334(b). 2. Whether the state law causes of action were within the non-core but “related to” jurisdiction of the bankruptcy court. 3. Whether, if the matter was properly within its jurisdiction, the bankruptcy court failed to remand the action based upon either the discretionary or mandatory abstention provisions of 28 U.S.C. § 1334(c)(1) and (2). STANDARD OF REVIEW We review de novo the bankruptcy court’s acceptance of jurisdiction. In re Harris Pine Mills, 44 F.3d 1431, 1434 (9th Cir.1995); In re Castlerock Properties, 781 F.2d 159, 161 (9th Cir.1986). Findings of fact are reviewed under the clearly erroneous standard and questions of law are reviewed de novo. In re Britton, 950 F.2d 602, 604 (9th Cir.1991). The issue of mandatory abstention turns upon the jurisdiction question and is therefore a question of law subject to de novo review. In re DeLorean Motor Co., 155 B.R. 521, 524 (9th Cir. BAP 1993). Discretionary abstention under § 1334(c)(1) and remand on an equitable basis are reviewed for an abuse of discretion. DeLorean, 155 B.R. at 524; In re Eastport Associates, 935 F.2d 1071, 1075 (9th Cir.1991). DISCUSSION Appellants contend that the bankruptcy court erred in concluding that their state law causes of" } ]
511266
cost differential ... [imposed] in a purely recreational ... setting”). The only issue on appeal, therefore, is whether the commercial use ban as applied to some multiply-owned houseboat programs and not others is rational, and not discriminatory in violation of the equal protection clause. Where a statute draws a classification rational on its face, official action purportedly in conformity with that classification is not without more, a denial of equal protection. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944) (there must be a showing of “intentional or purposeful discrimination____ [A] discriminatory purpose is not presumed”). A regulation should not be invalidated because it fails to achieve its objectives with mathematic precision. REDACTED Hein, 429 U.S. 288, 294-95, 97 S.Ct. 549, 553-54, 50 L.Ed.2d 485 (1977)). Accord Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (in the area of economics, imperfect classifications do not offend the Constitution simply because in practice they result in some inequality). The Supreme Court has noted that Social and economic legislation ... that does not employ suspect classification or impinge on fundamental rights---carries with it a presumption of rationality that can only be overcome by a clear showing or arbitrariness____ [S]ocial and economic legislation is valid unless “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that
[ { "docid": "11138322", "title": "", "text": "under § 1395x(v)(l)(A). Particularly in a program as complex as the Medicare program, with its large number of providers and suppliers .. ., the Secretary in his regulations may make, indeed he must make, ‘rough accommodations, — illogical, it may be, and unscientific,’ using generalized classifications governing the methods of calculating ‘reasonable cost’ when it is obvious that individualized cost calculations are both not administratively practical and unduly expensive, (footnotes omitted) We recognize that the refusal of the Secretary to scrutinize the fairness of each transaction found to be covered under § 405.427 will occasionally work unfair results. However, given the limited scope of this court’s review of the Secretary’s actions in promulgating that regulation, we cannot say that the challenged regulation bears no reasonable relationship to the enabling legislation that it was designed to implement, or to the more narrow objective that the regulation was designed to achieve. See Knebel v. Hein, 429 U.S. at 296-97, 97 S.Ct. at 554-55; Hillside Community Hospital of Ukiah v. Mathews, 423 F.Supp. 1168 (N.D.Cal.1976); Schroeder Nursing Care, Inc. v. Mutual of Omaha Insurance Co., 311 F.Supp. 405 (E.D.Wis.1970). Finally, appellant argues that Section 405.427 violates the equal protection principles embodied in the due process clause of the fifth amendment. Again, however, our review of the constitutionality of regulations promulgated under § 1395x(v)(l)(A) is limited to determining whether the regulation in question is reasonably related to achieving a permissible objective. Knebel v. Hein, 429 U.S. at 297, 97 S.Ct. at 555; Weinberger v. Salfi, 422 U.S. 749, 769, 95 S.Ct. 2457, 2468,45 L.Ed.2d 522 (1975). So long as the classifications created by the regulation bear a reasonable relationship to the purpose of the regulation, the classification scheme must be upheld as constitutional. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); Fairfax Hospital Ass’n, Inc. v. Califano, 585 F.2d at 606, 609-10. The classification of “related entity”, as outlined above, was established to prevent the reimbursement of excessive charges resulting from self-dealing, and is a reasonable method of achieving this objective. In achieving that objective, the regulation" } ]
[ { "docid": "13852970", "title": "", "text": "fourteenth amendment. Under the Supreme Court’s ruling in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the test for determining whether a state welfare classification is violative of equal protection is the traditional “rational basis” test: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” (Citation omitted.) Id. at 485, 90 S.Ct. at 1161. The Dandridge Court gave great weight to the fact that states have finite resources to devote to social welfare and that the federal Social Security Act gives them great latitude in dispensing them. As long as “a solid foundation for the regulation can be found” (Id. at 486, 90 S.Ct. at 1162.) in the state’s legitimate purpose in enacting the regulation, no constitutional violation will ensue. Dandridge, therefore, sets forth four factors to be considered in determining whether a state welfare classification is violative of equal protection: (1) the state’s legitimate purpose in enacting the challenged regulation; (2) the means used to effect that purpose; (3) whether the means used are rationally related to the purpose sought to be achieved; and (4) whether the means used are such as to ensure the fiscal integrity of the state’s welfare program — i. e., whether the means used are economically sound. In Dandridge, the purpose of the challenged regulation was to provide the greatest amount of aid to the largest number of needy people by the most economic method. The means used to effect that purpose was a maximum grant system whereby the state was able to provide grants to a larger number of family units by reducing the amount of the grants provided to very large family units. Clearly, the means were rationally related to the purpose of the regulation, and moreover, were such as to ensure the fiscal integrity of" }, { "docid": "7297574", "title": "", "text": "as “[l]eg-islation in the economic and social welfare area, which includes Medicare, is tested under a deferential standard of review”). b. Rational Basis Review At the outset of this inquiry, the challenged statute is presumed constitutional. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. The law survives rational basis review if its classification bears a rational relationship to a legitimate governmental objective. The classification may not be found unconstitutional simply because it “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911)). “A legislative enactment ... fails the rational basis test if ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [one] can only conclude that the legislature’s actions were irrational.’ ” Disabled Am. Veterans, 962 F.2d at 142 (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)). As the Supreme Court stated recently: In the ordinary ease, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Nonetheless, “the rational basis test is ‘not a toothless one;’ the classification scheme must ‘advance! ] a reasonable and identifiable government objective.’ ” Greenstein by Horowitz v. Bane, 833 F.Supp. 1054, 1075 (S.D.N.Y.1993) (quoting Schweiker v. Wilson, 450 U.S. 221, 234-35, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981) (quotation omitted)). Equal protection claims under the Fifth Amendment are approached in the same way as claims under the Fourteenth Amendment. A court applying rational basis scrutiny to a statute must determine whether the law makes a cognizable classification, whether a legitimate governmental purpose supports the law, and whether the classification made is rationally related to" }, { "docid": "18392886", "title": "", "text": "appropriate for civil rights cases. Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972). For the foregoing reasons, the plaintiff’s motion for an order certifying the named class is granted. C. Opinion. The plaintiff class is eligible to receive Utilicare benefits in every respect except for the fact that they do not receive Social Security disability benefits, Supplemental Security Income disability benefits, or any other form of public assistance set forth in Section 660.100. This is the only distinction between the group of persons who receive Utilicare benefits and the plaintiff class. The issue this Court must decide is whether this difference in treatment violates the Equal Protection Clause of the Fourteenth Amendment. The standard of review the Court must apply in this case is the rational basis test. The statute in question must be upheld if the resulting difference in treatment between the two groups is rationally related to a legitimate state interest. United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). The United States Supreme Court has stated that [i]n the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), quoting in part from Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). However, if the difference in treatment involves denial of all aid rather than allocation of amounts of aid, the courts will more closely examine the rationality of the underlying classifications. Medora v. Colautti, 602 F.2d 1149, 1154 (3d Cir. 1979). If the relationship between the classification and the attainment of a legitimate governmental interest is found to be irrational, the challenged classification must fail. United States Department of Agriculture v. Murry, 413 U.S." }, { "docid": "1541666", "title": "", "text": "ANB or AFDC) to receive “bridge” payments remedying shortfalls between their regular stipends and costs of subsistence. The court therefore concluded that RSA 167:27 was bereft of any rational basis and contravened the Equal Protection Clause. Because this holding gave plaintiff all the relief which she sought, the court did not reach the due process claim. These appeals followed. III. THE EQUAL PROTECTION CLAIM Social welfare or public assistance legislation runs afoul of the Equal Protection Clause only if it cannot be said to relate rationally to a legitimate state objective. See, e.g., Lyng v. International Union, Etc., 485 U.S. 360, 370, 108 S.Ct. 1184, 1191-92, 99 L.Ed.2d 380 (1988); Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973); Garvey v. Worcester Housing Auth., 629 F.2d 691, 696 (1st Cir.1980). In identifying a state interest and assessing whether the statutory scheme can be said to further that interest, courts must be careful not to usurp legislative prerogatives; considerable respect should be accorded to legislators’ views regarding the contours of social welfare programs. “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional straightjacket.” Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972). Transforming this respect into practice requires that, in general, legislative classifications be “presumed to be valid.” Lyng, 485 U.S. at 370, 108 S.Ct. at 1191-92; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976). Imperfections in classifications, whether or not undesirable, cannot automatically be equated with violations of equal protection. See Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id. (quot ing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340," }, { "docid": "18452689", "title": "", "text": "find this argument to be without merit. In Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970), a case involving the validity of a state regulation which resulted in some disparity in the granting of welfare payments, the Supreme Court set forth the standard for analyzing equal protection challenges: [A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” . . . “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” . . . “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” . . . [This standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy. Similarly, in McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), the court, in addressing an equal protection challenge to state Sunday Blue Laws, declared: The Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective. Thus, section 582 must be upheld.if it bears a rational relation to the purpose it seeks to achieve. As previously noted, the Government claims that, in 1968, the Legislature came to the conclusion that the then existing annual leave provisions were overly generous and thereby enacted the decreased annual leave provisions of section 582 in order to increase the productivity of the government work force. No one contests that section 582 as enacted in June 1968 was to be prospective only in its application." }, { "docid": "23235005", "title": "", "text": "or application of the statutes and regulations to those facts. She contends that section 210(a)(3)(B) of the Social Security Act, 42 U.S.C. § 410(a)(3)(B), is arbitrary and irrational because it distinguishes her for the purpose of denying retirement benefits on the basis of her daughter’s marital status. She, therefore, argues that this section, as it applies to her, violates the equal protection clause of the Fourteenth Amendment. “Social security legislation is tested under a rational basis standard.” Tyson v. Heckler, 727 F.2d 1029, 1030 (11th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 111 (1984); see Oliver v. Ledbetter, 821 F.2d 1507, 1513 (11th Cir.1987) (“[Classifications created by social welfare legislation must withstand a minimal level of scrutiny in order to survive due process and equal protection challenges.”). A categorical oversight does not render a statute constitutionally infirm: In enacting legislation of this kind a government does not deny equal protection “merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Mathews v. De Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976) (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)); see Weinberger v. Salfi, 422 U.S. 749, 769, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975) (A classification is not unconstitutional simply because it is not drawn with mathematical exactness or results in some inequality; it must be upheld if it has a “reasonable basis.”); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971) (“A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ ” (quoting Dandridge, 397 U.S. at 487, 90 S.Ct. at 1162)); Tyson, 727 F.2d at 1031 (“Congress is not required to draw lines with great precision when it enacts social welfare" }, { "docid": "8524571", "title": "", "text": "either the Fifth or Fourteenth Amendments. In 1970 in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), the Supreme Court stated: “In the area of economics and social welfare, the State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369] ... ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426 [81 S.Ct. 1101, 6 L.Ed.2d 393].” The argument which assumes that the constitutional guarantee of equal protection is not violated merely because a statute authorizes one citizen to be treated differently than others, is of course, subject to the qualification that the statute does not establish an invidious discrimination. In addition the argument does not reach the question of whether an otherwise constitutional enactment is being applied in an unconstitutional manner. Equal protection, absent an invidious discrimination, requires only that a Congressional enactment have some reasonable relation to a statutory objective or purpose. This statute is certainly not arbitrary, or capricious and has a rational basis. This consent requirement was provided to ensure that low-rent housing would be coupled with the slum clearance provisions of the Act, and to buttress the notion of cooperative federalism. The plaintiffs have not shown that the requirement of 42 U.S.C. § 1415(7)(b) (i) is based on a suspect category or affects fundamental rights. On its face this requirement does not discriminate on the basis of race. Moreover, it does not establish an invidious discrimination based upon wealth. While it is true that local consent is required only under the federal housing program for the poor, this does not, ipso facto, establish an invidious discrimination. Under some circumstances legislative enactments which have discriminated on" }, { "docid": "20798900", "title": "", "text": "of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). However, the cases recognize also that social welfare legislation cannot be expected to be surgically precise in its classification and the existence of some discrimination incidental to the statute’s goal and the means used to achieve it will not make the statute constitutionally infirm under either the Fifth or Fourteenth Amendments. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). What the Court stated in Dandridge, supra at 485, 90 S.Ct. at 1161, in regard to equal protection: In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” it later reaffirmed in Richardson, supra, 404 U.S. at 84, 92 S.Ct. at 258, for due process: We have no occasion, within our limited function under the Constitution, to consider whether the legitimate purposes of Congress might have been better served by applying the same offset to recipients of private insurance, or to judge for ourselves whether the apprehensions of Congress were justified by the facts. If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment. The child’s insurance benefits provision of the Social Security Act is founded on the dual concepts of parentage and dependency. To be eligible for benefits, a claimant must be both the child of and dependent upon the deceased wage earner. 42 U.S.C. § 402(d)(1). The purpose of" }, { "docid": "18448385", "title": "", "text": "to this litigation under the Fifth Amendment: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, [31 S..Ct. 337, 1340, 55 L.Ed. 369], ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, [33 S.Ct. 441, 443, 57 L.Ed. 730]. ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426, [81 S.Ct. 1101, 1105, 6 L.Ed. 2d 393].” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). The legislative purposes in the preemption provisions are clear and legitimate. Congress wanted employee benefit plans subject to uniform federal regulation so that administrators of plans would not' face the uncertainty and expense of compliance with diverse and often conflicting state regulations which often provided less protection for beneficiaries than Congress considered necessary. See Hewlett-Packard Co. v. Barnes, supra, 425 F.Supp. at 1298-1300. The only question is whether preempting health insurance laws but not certain other types of state social insurance laws rationally furthers that purpose. The Court concludes that Congress had a rational basis for treating health insurance laws differently from the laws exempted in § 4(b)(3). Congress could have recognized a greater need to accommodate state disability insurance laws because disabling illness and injury impose a double burden on their victims, who lose income as well as incur medical expenses. In contrast, workers who suffer from nondisabling illness and injury maintain a steady income, and medical expenses for treatment of nondisabling medical problems may usually be less than those expenses for disabling problems." }, { "docid": "18448384", "title": "", "text": "Amendment and under the Tenth Amendment. Defendants do not contend that Congress lacks the authority under the Commerce Clause generally to regulate in the area of employee benefit plans involving interstate commerce or that federal regulation can never preempt state regulation occupying the same field. The Court concludes that ERISA as construed is constitutional. A Defendants argue that there is no valid basis for distinguishing state workmen’s compensation, unemployment compensation, and disability insurance laws from state health insurance laws and that the exemption in § 4(b)(3) for the former and not the latter deprives defendants of due process of law. The Due Process Clause of the Fifth Amendment does require that Congress employ only those classifications that are rationally related to the achievement of legitimate federal goals. Richardson v. Belcher, 404 U.S. 78, 84, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1953). The Supreme Court’s definition of the standard of review under the Equal Protection Clause of the Fourteenth Amendment applies equally to this litigation under the Fifth Amendment: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, [31 S..Ct. 337, 1340, 55 L.Ed. 369], ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, [33 S.Ct. 441, 443, 57 L.Ed. 730]. ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426, [81 S.Ct. 1101, 1105, 6 L.Ed. 2d 393].” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)." }, { "docid": "23148958", "title": "", "text": "justification for a statutory classification than is normally required for rational basis analysis. Under McGowan v. Maryland a statute falls before the rational basis test only if a classification rests on grounds “wholly irrelevant” to achievement of a legitimate state purpose, but under means scrutiny there must be a substantial relationship between the ends and means of challenged legislation. A court applying the rational basis test will generally defer to a legislative holding that the stated end will be accomplished by the chosen means, but under means scrutiny a court carefully studies the factual assumptions underlying the supposed connection between legislative ends and means. See Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759, 771-72 (1977). At least one commentator has questioned whether the means scrutiny test in fact exists. Id. at 773. Even if there is such a test, it may be limited to “quasi” suspect classifications such as sex, the classification examined in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). See Redish, supra, at 773-79. Such a test is inapplicable in the case presently before us. The Florida provisions at issue need not be evaluated under the strict scrutiny standard, as neither a suspect class nor a fundamental right is involved in the classifications made by sections 768.44 and .47. Accord, e. g., Everett v. Gold man, La., 359 So.2d 1256, 1266 (1978); Attorney General v. Johnson, 282 Md. 274, 308-311, 385 A.2d 57, 77-78 (1978); Comment, supra note 12, at 171. Consequently, there need only be a rational basis for the classifications made by them— In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co.," }, { "docid": "2118097", "title": "", "text": "in original); Emery v. Holmes, 824 F.2d 143, 147 (1st Cir.1987) (considering, as first part of qualified immunity analysis, whether plaintiff’s rights were violated); cf. Unwin v. Campbell, 863 F.2d 124 (1st Cir.1988) (granting summary judgment based on qualified immunity where undisputed facts revealed that defendants had not caused alleged injury). Plaintiffs contend that the police department’s former policy of prohibiting reserve participation, and its current policy of not reimbursing reservists for the difference between their wages as police officers and their military pay while they are on active duty, violate the Equal Protection Clause of the United States Constitution. Their argument seems to be based on the fact that, unlike police officers, employees in other city departments were and are permitted to join the reserves, and they receive reimbursement for their loss in income. Under familiar principles of equal protection analysis, the classification at issue here, the plaintiffs’ status as police officers, need only survive rational basis review. See, e.g., Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 2386-87, 69 L.Ed.2d 40 (1981) (“Social and economic legislation that does not employ suspect classifications or impinge on fundamental rights must be upheld ... when the legislative means are rationally related to a legitimate government purpose.”). Applying this standard, the Supreme Court has warned that, in general, legislative classifications are “presumed to be valid.” Lyng v. International Union, Etc., 485 U.S. 360, 370, 108 S.Ct. 1184, 1191-92, 99 L.Ed.2d 380 (1988). If such a classification “has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (quoting Linds-ley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). The police department offers two separate explanations for its policies. First, it justifies its prohibition on reserve participation based on the possibility that officers’ reserve participation would prevent the department from providing adequate police protection in the event that officers" }, { "docid": "7297573", "title": "", "text": "basis review, at a time eleven years ago when the Supreme Court’s rational basis scrutiny appeared to be unusually probing. Long Island Lighting, 666 F.Supp. at 414. The Northern District of New York professed that near-suspect classes or near-fundamental rights should receive not heightened scrutiny, as Plaintiffs suggest, but a “more searching rational basis analysis.” Id. at 421. It is the opinion of this Court that rational basis review, not heightened scrutiny, is most appropriate. As to the degree of scrutiny, the Court will conduct its inquiry into rational basis in the manner it believes appropriate given the Supreme Court’s and Second Circuit’s guidance in this area of the law as a whole. The IPS is a fitting candidate for rational basis review, as it is alleged to single out low cost, efficient HHAs. This act exemplifies the type of social welfare legislation designed to receive rational basis review. See Rye Psychiatric Hosp. Ctr., Inc. v. Shalala, 52 F.3d 1163, 1172 (2d Cir.1995) (alleged equal protection violation in Medicare reimbursement scheme reviewed for rational basis, as “[l]eg-islation in the economic and social welfare area, which includes Medicare, is tested under a deferential standard of review”). b. Rational Basis Review At the outset of this inquiry, the challenged statute is presumed constitutional. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. The law survives rational basis review if its classification bears a rational relationship to a legitimate governmental objective. The classification may not be found unconstitutional simply because it “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911)). “A legislative enactment ... fails the rational basis test if ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [one] can only conclude that the legislature’s actions were irrational.’ ” Disabled Am. Veterans, 962 F.2d at 142 (quoting Vance v. Bradley, 440 U.S. 93," }, { "docid": "10184477", "title": "", "text": "can be conceived that would sustain it, the existence of that state of facts at the time that the law was enacted must be assumed.” On the other hand, only nine years later in F.S. Royster Guano Co. v. Virginia, 253 US 412, 415, 64 L Ed 989, 40 S Ct 560 [562] (1920), the Court said that for a classification to be valid under the Equal Protection Clause of the Fourteenth [449 U.S. 175, 101 S.Ct. 459] Amendment it “must rest upon some ground of difference having a fair and substantial relation to the object of the legislation....” In more recent years, however, the Court in cases involving social and economic benefits has consistently refused to invalidate on equal protection grounds legislation which it simply deemed unwise or unartfully drawn. Thus in Dandridge v. Williams, 397 US 471, 485-486, 25 L Ed 2d 491, 90 S Ct 1153 [1161-62] (1970), the Court rejected a claim that Maryland welfare legislation violated the Equal Protection Clause of the Fourteenth Amendment. It said: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 US 61, 78 [55 L Ed 369, 31 S Ct 337, 340]. The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 US 61, 68-70, [57 L.Ed. 730, 33 S Ct 441, 443].... ... “[The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Of like tenor are Vance v. Bradley, supra [440 U.S. 93] at 97, 59 L Ed 2d 171, 99 S Ct 939 [at 942-43]" }, { "docid": "2118098", "title": "", "text": "(1981) (“Social and economic legislation that does not employ suspect classifications or impinge on fundamental rights must be upheld ... when the legislative means are rationally related to a legitimate government purpose.”). Applying this standard, the Supreme Court has warned that, in general, legislative classifications are “presumed to be valid.” Lyng v. International Union, Etc., 485 U.S. 360, 370, 108 S.Ct. 1184, 1191-92, 99 L.Ed.2d 380 (1988). If such a classification “has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (quoting Linds-ley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). The police department offers two separate explanations for its policies. First, it justifies its prohibition on reserve participation based on the possibility that officers’ reserve participation would prevent the department from providing adequate police protection in the event that officers were called to active duty. The district court rejected this rationale, noting that most other police departments permit reserve participation. Although this may be true as an empirical matter, it does not lead to the conclusion that the Portsmouth policy was without rational basis. Indeed, in the event of a mass mobilization of reservists, the possibility exists for a town to be left with inadequate police protection. We cannot say that a policy designed to deal with such a possibility lacks a rational basis. The department also points to the fact that the police officers form a separate bargaining unit for the purposes of negotiating city contracts. According to the affidavit of the city’s union contract negotiator, Thomas Cayten, employment benefits vary greatly among the various city departments. Reimbursement of reservists for wages lost during active duty is among the benefits negotiated independently by the city departments. The city’s system of negotiating the employment terms of different groups of city employees is reasonably designed to meet the needs both of the city and the employees." }, { "docid": "13342370", "title": "", "text": "(1957). In light of the Commission’s broad powers to regulate horse racing, the classifications set up by Regulation 25B are not unreasonable, arbitrary or invidious. The plaintiff has made no showing of purposeful discrimination. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). The regulation seeks to identify types of conduct that are likely to interfere with the goal of conducting horseracing fairly, decently and cleanly. As the defendants explained in their answers to interrogatories, the regulation as interpreted distinguishes between those who engage or have engaged in the prohibited conduct in connection with--racing, and those who have engaged in it in some other context or not at all. The criteria for distinguishing between successful and unsuccessful license applicants are rationally related to the legislature’s legitimate interest in the strict regulation of racing. It is true that the regulation as applied to Mr. Lewitus seems somewhat irrational, given that he himself has done no wrong. However, the equal protection clause does not require that all classifications be drawn with absolute precision. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). The Commission had a reasonable basis for believing that anyone who consorts or associates With bookmakers, touts, or others of similar pursuits would be likely to interfere with the scrupulous conduct of racing. The fact that the plaintiff may in fact pose no threat, or that other more threatening applicants are not excluded by Regulation 25B, does not of itself invalidate the regulation. For many of the same reasons, Regulation 25B does not violate the principles of substantive due process. There is a rational nexus between the strictness of the rule and the avowed purposes behind the legislature’s delegation of such broad regulatory powers to the Commission." }, { "docid": "4657290", "title": "", "text": "under the strict scrutiny test. Id. at 1602-18. The rational basis test is used for equal protection analysis of economic and social legislation. Under the rational basis test there needs to be a rational or reasonable basis for the legislation. R. Chandler, R. Enslen and P. Renstrom, Constitutional Law Deskbook: Individual Rights (1987) states at page 383: Legislative classifications are typically evaluated by the rationality test, which is a standard reflecting the Court’s understanding that the drawing' of lines that create distinctions is peculiarly a legislative task as well as an unavoidable one. Classifications are presumed to be valid under this approach and need not achieve perfection. If the legislative objective is legitimate, a classification may be used as long as it rationally relates to its objective. This doctrine places the burden of proof on the party claiming the legislation has no rational or reasonable basis. The Supreme Court in United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 175, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980), reh’g denied, 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385 (1981) states the appropriate standard of judicial review is the ration al basis standard when social and economic legislation enacted by Congress, such as legislation relating to railroad benefits and social security benefits, is challenged as being violative of the fifth amendment to the United States Constitution. Therefore, this court holds the rational basis standard should also be used to examine the legislation regarding benefits administered by the V.A. In United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 176, 101 S.Ct. 453, 460, 66 L.Ed.2d 368 (1980), the Court citing to Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) stated the following: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v." }, { "docid": "13034648", "title": "", "text": "withdraw from the program). Friedman v. Perales, 668 F.Supp. at 225. The reimbursement system, if not altered, will ultimately have a measurable negative impact on Pennsylvania medicaid recipients because their ready access to quality care will be impaired. This is another reason why the overall system for out-of-state hospitals is violative of the federal law. Fourteenth Amendment Another question before the court is whether Pennsylvania’s disparate treatment constitutes unconstitutional discrimination in violation of WVUH’s equal protection rights under the Fourteenth Amendment. The state has developed a payment methodology in which it classifies hospitals and bases reimbursements on hospitals’ classifications. The method used by the state has resulted in plaintiff being placed in a class in which it receives a considerably lower reimbursement than other hospitals similarly situated but within Pennsylvania’s borders. The court applies a “traditional” equal protection analysis because suspect classifications such as race, religion or national origin are not involved here. “Under ‘traditional’ equal protection analysis, a legislative classification must be sustained unless it is ‘patently arbitrary’ and bears no rational relationship to a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citing Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. at 1724, 1731, 32 L.Ed.2d 285 (1972)); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). Whether defendants’ classifications are unconstitutional turns on the question of reasonableness. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at" }, { "docid": "7807997", "title": "", "text": "the Equal Protection Clause of the Constitution. Absent a suspect classification or a fundamental right, courts will uphold economic and social legislation that distinguishes between two similarly situated groups as long as the classification is rationally related to a legitimate government objective. Nordlinger v. Hahn, — U.S. -, -, 112 S.Ct. 2326, 2331-32, 120 L.Ed.2d 1 (1992); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080-81, 67 L.Ed.2d 186 (1981); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970); LCM Enterprises, Inc. v. Town of Dartmouth, 14 F.3d 675, 678-79 (1st Cir.1994). A state statute will survive this “rational basis” scrutiny under the Equal Protection Clause as long as “any state of facts reasonably may be conceived to justify it.” Dandridge, 397 U.S. at 485, 90 S.Ct. at 1161 (quoting McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)); accord LCM Enters., 14 F.3d at 679 (collecting cases). A state’s classification is not unconstitutional simply because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge, 397 U.S. at 485, 90 S.Ct. at 1161 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). ’ Fireside claims that RIDOT’s application of R.I.Gen.Laws § 31-5.1-4.2 is not rationally related to the stated goal of protecting Rhode Island consumers and Rhode Island dealerships from certain franchising practices of automobile manufacturers. Fireside argues that excluding out-of-state dealers from the good-cause hearings not only fails to further the goals of protecting consumers and dealers but actually undermines those goals. According to Fireside, its exclusion from the hearings gives Rhode Island regulators a distorted view of the “relevant market area” by understating the existing competition among automobile franchises, resulting in licensing decisions that are detrimental to Rhode Island consumers and dealers. The only purpose for excluding out-of-state dealers, Fireside posits, is the illegitimate one of economic protectionism. We disagree with Fireside’s contention that RIDOT’s exclusion of Fireside bears no rational relationship to the" }, { "docid": "3230845", "title": "", "text": "scheme he carries out. Jacquet v. Westerfield, 5 Cir. 1978, 569 F.2d 1339, 1344; Johnson’s Professional Nursing Home v. Weinberger, 5 Cir. 1974, 490 F.2d 841, 844. In light of these constraints and the fact that HEW’s construction of the statute is a reasonable one and is within the scope of its statutory authority, we hold that under the statute HEW and Mississippi may allow institutionalized applicants to anticipate expenses while not allowing non-institutionalized persons to do so. B. Constitutional Issues Plaintiffs assert that treating institutionalized applicants differently from non-institutionalized ones with regard to spend-down procedures violates the constitutional guarantees of equal protection.. We disagree. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Supreme Court stated that a legislative classification scheme involving welfare funds will withstand an equal protection challenge if it does not make an invidious discrimination, is supported by a rational basis, and furthers a legitimate state interest. The Court further noted that in the area of social welfare, a state does not violate the Equal Protection Clause merely because the classification made by its laws are imperfect. If the classification has reasonable basis, it “does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’.” 397 U.S. at 485, 90 S.Ct. at 1161, quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). In subsequent cases the Court has consistently reaffirmed the basic principle articulated in Dandridge. See, e. g., Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Mathews v. de Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30" } ]
603914
exclusively by the Georgia statute and there are no unliquidated damages to be assessed. The court of appeals for this circuit has held that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case should be dismissed for lack of jurisdiction. McDonald v. Patton, 240 F.2d 424 (4th Cir. 1957); Nixon v. Loyal Order of Moose Lodge No. 750, 285 F.2d 250 (4th Cir. 1960). When the potential liability of an insurer is less than the jurisdictional amount, the case against it must be dismissed. Doucet v. Travelers Insurance Co., 362 F.2d 263 (5th Cir. 1966); REDACTED This court concludes, therefore, that if it interprets the Georgia statute to require something less than the jurisdictional amount, the defendant’s motion to dismiss should be sustained. The interpretation of a statute is a question of law for the court and the potential maximum recovery will therefore be a “legal certainty.” If it is assumed that the defendant can be subjected by Georgia law to a greater obligation than was contracted for under Maryland law, it seems clear that the defendant’s obligation cannot be made greater than the law of Georgia would actually require. The Georgia statute requires the insurer “to pay the insured all sums which he shall be legally entitled to recover as damages . . ., within
[ { "docid": "23568754", "title": "", "text": "does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them. Nothing less than this is meant by the statute when it provides that the failure of its jurisdiction, on this account, ‘shall appear to the satisfaction of said Circuit Court’.” As pointed out in St. Paul Mercury Indemnity Co. v. Red Cab Co., 1937, 303 U. S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845: “The intent of Congress drastically to restrict federal jurisdiction in controversies between different states has always been rigorously enforced by the courts * * * [I]f, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed * * * the suit will be dismissed.” If there is one situation where the amount of a claim can be determined with legal certainty, it is in a case when a claim is asserted on an insurance policy limiting liability. Thus, in Schacker v. Hartford Fire Insurance Company, 1876, 93 U.S. 241, 23 L.Ed. 862, the Court affirmed dismissal of a complaint for lack of jurisdiction, because of a policy limitation to $1400, although the plaintiff’s allegations of damage satisfied the jurisdictional amount. In Colorado Life Co. v. Steele, 8 Cir., 1938, 95 F.2d 535, 536, the court looked to the recovery limitations in the disability clauses of a life insurance policy to determine jurisdictional amount. What the court said there applies equally well here: “[I]f from the nature of the case as stated in the petition there could not legally be a judgment for an amount necessary to the jurisdiction, jurisdiction cannot attach even though the damages be laid * * * at a sum larger than the jurisdictional amount * * * Therefore, while the prayer here is for an amount far above the jurisdictional" } ]
[ { "docid": "14299526", "title": "", "text": "below the statutory limit do not oust jurisdiction.” 303 U.S. 283, 288-290, 58 S.Ct. 586, 590. The appellant complains that no one but the injured party can really know whether he honestly believes that he is entitled to a recovery to as much as $10,000.00. She cites us to the Fourth Circuit opinion in McDonald v. Patton, 240 F.2d 424, 425, from which the following language is appropriate: “ * * * when a plaintiff in good •faith asserts a claim in an amount within the jurisdiction of the Court, the Judge is forbidden ‘to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy be tween the parties is concerning a subject of less than the jurisdictional value.’ “In applying this test, it has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845. However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiff’s good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved, for jurisdictional purposes, in favor of the subjective good faith of the plaintiff.” What appellant overlooks in her argument is the language in both of these opinions touching on “good faith.” There is no doubt but that if there is no question of good faith then it must appear to a legal certainty that the plaintiff can not recover the amount claimed before the Court would be justified in dismissing the suit for want of jurisdictional amount. We think, however, that in determining what the courts mean by “good faith” we find the answer given by the Supreme Court in" }, { "docid": "14299525", "title": "", "text": "for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if from, the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction.” 303 U.S. 283, 288-290, 58 S.Ct. 586, 590. The appellant complains that no one but the injured party can really know whether he honestly believes that he is entitled to a recovery to as much as $10,000.00. She cites us to the Fourth Circuit opinion in McDonald v. Patton, 240 F.2d 424, 425, from which the following language is appropriate: “ * * * when a plaintiff in good •faith asserts a claim in an amount within the jurisdiction of the Court, the Judge is forbidden ‘to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy be tween the parties is concerning a subject of less than the jurisdictional value.’ “In applying this test, it has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the" }, { "docid": "954833", "title": "", "text": "defeating diversity. In order to recover under the liability provisions of his own policy, the plaintiff would have to prove his own negligence. The Court doubts that the plaintiff intends to do this. When it is clear that a party cannot recover against a particular defendant, that defendant is a mere nominal party and cannot defeat removal jurisdiction. Alexander v. Lancaster, 330 F.Supp. 341 (W.D.La.1971). Such is the case here and the liability claim against Trinity does not destroy the requisite diversity in this case. However, even though the parties are diverse, there is still no federal jurisdiction in this case. The plaintiff limits his claim against Trinity as an uninsured motorist carrier to $5,000 (the applicable policy limits). 28 U.S.C. § 1332(a) requires an amount in controversy in excess of $10,-000. The claim against Trinity does not meet this requirement. If it appears to a legal certainty that a claim is less than the jurisdictional amount, there is no federal jurisdiction. Payne v. State Farm Mutual Automobile Insurance Co., 266 F.2d 63 (5th Cir. 1959). A classic example of such legal certainty is when a defendant’s liability is contractually limited. Several courts have found that when an insurer’s policy limits are less than the jurisdictional amount, there is no diversity jurisdiction. Doucet v. Traveler’s Insurance Co., 362 F.2d 263 (5th Cir. 1966). Heavner v. State Automobile Insurance Co. of Columbus, 340 F.Supp. 391 (W.D.Va.1972); Mizukami v. Buras, 419 F.2d 1319 (5th Cir. 1969). Here, not only does the plaintiff argue that there is no amount in controversy, but in his petition he limits his claim against Trinity to less than the required jurisdictional amount. Based on the face of the petition the requisite jurisdictional amount is lacking and, therefore, the Court has no federal jurisdiction. The defendants argue that the claims against Trinity and Illinois Central should be aggregated to obtain the required jurisdictional amount. The traditional rule has been that claims by multiple plaintiffs against a single defendant cannot be aggregated: The settled rule is that when two or more plaintiffs having separate and distinct demands unite in" }, { "docid": "12965790", "title": "", "text": "1958, the plaintiff filed suit against the defendant, claiming $6,000.00 in damages for breach of the aforesaid contract, alleging he was entitled to 8% of the contractor’s final cost of said project, based on a $75,000.00 cost figure. Plaintiff attempts to justify his claim on the ground the “statements as rendered” were only an offer on his part to compromise. The offer was not accepted by the defendant and therefore he was not bound. He further contends that in the event his theory of compromise is not accepted, then it should be considered as an “account rendered”. Both of these contentions are without merit. This Court, in McDonald v. Patton, 4 Cir., 240 F.2d 424, at page 426, decided how far a federal court may inquire preliminarily into the merits of an asserted claim in order to determine whether or not the required jurisdictional amount of $3,000.00 is involved, quoting therefrom: “ * * *, it has been further recognized that while good faith is a salient factor, it alone does not control ; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845.” The District Court, upon consideration of the interrogatories and exhibits submitted in support of the plaintiff’s claim, was satisfied to a legal certainty that the plaintiff was never entitled to recover more than the sum of $2,960.00, exclusive of interest and costs, and that his claim was therefore colorable for the purpose of conferring jurisdiction. Whereupon the suit was dismissed without prejudice to the right of the plaintiff to institute an action upon his claim as asserted in-the complaint filed herein in any state court of competent jurisdiction. The ruling of the Trial Judge is in accord with the principles enunciated in. Healy v. Ratta, 292 U.S. 263, 54 S.Ct.. 700, 703, 78 L.Ed. 1248: “From the beginning suits between citizens of different states, or" }, { "docid": "10121674", "title": "", "text": "as \"Erie.” . At least one other judge in this District agrees with this approach: After reviewing all the above cited cases, this court concurs with the reasoning ... that there must be some leeway to inquire into the amount in controversy in cases where the plaintiff has pled a specific sum which is below the jurisdictional minimum but final recovery is not limited to that sum. Watterson v. GMRI, Inc., 14 F.Supp.2d 844, 848 (S.D.W.Va.1997) (Staker, J.). . This divergence of opinion is especially significant when an argument could be made our Court of Appeals chose Red Cab's legal certainty approach over two decades ago. See Wiggins v. North American Equitable Life Assur. Co., 644 F.2d 1014 (4th Cir.1981). Wiggins involved a removal from state court based on diversity of citizenship. In reversing and ordering the case remanded to state court, Judge Winter stated: Ordinarily the jurisdictional amount is determined by the amount of the plaintiff's original claim, provided that the claim is made in good faith. See McDonald v. Patton, 240 F.2d 424 (4th Cir.1957). But, as that case stated, on the authority of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938): [I]t has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction.... However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiff's good faith in asserting the claim. 240 F.2d at 426. In this case, our consideration of Maryland law, which the parties concede is the law to be applied, persuades us that plaintiff, as a matter of \"legal certainty, \" could not recover punitive damages in this action. If this be true, it follows that al most $9,000 was the amount in controversy and the requisites for diversity jurisdiction were not satisfied. Id. at 1016-17 (emphasis added). Upon closer inspection, Wiggins is not controlling here for a" }, { "docid": "23203310", "title": "", "text": "true when the action was commenced, although the fact was not uncovered until discovery began. Tongkook argues that the facts of this case are distinguishable from cases such as Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199 (2d Cir.1982), and Deutsch, where the rulings of the respective district courts were reversed by this Court because they had improperly determined that the damages sought by the plaintiffs fell below the minimum statutory amount. Tongkook’s argument .is unpersuasive. In Zacharia, the district court dismissed the plaintiffs complaint for lack of jurisdiction because it determined that the defendant’s liability was limited by statute to an amount below the minimum statutory jurisdictional amount. 684 F.2d at 202-03. We reversed this ruling, finding that jurisdiction is based upon the plaintiffs allegations, and that a valid defense does not deprive a federal court of jurisdiction. Id. at 202. In Deutsch, the district court dismissed the plaintiffs complaint after determining that the injuries suffered could not justify a recovery in excess of the minimum statutory jurisdictional amount. 359 F.2d at 98. In reversing the district court’s ruling, this Court held that when a plaintiff is seeking unliquidated damages in a tort action, a district court should permit the case to proceed and not predetermine whether the plaintiff could recover the minimum statutory amount. Id. at 99-100. Thus, Zacharia and Deutsch both involved claims for uncertain money damages. Where the damages sought are uncertain, the doubt should be resolved in favor of the plaintiffs pleadings. See McDonald v. Patton, 240 F.2d 424, 426 (4th Cir.1957). Here, there is little ambiguity as to the amount Shipton owed Tong-kook — both parties acknowledged that Ship-ton owed Tongkook, at most, approximately $37,000. We accept Tongkook’s assertion that, at the time it instituted suit, it believed the amount in controversy exceeded the statutory jurisdictional amount. However, good faith has an objective element, and we cannot ignore what pre-trial discovery revealed— that from the outset, Tongkook, to a “legal certainty,” could not recover the statutory jurisdictional amount.. A plaintiffs subjective belief, alone, cannot be the controlling factor where, pre-trial, there is “[a]" }, { "docid": "2283558", "title": "", "text": "facts are challenged by his adversary in any appropriate manner, he must support them by competent proof * * * ” we must look to the affidavits submitted by the plaintiff in order to determine whether plaintiff has sufficiently established his allegation that the amount here in controversy exceeds the sum of $10,000 exclusive of interest and costs. From those affidavits it appears that on August 29, 1956, .when he was killed, decedent, a Puerto Rican, was just under 20 years of age, that at that time he was employed on a farm where he earned approximately $37 per week and paid $1 per day for his room and board. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845, the court stated: “The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” (Emphasis supplied.) And in McDonald v. Patton, 4 Cir., 1957, 240 F.2d 424, at page 426, the court stated: “ * * * [T]he legal impossibility of recovery must be so certain as virtually to negative the plaintiff’s good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved, for jurisdictional purposes, in favor of the subjective good faith of the plaintiff.” In applying the law as set forth in the cases just cited to the basic facts developed by plaintiff in the affidavits submitted, it becomes quite clear that we cannot dismiss this action for lack of jurisdiction. It certainly does not appear to a legal certainty that the claim is really for less than the jurisdictional amount, for what was said by the court in Harris v. Illinois Central Railroad Co., 5 Cir. 1955, 220 F.2d 734, 736, is particularly applicable here: “The proper amount" }, { "docid": "15935137", "title": "", "text": "v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702. Furthermore, the courts of appeals, after trial, as well as the trial courts may remand the case on their own initiative. Colorado Life Co. v. Steele (CCA 8 1938), 95 F.2d 535; cf. Ringsby Truck Lines v. Beardsley (CCA 8 1964), 331 F.2d 14. This is justification for the general rule that the burden of proof as to jurisdictional diversity and amount is on the party who asserts federal jurisdiction. Hatridge v. Aetna Casualty & Surety Co. (CCA 8 1969), 415 F.2d 809 (Circuit Judge Blackmun, who is now on the Supreme Court). Chief Judge Sobeloff, in McDonald v. Patton (4th Cir. 1957), 240 F.2d 424, 425, wrote: It is the firmly established general rule of the federal courts that the plaintiff’s claim is the measure of the amount in controversy and determines the question of jurisdiction; and it is indisputably the law that if the ultimate recovery is for less than the amount claimed, this is immaterial on the question of jurisdiction. * * * It has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down in St. Paul Mercury Indemnity Co. v. Red Cab Co. (citations omitted). The confrontation is inevitable between the strict construction of Nelson v. Keffer, infra, of the applications of the diversity mandate (thus saving the courts from suits which “fritter away their time in the trial of petty controversies,” ) and the opposite and more liberal view adopted by the Third Circuit in Wade v. Rogala (CCA 3 1959), 270 F.2d 280, 285, that if the ruling on the sufficiency of the amount in controversy cannot be decided without a ruling on the merits, the necessary choice is to permit the cause to proceed to trial. This latter rule seems to ease the burden on those seeking the jurisdiction of the court and weaken" }, { "docid": "15602206", "title": "", "text": "was a sickness within the coverage of their policies (Tr. I, p. 27, Tr. II, pp. 72, 74, 76, 77). Here the judge dismissed because in his opinion it appeared from the proof that the plaintiff was not entitled to recover the jurisdictional amount. In such a ease, where the complaint asserts a claim in the jurisdictional amount, the action should not be dismissed unless the proof not only shows that the plaintiff cannot recover that amount, but also shows this with such certainty as to indicate a lack of good faith on the part of the plaintiff in bringing the action in the federal court. St. Paul Mercury Indemnity Co. v. Red Cab Co. (1938) 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845; McDonald v. Patton, 4th Cir., 240 F.2d 424, 426; Matthiesen v. Northwestern Mutual Insurance Company, 5 Cir. 1961, 286 F.2d 775. Appellees urge that the claim made by plaintiff for exemplary or punitive damages cannot be made in good faith. If made in good faith, punitive damages may be included in computing: the amount necessary for federal jurisdiction. Young v. Main, 8 Cir. 1934, 72 F.2d 646. However, if under the applicable state law it woüld be legally impossible to recover actual and exemplary damages, the addition of such exemplary damages to the claim will not create a sufficient good faith claim. In a diversity case, we are required to follow the state law of Oregon. Erie R. Co. v. Tompkins (1938) 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Defendants say the law of Oregon prevents recovery of exemplary ox punitive damages for fraud except where the fraud is aggravated, “as where it is gross, malicious, or wanton,” (Cays v. McDaniel, et al., (1955) 204 Or. 449 at 457-458, 283 P.2d 658, 661-662) and citing in support of that theory Perez v. Central Nat’l Ins. Co. of Omaha, (1958) 215 Or. 107, 372 P.2d 1066; Ridgeway v. McGuire, (1945) 176 Or. 428, 158 P.2d 893. We do not find them based on a factual situation similar to the peculiar ones here alleged" }, { "docid": "18268637", "title": "", "text": "the question of whether exemplary and punitive damages may be considered with actual damages in order to exceed the requisite amount in controversy. Indeed, the act is virtually silent as to the amount and type of damages which may be awarded for breach of warranty. It is noted that the remedies set forth in 15 U.S.C. § 2304 are applicable only to “full” warranties. See 15 U.S.C. § 2303(a)(1). Given this circumstance, resort to the well-established rules governing the determination of the amount in controversy in jurisdictional statutes is essential. The cardinal rule was announced by the Supreme Court in the leading case of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938): The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. For the most part, this “legal certainty” test renders it difficult to secure dismissal of a case premised upon the failure to satisfy the jurisdictional amount. See e. g., Moore v. Betit, 511 F.2d 1004 (2d Cir. 1975). Nevertheless, the legal certainty standard is clearly applicable in those cases where recovery is limited by the terms of a contract, e. g., Doucet v. Travelers Insurance Co., 362 F.2d 263 (5th Cir. 1966); where the governing law places limits upon the damages recoverable, James v. Lusby, 162 U.S.App.D.C. 352, 499 F.2d 488 (1974); and, where the amount demanded is merely colorable for the purpose of obtaining jurisdiction. Arnold v. Troccoli, 344 F.2d 842 (2d Cir. 1965). See generally, 14 Wright, Miller & Cooper, Federal Practice & Procedure § 3702 (1976). Bearing in mind that the determination of the amount in controversy is a federal question to be decided under federal standards, see Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 352, 81 S.Ct. 1570," }, { "docid": "6320942", "title": "", "text": "Johns-Manville to remove the bar of the three-year statute did not suffice as acknowledgments under Mississippi law. The Judge concluded: “Since the plaintiff’s claim fails to meet the $10,000 jurisdictional requirement without inclusion of those sums barred by the statute of limitations, it is apparent to a ‘legal certainty’ that the necessary jurisdictional amount is not met. * * * “The Court holds, therefore, that it is without jurisdiction to hear this cause.” In thus dismissing this ease for lack of jurisdictional amount, the District Court erred. Therefore, we reverse and remand the case for further proceedings. In diversity cases determination of the amount in controversy presents a federal question to be decided by federal standards. State law is relevant to this determination insofar as it defines the nature and extent of the right the plaintiff seeks to enforce. Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961). The amount in controversy is measured by the amount claimed in good faith by the plaintiff rather than by the amount ultimately recovered. E. g., Jones v. Landry, 5 Cir., 1967, 387 F.2d 102, 103; Seguros Tepeyac, S. A., Compania Mexicana de Seguros Generales v. Bostrom, 5 Cir., 1966, 360 F.2d 154. Whether the claim is made in good faith is “measured by the standard of legal certainty that the plaintiff cannot recover as much as the jurisdictional amount,” Jones v. Landry, 5 Cir., 1967, 387 F.2d 102, 104, since dismissal for lack of jurisdiction is justified only when it appears to a legal certainty that the plaintiff cannot recover at least that amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Otherwise, the plaintiff’s claim is controlling. If it is for more than $10,000, federal jurisdiction exists even though the face of the complaint reveals a defense to all or part of it, e. g., Anderson v. Moorer, 5 Cir., 1967, 372 F.2d 747, 750 (defense of res judicata), and the plaintiff’s inability to recover in excess of $10,000 neither demonstrates" }, { "docid": "7808046", "title": "", "text": "claims that he is entitled to recover PIP benefits in an amount greater than $50,000.00, the highest coverage on any one policy. In Voyager Casualty Insurance Co. v. King, 172 Ga.App. 269, 323 S.E.2d 4 (1984), cert. denied, No. 41655 (Ga., Nov. 6, 1984), the Georgia Court of Appeals resolved a previously unanswered question of state law by holding that optional PIP benefits could not be “stacked” to permit recovery in an amount greater than the highest coverage under any one policy. As a result of this recent pronouncement by the state appellate court, Bowers is not entitled to additional benefits. Finally, Bowers asserts a claim for statutory penalties, attorney’s fees and punitive damages. Georgia law provides that insurance benefits must be paid within thirty days after the insurer receives reasonable proof of the fact and amount of the loss obtained or the insurer shall be liable for a penalty not exceeding twenty-five percent of the amount due plus reasonable attorney’s fees. In addition, if the delay exceeds sixty days the insurer is subject to punitive damages. In either case, the insurer may avoid liability by proving that the failure to pay was in good faith. O.C. G.A. § 33-34-6. Bowers contends that Continental is liable for these statutory penalties, attorney’s fees and punitive damages because it failed to pay him the $6,250.00 it admitted it owed within the requisite time period. In interpreting this statute, a part of Georgia’s no-fault automobile insurance act, Georgia courts have drawn on eases construing O.C.G.A. § 33-4-6, a similar law applying generally to bad faith refusals to pay by insurers. See, e.g., Bituminous Casualty Corp. v. Mowery, 145 Ga.App. 45, 244 S.E.2d 573 (1978). Georgia courts read this latter statute as requiring, as a condition to recovering bad faith damages, that the 30- or 60-day period lapse before the date suit is filed. See, e.g., Life Insurance Co. v. Burke, 219 Ga. 214, 222, 132 S.E.2d 737, 742 (1963); Cotton States Mutual Insurance Co. v. Clark, 114 Ga. App. 439, 446, 151 S.E.2d 780, 786 (1966). Because Bowers submitted his initial demand letter" }, { "docid": "23203312", "title": "", "text": "showing that, as a legal certainty, [the] plaintiff cannot recover the jurisdictional amount.” American Mut. Liab. Ins. Co. v. Campbell Lumber Mfg. Corp., 329 F.Supp. 1283, 1285 (N.D.Ga.1971) (citing Jones v. Landry, 387 F.2d 102 (5th Cir.1967)). Hence, while Tong-kook’s subjective “good faith” is one of the factors to assess in determining subject-matter jurisdiction, “good faith” alone does not control where it is apparent that, “to a legal certainty,” Tongkook could not recover the requisite jurisdictional amount, and the case should be dismissed for want of jurisdiction.... However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiffs good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved ... in favor of the subjective good faith of the plaintiff. Patton, 240 F.2d at 426; see also Wiggins v. North Am. Equitable Life Assurance Co., 644 F.2d 1014, 1017 (4th Cir.1981) (quoting Patton, supra at 426); Maryland Natl Bank v. Nolan, 666 F.Supp. 797 (D.Md.1987) (court lacked diversity jurisdiction when plaintiff knew or should have known that its repossession and sale of vehicle, prior to filing complaint, had reduced debt defendants allegedly owed below the jurisdictional amount). Consistent with the reasoning of the American Mutual Liability ease, the Sixth Circuit has recently held that a “subsequent discovery of the true amount” in controversy, below the minimum statutory jurisdictional amount, required dismissal for lack of subject-matter jurisdiction. See Jones v. Knox Exploration Corp., 2 F.3d 181, 183 (6th Cir.1993). Herein, although Tongkook was apparently unaware of it at the time it sued, it had drawn upon the letter of credit from Ship-ton’s bank prior to the filing of its suit— hence, an event which preceded the commencement of the suit objectively altered the amount of Tongkook’s claim. In a similar circumstance, a federal district court in Texas wrote [the plaintifQ was mistaken when [it] demanded the larger sum.... If [it] had known the true facts, [it] could not have in good faith claimed the amount stated.... [I]t is obvious that a recovery of the jurisdictional amount has been at" }, { "docid": "15763681", "title": "", "text": "in its inception. II. For removal of a state court action to a district court, 28 U.S.C. § 1441 requires that the action be one of which a district court of the United States has “original jurisdiction.” Here jurisdiction is said to lie under 28 U.S.C. § 1332 on the ground that it is between citizens of different states — a fact not at issue — and involves a controversy exceeding the sum of $10,000, exclusive of interest and costs. It is the latter requirement on which this case turns. Ordinarily the jurisdictional amount is determined by the amount of the plaintiff’s original claim, provided that the claim is made in good faith. See McDonald v. Patton, 240 F.2d 424 (4 Cir. 1957). But, as that case stated, on the authority of St. Paul Mercury Indemnity Co. v. Red Cab Co., 308 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938): [I]t has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction .... However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiff’s good faith in asserting the claim. 240 F.2d at 426. In this case, our consideration of Maryland law, which the parties concede is the law to be applied, persuades us that plaintiff, as a matter of “legal certainty,” could not recover punitive damages in this action. If this be true, it follows that at most $9,000 was the amount in controversy and the requisites for diversity jurisdiction were not satisfied. It is plain that plaintiff’s alleged cause of action is for breach of a contract of insurance. The declaration alleges that the conditions of the contract were fulfilled, that the death benefit under the contract is payable and has been demanded, but that defendant has wrongly withheld it. • In a recent decision of the Court of Appeals of Maryland, General Motors Corp. v. Piskor, 281 Md. 627, 381" }, { "docid": "10121675", "title": "", "text": "(4th Cir.1957). But, as that case stated, on the authority of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938): [I]t has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction.... However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiff's good faith in asserting the claim. 240 F.2d at 426. In this case, our consideration of Maryland law, which the parties concede is the law to be applied, persuades us that plaintiff, as a matter of \"legal certainty, \" could not recover punitive damages in this action. If this be true, it follows that al most $9,000 was the amount in controversy and the requisites for diversity jurisdiction were not satisfied. Id. at 1016-17 (emphasis added). Upon closer inspection, Wiggins is not controlling here for a variety of reasons. First, many courts agree the legal certainty lest is the appropriate burden where, as in Wiggins, plaintiff alleges a sum in excess of the jurisdictional minimum. Weddington v. Ford Motor Credit Co., 59 F.Supp.2d 578, 582 (S.D.W.Va.1999) (citing cases). Unlike the plaintiff in Wiggins, however, McCoy alleges a range of sums anywhere between a penny and $74,999.99, purposely pleading just short of the jurisdictional amount. See infra note 6. Second, Wiggins was decided over twenty years ago and did not account for the controversy surrounding Red Cab. Some commentators have even concluded our Court of Appeals has yet to weigh in on the circuit split. See Karns, supra at 1106 n. 97 (stating “the United States Court of Appeals for the Fourth Circuit has not issued an opinion dealing with this question”). Third, the panel in Wiggins apparently deemed itself bound to the legal certainty rule earlier stated in McDonald v. Patton, 240 F.2d 424 (4th Cir.1957), a case quoting and following Red Cab. McDonald, however, did not involve a removal. Rather," }, { "docid": "15763680", "title": "", "text": "that under Maryland law punitive damages can never be recovered in suits alleging pure breach of contract, and that therefore plaintiff could not recover punitive damages in the instant case since she sued to recover damages for an alleged breach of a contract of insurance. In her brief in this court, plaintiff tells us that she acquiesced in the grant of this motion, although the record discloses that she did submit a memorandum opposing it. By short order endorsed in the margin of the motion, the district court struck plaintiff’s claim for punitive damages. Thereupon plaintiff filed a “Petition for Removal,” seeking remand of the case to state court on the ground that the complaint failed to allege the $10,000 amount in controversy required for federal jurisdiction. The district court denied the petition. The case then proceeded to trial, non-jury, and resulted in judgment for defendant (except for the return of premiums, interest, and costs) on the ground that the insured had made material misrepresentations in procuring the policy of insurance thereby voiding the policy in its inception. II. For removal of a state court action to a district court, 28 U.S.C. § 1441 requires that the action be one of which a district court of the United States has “original jurisdiction.” Here jurisdiction is said to lie under 28 U.S.C. § 1332 on the ground that it is between citizens of different states — a fact not at issue — and involves a controversy exceeding the sum of $10,000, exclusive of interest and costs. It is the latter requirement on which this case turns. Ordinarily the jurisdictional amount is determined by the amount of the plaintiff’s original claim, provided that the claim is made in good faith. See McDonald v. Patton, 240 F.2d 424 (4 Cir. 1957). But, as that case stated, on the authority of St. Paul Mercury Indemnity Co. v. Red Cab Co., 308 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938): [I]t has been further recognized that while good faith is a salient factor, it alone does not control; for if it appears to a" }, { "docid": "22254234", "title": "", "text": "required to be submitted to a jury. We did say that “[t]he necessary choice, except in the flagrant ease, where the jurisdictional issue cannot be decided without the ruling constituting at the same time a ruling on the merits, is to permit the cause to proceed to trial.” 270 F.2d at 285. It is our intention to require removal from the trial list of those “flagrant” cases where it can be determined in advance “with legal certainty” that the congressional mandate of a $10,000 minimum was not satisfied. Although adhering to Wade v. Rogala, we have subsequently stated: There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of .the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in “good faith”. * * * * * * [T]he basic criterion for determining “good faith” is that “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. [283] 288-289, 58 S.Ct. [586] 590 [82 L. Ed. 845] (1938). See also Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Brough v. Strathmann Supply Co., Inc., 358 F.2d 374 (3 Cir. 1966). The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a “legal certainty” that he cannot recover an amount above the jurisdictional minimum. Cumberland v. Household Research Corp. of America, 145 F.Supp. 782 (D.Mass.1956); Cohen v. Proctor & Gamble Distributing Co., 16 F.R.D. 128 (D.Del.1954). It follows, therefore, that in order to find a plaintiff’s claim lacking in “good faith”, the court must be able to conclude from the record before him that the plaintiff cannot" }, { "docid": "23203311", "title": "", "text": "In reversing the district court’s ruling, this Court held that when a plaintiff is seeking unliquidated damages in a tort action, a district court should permit the case to proceed and not predetermine whether the plaintiff could recover the minimum statutory amount. Id. at 99-100. Thus, Zacharia and Deutsch both involved claims for uncertain money damages. Where the damages sought are uncertain, the doubt should be resolved in favor of the plaintiffs pleadings. See McDonald v. Patton, 240 F.2d 424, 426 (4th Cir.1957). Here, there is little ambiguity as to the amount Shipton owed Tong-kook — both parties acknowledged that Ship-ton owed Tongkook, at most, approximately $37,000. We accept Tongkook’s assertion that, at the time it instituted suit, it believed the amount in controversy exceeded the statutory jurisdictional amount. However, good faith has an objective element, and we cannot ignore what pre-trial discovery revealed— that from the outset, Tongkook, to a “legal certainty,” could not recover the statutory jurisdictional amount.. A plaintiffs subjective belief, alone, cannot be the controlling factor where, pre-trial, there is “[a] showing that, as a legal certainty, [the] plaintiff cannot recover the jurisdictional amount.” American Mut. Liab. Ins. Co. v. Campbell Lumber Mfg. Corp., 329 F.Supp. 1283, 1285 (N.D.Ga.1971) (citing Jones v. Landry, 387 F.2d 102 (5th Cir.1967)). Hence, while Tong-kook’s subjective “good faith” is one of the factors to assess in determining subject-matter jurisdiction, “good faith” alone does not control where it is apparent that, “to a legal certainty,” Tongkook could not recover the requisite jurisdictional amount, and the case should be dismissed for want of jurisdiction.... However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiffs good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved ... in favor of the subjective good faith of the plaintiff. Patton, 240 F.2d at 426; see also Wiggins v. North Am. Equitable Life Assurance Co., 644 F.2d 1014, 1017 (4th Cir.1981) (quoting Patton, supra at 426); Maryland Natl Bank v. Nolan, 666 F.Supp. 797 (D.Md.1987) (court lacked diversity jurisdiction when plaintiff knew or" }, { "docid": "21807533", "title": "", "text": "Grier, 30 A.D.3d 556, 557, 817 N.Y.S.2d 146, 147 (2d Dep’t 2006)), it would be odd at best to allow the availability of this remedy to be curtailed by the very contract that the plaintiff seeks to rescind. Finally, it is the law of this Circuit that there is a “rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy,” Colavito, 438 F.3d at 221 (citation omitted), and that “[i]f the right of recovery is uncertain, the doubt should be resolved ... in favor of the subjective good faith of the plaintiff,” Tongkook, 14 F.3d at 785-86 (ellipsis in Tongkook) (quoting McDonald v. Patton, 240 F.2d 424, 426 (4th Cir. 1957)). We have also held that “a valid defense does not deprive a federal court of jurisdiction.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982). “Were the law otherwise,” we explained, “the orderly progress of litigation would be disrupted, and ... [i]ssues going to a federal court’s power to decide would be hopelessly confused with the merits themselves.” Id. Therefore, for dismissal to be warranted, “it must appear to a legal certainty from the complaint that the plaintiff cannot recover sufficient damages to invoke federal jurisdiction.” Id. (emphasis added) (citing St. Paul Mercury, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845); see also id. (“[E]ven where [the] allegations leave grave doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted.”); Tongkook, 14 F.3d at 785 (“[T]he legal impossibility of recovery must be so certain as virtually to negative the plaintiffs good faith in asserting the claim.” (quoting Patton, 240 F,2d at 426)). In the case before us, we conclude that “from the face of the pleadings, it is [not] apparent, to a legal certainty, that [Pyskaty] cannot recover [on her rescission claim].” St. Paul Mercury, 303 U.S. at 289, 58 S.Ct. 586. We therefore conclude that the value of this claim, which exceeds $50,000, satisfies the MMWA’s jurisdictional threshold. CONCLUSION For the foregoing reasons, the judgment of the district court" }, { "docid": "2283559", "title": "", "text": "It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” (Emphasis supplied.) And in McDonald v. Patton, 4 Cir., 1957, 240 F.2d 424, at page 426, the court stated: “ * * * [T]he legal impossibility of recovery must be so certain as virtually to negative the plaintiff’s good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved, for jurisdictional purposes, in favor of the subjective good faith of the plaintiff.” In applying the law as set forth in the cases just cited to the basic facts developed by plaintiff in the affidavits submitted, it becomes quite clear that we cannot dismiss this action for lack of jurisdiction. It certainly does not appear to a legal certainty that the claim is really for less than the jurisdictional amount, for what was said by the court in Harris v. Illinois Central Railroad Co., 5 Cir. 1955, 220 F.2d 734, 736, is particularly applicable here: “The proper amount of damages to be sued for in this case cannot be mathematically fixed in advance of the trial; and, for federal jurisdictional purposes, it must be estimated in good faith * * * .” The defendant contends, however, that in determining damages in this type of case under the controlling law of Pennsylvania, many factors must be considered which have not been touched upon in plaintiff’s affidavits, and we quite agree. See our opinion in Johnson v. Baltimore & O. R. Co., D.C.W.D.Pa. 1952, 106 F.Supp. 166 and cases cited therein. However, we are here considering a pretrial motion to dismiss for lack of jurisdictional amount, not a post-trial motion questioning the sufficiency of the evidence to enable a jury to properly fix damages. Plaintiff must prove his case at the trial to be entitled to damages, but at this stage he need only produce sufficient competent evidence to show his good faith in alleging the jurisdictional amount and to preclude a finding “to a legal certainty that the claim is really for less than" } ]
851645
"discussed above, it is hereby ORDERED that the Court reaffirms its Order dated September 18, 2014 (Dkt. No. 160) denying the motions of defendant Johnny Morgan to exclude any evidence at trial of low copy number DNA test results, for sanctions, and to reopen the record (Dkt. Nos. 66, 86). Trial in this matter has been scheduled to commence on November 3, 2014. (See Dkt. No. 133.) SO ORDERED. . Both high and low copy number DNA testing are forms of DNA testing known as ""PCR/STR” DNA analysis or DNA typing. Numerous federal and state court decisions describe PCR/STR DNA typing in great1 detail. These cases include Maryland v. King, - U.S. -, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013); REDACTED and People v. Garcia, 39 Misc.3d 482, 963 N.Y.S.2d 517 (N.Y. Sup.Ct. Bronx Cnty.2013). The Court will assume familiarity with the steps and procedures of standard PCR/STR DNA analysis, as well as basic DNA and genetics terminology. .The Government expert and fact witness, Dr. Craig O’Connor (“O’Connor”), asserted in his testimony that LCN DNA results have been admitted in court over one hundred times. (Hearing Tr. at 79 (""We have a database that we keep in-house of testimonies, and today it’s been over a hundred times that cases with low-copy number testing has [sic] been admitted in court.”).) But the Government did not provide specifics that would permit verification of this assertion. The Court is not aware of any case in which"
[ { "docid": "554502", "title": "", "text": "Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court conducted an evidentiary hearing on the issue from May 7, to May 10, 2001. Upon consideration of the evidence introduced at the Daubert hearing and the parties’ arguments, the court finds that the expert testimony at issue is relevant, reliable, and would assist the jury in making related determinations. Thus, the court will deny the defendant’s motion. The reasons for the court’s decision are set forth in detail below. II. BACKGROUND A. Testifying Experts At the evidentiary hearing, the court heard testimony from three expert witnesses for the government and one expert witness for the defendant. Dr. Bruce Bu-dowle, Brendan Shea, and Dr. Ranajit Chakraborty were called by the government. Dr. William Shields was called by the defendant. Dr. Budowle, the government’s primary witness, is a Senior Scientist at the FBI Laboratory Division in Washington, D.C. Dr. Budowle testified about the basic concepts of DNA, different types of DNA typing, with specific emphasis on the typing and kits used in this case, and other issues concerning the reliability of the typing used in this case. Brendan Shea is a Forensic Examiner employed by the FBI DNA Analysis Unit I. As a forensic examiner, Shea is responsible for supervising a team of biologists that performs the various stages of DNA amplification and analysis. Shea testified about the PCR-STR typing as it was conducted specifically in this case. Dr. Chakraborty is the Allan King Professor of Biological Sciences, Population Genetics, and Biometry at the Human Genetics Center, University of Texas at Houston. Dr. Chakraborty testified about statistics, population genetics, and DNA analysis. The defendant’s witness, Dr. Shields, is a professor at the State University of New York, College of Environmental Science and Forestry. Dr. Shields testified about the reliability of PCR/STR typing as well the reliability of the statistical methods used. B. Description of DNA Testing 1. Basic Concepts of DNA Each human body contains a large number of cells, each of which descends from successive divisions of the fertilized egg that was its origin." } ]
[ { "docid": "18125998", "title": "", "text": "0.2 ng and above the stochastic threshold; the court therefore concluded that no determination on admissibility of LCN testing was required. United States v. Williams, 2009 WL 1704986, *1-3, *5-6 (C.D.Cal.2009) (unpublished). The Williams court had earlier denied the defendant’s motion for a Daubert hearing, holding that the court could conclude on the basis of caselaw and scientific literature that PCR/STR testing was admissible under Daubert and Rule 702 — with the exception of LCN results, on which the court reserved ruling. United States v. Williams, 2008 WL 5382264, *15-17 (C.D.Cal.2008) (unpublished). If there were LCN testing, the court held, an evidentiary hearing would have been required to determine whether LCN results met the standard for admissibility. What Williams illustrates is that a Daubert hearing is not necessary to hold that PCR/ STR testing is admissible under Daubert and Rule 702, but that the reliability and admissibility of LCN testing has not been established. The scientific literature cited by the parties does not give the Court a sound basis for decision. A number of leading authorities in the field take the position that LCN testing is not reliable. [Tr. 5/6/13, pp. 47-50] See, e.g., Bruce Budowle, Low Copy Number Typing Still Lacks Robustness and Reliability, available at http://www. promega.com/resources/articles/profiles-indna/low-copy-numbertyping-still-lacksrobustness-and-reliability (2010) [Defs Ex. B8]. Although the Government cites some authorities as supporting the reliability of LCN testing, these authorities are discussing laboratories using different procedures and methods than the NMDPS Lab; these authorities therefore do not demonstrate that the NMDPS Lab’s procedures and methods yield reliable results. [Doc. No. 547, pp. 29-30; Tr. 5/6/13, pp. 229-32] Articles cited by the Government as demonstrating “general acceptance [of LCN testing] in the scientific field” do not support this claim. [Doc. No. 547, p. 29 (citing A. Lowe et al., Use of Low Copy Number DNA in Forensic Inference, Progress in Forensic Genetics, available at http://www.isfg.org/ffles/31f9316afbc584bc0 befd4454d6cd38c4f064f3a.02004843_ 693490260903.pdf (discussing testing by Forensic Science Service, U.K.); Jennifer J. Raymond et al., Trace DNA Analysis: Do You Know What Your Neighbor Is Doing?: A Multi-Jurisdictional Survey, available at http://www.fsigenetics.com/ artiele/S1872-4973-07.00106-8/fulltext (discussing testing in Australia and New" }, { "docid": "554527", "title": "", "text": "that other forms of DNA typing such as RFLP/VNTR, DQ-alpha, and Polymarker, have all been previously validated as reliable and have previously achieved general acceptance in the scientific community. See Tr. at A64. The government has demonstrated that the PCR amplification of the thirteen STR loci is similar to these predecessor technologies. See Tr. at A63 (explaining that PCR principles are the same regardless of the number of markers tested) and 82 (explaining that the concept of using STR analysis is no different from the concept of typing mixtures under predecessor methodologies). Because the PCR/STR method of typing is related to established reliable methods, the court finds that this is yet another- factor that weighs in favor of a finding of reliability within the meaning of Daubert. 6. Nonjudicial Uses to Which the Method Has Been Put Finally, the government has demonstrated that the typing at issue has been used outside of the judicial context. For exam-pie, the PCR amplification process is used in such fields as medical research and agriculture. See Tr. at A56. STRs have been used in paternity testing, tumor identification, and in the identification of human remains from mass disasters. See Tr. at A127. Again, the court finds that this factor weighs in favor of admitting the expert’s testimony. C. Defendant’s Challenges to Admissibility The defendant challenges the admissibility of the DNA evidence at issue in several ways. First, the defendant challenges the reliability of the PCR amplification process claiming that contamination may occur and the amplified product is only as good as the original sample. The defendant also contests whether the PCR/STR typing used in this case is as reliable with mixed samples. Second, the defendant suggests that the FBI improperly influenced the development of the Cofiler and Profiler Plus kits. Finally, the defendant challenges whether both the PCR/STR typing process and the statistical methods used in this case properly account for error rates. The court will address these issues in turn. 1. General Reliability Challenges a. Contamination The defendant maintains that the “primary concerns with the PCR segment of the process is that contamination" }, { "docid": "18125987", "title": "", "text": "and interpretation caused by four stochastic effects: allele drop-in, allele drop-out, stutter, and heterozygote peak height, imbalance. John M. Butler, Fundamentals of Forensic DNA Typing 331 (2010) [Gov’s Ex. 34 (5/6/13)]. “Trying to generate a reliable STR profile with only a few cells from a biological sample is similar to looking for an object in the mud or trying to decipher the image in a fuzzy photograph.” Id. Interpretation of LCN results is “not straightforward,” and additional interpretive guidelines may be required. Peter Gill, supra, at 229. Laboratories may set an “empirically determined threshold (usually termed a ‘stochastic threshold’)” to establish a sample quantity which puts a sample “in the potential danger zone of unreliable results.” John M. Butler, Advanced Topics in Forensic DNA Typing 339 (Academic Press 2011) [Gov’s Ex. 34a (5/6/13) ]. “For example, if the total amount of measured DNA is below 150 pg, a laboratory may decide not to proceed with PCR amplification assuming that allelic drop-out due to stochastic effects is a very real possibility.” Id. “Alternatively, a laboratory may proceed with testing a low-level DNA sample and then evaluate the peak height signals and peak ratios at heterozygous loci.” Id. Most laboratories in the U.S. do not perform LCN testing. There are few reported U.S. cases on LCN testing. According to a New York court, the New York City Office of the Chief Medical Examiner (N.Y. OCME) is the only government facility currently using LCN testing, but several private and academic laboratories in the U.S. perform LCN testing. People v. Garcia, 39 Misc.3d 482, 963 N.Y.S.2d 517, 521 (NY.Sup.Ct.2013). LCN testing has been used in some other countries, however, for more than thirteen years now. [Doc. No. 547, p. 29] People v. Megnath, 27 Misc.3d 405, 898 N.Y.S.2d 408, 411 (N Y.Sup.Ct.2010). Laboratories often use different procedures for LCN samples. There are cases from New York trial courts holding LCN results admissible — including the case cited by the Government, Megnath, 898 N.Y.S.2d at 413. See also Garcia, 963 N.Y.S.2d at 523. Applying the Frye test, these courts admitted the results of LCN testing" }, { "docid": "18125991", "title": "", "text": "or 200 pg. The focus for the Court, however, is not to establish a definition of “LCN testing,” but to determine whether the Government’s DNA results in this case are reliable and admissible. According to the NMDPS Laboratory’s own protocol, Item 1B23B is declared to contain too small a quantity to yield the normally reliable DNA profile obtained through PCR/STR testing; Item 1B23B, at 215 pg, is below the Lab’s “stochastic threshold” and therefore “in the potential danger zone of unreliable results.” The NMDPS Lab’s SOP sets forth the Lab’s empirically determined stochastic threshold for testing with Identifiler: LOW COPY NUMBER (LCN) SAMPLES Validation studies for both Identifiler and Yfiler STR kits have demonstrated a range of total input amounts of DNA where amplification stochastic effects are observed. For Identifiler, samples with a total input amount of DNA less than 250 picograms (0.25 ng) demonstrate stochastic effects and should be evaluated and interpreted with caution ..... Per CODIS rules, any sample amplified at these amounts or less and injected on a genetic analyzer for 10 seconds is not eligible for entry into CODIS. If the sample is of good enough quality at a 5 second injection for entry into CO-DIS, the analyst should print the electropherograms from both the 5 and 10 second injections and include both in the case file for review. The 5 second injection can be used for CODIS entry and the 10 second injection for interpretation on the report. NMDPS Biology SOP, pp. 13-9 to 13-10 (approved 4/1/11) [Defs Ex. N6]. Davis testified that this LCN threshold was set because in validation studies conducted by the NMDPS Lab, testing quantities less than 250 pg resulted in stochastic effects. [Tr. 5/6/13, p. 131] Watson testified that each laboratory generally establishes its own stochastic threshold for quantity of input DNA, and that this threshold will vary from lab to lab depending on the procedures and instruments used. [Tr. 5/6/13, pp. 65-66] The NMDPS Lab also set a stochastic threshold based on the height of the electropherogram peaks, establishing as too low for interpretation peaks below 100 relative fluorescent" }, { "docid": "18125876", "title": "", "text": "Frye test, that PCR/STR testing is “generally accepted in the relevant scientific community”). The Whittey court observed that “PCR-based STR DNA testing is recognized and used in virtually every State and by the Federal Bureau of Investigation.” Whittey, 821 A.2d at 1094. A New Jersey court observed: “It would appear that every appellate court in the nation that has addressed the issue has accepted the scientific reliability of STR technology.” State v. De loatch, 354 N.J.Super. 76, 804 A.2d 604, 613 (N.J.Super.Ct. Law Div.2002) (applying Frye); see Wilson v. Sirmons, 536 F.3d 1064, 1102 (10th Cir.2008) (“Numerous federal and state courts as well as scientific investigators have found that PCR DNA analysis is reliable.”). Acceptance of PCR/STR testing by the courts indicates that this evidence is reliable. United States v. Goxcon-Chagal, 885 F.Supp.2d 1118, 1137 (D.N.M.2012). Although a reliability assessment under Daubert does not require determination that the methodology is “generally accepted” in the relevant scientific community, the Daubert Court stated that widespread acceptance is one of the factors in favor of admissibility under Rule 702. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. For this reason, cases holding that PCR/STR testing is “generally accepted” under the elevated Frye test are persuasive support for the conclusion that this methodology is reliable under Rule 702 and Daubert. In 2009, the National Research Council stated that “nuclear DNA analysis ... has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” NRC (2009), p. 7. DNA typing is “universally recognized as the standard against which many other forensic individualization techniques are judged.” Id. at 130. “DNA enjoys this preeminent position because of its reliability and the fact that, absent fraud or an error in labeling or handling, the probabilities of a false positive are quantifiable and often minuscule.” Id. at 130. Daubert recognized that “theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice.” Daubert, 509 U.S. at" }, { "docid": "3762871", "title": "", "text": "of the court’s response, the jurors decided to order dinner. At approximately 8:00 PM, they returned with a verdict finding Traía guilty on all charges. App.1967, 1969-72. This appeal followed. II A. Expert Testimony Relating to PCR/ STR DNA Typing Trala’s primary argument is that the district court erred by admitting DNA evidence linking him to the knit cap found near the scene of the robbery. He argues that PCR/STR DNA typing does not meet the standard for scientific reliability under Federal Rule of Evidence 702 and Daubert when applied to mixed DNA samples. “We review the decision to admit or reject expert testimony under an abuse of discretion standard.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003). After careful examination of the record, we conclude that there was no abuse of discretion. We hold that the PCR/STR DNA typing utilized in this case does in fact meet the standards for reliability and admissibility set forth in Federal Rule of Evidence 702 and Daubert. In Daubert, the U.S. Supreme Court interpreted and applied Rule 702, which replaced the common law rule requiring “general acceptance” for the admissibility of scientific evidence with a standard requiring an “assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 586, 592-3. The Court held that “the Rules of Evidence-espeeially Rule 702-do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597, 113 S.Ct. 2786. In light of this, we note that the district court’s painstaking opinion provides a thorough and compelling analysis of the court’s rejection of Trala’s challenges to the DNA evidence. We conclude that the court did not abuse its discretion in admitting the DNA evidence substantially for the reasons Judge Sleet sets forth in his opinion. See 162 F.Supp.2d 336 (D.Del.2001). B. The Jury’s Question about Continuing Deliberations" }, { "docid": "554509", "title": "", "text": "replication of the target sequence. In this third step, a type of enzyme called a polymerase becomes active. In essence, the polymerase facilitates repeated additions of bases to the primer until a new, complimentary strand of the targeted DNA locus is created. This process is repeated a number of times, creating an exponentially increasing number of copies of the targeted area of the original DNA. Eventually, the PCR amplification process yields a sufficient quantity of the DNA sample to be typed. If the laboratory wants to type the DNA sample at multiple sites, it can add additional primers which will bind simultaneously to their respective target sites. This process is known as multiplexing. According to Dr. Budowle, multiplexing allows the laboratory to minimize the chance of human error and contamination in the PCR process. Using current technology, the FBI laboratory can multiplex up to fifteen or sixteen markers with reliable results. b. Short Tandem Repeats The PCR process is performed to amplify a targeted locus (or loci) for analysis. These loci are selected because they are polymorphic, thus, making them amenable to typing. One group of such loci involve a class of repeated units, distributed widely throughout the DNA structure, known as short tandem repeats (“STRs”). A tandem repeat involves multiple copies of an identical DNA sequence arranged in direct succession in a particular region of a chromosome. A STR is a tandem repeat in which the core repeat units are just a few base pairs. Loci containing STRs are scattered throughout the chromosomes in enormous numbers. Such loci have a fairly large number of alleles and are usually capable of unique identification. See Commonwealth v. Rosier, 425 Mass. 807, 685 N.E.2d 739, 742 (1997). Once the amount of DNA is amplified by the PCR process; the analyst proceeds to identify fragments of different sizes by their migration in an electric field. In order to detect variations, analyst use a process known as electrophoresis. During the PCR amplification of the STR fragments, the primers that are used contain fiourescent tags, which become incorporated into the STR fragments during amplification. During" }, { "docid": "18125990", "title": "", "text": "(often increasing the number of PCR cycles from 28 to 31 or 34); or (3) DNA profile appearance exhibiting increased imbalance of observed alleles. John M. Butler, Advanced Topics, supra, at 311 [Gov’s Ex. 34a (5/6/13) ]. “In all these definitional approaches, it is recognized that data reliability is inferior when lower amounts of DNA are tested and thus additional measures must be taken to improve the chance of obtaining results that accurately reflect the sample being examined.” Id. at 311-12. Another recognized authority states that “LCN typing is better defined as the analysis of any results below the stochastic threshold for normal interpretation.” Bruce Budowle et al., Low Copy Number — Consideration and Caution, FBI Lab. Div. No. 01-26, p. 1 (2001) [Defs Ex. 07]. “The success rate is low; often the results cannot be interpreted or are meaningless for the case.” Id. at 4. The Government presented testimony on definitions of LCN testing, appearing to take the position that LCN generally refers to modifications of procedure, or testing of quantities below 100 pg or 200 pg. The focus for the Court, however, is not to establish a definition of “LCN testing,” but to determine whether the Government’s DNA results in this case are reliable and admissible. According to the NMDPS Laboratory’s own protocol, Item 1B23B is declared to contain too small a quantity to yield the normally reliable DNA profile obtained through PCR/STR testing; Item 1B23B, at 215 pg, is below the Lab’s “stochastic threshold” and therefore “in the potential danger zone of unreliable results.” The NMDPS Lab’s SOP sets forth the Lab’s empirically determined stochastic threshold for testing with Identifiler: LOW COPY NUMBER (LCN) SAMPLES Validation studies for both Identifiler and Yfiler STR kits have demonstrated a range of total input amounts of DNA where amplification stochastic effects are observed. For Identifiler, samples with a total input amount of DNA less than 250 picograms (0.25 ng) demonstrate stochastic effects and should be evaluated and interpreted with caution ..... Per CODIS rules, any sample amplified at these amounts or less and injected on a genetic analyzer for 10" }, { "docid": "18125986", "title": "", "text": "at this hearing. The Court had directed the parties to address a number of questions on LCN testing — including admissibility of DNA evidence on Item 1B23B, and whether evidence from any other samples, including mixed samples, constitutes LCN testing “with respect to any contributor for whom the Government intends to introduce testing results.” [Doc. No. 895, p. 2] The Court heard testimony from three witnesses: Dr. William Watson and Carrie Zais Davis for the Government, and Dr. Dan Krane for Defendant. The Court admitted into evidence approximately 100 additional exhibits. [Tr. 5/7/13, pp. 403-04] When there is too small a sample, the DNA testing (which would otherwise be reliable and yield results admissible under Daubert and Rule 702) may yield unreliable and non-reproducible results because of the significant increase in stochastic effects. See, e.g., Peter Gill, Application of Low Copy Number DNA Profiling, 42(3) Croatian Med. J. 229, 229-30 (2001) [Defs Ex. P7; Gov’s Ex. 9 (5/6/13); Tr. 5/6/13, p. 67]. LCN testing carries a greater potential for error due to difficulties in analysis and interpretation caused by four stochastic effects: allele drop-in, allele drop-out, stutter, and heterozygote peak height, imbalance. John M. Butler, Fundamentals of Forensic DNA Typing 331 (2010) [Gov’s Ex. 34 (5/6/13)]. “Trying to generate a reliable STR profile with only a few cells from a biological sample is similar to looking for an object in the mud or trying to decipher the image in a fuzzy photograph.” Id. Interpretation of LCN results is “not straightforward,” and additional interpretive guidelines may be required. Peter Gill, supra, at 229. Laboratories may set an “empirically determined threshold (usually termed a ‘stochastic threshold’)” to establish a sample quantity which puts a sample “in the potential danger zone of unreliable results.” John M. Butler, Advanced Topics in Forensic DNA Typing 339 (Academic Press 2011) [Gov’s Ex. 34a (5/6/13) ]. “For example, if the total amount of measured DNA is below 150 pg, a laboratory may decide not to proceed with PCR amplification assuming that allelic drop-out due to stochastic effects is a very real possibility.” Id. “Alternatively, a laboratory may" }, { "docid": "554528", "title": "", "text": "STRs have been used in paternity testing, tumor identification, and in the identification of human remains from mass disasters. See Tr. at A127. Again, the court finds that this factor weighs in favor of admitting the expert’s testimony. C. Defendant’s Challenges to Admissibility The defendant challenges the admissibility of the DNA evidence at issue in several ways. First, the defendant challenges the reliability of the PCR amplification process claiming that contamination may occur and the amplified product is only as good as the original sample. The defendant also contests whether the PCR/STR typing used in this case is as reliable with mixed samples. Second, the defendant suggests that the FBI improperly influenced the development of the Cofiler and Profiler Plus kits. Finally, the defendant challenges whether both the PCR/STR typing process and the statistical methods used in this case properly account for error rates. The court will address these issues in turn. 1. General Reliability Challenges a. Contamination The defendant maintains that the “primary concerns with the PCR segment of the process is that contamination may often occur and that the amplified product is only as good as the original sample.” The defendant supports this claim by citing to twenty-five published articles. In citing to these articles, the defendant states that “[o]utside the forensic realm notice has been made of problems that have occurred with PCR as a starting process.” While these problems may be true outside the forensics realm, the government presented ample evidence at the hearing that the FBI protocol for PCR/ STR analysis contains substantial controls and procedures for preventing contamination. Because there is evidence that the government has taken steps to prevent contamination of the DNA sample, the court concludes that the defendant’s vague, broad assertion that samples amplified by the PCR can become contaminated does not warrant the exclusion of the DNA evidence in this case. b. Procedures Used in this Case The defendant also characterizes the FBI’s protocols as “watered down.” The defendant further alleges that the FBI examiner in this case, Brendan Shea, was “not required to note whether he followed the [FBI’s]" }, { "docid": "18125878", "title": "", "text": "592 n. 11, 113 S.Ct. 2786. On this basis, a number of courts have held that it is proper to take judicial notice of the reliability of PCR/STR analysis, even under the restrictive Frye test. See, e.g., United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996); Butterfield, 27 P.3d at 1142-43. Considering the Daubert factors, it is clear that the PCR/STR method can be and has been extensively tested, it has been subjected to peer review and publication, there is a low error rate according to NRC (2009), and there are controls and standards in place. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; see Trala, 162 F.Supp.2d at 347, 350 (FBI’s PCR/STR methodology has low to zero error rate, and controls are followed). As shown by the citations of cases and scientific authorities above, the PCR/STR method has gained extremely “widespread acceptance” — which is “an important factor” in reaching the conclusion that this is a method reliable enough to meet the standard for admissibility under Daubert and Rule 702. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. Based on overwhelming scientific and forensic acceptance, as well as acceptance by the vast majority of courts, this Court concludes that the PCR/STR method of DNA typing is reliable and admissible under Rule 702 and Daubert. D. Application of PCR/STR Methodology 1. Legal Standard Defendant raises the issue of how intensively and extensively the trial court reviews proposed expert evidence in its gatekeeping function. The Government distinguishes between review of the methodology itself (i.e.,-.the PCR/STR method of DNA testing); and review of the application of that methodology (e.g., the kits, software, hardware, and statistics). The Government’s position is that once the PCR/STR methodology is held admissible under Daubert and Rule 702, challenges to the particular procedures and instrumentalities used in applying that method go primarily to the weight of the DNA evidence and not to admissibility. Defendant essentially argues that no distinction should be made between methodology and application, and that exactly the same analysis under Daubert applies to the PCR/STR methodology and to each part of the procedure. Defendant" }, { "docid": "554503", "title": "", "text": "used in this case, and other issues concerning the reliability of the typing used in this case. Brendan Shea is a Forensic Examiner employed by the FBI DNA Analysis Unit I. As a forensic examiner, Shea is responsible for supervising a team of biologists that performs the various stages of DNA amplification and analysis. Shea testified about the PCR-STR typing as it was conducted specifically in this case. Dr. Chakraborty is the Allan King Professor of Biological Sciences, Population Genetics, and Biometry at the Human Genetics Center, University of Texas at Houston. Dr. Chakraborty testified about statistics, population genetics, and DNA analysis. The defendant’s witness, Dr. Shields, is a professor at the State University of New York, College of Environmental Science and Forestry. Dr. Shields testified about the reliability of PCR/STR typing as well the reliability of the statistical methods used. B. Description of DNA Testing 1. Basic Concepts of DNA Each human body contains a large number of cells, each of which descends from successive divisions of the fertilized egg that was its origin. Virtually all non-reproductive cells in the body contain identical copies of a complex structure called deoxyribonucleic acid or, DNA. This structure represents the genetic code for that individual. The DNA is in the form of microscopic chromosomes, which are located in the nucleus of a cell. A chromosome is a thread of DNA surrounded by other materials, mainly protein. A fertilized egg contains 23 chromosomes, with one member of each pair being contributed by the mother and father, respectively. Each cell contains identical, duplicates of the 46 cells from the fertilized parent cell. Therefore, each cell in the human body has the same DNA. The structure of DNA consists of two strands, coiled in the form of a double helix (i.e., a twisted ladder). Each strand is composed of a string or a sequence of nucleotide bases held together by a sugar-phosphate backbone. To use the ladder metaphor, running between the sugar-phosphate strands (the side rails of the ladder) are billions of rungs, each of which is composed of two bases. There are only four" }, { "docid": "554507", "title": "", "text": "given population. 2. Description of DNA testing In this case, the laboratory used a method of DNA typing known as PCR/STR typing. In PCR/STR typing, a process known as polymerase chain reaction, or PCR, is used to amplify targeted loci of the sample of DNA by replicating the process by which DNA duplicates itself naturally. Thus, the lab is able to produce a substantial number of specific, targeted segments of DNA which can then be typed and compared. Short Tandem Repeats, or STRs, are a group of loci which are used to type and compare the DNA. Finally, statistics are used to evaluate how likely it is that a similar match would occur if the DNA sample were drawn randomly from the population. The court will briefly further describe the typing methods used below. a. PCR Amplification Process PCR, a sample preparation technique, is a laboratory process for copying a short segment of DNA millions of times. The PCR process is analogous to the process by which cells replicate their DNA naturally. See United States v. Gaines, 979 F.Supp. at 1435. By using this process, a lab can produce a substantial number of specific, targeted segments of DNA which can then be typed and compared. PCR allows the laboratory to amplify only those specific DNA regions which exhibit genetic variations within the population, allowing for DNA typing. Moreover, the PCR process enables the analysis of very tiny amounts of DNA. PCR also permits the analysis of old and/or degraded DNA samples. The PCR process is comprised of three steps. First, the double-stranded segment of DNA is separated, or denatured, into two strands by heating. This denatured DNA strand forms a template that can allow the manufacture of a new strand that is identical to its former complimentary strand. Next, each of the single-strand segments are hybridized with primers. Primers are short DNA segments that are designed to bind with the template at particular loci. The primers are designed to compliment a sequence just outside of a target sequence of bases. Finally, each primer selves as a starting point for the" }, { "docid": "14890694", "title": "", "text": "of review for a trial court’s decisions regarding the admissibility of evidence, including DNA evidence, is abuse of discretion. See United States v. Johnson, 56 F.3d 947, 952 (8th Cir.1995). This Court has already taken judicial notice of the reliability of the general theory and techniques of DNA profiling, and specifically the use of the restriction fragment length polymorphism (RFLP) procedure. See United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir.1993) (citing United States v. Jakobetz, 955 F.2d 786, 799-800 (2d Cir.), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992)), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994). The PCR method, however, has not previously been reviewed by this Court. Thus, the District Court appropriately held an evidentiary hearing under standards announced in Daubert to determine whether the PCR method is reliable and whether the proffered DNA evidence would be admitted. See id. At the Daubert hearing, which consumed more than three days, the District Court heard expert witnesses for both the government and the defense and received numerous exhibits. Based on the evidence adduced at the hearing, the court, having considered defendant’s objections to the government’s proffered DNA evidence, found the evidence admissible. In its written order, the court carefully set forth its particularized findings regarding the PCR method of DNA typing. These findings provide a concise summary of this method of DNA testing, and we quote them in full, omitting only the District Court’s footnotes. The PCR method is based upon the natural DNA replication process. By utilizing the PCR method, one can produce a substantial number of specific segments of human DNA which can then be typed. Because 99 percent of the DNA molecule is the same for every individual, the DNA segments amplified for purposes of PCR DNA typing are ones which exhibit genetic variation within the population. These variations provide the basis for DNA typing. The PCR method recognizes that the base pairs along the DNA molecule are joined by hydrogen bonds which can be broken by heating. When exposed to heating, the two complementary strands" }, { "docid": "18126026", "title": "", "text": "were a single-source sample. [Tr. 5/6/13, pp. 174-76] Davis testified, however, that the NMDPS Lab’s definition of an LCN sample simply looks to the total quantity of DNA in the sample. Davis insisted that “by definition,” a mixed sample containing more than 250 pg did not constitute LCN testing even though there might be less than 250 pg from one or more of the contributors. [Tr. 5/6/13, pp. 175-76, 182] Government Counsel clearly demonstrated the Government’s position that the NMDPS Lab just says what constitutes LCN testing, and anything not defined by the Lab as LCN testing deserves to be granted the same level of reliability as PCR/STR testing on greater quantities. [Tr. 5/6/13, p. 183; Doc. No. 547, p. 28 n. 30 (relying on NMDPS Lab’s declaration that quantities greater than 250 pg are not LCN) ] Davis provided no explanation for this approach, and failed to explain why-reliable results would be expected for an individual who contributed less than 250 pg to a mixed sample — when stochastic effects and unreliable results would be expected from less than 250 pg in a single-source sample. In Exhibit 34a, submitted by the Government, an authoritative expert explained that the same concerns regarding LCN testing may apply with a mixed DNA sample even though the total DNA input exceeds the stochastic threshold: Minor Components in Mixtures May Be Low-Level DNA Many DNA analysts may think that low-level DNA analysis does not apply to them because they are running 28-cycle PCR and not examining DNA down at a level of 100 pg or less. However, PCR amplification involving 1 ng total DNA with a two-person mixture and a 9:1 major-to-minor component ratio leaves the minor contributor in the low template range of approximately 100 pg or 15 cells (Table 11.3). Thus minor contributor alleles in this situation could be experiencing stochastic sampling (allele drop-out, etc.) as well as allele masking by the taller major contributor alleles. This fact is important to keep in mind when working with DNA mixtures. John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology 334 (2011) [Gov’s" }, { "docid": "18125879", "title": "", "text": "at 594, 113 S.Ct. 2786. Based on overwhelming scientific and forensic acceptance, as well as acceptance by the vast majority of courts, this Court concludes that the PCR/STR method of DNA typing is reliable and admissible under Rule 702 and Daubert. D. Application of PCR/STR Methodology 1. Legal Standard Defendant raises the issue of how intensively and extensively the trial court reviews proposed expert evidence in its gatekeeping function. The Government distinguishes between review of the methodology itself (i.e.,-.the PCR/STR method of DNA testing); and review of the application of that methodology (e.g., the kits, software, hardware, and statistics). The Government’s position is that once the PCR/STR methodology is held admissible under Daubert and Rule 702, challenges to the particular procedures and instrumentalities used in applying that method go primarily to the weight of the DNA evidence and not to admissibility. Defendant essentially argues that no distinction should be made between methodology and application, and that exactly the same analysis under Daubert applies to the PCR/STR methodology and to each part of the procedure. Defendant argues that, before DNA evidence can be admitted, the Government must prove that each step in the procedure and each item used in the procedure meet the Daubert test for scientific reliability. [Doc. No. 442, pp. 87-99] The Court concludes that the caselaw, together with the policy and principles underlying Rule 702 and Daubert, supports the Government’s position. As the Court concludes in Section IV(C) above, the PCR/STR methodology is reliable and admissible under Rule 702 and Daubert; Defendant’s challenges to the application of that methodology go primarily to the weight of the DNA evidence, not its admissibility. (a) Tenth Circuit caselaw The Government states that the NMDPS Laboratory used: Quantifiler Duo DNA Quantification Kit; AmFISTR Identifiler PCR Amplification Kit; Applied Biosystems 7500 Real-Time PCR SDS Software, version 1.2.3.; Applied Biosystems 3130 Genetic Analyzer Data Collection Software, version 3.0; Applied Biosystems GeneMapper ID Software, version 3.2; FBI Popstats software, version 5.7.4; ABI Prism 3130 Genetic Analyzer. [Doc. No. 547, pp. 7-8] The Government states that the “systems and machines” used are “the industry standard for" }, { "docid": "18125877", "title": "", "text": "702. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. For this reason, cases holding that PCR/STR testing is “generally accepted” under the elevated Frye test are persuasive support for the conclusion that this methodology is reliable under Rule 702 and Daubert. In 2009, the National Research Council stated that “nuclear DNA analysis ... has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” NRC (2009), p. 7. DNA typing is “universally recognized as the standard against which many other forensic individualization techniques are judged.” Id. at 130. “DNA enjoys this preeminent position because of its reliability and the fact that, absent fraud or an error in labeling or handling, the probabilities of a false positive are quantifiable and often minuscule.” Id. at 130. Daubert recognized that “theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice.” Daubert, 509 U.S. at 592 n. 11, 113 S.Ct. 2786. On this basis, a number of courts have held that it is proper to take judicial notice of the reliability of PCR/STR analysis, even under the restrictive Frye test. See, e.g., United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996); Butterfield, 27 P.3d at 1142-43. Considering the Daubert factors, it is clear that the PCR/STR method can be and has been extensively tested, it has been subjected to peer review and publication, there is a low error rate according to NRC (2009), and there are controls and standards in place. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; see Trala, 162 F.Supp.2d at 347, 350 (FBI’s PCR/STR methodology has low to zero error rate, and controls are followed). As shown by the citations of cases and scientific authorities above, the PCR/STR method has gained extremely “widespread acceptance” — which is “an important factor” in reaching the conclusion that this is a method reliable enough to meet the standard for admissibility under Daubert and Rule 702. Daubert, 509 U.S." }, { "docid": "554506", "title": "", "text": "beings share more biological similarities than differences. Thus, over 99% of human DNA does not vary from person to person. Each person’s DNA, however, has certain regions where the rungs of the ladder will be different. This area where a locus is different is polymorphic. The possible arrangements of base pairs that could occur in one of these polymorphic areas (i.e., the alternative forms of a gene that an individual could possess) are known as alleles. These alleles can result from differences in single base pairs, differences in multiple base pairs, or differences in the number of base pairs found in a given region. The individual genetic makeup described by the alleles is known as the genotype. In forensic analysis, the genotype for a group of analyzed loci is called the DNA profile. When a sample of DNA is typed, the lab examiner looks at predetermined polymorphic loci, identifies the alleles that make up the DNA sequence at those polymorphic loci, and then determines how likely it is for this sequence to appear in a given population. 2. Description of DNA testing In this case, the laboratory used a method of DNA typing known as PCR/STR typing. In PCR/STR typing, a process known as polymerase chain reaction, or PCR, is used to amplify targeted loci of the sample of DNA by replicating the process by which DNA duplicates itself naturally. Thus, the lab is able to produce a substantial number of specific, targeted segments of DNA which can then be typed and compared. Short Tandem Repeats, or STRs, are a group of loci which are used to type and compare the DNA. Finally, statistics are used to evaluate how likely it is that a similar match would occur if the DNA sample were drawn randomly from the population. The court will briefly further describe the typing methods used below. a. PCR Amplification Process PCR, a sample preparation technique, is a laboratory process for copying a short segment of DNA millions of times. The PCR process is analogous to the process by which cells replicate their DNA naturally. See United States" }, { "docid": "18125995", "title": "", "text": "the standard for admissibility under Daubert and Rule 702. Second, and more important, other laboratories use different procedures; even if it were shown that their LCN results were reliable, that would say nothing about whether the LCN results from the NMDPS Lab procedures are reliable. [Tr. 5/7/13, pp. 229-33 (Krane testifying that other labs modify their procedures and/or their statistical calculations for LCN testing); Tr. 5/6/13, pp. 14, 16-18, 22-29 (Watson testifying that other labs generally use modified procedures) ] There are many cases addressing admissibility in general of the PCR/STR method of DNA analysis, as discussed above; based on its acceptance by the vast majority of courts and overwhelming scientific and forensic acceptance, the Court concluded that PCR/STR analysis is reliable and admissible under Daubert and Rule 702. In contrast, there are few reported cases on admissibility of LCN testing under Daubert and Rule 702, and the scientific literature is unclear and often addresses different procedures. The Government cites one case from the Supreme Court of Queens County, New York, People v. Megnath, 27 Misc.3d 405, 898 N.Y.S.2d 408 (N.Y.Sup.Ct.2010). [Doc. No. 547, p. 30] After an evidentiary hearing, the Megnath court held that the LCN test results from the New York Office of the Chief Medical Examiner (N.Y. OCME) were admissible under Frye. Defendant erroneously argues, [Doc. No. 562, pp. 8-9] that Megnath is not persuasive because it was decided under Frye; the case, however, would be more persuasive for admissibility under Daubert, since LCN testing was held to satisfy the more restrictive Frye test. But Megnath is not persuasive, for a number of reasons. First, the N.Y. OCME uses different procedures and interpretive methods than the NMDPS Lab; for instance, the N.Y. OCME increased the number of amplification cycles from 28 to 31. Second, the N.Y. OCME has done extensive internal validation of its LCN testing and has received certification and approval for it, Garcia, 963 N.Y.S.2d at 521-22; no similar certification and approval has been demonstrated for LCN testing as performed by the NMDPS Lab. Third, the Megnath court held an evidentiary hearing and based its" }, { "docid": "18125856", "title": "", "text": "presented to the jurors to allow them to determine the weight and credibility of the expert evidence; Defendant therefore has the right to have the jury hear this evidence. See Nichols, 169 F.3d at 1263-64. The evidence which would be presented at a separate, pretrial Daubert hearing can be presented to the jury at trial. The Court emphasizes that the Government must lay the foundation for admissibility under Daubert before any expert opinions or conclusions are given. See Nichols 169 F.3d at 1263; Fed.R.Evid. 705 (court can order that expert first testify to underlying facts or data, before giving opinion). This ruling applies to all DNA evidence; in addition, with regard to evidence from mixed samples, the Government is ordered to lay a foundation demonstrating that the DNA result does not constitute LCN testing with respect to any contributor for whom the Government wants to introduce a DNA result. Defendant’s motion for a separate, pretrial Daubert hearing on issues other than LCN testing is denied. III. DNA TESTING IN THIS CASE The Government states that the NMDPS DNA Laboratory used the following in this case: Quantifiler Duo DNA Quantification Kit; AmFISTR Identifier PCR Amplification Kit; Applied Biosystems 7500 Real-Time PCR SDS Software, version 1.2.3.; Applied Biosystems 3130 Genetic Analyzer Data Collection Software, version 3.0; Applied Biosystems GeneMapper ID Software, version 3.2; FBI Popstats software, version 5.7.4; ABI Prism 3130 Genetic Analyzer. [Doc. No. 547, pp. 7-8] The Identifier kit amplifies fifteen STR loci, including the thirteen core DNA markers used in the Combined DNA Index System (CODIS), and two internationally accepted STRs. [Gov’s Ex. 14 (6/25/12) ] As the Government points out, some of Defendant’s arguments and challenges concern procedures not used in this case, and they need not be addressed by this Court. IV. ADMISSIBILITY OF DNA EVIDENCE A. Legal Standard Governing Admissibility Under Daubert and Rule 702 The admission of expert testimony is governed by Federal Rule of Evidence 702 and the Rule’s interpretation by the Supreme Court in Daubert, Joiner, and Kumho Tire. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d" } ]
266180
].” United States v. Catena, 500 F.2d 1319, 1323 (3rd Cir.1974). “[I]t is well-established that [18 U.S.C.] § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged.” United States v. Hopkins, 916 F.2d 207, 215 (5th Cir.1990) (upholding conviction for filing false statement with FEC). It appears that only one court has squarely addressed the question raised by Rosen of the appropriate venue for a prosecution under §§ 1001 and 2 for causing a false statement to be made the FEC. In REDACTED a defendant was charged with causing the treasurers of political campaign committees to file reports containing false information with the FEC, in violation of §§ 1001 and 2(b). The District Court rejected his claim that proper venue existed only in Washington, D.C. Instead, the Court held that “the scheme to cause false reports to be filed and all of the causative acts were carried out in the Eastern District of Pennsylvania,” and therefore under 18 U.S.C. § 3237(a), venue was proper in Pennsylvania. Although on appeal the Curran decision was vacated, the Court nevertheless finds its reasoning on the venue issue persuasive. Neither party cited another decision, United States v. Hopkins, 916 F.2d 207, 216 (5th Cir.1990), involving a conviction for
[ { "docid": "3901797", "title": "", "text": "knew it to be false. Thus, the government is required to show that the misrepresentation was not made innocently or inadvertently. The government concedes that the false statements at issue here were the contributor lists submitted by various campaign treasurers to the Federal Election Commission. Defendant did not prepare or file such reports, and consequently, he did not make the false statements to the Commission. The defendant’s conduct, therefore, did not fall directly within the scope of section .1001. To bridge that gap, the government used section 2(b) in conjunction with section 1001 to charge defendant with causing the campaign treasurers to file false reports. Section 2(b) prohibits “willfully causing] an act to be done which if directly performed by ... another would be an .offense against the United States....” The use of section 2(b) as the necessary link to convict defendant, however, posed an additional problem for the government. When a defendant’s culpability is based, not on his own communications with the federal agency, but on information furnished to the agency by an intermediary, the element of intent takes on a different cast than it does if a direct violation of section 1001 is asserted. A defendant charged under section 2(b) with willfully causing another person to file a false report, can be convicted even if that intermediary was unaware that the document was inaccurate. United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1097 (3d Cir.1989). Section 2(b) imposes criminal liability on those who possess the mens rea to commit an offense and cause others to violate a criminal statute. See id.; United States v. Heyman, 794 F.2d 788, 791 (2d Cir.1986). Under section 2(b), the intermediary committing the actus reus, the physical aspect of a crime, may be blameless and, therefore, is not the person whom society seeks to punish. To fix blameworthiness on the actual malefactor, section 2(b) merges the mens rea and actus reus elements and imposes liability on the person possessing the “evil intent” to cause the criminal statute to be violated. See United States v. Richeson, 825 F.2d 17, 20 (4th" } ]
[ { "docid": "3386566", "title": "", "text": "items. The jury was entitled to infer from the defendants’ elaborate scheme for dis guising their corporate political contributions that the defendants deliberately conveyed information they knew to be false to the Federal Election Commission. The Hopkins also contend that if false reports were made, they did not make them or cause them to be made. While it may be true that the Hopkins themselves did not make the reports, it is clear that they deliberately caused those reports to contain false information. The evidence showed that by keeping him unaware of their scheme, the Hopkins caused another individual, the Treasurer of their political action committee, to report to the Federal Election Commission that the contributions to the political action committee were from individuals. “[I]t is well-established that [18 U.S.C.] § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged.” United States v. Tobon-Builes, 706 F.2d 1092, 1099 (11th Cir.1983). See also United States v. Cure, 804 F.2d 625, 629 (11th Cir.1986). 3. Misapplication of the Funds of an Institution Having Accounts Insured by the FSLIC Counts 4 through 25 of the indictment charged the defendants with violations of 18 U.S.C. § 657, which prohibits the knowing or willfull misapplication of funds of an institution having accounts insured by the FSLIC. Defendants Robert and Morten Hopkins were both convicted on all 22 counts. To establish an offense under § 657, the Government must prove that 1) the defendant was an officer, agent or employee of, or connected in some way with, a savings and loan association whose accounts were insured by FSLIC, 2) that he willfully misapplied funds of the association, and 3) that he acted with intent to injure or defraud the association. United States v. Stovall, 825 F.2d 817, 823 (5th Cir.1987). The Hopkins contend, without force, that the evidence was insufficient to prove that their misapplication of funds was willfull or that they intended to injure or" }, { "docid": "3386565", "title": "", "text": "the Concealment of a Material Fact from the Federal Election Commission Counts 2 and 3 of the indictment charged that the defendants violated, or caused to be violated, 18 U.S.C. § 1001, which prohibits the knowing or willfull concealment of material facts from an agency of the United States. Robert and Morten Hopkins were both convicted on these counts for concealing material facts from the Federal Election Commission in two reports to the FEC from the Hopkins’ political action committee. The Hopkins first contend that the Government did not present sufficient evidence to prove that the defendants' failure to disclose the true source of the political contributions was willfull. The Hopkins’ contention is meritless. The Government may prove that a false representation is made “knowingly and willfully” by proof that the defendant acted deliberately and with knowledge that the representation was false. United States v. Guzman, 781 F.2d 428, 431 (5th Cir.), cert. denied, 475 U.S. 1143, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). The Government here presented ample evidence to establish both of these items. The jury was entitled to infer from the defendants’ elaborate scheme for dis guising their corporate political contributions that the defendants deliberately conveyed information they knew to be false to the Federal Election Commission. The Hopkins also contend that if false reports were made, they did not make them or cause them to be made. While it may be true that the Hopkins themselves did not make the reports, it is clear that they deliberately caused those reports to contain false information. The evidence showed that by keeping him unaware of their scheme, the Hopkins caused another individual, the Treasurer of their political action committee, to report to the Federal Election Commission that the contributions to the political action committee were from individuals. “[I]t is well-established that [18 U.S.C.] § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged.” United States v. Tobon-Builes, 706" }, { "docid": "23440279", "title": "", "text": "of Tobon’s scheme to circumvent reporting requirements. This distinction, however, is not controlling because it is well established that § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged, in this case concealment. See United States v. Pereira, 202 F.2d at 836-37. (Court applies § 2(b) in finding defendant liable as principal under § 18 U.S.C. 2314 for willfully causing innocent bank clerk to mail into interstate commerce a fraudulently obtained check.) Also see United States v. Ruffin, 613 F.2d 408, 412 (2d Cir.1979) (“It is ... clear that under 18 U.S.C. § 2(b) one who causes another to commit a criminal act may be found guilty as a principal even though the agent who committed the act is innocent or acquitted.”); United States v. Catena, 500 F.2d 1319, 1323 (3d Cir.1974) (under § 2(b), a person may be guilty of causing a false claim to be presented to the United States even though he uses an innocent intermediary, e.g., insurance carriers, to actually pass on the claims to the United States); United States v. Lester, 363 F.2d 68, 72-73 (6th Cir.1966), cert. denied 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967); United States v. Inciso, 292 F.2d 374, 378 (7th Cir. 1961). The legislative history behind § 2(b) supports this interpretation. As recognized in Pereira, 202 F.2d 837, the revisor’s note to § 2 of Title 18, as enacted in 1948, indicates that § 2(b) was intended to remove all doubt that one who “causes the commission of an indispensable element of the offense by an innocent agent or instrumentality, is guilty as a principal.” The same revisor’s note also states that § 2(b) was designed to accord with such decisions as United States v. Giles, 300 U.S. 41, 57 S.Ct. 340, 81 L.Ed. 493 (1937). In Giles the Supreme Court affirmed the conviction of a bank teller for violating a statute prohibiting a national bank employee" }, { "docid": "2804229", "title": "", "text": "Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767, 772 (3d Cir.1975)), cert. denied, 513 U.S. 812, 115 S.Ct. 64, 130 L.Ed.2d 21 (1994). C. Defendants contend as a matter of law they could not be convicted of aiding and abetting visa fraud because the government conceded that immigrant workers who presented false information to the INS at West Indies Transport’s instigation lacked criminal intent. We review de novo where the question is one of statutory interpretation. United States v. Schneider, 14 F.3d 876 (3d Cir.1994). The aiding and abetting statute provides, inter alia, that a defendant is liable if he willfully causes an act to be done by another which would be illegal if he did it himself. 18 U.S.C. § 2(b). For this reason, whether the immigrant workers lacked criminal intent is irrelevant so long as West Indies Transport intentionally caused them to submit false information. As the Court of Appeals for the Eleventh Circuit explained, “it is well established that § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged.” United States v. Tobon-Builes, 706 F.2d 1092, 1099 (11th Cir.), reh’g denied, 716 F.2d 914 (1983). See also Springs v. First Nat. Bank of Cut Bank, 835 F.2d 1293 (9th Cir.1988) (“A person who causes the commission of an offense is punishable as a principal even though the person who commits the wrongful act violates no criminal statute because of lack of criminal intent or capacity.”). In United States v. Catena, 500 F.2d 1319 (3d Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 621, 42 L.Ed.2d 641 (1974), a physician was convicted for presenting false Medicare claims to the United States. On appeal, the physician argued that his conviction must be overturned because he did not present the claims to the United States in person. Rather, he submitted the false claims to two insurance companies, which forwarded them to the United States government. We affirmed his" }, { "docid": "7703257", "title": "", "text": "in the Northern District of Texas, where the forms were filed. The court applied the general venue statute (18 U.S.C. § 3237) and stated that “Travis merely limits the general venue statute in instances where Congress has particularly limited jurisdiction to the time of filing.” Id., at 227. The other cases on which Defendant primarily relies besides Travis are also distinguishable. In Reass v. United States, 99 F.2d 752 (4th Cir.1938), defendant was indicted for making false statements to a bank. The documents were prepared, filled out and signed in West Virginia, but submitted in person in Pittsburgh, Pennsylvania. The court reasoned that the “mere assembling of the material and its arrangement in a written composition containing misrepresentations of fact can have no effect [because] it is only when they are communicated to the' lending bank that the crime takes place.” The court held that the entire offense occurred in Pennsylvania, so venue was appropriate only there. Reass involved a loan application. No one is required to apply for a loan. FEC reports, in contrast, are not like loan applications; rather, they must be compiled, maintained and filed. In addition, Reass involved the prosecution of the person who actually made the report, not an individual (like Defendant here) who caused the false reports to be filed by another. The legal wrong that Rosen is charged with involved his manipulation of others (who could have been innocent in their own right) and that manipulation was allegedly undertaken, in part, in the Central District of California. United States v. Katzoff, 268 F.Supp.2d 493, 499 (E.D.Pa.2003) held that in a prosecution for violation of 18 U.S.C. § 1014, the mere preparation and execution of a false statement in one district is insufficient as a matter of law to establish proper venue under § 3237 in that district, because the offense “does not begin until the statement has been imparted to the recipient bank or agency.” Katzoff, too, involved a false bank loan application, not a report — such as those involved here — that the law requires be made and filed. Moreover, Katzoff" }, { "docid": "7703247", "title": "", "text": "misinterprets Travis, that causing false statements to be filed with the FEC in violation of §§ 1001 and 2 is a continuing offense, and that venue is proper where the conduct began, continued or ended. Because some of Rosen’s alleged conduct took place in Los Angeles, it argues, venue is proper in the Central District of California. The Court DENIES Rosen’s motion to dismiss for improper venue. A. General Venue Principles Venue in criminal cases is not a mere matter of formal procedure but raises deep issues of public policy. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944). The government must establish venue by a preponderance of the evidence. United States v. Powell, 498 F.2d 890, 891 (9th Cir.1974). When a defendant has been indicted on multiple counts, venue must be proper for each count. United States v. Pace, 314 F.3d 344, 347 (9th Cir.2002). The Constitution and the Federal Rules of Criminal Procedure provide that a defendant will be tried in the state and district where the charged offense was allegedly committed. Art. III, § 2, clause 3; U.S. Const. Amend VI; Fed.R.Crim.P. 18. In determining where the offense was committed, courts look to the “nature of the crime alleged and the location of the act or acts constituting it.” United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). In making that determination, looking at the “key verbs” that define the criminal offense is helpful. United States v. Mendel, 746 F.2d 155, 164 (2d Cir.1984). Section 1001, under which Rosen is charged, does not contain an express venue provision. Courts have relied on 18 U.S.C. § 3237 to determine venue under § 1001. See United States v. Wiles, 102 F.3d 1043, 1064 (10th Cir.1996). Section 3237(a) provides that: “Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.”" }, { "docid": "23440278", "title": "", "text": "States v. McClanahan, 230 F.2d 919 (5th Cir.1956), cert. denied 352 U.S. 824, 77 S.Ct. 33, 1 L.Ed.2d 47 (1956), the court applied § 2(b) to the concealment provision of § 1001. In that case the defendant was charged under § 1001 and § 2 with willfully and knowingly causing, by scheme, trick, and device, veterans to conceal the fact that they did not intend to occupy premises to be purchased. The defendant’s scheme involved using veterans as straw purchasers of dwellings in order to obtain low-interest Veterans Administration mortgage loans. The defendant caused the veterans to falsely affide to the Veterans Administration that they would occupy the dwellings as homes. Despite the fact that only the veterans had the duty to provide truthful information concerning occupying the homes, McClanahan’s conviction for causing the concealment was upheld. Id., 922-23. The instant case is admittedly distinguishable from the McClanahan case in one respect. Unlike in McClanahan, here those who had a legal duty to disclose — the financial institutions — were wholly innocent, having no knowledge of Tobon’s scheme to circumvent reporting requirements. This distinction, however, is not controlling because it is well established that § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged, in this case concealment. See United States v. Pereira, 202 F.2d at 836-37. (Court applies § 2(b) in finding defendant liable as principal under § 18 U.S.C. 2314 for willfully causing innocent bank clerk to mail into interstate commerce a fraudulently obtained check.) Also see United States v. Ruffin, 613 F.2d 408, 412 (2d Cir.1979) (“It is ... clear that under 18 U.S.C. § 2(b) one who causes another to commit a criminal act may be found guilty as a principal even though the agent who committed the act is innocent or acquitted.”); United States v. Catena, 500 F.2d 1319, 1323 (3d Cir.1974) (under § 2(b), a person may be guilty of causing a false claim" }, { "docid": "12470566", "title": "", "text": "motion for judgment of acquittal. If the government’s case survives such a motion, the Court will give the jury appropriate guidance through proper jury instructions. Counts 9-11 of the indictment charge Mr. Trie with causing the DNC to make false statements in its reports to the FEC in violation of 18 U.S.C. § 1001 (false statements) and 2 (aiding and abetting). Section 1001 provides, in relevant part, that “whosoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” shall be held criminally liable. 18 U.S.C. § 1001 (emphasis added). Because Mr. Trie did not make any representation or statement directly to the FEC and had no duty to disclose any facts to the FEC, he cannot be prosecuted directly under Section 1001. See United States v. Curran, 20 F.3d 560, 566 (3d Cir.1994); Republican Nat’l Comm. v. Federal Election Comm’n, 76 F.3d 400, 406 (D.C.Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997) (contributor has no duty to reveal identity to FEC or political committees). The government therefore has charged Mr. Trie with aiding and abetting the making of false statements by another, the Democratic National Committee, in violation of 18 U.S.C. § 2(b). Section 2(b) also requires a showing of willfulness, so the government must prove that Mr. Trie “willfully” caused the DNC to file false reports. See 18 U.S.C. § 2(b) (“Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”). The Court agrees with Mr. Trie that when a contributor is charged as an aider and abettor in the federal election law context for causing an innocent intermediary to make" }, { "docid": "7703254", "title": "", "text": "specified ... only the single act of having a false statement at a specified place [was] penalized.” Travis, 364 U.S. at 637, 81 S.Ct. 358. Several cases distinguish Travis on grounds applicable here. In United States v. Wiles, 102 F.3d 1043 (10th Cir.1996), defendants were charged under § 1001 with making false statements to the SEC in violation of 15 U.S.C. § 78m(a). The Court noted that § 1001 specifically proscribes the making of false statements and concluded that “the whole process of filing .. constitute^] the offense in this instance.” Id., at 1065. The Court held that venue on the § 1001 charge was proper in the District of Colorado (where the false 10-K report was made), rejecting defendants’ argument, based on Travis, that venue was proper only in Washington, D.C., where the 10-K report was filed. In an effort to distinguish Wiles, Rosen argues that the records in Wiles had to be made and kept, and that a failure to do so was unlawful, whereas no such requirements apply to the FEC and to what Rosen is accused of here. Rosen is incorrect. Title 2 U.S.C. § 437g(d) makes it a crime to “knowingly and willfully commit[ ] a violation of any provision of [the Federal Election Campaigns Act].” (Emphasis added). Title 2 U.S.C. § 434(a) requires political campaigns to make and file reports, and pursuant to 11 C.F.R. § 104.14, campaigns must maintain records and keep all reports for inspection. In United States v. Mendel, 746 F.2d 155 (2nd Cir.1984), Defendant was charged in the Southern District of New York with making and causing to be made false statements to the United States Department of Agriculture, in violation of §§ 1001. M & S caused veterinarians to pre-sign test records and health certificates before they were completed and also caused its bookkeeper to prepare the false test records and health certificates, all within the Southern District of New York. The reports were filed in the Northern District of New York. The Second Circuit held that venue under § 1001 “lies where a false statement is prepared and" }, { "docid": "7703255", "title": "", "text": "to what Rosen is accused of here. Rosen is incorrect. Title 2 U.S.C. § 437g(d) makes it a crime to “knowingly and willfully commit[ ] a violation of any provision of [the Federal Election Campaigns Act].” (Emphasis added). Title 2 U.S.C. § 434(a) requires political campaigns to make and file reports, and pursuant to 11 C.F.R. § 104.14, campaigns must maintain records and keep all reports for inspection. In United States v. Mendel, 746 F.2d 155 (2nd Cir.1984), Defendant was charged in the Southern District of New York with making and causing to be made false statements to the United States Department of Agriculture, in violation of §§ 1001. M & S caused veterinarians to pre-sign test records and health certificates before they were completed and also caused its bookkeeper to prepare the false test records and health certificates, all within the Southern District of New York. The reports were filed in the Northern District of New York. The Second Circuit held that venue under § 1001 “lies where a false statement is prepared and signed, though it may have been filed elsewhere.” Mendel, at 165. The court called defendants’ “reliance on Travis and its progeny ... misplaced.” Id. It noted that Travis “surely was meant to be confined to the facts on the unusual statute involved. Travis merely limits the general venue statute in accord with Congress’ specific mandate.” Id. (quoting United States v. Slutsky, 487 F.2d 832 (2d. Cir.1973)). In United States v. Herberman, 583 F.2d 222 (5th Cir.1978), the defendant was charged with making false Medicare statements in violation of § 1001. As is the case with the FEC, but was not the case with the NLRB in Travis, the relevant statute in Herberman, 42 U.S.C. § 1395f(a), authorized the Department of Health, Education and Welfare’s to regulate the defendant’s conduct before the time of filing. For that reason, the Court of Appeals applied § 3237 and found venue was appropriate in the Western District of Texas, where the alleged false statements were prepared and mailed. Id. The Court rejected Herberman’s contention that venue should have been" }, { "docid": "7703256", "title": "", "text": "signed, though it may have been filed elsewhere.” Mendel, at 165. The court called defendants’ “reliance on Travis and its progeny ... misplaced.” Id. It noted that Travis “surely was meant to be confined to the facts on the unusual statute involved. Travis merely limits the general venue statute in accord with Congress’ specific mandate.” Id. (quoting United States v. Slutsky, 487 F.2d 832 (2d. Cir.1973)). In United States v. Herberman, 583 F.2d 222 (5th Cir.1978), the defendant was charged with making false Medicare statements in violation of § 1001. As is the case with the FEC, but was not the case with the NLRB in Travis, the relevant statute in Herberman, 42 U.S.C. § 1395f(a), authorized the Department of Health, Education and Welfare’s to regulate the defendant’s conduct before the time of filing. For that reason, the Court of Appeals applied § 3237 and found venue was appropriate in the Western District of Texas, where the alleged false statements were prepared and mailed. Id. The Court rejected Herberman’s contention that venue should have been in the Northern District of Texas, where the forms were filed. The court applied the general venue statute (18 U.S.C. § 3237) and stated that “Travis merely limits the general venue statute in instances where Congress has particularly limited jurisdiction to the time of filing.” Id., at 227. The other cases on which Defendant primarily relies besides Travis are also distinguishable. In Reass v. United States, 99 F.2d 752 (4th Cir.1938), defendant was indicted for making false statements to a bank. The documents were prepared, filled out and signed in West Virginia, but submitted in person in Pittsburgh, Pennsylvania. The court reasoned that the “mere assembling of the material and its arrangement in a written composition containing misrepresentations of fact can have no effect [because] it is only when they are communicated to the' lending bank that the crime takes place.” The court held that the entire offense occurred in Pennsylvania, so venue was appropriate only there. Reass involved a loan application. No one is required to apply for a loan. FEC reports, in contrast," }, { "docid": "12470567", "title": "", "text": "to the FEC, he cannot be prosecuted directly under Section 1001. See United States v. Curran, 20 F.3d 560, 566 (3d Cir.1994); Republican Nat’l Comm. v. Federal Election Comm’n, 76 F.3d 400, 406 (D.C.Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997) (contributor has no duty to reveal identity to FEC or political committees). The government therefore has charged Mr. Trie with aiding and abetting the making of false statements by another, the Democratic National Committee, in violation of 18 U.S.C. § 2(b). Section 2(b) also requires a showing of willfulness, so the government must prove that Mr. Trie “willfully” caused the DNC to file false reports. See 18 U.S.C. § 2(b) (“Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”). The Court agrees with Mr. Trie that when a contributor is charged as an aider and abettor in the federal election law context for causing an innocent intermediary to make a false statement to the FEC, the prosecution must prove that “defendant knew of the [political party] treasurers’ reporting obligations, that he attempted to frustrate those obligations, and that he knew his conduct was unlawful.” See United States v. Curran, 20 F.3d at 569. These are elements of the offense to be proved beyond a reasonable doubt at trial, and the jury must be so instructed. Id. at 570; see Ratzlaf v. U.S., 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (in context of banking laws, jury must-find that defendant knew of regulatory reporting requirement in order to find that defendant acted willfully); but see United States v. Gabriel, 125 F.3d 89, 103 (2d Cir.1997) (refusing to adopt Curran definí tion of willfulness in Section 2(b) prosecution). While in most criminal prosecutions a showing of willfulness does not require proof that the defendant was aware that his conduct violated a particular statute or regulation, the Court is persuaded that this case falls comfortably within an exception to that general rule. See Bryan v." }, { "docid": "7703251", "title": "", "text": "submission to the FEC, but it is instructive. In Hopkins, defendants were convicted of, among other things, causing the concealment of a material fact from the FEC in violation of §§ 1001 and 2(b). In Hopkins, “... the defendants devised a scheme by which the savings and loans which they controlled would make political contributions indirectly: individual officers and employees of the institutions would be required to make contributions and would then be reimbursed for those contributions by the institution. The reimbursements were disguised either as pay raises or as reimbursements for legitimate business expenses. In the course of this scheme, the defendants falsified various records of the financial institutions involved and concealed certain facts from both bank examiners and federal election authorities.” Hopkins, at 210-11. As a result of this scheme, Defendants were charged (among other things) with knowingly and willfully causing another to conceal a material fact from the FEC. Their conviction was upheld. The Fifth Circuit stated that: “While it may be true that the Hopkins [sic] themselves did not make the reports, it is clear that they deliberately caused those reports to contain false information. The evidence showed that by keeping him unaware of their scheme, the Hopkins [sic] caused another individual, the Treasurer of their political action committee, to report to the Federal Election Commission that the contributions to the political action committee were from individuals.” Hopkins, at 215. In Hopkins, apparently, no one contended that a § 1001 prosecution for a false FEC filing could be mounted only in the District of Columbia, and so the court did not address any venue issue. But it is noteworthy that the defendants were prosecuted and. convicted in the Northern District of Texas, not the District of Columbia. As in Curran and Hopkins, Rosen is charged with causing an officer of a political campaign committee to file reports containing false information with the FEC in violation of §§ 1001 and 2. Because Rosen’s alleged conduct in causing the false statements to be made occurred, at least in large part, in Los Angeles, it does not matter that" }, { "docid": "7703252", "title": "", "text": "reports, it is clear that they deliberately caused those reports to contain false information. The evidence showed that by keeping him unaware of their scheme, the Hopkins [sic] caused another individual, the Treasurer of their political action committee, to report to the Federal Election Commission that the contributions to the political action committee were from individuals.” Hopkins, at 215. In Hopkins, apparently, no one contended that a § 1001 prosecution for a false FEC filing could be mounted only in the District of Columbia, and so the court did not address any venue issue. But it is noteworthy that the defendants were prosecuted and. convicted in the Northern District of Texas, not the District of Columbia. As in Curran and Hopkins, Rosen is charged with causing an officer of a political campaign committee to file reports containing false information with the FEC in violation of §§ 1001 and 2. Because Rosen’s alleged conduct in causing the false statements to be made occurred, at least in large part, in Los Angeles, it does not matter that the report was ultimately filed in Washington, D.C., as required by the FEC A. The criminal conduct charged occurred in this District; therefore, venue is appropriate here as a matter of law. Defendant’s reliance on Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) is misplaced. In Travis, the defendant was charged under § 9(h) of the National Labor Relations Act for filing false non-Communist affidavits. The Court held that venue was proper only where the false statements were filed (Washington D.C.), and not where the defendant had executed and mailed them (Colorado). The decision hinged on the fact that the filing of the affidavits was not mandatory, but was a condition precedent to a union’s use of the Board’s procedures. Id., at 635, 81 S.Ct. 358. The Court reasoned that “the filing must be completed before'there is a matter within the jurisdiction of the Board within the meaning of the false statement statute.” Id., at 636, 81 S.Ct. 358. Therefore, because “the locus of the offense ha[d] been carefully" }, { "docid": "10728331", "title": "", "text": "one of the co-conspirators actually committed an overt act. She maintains that venue for conspiracy does not lie in this district because neither Ms. Hsia nor her alleged co-eonspirators acted in the District of Columbia to cause the committee treasurers to submit false statements. Ms. Hsia’s reading of the venue requirements for conspiracy is too narrow. Conspiracy is a continuing offense, and venue for continuing offenses is proper in any district in which the crime was begun, continued or completed. 18 U.S.C. § 3237(a). Because the submissions of the false statements to the FEC in the District of Columbia were foreseeable effects of Ms. Hsia’s alleged overt acts in California, and because the submissions were necessary to the success of the alleged conspiracy to defraud the United States, venue is proper in the district in which the false statements were submitted. In United States v. Tannenbaum, checks were written in Manhattan but debited from an account in Brooklyn. The Second Circuit nevertheless found that venue was proper in the U.S. District Court for the Eastern District of New York in Brooklyn. “Although the checks were written in Manhattan, the actual debiting of the account — which was not only foreseeable but, indeed, necessary to the success of the scheme — occurred at [defendant’s] bank in Brooklyn,” and this was sufficient to establish venue for a conspiracy charge in that district. 934 F.2d at 12-13. While neither Ms. Hsia nor any of her co-conspirators did any act in the District of Columbia, she allegedly caused the overt act of submission of false statements to occur in the District of Columbia. The Court can see no difference between causing a check to be debited from a bank account and causing the campaign committee treasurers to submit false reports to the FEC. The overt acts involving false statements therefore are sufficient to establish venue in the District of Columbia. 2. White House Visit as Overt Act The government also has alleged as an overt act that in March 1996, Ms. Hsia and representatives from the Temple met with Vice President Gore at the" }, { "docid": "7703253", "title": "", "text": "the report was ultimately filed in Washington, D.C., as required by the FEC A. The criminal conduct charged occurred in this District; therefore, venue is appropriate here as a matter of law. Defendant’s reliance on Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) is misplaced. In Travis, the defendant was charged under § 9(h) of the National Labor Relations Act for filing false non-Communist affidavits. The Court held that venue was proper only where the false statements were filed (Washington D.C.), and not where the defendant had executed and mailed them (Colorado). The decision hinged on the fact that the filing of the affidavits was not mandatory, but was a condition precedent to a union’s use of the Board’s procedures. Id., at 635, 81 S.Ct. 358. The Court reasoned that “the filing must be completed before'there is a matter within the jurisdiction of the Board within the meaning of the false statement statute.” Id., at 636, 81 S.Ct. 358. Therefore, because “the locus of the offense ha[d] been carefully specified ... only the single act of having a false statement at a specified place [was] penalized.” Travis, 364 U.S. at 637, 81 S.Ct. 358. Several cases distinguish Travis on grounds applicable here. In United States v. Wiles, 102 F.3d 1043 (10th Cir.1996), defendants were charged under § 1001 with making false statements to the SEC in violation of 15 U.S.C. § 78m(a). The Court noted that § 1001 specifically proscribes the making of false statements and concluded that “the whole process of filing .. constitute^] the offense in this instance.” Id., at 1065. The Court held that venue on the § 1001 charge was proper in the District of Colorado (where the false 10-K report was made), rejecting defendants’ argument, based on Travis, that venue was proper only in Washington, D.C., where the 10-K report was filed. In an effort to distinguish Wiles, Rosen argues that the records in Wiles had to be made and kept, and that a failure to do so was unlawful, whereas no such requirements apply to the FEC and" }, { "docid": "7703248", "title": "", "text": "charged offense was allegedly committed. Art. III, § 2, clause 3; U.S. Const. Amend VI; Fed.R.Crim.P. 18. In determining where the offense was committed, courts look to the “nature of the crime alleged and the location of the act or acts constituting it.” United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). In making that determination, looking at the “key verbs” that define the criminal offense is helpful. United States v. Mendel, 746 F.2d 155, 164 (2d Cir.1984). Section 1001, under which Rosen is charged, does not contain an express venue provision. Courts have relied on 18 U.S.C. § 3237 to determine venue under § 1001. See United States v. Wiles, 102 F.3d 1043, 1064 (10th Cir.1996). Section 3237(a) provides that: “Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” B. Venue in this District is Proper The key factors in assessing venue in this case are that Defendant is alleged to have caused false reports to be made, and that he did so, in part, through actions he undertook in the Central District of California. The Court therefore construes the indictment to charge a violation of 18 U.S.C. § 2(b), not 2(a). Under § 2(b), “a person may be guilty of causing a false claim to be presented to the United States even though he uses an innocent intermediary ... to actually pass on the claim[ ].” United States v. Catena, 500 F.2d 1319, 1323 (3rd Cir.1974). “[I]t is well-established that [18 U.S.C.] § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged.” United States v. Hopkins, 916 F.2d 207, 215 (5th Cir.1990) (upholding conviction for filing false statement with FEC). It appears that" }, { "docid": "7703249", "title": "", "text": "B. Venue in this District is Proper The key factors in assessing venue in this case are that Defendant is alleged to have caused false reports to be made, and that he did so, in part, through actions he undertook in the Central District of California. The Court therefore construes the indictment to charge a violation of 18 U.S.C. § 2(b), not 2(a). Under § 2(b), “a person may be guilty of causing a false claim to be presented to the United States even though he uses an innocent intermediary ... to actually pass on the claim[ ].” United States v. Catena, 500 F.2d 1319, 1323 (3rd Cir.1974). “[I]t is well-established that [18 U.S.C.] § 2(b) was designed to impose criminal liability on one who causes an intermediary to commit a criminal act, even though the intermediary who performed the act has no criminal intent and hence is innocent of the substantive crime charged.” United States v. Hopkins, 916 F.2d 207, 215 (5th Cir.1990) (upholding conviction for filing false statement with FEC). It appears that only one court has squarely addressed the question raised by Rosen of the appropriate venue for a prosecution under §§ 1001 and 2 for causing a false statement to be made the FEC. In United States v. Curran, 1993 WL 137459 (E.D.Pa.1993) vacated on other grounds, 20 F.3d 560 (3rd Cir.1994), a defendant was charged with causing the treasurers of political campaign committees to file reports containing false information with the FEC, in violation of §§ 1001 and 2(b). The District Court rejected his claim that proper venue existed only in Washington, D.C. Instead, the Court held that “the scheme to cause false reports to be filed and all of the causative acts were carried out in the Eastern District of Pennsylvania,” and therefore under 18 U.S.C. § 3237(a), venue was proper in Pennsylvania. Although on appeal the Curran decision was vacated, the Court nevertheless finds its reasoning on the venue issue persuasive. Neither party cited another decision, United States v. Hopkins, 916 F.2d 207, 216 (5th Cir.1990), involving a conviction for making a false" }, { "docid": "7703250", "title": "", "text": "only one court has squarely addressed the question raised by Rosen of the appropriate venue for a prosecution under §§ 1001 and 2 for causing a false statement to be made the FEC. In United States v. Curran, 1993 WL 137459 (E.D.Pa.1993) vacated on other grounds, 20 F.3d 560 (3rd Cir.1994), a defendant was charged with causing the treasurers of political campaign committees to file reports containing false information with the FEC, in violation of §§ 1001 and 2(b). The District Court rejected his claim that proper venue existed only in Washington, D.C. Instead, the Court held that “the scheme to cause false reports to be filed and all of the causative acts were carried out in the Eastern District of Pennsylvania,” and therefore under 18 U.S.C. § 3237(a), venue was proper in Pennsylvania. Although on appeal the Curran decision was vacated, the Court nevertheless finds its reasoning on the venue issue persuasive. Neither party cited another decision, United States v. Hopkins, 916 F.2d 207, 216 (5th Cir.1990), involving a conviction for making a false submission to the FEC, but it is instructive. In Hopkins, defendants were convicted of, among other things, causing the concealment of a material fact from the FEC in violation of §§ 1001 and 2(b). In Hopkins, “... the defendants devised a scheme by which the savings and loans which they controlled would make political contributions indirectly: individual officers and employees of the institutions would be required to make contributions and would then be reimbursed for those contributions by the institution. The reimbursements were disguised either as pay raises or as reimbursements for legitimate business expenses. In the course of this scheme, the defendants falsified various records of the financial institutions involved and concealed certain facts from both bank examiners and federal election authorities.” Hopkins, at 210-11. As a result of this scheme, Defendants were charged (among other things) with knowingly and willfully causing another to conceal a material fact from the FEC. Their conviction was upheld. The Fifth Circuit stated that: “While it may be true that the Hopkins [sic] themselves did not make the" }, { "docid": "7703246", "title": "", "text": "filing with, and receipt of reports by, the FEC; that the reports were prepared by the JFC in Washington, D.C.; and that, as required by law, they were filed in the FEC’s Washington, D.C. offices. Relying primarily on the Supreme Court’s decision in Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), Rosen argues that, under § 1001, venue for making false statements to the FEC is proper only in the place of filing (Washington D.C.). Rosen points to these passages from Travis: The false statement statute, under which the prosecution is brought, penalizes him who knowingly makes any ‘false’ statement ‘in any matter within the jurisdiction of any department or agency of the United States.’ There would seem to be no offense, unless petitioner completed the filing in the District of Columbia. The locus of the offense has been carefully specified; and only the single act of having a false statement at a specified place is penalized. Travis, at 635, 637, 81 S.Ct. 358. The government argues that Rosen misinterprets Travis, that causing false statements to be filed with the FEC in violation of §§ 1001 and 2 is a continuing offense, and that venue is proper where the conduct began, continued or ended. Because some of Rosen’s alleged conduct took place in Los Angeles, it argues, venue is proper in the Central District of California. The Court DENIES Rosen’s motion to dismiss for improper venue. A. General Venue Principles Venue in criminal cases is not a mere matter of formal procedure but raises deep issues of public policy. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944). The government must establish venue by a preponderance of the evidence. United States v. Powell, 498 F.2d 890, 891 (9th Cir.1974). When a defendant has been indicted on multiple counts, venue must be proper for each count. United States v. Pace, 314 F.3d 344, 347 (9th Cir.2002). The Constitution and the Federal Rules of Criminal Procedure provide that a defendant will be tried in the state and district where the" } ]
757924
opportunity to focus the defense on an issue where Mueffelman had some hope of prevailing and to downplay the false representations issue where the defense was considerably weaker. In any event, the fact that a witness might help as to one issue and hurt on another is just a “can’t help” of the litigation process. Separately, Mueffelman attacks his sentence, which occurred in the period after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district judge correctly anticipated that Blakely would undermine the then-existing mandatory guideline regime. She chose therefore to treat the guidelines as advisory although instructive, REDACTED and turned out to be right. Under the pertinent guidelines, the base offense level for the fraud was 6, U.S.S.G. § 2F1.1(a) (1995), adjusted upward for multiple and vulnerable victims, U.S.S.G. §§ 2F1.1(b)(2), 3A1.1(b). Mueffelman II, 400 F.Supp.2d at 372. The most important adjustment was for the loss inflicted. The government argued for 11 additional levels based on an intended loss to victims of at least $1.1 million, the figure calculated by the probation report. The resulting range, based on an offense level of 21, was 37 to 46 months. The district court, believing that the scheme had not been a sham at the outset, ruled that the loss overstated Mueffelman’s culpability and reduced the offense level to 18,
[ { "docid": "5217128", "title": "", "text": "Indeed, a change of plea hearing was scheduled for Ricardo Rosario on June 29, 2004, but before he could enter a plea of guilty, the Government responded to Blakely by filing a superceding indictment for the remaining defendants. The superceding indictment alleged facts on which the Government sought to base enhancements to the sentences. Significantly, if Probation and the Government are correct, and Rodriguez was the manager or supervisor of the offense in which the other co-defendants participated, the approach Rodriguez urges the Court to take would yield substantially harsher sentences for the less culpable co-defendants than for the arguably more culpable Rodriguez. D. Steven Mueffelman Steven Mueffelman was found guilty by a jury of 13 counts of mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. His co-defendant, John S. Lombardi, pled guilty to similar counts and was sentenced to 36 months’ probation. The scheme involved targeting persons with marginal or poor credit, purporting to guarantee them home ownership with “100 percent financing and no closing costs.” Individuals paid for the services of Mueffelman and his company, and various expenses but, with some exceptions, got nothing in return— neither the money they had expended nor a home. The critical issue in the sentencing is the amount of loss to these victims, an issue which the jury was not asked to address. The Government and Probation argue for a loss between $800,000 and $1,500,000, which increases the base offense eleven levels to a level 17 (base offense of 6 plus an eleven level enhancement); an adjustment for role in the offense under U.S.S.G. § 3Bl.l(e), yielding two more points (a position which Probation argues for and not the Government); an adjustment for more than one victim, under U.S.S.G. § 2Fl.l(b)(2)(B), with an additional two levels; and an adjustment for a vulnerable victim under U.S.S.G. § 3Al.l(b) for two more points. The result is a base offense level of 21 (according to the Government) or 23 (according to Probation), which, with a category I criminal history, yields a Guideline range of either 37-46 or 46-57 months. Defendant" } ]
[ { "docid": "18245015", "title": "", "text": "case (and that of co-defendant Lombardi) during two days of hearings. Defendant Mueffelman took the position that I did not have the authority to sentence him on the basis of facts not found by the jury. Since the jury was not asked to determine the amount of money that the clients of the company had lost, the defendant’s position meant that the Court would be obliged to ignore the scope of this offense in determining the sentence. The government took the position that the Court should determine the amount of loss and that that number should drive Mueffelman’s sentencing range as though the Guidelines were unchanged. I rejected both approaches (although I adopted the government’s position with respect to restitution' — but not the government’s rationale). I was not willing to adopt the Guidelines-mandated sentence of nearly three years suggested by the government. Nor was I willing to sentence Mueffelman to probation as the defendant urged. I took the Guidelines into account, calculating the amount of loss attributable to Mueffelman’s acts as I would have pre-Blakely. I then used the loss calculations to determine the amount of restitution required by the MVRA, but I did not use it to determine Mueffelman's sentence. In sentencing Mueffelman, I discounted the Guideline sentencing range three levels because I found that the amount of loss did not serve as a fair proxy for Mueffelman’s culpability. The sentencing range that resulted from that adjustment was more in keeping with Mueffelman’s culpability and the purposes of sentencing. Within months of the Mueffelman sentencing, The United States Supreme Court issued United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which it applied Blakely to the Federal Sentencing Guidelines, finding that the mandatory “Guideline” scheme violated the Sixth Amendment. This constitutional defect required the Court to excise the portion of the Sentencing Reform Act of 1984 (hereinafter “SRA”), 28 U.S.C. § 991 et seq., 18 U.S.C. § 3551 et seq., that made the Guidelines mandatory, namely, 18 U.S.C. § 3553(b)(1). As a result, the Court declared the Guidelines to be “advisory.” Courts" }, { "docid": "6239917", "title": "", "text": "F.3d 1208, 1214 (9th Cir.2002). As related in the factual discussion above, at sentencing, the district court stated that it would “use and follow the guidelines to determine the appropriate sentence but w[ould] not enhance unless the facts in support of the enhancement or adjustment were found by the jury.” (GER at 140.) Constrained by the facts found by the jury, the district court stated that it would calculate a Guideline base offense level of six and apply a two-level adjustment for concealing assets and a three-level adjustment for an amount of loss in excess of $10,000. Based upon a total offense level of eleven and a criminal history category of II, the district court calculated a range of ten to fourteen months and stated that it would impose a twelve month sentence. The district court stated, however, that if the Supreme Court were to determine that the Guidelines were unaffected by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), it would enhance the sentence based upon judicially-found facts. ■ In Booker, the Supreme Court held that while its decision in Blakely applies to the Federal Sentencing Guidelines, a district court may engage in judicial factfinding without implicating the Sixth Amendment so long as the district court treats the Guidelines as advisory. See Booker, 543 U.S. 220, 125 S.Ct. at 750, 756-57, 160 L.Ed.2d 621. Here, the district court committed nonconstitutional error in viewing the Guidelines as mandatory and refusing to increase Hagege’s sentence on the basis of judicial factfinding. See id. (holding that the Guidelines are advisory, not mandatory); United States v. Ameline, 409 F.3d 1073, 1084 n. 8 (9th Cir.2005) (“In a case where the district court did not treat the sentencing guidelines as advisory but the defendant’s sentence was not enhanced by extra-verdict findings ... [a] nonconsti-tutional error occurs.”). Moreover, based upon a review of the transcript of the sentencing hearing, it is clear that the error was not harmless because the district court expressly stated that it would have increased the sentence based upon judicial factfinding had it been permitted to" }, { "docid": "18245031", "title": "", "text": "figure. He does contest its significance in sentencing. Mueffelman suggests that since CCFC was not a sham organization and surely was not one ab initio, I should “count” only the losses engendered from the date when there was no hope of satisfying the clients’ expectations. The date of that change, he suggests, was July 28, 1997— when William McGuire (of Malone Mortgage) wrote to Dwight Miller, advising that he found the program “intriguing,” but that “Malone is not interested.” Until that point, the defendant could have reasonably believed that CCFC’s program would receive funding from one of the numerous sources it was pursuing. But as the government rightly pointed out, the jury found otherwise, concluding that Mueffelman was guilty of fraud with respect to transactions spanning the entire period of the indictment. I will not ignore that verdict. See, e.g., United States v. Pimental, 367 F.Supp.2d 143, 150-53 (D.Mass.2005). D. Loss, the Guidelines and 18 U.S.C. § 3553(a) Nonetheless, as Judge Lynch’s decision in United States v. Emmenegger suggests, issues concerning the blameworthiness of a defendant found guilty of fraud are more complex than simply measuring the amount of the loss. Indeed, even pre-Booker, loss was not an automatic measurement of culpability. For example, Guideline law permitted a judge to consider whether the amount of loss overstated defendant’s culpability. See U.S.S.G. § 2B1.1, Appl. Note 19(C). See, e.g., United States v. McBride, 362 F.3d 360 (6th Cir.2004) (explaining that although intended loss drives offense level even where scheme to defraud could not have succeeded, impossibility of scheme can be a basis for departure); United States v. Lauersen, 348 F.3d 329 (2d Cir.2003) (holding that where multiple adjustments result in very high offense level that substantially overstates seriousness of offense, district court may depart downward); United States v. Gregorio, 956 F.2d 341 (1st Cir.1992) (holding that downward departure is appropriate where degree of loss was caused by downturn in economy); United States v. Graham, 146 F.3d 6 (1st Cir.1998) (holding that loss overstates culpability where lower loss attributed to similarly situated defendants); United States v. Monaco, 23 F.3d 793 (3d Cir.1994)" }, { "docid": "7240311", "title": "", "text": "voice was Defendant’s. In light of this evidence, we cannot conclude a “reasonable probability” exists that the outcome of Defendant’s trial would have been different had the Government not questioned Defendant about his prior conviction. See United States v. Beers, 189 F.3d 1297, 1301 (10th Cir.1999) (noting we do not second guess the jury’s assessment of witness credibility or weighing of the evidence). III. Defendant next challenges his sentence. In calculating Defendant’s sentencing guideline range, the district court began with a base offense level of 26. The court determined Defendant provided false testimony during the trial and therefore added two points for obstruction of justice, resulting in an adjusted offense level of 28. See U.S.S.G. § 3C1.1. In calculating Defendant’s criminal history category, the district court added two points pursuant to U.S.S.G. § 4A1.1(d) because Defendant was on probation from his previous drug conviction when he committed the instant offense. This increased Defendant’s criminal history category from I to II. Prior to sentencing, the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely held Washington’s sentencing scheme violated the Sixth Amendment because it required a sentencing court to impose a sentence not solely based on “facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, 124 S.Ct. 2531. Mindful that the Blakely decision may extend to the federal sentencing guidelines, the district court imposed alternative sentences. The district court found that if Blakely did not apply, an offense level of 28 and a criminal history category of II resulted in a sentencing guidelines range of 87 to 108 months. Using that guideline range, the judge imposed a sentence of 87 months. Then, considering the Blakely principles, the court eliminated the two-level enhancement for obstruction of justice, dropping the sentencing range to 70 to 87 months. The court announced that if it applied the principles in Blakely, the court would still sentence Defendant to 87 months. After sentencing, the Supreme Court decided United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)." }, { "docid": "4249932", "title": "", "text": "properly considered the three dealings with Lineas Aereas Allegro, Southend Cargo, and Falcon Air as relevant conduct under § 1B1.3. Based on the relevant consideration, we cannot say that Killgo’s thirty-three month sentence is unreasonable or that the district court erred. The judgment of the district court is affirmed. . The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. . Killgo also argues that the United States Supreme Court decision in Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (June 24, 2004), requires reversal of his sentence. The reasoning in Blakely was recently extended to the Federal Sentencing Guidelines. See United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (U.S. Jan. 12, 2005) (Stevens, J.). Nonetheless, in his plea agreement, Killgo waived his right to appeal \"any sentence imposed” except \"any issues solely involving a matter of law brought to the court's attention at the time of sentencing at which the court agrees further review is needed.” Killgo did not bring any issue akin to Blakely or Booker to the district court's attention. The fact that Killgo did not anticipate the Blakely or Booker rulings does not place the issue outside the scope of his waiver. See, e.g., United States v. Johnson, 67 F.3d 200 (9th Cir.1995); see also United States v. Rutan, 956 F.2d 827 (8th Cir.1992) (explaining that an appeal waiver can waive a right unknown to the defendant), ovemded in part by United States v. Andis, 333 F.3d 886, 892 n. 6 (8th Cir.2003) (en banc); United States v. Rubbo, 396 F.3d 1330, No. 04-10874 (11th Cir. Jan.21, 2005) (holding that argument made under Booker fell within scope of appeal waiver). . The guideline provision applicable to fraud cases provides for a graduated increase in the base offense level depending on the amount of loss resulting from conduct relevant to the count of conviction. U.S.S.G. § 2F1.1 (deleted by consolidation with U.S.S.G. § 2B1.1, Nov. 1, 2001). Under the Sentencing Guidelines, the base offense level for fraud is adjusted upward if the loss" }, { "docid": "1060432", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Gregory Wayne Woods pleaded guilty to a single count of bank fraud in violation of 18 U.S.C. § 1344. He appeals his 46-month sentence pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Woods preserved his claim of error and the Government cannot demonstrate the error was harmless, we VACATE Woods’ sentence and REMAND to the district court for re-sentencing. I. On May 7, 2004, Woods pleaded guilty to one count of bank fraud, prohibited by 18 U.S.C. § 1344. A pre-sentence report (“PSR”) calculated Woods’ total offense level at 19, including a seven-level increase because the amount of loss was between $120,000 and $200,000, a two-level increase because the offense involved more than minimal planning, and a four-level increase because of Woods’ role as an organizer or leader who recruited and instructed participants in a criminal activity that involved five or more participants. A total offense level of 19 combined with a criminal history category III resulted in a recommended Sentencing Guideline range of 37 to 46 months of imprisonment. In addition, the PSR recommended an upward departure because Woods’ criminal history score under-represented the seriousness of his criminal history or the likelihood that he would commit additional crimes. Woods objected to the PSR on the basis of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), arguing that the findings which resulted in enhancements totaling 13 levels were based on facts to which he had not admitted nor had been found by a jury. Nonetheless, the district court adopted the factual findings of the PSR and concluded that the 13 level enhancement was appropriate. The court did not adopt the PSR’s recommendation to depart upwardly, however, but stated: “Well, it’s a close call, but I’m not going to upwardly depart in this case. I am going to impose a sentence at the top of the guideline range.” The district court sentenced Woods to 46 months" }, { "docid": "14580233", "title": "", "text": "defendants. Houle, 237 F.3d at 76; Freeman, 208 F.3d at 345-46. E. Sentencing At Bailey’s sentencing, the district court, applying the then mandatory United States Sentencing Guidelines, raised the basic offense level of twelve by six because Bailey had acted under color of law, see U.S.S.G. § 2Hl.l(b)(l),' by two because Bailey had obstructed justice, see id. § 3C1.1, and by two because the court found by a preponderance of the evidence that the victim was vulnerable, see id. § 3Al.l(b)(l). Bailey’s enhanced offense level of 22 yielded a sentencing range of 41 to 51 months. The court sentenced Bailey to 41 months in prison, followed by two years of supervised release. In Bailey’s opening appellate brief, he asserts that the district court’s vulnerable-victim finding was erroneous because the court failed to make a particularized inquiry into the victim’s situation, instead focusing solely on the victim’s generic status as a prisoner in the psychiatric unit. In subsequent briefs, Bailey argues that a remand is necessary in light of the Supreme Court’s recent decisions in Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (calling into question the constitutionality of the Guidelines), and United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (severing the provisions making the Guidelines mandatory in order to preserve the Guidelines as an advisory system). We consider these arguments in turn. 1. Vulnerable-Victim Finding Under U.S.S.G. § 3Al.l(b)(l), the base offense level should be raised two levels if “the defendant knew or should have known that a victim of the offense was a vulnerable victim.” The Guidelines define a “vulnerable victim” as “a person (A) who is a victim of the offense of conviction ...; and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1, cmt. n. 2. ‘We have interpreted the term ‘susceptible to the criminal conduct’ as being ‘primarily concerned with the impaired capacity of the victim to detect or prevent the crime, rather than the quantity of the harm" }, { "docid": "12579932", "title": "", "text": "judge correctly anticipated that Blakely would undermine the then-existing mandatory guideline regime. She chose therefore to treat the guidelines as advisory although instructive, United States v. Mueffelman, 327 F.Supp.2d 79, 96 (D.Mass.2004) (“Mueffelman I”), and turned out to be right. Under the pertinent guidelines, the base offense level for the fraud was 6, U.S.S.G. § 2F1.1(a) (1995), adjusted upward for multiple and vulnerable victims, U.S.S.G. §§ 2F1.1(b)(2), 3A1.1(b). Mueffelman II, 400 F.Supp.2d at 372. The most important adjustment was for the loss inflicted. The government argued for 11 additional levels based on an intended loss to victims of at least $1.1 million, the figure calculated by the probation report. The resulting range, based on an offense level of 21, was 37 to 46 months. The district court, believing that the scheme had not been a sham at the outset, ruled that the loss overstated Mueffelman’s culpability and reduced the offense level to 18, yielding a range of 27 to 33 months. Mueffelman II, 400 F.Supp.2d at 379. The district court then sentenced Mueffel man to 27 months in prison and later entered a restitution order. Mueffelman says that the judge’s framework for sentencing differed from the post-Booker framework as developed in United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.2006) (en banc). To the extent it did, it was not to Mueffel-man’s disadvantage. The district court judge treated the guidelines as advisory although entitled to weight, discounted the loss figure, listened to arguments made by Mueffelman for a still lower sentence, and took account of section 3553 factors to the extent argued by Mueffelman. See United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006). Only two of those specific arguments made to the district court are renewed on appeal, and the district court’s treatment of both is easily sustained. First, Mueffel-man urged at sentencing that anything beyond a probationary sentence would impair his ability to provide restitution for victims. He proposed several arrangements, by which he would be placed on probation and earn $120,000-175,000 per year to pay toward restitution, with a friend promising to make up any" }, { "docid": "13663852", "title": "", "text": "Cir.2001) (“[EJrror in giving the deliberate ignorance instruction is ... harmless where there is substantial evidence of actual knowledge.”) (second alteration in original; internal quotation marks and citation omitted); accord Ferrarini, 219 F.3d at 157; United States v. Whittington, 26 F.3d 456, 464 (4th Cir.1994). III. Operating in the period between Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court concluded that as a consequence of Blakely, the mandatory regime of the U.S. Sentencing Guidelines was invalid. The court therefore considered the guidelines “helpful and instructive” and imposed a discretionary sentence. In its factual findings based on a preponderance of the evidence, the court concluded that the loss amount for sentencing purposes was “in the neighborhood of just shy of $800,000.” On that basis, the court enhanced Alston-Graves’s base offense level from 6 to 17. The court further increased the offense level by four levels — adding two for more-than-minimal planning and two for misrepresenting that she acted on behalf of a government agency — making a total level of 21. Based on a criminal history category of I, the court determined the applicable Guidelines range to be 37-46 months. Nevertheless, the court in its discretion imposed a prison sentence of 27 months. The defense urged the court to discard the Sentencing Guidelines’s enhancement provisions and determine the range of sentence “solely on the basis of facts found by the jury beyond a reasonable doubt.” Br. of Appellant 31. Had her argument prevailed, Alston-Graves claims her base offense level would have been 6, her criminal history category I, and the sentencing range 0-6 months because the jury did not make any specific factual findings. After Alston-Graves’s sentencing, the Supreme Court decided in Booker that the Sentencing Guidelines are now “effectively advisory,” given the Sixth Amendment principles first articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Booker, 125 S.Ct. at 757. Alston-Graves now argues that due process and ex post facto" }, { "docid": "23185406", "title": "", "text": "instruction explained: —If “the evidence has established beyond a reasonable doubt that the defendants ... acted with a fraudulent intent ... it is unimportant whether the defendants were successful and accomplished the plan;” —“[E]ven though some individual may have lost money in the transactions ..., this does not rise to the level of fraud unless the evidence establishes beyond a reasonable doubt that the transaction was designed and intended by the defendant to deceive, or trick, or injure, or damage;” and —“An honest belief or ‘good faith’ belief by the defendants that the statements or representations made were true is a complete and total defense to the charge of securities fraud.” Viewed as a whole, the instruction required the jury to find intent to defraud before it could convict Naylor. Consequently, Naylor’s contention is without merit and the district court did not err. IV. Dowlin’s Sentence The base level offense provided in the United States Sentencing Guidelines (“Guidelines” or “USSG”) for Dowlin’s fraud convictions was 6. See USSG § 2Bl.l(a) (2002). The district court enhanced Dowlin’s sentence by 14 points after determining the loss in the case exceeded $400,000, see id. § 2Bl.l(b)(l)(H), and by another 2 points after finding there were more than 10 but less than 50 victims, see id. § 2B1.1(b)(2)(A). On the basis of these enhancements, the court increased the offense level from 6 to 22. Dowlin’s criminal history category of II and her offense level of 22 provided for a sentencing range of 46-57 months. The court sentenced Dowlin to the bottom end of the range, 46 months. Without any judge-found facts, Dowlin would have had an offense level of 6, which provides for a sentence of 1-7 months when combined with her criminal history. After oral argument, Dowlin moved to file a supplemental brief arguing her sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Following the Supreme Court’s ruling in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we granted the motion. Dowlin asks this court to remand her case" }, { "docid": "22093597", "title": "", "text": "upward departure; and (3) “the applicability of ... Blakely v. Washington[, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),] to the United States Sentencing Guidelines.” Nikonova’s plea agreement was filed in the district court on January 13, 2005, the day after the Court issued United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court stated to Nikonova, with regard to her reservation of the right to appeal the application of Blakely to the federal sentencing guidelines, that the Supreme Court had kind of taken care of that ... certain parts of the Guidelines are no longer effective and no longer mandatory. So, although you reserve this right in the plea agreement, for all practical purposes, that has already been taken care of; “do you understand that?” Nikono-va stated that she did understand and that she appreciated that, “other than those reservations in the plea agreement”, she had no right to appeal “anything else that happens in this case.” At sentencing the district court relied on a presentence investigation report (“PSR”) that, inter alia, recommended a four-level increase in Nikonova’s offense level because certain photographs in her possession depicted sadistic images of prepubescent children having intercourse with adults. The PSR calculated that Nikono-va’s offense level was 22, which, combined with her criminal history category of I, yielded a guideline range of 41-51 months’ imprisonment. Nikonova objected to the upward adjustment for sadistic images, arguing that, although the images were sadistic, the government had not adequately proved that she had intentionally ordered and received them. She also moved the court to depart downward from the guidelines and sentence her to probation. The court overruled Nikonova’s objection to the upward adjustment, declined to depart from the guideline range, and sentenced Nikonova to 41 months. After Nikonova filed her notice of appeal, the government filed a Federal Rule of Criminal Procedure 35 motion to reduce the sentence based on her assistance in the investigation and prosecution of others. The district court granted the motion, reduced Nikonova’s offense level by two levels, and imposed a sentence" }, { "docid": "9440855", "title": "", "text": "seriously overstates the severity of the offense. This Court determined that the district court’s belief that the disparity between the actual and intended loss was not grounds for a downward departure was plain error, and remanded to the district court for resen-tencing. A resentencing hearing was conducted in October, 2004. The Government prepared a sentencing memorandum, to which McBride objected based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court found that based on his offense level and his criminal history category, the applicable guideline range was 77 to 96 months on Count 2, 36 months on Count 3, and 60 months on Counts 4-6. Following the Sentencing Guidelines, the district court announced a sentence of 78 months: 78 months for Count 2, 36 months for Count 3, and 60 months for Counts 4-6, to run concurrently. Pursuant to this Court’s instructions after McBride’s initial appeal, the district court also explicitly considered and rejected granting a downward departure based on the economic reality principle. Additionally, the district court announced a sentence pursuant to 18 U.S.C. § 3553(a) that treated the Guidelines as advisory, which was identical to the sentence announced under the Guidelines. The district court entered its order sentencing McBride to 78 months on October 18, 2004 and McBride timely appealed. II. McBride argues that in applying the Guidelines, the district court violated his Sixth Amendment rights. He argues that the district court unconstitutionally made factual findings to enhance McBride’s sentence under the Guidelines. McBride objected to his sentence prior to resentencing, based on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). When a defendant preserves a potential Blakely error, this Court reviews for harmless error. United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005). Although the court did make factual findings of the kind prohibited by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court also gave McBride an alternative sentence in anticipation of Booker. This Court has held that when" }, { "docid": "18245016", "title": "", "text": "pre-Blakely. I then used the loss calculations to determine the amount of restitution required by the MVRA, but I did not use it to determine Mueffelman's sentence. In sentencing Mueffelman, I discounted the Guideline sentencing range three levels because I found that the amount of loss did not serve as a fair proxy for Mueffelman’s culpability. The sentencing range that resulted from that adjustment was more in keeping with Mueffelman’s culpability and the purposes of sentencing. Within months of the Mueffelman sentencing, The United States Supreme Court issued United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which it applied Blakely to the Federal Sentencing Guidelines, finding that the mandatory “Guideline” scheme violated the Sixth Amendment. This constitutional defect required the Court to excise the portion of the Sentencing Reform Act of 1984 (hereinafter “SRA”), 28 U.S.C. § 991 et seq., 18 U.S.C. § 3551 et seq., that made the Guidelines mandatory, namely, 18 U.S.C. § 3553(b)(1). As a result, the Court declared the Guidelines to be “advisory.” Courts are to “consider” Guidelines ranges, see 18 U.S.C. § 3553(a)(4), but are permitted to tailor their sentences in light of other statutory concerns. See § 3553(a); Booker, 125 S.Ct. at 757-69. After Booker, the defendant moved for re-sentencing; the government opposed. I declined to re-sentence. My decision in Mueffelman I was consistent with the United States Supreme Court’s later decision in Booker. I sentenced Mueffelman to twenty-seven months in prison and Lombardi, who cooperated, to three years of probation. I ordered restitution in the amount of $907,864.89. I. GUIDELINE ANALYSIS The government and Probation argued for a loss of between $800,000 and $1,500,000, which would increase the base offense level eleven levels to a level seventeen (base offense of six plus an eleven level enhancement) U.S.S.G. § 2Fl.l(a), § 2Fl.l(b)(l)(L); an adjustment for more than one victim, under U.S.S.G. § 2Fl.l(b)(2)(B), with an additional two levels; and an adjustment for a vulnerable victim under U.S.S.G. § 3Al.l(b) for two more points. The result was a base offense level of twenty-one with a category I criminal" }, { "docid": "22214651", "title": "", "text": "criminal history, the PSR calculated the Guideline range at twenty-seven to thirty-three months imprisonment. Duhon objected to the PSR’s suggested enhancements for the age of the children and number of images involved, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He argued that these facts had neither been admitted to nor found by a jury beyond a reasonable doubt. He also moved for a downward departure, claiming that a back injury he suffered in 1987 was an extraordinary physical impairment that warranted a sentence below the applicable Guideline range. See U.S.S.G. § 5H1.4. At a sentencing hearing on August 25, 2004, the district court denied Duhon’s motion for a downward departure. Considering Duhon’s Blakely motion, the court decided to stay sentencing until the Supreme Court issued its ruling in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Before adjourning, the court expressed hostility toward the Sentencing Guidelines, lamented Congress’s criminalization of possessing child pornography, and promised that he would give Duhon “the lowest sentence I can give consistent with my oath.” B. The Post -Booker Sentencing HeaRING Following the Booker ruling, the sentencing was reconvened on February 28, 2005. Over the Government’s objection, the district court ruled that Booker precluded it from using facts not admitted by Duhon to enhance his sentence, even under an advisory regime. The court calculated a Guideline range without using the enhancements for the age of the children or the number of images involved in the offense. This calculation resulted in an offense level of fourteen and an advisory term of imprisonment of fifteen to twenty-one months. The court announced, however, that it would not follow the Guidelines, characterizing them as “totally discretionary.” It stated that it would use the discretion granted by Booker to “deviate from the United States Sentencing Commission Guidelines and impose a sentence that ... is appropriate based on the facts.” The court explained why it thought a lesser sentence was appropriate and sentenced Duhon to sixty months probation. The Government reiterated its objection to the court’s calculation of" }, { "docid": "22214650", "title": "", "text": "BENAVIDES, Circuit Judge: The Government appeals the district court’s post -Booker, non-Guideline sentence. We hold that the sentence is unreasonable with regard to the sentencing factors enumerated in 18 U.S.C. § 3553(a) (2000). I. BACKGROUND Appellee David Duhon pleaded guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(2000). Duhon submitted a factual stipulation in connection with his plea. He acknowledged that FBI agents found images of children engaged in sexually explicit activity on his computer. Du-hon admitted that he had downloaded the pictures from the Internet. A. The PREseNtence Report AND Fmsx SENTENCING HEARING The presentence report (“PSR”) determined a base offense level of fifteen. U.S.S.G. § 2G2.4 (2002). It recommended three two-level enhancements under section 2G2.4(b) because (1) the material involved minors under twelve, (2) the offense involved the possession of ten or more images, and (3) Duhon used a computer. The PSR also subtracted three levels for acceptance of responsibility. U.S.S.G. § 3E1.1. Thus, it arrived at an adjusted offense level of eighteen. Given Duhon’s category I criminal history, the PSR calculated the Guideline range at twenty-seven to thirty-three months imprisonment. Duhon objected to the PSR’s suggested enhancements for the age of the children and number of images involved, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He argued that these facts had neither been admitted to nor found by a jury beyond a reasonable doubt. He also moved for a downward departure, claiming that a back injury he suffered in 1987 was an extraordinary physical impairment that warranted a sentence below the applicable Guideline range. See U.S.S.G. § 5H1.4. At a sentencing hearing on August 25, 2004, the district court denied Duhon’s motion for a downward departure. Considering Duhon’s Blakely motion, the court decided to stay sentencing until the Supreme Court issued its ruling in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Before adjourning, the court expressed hostility toward the Sentencing Guidelines, lamented Congress’s criminalization of possessing child pornography, and promised that he would give Duhon “the lowest" }, { "docid": "12579931", "title": "", "text": "were omitted or were masked by an undue emphasis on the former charge would there be any hope of showing lack of notice. But the false statements were explicitly and extensively charged, and at trial defense counsel did seek to refute them where he could do so. Counsel may be arguing that the charge of sham required the defense to accredit Lombardi and downplay its hostility to his adverse testimony. In fact, the sham charge opened up an opportunity to focus the defense on an issue where Mueffelman had some hope of prevailing and to downplay the false representations issue where the defense was considerably weaker. In any event, the fact that a witness might help as to one issue and hurt on another is just a “can’t help” of the litigation process. Separately, Mueffelman attacks his sentence, which occurred in the period after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district judge correctly anticipated that Blakely would undermine the then-existing mandatory guideline regime. She chose therefore to treat the guidelines as advisory although instructive, United States v. Mueffelman, 327 F.Supp.2d 79, 96 (D.Mass.2004) (“Mueffelman I”), and turned out to be right. Under the pertinent guidelines, the base offense level for the fraud was 6, U.S.S.G. § 2F1.1(a) (1995), adjusted upward for multiple and vulnerable victims, U.S.S.G. §§ 2F1.1(b)(2), 3A1.1(b). Mueffelman II, 400 F.Supp.2d at 372. The most important adjustment was for the loss inflicted. The government argued for 11 additional levels based on an intended loss to victims of at least $1.1 million, the figure calculated by the probation report. The resulting range, based on an offense level of 21, was 37 to 46 months. The district court, believing that the scheme had not been a sham at the outset, ruled that the loss overstated Mueffelman’s culpability and reduced the offense level to 18, yielding a range of 27 to 33 months. Mueffelman II, 400 F.Supp.2d at 379. The district court then sentenced Mueffel man to" }, { "docid": "23361591", "title": "", "text": "3510(c) (noting that the definition of “victim” under § 3510 includes all persons defined under § 503(e)(2) of the Victims’ Rights and Restitution Act of 1990, which is codified at 42 U.S.C. § 10607(e)(2)). Thus, Mr. Jenkins was “a person authorized by statute to be present.” Fed. R.Evid. 615(4). Finally, there was no request for a cautionary instruction and there was absolutely no suggestion that Mr. Jenkins discussed his testimony with others. Consequently, there was no error and Mr. Visinaiz’ arguments are without merit. G. Booker/Blakely — Sentencing and Restitution 1. Sentencing Mr. Visinaiz argues that, following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court erred in calculating his sentence. Aplt. Br. at 83. Mr. Visinaiz has properly preserved this argument by objecting at sentencing that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court erroneously took into account judge-found facts in applying a four-level enhancement to his base offense level. IX R. Tr. at 24-25, 45. The district court adopted the PSR’s recommendations for two separate two-level enhancements for obstructing justice and a vulnerable victim. Id. at 46. Where a defendant preserves a potential Booker error, we will remand if the error was not harmless, that is, if the error may have affected the defendant’s substantial rights. See United States v. Labastida-Segura, 396 F.3d 1140, 1142-43; Fed.R.Crim.P. 52(a). There are two types of error under Booker: non-constitutional error and constitutional error. United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.2005) (en banc). Non-constitutional error derives from the so-called remedial portion of Booker, which severed the statutory provision requiring mandatory application of the Sentencing Guidelines in most cases. Booker, 125 S.Ct. at 764 (severing 18 U.S.C. § 3553(b)(1)). This severance has rendered the Guidelines mainly advisory, although sentencing courts must still consult the Guidelines and the factors of 18 U.S.C. § 3553(a). Id. at 767. Appellate courts will reverse a sentence if it is deemed unreasonable. Id. Constitutional Booker error, on the other hand, occurs in the context of a mandatory sentencing" }, { "docid": "18245017", "title": "", "text": "are to “consider” Guidelines ranges, see 18 U.S.C. § 3553(a)(4), but are permitted to tailor their sentences in light of other statutory concerns. See § 3553(a); Booker, 125 S.Ct. at 757-69. After Booker, the defendant moved for re-sentencing; the government opposed. I declined to re-sentence. My decision in Mueffelman I was consistent with the United States Supreme Court’s later decision in Booker. I sentenced Mueffelman to twenty-seven months in prison and Lombardi, who cooperated, to three years of probation. I ordered restitution in the amount of $907,864.89. I. GUIDELINE ANALYSIS The government and Probation argued for a loss of between $800,000 and $1,500,000, which would increase the base offense level eleven levels to a level seventeen (base offense of six plus an eleven level enhancement) U.S.S.G. § 2Fl.l(a), § 2Fl.l(b)(l)(L); an adjustment for more than one victim, under U.S.S.G. § 2Fl.l(b)(2)(B), with an additional two levels; and an adjustment for a vulnerable victim under U.S.S.G. § 3Al.l(b) for two more points. The result was a base offense level of twenty-one with a category I criminal history, yielding a Guideline range of thirty-seven to forty-six months. Defendant argued pre-Booker that there should be no enhancement beyond the base offense level of six, because the issues of loss (as well as the number of victims and the vulnerability of the victims) were not submitted to the jury. At a base offense level of six, with a criminal history of I, the Guideline range was zero to six months. Post-Booker, defendant has ar gued that probation is the most appropriate sentence because it would maximize defendant’s ability to pay restitution under 18 U.S.C. § 3553(a)(7)(describing “the need to provide restitution to any victims of the offense”). The principal issue driving both the sentence and the restitution amount was the “loss” to which I now turn. II. LOSS A. General Principles The amount of loss that a given crime has engendered is surely one measure of the seriousness of the offense. Sometimes loss is an entirely appropriate proxy for culpability. At other times, it is not. All other things being equal, one who causes" }, { "docid": "16348286", "title": "", "text": "to avoid prosecution, and Johnson provided valuable information to the United States Marshals Service that led to their arrest while they were living in Honduras under assumed names. A Presentence Investigation Report (PSR) was prepared before Johnson’s sentencing. At the initial sentencing hearing Johnson objected to the PSR’s failure to recommend that he receive a minor participant reduction under U.S.S.G. § 3B1.2(b), and the court asked the probation officer to prepare a supplemental report describing the conduct of the other participants. At the final sentencing hearing, the district court found that Johnson was accountable for 302,400 pseudoephedrine pills, amounting to 18.14 kilograms of pseudoephedrine, which resulted in a base offense level of 38 under the sentencing guidelines. For his acceptance of responsibility the court reduced the offense level two levels under U.S.S.G. § 3El.l(a) and another one under § 3E 1.1(b). The court found that Johnson had not played a minor role and denied a § 3B 1.2(b) reduction, but it granted the government’s motion for a five level downward departure under U.S.S.G. § 5K1.1 based on Johnson’s substantial assistance. The resulting total offense level of 30, combined with Johnson’s criminal history category I, led to a sentencing range of 97 to 121 months. The court imposed a sentence of 97 months. Johnson argues on appeal that the district court erred by failing to grant him a two level reduction as a minor participant and that his sentence violated the Sixth Amendment in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, — U.S. --, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Johnson argues that he was entitled to the minor role reduction because he was not as culpable as the Frenches, had a lesser role in the offense, and cooperated with the authorities, citing United States v. Martin, 369 F.3d 1046 (8th Cir.2004) (minor role reduction not clearly erroneous where another defendant obstructed justice and organized the illegal scheme). He points out that the" }, { "docid": "12579930", "title": "", "text": "by themselves, amount to a violation of the statute[,]” provided that the indictment “enable[s] the accused to know the nature and cause of the accusation against him.” United States v. Callipari, 368 F.3d 22, 34 (1st Cir.2004), vacated on other grounds, 543 U.S. 1098, 125 S.Ct. 985, 160 L.Ed.2d 998 (2005) (quoting United States v. Doherty, 867 F.2d 47, 55 (1st Cir.1989)). As Callipari demonstrates, a variance is fatal only if the defendant shows prejudice. Mueffelman says that, to refute the sham allegation, he chose in his cross-examination of Lombardi to bring out and adopt Lombardi’s assertions showing that the participants had not sought to perpetrate a sham. If no sham had been charged, says defense counsel, there would have been no need to rely on Lombardi and the defense would have concentrated more on refuting the charges of false representations. The argument does not wash. Most important, the government was perfectly entitled to charge in one indictment both that the business was a sham and that it involved false representations. Only if the latter were omitted or were masked by an undue emphasis on the former charge would there be any hope of showing lack of notice. But the false statements were explicitly and extensively charged, and at trial defense counsel did seek to refute them where he could do so. Counsel may be arguing that the charge of sham required the defense to accredit Lombardi and downplay its hostility to his adverse testimony. In fact, the sham charge opened up an opportunity to focus the defense on an issue where Mueffelman had some hope of prevailing and to downplay the false representations issue where the defense was considerably weaker. In any event, the fact that a witness might help as to one issue and hurt on another is just a “can’t help” of the litigation process. Separately, Mueffelman attacks his sentence, which occurred in the period after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district" } ]
518503
Clapp, 14 R. I. 248; Robertson v. Montgomery B. B. Ass’n, 141 Ala. 348, 37 So. 388, 109 Am. St. Rep. 30, 3 Ann. Cas. 965). A court will not presume that a court of competent jurisdiction will permit itself to be made the instrumentality through which an unlawful purpose may be accomplished. Robertson v. Montgomery B. B. Ass’n, supra; Dayton v. Relf, 34 Wis. 86; Schell v. Erie Ry. Co., 51 Barb. (N. Y.) 368; Wolfe v. Burke, 56 N. Y. 115. As stated in the opinion filed the 12th of March, the issue in the state court is the general fund, and can east no cloud upon the title of plaintiffs’ bonds drawn on the special fund. REDACTED C. A. 192, does not apply. Nor are we here concerned with relief equity will afford in the specific performance action; hence the cases cited have no application. Goshen Mfg. Co. v. Myers, 242 U. S. 202, 37 S. Ct. 105, 61 L. Ed. 248, was a patent ease. The patent being retained, the menace was open, even though manufacturing had ceased. Sears, Roebuck & Co. v. F. T. Com’n, 258 F. 307, 169 C. C. A. 323, 6 A. L. R. 358, was an unfair “method of competition” case and a federal trade commission order to desist from unfair practices in connection with sale of sugar, etc., was not improvidontly issued because the methods had been discontinued. These eases are
[ { "docid": "7251272", "title": "", "text": "MORROW, Circuit Judge (after stating the facts as above). For the present purposes the allegations of the bill must be táken as true. They state a case for the removal of a cloud upon the title to personal property. It has been held that such a case is within the jurisdiction of a court of equity. 6 Pomeroy’s Equity Jurisprudence, § 729; Sherman v. Fitch, 98 Mass. 59; Voss v. Murray, 50 Ohio St. 19, 32 N. E. 1112; Rosenbaum v. Foss, 4 S. D. 184, 56 N. W. 114; Stebbins v. Perry County, 167 Ill. 567, 47 N. E. 1048; Earle v. Maxwell, 86 S. C. 1, 67 S. E. 962, 138 Am. St. Rep. 1012; Magnuson v. Clithero, 101 Wis. 551, 77 N. W. 882; New York & New Haven Ry. Co. v. Schuyler, 17 N. Y. 592. This jurisdiction is recognized as existing in a federal court of equity by section 8 of the act of March 3, 1875 (18 Stats. 472), incorporated into section 57 of the Judicial Code. Jellenik v. Huron Copper Min. Co., 117 U. S. 1, 20 Sup. Ct. 559, 44 L. Ed. 647; Louisville & Nashville Ry. Co. v. Western Union Tel. Co., 234 U. S. 369, 371, 34 Sup. Ct. 810, 58 L. Ed. 1356. The refusal of the defendants to pay the interest coupons attached to the bonds of the district is based upon the claim that about one-fifth of the bonds issued and sold by the district were sold without consideration, or any adequate consideration, being paid therefor, but this claim is made without any statement as to which of said bonds were so issued, and without designating such bonds by number or otherwise so that the holders’ of the bonds generally can learn or ascertain which particular bonds the defendants claim to have been illegally issued, or issued without adequate consideration. This assertion or claim on the part of the defendants, and their refusal to pay the interest on any of the bonds, depreciates their value in the market and casts a cloud upon the title of the" } ]
[ { "docid": "15791019", "title": "", "text": "defendants. The plaintiff’s alleged cause of action against the tea company can only be based •on a tort, comparatively recently developed, falling under a category of maliciously inducing breaches of contract. Cf. Harvard Law Review, Vol. 36, pp. 633, 674, 702; Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 205, 223, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S. 1, 13, 14, 14 S. Ct. 240, 38 L. Ed. 55; Beekman v. Marsters, 195 Mass. 205, 210, 80 N. E. 817, 11 L. R. A. (N. S.) 201, 122 Am. St. Rep. 232, 11 Ann. Cas. 332. IV. The real object of all interlocutory motions is to lead up to an issue which may be tried. If on such a motion a fatal weakness in the moving party’s case develops, such infirmity is opened up, and the motion may turn out to be a boomerang. Cf. Cheatham v. Wheeling & Lake Erie Ry. Co. (D. C.) 37 F.(2d) 593; Welch v. Warner (D. C.) 46 F.(2d) 231, decided June 17th, 1930, and since affirmed. (C. C. A.) 46 F.(2d) 232. That is the situation here, and, when I realized the possibility of its arising, I wrote counsel for the parties, calling attention to what I believed to be the controlling authorities which prevented the plaintiff from maintaining his action and received citations of authorities severally relied on by the parties in that regard. As a result, I find that my first impression is correct. V. The plaintiff is suing here on the same cause of action as that in his suit before Mr. Justice Mullan in the Supreme Court for Bronx County. Indeed his allegations, as above indicated, are almost identic in this action and in that. He is merely asking now for another form of relief which he might have secured in the state court equity suit. Hahl v. Sugo, 169 N. Y. 109, 114, 62 N. E. 135, 61 L. R. A. 226, 88 Am. St. Rep. 539; Lamming v." }, { "docid": "17949664", "title": "", "text": "of Sugar Refining Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325), they have seen to it that their product was followed from factory to consumer, until with their system working perfectly they not only controlled the source of supply and regulated production, but regulated the consumption of every person in the land who required what they made. This conduct “directly concerned the shipment of goods from one state to another,” and operated, “not alone upon the manufacturer, but upon the sale, transportation, and delivery of an article of interstate commerce by preventing or restricting its sale.” Montague v. Lowrie, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608, as cited in 193 U. S. 390, 24 Sup. Ct. 436, 48 L. Ed. 679. Not only do the facts alleged show a combination producing a result detrimental to interstate commerce, but they also show concerted action to bring about that result, and the result as shown constitutes that “virtual” monopoly in the interstate distribution of the substance manufactured by the corporate defendants which brings the matter within the decisions differentiating the modern use of the word “monopoly” from that grant by royal patent which was the origin of the phrase. People, etc., v. North River Sugar Ref. Co., 121 N. Y. 582, 24 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843; Id., 54 Hun, 354, 3 N. Y. Supp. 401, 2 L. R. A. 33, 7 N. Y. Supp, 406, 5 L. R. A. 386; State v. Standard Oil Co., 49 Ohio St. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541; De Witt Wire Cloth Co. v. N. J. Wire Cloth Co. (Com. Pl.) 14 N. Y. Supp. 277; Nat. Cotton Oil Co. v. Texas, 197 U. S. 115, 25 Sup. Ct. 379, 49 L. Ed. 689; United States v. Knight, 156 U. S., at page 17, 15 Sup. Ct. 249, 39 L. Ed. 325. (b and c) Individual defendants not engaged in interstate commerce, and every act alleged a corporate" }, { "docid": "14726050", "title": "", "text": "claimants to remove the barge on Tuesday and Wednesday to associate them equally with the road in resulting damage; they contributed to the injury. A more perplexing question arises as to the effect of this neglect. The injury was on land over which the admiralty had no jurisdiction. Yet the District Court got jurisdiction because of the limitation proceeding. And so, had the suit been an action at law, the plaintiff’s contributory negligence would have been a complete defence; in the admiralty it results only in a division of damages. We, have to decide which rule applies here. It is well settled that where the wrong occurs in one jurisdiction, and action is brought in another, the rule of contributory negligence of the first governs. Illinois Central R. Co. v. Ihlenberg (C. C. A. 6) 75 F. 873, 34 L. R. A. 393; Long v. Atlantic, etc., R. Co., 238 F. 919 (C. C. A. 4); Caine v. St. Louis, etc., R. Co., 209 Ala. 181, 95 So. 876, 32 A. L. R. 793; Louisville & N. R. Co. v. Whitlow’s Adm’r, 43 S. W. 711, 19 Ky. Law Rep. 1931, 41 L. R. A. 614; East Tennessee, etc., R. Co. v. Lewis, 89 Tenn. 235, 14 S. W. 603; Fitzpatrick v. International Ry. Co., 252 N. Y. 137, 169 N. E. 112, 68 A. L. R. 801. The law of the place where the tort occurs also controls the extent of the recovery. Slater v. Mexican National R. Co., 194 U. S. 120, 24 S. Ct. 581, 48 L. Ed. 900; Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 14 S. Ct. 978, 38 L. Ed. 958; The Eagle Point, 142 F. 453 (C. C. A. 3). The same is true of more truly procedural issues (Central Vermont R. Co. v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252), at least when a statute is concerned. Galef v. U. S. (D. C.) 25 F. (2d) 134, is not to the contrary; it turned upon the fact that both" }, { "docid": "3018243", "title": "", "text": "Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; Rafferty v. Davis, 260 Pa. 563, 103 A. 951; Mulchanock v. Whitehall Cement Mfg. Co., 253 Pa. 262, 98 A. 554, L. R. A. 1917A, 1015; Wells v. Knight, 32 R. I. 432, 80 A. 16; Hickey v. McCabe, 30 R. I. 346, 75 A. 404, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783; Gossett v. So. Ry. Co., 115 Tenn. 376, 89 S. W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846; Schade Brewing Co. v. C., M. & St. P. Ry., 79 Wash. 651, 140 P. 897; Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 48 L. R. A. (N. S.) 740. And the rule of absolute liability for direct injury from blasting has been applied, not only to damage to property, but to the person. Wright v. Compton, 53 Ind. 337; Louisville & N. R. Co. v. Smith’s Adm’r, 203 Ky. 513, 263 S. W. 29, 35 A. L. R. 1238; Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258. See, also, Miles v. Forest Rock Granite Co., 34 Times Law Reports, 500. It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or débris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability, for the latter where the blasting itself was conducted at a lawful time and place and with due care. Booth v. Rome, W. O. T. Ry. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552; Simon v. Henry, 62 N. J. Law, 486, 41 A. 692; Bessemer, etc., Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L. R. A. (N. S.) 389; Gibson v. Womack, 218 Ky. 626, 291 S. W. 1021, 51 A." }, { "docid": "22812229", "title": "", "text": "by a receiver out of the proceeds of the estate of an insolvent that clear proof be made that the trust property or its proceeds went into a specific fund or into a specific identified piece of property which came to the hands of the, receiver, and them the claim can be sustained to that fund or property only and only to the extent that the trust property or its proceeds went into it. It is not sufficient to prove that the trust property or its proceeds went into the general assets of the insolvent estate and increased the amount and the value thereof which came to the hands of the receiver. Peters v. Bain, 133 U. S. 670, 693, 694, 10 Sup. Ct. 354, 33 L. Ed. 696; Spokane County v. First Nat. Bank, 68 Fed. 979, 982, 16 C. C. A. 81, 84; Board of Com’rs v. Patterson (C. C.) 149 Fed. 229; Frelinghuysen v. Nugent (C. C.) 36 Fed. 229, 239; Board of Com’rs v. Strawn, 157 Fed. 49, 51, 84 C. C. A. 553, 555, 15 L. R. A. (N. S.) 1100; Rowe v. Jones, 192 Mass. 94, 101, 78 N. E. 402, 6 L. R. A. (N. S.) 487, 116 Am. St. Rep. 225, 7 Ann. Cas. 551; Cherry v. Territory, 17 Okl. 213, 89 Pac. 190; St. Louis Brewing Ass’n v. Austin, 100 Ala. 313, 13 South. 908; Little v. Chadwick, 151 Mass. 109, 23 N. E. 1005, 7 L. R. A. 570; Howard v. Fay, 138 Mass. 104; Attorney General v. Brigham, 142 Mass. 248, 7 N. E. 851; Erie Ry. Co. v. Dial, 140 Fed. 689, 72 C. C. A. 183; Ferchen v. Arndt, 26 Or. 121, 37 Pac. 161, 29 L. R. A. 664, 46 Am. St. Rep. 603; Blake v. State Savings Bank, 12 Wash. 619, 41 Pac. 909, 910; In re North River Bank, 60 Hun, 91, 14 N. Y. Supp. 261; Williams v. Van Norden Trust Co., 104 App. Div. 251, 257, 93 N. Y. Supp. 821; Bishop v. Mahoney, 70 Minn. 238, 73 N. W. 6; Nonotuck" }, { "docid": "22812230", "title": "", "text": "C. A. 553, 555, 15 L. R. A. (N. S.) 1100; Rowe v. Jones, 192 Mass. 94, 101, 78 N. E. 402, 6 L. R. A. (N. S.) 487, 116 Am. St. Rep. 225, 7 Ann. Cas. 551; Cherry v. Territory, 17 Okl. 213, 89 Pac. 190; St. Louis Brewing Ass’n v. Austin, 100 Ala. 313, 13 South. 908; Little v. Chadwick, 151 Mass. 109, 23 N. E. 1005, 7 L. R. A. 570; Howard v. Fay, 138 Mass. 104; Attorney General v. Brigham, 142 Mass. 248, 7 N. E. 851; Erie Ry. Co. v. Dial, 140 Fed. 689, 72 C. C. A. 183; Ferchen v. Arndt, 26 Or. 121, 37 Pac. 161, 29 L. R. A. 664, 46 Am. St. Rep. 603; Blake v. State Savings Bank, 12 Wash. 619, 41 Pac. 909, 910; In re North River Bank, 60 Hun, 91, 14 N. Y. Supp. 261; Williams v. Van Norden Trust Co., 104 App. Div. 251, 257, 93 N. Y. Supp. 821; Bishop v. Mahoney, 70 Minn. 238, 73 N. W. 6; Nonotuck Silk Co. v. Flanders, 87 Wis. 237, 58 N. W. 383; Burnham v. Barth, 89 Wis. 362, 366, 62 N. W. 96; Bradley v. Chesebrough, 111 Iowa, 126, 82 N. W. 472; Lebanon Trust & Safe Deposit Bank’s Assigned Estate, 166 Pa. 622, 31 Atl. 334; Marquette Fire Com’rs v. Wilkinson, 119 Mich. 655, 670, 78 N. W. 893, 44 L. R. A. 493; Hauk v. Van Ingen, 196 Ill. 20, 39, 63 N. E. 705; Ellicott v. Kuhl, 60 N. J. Eq. 333, 46 Atl. 945; Ober v. Cochran. 118 Ga. 396, 45 S. E. 382, 98 Am. St. Rep. 118; In re Mulligan (D. C.) 116 Fed. 715, 717, 718; Holmes v. Gilman, 138 N. Y. 369, 376, 34 N. E. 205, 20 L. R. A. 566, 34 Am. St. Rep. 463; In re Hicks, 170 N. Y. 195, 198, 63 N. E. 276. (2) Proof that a trustee mingled trust funds with his own and made payments out of the common fund is a sufficient identification of the remainder of that fund" }, { "docid": "6859525", "title": "", "text": "does not appear. Without the imposition of some legal restraint by the courts not to continue acts found to be unfair methods of competition, the Federal Trade Commission would not be justified in relying upon a mere promise not to engage in these practices. See Sears, Roebuck & Co. v. Federal Trade Commission, 258 F. 307, 169 C. C. A. 323, 6 A. L. R. 358; Guarantee Veterinary Co. et al. v. Federal Trade Commission (C. C. A.) 285 F. 853, 859; Fox Film Corporation v. Federal Trade Commission (C. C. A.) 296 F. 353, 357. Whether the practices of the respondents constitute unfair methods of competition must be decided by us under the opinion of the Supreme Court in Federal Trade Commission v. Beech-Nut Packing Co., 42 S. Ct. 150, 257 U. S. 441, 66 L. Ed. 307, 19 A. L. R. 882. In United States v. Colgate Co., 39 S. Ct. 465, 250 U. S. 300, 63 L. Ed. 992, 7 A. L. R. 443, which came to the Supreme Court directly from the District Court upon its sustaining a demurrer to an indictment against the Colgate Company, the Supreme Court held that, as there was no allegation in the indictment that any contract was entered into by or on the part of the defendant with any of its retail customers in restraint of interstate trade and commerce, the judgment of the District Court must be affirmed, and stated: “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long-recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell,” —and distinguished that case from Dr. Miles Medical Co. v. Park & Sons, 31 S. Ct. 376, 220 U. S. 373, 55 L. Ed. 502; where there was a contract showing a combination between the seller and retail dealers in regard to the maintenance of resale prices." }, { "docid": "3018043", "title": "", "text": "S., 271 U. S. 268, 46 S. Ct. 500, 70 L. Ed. 941. As to the contention of plaintiffs that ¡the law is unconstitutional because of uncertainty in its definitions of “unfair, unjust, unreasonable and discriminatory practices,” we observe that the Supreme Court has held that the term “unreasonable restraint of trade” condemned under the Sher.man Act (15 USCA §§ 1-7, 15), as defined in Standard Oil Company v. U. S., 221 U. S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734, did not render the act so vague as to be inoperative. Nash v. U. S., 229 U. S. 373, 33 S. Ct. 780, 57 L. Ed. 1232; U. S. v. Patterson (D. C.) 201 F. 697. In Hall v. Geiger, 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643, the court refused to condemn a statute providing for the revocation of a stockbroker’s license by a commissioner upon the latter’s finding the broker to be “of bad business repute” or engaged in “illegitimate business or fraudulent transactions.” The phrase “unfair methods of competition” condemned by the Federal Trade Commission Act (15 USCA §§ 41-51) was held sufficiently certain in Sears et al. v. Federal Trade Commission (C. C. A.) 258 F. 307, 6 A. L. R. 358; Federal Trade Commission v. Balme (C. C. A.) 23 F.(2d) 615, certiorari denied, 277 U. S. 598, 48 S. Ct. 560, 72 L. Ed. 1007. Furthermore, as to this contention as well as those that the definition of commerce contained within the act usurps the function of the courts and that the act is invalid for the reason that it fails to prescribe adequate proceedings for the hearings and for the exercise of power by the Secretary, it is sufficient to observe that the Supreme Court by its decisions in Stafford v. Wallace, 258 U. S. 495, 42 S. Ct. 397, 66 L. Ed. 735, 23 A. L. R. 229; U. S. v. American Livestock Commission Co.," }, { "docid": "23035239", "title": "", "text": "in the mark, Robertson v. U. S., 52 App. D. C. 368, 287 F. 942; Fulton Waterworks Co. v. Bear Lithia Springs Co., 47 App. D. C. 437; Spiegel v. Zuckerman, 188 F. 63 (C. C. A. 2); Anheuser-Busch, Inc., v. Cohen, 37 F.(2d) 393 (D. C.); United Drug Co. v. Rectanus Co., 248 U. S. 90, 39 S. Ct. 48, 63 L. Ed. 141. Nor is such registration controlling in a suit involving the common-law rights to the j-egistered mark or in a suit for unfair competition involving its use. B. F. Goodrich Co. v. Kenilworth Mfg. Co. (Cust. & Pat. App.) 40 F.(2d) 121; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 47 S. Ct. 284, 71 L. Ed. 478. Any person, partnership, corporation, or unincorporated association capable of holding title to personalty may acquire the right to a trade-mark. The owner may be the manufacturer of the article to which the trademark is applied or the seller of goods of a particular manufacture or quality to which the distinguishing mark is applied. McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Nelson v. Winchell, 203 Mass. 75, 89 N. E. 180, 23 L. R. A. (N. S.) 1150; Hughes v. Alfred H. Smith Co. (D. C.) 205 F. 302; Id. (C. C. A.) 209 F. 37; Manitou Springs Mineral Water Co. v. Schueler (C. C. A.) 239 F. 593; Schmalz v. Wooley, 57 N. J. Eq. 303, 41 A. 939, 43 L. R. A. 86, 73 Am. St. Rep. 637; Atlantic Milling Co. v. Robinson (C. C.) 20 F. 217. A registered trade-mark is assignable in connection with the good will of the business in which the mark is used by a duly acknowledged instrument in writing. 15 USCA § 90. Trade-mark rights are assignable by the owner with the business or the right to make or sell the commodity which it distinguishes or identifies (Sarrazin v. W. R. Irby Cigar & Tobacco Co., 93 F. 624, 46 L. R. A. 541 [C. C. A. 5] ; Kidd v. Johnson, 100" }, { "docid": "23096623", "title": "", "text": "the Borden Case is out of harmony with the modern law of unfair competition. See cases cited note 1, infra. A corporate name is in the nature of a property right. American Steel Foundries v. Robertson, 260 U. S. 372, 380, 381, 46 S. Ct. 160, 70 L. Ed. 317; Standard Oil Co. of N. Y. v. Standard Oil Co. of Me. (D. C. Me.) 38 F.(2d) 677, 679; Iowa Auto Market v. Auto Market & Exchange, 197 Iowa, 420, 197 N. W. 321; Newby v. Oregon Cent. R. Co., F. Cas. No. 10,144; Daughters of Isabella No. 1 v. National Order, Daughters of Isabella, 83 Conn. 679; 78 A. 333, 335, Ann. Cas. 1912A, 822; Fletcher Cyc. Corporations, (Per. Ed.) vol. 6, § 2415. By the prior lawful entry into a field under a legally adopted name, and by prior appropriation and use thereof, a corporation acquires a right to such name which the law will recognize and protect. American Steel Foundries v. Robertson, 269 U. S. 372, 381, 46 S. Ct. 160, 70 L. Ed. 317; National Circle, Daughters of Isabella v. National Order of Daughters of Isabella (C. C. A. 2) 270 F. 723, 732; American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; Wheeler Syndicate v. Wheeler, 99 Misc. Rep. 289, 163 N. Y. S. 817; Henry Mfg. Co. v. Henry Screen Mfg. Co., 204 App. Div. 27, 197 N. Y. S. 444; Rosenburg v. Fremont Undertaking Co., 63 Wash. 52, 114 P. 886; Federal Securities Co. v. Federal Securities Corp., 320 Or. 375, 276 P. 1100, 1102, 66 A. L. R. 934. There is an important distinction between a corporate name and an individual name in respect to the manner of their acquisition. A corporation acquires its name by choice and need not select a name identical with or similar to one already appropriated by a senior corporation, while an individual’s name is thrust upon him. Generally speaking, a trade-mark is applicable to the vendible commodity to which" }, { "docid": "16142098", "title": "", "text": "v. Jensen, 244 U. S. 249, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, the dissent not dealing with this proposition.” It is true that New York, N. H. & H. R. Co. v. Fruchter, supra, was reversed in the Supreme Court (260 U. S. 141, 43 S. Ct. 38, 67 L. Ed. 173) but not because the New York law applied, but on the same ground taken in United Zinc Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28, that the doctrine laid down in Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, and Union Pacific Ry. Co. v. McDonald, 152 U. S. 262,14 S. Ct. 619, 38 L. Ed. 434, did not cover the facts presented. In National Metal Edge Box Co. v. Agos-tini, 258 F. 109, 110, this court again followed the Stout Case in an appeal coming up from the District of Vermont saying, per Mantón, J.: “This doctrine has found approval in the federal courts and, since this action was tried in the federal court, the rule prevailing there, rather than the rule prevailing in the Ver mont state court, will be adopted. The Vermont courts have refused to follow the doctrine of the 'turntable’ eases.” See, also, Snare & Triest v. Friedman (C. C. A.) 169 F. 1, 40 L. R. A. (N. S.) 367; Escanaba Mfg. Co. v. O’Donnell (C. C. A.) 212 F. 648; Cheske v. Delaware & Hudson Co. (C. C. A.) 218 F. 804; Public Service Ry. Co. v. Wursthorn (C. C. A.) 278 F. 408. But there have been'other decisions, where the rights of owners of real property have been affected, that have been treated by the Supreme Court as involving matters of general jurisprudence, rather than as determining the law of real estate. In B. & W. Taxi Co. v. B. & Y. Taxi Co., 276 U. S. 518, 48 S. Ct. 404, 410, 72 L. Ed. 681, 57 A. L. R. 426, a Kentucky" }, { "docid": "17719028", "title": "", "text": "Foss-Schneider Co. v. Bullock, 59 Fed. 83, 8 C. C. A. 14; Bowes v. Shand, L. R. 2 App. Cas. 455, 46 L. J. Q. B. 561; Elliott on Contracts, § 2048; Inman, Akers & Inman v. Elk, 116 Tenn. 141, 92 S. W. 760; Brown v. Norton, 50 Hun, 248, 2 N. Y. Supp. 869; Prescott v. Powles, 113 Wash. 177, 193 Pac. 680; 23 R. C. L. “Sales,” § 244; Galle v. Hamburg, 233 Fed. 424, 147 C. C. A. 360; H. B. Williams Cooperage Co. v. Scofield, 115 Fed. 119, 53 C. C .A. 23; Ruling Case Law Sales, § 258; Williston on Sales, §§ 495, 457; McNairy v. Bishop, 8 Dana (Ky.) 150; Weltner v. Riggs, 3 W. Va. 445; Spooner v. Baxter, 16 Pick. (Mass.) 409; Rogers v. Van Hoesen, 12 Johns. (N. Y.) 220; Frost v. Knight, L. R. 7 Exch. 111; 6 R. C. L. “Contracts,” § 385; Dambmann v. Lorentz, 70 Md. 380, 17 Atl. 389; 14 Am. St. Rep. 364; Krebs Hop Co. v. Livesley, 59 Or. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C, 758; Greenwall, etc., Co. v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302; Ernst v. Schmidt, 66 Wash. 452, 119 Pac. 828, Am. & Eng. Ann. Cases 1913C, 389; Rubber Trading Co. v. Manhattan, 221 N. Y. 120, 116 N. E. 789; Gentry v. Margolius, 110 Tenn. 669, 75 S. W. 959; Rayburn v. Comstock, 80 Mich. 448, 45 N. W. 378; Habeler v. Rogers, 131 Fed. 45, 65 C. C. A. 281; Eastern Oregon Land Co. v. Moody, 198 Fed. 7, 119 C. C. A. 135; Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080; Williston on Contracts, § 832; Thick v. Detroit, etc., Co., 137 Mich. 708, 101 N. W. 64, 109 Am. St. Rep. 694; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831; Whitney v. McLean, 4 App. Div. 449, 38 N. Y. Supp. 793; Daniel on Negotiable Instruments (3d Ed.) 1734b, 1734c. <©cs>For other cases" }, { "docid": "6859524", "title": "", "text": "been used is not limited to eases where the practice had become general. What section 5 declares unlawful is not unfair competition. That had been unlawful before. What that section made unlawful were unfair methods of competition. * «■ The purpose of Congress was to prevent any unfair method which may have been used by any concern in competition from becoming its general practice.” See, also, Fox Film Corporation v. Federal Trade Commission (C. C. A.) 296 F. 353, 356. In their answer the respondents practically admit that the methods employed in the five Michigan cities constituted unfair methods of competition; but they say that they discontinued these practices early in 1924. The only evidence that we find in the record that this was so is that they had discontinued at that time to send out the postal cards upon which the consumer was to indicate his consent to conform to the minimum price established and to co-operate in its maintenance; but whether this was done before the date of the complaint, April 2, 1924, does not appear. Without the imposition of some legal restraint by the courts not to continue acts found to be unfair methods of competition, the Federal Trade Commission would not be justified in relying upon a mere promise not to engage in these practices. See Sears, Roebuck & Co. v. Federal Trade Commission, 258 F. 307, 169 C. C. A. 323, 6 A. L. R. 358; Guarantee Veterinary Co. et al. v. Federal Trade Commission (C. C. A.) 285 F. 853, 859; Fox Film Corporation v. Federal Trade Commission (C. C. A.) 296 F. 353, 357. Whether the practices of the respondents constitute unfair methods of competition must be decided by us under the opinion of the Supreme Court in Federal Trade Commission v. Beech-Nut Packing Co., 42 S. Ct. 150, 257 U. S. 441, 66 L. Ed. 307, 19 A. L. R. 882. In United States v. Colgate Co., 39 S. Ct. 465, 250 U. S. 300, 63 L. Ed. 992, 7 A. L. R. 443, which came to the Supreme Court directly from" }, { "docid": "22921823", "title": "", "text": "For example,, no sugar offers of the character assailed were máde after August, 1917. But respondent was required to find from all the evidence before it what was the real nature of petitioner’s attitude. It was permissible for respondent to take judicial notice of the government’s wartime control of sugar sales and consumption. It was also proper to note that petitioner was contending (and still contends) that the act is void for indefiniteness, that the act is unconstitutional, and that the act, even if valid, under any proper construction has not been infringed by petitioner’s practices. In Goshen Mfg. Co. v. Myers Mfg. Co., 242 U. S. 202, 37 Sup. Ct. 105, 61 L. Ed. 248, which was a suit for infringement of a patent, the defendant company averred and introduced evidence to prove that six months before the bill was filed, and with notice to complainant it had sold its factory, wound up its business, and had no intention of resuming. But throughout the intervening period and also in the answer to the bill the defendant company was attacking the validity of the patent and the right of the complainant to compel desistance. This conduct was held to be such a continuing menace as to justify the maintenance of the bill. So here, no assurance is in sight that petitioner, if it could shake- respondent’s-hand from its shoulder, would not continue its former course. II. Petitioner urges that the declaration of section 5 must be: held void for indefiniteness unless the words “unfair methods of competition” be construed to embrace no more than acts which on September 26, 1914, When Congress spoke, were identifiable as acts of unfair trade then condemned by the common law as expressed in prior cases. But the phrase is no more indefinite than “due process of law.” The general idea of that phrase as it appears in Constitutions and statutes is quite well known; but we have never encountered what purported to be an all-embracing schedule or found a specific definition that would bar the continuing processes of judicial inclusion and exclusion based upon" }, { "docid": "3619847", "title": "", "text": "judg.). Reed v. Allen, 286 U. S. 191, 199-201, 52 S. Ct. 532, 76 L. Ed. 1054, 81 A. L. R. 703; Deposit Bank v. Frankford, 191 U. S. 499, 508-512, 24 S. Ct. 154, 48 L. Ed. 276; Crescent City Live Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 152-153, 7 S. Ct. 472, 30 L. Ed. 614 ; Ransom v. City of Pierre (C. C. A. 8) 101 F. 665, 669; By-Products Recovery Co. v. Mabee (D. C. Ohio) 288 F. 401; Walz v. Agricultural Ins. Co. (D. C. Mich.) 282 F. 646; Straus v. American Publishers’ Ass’n (C. C. A. 2) 201 F. 306, 310; Oregonian Ry. Co. v. Oregon Ry. & N. Co. (C. C. Or.) 27 F. 277, 284; Smith v. Schreiner, 86 Wis. 19, 56 N. W. 160, 39 Am. St. Rep. 869; Parkhurst v. Berdell (Ct. App. N. Y.) 110 N. Y. 386, 18 N. E. 123, 6 Am. St. Rep. 384; State v. Spratt, 150 Minn. 5, 184 N. W. 31; Watson v. Richardson, 110 Iowa, 698, 80 N. W. 416, 80 Am. St. Rep. 331; Scott v. Wilson, 150 Iowa, 202, 129 N. W. 812; Moore v. Williams, 132 Ill. 591, 24 N. E. 617, 619; People v. Rickert, 150 Ill. 496, 42 N. E. 884, 886; Wilcox Trux v. Rosenberger, 169 Minn. 39, 209 N. W. 308, 310, 211 N. W. 822; Boynton v. Chicago Mill & Lbr. Co., 84 Ark. 203, 105 S. W. 77; Corinth Bk. & T. Co. v. Lawler, 218 Ala. 83, 117 So. 620; Collier v. Alexander, 142 Ala. 422, 38 So. 244; Reese v. Damato, 44 Fla. 692, 33 So. 462; Seattle Nat. Co. v. Gilmore, 167 Wash. 102, 9 P.(2d) 95, 98; Kaufman v. Klain, 69 Wash. 113, 124 P. 391, 392; Jaloff v. United Auto Indemnity Exchange, 121 Or. 187, 253 P. 883, 886; Messing v. Faulkner, 83 Kan. 115, 109 P. 1001, 1002." }, { "docid": "22466488", "title": "", "text": "21 C. C. A. 178, 186, 74 Fed. 936, 944. In Block v. Distributing Co. (C. C.) 95 Fed. 978, 980, Fuller v. Huff, 43 C. C. A. 453, 104 Fed. 141, 144, 51 L. R. A. 332, and Williams v. Mitchell (C. C. A.) 106 Fed. 168, tbe use of descriptive words such as “Standard Distilling,” “Health Food,” and “Garrom” was enjoined. The leading cases in support of injunctions restraining the use of geographical terms for the purpose of selling the goods of one manufacturer as those of another are Wotherspoon v. Currie, where the use of the name “Glenlield” was enjoined, and Montgomery v. Thompson, where the use of the word “Stone” was forbidden. The principles upon which these cases rest have been repeatedly considered and affirmed by the supreme court of the United States. In McLean v. Fleming, 96 U. S. 245, 254, 255, 24 L. Ed. 828, that court said: “Nor is it necessary, in order to give a right to an injunction, that a specific trade-mark should he infringed; hut it is sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant, and that he persists in so doing after being requested to desist. * * * Chancery protects trade-marks upon the ground that a party shall not be permitted to sell his own goods as the goods of another; and therefore he will not be allowed to use the names, marks, letters, or other indicia of another, by which he may pass off his own goods to purchasers as the manufacture of another. Croft v. Day, 7 Beav. 84; Perry v. Truefitt, 6 Beav. 66; Newman v. Alvord, 51 N. Y. 192, 10 Am. Rep. 588.” In Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 549, 550, 551, 11 Sup. Ct. 396, 34 L. Ed. 997, the court cites and reviews with approval Wotherspoon v. Currie and Montgomery v. Thompson, and says: “Undoubtedly an unfair and fraudulent competition against the business of plaintiff," }, { "docid": "7603329", "title": "", "text": "mixed question of law and fact whether such methods are unfair. These questions being determined against the trader, the administrative requirement to cease and desist, prescribed by Congress, follows as matter of course, but only provisionally. The commission’s determination of these questions is not final. Not only does the statute give a right of review thereon, upon application by an aggrieved trader, to a Circuit Court of Appeals of the United States, but the commission’s order is not enforceable by the commission, but only by order of court. “It is for the courts, not the commission, ultimately to determine as matter of law” what the words “unfair methods of competition” include. Federal Trade Commission v. Gratz, 253 U. S. 421, 40 Sup. Ct. 572, 575, 64 L. Ed. 993. Throughout the proceedings, not only before the commission, but before the court, the trader is given the right and opportunity to be heard. The act delegates to the commission no judicial powers, nor does it, in our opinion, confer invalid executive or administrative authority. Buttfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523; Pennsylvania Railroad v. International Coal Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315; Coopersville Co. v. Lemon (C. C. A. 6) 163 Fed. 145, 147, et seq., 89 C. C. A. 595; National Pole Co. v. C. & N. W. Ry. Co. (C. C. A. 7) 211 Fed. 65, 127 C. C. A. 561. The criticism that the statute makes the commission both judge and prosecutor is too unsubstantial to justify discussion. The constitutionality of the act, against objections similar to those presented here, has recently been sustained by the Circuit Court of Appeals of the Seventh Circuit in a considered and persuasive opinion. Sears, Roebuck & Co. v. Federal Trade Commission, 258 Fed. 307, 169 C. C. A. 323, 6 A. L. R. 358. None of the petitioner’s citations contain, in our opinion, anything" }, { "docid": "17719027", "title": "", "text": "Hawthorne Brothers & Co., 18 T. L. R, 716; Tri-Bullion Smelting Co. v. Jacobsen, 233 Fed. 646, 147 C. C. A. 454; United Press Ass’n v. National Newspaper Ass’n, 237 Fed. 547, 150 C. C. A. 429; United States v. Illinois Surety Co., 226 Fed. 653, 141 C. C. A. 409; Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 Sup. Ct. 614, 61 L. Ed. 1206; Vigers v. Sanderson, [1901] 1 K. B. 608; Wall Grocer Co. v. Jobbers’ Overall Co. (C. C. A.) 264 Fed. 71; Wieler v. Schilizzi (1855) 17 C. B. 619; Williams v. Patrick, 177 Mass. 160, 58 N. E. 583; Williston on Contracts, §§ 683, 832, 1303. Buyer cited: Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Hochster v. De la Tour, 2 E. & B. 678; Cleveland Mill Co. v. Rhodes, 121 U S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; Foss-Schneider Co. v. Bullock, 59 Fed. 83, 8 C. C. A. 14; Bowes v. Shand, L. R. 2 App. Cas. 455, 46 L. J. Q. B. 561; Elliott on Contracts, § 2048; Inman, Akers & Inman v. Elk, 116 Tenn. 141, 92 S. W. 760; Brown v. Norton, 50 Hun, 248, 2 N. Y. Supp. 869; Prescott v. Powles, 113 Wash. 177, 193 Pac. 680; 23 R. C. L. “Sales,” § 244; Galle v. Hamburg, 233 Fed. 424, 147 C. C. A. 360; H. B. Williams Cooperage Co. v. Scofield, 115 Fed. 119, 53 C. C .A. 23; Ruling Case Law Sales, § 258; Williston on Sales, §§ 495, 457; McNairy v. Bishop, 8 Dana (Ky.) 150; Weltner v. Riggs, 3 W. Va. 445; Spooner v. Baxter, 16 Pick. (Mass.) 409; Rogers v. Van Hoesen, 12 Johns. (N. Y.) 220; Frost v. Knight, L. R. 7 Exch. 111; 6 R. C. L. “Contracts,” § 385; Dambmann v. Lorentz, 70 Md. 380, 17 Atl. 389; 14 Am. St. Rep. 364; Krebs Hop Co. v. Livesley, 59" }, { "docid": "6001425", "title": "", "text": "(24 How.) 66, 16 L. Ed. 717. It cannot be granted in equity. Smith v. Bourbon, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398. There must be a positive ministerial duty, and no appropriate remedy to enforce it. State v. Knight, 31 S. C. 81, 9 S. E. 692; Shine v. Railroad Co., 85 Ky. 177, 3 S. W. 18; State v. Kinkaid, 23 Neb. 641, 32 N. W. 612. It is a proper remedy to enforce a specific ministerial act. Roberts v. U. S., 176 U. S. 230, 20 Sup. Ct. 376, 44 L. Ed. 443. It will always be denied when there is other adequate remedy. State v. Hamil, 97 Ala. 107, 11 South. 892; County of San Joaquin, etc., v. Superior Court, 98 Cal. 602, 33 Pac. 482. The writ is not a matter of right, but-is to be awarded in the discretion of the court (People v. Croton, etc., 49 Barb. [N. Y.] 259; Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580), unless a clear legal right is shown, or a statutory duty which is clear and undisputable,-and there is no other legal remedy (Ill. Central Ry. Co. v. People, 143 Ill. 434, 33 N. E. 173, Bayard v. U. S., 127 U. S. 248, 8 Sup. Ct. 1223, 32 L. Ed. 116). It is a remedy to compel performance of a duty fixed by law; no other adequate remedy being afforded, the duty being clear and undisputable. State ex rel. Krutz v. Wash. Irr. Co., 41 Wash. 283, 83 Pac. 308, 111 Am. St. Rep. 1012. The form of the action is not controlling. The court must look beyond to the-purpose of the action (State of Ind. v. Allegheny Oil Co. [C. C.] 85 Fed. 870; State of Iowa v. C., B. & Q. R. Co. [C. C.] 37 Fed. 497 [Justice Brewer]; Illinois v. Ill. Central Ry. Co. [C. C.] 33 Fed. 721 [Justice Harlan]); and police provision or license in an ordinance may also contain contract provisions, the" }, { "docid": "22352100", "title": "", "text": "empowers the Commissioner to exercise his discretion as to whether a proposed mark should be registered. If in his opinion its registration will “be likely to cause confusion or mistake in the mind of the public’ or to ‘deceive purchasers,’ he is hound to reject it.” (Italics ours.) Other decisions might be cited in support of the rule announced in the California Packing Corporation v. Price-Booker Mfg. Co., In re S. C. Herbst Importing Co. and I. E. Palmer Co. v. Nashua Manufacturing Co. Cases, supra. In the ease of American Steel Foundries v. Robertson, Commissióner, et al., 269 U. S. 372, 46 S. Ct. 160, 162, 70 B. Ed. 317, the Supreme Court, speaking with reference to the language contained in the second proviso of section 5, supra, said: “The general doctrine is that equity not only will enjoin the appropriation and use of a trade-mark or trade-name, where it is completely identical with the name of the corporation, but will enjoin such appropriation and use where the resemblance is so close as to be likely to produce confusion as to such identity, to the injury of the corporation to which the name belongs. Cape May Yacht Club v. Cape May Yacht & Country Club, 81 N. J. Eq. 454, 458, 86 A. 972; Armington & Sims v. Palmer, 21 R. I. 109, 115, 42 A. 308, 43 L. R. A. 95, 79 Am. St. Rep. 786. Judicial interference will depend upon the facts proved and found in each ease. Hendriks v. Montagu, L. R. 17 Ch., Div. 638, 648; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 469-471, 39 N. E. 490, 27 L. R. A. 42, 43 Am. St. Rep. 769. “These principles, it must be assumed, were in mind when Congress came to enact the registration statute. And, since that body has been given no power to legislate upon the substantive law of trade-marks, it reasonably may be assumed, also, that to the extent the contrary does not appear from the statute, the intention was to allow the registration of sueh marks as that" } ]
560472
in character and amount carries thorough conviction. Tested by that rule, the solution of this controversy is not difficult. Indeed, the variety of opinion expressed by the different officers who have examined this testimony is persuasive that the question of priority is doubtful, and, if doubtful, the decision of the Patent Office must control.” The Circuit Court of Appeals, in Rousso v. Barber, 3 F.(2d) 740, 741, said: “Though the Court of Appeals of the District of Columbia becomes, in a patent prosecution, an appellate tribunal of the Patent Office, its decisions .are not final. Federal courts, in suits formally brought, have full jurisdiction to re-examine all matters there determined and come to opposite decisions. Quaker City Chocolate REDACTED Yet it is equally well, established that ‘when a question between contending parties, as to priority of invention, is decided (by the Court of Appeals of the District of Columbia) the decision there must be accepted as controlling, * * * in any subsequent suit between the same parties, unless the contrary is established by testimony which, in character and amount, carries thorough conviction’ ’’ — citing Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657; Gold v. Newton, 254 F. 824, 150 C. C. A. 270, certiorari denied 249 U. S. 608, 39 S. Ct. 290, 63 L. Ed. 799. On August 10, 1914, the complainant applied for a patent upon an eyelet setting device. In
[ { "docid": "6369038", "title": "", "text": "set aside a .judgment made by the Court of Appeals of the District of Columbia within its special jurisdiction (Morgan v. Daniels, 153 U. S. 120, 14 Sup. Ct. 772, 38 L. Ed. 657). Yet, as the cited statute extends a litigant’s remedy beyond that court to the district court and, by appeal, to the circuit court of appeals, a question of this kind, when it reaches the latter courts, must there be considered and determined on its merits. We make this observation, however, that in a case for the registration of a trade-mark, the law applicable to patents where priority of invention is involved is equally applicable to trade-marks in that the plaintiff, to prevail, cannot, rely upon a mere preponderance of evidence but must overcome the decision in the Court of Appeals of the District of Columbia by testimony which in character and amount brings thorough conviction. Morgan v. Daniels, 153 U. S. 120, 14 Sup. Ct. 772, 38 L. Ed. 657; Gold v. Gold, 237 Fed. 84, 86, 150 C. C. A. 286; Gold v. Newton, 254 Fed. 824, 166 C. C. A. 270, certiorari denied, 249 U. S. 608, 39 Sup. Ct. 290, 63 L. Ed. 799; Barrett Co. v. Ewing, 228 O. G. 761; Curtiss Corporation v. Janin (C. C. A.) 278 Fed. 454. Further, we desire to note that in this discussion nothing we may say should be construed as an opinion of this court on the validity of the defendant’s trade-marks. We are not concerned in this action with the validity of the defendant’s trade-mark registrations; we are concerned only with the plaintiffs’ right to have their trade-mark registered. Therefore any comments we may make upon the defendant’s trade-marks will be addressed only to the position it has taken in opposition to the plaintiffs’ registration. We direct our inquiry to the presence, of deceptive similarity in the opposing trade-marks. In this connection the statute provides (TradeMark Act of February 20, 1905, §> 5, 33 Stat. 724 [Comp. St. § 9490]): “That trade-marks which are identical with a registered or known trademark owned and" } ]
[ { "docid": "21528769", "title": "", "text": "on March 6, -Í933, entered its decree adjudging Roos to be the first and sole inventor of the invention in issue and authorizing the Commissioner of Patents to issue letters patent, to him. It thus appears that there has been unity of view in the tribunals below. An action under section 4915, R. S., has the characteristics of a proceeding to set aside a judgment, “and, as such, is not to be sustained by a mere preponderance of evidence.” Morgan v. Daniels, 153 U. S. 120, 124, 14 S. Ct. 772, 773, 38 L. Ed. 657. The court there observed that the proceeding is something more than a mere appeal; that it is an application to set aside the action of one of the executive departments of the government — the one charged with the administration of the patent system. The court said: “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the' decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” This ruling was expressly reaffirmed in a recent case. Radio Corp. of America v. Radio Engineering Lab., decided May 21, 1934, 293 U. S. 1, 54 S. Ct. 752, 55 S. Ct. 66, 78 L. Ed. 1453. The ruling of the Patent Office tribunals that Roos conceived and disclosed the invention not later than June 30, 1922, is not challenged here by either Rice or Bayer, The crucial question we are called upon to determine therefore- is whether -under the rule announced in Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657, the Patent Office tribunals and the court below were right in ruling that Roos had reduced the invention to practice in August of-1922. The claim of the issue originated'in the Rice application and will, therefore, be interpreted in the light" }, { "docid": "12354600", "title": "", "text": "not have sought to enjoin Dunnell as a condition precedent to opposing the registration. This decision of the Commissioner of Patents presented to the district court, and now to this court, the issue whether the evidence in the patent office proceeding afforded inferences of fact supporting it. The rule established in such cases- is that stated by the Supreme Court in Morgan Massachusetts v. Daniels, 153 U.S. 120, 124, 125, 14 S.Ct. 772, 38 L.Ed. 657. There the suit in the circuit court to compel the registration of a patent, which had been denied, was stated to be “something more than a mere appeal [from the Commissioner’s decision]. It is an application to the court to set aside the action of one of the executive departments of the government. .The one charged with the administration of the patent system had finished its investigations and made its determination with respect to the question of priority of invention. That determination gave to the defendant the exclusive rights of a patentee. A new proceeding is instituted in the courts —a proceeding to set aside the conclusions reached by the administrative department and to give to the plaintiff the rights there awarded to the defendant. It is something in the nature of a suit to set aside a judgment, and as such is not to be sustained by a mere preponderance of evidence * * * Upon principle and authority, therefore, it must be laid down as a rule that where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” This rule is applicable to trade mark cases. Century Distilling Co. v. Continental Distilling Co., 3 Cir., 106 F.2d 486, 489, certiorari denied. Yale Electric Co. v. Robertson, 2 Cir., 26 F.2d 972 (Cir. 2). It precedes the more general rule regarding the finality of findings of an administrator" }, { "docid": "3862702", "title": "", "text": "between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. “Tested by that rule, the solution of this controversy is not difficult. * * * if doubtful, the decision of the patent office must control. * * * “There is other testimony on both sides of this controversy. It is unnecessary to notice it in detail. It is enough to say that the testimony as a whole is not of a character or sufficient to produce a clear conviction that the patent office made a mistake in awarding priority of invention to the defendant; and because of that fact, and because of the rule that controls suits of this kind in the courts, we reverse the judgment, and remand the case, with instructions to dismiss the bill.” Morgan v. Daniels, supra [153 U.S. 120, 14 S.Ct. 773, 38 L.Ed. 657]. Morgan v. Daniels, supra, involved a contest as to priority of invention in a patent matter but the principle is applicable to trade marks. United States ex rel. Baldwin Co. v. Robertson, 265 U.S. 168, 44 S. Ct. 508, 68 L.Ed. 962. The appellant failed to show manifest error in either of the two decisions of the Patent Office tribunals, nor was there evidence in the proceedings before the lower court sufficient to overcome their findings. In the current appeal error was not shown in the findings of the court below. “As to priority, every tribunal of the Patent Office and the District Court has held against Jardine. The question is one of fact which has been settled by the special tribunal with power to decide that question. The decision of the Patent Office, therefore, must be accepted as controlling unless the contrary is established by testimony which in character and amount carries thorough conviction. Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657. It suffices to say that there is no testimony in this record establishing that Jardine is prior to Berry.” Cleveland Trust Co. v. Berry, 6 Cir., 99 F.2d 517, 522. In the light" }, { "docid": "7196086", "title": "", "text": "the decision of the Court of Appeals of the District of Columbia, the last and the highest tribunal that dealt with the question. This is our starting point. Though the Court of Appeals of the District of Columbia becomes, in a patent prosecution, an appellate tribunal of the patent office, its decisions are not final. Federal courts, in suits formally brought, have full jurisdiction to re-examine all mat ters there determined and come to opposite decisions. Quaker . City Chocolate Co. v. Loughran (C. C. A.) 296 F. 822. Yet it is equally well established that “when a question between contending parties, as to priority of invention, is decided [by the Court of Appeals of the District of Columbia] the decision there made must be accepted as controlling, * * * in any subsequent suit between the same parties, unless the contrary is established by testimony which, in character and amount, carries thorough conviction.” Morgan v. Daniels, 153 U. S. 120, 14 Sup. Ct. 772, 38 L. Ed, 657; Baldwin v. Howard, 256 U. S. 35, 39, 40, 41 Sup. Ct. 405, 65 L. Ed. 816; Gold v. Gold, 237 F. 84, 86, 150 C. C. A. 286; Gold v. Newton, 254 F. 824, 166 C. C. A. 270, certiorari denied, 249 U. S. 608, 39 Sup. Ct. 290, 63 L. Ed. 799; Clements v. Kirby (C. C. A.) 274 F. 575, 586; Farle v. Drake Mfg. Co. (D. C.) 289 F. 137. The plaintiff maintains, however, that a federal court, District Court or Circuit Court of Appeals, should give this credit to decisions of the Court of Appeals of the District of Columbia only when the parties in the two proceedings are the same. In the Court of Appeals of the District of Columbia the parties were Rousso and Solomon; the parties here are Rousso and Barber. Yet the issue there decided is the same as the one raised here. In both eases Rousso was a party and on this issue the Court of Appeals of the District of Columbia rendered judgment against him. If its judgment had been" }, { "docid": "3862701", "title": "", "text": "that the trade marks which the plaintiff used and sought to register are colorable imitations of the defendant’s trade marks. The Examiner of Trade Mark Interferences, and the Commissioner of Patents, on appeal, sustained the appellee’s oppositions, and adjudged that the appellant’s trade marks were confusingly similar to the appellee’s admittedly prior registered trade marks. The court below came to the same conclusion. Under Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657, and General Talking Pictures Corp. v. American Tri-Ergon Corp., 3 Cir., 96 F.2d 800, the burden is on the appellant to show by clear and convincing evidence that the decision of the Commissioner of Patents is erroneous and that appellant is entitled to register the disputed trade marks. “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit ■ between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. “Tested by that rule, the solution of this controversy is not difficult. * * * if doubtful, the decision of the patent office must control. * * * “There is other testimony on both sides of this controversy. It is unnecessary to notice it in detail. It is enough to say that the testimony as a whole is not of a character or sufficient to produce a clear conviction that the patent office made a mistake in awarding priority of invention to the defendant; and because of that fact, and because of the rule that controls suits of this kind in the courts, we reverse the judgment, and remand the case, with instructions to dismiss the bill.” Morgan v. Daniels, supra [153 U.S. 120, 14 S.Ct. 773, 38 L.Ed. 657]. Morgan v. Daniels, supra, involved a contest as to priority of invention in a patent matter but the principle is applicable to trade marks. United States" }, { "docid": "22692269", "title": "", "text": "in the nature of a suit to set aside a judgment, and as such is hot to be sustained by a mere preponderance of evidence. Butler v. Shaw, 21 Fed. Rep. 321, 327. It is a controversy between two individuals over a question of fact which has once been settled by a special tribunal, entrusted with full power in the premises. As such it might be well argued, were it not for the terms of this statute, that the decision of the Patent Office was a finality upon every matter of- fact. In Johnson v. Towsley, 13 Wall. 72, 86, a case involving a contest between two claimants for land patented by the United States to one of them, it was said: “ It is fully conceded that when those officers (the local land officers) decide controverted questions of fact, in the absence of fraud, or imposition, or mistake, their decision on those questions is final, except as they may be reversed on appeal in that department.” Upon principle and authority, therefore, it must be laid down as a rule that where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. Tested by that rule the solution of this controversy is not difficult. Indeed, the variety of opinion expressed by the different officers who have examined this testimony is persuasive that the question of priority is doubtful, and if doubtful the decision of the Patent Office must control. What was the invention which the parties each claim to have made and in respect to which an interference was ordered in the Patent Office ? It was thus stated by the examiner: “ In a device for coiling wire or wire rods, the combination with a rotating coiling receptacle or reel for receiving and laying in coils the rod as it is delivered from the rolls," }, { "docid": "4069942", "title": "", "text": "very question was before the Supreme Court in Morgan v. Daniels, 153 U. S. 120, 14 Sup. Ct. 772, 38 L. Ed. 657; and Justice Brewer, in writing the opinion, concluded all discussions when he wrote: “It is something in the nature of a suit, to set aside a judgment, and as such is not to be sustained by a mere preponderance of evidence. Butler v. Shaw (C. C.) 21 Fed. 321, 327. It is .a controversy between two individuals over a question of fact, which has once boon settled by a special tribunal intrusted with full power in the premises. As such it might well be argued, were it not for the terms of this statute, that the decision of the Patent Office was a finality upon every other matter of fact. In Johnson v. Towsley, 33 Wall. 72, 86, 20 L. Ed. 485, a case involving a contest between two claimants for land patented by the United States to one of them, it was said: ‘It is fully conceded that when those officers [the local land officers] decide controverted questions of fact, in the absence of fraud, or imposition, or mistake, their decision on those questions is final, except as they may be referred on appeal in that department.’ Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must bo accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Believing as an original question that Meissner is entitled to the patent, but passing- that by, believing that it cannot be said that the evidence of Richards makes such a showing which in character and amount carries thorough conviction that he is entitled to a patent, it follows that the bill of complaint should be dismissed." }, { "docid": "2110210", "title": "", "text": "We reverse the judgment of the district court. I. We are faced with the threshold question of whether the district court applied the correct standard of re view. An action under § 146 is of a hybrid nature. It has one element of a trial de novo in that either party is permitted to introduce evidence which was not before the Board. Nevertheless, it is clear under the controlling case of Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657 (1894), that a § 146 action is essentially of an appellate character and that the scope of review is quite narrow: “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Id. at 125, 14 S.Ct. at 773 (emphasis added). In 1916, Circuit Judge Mack, speaking for our court in Gold v. Gold, 7 Cir., 237 F. 84, set forth a standard of review for district courts to follow in these cases which, with only the modifications made necessary by intervening amendments to the statute, has continuing vitality:' “The final decision in the interference proceedings, while not conclusive, is nevertheless of the utmost importance. The Court of Appeals [of the District of Columbia] acts therein as the highest patent tribunal; like the Patent Office officials, its members acquire a wide experience in these intricate questions, the solution of which demands expert knowledge and training. Moreover, unlike the ex parte grant of patents, interference proceedings are contested between parties in interest, and, while conducted by administrative officials, are quasi judicial in their nature. “The District Court, in this statutory proceeding to review the decree rendered in a contested case by a court acting as the final expert administrative governmental department, exercises a jurisdiction somewhat analogous to, though broader than," }, { "docid": "7196087", "title": "", "text": "35, 39, 40, 41 Sup. Ct. 405, 65 L. Ed. 816; Gold v. Gold, 237 F. 84, 86, 150 C. C. A. 286; Gold v. Newton, 254 F. 824, 166 C. C. A. 270, certiorari denied, 249 U. S. 608, 39 Sup. Ct. 290, 63 L. Ed. 799; Clements v. Kirby (C. C. A.) 274 F. 575, 586; Farle v. Drake Mfg. Co. (D. C.) 289 F. 137. The plaintiff maintains, however, that a federal court, District Court or Circuit Court of Appeals, should give this credit to decisions of the Court of Appeals of the District of Columbia only when the parties in the two proceedings are the same. In the Court of Appeals of the District of Columbia the parties were Rousso and Solomon; the parties here are Rousso and Barber. Yet the issue there decided is the same as the one raised here. In both eases Rousso was a party and on this issue the Court of Appeals of the District of Columbia rendered judgment against him. If its judgment had been for Rousso, we can conceive (without deciding) that as against a third person, not- heard, it might not be so controlling, but as the judgment against Rousso was entered after he had been given a full hearing, we think the rule of Morgan v. Daniels applies and easts upon him the burden of overcoming the decision “by testimony which, in character and amount, carries thorough conviction.” There is a sharp conflict with respect to the claimed dates of invention, Rousso alleging- conception in 1908 and reduction to practice in the fall of 1911; Solomon alleging conception in 1907 and reduction to practice in 1910. All of the patent tribunals found against these dates. We agree with them. All were in accord in finding that Rousso had not invented his device prior to December, 1911, or January, 1912. The Court of Appeals of the District of Columbia affirmed the Examiners-in-Chief, who, in turn, had affirmed the Examiner of Interferences in finding that December 13, 1911 was the date of Rousso’s conception and December 22, 1911 the" }, { "docid": "13833205", "title": "", "text": "the court below, to some degree at least, misunderstood the principle of Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773, 38 L.Ed. 657. Mr. Justice Brewer stated the heart of the rule as follows: “Upon principle and authority, * * * it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Morgan v. Daniels states a rule of law whereby a fact question must be judged. The question therefore is whether all competent evidence, “new” and “old”, offered to the District Court carries “thorough conviction” that the Patent Office erred. General Talking Pictures Corp. v. American T. Corp., supra, at page 812 of 96 F.2d. A proceeding under R.S. Section 4915 is an anomaly. The trial in a District Court is a trial de novo. But the decision, of the Patent Office may not be reversed unless the evidence before the court carries thorough conviction that the Patent Office erred. In other words, a District Court may not reverse the decision of the Patent Office on a mere preponderance of the evidence. More is required. The District Court must find that the decision of the Patent Office was without substantial basis in the evidence or was wrong as a matter of law. In the cases at bar the trial court does not seem to have applied such a rule. Though it carefully weighed all the testimony the district court seems to have reached its conclusions on what it deemed to be a preponderance of the evidence: But quite apart from the foregoing the words of a patent or a patent application, like the words of specific claims therein, always raise a question of law for the court and may not be determined by the opinion of experts. Sanitary Refrigerator Co. v. Winters, 280" }, { "docid": "6461092", "title": "", "text": "for any action “touching patent rights.” Id. (§ 56). However, despite this elaborate review ladder, the act set out no standard for reviewing patentability determinations. Reviewing a decision made under the authority of the 1870 act, the Supreme Court stated: Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. Tested by that rule, the solution on this controversy is not difficult. Indeed, the variety of opinion expressed by the different officers who have examined this testimony is persuasive that the question of priority is doubtful, and, if doubtful, the decision of the patent office must control. Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773-74, 38 L.Ed. 657 (1894) (review of Patent Office’s interference decision under § 4915, Revised Statutes, predecessor to 35 U.S.C. § 146). In concluding, the Court stated: “It is enough to say that the testimony as a whole is not of a character or sufficient to produce a clear eonvietion[ ] that the Patent Office made a mistake____” Id. at 129, 14 S.Ct. at 775. Following Morgan, the Court of Appeals for the District of Columbia reversed the Commissioner’s decision only if it was manifestly wrong, see, e.g., Hopkins v. Riegger, 262 F. 642, 643 (D.C.Cir.1920) (interference); Lindmark v. Hodgkinson, 31 App. D.C. 612, 614 (1908) (interference), where the error was manifest or palpable; see, e.g., Bonine v. Bliss, 259 F. 989, 989-90 (D.C.Cir.1919) (interference); Podlesak v. McInnerney, 26 App.D.C. 399, 405, 408 (1906) (interference), or in a very clear case, In re Barratt, 11 App.D.C. 177, 179 (1897) (“[W]hile the appellant’s device commends itself to our favorable consideration and may upon a judicial investigation, wherein proof is more fully supplied and the condition of the art more clearly set forth, be found entitled" }, { "docid": "6461091", "title": "", "text": "board, and then, as provided by the 1839 Act, the Chief Justice of the District of Columbia heard appeals from the Commissioner. See id. If unsuccessful in either venue, an applicant could still bring an action in equity in a federal district court. However, neither the 1839 nor the 1861 acts articulated the standard of review to be used by these courts. The Act of July 8, 1870, ch. 230 § 1, 16 Stat. 198, attached the Patent Office to the Department of the Interior. This act directed review of the examiners’ patentability determinations to the examiners-in-chief (§ 46), from there to the Commissioner (§ 47), and then to the supreme court of the District of Columbia, sitting in banc (§ 48). If the Commissioner or the supreme court of the District of Columbia refused to grant a patent, applicant could seek a remedy by bill in equity. See id. (§ 52). This act also provided for review of the supreme court of the District of Columbia in the Supreme Court of the United States for any action “touching patent rights.” Id. (§ 56). However, despite this elaborate review ladder, the act set out no standard for reviewing patentability determinations. Reviewing a decision made under the authority of the 1870 act, the Supreme Court stated: Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. Tested by that rule, the solution on this controversy is not difficult. Indeed, the variety of opinion expressed by the different officers who have examined this testimony is persuasive that the question of priority is doubtful, and, if doubtful, the decision of the patent office must control. Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773-74, 38 L.Ed. 657 (1894) (review of Patent Office’s" }, { "docid": "21528770", "title": "", "text": "the' decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” This ruling was expressly reaffirmed in a recent case. Radio Corp. of America v. Radio Engineering Lab., decided May 21, 1934, 293 U. S. 1, 54 S. Ct. 752, 55 S. Ct. 66, 78 L. Ed. 1453. The ruling of the Patent Office tribunals that Roos conceived and disclosed the invention not later than June 30, 1922, is not challenged here by either Rice or Bayer, The crucial question we are called upon to determine therefore- is whether -under the rule announced in Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657, the Patent Office tribunals and the court below were right in ruling that Roos had reduced the invention to practice in August of-1922. The claim of the issue originated'in the Rice application and will, therefore, be interpreted in the light of that application. In an interference proceeding a claim must be given the broadesfi-interpretation it will reasonably support. “In other words, if a party claims an invention broadly, he ought not to be permitted, when thrown into interference, to meet the exigencies of such a situation by insisting upon limitations not expressed in his claims.” Humiston v. Voorhees, 57 App. D. C. 344, 23 F.(2d) 765, 766; McChesney v. Gerrard & Wright, 57 App. D. C. 138, 18 F.(2d) 180; Jeffery v. Locke, 56 App. D. C. 345, 13 F.(2d) 316. ' Counsel for Rice in their brief and in argument have proceeded on the theory that the claim of-the issue is hedged about with limitatipns. In fact, it-is as broad as language can make-it, and ,so was intended by, Rice, who in his specification said that “the invention consists principally in á method of impregnating cement while in a dry or soft státe with gas bubbles preferably produced by whipping a gelatinous -substance in the presence: of water into a foam or lather'.The bubbles" }, { "docid": "11918061", "title": "", "text": "record. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (1986). The nonmovant, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. In order for Scimed to prevail on summary judgment, Scimed must put forth evidence and legal support that meets the standard of proof this Court is required to apply when reviewing decisions of the Board of Patent Appeals and Interferences of the USPTO. In determining whether or not the Board erroneously affirmed its Grant of party Fogarty’s preliminary motion 12 and, therefore, erroneously awarded priority for the subject matter of the single count in the T92 Interference to Medtronic, this Court will apply the standard of proof set forth in Morgan v. Daniels, in that when a decision has been made by the Patent Office in an action contesting priority of invention, “the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Morgan, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894) (emphasis added) (determining the standard of review for a Patent Office decision when no additional evidence was put forth to the Circuit Court). Our Circuit Court, in United States v. Szuecs, 240 F.2d 886 (D.C.Cir.1957), upheld the Morgan standard of proof that must be applied by a District Court when reviewing a decision of the Patent Office pursuant to 35 U.S.C. § 146. “To reach a conclusion contrary to that of the Patent Office,” the Morgan standard requires the evidence to carry “ ‘thorough conviction.’ ” Szuecs, 240 F.2d at 887 (citing Morgan, 153 U.S. at 125, 14 S.Ct. 772) (reversing and remanding the case to the District Court to apply the correct standard of proof). Another District Court Judge of this Court reaffirmed the application of Morgan in reviewing Patent Office cases under 35 U.S.C. § 146. Anderson v. Anderson, 403 F.Supp. 834, 844-45 (D.D.C.1975) (affirming the decision of the Board of" }, { "docid": "3218122", "title": "", "text": "conclusion is to be overturned? A Supreme Court precedent, which has been consistently applied by the federal courts in reviewing the Board’s interference rulings for over seventy years, provides the cornerstone for our consideration of the first question. In Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773, 38 L.Ed. 657 (1894), the Court in a unanimous opinion held: “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” (Emphasis supplied.) The applicability of this “thorough conviction” standard to the district court’s deliberations in such cases can hardly be questioned. Appellants acknowledge that standard, and argue that it was not satisfied here, and indeed can never be satisfied in the absence of the presentation in the district court of new evidence not previously considered by the Board. Stated differently, the argument is that the Board’s factual conclusions in an interference proceeding are conclusive on the district court if the dissatisfied party elects, as here, to rely on the record made before the Board. The notion that a new-evidence test inheres in de novo review proceedings finds its source in the statutorily established alternate routes of appeal open to a party dissatisfied with a Patent Office decision. He may either appeal to the Court of Customs and Patent Appeals, 35 U.S.C. §§ 141-144, or file a civil action in the district court, 35 U.S.C. § 146. Should he do the former, the statute makes clear that the Court of Patent Appeals “shall hear and determine' such appeal on the evidence produced before the Patent Office.” 35 U.S.C. § 144 (emphasis supplied). When one chooses to proceed in the district court, however, his proof may carry him well beyond the confines of the administrative record. It is this difference regarding the" }, { "docid": "16046454", "title": "", "text": "S. 120, 125, 14 S. Ct 772, 773 (38 L. Ed. 657), and followed ever since, is as follows: “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Of course, the Patent Office’s final decision to award the patents to Larson was because of the decision of the Court of Appeals of the District of Columbia. Nevertheless the presumption in favor of Larson stands. While the lay mind becomes confused when it undertakes an excursion into the realms of bacteriology, the problem here when stripped of technical language is not difficult to understand. There have been marvelous developments in the production of vaccines for use in the prevention and treatment of disease — nearly all contributing to the well-being of humanity and the preservation of human and animal life. Dr. Larson and Dr. Hartzell for some time had been exploring in this field, and working on processes for the disruption of bacterial cells and the separation of toxins from the bacteria through direct application of pressure. There was nothing new in this. The idea of subjecting the bacteria to a gas sueh as carbon dioxide under great pressure, and, after the organisms had become saturated with the gas, to suddenly release the pressure, resulting in disrupting the organisms by the expansion of the gas, was new. The destruction of bacteria by the sudden release of pressure is the crux of the process invention involved here. Sueh destruction results in producing the immunizing material in colloidal or liquid form, so as to be, when injected into the blood of a patient, less subject to destruction by the phagocytes or white blood corpuscles. Was Larson or Crowther entitled to credit for this rather brilliant and novel idea? If Crowther was a mere" }, { "docid": "23468561", "title": "", "text": "determination of an existing or passed fact or event, but was of a speculative nature as to what was likely to subsequently occur. The issue here is not what may occur, but what has actually taken place. The bill is thus predicated, otherwise no cause of action is stated. We think the cases cited and relied upon by plaintiff and which seem to have been controlling in the mind of the •District Judge, may generally be distinguished as cases where the Patent Office and the Court of Appeals of the District of Columbia (now Court of Customs and Patent Appeals) were dealing with questions of fact rather than opinions speculative in nature. Typical of such cases is Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 773, 38 L.Ed. 657, where the question before the Patent Office related to priority of invention. That issue was one of fact capable of precise determination. Even then, the Supreme Court only held “the decision there made must be accepted as controlling upon that question of fact in any Subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Even on this issue of fact the court was far from holding that a determination of such was res adjudicata. Other cases cited by the District Court merely go to the extent of holding that the decision of the Patent Office upon a question of fact is entitled to great weight. Among these is that of Imperial Brass Manufacturing Company v. Hackney, 7 Cir., 75 F.2d 689, on page 691, where this court said: “But where the contested issue in the two proceedings (the interference and the infringement suit) is the same, and the disputed issue of fact is identical, why shouldn’t the determination of the contest in the Patent Office assume well nigh domi nating importance in the determination of the infringement suit?” There are numerous authorities in support of defendants’ contention that the proceedings or decisions by the Commissioner of Patents or the Court of Customs and Patent Appeals, as it is" }, { "docid": "7196085", "title": "", "text": "controversy until Rousso instituted this suit against Barber for infringement. Barber, attacking the validity of the patent, revived the issue of priority of invention and stood on the finding of the Court of Appeals of the District of Columbia in favor of Solomon. We have deemed it necessary to give this extended account of the prosecution of the Rousso patent in order clearly to distinguish the issues here involved from issues tried and determined in eight federal courts in five circuits where the validity of the Rousso patent has been sustained. In none of these cases was the question of pri- or invention by Solomon raised. As the sale by Solomon of his patent to Rousso, accompanied with his concession of priority of invention to his opponent, followed by a consent decree, did not impart validity to the Rousso patent, Tyler v. Kelch, 98 O. G. 1282; Humphrey v. Fickert, 115 O. G. 803, an attack upon its validity because of prior invention can bo validly made in this suit and we are back to the decision of the Court of Appeals of the District of Columbia, the last and the highest tribunal that dealt with the question. This is our starting point. Though the Court of Appeals of the District of Columbia becomes, in a patent prosecution, an appellate tribunal of the patent office, its decisions are not final. Federal courts, in suits formally brought, have full jurisdiction to re-examine all mat ters there determined and come to opposite decisions. Quaker . City Chocolate Co. v. Loughran (C. C. A.) 296 F. 822. Yet it is equally well established that “when a question between contending parties, as to priority of invention, is decided [by the Court of Appeals of the District of Columbia] the decision there made must be accepted as controlling, * * * in any subsequent suit between the same parties, unless the contrary is established by testimony which, in character and amount, carries thorough conviction.” Morgan v. Daniels, 153 U. S. 120, 14 Sup. Ct. 772, 38 L. Ed, 657; Baldwin v. Howard, 256 U. S." }, { "docid": "21050481", "title": "", "text": "determination gave to the defendant the exclusive rights of a patentee. A new proceeding is instituted in the courts, — a proceeding to set aside the conclusions reached by the administrative department, and to give to the plaintiff-the rights there awarded to the defendant. It is something in the nature of a suit to set aside a judgment, and, as such, is not to be sustained by a mere preponderance of evidence. Butler v. Shaw, C. C., 21 P. 321, 327. It is a controversy between two individuals over a question of fact which has once been settled by a special tribunal, intrusted with full power in the premises. As such it might be well argued, were it not for the terms of this statute, that the decision of the patent office was a finality upon every matter of fact. In Johnson v. Towsley, 13 Wall. 72, 86 [20 L.Ed. 485], a case involving a contest between two claimants for land patented by the United States to one of them, it was said: ‘It is fully conceded that when those officers (the local land officers) decide controverted questions of fact, in the absence of fraud, or imposition, or mistake, their decision on those questions is final, except as they may be reversed on appeal in that department.’ “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. Tested by that rule, the solution of this controversy is not difficult. Indeed, the variety of opinion expressed by the different officers who have examined this testimony is persuasive that the question of priority is doubtful, and, if doubtful, the decision of the patent office must control.” Judgment, therefore, may be entered for the defendant with costs." }, { "docid": "16046453", "title": "", "text": "last experiments with the cylinder and plunger devices. That the pressure of the Olson testing machine was applied slowly and released slowly, and there was nothing about its operation which would suggest a sudden release of pressure. “(7) That Crowther made to Drs. Larson and Hartzell, on or about October 15, 1917, a report in which he took credit for inventing the gas pressure devices, and that they made no comment with reference to it.” The court held that Crowther was entitled to receive patents for his inventions, both of process and apparatus and entered decree to that effect. From this decree Larson prosecutes this appeal. The real question in the case is one of priority of invention — clearly a fact question. Larson having been granted the patents, the burden of proof was upon Crowther, as the presumption would be in favor of the party holding the patents; this case really being one to set aside the action of a department of the government. The rule laid down in Morgan v. Daniels, 153 U. S. 120, 125, 14 S. Ct 772, 773 (38 L. Ed. 657), and followed ever since, is as follows: “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Of course, the Patent Office’s final decision to award the patents to Larson was because of the decision of the Court of Appeals of the District of Columbia. Nevertheless the presumption in favor of Larson stands. While the lay mind becomes confused when it undertakes an excursion into the realms of bacteriology, the problem here when stripped of technical language is not difficult to understand. There have been marvelous developments in the production of vaccines for use in the prevention and treatment of disease — nearly all" } ]
804809
Anthony were receiving publicity for their plastics business and after they complained to G.E. that it was tortiously interfering with its business relations. Accepting these allegations as true, they permit a reasonable inference that GE had second thoughts regarding this promise not to sue and decided to take legal action against Lyons and Anthony to make an example of its former employees. In sum, when BBMC’s allegations are viewed as a whole, they assert that GE is using this suit improperly to injure BBMC and the business reputation of Lyons and Anthony. The First Circuit has recognized that the desire to injure a business or business reputation is an improper ulterior motive sufficient to state a claim for abuse of process. REDACTED The alleged “ulterior motives” as set forth in the pleadings are distinguishable from GE’s legitimate interests in recovering monetary damages that it believes were a result of wrongdoing on the part of Anthony and Lyon while they were employees of GE. See Broadway Management Services v. Cullinet Software, Inc., 652 F.Supp. 1501, 1503 (D.Mass.1987). BBMC has alleged facts that, if proven, would tend to show that GE used legal process to gain some collateral advantage not properly a part of the proceedings. Id. (citing Cohen v. Hurley, 20 Mass.App. 439, 442, 480 N.E.2d 658 (1985)). Lansen also seeks to amend its counterclaim to add a claim for abuse of process. Lansen, like BBMC, alleges that GE filed suit against it
[ { "docid": "7811281", "title": "", "text": "a couple of customs agents for having given Susan and me a hard time coming back into the country.” Plaintiff asked him why he was doing that, to which defendant replied, “I don’t expect to win, but I expect to cost them their jobs.” Thereafter defendant instituted the present lawsuit. Concededly, the lawsuit’s objective of a money recovery cannot be the basis for abuse of process, or a defendant would have a triable counterclaim, whenever he was sued, by alleging the suit was groundless, and that the plaintiff knew it. Beecy v. Pucciarelli, 387 Mass. 589, 595-96, 441 N.E.2d 1035 (1982). Equally, we cannot consider the fact that the pendency of the suit preyed on plaintiff’s mind, and would cost him money. Broadway Management Services, Inc., 652 F.Supp. at 1503. On the other hand, we do look at plaintiff's testimony that everyone in the industry knew of the suit, and that it caused plaintiff awkwardness around friends who were also friends of defendant, not in itself, but in conjunction with the clear inference that defendant brought the suit for parallel motives. As the founder of two companies, defendant was not going to be told no, no matter what the reason. “How can you explain what you’ve done to me?” “[You are] an embarrassment to me in front of the people that work for me.” Can this be a valid ulterior or collateral purpose? Although the case law provides no precisely similar set of facts, the analogies are close. In both Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775, 489 N.E.2d 185 (1986), and Neuman v. Vidal, 710 F.2d 856, 860 (D.C.Cir.1983), the courts recognized an injury to business and business reputation as an improper ulterior motive and abuse of process. Plaintiff testified to comparable damages, and defendant himself, if plaintiff be believed, impliedly acknowledged personal benefits. Finally, we fail to see the logic of defendant’s contention that his offer to submit the dispute to arbitration disproved malice. Plaintiff did not wish arbitration. Had he requested it, that would have been another matter. There is one special matter, already" } ]
[ { "docid": "19532084", "title": "", "text": "strong circumstantial case.\" GE offers four categories of evidence it believes collectively support an inference that Moffitt-Johnston solicited former customers of GE while working for AmSpec. This court \"review[s] a grant of summary judgment de novo, applying the same standard as the district court and viewing the evidence in the light most favorable to the non-moving party.\" First, GE points to the fact that Moffitt-Johnston downloaded over 27,000 GE files prior to departing, many of which contained client information, then lied about working for a competitor, supporting an inference that her motive was to \"deprive GE of the opportunity to shore up its customer relationships before she could solicit their business.\" The contention that Moffitt-Johnston must have solicited clients because she allegedly misappropriated files with their information amounts to speculation. Second, GE references two incidents it believes constitute solicitations themselves. Specifically, at the 2012 New York Harbor Show, Moffitt-Johnston was observed speaking with two GE customers. However, there is no evidence as to the content of those conversations. While the event's purpose was business development, there is evidence in the record that it was also largely a social affair to which spouses and \"significant others\" were invited for dinner and a cruise. As the district court observed, the non-solicitation covenant does not prohibit Moffitt-Johnston from speaking with any former clients; it prevents her from soliciting them \"regarding products or services that are similar to or competitive with those [she] gained knowledge of while employed by [GE].\" The district court held that GE's belief that Moffitt-Johnston solicited customers at the New York Harbor Show is \"mere speculation.\" With no evidence that Moffitt-Johnston spoke with the clients at issue about AmSpec's services or even anything industry-related during this event, the district court's conclusion was correct. GE also cites evidence suggesting that a representative of one of GE's customers, Statoil, had communications with Moffitt-Johnston. GE argues that it is reasonable to infer from context that they spoke about business because an employee of this customer later told a GE employee, Kevin Kurtz, that he would \"have to speak to\" Moffitt-Johnston first before agreeing" }, { "docid": "12427062", "title": "", "text": "the good name and reputations of Folkman, Cao, O’Reilly and Children’s Hospital in the relevant communities. (Docket Entry # 175, ¶¶ 78-80). Finally, and significantly, Abbott did not file the lawsuit simply to acquire the rights to the Kringle 5 invention. Rather, it filed the lawsuit with the intent “to publically embarrass and humiliate the individual scientists and Children’s Hospital.” (Docket Entry # 175, ¶ 81). Although the issue is close, see Broadway Management Services v. Cullinet Software, 652 F.Supp. at 1503 (ulterior motives insufficient inasmuch as they “are naturally tied up with the interests properly part of the counts in BMS’s complaint”), the First Circuit “recognize[s] that the desire to injure a business or business reputation is an improper ulterior motive sufficient to state a claim for abuse of process.” General Electric Company v. Lyon, 894 F.Supp. 544, 552 (D.Mass.1995) (denying Rule 12(b)(6) motion to dismiss abuse of process claim). Moreover, the desire to damage the reputations is collateral to the allegations in plaintiffs’ complaint. The fact that the CMCC defendants allege such damage in a defamation count in their counterclaim should not bar them from pleading an abuse of process count. Solely for purposes of resolving the motion to dismiss, plaintiffs’ threats to publicly embarrass Folkman and his colleagues and Abbott’s motive of filing the lawsuit to damage the reputations and publicly humiliate the individual scientists and Children’s Hospital constitute an ulterior purpose that is sufficiently collateral to maintain, at this stage, an abuse of process claim. II. PLAINTIFFS’ RULE 12(B)(6) MOTION TO DISMISS ENTREMED, INC.’S AMENDED COUNTERCLAIMS (DOCKET ENTRY # 181) In seeking to dismiss Entremed’s breach of contract count in Entremed’s counterclaim, plaintiffs assert, as they did with the CMCC defendants, that Entremed fails to allege the two essential elements of Abbott’s breach and Entremed’s damages. The allegations in Entremed’s counterclaim (Docket Entry # 174), taken as true, together with the terms of the 1998 CDA, show the following. In May 1998 Abbott and Entremed entered into the 1998 CDA. The 1998 CDA governed the exchange of confidential information between Abbott and Entremed during the course" }, { "docid": "12427057", "title": "", "text": "CMCC defendants are not filing frivolous allegations or submitting a groundless claim. Because the counterclaim complies with Rule 9(b), dismissal under Rule 12(b)(6) or striking the claim under Rule 12(f) is unwarranted. 6. Abuse of Process Plaintiffs assert that the CMCC defendants’ failure to set forth a cognizable ulterior purpose mandates dismissal of their abuse of process claim. This court disagrees. The essential elements of an abuse of process claim are that: “(1) process was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage.” Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 489 N.E.2d 185, 195 (1986). Plaintiffs submit that the second element is missing from the counterclaim. They argue that the CMCC defendants must allege that plaintiffs used the legal process to obtain a collateral advantage that is not properly part of the lawsuit. Because the CMCC defendants fail to allege any such collateral benefit outside of plaintiffs’ attempt to secure inventorship and assignment rights to the Kringle 5 invention, the CMCC defendants fail to allege an ulterior purpose, according to plaintiffs. An ulterior or illegitimate purpose “consists of using process ‘to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.’ ” Ferraro v. First Safety Fund National Bank, 11 Mass.App.Ct. 928, 416 N.E.2d 225, 226 (1981) (citations omitted); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d 484, 485 (1975) (same); Cohen v. Hurley, 20 Mass.App.Ct. 439, 480 N.E.2d 658, 660 (1985). Although the plaintiff need not establish that the defendant’s suit is groundless, the plaintiffs knowledge that his claim is groundless may show that the plaintiff used the legal process for an ulterior purpose. Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377, 1383 (1986); see, e.g., Lorusso v. Bloom, 321 Mass. 9, 71 N.E.2d 218, 218 (1947) (commencement of supplementary process “action known to be groundless” to collect twice on debt already paid constitutes abuse of the legal process). Using the lawsuit to cause the other party to expend substantial sums to mount a defense," }, { "docid": "13400289", "title": "", "text": "not be separate entities. Accordingly, the Court rejects GE’s initial challenge to LILCO’s Section. 1962(a) claim. GE next argues that LILCO’s Section 1962(a) claim is deficient because LILCO has failed to plead the requisite proximate cause as set forth in Section 1964(c). That section provides a civil remedy for plaintiffs injured in their business or property “by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). To the extent that GE attempts to resurrect any requirement that LILCO plead and prove a separate “racketeering injury,” that attempt is foreclosed by the decision of the Supreme Court in Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985), wherein the Court specifically rejected such a notion. Although Sedima held that damages recoverable under RICO include recovery for injury caused by the predicate acts, the Court nonetheless left intact the notion that plaintiff’s injuries must have been proximately caused by defendant’s conduct. See Sperber v. Boesky, 849 F.2d 60, 63-64 (2d Cir.1988). Reviewing the pleadings, as the Court must, in the light most favorable to plaintiff, the Court holds that LILCO has alleged sufficiently the proximate cause requirement of RICO. Specifically, LILCO alleges that funds gained through GE’s fraudulent misstatements enabled GE to enhance its ability to market its pressure containment system and related services to LILCO and that LILCO was injured because of its purchase of the system and the related services and equipment. At this stage of the proceedings the Court holds that LILCO has sufficiently alleged injury and proximate cause within the meaning of the RICO statute. For the foregoing reasons the Court declines to dismiss the cause of action based upon Section 1962(a). ii. Section 1962(b) GE’s challenge to the sufficiency of LILCO’s pleadings of a violation of Section 1962(b) is similar to the attack as to the sufficiency of LILCO’s Section 1962(a) claim. Again, GE alleges that LILCO has not properly pled the requisite injury and causation. LILCO’s Section 1962(b) claim alleges injury as a result of GE’s association with and control of the Mark II Owners Group." }, { "docid": "11063243", "title": "", "text": "available to us. We will make this a public relations nightmare out of this. NEP relies heavily upon that memorandum, written one year before this lawsuit, to support its allegation that Milford issued its news release as part of a deliberate, calculated strategy to subject NEP to a “public relations nightmare.” Bearing in mind, as it must, the procedural posture of this case, the Court concludes that NEP’s allegations are sufficient to survive a Rule 12(b)(6) motion to dismiss. Accordingly, the motion by Milford and its affiliates to dismiss Count VI will be DENIED. G. Count VII: Abuse of Process Count VII alleges that Milford and its affiliates filed their lawsuit against NEP “with malice and for the ulterior purpose of injuring NEP in the conduct of its business.” Counterclaim, ¶ 69. NEP argues specifically that Milford and its affiliates threatened to, and actually did, bring this lawsuit for the improper purpose of 1) defaming NEP, 2) gaining a competitive advantage over NEP, and 3) interfering with the ability of NEP to conduct its business, thereby committing abuse of process. Counterclaim, ¶ 70. Many of NEP’s allegations relate to the conduct of Milford and its affiliates both at, and after, the October Meeting. To state a valid claim for abuse of process under Massachusetts law, NEP must allege that: 1) process was used, 2) for an ulterior or illegitimate purpose, 3) resulting in damage. Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-76, 489 N.E.2d 185 (1986). The essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding. Broadway Management Services, Ltd. v. Cullinet Software, Inc., 652 F.Supp. 1501, 1503 (D.Mass.1987) (citations omitted). Milford argues that Count VII should be dismissed because the October Meeting merely represented an attempt to settle the dispute between the parties. Milford maintains that it suggested that NEP either buy the Milford Plant in order to compensate Milford for the damages suffered as a result of NEP’s allegedly wrongful conduct, or live up to its" }, { "docid": "7494294", "title": "", "text": "a waste of corporate assets. The administrative expenses of political action committees are not deductible under the Internal Revenue Code. However, Plaintiff claims that GE has treated certain expenses as ordinary business expenses in violation of § 162(e)(2) of the Internal Revenue Code (1992). Plaintiff contends that Defendants should not be able to claim benefit arising from this alleged illegal behavior or from the alleged violations of the Articles of Association. Plaintiffs first claim in his amended complaint seeks damages resulting from Defendants’ policy of “influence-buying.” The second, third, and fourth claims seek relief from Defendants actions surrounding the 1988 shareholder resolution. The fifth claim seeks damages resulting from the alleged negligence and recklessness of Defendants in wasting corporate assets by supporting GE/ PAC, which has contributed to the re-election of “anti-business, anti-defense incumbents.” The sixth claim seeks punitive damages against outside directors who “have been guilty of gross willful and wanton negligence and of reckless disregard for shareholder rights and the corporation’s best interests.” The seventh claim seeks damages for the excessive expenditure of corporate assets in support of GE/PAC. Defendants’ Claims and Supporting Facts Defendants counter that summary judgment is warranted in their favor as Plaintiff cannot prove that support of GE/PAC constitutes a waste of corporate assets — the only legal issue in this suit. They contend that instead of advancing legal arguments, Plaintiff, his expert , and his attorney are on a mission of campaign finance reform. Defendants claim that the annual expenses of GE/ PAC represent a minuscule percentage of GE’s annual revenues. In further defense of GE/PAC, they point to the prevalence of political action committees and the large amount contributed by them on the whole to election campaigns. Defendants claim that GE derives significant benefits from GE/PAC, including: the opportunity for GE employees to become involved in the political process; the education of these employees on government relations; the election of candidates willing to entertain the corporation’s position on issues important to it; and the enhancement of GE’s ability to communicate those positions to Congress. GE contends that its government relations would be" }, { "docid": "7494289", "title": "", "text": "Plaintiff complained of: contributions to virtually unchallenged political candidates; contributions to opposing candidates; post-election contributions; contributions to incumbents; and contributions made to candidates regardless of their attitudes toward business. The complaint was dismissed by the FEC. Dismissal was upheld by the district court for the District of Columbia. The court of appeals for the District of Columbia affirmed, finding that GE/PAC complied with the FECA. The federal courts in D.C. found that, despite various policy arguments made by Plaintiff, contributions were lawfully made to legitimate federal candidates. Plaintiff’s Claims and Supporting Facts The ultimate relief sought by Plaintiff is the prohibition of the use of corporate funds for the support of GE/PAC. See Verified Amended Complaint, p. 36. The present action complains of many of the same practices as did the complaint with the FEC; however, Plaintiff is not estopped from seeking relief under New York state law for waste of corporate assets. See Opinion and Order filed January 14, 1992, 1992 WL 8195. Plaintiffs first major point of contention raised in this motion is that Defendants have operated GE/PAC in violation of its Articles of Association. A statement of the purposes of GE/PAC is set forth in Article II of its Articles of Association, which reads as follows: The purposes of the Committee are to support the nation’s political processes and advance the nation’s economic, social and political welfare by affording General Electric management personnel the opportunity to take a more active part in the political process by contributing funds to support candidates for federal office, national parties and state and local candidates where permissible under federal law.... Plaintiff contends that this Article sets forth three legal purposes of GE/PAC: (1) to support the nation’s political process; (2) to advance the nation’s economic, social and political welfare; and, (3) to afford GE’s management personnel the opportunity to take a more active part in the political process. Plaintiff claims that Defendants have systematically violated each of these purposes, and that expenditures in violation of the Articles constitute a waste of corporate assets. Plaintiff alleges that GE/PAC has supported incumbents and" }, { "docid": "7665684", "title": "", "text": "a complaint. In general, the filing of a complaint, in and of itself, is not enough to support an abuse of process claim. See Laxalt v. McClatchy, 622 F.Supp. 737, 752 (D.Nev.1985); Ging v. Showtime Entertainment, Inc., 570 F.Supp. 1080, 1083 (D.Nev.1983). The Magistrate found both of defendants’ arguments to be without merit. See First R & R at 8-9; Second R & R at 3-4. This Court has reviewed the Magistrate’s Reports and Recommendations and we agree with her reasoning in regard to this cause of action. Nevertheless, in order to more clearly set forth the law in this area, this Court shall briefly re-examine the flaws in defendants' arguments. In regard to the first element of an abuse of process claim, an “ulterior purpose” is any “improper motive” underlying the issuance of legal process. See Laxalt, 622 F.Supp. at 751. For example, the Nevada Supreme Court has held that filing a complaint in order to coerce a nuisance settlement constitutes an ulterior purpose. See Bull, 615 P.2d at 960. It also has held that the ulterior purpose element is satisfied where a party attaches another’s property not merely to secure a debt, but rather to coerce payment of a claim. See Nevada Credit Rating Bureau, 503 P.2d at 12-13. In the case at bar, Abbott has made allegations that, if believed, would constitute an ulterior purpose by the defendants. For instance, he alleges in his deposition testimony that the defendants filed suit against him in order to counter certain negative publicity that they had received in their business dealings. See Abbott Deposition at 153:14-19. He also contends that the defendants filed suit in order to “intimidate, outspend, and outsue” him. See id. at 151:6, 155:3-5. All of these allegations bespeak of improper motives. These allegations suggest that the defendants did not sue Abbott just because they felt he was liable for certain wrongdoing. Instead, according to Abbott, they sued him in order to gain some favorable publicity and in the hope of coercing a settlement. Thus, Abbott’s allegations clearly satisfy the first element of an abuse of process" }, { "docid": "12631204", "title": "", "text": "Soon thereafter, this Court, in an unpublished opinion, determined that the unresolved issues consisted of claims by GE against the Bank on account of: (i) the Bank’s alleged failure to properly safeguard or turn over collateral upon which GE had a superior security interest after the court (Queenan, J.) granted to the Bank relief from the automatic stay; and (ii) sums collected by the Bank from its Halmar lockbox on and after the effective date of GE’s demand with respect to: a) proceeds of GE lamps and bulbs originally sold to Halmar; and b) proceeds of GE inventory originally sold to Ralar. See Gen. Elec. Co., Business Lighting Group v. Halmar Distribs., Inc., et al. (In re Halmar Distribs., Inc.), No. 89-4075 (Bankr.D.Mass. Dec. 13, 1996). These issues were then scheduled for trial. The trial took place over the course of three days; August 7, September 12 and 15, 1997. At the trial, GE introduced the testimony of Zane Katz, the property manager at Halmar’s warehouse, and Grant Gawronski, the GE representative responsible for receipt of GE goods at Halmar’s warehouse. Both witnesses testified with respect to the Bank’s alleged failure to properly safeguard or turnover collateral owned by GE. GE also offered into evidence the testimony of Joseph Partyka, the former Vice President of Management Systems at Halmar; William D. Fitzpatrick, Jr., the GE employee responsible for ensuring that the Debtor had sufficient GE merchandise to service its customers’ needs; and Eric Bergmann, a computer expert hired by GE in 1995 to evaluate the computer records of the Debtor and identify the sales and payments for GE product. These witnesses testified with respect to the amount of proceeds allegedly received by the Bank from the sale of GE lamps and bulbs. The Bank was given the opportunity to cross-examine GE’s witnesses. The Bank did not call any witnesses to testify on its own behalf. Upon conclusion of the evidence, this Court entered directed findings. First, this Court found that the Bank had exercised reasonable care in protecting GE’s goods and had not acted negligently. Further, this Court ruled that" }, { "docid": "23424208", "title": "", "text": "her birth certificate showed that she was 60, instead of 55, years old, Steger was entitled to normal retirement and a special lump sum payment of approximately $17,000. After Steger’s layoff, the financial function in the office where she had worked was shut down, her position was eliminated, and her workload was redistributed to other employees at other locations. B. Legal Proceedings Steger filed a complaint claiming that she was terminated based on her age and that her pay had differed from that of her male co-workers based on her gender. GE set forth 24 affirmative defenses in its answer. The affirmative defenses alleged, inter alia, that Steger’s Equal Pay Act claim was barred by the statute of limitations, that GE’s employment decisions were based on legitimate, nondiscriminatory reasons, that GE acted in good faith, and that Steger could not establish a cause of action under the Equal Pay Act. Through discovery, Steger asked GE to explain the alleged gender-based salary disparity: Please state in full detail every legitimate business reason and/or other factor used in determining the salary paid to employees of [GE’s] Power Systems Group and identify each and every individual who played a decisionmaking, consultative, and/or advisory role in determining the salary to be paid to the employees of the Power Systems Group. Rl-15, Ex. A at 6. GE objected to the interrogatory as “overly broad, unduly burdensome,” and seeking irrelevant information. Id., Ex. C at 8. After Steger filed her motion to compel an answer, the district court found that Steger was “entitled to all available information used in determining salaries for 1994 through 1996,” “[t]o the extent employee salaries [for those years] are based on factors and statistical data.” R5-51 at 6. GE filed a supplemental response to Steger’s interrogatory stating that “[biased upon the Court’s Order and the Parties’ Consent Order, ... there is no responsive data,” R8-122, Ex. D at 2, and an amended response in which it referred Steger to its supplemental response to another interrogatory “for the identities of the Managers who would have played a decision-making role in the salary" }, { "docid": "11063244", "title": "", "text": "thereby committing abuse of process. Counterclaim, ¶ 70. Many of NEP’s allegations relate to the conduct of Milford and its affiliates both at, and after, the October Meeting. To state a valid claim for abuse of process under Massachusetts law, NEP must allege that: 1) process was used, 2) for an ulterior or illegitimate purpose, 3) resulting in damage. Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-76, 489 N.E.2d 185 (1986). The essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding. Broadway Management Services, Ltd. v. Cullinet Software, Inc., 652 F.Supp. 1501, 1503 (D.Mass.1987) (citations omitted). Milford argues that Count VII should be dismissed because the October Meeting merely represented an attempt to settle the dispute between the parties. Milford maintains that it suggested that NEP either buy the Milford Plant in order to compensate Milford for the damages suffered as a result of NEP’s allegedly wrongful conduct, or live up to its contract with Milford to purchase the remaining 44% capacity of the Plant. Because NEP refused to do either, Milford claims to have properly filed this lawsuit. NEP responds that it has stated a valid claim for abuse of process and cites the Rolfes Memorandum in support of its allegation that the Complaint was filed for an ulterior, illegitimate purpose. Given its duty to accept NEP’s factual allegations as true, this Court concludes that NEP has alleged facts sufficient to withstand the instant motion to dismiss. The motion by Milford and its affiliates to dismiss Count VII of NEP’s counterclaim will, therefore, be DENIED. V. Special Motion to Dismiss Pursuant To M.G.L. c. 231, § 59H Milford, MPAI, Enron, Enron Power Marketing, Inc., Jones Capital and Jones Med-way Inc. seek to dismiss Counts I (civil conspiracy), III (c. 93A), VI (defamation) and VII (abuse of process) of NEP’s counterclaim pursuant to M.G.L. e. 231, § 59H, the “anti-SLAPP” statute. The anti-SLAPP statute was enacted on December 29, 1994, when the Massachusetts House of Representatives and Senate" }, { "docid": "12427059", "title": "", "text": "however, does not amount to an ulterior purpose. See Broadway Management Services v. Cullinet Software, 652 F.Supp. 1501, 1503 (D.Mass.1987) (interests of extracting financial benefit and causing substantial expenditure of money are naturally part of counts in complaint and consequently not illegitimate). The court in Cohen summarized the line between legitimately asserting a claim and illegitimately using the legal process for an improper purpose: mere commencement of litigation to enforce a claim which the person commencing the litigation knows or reasonably should have known to be groundless does not constitute abuse of process without proof of an ulterior purpose. Groundless Cohen’s action may have been, but it was aimed, professedly and actually, at defeating the subdivision proposal, nothing more or different. There was no perversion of process to achieve an extraneous end. There is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions; the case is otherwise where there is a form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club. Cohen v. Hurley, 480 N.E.2d at 660 (citations and internal quotation marks omitted). Examples of sufficient ulterior purposes clarify that the purpose must be extraneous or collateral to the proceeding itself. See, e.g., American Velodur Metal, Inc. v. Schinabeck, 20 Mass.App.Ct. 460, 481 N.E.2d 209, 215 (1985) (sufficient facts for the jury to infer ulterior purpose that the husband/plaintiff filed complaint against the defendant/wife for ulterior purpose of coercing more favorable settlement in separate action for divorce); Carroll v. Gillespie, 14 Mass.App.Ct. 12, 436 N.E.2d 431, 439 (1982) (knowingly initiating groundless criminal complaints to collect a civil debt constitutes illegitimate purpose); Stromberg v. Costello, 456 F.Supp. 848, 849-850 (D.Mass.1978) (applying for criminal complaint, maliciously and without probable cause, to coerce the plaintiff to withdraw civil action constitutes ulterior purpose); cf. Cohen v. Hurley, 480 N.E.2d at 661 (bringing groundless allegations to challenge proposed subdivision of land is not" }, { "docid": "23424207", "title": "", "text": "accounts like this.” R44 at 712-13. Once the comparison matrix was completed, the data was compiled into a “RELATIVE MATRIX” which listed 59 employees who were subject to possible layoff. Pl.Ex. 54. Steger was fisted as number 55 on the relative matrix. Jane Elliott, as financial services manager, reviewed the matrix and committed to a head count reduction of 11, leaving her 47 employees. After the matrix was reviewed and approved by GE’s human resources and legal departments, the layoffs were implemented. Although GE notified most of the employees subject to layoff in March 1995, GE delayed Steger’s layoff until April 1995 to allow her to qualify for a Special Early Retirement Option (“SERO”), which required the elimination of the employee’s position, approval by the employee’s supervisor, and an employee of at least 55 years of age and 25 years of service. However, a few days before Steger received official notification of the layoff, she provided GE with a copy of her birth certificate showing that she was born in 1934 instead of 1939. Because her birth certificate showed that she was 60, instead of 55, years old, Steger was entitled to normal retirement and a special lump sum payment of approximately $17,000. After Steger’s layoff, the financial function in the office where she had worked was shut down, her position was eliminated, and her workload was redistributed to other employees at other locations. B. Legal Proceedings Steger filed a complaint claiming that she was terminated based on her age and that her pay had differed from that of her male co-workers based on her gender. GE set forth 24 affirmative defenses in its answer. The affirmative defenses alleged, inter alia, that Steger’s Equal Pay Act claim was barred by the statute of limitations, that GE’s employment decisions were based on legitimate, nondiscriminatory reasons, that GE acted in good faith, and that Steger could not establish a cause of action under the Equal Pay Act. Through discovery, Steger asked GE to explain the alleged gender-based salary disparity: Please state in full detail every legitimate business reason and/or other factor used" }, { "docid": "19532095", "title": "", "text": "the claims for illegal use of confidential information and breach of a common-law duty with respect to confidential information, which track the misappropriation claim. Separately, GE asserts in a footnote that if we rule that the DLP report is admissible (as we have assumed for the sake of argument), we should reverse the grant of partial summary judgment on GE's breach of fiduciary duty claim with respect to allegations that Moffitt-Johnston stole GE's files. However, a claim for breach of fiduciary duty requires an injury to the plaintiff or a benefit to the defendant. For the same reasons GE has not established that Moffitt-Johnston or AmSpec actually used the trade secrets or that GE suffered any injury, it cannot establish a breach of fiduciary duty claim based on the misappropriation. GE also asserts, in the same footnote, that the DLP report's admissibility compels the reversal of the district court's grant of summary judgment on GE's claim that AmSpec tortiously interfered with Moffitt-Johnston's employment agreement with GE. However, as the district court correctly concluded, even if Moffitt-Johnston committed wrongdoing, GE has offered no evidence that AmSpec was involved. IV The district court also granted summary judgment on GE's tortious-interference-with-prospective-business-relationships claim, which alleges that Moffitt-Johnston and AmSpec wrongfully interfered with GE's customer relationships. To establish a claim for tortious interference with prospective business relationships, a plaintiff must set forth evidence that: (1) there was a reasonable probability that the parties would have entered into a business relationship; (2) the defendant committed an independently tortious or unlawful act that prevented the relationship from occurring; (3) the defendant either acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages as a result of the defendant's interference. Here, the only \"independently tortious or unlawful act\" alleged by GE is Moffitt-Johnston's breach of the non-solicitation agreement. As we have already concluded, there is no evidence that Moffitt-Johnston breached the non-solicitation agreement. Accordingly, even if GE can establish a reasonable" }, { "docid": "11046000", "title": "", "text": "any risks related to his work as part of the demolition crew. 479 N.E.2d at 56. The parties have not cited, and the Court's research has not disclosed, any cases reaching contrary results on similar facts. Thus, although the Pennsylvania courts have not yet addressed this issue, there is no reason to believe that they would reach a contrary result. In the present case the plaintiffs allege injuries sustained during the course of storage and handling of junk electrical components, and also injuries sustained during the course of dismantling and processing junk electrical components. The decisions discussed above provide no basis for concluding, as a matter of law, that the storage and handling of junk electrical components was not a reasonably foreseeable use of GE’s product. On the other hand, these decisions do provide a persuasive basis for concluding, as a matter of law, that the dismantling and processing of junk electrical components was not a reasonably foreseeable use of GE’s product, and the Court so finds. Accordingly, the allegations of injury as a result of the dismantling and processing of junk electrical components will be dismissed. b. failure to state a claim—statute of limitations GE moves to dismiss contending the claims against it are time-barred. Specifically, GE makes the following argument: There had been EPA proceedings against the plaintiffs under the Toxic Substances Control Act charging improper storage and handling of PCB’s. As a result of these proceedings, plaintiffs knew, at least by March, 1981, that the electric components on their site contained hazardous PCB’s. However, the present action was not commenced until May 9,1986. Therefore plaintiffs’ claims against GE are barred by Pennsylvania’s two year statute of limitations for tort claims. In this action plaintiffs seek recovery of clean-up costs, as well as damages for injury to the site and to the business. According to the complaint, the contamination of the site was discovered after May, 1984 and clean-up costs were expended after that time. (Ex. A and B). The business ceased its operations in 1984 (If 19). Thus, the injuries for which plaintiffs seek recompense did not" }, { "docid": "12427061", "title": "", "text": "illegitimate purpose when lawsuit was aimed at defeating the subdivision proposals). The counterclaim alleges that in the course of the discussions to resolve the inventorship dispute, Abbott threatened to publically embarrass and humiliate Folk-man and his colleagues if the CMCC defendants did not meet Abbott’s demands to name Davidson as an inventor on the ’221 patent and assign all rights to the invention to Abbott. (Docket Entry # 175, ¶¶ 69 & 74). Abbott then filed a false complaint based on the redacted CDA which purported to give Abbott joint or exclusive property rights to the Kringle 5 invention. (Docket Entry # 175, ¶¶ 75, 76, 88 & 91). Abbott also unnecessarily distributed the complaint to the press knowing that it contained the redacted CDA and the accompanying false claim of Folk-man’s express breach of the redacted CDA. The dissemination of the defamatory statements in the complaint, including that the CDA was a binding agreement that gave Abbott rights to the Kringle 5 invention (Docket Entry # 1, ¶¶ 29, 70 & 73(d)), naturally damaged the good name and reputations of Folkman, Cao, O’Reilly and Children’s Hospital in the relevant communities. (Docket Entry # 175, ¶¶ 78-80). Finally, and significantly, Abbott did not file the lawsuit simply to acquire the rights to the Kringle 5 invention. Rather, it filed the lawsuit with the intent “to publically embarrass and humiliate the individual scientists and Children’s Hospital.” (Docket Entry # 175, ¶ 81). Although the issue is close, see Broadway Management Services v. Cullinet Software, 652 F.Supp. at 1503 (ulterior motives insufficient inasmuch as they “are naturally tied up with the interests properly part of the counts in BMS’s complaint”), the First Circuit “recognize[s] that the desire to injure a business or business reputation is an improper ulterior motive sufficient to state a claim for abuse of process.” General Electric Company v. Lyon, 894 F.Supp. 544, 552 (D.Mass.1995) (denying Rule 12(b)(6) motion to dismiss abuse of process claim). Moreover, the desire to damage the reputations is collateral to the allegations in plaintiffs’ complaint. The fact that the CMCC defendants allege such damage" }, { "docid": "7494290", "title": "", "text": "that Defendants have operated GE/PAC in violation of its Articles of Association. A statement of the purposes of GE/PAC is set forth in Article II of its Articles of Association, which reads as follows: The purposes of the Committee are to support the nation’s political processes and advance the nation’s economic, social and political welfare by affording General Electric management personnel the opportunity to take a more active part in the political process by contributing funds to support candidates for federal office, national parties and state and local candidates where permissible under federal law.... Plaintiff contends that this Article sets forth three legal purposes of GE/PAC: (1) to support the nation’s political process; (2) to advance the nation’s economic, social and political welfare; and, (3) to afford GE’s management personnel the opportunity to take a more active part in the political process. Plaintiff claims that Defendants have systematically violated each of these purposes, and that expenditures in violation of the Articles constitute a waste of corporate assets. Plaintiff alleges that GE/PAC has supported incumbents and avoided challengers, and that this discourages competitive elections. Defendants do not deny allegations that contributions to House and Senate incumbents have surpassed those to challengers by a ratio of twenty-five to one. Defendants admit that GE/PAC contributed to opposing candidates in the same political race, and that it contributed money to candidates facing only limited opposition. Senate incumbents were also given money in non-election years. GE/PAC has contributed to members of congressional committees with jurisdiction over legislation potentially effecting GE’s business. GE/PAC has also contributed to incumbent Congress members who have voted against legislation potentially beneficial to GE. See Plaintiffs’ Rule 3(g) statement, and Defendants’ response. Plaintiff opposes the lobbying activity of GE/PAC, and claims that GE/PAC seeks to preserve party balance and build relationships, or buy influence, rather than change the composition of Congress. Plaintiffs second major point of contention is that Defendants have attempted to conceal the true use of GE/PAC. He claims that GE/PAC is run by management in their lobbying efforts, and that this direct involvement has been concealed from shareholders." }, { "docid": "23117391", "title": "", "text": "As the court below stated, “a wrongful set-off, without more, cannot violate ch. 93A.” D.Ct.Op. at 6. And as we explain below, there was no “more.” First, there has been no satisfactory showing that nonpayment was aimed at pressuring QSOR into doing something “in the conduct of any [ongoing] trade or commerce.” Mass.Gen.L. ch. 93A, § 2 (1984); see Stromberg v. Costello, 456 F.Supp. 848, 850-51 (D.Mass.1978). Second, although the cases which dot the chapter 93A landscape tend to be fact-specific, even sui gen-eris, we think they are generally supportive of the proposition that a setoff which proved unwarranted could not, in and of itself, be classified as abridging some established concept of mercantile fairness. Compare, e.g., Stromberg, 456 F.Supp. at 851 (pressure or coercive threat, causally linking use of legal remedy to course of business dealings, required for chapter 93A violation) (dicta); Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 489 N.E.2d 185, 195 (1986) (groundlessness of claim is not an element of abuse of process); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 390 N.E.2d 243, 251 (1979) (breach of contract, standing alone, does not constitute a chapter 93A violation); Cohen v. Hurley, 20 Mass.App. 439, 480 N.E.2d 658, 660 (1985) (no abuse of process where claim frivolous if brought only to defeat opponent in court); see also Broadway Management Services, Ltd. v. Cullinet Software, Inc., 652 F.Supp. 1501, 1504 (D.Mass.1987) (litigating with concurrent intent to burden defendant with cost is not abuse of process without collateral motive or design to coerce); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d 484, 485 (1975) (no cause of action absent use of process for ulterior or illegitimate purpose); cf. Pepsi-Cola, 754 F.2d at 18 (withholding of monies legally owed to achieve some extortionate goal transgresses chapter 93A). Whether or not the counterclaims now appear futile, Garrity had the right to test them through litigation. It had a correlative right to assert its theory of setoff. QSOR does not contend before us that withholding of the funds was accomplished with a coercive design directed to “the conduct" }, { "docid": "12427058", "title": "", "text": "to plaintiffs. An ulterior or illegitimate purpose “consists of using process ‘to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.’ ” Ferraro v. First Safety Fund National Bank, 11 Mass.App.Ct. 928, 416 N.E.2d 225, 226 (1981) (citations omitted); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d 484, 485 (1975) (same); Cohen v. Hurley, 20 Mass.App.Ct. 439, 480 N.E.2d 658, 660 (1985). Although the plaintiff need not establish that the defendant’s suit is groundless, the plaintiffs knowledge that his claim is groundless may show that the plaintiff used the legal process for an ulterior purpose. Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377, 1383 (1986); see, e.g., Lorusso v. Bloom, 321 Mass. 9, 71 N.E.2d 218, 218 (1947) (commencement of supplementary process “action known to be groundless” to collect twice on debt already paid constitutes abuse of the legal process). Using the lawsuit to cause the other party to expend substantial sums to mount a defense, however, does not amount to an ulterior purpose. See Broadway Management Services v. Cullinet Software, 652 F.Supp. 1501, 1503 (D.Mass.1987) (interests of extracting financial benefit and causing substantial expenditure of money are naturally part of counts in complaint and consequently not illegitimate). The court in Cohen summarized the line between legitimately asserting a claim and illegitimately using the legal process for an improper purpose: mere commencement of litigation to enforce a claim which the person commencing the litigation knows or reasonably should have known to be groundless does not constitute abuse of process without proof of an ulterior purpose. Groundless Cohen’s action may have been, but it was aimed, professedly and actually, at defeating the subdivision proposal, nothing more or different. There was no perversion of process to achieve an extraneous end. There is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions; the case is otherwise where there is a form of coercion to obtain a collateral advantage, not properly" }, { "docid": "23117392", "title": "", "text": "85, 390 N.E.2d 243, 251 (1979) (breach of contract, standing alone, does not constitute a chapter 93A violation); Cohen v. Hurley, 20 Mass.App. 439, 480 N.E.2d 658, 660 (1985) (no abuse of process where claim frivolous if brought only to defeat opponent in court); see also Broadway Management Services, Ltd. v. Cullinet Software, Inc., 652 F.Supp. 1501, 1504 (D.Mass.1987) (litigating with concurrent intent to burden defendant with cost is not abuse of process without collateral motive or design to coerce); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d 484, 485 (1975) (no cause of action absent use of process for ulterior or illegitimate purpose); cf. Pepsi-Cola, 754 F.2d at 18 (withholding of monies legally owed to achieve some extortionate goal transgresses chapter 93A). Whether or not the counterclaims now appear futile, Garrity had the right to test them through litigation. It had a correlative right to assert its theory of setoff. QSOR does not contend before us that withholding of the funds was accomplished with a coercive design directed to “the conduct of any [ongoing] trade or commerce.” Mass.Gen.L. ch. 93A, § 2. Under the circumstances, summary judgment was appropriate on the chapter 93A claim. IV. GARRITY’S APPEAL We turn now to Garrity’s three-pronged appeal, dealing separately with each furcu-lum. A. Prejudgment Interest. We believe that the district court’s decision to apply Massachusetts’ prejudgment interest statute (rather than Pennsylvania law, as defendant wanted) was correct. Sitting in diversity jurisdiction, the judge was bound to look initially to the forum’s choice-of-law principles, that is, to apply the law which a state court in Massachusetts would apply. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Union Mut. Life Ins. Co. v. Chrysler Corp., 793 F.2d 1, 16 (1st Cir.1986); Advance Financial, 747 F.2d at 28. In the Commonwealth, a decision about which law to apply vis-a-vis prejudgment interest presents a substantive, not a procedural, question; thus, Massachusetts would not automatically invoke its own statute. See Morris v. Watsco, Inc., 385 Mass. 672, 433 N.E.2d 886, 889-90 (1982);" } ]
629160
Katy Indus., Inc., 166 F.3d 937 (7th Cir.1999) (Posner, J.) (employers were not integrated even though one was a wholly-owned subsidiary of the other, employees participated in the same pension plan, and computer operations were integrated). In this case, there is no record evidence to suggest that, for-example, the Partnership and the Corporation ever mingled financial accounts, coordinated their cleaning and remediation services, submitted joint vendor proposals, advertised services as one entity, maintained the same business address, obtained certifications together, or shared equipment. Cf. Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 428-29 (6th Cir.2014) (interrelated defendants maintained the same registered business address, jointly obtained quality certifications, and orders from one constituted half of the other’s business); REDACTED EEOC v. Dolphin Cruise Line, Inc., 945 F.Supp. 1550, 1553-54 (S.D.Fla.1996) (interrelated defendants had interchangeable logos and let terheads, shared offices, and centralized check writing). c.Centralized Control of Labor Relations In his individual role as President at both the Corporation and the Partnership, Fingerman has made decisions regarding the retention of employees at both Defendants. JA 196-97. However, Kieffer has offered no evidence that one business exerted control of the labor relations of the other. See e.g. Grace v. USCAR, 621 F.3d 655, 665 (6th Cir.2008). In Grace, the Court of Appeals for the Sixth Circuit observed that “USCAR made its own decisions with regards to securing an
[ { "docid": "23289065", "title": "", "text": "at one time. A liberal construction must be accorded to the term: employer. Trevino v. Celanese Corp., 701 F.2d 397, 403 (5th Cir. 1983); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). McKenzie tried to prove to the trial court that Davenport-Harris’ and Protective’s activities, operations, ownership and management are sufficiently interrelated to be perceived as a single employer for purposes of Title VII. Counsel for the defendants contended that the separate corporate existence of Davenport-Harris and Protective could not be disregarded. Based on three depositions and a handful of exhibits alone, the district court judge determined that Protective could not be considered an employer of McKenzie. The court made this determination despite its finding that “there is substantial similarity in their corporate officers and in their directors, as well as a common business interest. The ownership of the two corporations, in effect, is also quite similar.” The court also found that “there is a significant degree of interrelationship.” Our role is to decide whether McKenzie presented sufficient evidence to create a genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity. The predominant trend in determining whether two businesses should be treated as a single or joint employer under § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB). See Equal Employment Opportunity Comm’n v. Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino, 701 F.2d at 404; Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir.1980); Baker, 560 F.2d at 392; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). The NLRB factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. The showing required to warrant a finding of single employer status has been described as “highly integrated with respect to ownership and operations.” Fike, 514 F.Supp. at 726. While it would be" } ]
[ { "docid": "23216664", "title": "", "text": "the court found that the two entities each made independent decisions with respect to labor relation (e.g. only SPR had the power to determine the number of employees it needed). Id. And finally, the opinion reasoned that the overlap in administrative services was irrelevant to the fourth factor, the degree of common ownership and financial control. Id. at 7-8. In the instant case the integrated employer framework is similarly inapposite. Under the first factor, there is no evidence of common management — at least insofar as the core responsibilities and operations of each business — between US-CAR and Bartech. Although the two companies certainly had a shared relationship with Grace, USCAR did not oversee any of Bartech’s corporate decision or facilities, or vice versa. But see Armbruster v. Quinn, 711 F.2d 1382, 1339 (6th Cir.1983) (finding at least some evidence of common management where one person was the president of one entity and the director of another in a Title VII integrated employer case). The second prong, whether the entities have interrelated operations, militates even more strongly against a finding of integrated employment in this case. US-CAR and Bartech maintain separate offices; moreover, the nature of the work is completely different: one is dedicated to research and design for the car industry while the other is a staffing agency. At first blush, the third factor — centralized control of labor relations — appears more favorable to a finding that USCAR and Bartech are integrated employers. For example, Grace reported directly to Flaherty (at USCAR), but also maintained a close relationship with Shimon at Bartech. But the mere fact that two entities both communicated with a single employee does not mean that their employment relations, as a whole, are interrelated, as the regulations contemplate. Indeed, USCAR made its own decisions with regards to securing an additional employee to replace Grace and to restructuring its IT department. The fact that it asked Bartech to provide an additional employee does not indicate that Bartech exercised any control over this employment decision. Nor, obviously, did USCAR have any influence on Bar-tech’s decision to loan" }, { "docid": "23216666", "title": "", "text": "employees to other client employers. And finally, no evidence exists that the two entities were subject to common ownership or financial control. Because none of the four factors are met, the interrelated employer test is inapplicable. (B) The “joint employers” test The regulations promulgated by the Department of Labor interpreting the FMLA also elaborate a test for joint employment under the Act. At its core, joint employment encompasses situations where “two or more businesses exercise some control over the work or working conditions of the employee.” 29 C.F.R. § 825.106(a). “In a joint employer relationship the analysis assumes separate legal entities exist but that they have chosen to handle certain aspects of their employer-employee relationships jointly.” Schubert v. Bethesda Health Group, Inc., 319 F.Supp.2d 963, 970 (E.D.Mo.2004) (citing NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982)). Unlike integrated employers, which are treated as a single legal entity, joint employers “may be separate and distinct entities with separate owners, managers, and facilities.” 29 C.F.R. § 825.106(a). The regulations describe three employment relationships where joint employment will “generally ... be considered to exist”: (1) Where there is an arrangement between employers to share an employee’s services or to interchange employees; (2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or, (3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 825.106(a) (emphasis added). The second situation — in which one employer acts in the interest of another— describes the situation in the instant case: Bartech, a staffing agency responsible for providing specialized technical staff, is acting in USCAR’s interests by managing Grace and ensuring that USCAR’s staffing needs for its IT division are met. Furthermore, the regulations specifically state that “joint employment will ordinarily be found to exist when a temporary or leasing agency supplies employees to a second" }, { "docid": "6215501", "title": "", "text": "allegations, plaintiffs allege that the companies are an integrated, overlapping family enterprise characterized by an absence of an arm’s length relationship. Specifically, they allege that the companies have overlapping ownership and control, and shared facilities, equipment, suppliers and vendors, management, and office employees; that Trucking has no customers other than Concrete’s and that all of Concrete’s deliveries were made by Trucking; that Trucking never received any revenue; and that Realty’s sole business purpose was owning the property. (See Am. Compl. ¶¶ 31-80.) Given these allegations, the Court concludes that the proposed amendment sufficiently alleges that the companies are a single employer. See, e.g., Lihl% 80 F.3d at 747 (upholding NLRB’s conclusion that two companies were single employer and jointly and severally liable under collective bargaining agreement because, inter alia, operations were functionally integrated, companies provided services and products solely to each other and had overlapping ownership and control, and there was evidence of centralized control of labor relations); Ferrara, 904 F.Supp.2d at 261-63 (finding single employer status where, inter alia, operations of companies were interrelated; and companies shared substantially same business purpose, vehicles, and employees; had same customers; and were owned by members of same immediate family); Finkel v. Frattarelli Bros., Inc., No. 05-CV-1551 (JFB)(AKT), 2008 WL 2483291, at *10-12 (E.D.N.Y. June 17, 2008) (finding single employer status where, inter alia, there was no arm’s length business relationship between parties, trucking operations of one company were almost completely intertwined with other company, and one of companies had no customers other than those of other company). b. Alter Ego Doctrine As the Second Circuit has explained, “[t]he purpose of the alter ego doctrine in the ERISA context is to prevent an employer from evading its obligations under the labor laws ‘through a sham transaction or technical change in operations.’ ” Ret. Plan, 629 F.3d at 288 (quoting Newspaper Guild, of N.Y., Local No. 3 of the Newspaper Guild, AFL-CIO v. NLRB, 261 F.3d 291, 298 (2d Cir.2001)). Specifically, “ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans and to protect contractually defined benefits.” Id." }, { "docid": "7233758", "title": "", "text": "this rule, known as the single employer doctrine, is only appropriate where there is “‘sufficient indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer.’ ” Herman v. Blockbuster Entertainment Group, 18 F.Supp.2d 304, 308 (S.D.N.Y.1998), aff'd mem., 182 F.3d 899 (2d Cir.1999) (quoting Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983)). In Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995), the Second Circuit adopted a four-part test “aimed at determining the degree of interrelationship between the two entities.” Under that test, a “parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id. (citing Armbruster, 711 F.2d at 1337). The critical question, according to the court, is: “ ‘What entity made the final decisions regarding employment matters related to the person claiming discrimination?’ ” Id. (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). A plaintiff “need not show that each factor exists in order to establish an integrated enterprise, nor is there one factor a plaintiff must show.” Regan v. In the Heat of the Nite, Inc., 93 Civ. 862, 1995 WL 413249, at *3 (S.D.N.Y. July 12, 1995) (citing Armbruster, 711 F.2d at 1337-38). In analyzing these factors, however, courts should focus on the second factor: centralized control of labor relations. Herman, 18 F.Supp.2d at 309. This Court has reviewed the following items to determine whether a sufficient interrelation of operation exists: (1) whether the parent was involved directly in the subsidiary’s daily decisions relating to production, distribution, marketing, and advertising; (2) whether the two entities shared employees, services, records and equipment; (3) whether the entities commingled bank accounts, accounts receivable, inventories, and credit lines; (4) whether the parent maintained the subsidiary’s books; (5) whether the parent issued the subsidiary’s paychecks; and (6) whether the" }, { "docid": "15661471", "title": "", "text": "record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control. York, 684 F.2d at 362. None of these factors is conclusive, and all four need not be met in every case. Armbruster, 711 F.2d at 1337-38. Nevertheless, control over labor relations is a central concern. Id. at 1337; Murray v. Miner, 74 F.3d 402, 404 (2d Cir.1996); Frank v. U.S. West, Inc., 3 F.3d 1357, 1363 (10th Cir.1993); Rogers v. Sugar Tree Prod., Inc., 7 F.3d 577, 582 (7th Cir.1993); Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983). Examining the four factors in the context of this case, it is clear that TTU and Barnes & Noble cannot be treated as an integrated enterprise. First, there is insufficient evidence of interrelation of operations. TTU and Barnes & Noble each kept their own records, and maintained separate bank accounts and offices. See York, 684 F.2d at 362. There is simply no evidence of the type of interrelation found in cases treating two entities as a single employer. See, e.g., Armbruster, 711 F.2d at 1338 (finding interrelation of- operations where parent company “handled” subsidiary’s accounts receivable and its payroll and cash accounting, provided it with administrative backup, monitored its sales shipments, allowed subsidiary’s managerial employees to use its company credit cards, and housed subsidiary’s bank accounts at its headquarters); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933-34 (11th Cir.1987) (parent and subsidiary companies were marketed as “twins in service,” and parent kept subsidiary’s books and records, issued its payroll checks and paid its bills); EEOC v. Dolphin Cruise Line, Inc., 945 F.Supp. 1550, 1553-54 (S.D.Fla.1996) (two companies provided'exclusive services to each other, were marketed as twin operations, used each other’s logo and letterhead interchangeably, issued checks on each other’s behalf, and kept business and personnel records at the same office). Plaintiffs assert that the operations of TTU and Barnes & Noble were sufficiently interrelated- for purposes of the single .employer doctrine because Barnes & Noble paid TTU for the use" }, { "docid": "23216665", "title": "", "text": "more strongly against a finding of integrated employment in this case. US-CAR and Bartech maintain separate offices; moreover, the nature of the work is completely different: one is dedicated to research and design for the car industry while the other is a staffing agency. At first blush, the third factor — centralized control of labor relations — appears more favorable to a finding that USCAR and Bartech are integrated employers. For example, Grace reported directly to Flaherty (at USCAR), but also maintained a close relationship with Shimon at Bartech. But the mere fact that two entities both communicated with a single employee does not mean that their employment relations, as a whole, are interrelated, as the regulations contemplate. Indeed, USCAR made its own decisions with regards to securing an additional employee to replace Grace and to restructuring its IT department. The fact that it asked Bartech to provide an additional employee does not indicate that Bartech exercised any control over this employment decision. Nor, obviously, did USCAR have any influence on Bar-tech’s decision to loan employees to other client employers. And finally, no evidence exists that the two entities were subject to common ownership or financial control. Because none of the four factors are met, the interrelated employer test is inapplicable. (B) The “joint employers” test The regulations promulgated by the Department of Labor interpreting the FMLA also elaborate a test for joint employment under the Act. At its core, joint employment encompasses situations where “two or more businesses exercise some control over the work or working conditions of the employee.” 29 C.F.R. § 825.106(a). “In a joint employer relationship the analysis assumes separate legal entities exist but that they have chosen to handle certain aspects of their employer-employee relationships jointly.” Schubert v. Bethesda Health Group, Inc., 319 F.Supp.2d 963, 970 (E.D.Mo.2004) (citing NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982)). Unlike integrated employers, which are treated as a single legal entity, joint employers “may be separate and distinct entities with separate owners, managers, and facilities.” 29 C.F.R. § 825.106(a). The regulations describe three" }, { "docid": "20794919", "title": "", "text": "at Cadon: Ensign made the decision to terminate Demyanovich “with some help” from Allison, R. 38-6 (Ensign Dep. at 80) (Page ID # 958); Cadon’s office manager regularly consulted Allison or his subordinates at MNP regarding employee matters, R. 39-5 (Bluhm Dep. at 12-13) (Page ID # 1072-73); and Allison represented Cadon management when negotiating the collective bargaining agreement with unionized Cadon employees, R. 38-6 (Ensign Dep. at 9) (Page ID #889). Second, the operations of the two entities are interrelated. Although there is no evidence that Cadon and MNP mingle accounts or keep joint financial records, see Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir.1983), they maintain the same registered business address and jointly obtain quality certifications. R. 39-6 (Quality Certifications) (Page ID # 1092-1102). Moreover, the two entities are engaged in the same business of preparing automotive parts, see Grace, 521 F.3d at 665, and orders from MNP comprise half of Ca-don’s business. R. 38-6 (Ensign Dep. at 81) (Page ID # 958); R. 39-3 (MNP Website) (Page ID # 1053). Third, MNP exercised at least some control over Cadon’s labor relations. Cadon employees regularly consulted Allison, MNP’s human resources officer, on labor and employment issues. Allison also represented Cadon in negotiating the collective bargaining agreement, suggesting that MNP retained some degree of centralized control over Cadon’s employment practices. But see Swallows, 128 F.3d at 995 (finding no evidence of control over labor relations be cause one company had no authority to hire or fire employees at the other). Finally, the same group of investors has owned both MNP and Cadon since 2004. R. 38-6 (Ensign Dep. at 4-5) (Page ID # 884). Thus, Demyanovich has presented sufficient evidence to create a genuine dispute regarding whether Cadon and MNP are an “integrated employer” covered under the FMLA. Demyanovich also disputes Ca-don’s assertion that he was not entitled to FMLA benefits because he would have been unable to return to work at the end of the statutory leave period. If an employer takes an adverse employment action at least in part because an employee requested or took FMLA" }, { "docid": "13689160", "title": "", "text": "Radio Union test in Title VII and related cases), rev’d on other grounds, 117 F.3d 621 (D.C.Cir.1997). In determining whether separate corporations can be considered a single employer, the Court considers (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Radio Union, 380 U.S. at 256, 85 S.Ct. 876; St. Francis Xavier, 928 F.Supp. at 33. “Although the absence or presence of any single factor is not conclusive, control over the elements of labor relations is a central concern.” St. Francis, 928 F.Supp. at 33 (citing Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir.1983)). Moreover: Plaintiff must make a substantial showing to warrant a finding of single employer status. There must be ‘sufficient indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer.’ Id. (quoting Armbruster, 711 F.2d at 1332). 1. Interrelation of Operations: Combined accounting records, bank accounts, lines of credit, payroll preparation, telephone numbers, or offices are all indicia of interrelatedness. See id.; Western Union Corp, 224 N.L.R.B. 274 (1976), aff'd, 571 F.2d 665 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 101, 58 L.Ed.2d 121 (1978). Plaintiff contends that Ark closely monitored the activities of Ark Union and Ark Kiosk in terms of financial and management control, pointing out that (1) the checks drawn on America’s and Center Cafe’s bank accounts can be printed on Ark’s computers in New York City, (2) all Ark-owned restaurants use a standard disciplinary write-up form and training manual, (3) Ark’s 1994 10-K form included its two subsidiaries, and (4) employees occasionally transferred between Ark-owned restaurants. There is no suggestion, however, of shared budgets or the integration of daily operations. Despite the fact that there may be a common source of check printing, plaintiff indicates that the subsidiaries maintain separate bank accounts. The 10-K form indicates only common ownership, not the interrelation of daily operations. Further, the three entities are located in" }, { "docid": "8211464", "title": "", "text": "through GPC and bore GPC’s and SPR’s logos. B. In Romano v. U-Haul International, 283 F.3d 655, 666 (1st Cir.2000), a Title VII case, we determined that a “flexible approach” which considered all four “integrated employer” factors was appropriate, with special emphasis on whether “the parent exerts ‘an amount of participation [that] is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions.’ ” Id. (citing Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir.1983)). While placing emphasis on the centrality of control over labor relations makes sense for imposing liability on affiliated entities in an employment discrimination case, cf. Romano, 233 F.3d at 666, we think that, here, the four factors merit equal consideration given the plain language of 29 C.F.R. § 825.104(c)(2). However, our analysis of the four factors should be informed by certain economic concerns. This is because the 50-employ-ee exception is an economic one rooted in protecting small businesses, and the purpose of the “integrated employer” test is to ensure that a defendant has not structured itself to avoid labor laws. See Papa v. Katy Indus., 166 F.3d 937, 942 (7th Cir.1999). While we do not doubt that GPC’s relationship with SPR extends beyond mere absentee ownership, the issue is whether GPC controls enough facets of SPR’s business and operations, such that it has not maintained its economic distinctness. We find support for our framing of the issue in the FMLA. The general purpose of the FMLA is to satisfy the “needs of the American workforce and the development of high-performance organizations,” 29 C.F.R. § 825.101, by “balancing] the demands of the workplace with the needs of families ... in a manner that accommodates the legitimate interests of employers,” 29 U.S.C. § 2601(b)(1), (3). With that in mind, we view the 50-employee exception as a threshold protecting smaller businesses from the onerous requirement of keeping an unproductive employee on the payroll in the form of redundant or absent employees, going without an employee for up to twelve weeks, or both. Cf. Papa, 166 F.3d at 942 (observing that" }, { "docid": "15661472", "title": "", "text": "of interrelation found in cases treating two entities as a single employer. See, e.g., Armbruster, 711 F.2d at 1338 (finding interrelation of- operations where parent company “handled” subsidiary’s accounts receivable and its payroll and cash accounting, provided it with administrative backup, monitored its sales shipments, allowed subsidiary’s managerial employees to use its company credit cards, and housed subsidiary’s bank accounts at its headquarters); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933-34 (11th Cir.1987) (parent and subsidiary companies were marketed as “twins in service,” and parent kept subsidiary’s books and records, issued its payroll checks and paid its bills); EEOC v. Dolphin Cruise Line, Inc., 945 F.Supp. 1550, 1553-54 (S.D.Fla.1996) (two companies provided'exclusive services to each other, were marketed as twin operations, used each other’s logo and letterhead interchangeably, issued checks on each other’s behalf, and kept business and personnel records at the same office). Plaintiffs assert that the operations of TTU and Barnes & Noble were sufficiently interrelated- for purposes of the single .employer doctrine because Barnes & Noble paid TTU for the use of its building and for utilities, and because it received maintenance services from TTU.. These provisions are nothing more than standard contractual lease terms, however, and do not show interrelation of operations. Other examples of interrelation, such as Barnes & Noble’s relationship with TTU faculty, are simply inherent to the operation of a campus bookstore catering to the TTU community. Cf. Evans v. McDonald’s Corp., 936 F.2d 1087, 1090 (10th Cir.1991) (finding that franchisor did not have any control over operations of franchisee other than “the necessary control over conformity to standard operational details inherent in many franchise settings”). If this type of interrelation were sufficient to create a genuine issue of fact, there would be a genuine issue as to the first factor every time a company contracted to run a campus bookstore. Second, there is no evidence of common management. Barnes & Noble and TTU have never shared common officers or board members. See York, 684 F.2d at 362. While the Agreement contained some provisions suggesting that TTU retained the ability to influence" }, { "docid": "23216663", "title": "", "text": "plaintiff argued that SPR and GPC were integrated employers and that, together, they satisfied the FMLA numerosity requirement. In support of her claim, the plaintiff offered, inter alia, the following evidence: that SPR adopted many of GPC’s personnel policies, that many of SPR’s personnel-related documents carried the GPC letterhead or logo, and that GPC issued SPR’s payroll checks. Engelhardt, 472 F.3d at 2-3. In concluding that this “arm’s length” relationship did not constitute integrated employment for purposes of the FMLA, the Engelhardt Court focused on the fact that none of the four enumerated factors supported the plaintiffs argument. Id. at 8. First, the court noted that there was no evidence suggesting that the two companies were under the same management. Id. at 6. Second, the operations of the two entities were not interrelated, for the two maintained separate headquarters, human resource departments, records, and worksites; additionally, the court noted that the nature of the businesses (office-supply vs. car parts) was different. Id. at 7. Applying the third factor — centralized control of labor relations — the court found that the two entities each made independent decisions with respect to labor relation (e.g. only SPR had the power to determine the number of employees it needed). Id. And finally, the opinion reasoned that the overlap in administrative services was irrelevant to the fourth factor, the degree of common ownership and financial control. Id. at 7-8. In the instant case the integrated employer framework is similarly inapposite. Under the first factor, there is no evidence of common management — at least insofar as the core responsibilities and operations of each business — between US-CAR and Bartech. Although the two companies certainly had a shared relationship with Grace, USCAR did not oversee any of Bartech’s corporate decision or facilities, or vice versa. But see Armbruster v. Quinn, 711 F.2d 1382, 1339 (6th Cir.1983) (finding at least some evidence of common management where one person was the president of one entity and the director of another in a Title VII integrated employer case). The second prong, whether the entities have interrelated operations, militates even" }, { "docid": "22833736", "title": "", "text": "as are other aspects of corporate functioning. See Nance, WARN Act, supra, at 533. Rather, the test looks to four labor-related characteristics of affiliated corporations: interrelation of operations; common management; centralized control of labor relations; and common ownership or financial control. See, e.g., Radio & Television Broad. Techs. Local Union 1264 v. Broadcast Serv. of Mobile, 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). No single factor is dispositive; rather, single employer status under this test “ultimately depends on all the circumstances of the case.” NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1122 (3d Cir.1982). As originally designed, the integrated enterprise test was used by the National Labor Relations Board to determine whether two firms were sufficiently related to meet its jurisdictional minimum amount of business volume. See Stephen F. Befort, Labor Law and the Double-Breasted Employer: A Critique of the Single Employer and Alter Ego Doctrines and a Proposed Reformulation, 1987 Wis. L. Rev. 67, 75. Later, the Board came to use the same test to determine whether nominally separate firms constituted “neutral” entities in the context of secondary boycotts, and to determine whether an employer had impermissibly “double-breasted” operations so as to avoid the obligations of a collective bargaining agreement. See id. at 75-76. Since its initial formulation, the test has been applied by courts in other employment contexts, including the Labor Management Relations Act, see International Bhd. of Teamsters Local 952 v. American Delivery Serv. Co., Inc., 50 F.3d 770 (9th Cir.1995); Title VII and the Age Discrimination in Employment Act, see Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir.1993); the Americans with Disabilities Act, see EEOC v. Chemtech Int’l Corp., 890 F.Supp. 623 (S.D.Tex.1995); and the Fair Labor Standards Act, see Takacs v. Hahn Auto. Corp., No. C-3-95-404, 1999 WL 33117265 (S.D.Ohio Jan. 4, 1999). But see Papa v. Katy Indus., Inc., 166 F.3d 937, 940-43 (7th Cir.1999) (rejecting the integrated enterprise test in the context of antidiscrimination law). Department of Labor regulations have also adopted the integrated enterprise test for the Family Medical Leave Act." }, { "docid": "8211468", "title": "", "text": "there is no indication that SPR is under the same management as GPC. There is no common manager between them and no SPR manager answers to any GPC employee. The one person who had been a manager at SPR prior to becoming one at GPC had to resign his SPR position and apply through normal channels at GPC. All facets of SPR’s operations, from corporate to facilities management are entirely dictated by SPR employees. And unlike in Armbruster, 711 F.2d at 1339, where one person was president of one entity and a director of the other, here, the two companies share two independent directors who are not involved in running either business. Moreover, there is little, if any, evidence to suggest any interrelation between operations of the two companies, the integrated employer test’s second factor. SPR has a separate headquarters, human resource department, records and record keeping, and separate worksites which fulfilled wholly distinct functions. The nature of their businesses is also distinct — GPC is in the auto-parts retailing business whereas SPR is in the office-supply wholesaling business. Thus, SPR is not a GPC “division” whereby upper echelons of control are centralized and efficiencies are realized through consolidation of redundant administrative, human resource, and management functions. Furthermore, the third factor also weighs against finding that the two companies are an integrated employer as the facts reveal that SPR made its own, independent decisions with respect to labor relations. Only SPR had the power to determine how many employees it needs, and whether, when and whom to hire and fire to meet those needs. Cf. Baker v. Stuart Broadcast. Co., 560 F.2d 389, 392 (8th Cir.1977). There is no evidence to suggest that SPR deferred to GPC in making hiring, firing, assignment, scheduling, or compensation decisions. See Swallows, 128 F.3d at 995. Because the evidence does not demonstrate that GPC controlled SPR’s operations with regard to the deployment or redeployment of human resources, see Romano, 233 F.3d at 666, there is no basis for the inference that GPC employees could be asked to cover for SPR employees, even though they" }, { "docid": "23216662", "title": "", "text": "F.3d 1 (finding that a wholly-owned subsidiary and the parent were not integrated employers); Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1257 (11th Cir.2004) (“As a matter of law, we do not believe that common ownership of two corporations is enough for a jury to conclude that there were integrated into one operation for FMLA purposes.”); see also Arculeo v. On-Site Sales &, Mktg., L.L. C, 425 F.3d 193, 196 (2d Cir.2005) (finding no integrated employment for the purposes of Title VII); but see Schubert, 319 F.Supp.2d 963 (finding sufficient evidence of integrated employment where two putatively distinct health care companies had the same officers, nearly identical officers, similar corporate purpose, and principal place of business at the same address). The First Circuit’s Engelhardt decision is particularly instructive. In Engelhardt, an individual appealed the district court’s determination that she was not an employee under the FMLA because her employer did not satisfy FMLA’s numerosity requirement. The plaintiff worked for S.P. Richards Co. (SPR), a wholly-owned subsidiary of Genuine Parts Co. (GPC). On appeal, the plaintiff argued that SPR and GPC were integrated employers and that, together, they satisfied the FMLA numerosity requirement. In support of her claim, the plaintiff offered, inter alia, the following evidence: that SPR adopted many of GPC’s personnel policies, that many of SPR’s personnel-related documents carried the GPC letterhead or logo, and that GPC issued SPR’s payroll checks. Engelhardt, 472 F.3d at 2-3. In concluding that this “arm’s length” relationship did not constitute integrated employment for purposes of the FMLA, the Engelhardt Court focused on the fact that none of the four enumerated factors supported the plaintiffs argument. Id. at 8. First, the court noted that there was no evidence suggesting that the two companies were under the same management. Id. at 6. Second, the operations of the two entities were not interrelated, for the two maintained separate headquarters, human resource departments, records, and worksites; additionally, the court noted that the nature of the businesses (office-supply vs. car parts) was different. Id. at 7. Applying the third factor — centralized control of labor relations —" }, { "docid": "6169878", "title": "", "text": "in turn triggers a greater degree of scrutiny. See, e.g., Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir.1992) (‘‘[W]e recognize that dismissal represents an extreme sanction appropriate only in cases of willful misconduct.”); Ingalls Shipbuilding, Inc. v. United States, 857 F.2d 1448, 1450-51 (Fed.Cir.1988). The sanction here, however, did not prevent Teltrust Phones from fully presenting its case to the jury. See Chilcutt v. United States, 4 F.3d 1313, 1320 (5th Cir.1993) (‘‘Because the court’s ruling did not preclude the Government from presenting its case in chief, the sanction was a far cry from a default judgment.”). . Teltrust Phones has conceded that Teltrust, Inc. wholly owned both subsidiaries, and all three Teltrust companies were governed by the same persons as their officers and members of their board of directors. Interrelation of operations is clear because the three entities shared a building, phone system, reception area, office equipment, accounting department, personnel manager, personnel handbook, and payroll accounts. Moreover, the business of the three entities was addressed in single, common meetings of the board of directors. With regard to the centralization of labor relations, the appropriate inquiry is: \"What entity made the final decisions regarding employment matters related to the person claiming discrimination?\" Frank v. U.S. West, Inc., 3 F.3d 1357, 1363 (10th Cir.1993) (quotation omitted) (emphasis added). Lyle Keys and Jerry Romney conducted an investigation, removed Neihart from his position with Teltrust Phones and simultaneously hired him with TCSI, and resolved all other matters related to Knowlton's complaint in their capacity as chairman/CEO and President, respectively, of Teltrust, Inc., the parent corporation. Moreover, the companies shared a single employment manual and human resources manager. . Because this court affirms the jury's finding of single-employer status, jurisdiction under Title VII existed and the issue of whether Teltrust Phones employed 15 or more employees during the relevant time period need not be addressed. . The factors are: (1) whether the role of the unnamed party could have been ascertained at the time of the filing of the EEOC complaint through reasonable effort by the complainant; (2) whether the interests of a" }, { "docid": "20794917", "title": "", "text": "R. 45-7 (Def. Interrog. Resp. at 9-11) (Page ID # 1300-02). Even with the addition of temporary employees, the total number of employees never rose to fifty. R. 45-6 (Temp. Employee Chart) (Page ID # 1296). Although Demyanovich asserts that he knows of employees who were not accounted for'on the list provided by Cadon, he failed to offer any evidence of additional employees to dispute Cadon’s employment figures. See Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir.2009). Thus, Demyanovich failed to refute Cadon’s evidence that it employed fewer than fifty individuals during the relevant time period. Nonetheless Demyanovich has created a genuine dispute as to whether Ca-don is a covered employer because he has presented evidence that Cadon is an “integrated employer” with MNP, an affiliated company with more than 500 employees. The federal regulations accompanying the FMLA provide: Separate entities will be deemed to be parts of a single employer for purposes of FMLA if they meet the integrated employer test.... A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include: (i) Common management; (ii) Interrelation between operations; (iii) Centralized control of labor relations; and (iv) Degree of common ownership/financial control. 29 C.F.R. § 825.104(c)(2). No single factor among the four is determinative, and all four need not be present in every case to conclude that two entities are integrated. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 994 (6th Cir.1997). Demyanovich has presented evidence from which a reasonable jury could conclude that Cadon and MNP are integrated employers. First, MNP and Cadon share several common managers. Craig Stormer is the Executive Vice President of both Cadon, R. 39-4 (Cadon Annual Statement) (Page ID #1055), and MNP, R. 45-10 (MNP. Website) (Page ID # 1320). In addition, Randy Allison, who is Vice President of Human Resources for MNP, also functioned as a human resources manager" }, { "docid": "22237710", "title": "", "text": "mean that there would always be a material factual dispute as to this prong because the top officer of a subsidiary is, at some point, always held accountable to an officer of the parent corporation. Furthermore, merely because a parent corporation eventually benefits from the work of its subsidiaries is not evidence of interrelated operations nor is the fact that one of parent’s employees is an occasional consultant on the project. Thus, Plaintiffs have failed to produce the type of evidence routinely used to show interrelated operations. See McKenzie, 834 F.2d at 933-34 (parent’s operations were interrelated with those of subsidiary when parent kept subsidiary’s books, issued its paychecks, and paid its bills); Perry, 675 F.Supp. at 1426 (operations interrelated when parent and subsidiary had common employees, the same headquarters, common advertising, and the parent rented its properties to the subsidiary); Financial Assurance, 624 F.Supp. at 689-90 (operations interrelated when parent and subsidiary shared services, equipment, employees and office space, and parent controlled subsidiary’s payroll and benefit programs). 2. Centralized Control of Labor Relations Whether the parent controls labor relations is “an important factor” in the four-part integrated enterprise test. Evans, 936 F.2d at 1090. Cf. Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983) (control of labor relations is most important factor). The critical question is, “[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” Trevino, 701 F.2d at 404. A parent’s broad general policy statements regarding employment matters are not enough to satisfy this prong. See Wood v. Southern Bell Tel. & Tel. Co., 725 F.Supp. 1244, 1249 (N.D.Ga.1989). To satisfy the control prong, a parent must control the day-to-day employment decisions of the subsidiary. See Armbruster, 711 F.2d at 1338-39 (common officer in parent and subsidiary approved all of subsidiary’s hiring decisions); Baker, 560 F.2d at 392 (parent issued regimented rules regarding employment practices which subsidiaries were required to follow); Smith, 590 F.Supp. at 1208 (parent issued personnel policies, paid subsidiary’s non-union employees, was listed as employer on the W-2 forms of subsidiary’s non-union employees, and terminated a subsidiary employee" }, { "docid": "6215500", "title": "", "text": "to be considered in determining whether separate entities act as a single integrated enterprise are the “interrelationship of operations, common management, centralized control of labor relations and common ownership,” as well as “the use of common office facilities and equipment and family connections between or among the various enterprises.” Lihli, 80 F.3d at 747 (citing Radio & Television Broad. Tech. Local Union 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam); Three Sisters Sportswear Co., 312 N.L.R.B. 853, 1993 WL 398465, at *15 (N.L.R.B. Sept. 30, 1993); Goodman Investment Co., 292 N.L.R.B. 340, 1989 WL 223774, at *10-11 (N.L.R.B. Jan.17, 1989)). “[N]ot every factor need be present, and no one particular factor • is controlling.” Id. “ ‘Ultimately, single employer status depends on all the circumstances of the case and is characterized by absence of an ‘arm’s length relationship found among un-integrated companies.’ ” Id. (quoting NLRB v. Al Bryant, Inc., 711 F.2d 543, 551 (3d Cir.1983)). Here, with respect to the single employer allegations, plaintiffs allege that the companies are an integrated, overlapping family enterprise characterized by an absence of an arm’s length relationship. Specifically, they allege that the companies have overlapping ownership and control, and shared facilities, equipment, suppliers and vendors, management, and office employees; that Trucking has no customers other than Concrete’s and that all of Concrete’s deliveries were made by Trucking; that Trucking never received any revenue; and that Realty’s sole business purpose was owning the property. (See Am. Compl. ¶¶ 31-80.) Given these allegations, the Court concludes that the proposed amendment sufficiently alleges that the companies are a single employer. See, e.g., Lihl% 80 F.3d at 747 (upholding NLRB’s conclusion that two companies were single employer and jointly and severally liable under collective bargaining agreement because, inter alia, operations were functionally integrated, companies provided services and products solely to each other and had overlapping ownership and control, and there was evidence of centralized control of labor relations); Ferrara, 904 F.Supp.2d at 261-63 (finding single employer status where, inter alia, operations of companies were interrelated;" }, { "docid": "20794918", "title": "", "text": "integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include: (i) Common management; (ii) Interrelation between operations; (iii) Centralized control of labor relations; and (iv) Degree of common ownership/financial control. 29 C.F.R. § 825.104(c)(2). No single factor among the four is determinative, and all four need not be present in every case to conclude that two entities are integrated. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 994 (6th Cir.1997). Demyanovich has presented evidence from which a reasonable jury could conclude that Cadon and MNP are integrated employers. First, MNP and Cadon share several common managers. Craig Stormer is the Executive Vice President of both Cadon, R. 39-4 (Cadon Annual Statement) (Page ID #1055), and MNP, R. 45-10 (MNP. Website) (Page ID # 1320). In addition, Randy Allison, who is Vice President of Human Resources for MNP, also functioned as a human resources manager at Cadon: Ensign made the decision to terminate Demyanovich “with some help” from Allison, R. 38-6 (Ensign Dep. at 80) (Page ID # 958); Cadon’s office manager regularly consulted Allison or his subordinates at MNP regarding employee matters, R. 39-5 (Bluhm Dep. at 12-13) (Page ID # 1072-73); and Allison represented Cadon management when negotiating the collective bargaining agreement with unionized Cadon employees, R. 38-6 (Ensign Dep. at 9) (Page ID #889). Second, the operations of the two entities are interrelated. Although there is no evidence that Cadon and MNP mingle accounts or keep joint financial records, see Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir.1983), they maintain the same registered business address and jointly obtain quality certifications. R. 39-6 (Quality Certifications) (Page ID # 1092-1102). Moreover, the two entities are engaged in the same business of preparing automotive parts, see Grace, 521 F.3d at 665, and orders from MNP comprise half of Ca-don’s business. R. 38-6 (Ensign Dep. at 81) (Page ID # 958); R. 39-3 (MNP Website) (Page ID # 1053). Third," }, { "docid": "23216661", "title": "", "text": "management, (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership/financial control. 29 C.F.R. § 825.104(c)(2)(i-iv). Accordingly, the factors seek to illuminate whether two putatively distinct businesses should be viewed as one corporate entity. “Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility.” 29 C.F.R. § 825.104(c)(2). Thus, the integrated employer test is a mechanism to ensure that the appropriate employees are aggregated for the numerosity test of the FMLA. As the First Circuit describes, the test appreciates that small businesses' — i.e. those with less than 50 employees — are not subject to the FMLA’s “onerous requirement of keeping an unproductive employee on the payroll,” while simultaneously preventing companies from structuring their business to avoid labor laws. Engelhardt, 472 F.3d at 6. Limited case law applying the integrated employer test exists, but other circuits that have addressed the issue have generally found that the test was not met. See, e.g., Engelhardt, 472 F.3d 1 (finding that a wholly-owned subsidiary and the parent were not integrated employers); Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1257 (11th Cir.2004) (“As a matter of law, we do not believe that common ownership of two corporations is enough for a jury to conclude that there were integrated into one operation for FMLA purposes.”); see also Arculeo v. On-Site Sales &, Mktg., L.L. C, 425 F.3d 193, 196 (2d Cir.2005) (finding no integrated employment for the purposes of Title VII); but see Schubert, 319 F.Supp.2d 963 (finding sufficient evidence of integrated employment where two putatively distinct health care companies had the same officers, nearly identical officers, similar corporate purpose, and principal place of business at the same address). The First Circuit’s Engelhardt decision is particularly instructive. In Engelhardt, an individual appealed the district court’s determination that she was not an employee under the FMLA because her employer did not satisfy FMLA’s numerosity requirement. The plaintiff worked for S.P. Richards Co. (SPR), a wholly-owned subsidiary of Genuine Parts Co. (GPC). On appeal, the" } ]
252179
"perpetrated to be on inquiry notice.' ”). . Newman, 335 F.3d at 194. . Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 Civ. 1898, 2005 WL 2148919, at *4 (S.D.N.Y. Sept. 6, 2005) (""Teamsters"") (quotation and citation omitted). . Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 169 (2d Cir.2005) (emphasis omitted). . Dodds, 12 F.3d at 350 (citation omitted). . Addeo v. Braver, 956 F.Supp. 443, 449 (S.D.N.Y.1997) (quotation and citation omitted). . In re Alstom SA, 406 F.Supp.2d 402, 421 (S.D.N.Y.2005) (quoting LC Capital Partners, 318 F.3d at 155). . LC Capital Partners, 318 F.3d at 155. . Id. . Basic, 485 U.S. at 238, 108 S.Ct. 978 (emphasis in original). Accord REDACTED . Aznelli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994). Accord Basic, 485 U.S. at 231, 108 S.Ct. 978 (applying the materiality standard established in TSC Indus., Inc. v. Northway Inc., 426 U.S. 438, 449, 96 S.Ct 2126, 48 L.Ed.2d 757 (1976) to Rule 10b-5 actions). . TSC Indus., Inc., 426 U.S. at 449, 96 S.Ct. 2126. . See Glazer, 964 F.2d at 154-55. . See, e.g., Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002). . Gavish v. Revlon, Inc., No. 00 Civ. 7291, 2004 WL 2210269, at *20 (S.D.N.Y. Sept. 30, 2004). Accord Novak, 216 F.3d at 315 (""statements containing simple economic projections, expressions of optimism, and other puffery are insufficient”); Rombach, 355 F.3d"
[ { "docid": "6620614", "title": "", "text": "discussed the meaning of the term “material fact” in the context of information possessed by a company that was a possible merger target. Since an LBO will normally have the same effect as a merger, i.e., the death of the target company’s independent public form, see id. at 238, 108 S.Ct. at 986-87, the Basic standards are applicable to LBOs as well. In Basic, the Court stated that, in order to establish a prima facie case that statements were misleading in violation of Rule 10b-5, a plaintiff must show “that the statements were misleading as to a material fact. It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant.” Basic, 485 U.S. at 238, 108 S.Ct. at 987 (emphasis in original). With respect to the materiality of omissions, in order to establish a prima facie case under Rule 10b-5 the plaintiff must show that there was a “ ‘substantial likelihood’ ” that a “ ‘reason able investor’ would have considered the omitted information significant at the time.” Id. at 231-32, 108 S.Ct. at 983-84 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). Further, for an omission to violate Rule 10b-5, “ ‘there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 449, 96 S.Ct. at 2132). The mere fact that a company has received an acquisition overture or that some discussion has occurred will not necessarily be material. “Those in business routinely discuss and exchange information on matters which may or may not eventuate in some future agreement.” Taylor v. First Union Corp., 857 F.2d 240, 244 (4th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989); see also Jackvony v. Riht Financial Corp., 873 F.2d 411, 415 (1st Cir.1989) (finding immaterial “the type of" } ]
[ { "docid": "6302490", "title": "", "text": "have considered significant in making investment decisions. See Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (adopting the standard in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), for §§ 10(b) and Rule 10b-5 actions); Glazer v. Formica Corp., 964 F.2d 149, 154-55 (2d Cir.1992). “ ‘[T]here must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126, 48 L.Ed.2d 757). Ganino, 228 F.3d at 161-62. Finally, the complaint must allege that the defendant made the material misstatement or omission with scienter, or “ ‘an intent to deceive, manipulate or defraud.’ ” Ganino, 228 F.3d at 168 (citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). Under the PSLRA, the complaint must plead facts giving rise to a “strong inference” of scienter. 15 U.S.C. § 78u-4(b)(2); see also Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001). A plaintiff satisfies this standard ‘“(a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.’ ” Kalnit, 264 F.3d at 138 (quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995)); see also Novak v. Kasaks, 216 F.3d 300, 310-11 (2d Cir.2000) (explaining that PSLRA adopted the “strong inference” standard developed in prior Second Circuit caselaw). C. Documents Considered by the Court in Deciding the Instant Motion As a threshold matter, the parties dispute which documents the court may consider in deciding defendants’ motion. Defendants have appended voluminous exhibits to their motion, including the full text of many of the press releases and SEC filings referred to in the complaint. Plaintiffs have no apparent objection to most of these, including the press" }, { "docid": "22805135", "title": "", "text": "and citation omitted); see Press v. Chemical Inv. Serv. Corp., 166 F.3d 529, 538 (2d Cir.1999). To state a claim under § 10(b) and the corresponding Rule 10b-5, a plaintiff must plead that the defendant, in connection with the purchase or sale of securities, made a materially false statement or omitted a material fact, with scienter, and that the plaintiffs reliance on the defendant’s action caused injury to the plaintiff. See In re Carter-Wallace, Inc. Sec. Litig., 150 F.3d 153, 155-56 (2d Cir.1998); San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808 (2d Cir.1996); Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995). The plaintiffs’ principal contentions on appeal are that the district court erred in deciding that the Complaint failed to allege material misrepresentations and scienter. Neither they nor the defendants interpret the district court’s dismissal of the Rule 10b-5 claims as having any other basis. Accordingly, we consider only the elements of materiality and scienter. 2. Materiality At the pleading stage, a plaintiff satisfies the materiality requirement of Rule 10b-5 by alleging a statement or omission that a reasonable investor would have considered significant in making investment decisions. See Basic Inc. v. Lev inson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (adopting the standard in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), for § 10(b) and Rule 10b-5 actions); Glazer v. Formica Corp., 964 F.2d 149, 154-55 (2d Cir.1992).. “ ‘[T]here must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. 978 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126). It is not sufficient to allege that the investor might have considered the misrepresentation or omission important. On the other hand, it is not necessary to assert that the investor would have acted differently if an accurate disclosure was made. Cf. Folger Adam Co." }, { "docid": "18145936", "title": "", "text": "2001 WL 293820, at *7 (S.D.N.Y. Mar. 27, 2001) (citing Rothman v. Gregor, 220 F.3d 81, 89-90 (2d Cir.2000))). Therefore, below, the Court discusses conscious misconduct in conjunction with material falsity for each of the categories of alleged misstatements. Pursuant to Section 10(b) and Rule 10b-5, a misstatement or omission is material \"`if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to [act].’\" Basic, Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). \"Material facts include those that affect the probable future of the company and that may affect the desire of investors to buy, sell, or hold the company’s securities.\" Castellano v. Young & Rubicam, Inc., 257 F.3d 171, 180 (2d Cir.2001). Materiality of any given statement, which is a mixed issue of fact and law, depends on the surrounding factual circumstances. Ganino v. Citizens Utils. Co., 228 F.3d 154, 162 (2d Cir.2000). “At the pleading stage, a plaintiff satisfies the materiality requirement of Rule 10b-5 by alleging a statement or omission that a reasonable investor would have considered significant in making investment decisions.” Ganino, 228 F.3d at 162 (citing Basic, 485 U.S. at 231, 108 S.Ct. 978). Courts do not grant motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on grounds of immateriality, unless the mis statements “are so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of their importance.” Id. (citing Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985)). Nevertheless, securities fraud complaints must comply with the particularity requirements of Fed.R.Civ.P. 9(b) and the PSLRA; the materiality of the alleged misstatements or omissions cannot be pled in a conclusory or general fashion. Gavish v. Revlon, No. 00 Civ. 7291, 2004 WL 2210269, at *16 (S.D.N.Y. Sep. 30, 2004). a. Allegedly Improper Accounting for the Mahonia Transactions Plaintiffs allege that defendants recorded the Mahonia transactions as trades, knowing that they were, in fact, loans. A number of facts alleged in" }, { "docid": "1245453", "title": "", "text": "37, 42 (2d Cir. 1999). . Pub.L. No. 104-67, 109 Stat. 737 (1995). . Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir.) cert. denied, 531 U.S. 1012, 121 S.Ct. 567, 148 L.Ed.2d 486 (2000); accord In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69-70 (2d Cir.), cert. denied, 534 U.S. 1071, 122 S.Ct. 678, 151 L.Ed.2d 590 (2001). . 15 U.S.C. § 78u-4(b)(l). The requirement of stating \"all facts” is not applied literally. See Novak, 216 F.3d at 313-14. . 15 U.S.C. § 78u-4(b)(2). The required state of mind is \"an intent to deceive, manipulate, or defraud.” Ganino, 228 F.3d at 168 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) (internal quotation marks omitted)); accord Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001). . 17 C.F.R. § 240.10b-5 (2007). . Lentell v. Merrill Lynch & Co., 396 F.3d 161, 172 (2d Cir.) (quoting In re IBM Corp. Sec. Litig., 163 F.3d 102, 106 (2d Cir.1998) (internal quotation marks omitted)), cert. denied, 546 U.S. 935, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005); accord Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000). . Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004); see In re IAC/InterActiveCorp Sec. Litig., 478 F.Supp.2d 574, 591 (S.D.N.Y. 2007). . See Novak, 216 F.3d at 306 (quoting 15 U.S.C. § 78u-4(b) (1)); see also In re IAC/In-terActiveCorp, 478 F.Supp.2d at 591. . Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt. LLC, 376 F.Supp.2d 385, 395 (S.D.N.Y. 2005). . In re NTL, Inc. Sec. Litig., 347 F.Supp.2d 15, 23 (S.D.N.Y.2004); Fraternity Fund Ltd., 376 F.Supp.2d at 395. . Starr v. Georgeson S’holder, Inc., 412 F.3d 103, 110 (2d Cir.2005) (quoting Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (citation omitted and internal quotation marks omitted)). . See Cpt. ¶ 1, 6 (describing how omission made statements misleading); PL Mem. at 2 (same); id. at 11-12 (asserting materiality of omissions). . See Cpt. W[ 116; 124,135; 141; 149; 100; 113 (alleging that statements are misleading" }, { "docid": "15213269", "title": "", "text": "Litig., 238 F.Supp.2d 613, 629 (S.D.N.Y.2003). Accord Gabriel Capital, L.P. v. NatWest Fin., Inc., 122 F.Supp.2d 407, 419 (S.D.N.Y.2000) (observing that the bespeaks caution doctrine “does not apply where a defendant knew that its statement was false when made”). . ECA, Local 134 IBEW Joint Pension Trust of Chicago v. IP Morgan Chase Co., 553 F.3d 187, 197 (2d Cir.2009). . Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002). . See ECA, 553 F.3d at 206; In re Gildan Activewear, Inc., 636 F.Supp.2d 261, 274 (S.D.N.Y.2009); In re NTL, Inc. Sec. Litig., 347 F.Supp.2d 15, 34 (S.D.N.Y.2004). . Slayton, 604 F.3d at 773. . See Caiafa v. Sea Containers, Ltd., 525 F.Supp.2d 398, 410-11 (S.D.N.Y.2007). . Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct 1375, 47 L.Ed.2d 668 (1976). . South Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 109 (2d Cir.2009) (\"By recldess disregard for the truth, we mean 'conscious recklessness — i.e., a state of mind approximating actual intent, and not merely a heightened form of negligence.’ \") (quoting Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir.2000)). . ATSI, 493 F.3d at 99 (citing Ganino v. Citizens Utilities Co., 228 F.3d 154, 168-69 (2d Cir.2000)). . Kalnit v. Eichler, 264 F.3d 131, 142 (2d Cir.2001) (quotation marks and citations omitted). . Novak, 216 F.3d at 308. . Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). Accord Sawabeh Info. Servs. Co. v. Brody, 832 F.Supp.2d 280, 295 (S.D.N.Y.2011) (noting that \"the tie ... goes to the plaintiff” (quotation marks and citations omitted)). . ATSI, 493 F.3d at 106. Defendants do not dispute transaction causation. . Id. at 106-07 (citing Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 172 (2d Cir.2005)). Accord Lattanzio v. Deloitte & Touche LLP, 476 F.3d 147, 157 (2d Cir.2007). . In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 513 (2d Cir.2010) (quoting Lentell, 396 F.3d" }, { "docid": "6302489", "title": "", "text": "on information and belief, the complaint shall state with particularity all facts on which the belief is formed.” 15 U.S.C. § 78u-4(b)(1); see also In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.2001). Rule 9(b) of the Federal Rules of Civil Procedure also requires that the circumstances of the alleged fraud be stated “with particularity.” Fed.R.Civ.P. 9(b). In the securities fraud context, Rule 9(b) requires that “[t]he complaint must identify the statements plaintiff asserts were fraudulent and why, in plaintiffs view, they were fraudulent, specifying who made them, and where and when they were made.” In re Scholastic Corp., 252 F.3d at 69-70 (citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). A plaintiff must also allege that the fraudulent statement or omission that the defendant had a duty to disclose was material. The Second Circuit recently summarized the standard for pleading materiality as follows: At the pleading stage, a plaintiff satisfies the materiality requirement of Rule 10b-5 by alleging a statement or omission that a reasonable investor would have considered significant in making investment decisions. See Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (adopting the standard in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), for §§ 10(b) and Rule 10b-5 actions); Glazer v. Formica Corp., 964 F.2d 149, 154-55 (2d Cir.1992). “ ‘[T]here must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126, 48 L.Ed.2d 757). Ganino, 228 F.3d at 161-62. Finally, the complaint must allege that the defendant made the material misstatement or omission with scienter, or “ ‘an intent to deceive, manipulate or defraud.’ ” Ganino, 228 F.3d at 168 (citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). Under" }, { "docid": "17263934", "title": "", "text": "could have brought claims for securities they did not purchase because they were offered \"pursuant to the same [misleading] shelf registration statements that governed” the securities they did purchase. Lehman MBS, 684 F.Supp.2d at 490, 492. The Court held that plaintiffs had no standing notwithstanding the fact that common documents contained the alleged misstatements because \"[t]he fact remains ... that plaintiffs have not alleged any injury traceable to the [securities] issued in those offerings.” Id. Accord New Jersey Carpenters Health Fund v. NovaStar Mortg., Inc., No. 08 Civ. 5310(DAB), 2011 WL 1338195, at *6 (S.D.N.Y. Mar. 31, 2011); New Jersey Carpenters Health Fund v. Residential Capital, LLC, No. 08-878(HB), 2010 WL 1257528, at *3-4 (S.D.N.Y. Mar. 31, 2010); New Jersey Carpenters Vacation Fund v. Royal Bank of Scotland Group, PLC, 720 F.Supp.2d 254, 265-66 (S.D.N.Y.2010); Hoffman v. UBS-AG, 591 F.Supp.2d 522, 530-31 (S.D.N.Y.2008). . Those offerings, including the two in which only withdrawn plaintiff Rosato purchased securities, are listed in TAC Appendix B. . ECA & Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 197 (2d Cir.2009) (\"ECA \") (quoting Lawrence v. Cohn, 325 F.3d 141, 147 (2d Cir.2003) in turn quoting Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000) (\"Ganino \")). . ECA, 553 F.3d at 197 (quoting Basic Inc. v. Levinson, 485 U.S. 224, 240, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)); Ganino, 228 F.3d at 162. . Castellano v. Young & Rubicam, Inc., 257 F.3d 171, 180 (2d Cir.2001) (quoting Basic Inc., 485 U.S. at 231-32, 108 S.Ct. 978); see TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); Beleson v. Schwartz, 419 Fed.Appx. 38, 40-41 (2d Cir.2011). . In re Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347, 360-61 (2d Cir.2010) (“In re Morgan Stanley ”); Resnik v. Swartz, 303 F.3d 147, 154 (2d Cir.2002); In re Time Warner Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993) (“In re Time Warner ”). . In re Morgan Stanley, 592 F.3d at 360-61; In re Time Warner, 9" }, { "docid": "3464412", "title": "", "text": "information important in his decision-making process. See Basic, 485 U.S. at 231, 108 S.Ct. 978 (adopting the standard set out in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), for Section 10(b) and Rule 10b-5 actions); Ganino, 228 F.3d at 161-62. In other words, there must exist a substantial likelihood that the “omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Basic, 485 U.S. at 231-32, 108 S.Ct. 978 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126). Although the misstated or omitted fact must have been one that would have assumed actual significance in the reasonable shareholder’s decision-making process, there is no requirement that the fact would have been outcome determinative. Thus, a fact may be material even if it would not have changed an investor’s ultimate decision. See Ganino, 228 F.3d at 162; In re Kidder Peabody Sec. Litig., 10 F.Supp.2d 398, 409 (S.D.N.Y.1998). An omitted fact may be immaterial if the information is trivial, or is “so basic that any investor could be expected to know it.” Ganino, 228 F.3d at 162 (quoting Levitin v. PaineWebber, Inc., 159 F.3d 698, 702 (2d Cir.1998)). Therefore, whether an alleged misrepresentation or omission is material necessarily depends on all of the relevant circumstances of the case, and materiality is a mixed question of both law and fact. See TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126; Ganino, 228 F.3d at 163. Because the determination of materiality involves factual determinations, the Supreme Court has noted that materiality is particularly well suited for jury determination. See TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126. “The determination requires delicate assessments of the inferences a reasonable shareholder would draw from a given set of facts and the significance of those inferences to him, and these assessments are peculiarly one for the trier of fact.” Id.; see also Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 538 (2d Cir.1999) (noting that the determination of whether information is material is “a" }, { "docid": "23568131", "title": "", "text": "been viewed by the reasonable investor as having significantly altered the “total mix” of information made available. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976) (footnote omitted). The Supreme Court has “expressly adopt[ed]” this standard of materiality for claims arising under Section 10(b) and Rule 10b-5. Basic, 485 U.S. at 232, 108 S.Ct. 978. As the Court explained, “[t]he question of materiality, it is universally agreed, is an objective one, involving the significance of an omitted or misrepresented fact to a reasonable investor.” TSC Indus., 426 U.S. at 445, 96 S.Ct. 2126. “Materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information.” Basic, 485 U.S. at 240,108 S.Ct. 978. The question of materiality is rarely amenable to disposition as a matter of law. Rather, it is considered a “mixed question of law and fact.” TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126. Materiality may be resolved as a matter of law “[o]nly if the established omissions are ‘so obviously important to an investor, that reasonable minds cannot differ,’ ” id. (quoting Johns Hopkins Univ. v. Hutton, 422 F.2d 1124, 1129 (4th Cir.1970)), or, “if the information is trivial ... or is ‘so basic that any investor could be expected to know it,’ ” Canino, 228 F.3d at 161-62 (quoting Levitin v. PaineWebber, Inc., 159 F.3d 698, 702 (2d Cir.1998)). Thus, when presented with a Rule 12(b)(6) motion, “a complaint may not properly be dismissed ... on the grounds that the alleged misstatements or omissions are not material unless they are so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of their importance.” Canino, 228 F.3d at 162 (quoting Goldman, 754 F.2d at 1067). See also Halperin v. EBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002). Moreover, when evaluating misstatements in a registration statement or prospectus, we read it as a whole. Our inquiry does not focus on whether particular statements, taken separately, were literally true, but whether defendants’ representations, taken together and in context, would have" }, { "docid": "2675783", "title": "", "text": "or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission [or transaction causation]; (5) economic loss; and (6) loss causation.” Stoneridge Inv. Partners, L.L.C. v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008) (citing Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)); Cani-no v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000). Here, Defendants dispute only the sufficiency of the FAC with respect to the first and second elements. A. MATERIAL MISREPRESENTATION OR OMISSION 1. Legal Standard An omission is actionable only if: (a) the omitted fact is material; and (b) the speaker had a duty to disclose the omitted fact. See Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988); see also id. at 239 n. 17, 108 S.Ct. 978 (“[s]ilenee, absent a duty to disclose, is not misleading under Rule 10b-5.”); Resnik v. Swartz, 303 F.3d 147, 154 (2d Cir. 2002) (“For an omission to be actionable, the securities laws must impose a duty to disclose the omitted information.”); ZVI Trading Corp. Employees’ Money Purchase Pension Plan & Trust v. Ross (In re Time Warner Inc. Sec. Litig.), 9 F.3d 259, 267 (2d Cir.1993) (“[A]n omission is actionable under the securities laws only when the corporation is subject to a duty to disclose the omitted facts.”). The materiality of an omitted fact depends upon whether there is “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Basic, 485 U.S. at 231-32, 108 S.Ct. 978 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). “A fact is to be considered material if there is a substantial likelihood that a reasonable person would consider it important in [making investment decisions].” Aznelli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994). “Materiality is a mixed question of law and fact.” Ganino v. Citizens" }, { "docid": "2675784", "title": "", "text": "actionable, the securities laws must impose a duty to disclose the omitted information.”); ZVI Trading Corp. Employees’ Money Purchase Pension Plan & Trust v. Ross (In re Time Warner Inc. Sec. Litig.), 9 F.3d 259, 267 (2d Cir.1993) (“[A]n omission is actionable under the securities laws only when the corporation is subject to a duty to disclose the omitted facts.”). The materiality of an omitted fact depends upon whether there is “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Basic, 485 U.S. at 231-32, 108 S.Ct. 978 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). “A fact is to be considered material if there is a substantial likelihood that a reasonable person would consider it important in [making investment decisions].” Aznelli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994). “Materiality is a mixed question of law and fact.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 162 (2d Cir.2000) (citing TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126). Thus, in the context of a Fed.R.Civ.P. 12(b)(6) motion, “a complaint may not properly be dismissed ... on the ground that the alleged misstatements or omissions are not material unless they are so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of their importance.” Id. (citations omitted); accord Halperin v. eBanker USA.com, 295 F.3d 352, 357 (2d Cir.2002). There are two types of disclosure obligations. A duty may arise “expressly pursuant to an independent statute or regulation” — i.e. an affirmative legal disclosure obligation. Thesling v. Bioenvision, Inc., 374 Fed.Appx. 141, 143 (2d Cir.2010); see also Glazer v. Formica Corp., 964 F.2d 149, 157 (2d Cir.1992). Or, a duty may arise “as a result of the ongoing duty to avoid rendering existing statements misleading by failing to disclose material facts.” Thesling, 374 Fed.Appx. at 143. When a corporation chooses to speak, it has a “duty to be both accurate and" }, { "docid": "22805136", "title": "", "text": "the materiality requirement of Rule 10b-5 by alleging a statement or omission that a reasonable investor would have considered significant in making investment decisions. See Basic Inc. v. Lev inson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (adopting the standard in TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), for § 10(b) and Rule 10b-5 actions); Glazer v. Formica Corp., 964 F.2d 149, 154-55 (2d Cir.1992).. “ ‘[T]here must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. 978 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126). It is not sufficient to allege that the investor might have considered the misrepresentation or omission important. On the other hand, it is not necessary to assert that the investor would have acted differently if an accurate disclosure was made. Cf. Folger Adam Co. v. PMI Indus., Inc., 938 F.2d 1529, 1533-34 (2d Cir.1991) (holding that jury charge which may have misled jury to believe that information is material only if it is outcome-determinative was error). An omitted fact may be immaterial if the information is trivial, see Basic, 485 U.S. at 231, 108 S.Ct. 978 (citation omitted), or is “so basic that any investor could be expected to know it,” Levitin v. PaineWebber, Inc., 159 F.3d 698, 702 (2d Cir.1998) (internal quotation marks omitted), cert. denied, 525 U.S. 1144, 119 S.Ct. 1039, 143 L.Ed.2d 47 (1999). Therefore, whether an alleged misrepresentation or omission is material necessarily depends on all relevant circumstances of the particular case. Materiality is a mixed question of law and fact. See TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126. We have held that, when presented with a Rule 12(b)(6) motion, “a complaint may not properly be dismissed ... on the ground that the alleged misstatements or omissions are not material unless they are so obviously unimportant to a reasonable investor that reasonable minds" }, { "docid": "21313565", "title": "", "text": "demonstrates when plaintiff discovered or should have discovered the fraudulent scheme, they cannot satisfy the heavy burden of establishing inquiry notice as a matter of law.’ ” In re eSpeed, at 278 (quoting Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 Civ. 1898, 2005 WL 2148919, at *4 (S.D.N.Y. Sept. 6, 2005)) (alterations omitted); accord Lentell, 396 F.3d at 169 (noting “fact-specific nature of the limitations defense, particularly where the claim is foreclosed by inquiry notice,” and recognizing that the Second Circuit has been “decidedly reluctant to foreclose such claims as untimely absent a manifest indication that plaintiffs ‘could have learned’ the facts underpinning their allegations” before the end of the limitations period). A plaintiff may not be considered to have been placed on inquiry notice, “ ‘despite the presence of some ominous indicators,’ ” when “ ‘the warning signs are accompanied by reliable words of comfort from management.’ ” In re Alstom SA, 406 F.Supp.2d at 421 (quoting LC Capital Partners LP, 318 F.3d at 155). “However, reassuring statements will prevent the emergence of a duty to inquire or dissipate such a duty only if an investor of ordinary intelligence would reasonably rely on the statements to allay the investor’s concern.” LC Capital Partners LP, 318 F.3d at 155 (citation omitted). “Whether reassuring statements justify reasonable reliance that apparent storm warnings have dissipated will depend in large part on [1] how significant the company’s disclosed problems are, [2] how likely they are of a recurring nature, and [3] how substantial are the ‘reassuring’ steps announced to avoid their recurrence.” Id. Defendants argue that Plaintiffs claims are time barred because Plaintiff was placed on inquiry notice by the aforementioned press accounts and the Stefan-sky complaint describing the alleged conflicts of interest in the banking industry and how such conflicts potentially colored analyst reports. The four news articles cited by Defendants were released between June 19, 2000 and February 12, 2001. If inquiry notice was triggered by these news articles, the Court must apply the one-year statute of limitations for securities fraud claims arising before July 30," }, { "docid": "10828821", "title": "", "text": "statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.” Lasker, 85 F.3d at 57-58. Section 12(a)(2) of the Securities Act “imposes liability on any person who offers or sells securities by means of a prospectus containing material misstatements.” Yung v. Lee, 432 F.3d 142, 147 (2d. Cir.2005). Finally, claims under Section 20(a) of the Exchange Act, and Section 15 of the Securities Act are necessarily predicated on a primary violation of securities law and impose “control person” liability on individual defendants. Rombach v. Chang, 355 F.3d 164, 177-78 (2d Cir.2004). 3. Materiality The Supreme Court set forth the applicable materiality standard under section 10(b) and Rule 10b-5 in Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), stating, “to fulfill the materiality requirement ‘there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’” Id. at 231-32, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). Similarly, the materiality standard under Section 14(a) and Rule 14a-9 of the Exchange Act pertaining to proxy statements hinges on whether “a reasonable shareholder would consider it important in deciding how to vote.” Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1090, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991); TSC Indus., 426 U.S. at 445, 96 S.Ct. 2126, 48 L.Ed.2d 757; Resnik v. Swartz, 303 F.3d 147, 151 (2d Cir.2002). Further, this same materiality standard applies to Section 14(e) claims concerning tender offers, see Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 11, 105 S.Ct. 2458, 2464, 86 L.Ed.2d 1 (1985), and sections §§ 11 and 12(2) of the Securities Act, see Geiger v. Solomon-Page Group, Ltd., 933 F.Supp. 1180, 1184 (S.D.N.Y.1996). Accordingly, at the pleading stage, the plaintiff satisfies the materiality requirement “by alleging a statement or omission that a reasonable investor" }, { "docid": "20912767", "title": "", "text": "216 F.3d at 315 (\"statements containing simple economic projections, expressions of optimism, and other puffery are insufficient”); Rombach, 355 F.3d at 174 (unfocused \"[ejxpressions of puffery and corporate optimism do not give rise to securities violations”). . In re Regeneron Pharm., Inc. Sec. Litig., No. 05 Civ. 3111, 2005 WL 225288, at *14 (S.D.N.Y. Feb. 1, 2005) (citing Halperin, 295 F.3d at 357). . In re Gilat Satellite Network, Ltd., No. CV-02-1510, 2005 WL 2277476, at *13 (E.D.N.Y. Sept. 19, 2005) (internal quotation and citation omitted). . P. Stolz Family P'ship v. Daum, 355 F.3d 92, 96-97 (2d Cir.2004). . Id. 3X91. . See Ganino, 228 F.3d at 167; but see id. (\"The truth-on-the-market defense is intensely fact-specific and is rarely an appropriate basis for dismissing a § 10(b) complaint for failure to plead materiality.”). . Id. . 15 U.S.C. § 78u-4(b)(2). . Ganino, 228 F.3d at 169 (quoting Stevelman v. Alias Research Inc., 174 F.3d 79, 84 (2d Cir.1999)). . Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001) (quotation and citation omitted). Accord Novak, 216 F.3d at 311. . Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1130 (2d Cir.1994). . Kalnit, 264 F.3d at 139. . Id.Accord Novak, 216 F.3d at 307. . See In re Interpublic, 2003 WL 21250682, at *11 (citation omitted). . See In re Scholastic Sec. Litig., 252 F.3d 63, 74-75 (2d Cir.2001) (courts must consider \"the amount of profits from the [insider stock] sales, the portion of stockholdings sold, the change in volume of insider sales, and the number of insiders selling”). . See, e.g., In re Time Warner Sec. Litig., 9 F.3d 259, 269 (2d Cir.1993) (assuming that defendants had opportunity to manipulate company stock). . See Shields, 25 F.3d at 1130 (complaint \"fails to allege a sufficient opportunity to derive a benefit from the [alleged scheme]: [as] the ordinary course of bank business would lead to [discovery of the scheme]”); see also In re GeoPharma, Inc. Sec. Litig., 399 F.Supp.2d 432, 449-50 (S.D.N.Y.2005) (no opportunity to benefit from fraud when, even taking allegations as true, \"there was never the slightest" }, { "docid": "20912764", "title": "", "text": "\"a material misstatement or omission, scien-ter ..., a connection with the purchase or sale of a security, reliance ..., economic loss; and 'loss causation’ ”). . Ganino, 228 F.3d at 168 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). . Rule 9(b) provides that \"[i]n all averments of fraud or mistake, the circumstances concerning fraud and mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind may be averred generally.” See also Rombach v. Chang, 355 F.3d 164, 170 (2d Cir.2004) (applying Rule 9(b) standard to securities fraud claims). . Pub.L. No. 104-67, 109 Stat. 737 (1995). See Novak v. Kasalcs, 216 F.3d 300, 306 (2d Cir.2000). . 15 U.S.C. § 78u-4(b)(l)(B). . Rombach, 355 F.3d at 172 (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). Statements of opinion may be actionable if plaintiff shows that defendant did not actually believe the opinion she expressed. See, e.g., In re IBM Corp. Sec. Litig., 163 F.3d 102, 107 (2d Cir.1998). . 28 U.S.C. § 1658(b). . See Rothman v. Gregor, 220 F.3d 81, 96 (2d Cir.2000) (quotation and citation omitted). . Dodds v. Cigna Secs., Inc., 12 F.3d 346, 350 (2d Cir.1993) (citation omitted). Accord LC Capital Partners, LP v. Frontier Ins. Group, Inc., 318 F.3d 148, 154 (2d Cir.2003) (“If the investor makes no inquiry once the duty arises, knowledge [of the alleged fraud] will be imputed as of the date the duty arose.”). . Salinger v. Projectavision, Inc., 972 F.Supp. 222, 229 (S.D.N.Y.1997). Accord Newman v. Warnaco Group, Inc., 335 F.3d 187, 193 (2d Cir.2003) (quoting Dodds, 12 F.3d at 351-52) (\" 'An investor does not have to have notice of the entire fraud being perpetrated to be on inquiry notice.' ”). . Newman, 335 F.3d at 194. . Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 Civ. 1898, 2005 WL 2148919, at *4 (S.D.N.Y. Sept. 6, 2005) (\"Teamsters\") (quotation and citation omitted). . Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 169 (2d" }, { "docid": "20912765", "title": "", "text": "107 (2d Cir.1998). . 28 U.S.C. § 1658(b). . See Rothman v. Gregor, 220 F.3d 81, 96 (2d Cir.2000) (quotation and citation omitted). . Dodds v. Cigna Secs., Inc., 12 F.3d 346, 350 (2d Cir.1993) (citation omitted). Accord LC Capital Partners, LP v. Frontier Ins. Group, Inc., 318 F.3d 148, 154 (2d Cir.2003) (“If the investor makes no inquiry once the duty arises, knowledge [of the alleged fraud] will be imputed as of the date the duty arose.”). . Salinger v. Projectavision, Inc., 972 F.Supp. 222, 229 (S.D.N.Y.1997). Accord Newman v. Warnaco Group, Inc., 335 F.3d 187, 193 (2d Cir.2003) (quoting Dodds, 12 F.3d at 351-52) (\" 'An investor does not have to have notice of the entire fraud being perpetrated to be on inquiry notice.' ”). . Newman, 335 F.3d at 194. . Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 Civ. 1898, 2005 WL 2148919, at *4 (S.D.N.Y. Sept. 6, 2005) (\"Teamsters\") (quotation and citation omitted). . Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 169 (2d Cir.2005) (emphasis omitted). . Dodds, 12 F.3d at 350 (citation omitted). . Addeo v. Braver, 956 F.Supp. 443, 449 (S.D.N.Y.1997) (quotation and citation omitted). . In re Alstom SA, 406 F.Supp.2d 402, 421 (S.D.N.Y.2005) (quoting LC Capital Partners, 318 F.3d at 155). . LC Capital Partners, 318 F.3d at 155. . Id. . Basic, 485 U.S. at 238, 108 S.Ct. 978 (emphasis in original). Accord Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992). . Aznelli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994). Accord Basic, 485 U.S. at 231, 108 S.Ct. 978 (applying the materiality standard established in TSC Indus., Inc. v. Northway Inc., 426 U.S. 438, 449, 96 S.Ct 2126, 48 L.Ed.2d 757 (1976) to Rule 10b-5 actions). . TSC Indus., Inc., 426 U.S. at 449, 96 S.Ct. 2126. . See Glazer, 964 F.2d at 154-55. . See, e.g., Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002). . Gavish v. Revlon, Inc., No. 00 Civ. 7291, 2004 WL 2210269, at *20 (S.D.N.Y. Sept. 30, 2004). Accord Novak," }, { "docid": "20912766", "title": "", "text": "Cir.2005) (emphasis omitted). . Dodds, 12 F.3d at 350 (citation omitted). . Addeo v. Braver, 956 F.Supp. 443, 449 (S.D.N.Y.1997) (quotation and citation omitted). . In re Alstom SA, 406 F.Supp.2d 402, 421 (S.D.N.Y.2005) (quoting LC Capital Partners, 318 F.3d at 155). . LC Capital Partners, 318 F.3d at 155. . Id. . Basic, 485 U.S. at 238, 108 S.Ct. 978 (emphasis in original). Accord Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992). . Aznelli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994). Accord Basic, 485 U.S. at 231, 108 S.Ct. 978 (applying the materiality standard established in TSC Indus., Inc. v. Northway Inc., 426 U.S. 438, 449, 96 S.Ct 2126, 48 L.Ed.2d 757 (1976) to Rule 10b-5 actions). . TSC Indus., Inc., 426 U.S. at 449, 96 S.Ct. 2126. . See Glazer, 964 F.2d at 154-55. . See, e.g., Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002). . Gavish v. Revlon, Inc., No. 00 Civ. 7291, 2004 WL 2210269, at *20 (S.D.N.Y. Sept. 30, 2004). Accord Novak, 216 F.3d at 315 (\"statements containing simple economic projections, expressions of optimism, and other puffery are insufficient”); Rombach, 355 F.3d at 174 (unfocused \"[ejxpressions of puffery and corporate optimism do not give rise to securities violations”). . In re Regeneron Pharm., Inc. Sec. Litig., No. 05 Civ. 3111, 2005 WL 225288, at *14 (S.D.N.Y. Feb. 1, 2005) (citing Halperin, 295 F.3d at 357). . In re Gilat Satellite Network, Ltd., No. CV-02-1510, 2005 WL 2277476, at *13 (E.D.N.Y. Sept. 19, 2005) (internal quotation and citation omitted). . P. Stolz Family P'ship v. Daum, 355 F.3d 92, 96-97 (2d Cir.2004). . Id. 3X91. . See Ganino, 228 F.3d at 167; but see id. (\"The truth-on-the-market defense is intensely fact-specific and is rarely an appropriate basis for dismissing a § 10(b) complaint for failure to plead materiality.”). . Id. . 15 U.S.C. § 78u-4(b)(2). . Ganino, 228 F.3d at 169 (quoting Stevelman v. Alias Research Inc., 174 F.3d 79, 84 (2d Cir.1999)). . Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001) (quotation and citation omitted). Accord" }, { "docid": "21313564", "title": "", "text": "intelligence the probability that she has been defrauded.” Dodds v. Cigna Sec., 12 F.3d 346, 350 (2d Cir.1993) (citation omitted). Such circumstances need not lead a plaintiff to “ ‘be able to learn the precise details of the fraud, but they must be capable of perceiving the general fraudulent scheme based on the information available to them.’ ” In re eSpeed, 2006 WL 880045, at *7 (quoting Salinger v. Projectavision, Inc., 972 F.Supp. 222, 229 (S.D.N.Y.1997)); see also Newman v. Warnaco Group, Inc., 335 F.3d 187, 193 (2d Cir.2003) (finding inquiry notice is triggered when a plaintiff “ ‘had constructive notice of facts sufficient to create a duty to inquire further into that matter. An investor does not have to have notice of the entire fraud being perpetrated to be on inquiry notice.’ ” (quoting Dodds, 12 F.3d at 351-52)). However, for this duty to arise, “[t]he fraud must be probable, not merely possible.” Newman, 335 F.3d at 193 (citations omitted). “Moreover, on a motion to dismiss, ‘unless Defendants can produce uncontroverted evidence that irrefutably demonstrates when plaintiff discovered or should have discovered the fraudulent scheme, they cannot satisfy the heavy burden of establishing inquiry notice as a matter of law.’ ” In re eSpeed, at 278 (quoting Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 Civ. 1898, 2005 WL 2148919, at *4 (S.D.N.Y. Sept. 6, 2005)) (alterations omitted); accord Lentell, 396 F.3d at 169 (noting “fact-specific nature of the limitations defense, particularly where the claim is foreclosed by inquiry notice,” and recognizing that the Second Circuit has been “decidedly reluctant to foreclose such claims as untimely absent a manifest indication that plaintiffs ‘could have learned’ the facts underpinning their allegations” before the end of the limitations period). A plaintiff may not be considered to have been placed on inquiry notice, “ ‘despite the presence of some ominous indicators,’ ” when “ ‘the warning signs are accompanied by reliable words of comfort from management.’ ” In re Alstom SA, 406 F.Supp.2d at 421 (quoting LC Capital Partners LP, 318 F.3d at 155). “However, reassuring statements will" }, { "docid": "15448487", "title": "", "text": "§ 10(b) and Rule 10b-5 context” that “ ‘to fulfill the materiality requirement “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ ” of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. 978 (quoting TSC Indus. Inc., v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). See also Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir.2002) (“The touchstone of the inquiry is ... whether defendants’ representations or omissions, considered together and in context, would affect the total mix of information and thereby mislead a reasonable investor regarding the nature of the securities offered.”). The Court underscored that “ ‘[t]he determination of materiality requires delicate assessments of the inferences a “reasonable shareholder” would draw from a given set of facts and the significance of those facts to [the shareholder].’ ” Basic, 485 U.S. at 236, 108 S.Ct. 978 (quoting TSC Indus., 426 U.S. at 450, 96 S.Ct. 2126, alterations omitted). Later in the opinion, the Court explained the advantage of framing the question of materiality in terms of how the information would be viewed by a reasonable investor, rather than in terms of actual impact on market price: Requiring a plaintiff to show a speculative state of facts, i.e., how he would have acted if material information had been disclosed, or if the misrepresentation had not been made, would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market. Id. at 245, 108 S.Ct. 978 (citations omitted). In the second part of the opinion, the Basic Court drew on this fair and manageable definition of materiality to devise a method of establishing reliance on misrepresentations affecting the modern securities markets: if plaintiffs can show that the alleged misrepresentation was material and publicly transmitted into a well-developed market, then reliance will be presumed, for if a reasonable investor would think that the information would have “significantly altered the ‘total mix’ of information,” id. at" } ]